People v. Souvannavong CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCD165933
- Trial judge
- John M. Thompson
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Michele M. Castillo (author), Judith D. McConnell, Julia C. Kelety
Analysis
The trial court denied Souvannavong's petition for resentencing under Penal Code section 1172.6 after finding he was the actual killer. The Court of Appeal affirmed the denial, finding no arguable issues for reversal in a Wende/Anders review.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1172.6“Following an evidentiary hearing, the court found the People proved beyond a reasonable doubt Souvannavong was the “actual killer.”” | de novo | correct | agree with court The appellate court affirmed the trial court's factual finding that Souvannavong was the actual killer, which is a prerequisite for denial under section 1172.6. The court found no error in this determination based on the record. |
Failure to dismiss gang enhancement under Penal Code section 1172.1“Whether the trial court should have exercised its discretion to dismiss the section 186.22, subdivision (b)(1) gang allegation pursuant to section 1172.1.” | abuse of discretion | correct | agree with court The court identified this as a potential issue but concluded after independent review that it did not constitute an arguable issue for reversal, implying the trial court did not abuse its discretion in retaining the enhancement. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires independent review of the record by appellate counsel when no arguable issues are identified.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to withdraw from an appeal where no arguable issues exist.
The appellate opinion: sound with gaps — The opinion is procedurally sound as a Wende/Anders brief, correctly identifying the standard for independent review and the potential issues. However, it provides no substantive legal analysis or citations to support the conclusion that the trial court's findings were correct, relying entirely on the absence of arguable issues.
How this analysis was made · dispute it
unusual dispositionAfter remand for an evidentiary hearing on Souvannavong's Penal Code section 1172.6 resentencing petition, the trial court found beyond a reasonable doubt that he was the actual killer (the stabber) and denied the petition. On appeal, appointed counsel filed a Wende/Anders brief, Souvannavong filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of section 1172.6 petition after evidentiary hearing based on finding that petitioner was the actual killer“Following an evidentiary hearing, the court found the People proved beyond a reasonable doubt Souvannavong was the “actual killer.” Specifically, the court found Souvannavong was “the actual stabber of the victim.” The court thus denied Souvannavong’s petition.” | unclear | correct | unsure A finding that the petitioner was the actual killer is a proper basis to deny section 1172.6 relief, since the actual killer remains liable for murder under amended sections 188 and 189. Such a finding would ordinarily be reviewed for substantial evidence, but the opinion recites none of the hearing evidence, so the correctness of the finding cannot be independently assessed from the opinion alone. |
Failure to exercise discretion to dismiss the section 186.22, subdivision (b)(1) gang enhancement under section 1172.1“Whether the trial court should have exercised its discretion to dismiss the section 186.22, subdivision (b)(1) gang allegation pursuant to section 1172.1.” | unclear | correct | agree with court Section 1172.1 recall and resentencing is initiated by the court on its own motion or on recommendation of CDCR or the prosecuting agency, not by a defendant's petition, and nothing in the opinion indicates any such recommendation or motion was before the trial court in the section 1172.6 proceeding. The court was therefore not required to address a section 1172.1 dismissal, and counsel's identification of this as a non-arguable issue appears sound. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the reviewing court independently examines the record for error in a first appeal of right.
- relied: Anders v. California (1967) 386 U.S. 738 — Counsel filing a no-merit brief should identify anything in the record that might arguably support the appeal to assist the court's review.
- missed: People v. Delgadillo (2022) 14 Cal.5th 216 — Wende/Anders independent review is not constitutionally required in an appeal from denial of a section 1172.6 petition; the court must notify the defendant he may file a supplemental brief and that the appeal may be dismissed as abandoned if he does not, and may in its discretion conduct independent review.
The appellate opinion: sound with gaps — The result is defensible: the court gave Souvannavong notice and an opportunity to file his own brief and then exercised what Delgadillo permits as discretionary independent review, finding no arguable issue. But the opinion states that independent review was 'required by Wende' and does not cite Delgadillo, which holds that Wende review is not required in section 1172.6 appeals, so the framework is misstated even though the disposition is proper.
How this analysis was made · dispute it
record incompleteOpinion
Filed 8/29/25 P. v. Souvannavong CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D084719
Plaintiff and Respondent, v. (Super. Ct. No. SCD165933)
MICHAEL JAMES SOUVANNAVONG,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed. Laura Vavakin, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. I. In 2003, Michael James Souvannavong was convicted of second degree murder (Pen. Code, § 187, subd.(a)) of a rival gang member, for the benefit of a criminal street gang (§ 186.22 (b)(1)). The trial court sentenced him to an indeterminate term of 15 years to life in prison and a consecutive determinate sentence of 10 years for the gang enhancement. We affirmed Souvannavong’s conviction, but modified his sentence by replacing the 10-year consecutive sentence with a 15-year parole ineligibility period. (People v. Souvannavong (Oct. 22, 2004, D042456) [nonpub. opn.].) In 2022, Souvannavong filed a petition for resentencing under what is now section 1172.6. The trial court summarily denied the petition. Souvannavong appealed and we remanded to the trial court with instructions to issue an order to show cause and hold an evidentiary hearing. (People v. Souvannavong (Aug. 8, 2023, D081511 [nonpub. opn.].) On remand, the trial court issued an order to show cause why Souvannavong should not receive his requested relief. Following an evidentiary hearing, the court found the People proved beyond a reasonable doubt Souvannavong was the “actual killer.” Specifically, the court found Souvannavong was “the actual stabber of the victim.” The court thus denied Souvannavong’s petition. Souvannavong appeals the denial of his petition. II. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks us to independently review the record for error as required by Wende. We offered Souvannavong the opportunity to file his own brief on appeal, but he has not done so. To assist our review, and in compliance with Anders v. California (1967) 386 U.S. 738, counsel has identified two possible issues that were considered in evaluating the potential merits of this appeal: 1. Whether the trial court should have exercised its discretion to dismiss the section 186.22, subdivision (b)(1) gang allegation pursuant to section 1172.1.
2 2. Whether the trial court erred by finding Souvannavong was the actual killer and denying him relief under section 1172.6. We have reviewed the record for error consistent with the directions in Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Souvannavong on this appeal. III. We affirm the order denying Souvannavong’s petition for resentencing.
CASTILLO, J.
WE CONCUR:
McCONNELL, P. J.
KELETY, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12