Filed 9/2/26 P. v. Mounsaveng CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F089253
Plaintiff and Respondent,
(Super. Ct. No. CF97590200)
v.
ODAY MOUNSAVENG, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Alvin M.
Harrell III, Judge.
Oday Mounsaveng, in pro. per.; and Allen G. Weinberg, under appointment by the
Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Hill, P. J., Franson, J. and DeSantos, J.
INTRODUCTION
Appellant and defendant Oday Mounsaveng (Mounsaveng) and codefendant
Vaene Sivongxxay (Sivongxxay) committed a series of robberies together in Fresno
County, between July and December 1996, while both were armed with firearms. On
December 19, 1996, both defendants entered the Sean Hong Jewelry store to commit
another robbery. They initially conversed with the proprietors, Henry Song (Song) and
his wife, and then Mounsaveng pulled his gun, pointed it at Song, and demanded money
and gold. Song’s wife pushed a silent alarm button, and Sivongxxay pulled his gun and
pointed it at her. During the crime, Mounsaveng dragged Song’s wife by her hair into the
store’s back room where the safe was located. When Song resisted, Mounsaveng used
his gun to beat Song in the head. As Song continued to resist, Sivongxxay shot and killed
Song. The defendants escaped with approximately $30,000 to $40,000 in cash and
jewelry. Mounsaveng received his share and left town.
Both defendants were charged with the first degree murder of Song with the
robbery/murder special circumstance, and the prosecution sought the death penalty. They
were also charged with attempted robbery and multiple counts of robbery for the other
offenses committed in 1996. Defendants waived jury trials for the guilt and penalty
phases and were tried together in a joint bench trial.
Prior to trial, Sivongxxay admitted to police that he fatally shot Song. At trial,
Mounsaveng testified and did not deny his commission of all the robberies and his
presence during the murder. Mounsaveng also testified he acted under duress during
every robbery, including the events at the Sean Hong Jewelry store, and claimed
Sivongxxay and other people allegedly threatened to harm him and his family if he failed
to commit each crime. Mounsaveng also claimed he was always given an unloaded
weapon to hold during all of the crimes and he had no way to intervene or get away from
Sivongxxay.
2
In 1999, both defendants were convicted of the first degree murder of Song with
the robbery/murder special circumstance and firearm enhancements. The trial court
found Sivongxxay was the actual killer. The court rejected Mounsaveng’s credibility as
to all aspects of his duress claim and held he was guilty of the first degree murder of
Song with the robbery/murder special circumstance because he was a major participant
who acted with reckless indifference to human life. As to the other offenses, defendants
were convicted of 13 counts of robbery and two counts of attempted robbery, with
firearm and great bodily injury enhancements.
After the penalty phase, the court sentenced Mounsaveng to life in prison without
the possibility of parole (LWOP), and sentenced Sivongxxay to death. The judgments
were affirmed in separate appeals.
The Felony Murder Rule and Penal Code1 Section 1172.6
At the time of Mounsaveng’s trial, “[u]nder the prior felony-murder rule, if a death
occurred during a listed felony, all the participants in the underlying crime could be
convicted of murder. And under the felony-murder special-circumstance enhancement, if
a participant was the actual killer, directly aided and abetted the actual killer with the
intent to kill or was a major participant in the underlying felony who acted with reckless
indifference to human life, then he or she could be sentenced to death or life in prison
without the possibility of parole (LWOP).” (People v. Cody (2023) 92 Cal.App.5th 87,
92 (Cody), italics added.)
After Mounsaveng was convicted, the terms “major participant” and “reckless
indifference to human life” in the felony-murder special circumstance statute were
clarified in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63
Cal.4th 522 (Clark). (Cody, supra, 92 Cal.App.5th at p. 92.)
1 All further statutory citations are to the Penal Code.
3
In 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) became
effective and amended “ ‘ “the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that murder liability is not
imposed on a person who is not the actual killer, did not act with the intent to kill, or was
not a major participant in the underlying felony who acted with reckless indifference to
human life.” ’ ” (People v. Hill (2024) 100 Cal.App.5th 1055, 1065 (Hill), italics added.)
