People v. Ha CA2/7

INTRODUCTION

Xuong Tham Ha appeals from a postjudgment order denying his petition for resentencing on his conviction for attempted murder under Penal Code section 1172.6 (former section 1170.95).1 The superior court denied Ha’s petition at the prima facie stage after deciding that Ha was “convicted . . . by plea of being the actual shooter.” Notably, the court’s decision was based in part on the transcript from Ha’s preliminary hearing, along with the information and the transcript of Ha’s plea. Ha contends on appeal that the information, preliminary hearing transcript, and plea do not establish his ineligibility for resentencing as a matter of law. We agree. Accordingly, we reverse the order denying Ha’s section 1172.6 petition and direct the trial court to issue an order to show cause and hold an evidentiary hearing.

FACTUAL BACKGROUND2

On March 8, 2018, around 11:00 p.m., Fred Yue was at a karaoke bar in South El Monte with four or five of his friends, one of whom was Stephen.3 At some point, a fight broke out between Yue’s friends (including Stephen) and other people at

All undesignated statutory references are to the Penal Code. Effective June 30, 2022, section…