Section 1437 “repurpose[d] preexisting law governing felony-murder special-
circumstance findings—the findings a [trier of fact] makes in felony-murder cases to
determine whether the defendant may be sentenced to death or life without possibility of
parole [citation] — to define eligibility for sentencing relief.” (People v. Strong (2022)
13 Cal.5th 698, 703 (Strong); Cody, supra, 92 Cal.App.5th at p. 93.) Section 1172.6
allows a defendant to file a petition for resentencing of a prior murder conviction and
argue that conviction is no longer valid after the statutory amendments. (Cody, supra, 92
Cal.App.5th at p. 93.)
Mounsaveng’s Petition for Resentencing
In 2023, Mounsaveng filed a petition in the trial court pursuant to section 1172.6
for resentencing of his first degree murder conviction and LWOP sentence. He alleged
he was no longer guilty of first degree murder after the amendments to the felony-murder
rule because he was not the actual killer, he did not act with the intent to kill, and he was
not a major participant and did not act with reckless indifference to human life because
he acted under the duress of Sivongxxay’s threats.
The trial court found Mounsaveng’s petition stated a prima facie case and
conducted an evidentiary hearing, where the parties submitted the matter on the transcript
of the joint bench trial.
After the evidentiary hearing, the trial court denied the petition and held
Mounsaveng was still guilty of murder as a major participant who acted with reckless
indifference to life based on the Banks and Clark factors.
4
In this appeal from the trial court’s denial of his petition, Mounsaveng’s appellate
counsel filed a brief which summarized the facts and procedural history with citations to
the record, raised no issues, and asked this court to independently review the record
pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) and People v. Wende
(1979) 25 Cal.3d 436 (Wende).
In response to this court’s invitation, Mounsaveng filed a lengthy supplemental
brief that is similar to the brief that his attorney filed prior to the section 1172.6
evidentiary hearing. Mounsaveng effectively renews the arguments he raised at the
evidentiary hearing, that Sivongxxay threatened him so that he acted under duress during
every robbery and the murder, he always held an unloaded gun, he was not a major
participant, and he did not act with reckless indifference based on the Banks and Clark
factors.
We review the trial evidence, the trial court’s findings at the section 1172.6
evidentiary hearing, and Mounsaveng’s arguments, and affirm the denial of
Mounsaveng’s petition.
FACTS2
A first amended information was filed in the Superior Court of Fresno County that
charged defendants Mounsaveng and Sivongxxay with count 1, first degree murder of
2 After notice to the parties and without objection, this court takes judicial notice of
the records before this court of the reporter’s transcripts of the guilt and penalty phases of
the joint bench trial for Mounsaveng and Sivongxxay, which the trial court in the above-
entitled matter reviewed to deny Mounsaveng’s petition for resentencing, and this court’s
opinion that affirmed the judgment in Mounsaveng’s direct appeal. (People v.
Mounsaveng (F033224, Mar. 22, 2001) [nonpub. opn.] (Mounsaveng I).)
The following facts are from the California Supreme Court’s opinion in People v.
Sivongxxay (2017) 3 Cal.5th 151 (Sivongxxay), which reviewed the facts from the
entirety of the evidence at defendants’ joint bench trial and affirmed the judgment in
Sivongxxay’s automatic appeal; this court’s opinion in Mounsaveng I, which also
5
Song (§ 187, subd. (a)), with the robbery/murder special circumstance (§ 190.2, subd.
(a)(17)); counts 2-15, robbery (§§ 211, 212.5, subd. (c)); and count 16, attempted robbery
(§§ 664, 211, 212.5, subd. (c)), with firearm and great bodily injury enhancements.
Defendants waived jury trials for the guilt and penalty phases.
On January 25, 1999, the trial court began the joint bench trial, and the
prosecution sought the death penalty for both defendants. The evidence about the crimes
was introduced at trial through the testimony of the surviving robbery victims.
Attempted Robbery of the Thanh Tin Jewelry Store on July 31, 1996
“On July 31, 1996, Mounsaveng walked into the Thanh Tin Jewelry store, asked to
examine a gold chain, and then left. He returned with [Sivongxxay] about an hour later.
The men looked around for a long time without buying anything. Liem Phu Huynh, the
owner of the jewelry store, asked the men why they were taking so long. Mounsaveng
and [Sivongxxay] claimed they were brothers and were waiting for their sister to arrive.
Eventually, they left.” (Sivongxxay, supra, 3 Cal.5th at p. 158.)
“When [Sivongxxay] and Mounsaveng returned to the store later that afternoon,
Huynh was working in a back room, and his wife Phung Ngoc Ho was behind the sales
counter. After asking to examine several items, Mounsaveng pulled a handgun out of his
waistband, grabbed Ho by the collar, and pointed the gun at her. Huynh, who was
watching from the back room, set off an [audible] alarm. Mounsaveng and [Sivongxxay]
fled.” (Sivongxxay, supra, 3 Cal.5th at p. 158.)
Based on this incident, both defendants were charged and convicted of count 16,
attempted robbery of Phung Ngoc Ho (§§ 664/211, 212.5, subd. (c)), with enhancements
that Mounsaveng personally used a firearm (§ 12022.5, subd. (a)) and Sivongxxay was
personally armed with a firearm (§ 12022, subd. (a)(1)).
Robbery of JMP Mini-Mart on August 16, 1996
reviewed the facts from the joint bench trial and affirmed the judgment against
Mounsaveng; and the transcript of the joint bench trial.
6
Xeng Wang Her owned and operated the JMP Mini-Mart. On August 16, 1996, he
went to the bank. He withdrew approximately $8,000 so he would have enough money
to cash customers’ checks.
While he was at the bank, Bobbie Her was working behind the counter at her
parents’ store. “Mounsaveng entered and asked whether the store cashed checks. When
Bobbie answered that it did, Mounsaveng left.” (Sivongxxay, supra, 3 Cal.5th at p. 158.)
Mounsaveng “eventually returned with [Sivongxxay], and the two men milled about the
store.” (Ibid.) Sivongxxay approached the register to check out, but then said he forgot
something and appeared to resume shopping.
Xeng Wang Her returned to the store with the cash from the bank, and “began
restocking drinks in the store’s refrigerator case. [Sivongxxay] walked up to Xeng,
pointed a handgun at him, and forced him to walk toward the cash register. [Sivongxxay]
then forced Xeng to lie down and kicked him in the back of the head. Meanwhile,
Mounsaveng jumped over the counter and forced Bobbie to open the cash register.
Mounsaveng and [Sivongxxay] took all of the money in the store, ripped a cordless
phone off the wall, and then fled in a blue pickup truck.” (Sivongxxay, supra, 3 Cal.5th at
p. 158.)
Bobbie Her testified that her father remained on the floor during the robbery and
did not resist, but Sivongxxay repeatedly kicked him in the head. Sivongxxay kicked her
father one more time and then ran out of the store.
Based on this incident, both defendants were charged and convicted of counts 14
and 15, the robberies of, respectively, Xeng Wang Her and Bobbie Her, with
enhancements as to both counts that Sivongxxay personally used a firearm (§ 12022.5,
subd. (a)) and Mounsaveng was armed with a firearm (§ 12022, subd. (a)(1)).
Robbery of the Phnom Penh Jewelry Store on October 10, 1996
In August 1996, Mounsaveng went to the Phnom Penh Jewelry store and
presented a Buddha pendant to the owner, Kee Meng Suy (Suy), and asked him to repair
7
it. At some point, Mounsaveng returned and picked up the item. (Sivongxxay, supra, 3
Cal.5th at pp. 158–159.)
“On October 10, 1996, [Sivongxxay] entered the Phnom Penh Jewelry store.
Mounsaveng followed a few minutes later and asked [Suy] to repair a Buddha pendant.
Suy recognized Mounsaveng because he had brought in the same pendant for repair a few
months before.” (Sivongxxay, supra, 3 Cal.5th at pp. 158–159.)
“Suy took the pendant to his workbench in the store’s back room. While Suy was
working, his wife Suntary Heng [Heng] showed Mounsaveng some other pieces of
jewelry. Suy finished repairing the pendant and handed it back to Mounsaveng, who said
he was not satisfied with the work and asked Suy to do it again. Suy returned to his work
bench. Heng then took the couple’s two young children, who were at the store that day,
into the back room to get some food.” (Sivongxxay, supra, 3 Cal.5th at p. 159.)
“At that point, [Sivongxxay] and Mounsaveng forced their way into the back
room, pointed guns at Suy’s head, and told him to ‘stay still.’ [Sivongxxay] and
Mounsaveng punched Suy, pushed him to the floor, and used tape and an extension cord
to bind his limbs and cover his mouth and eyes. Both men then punched, kicked, and
stomped Suy as Heng and the couple’s two children watched.” (Sivongxxay, supra, 3
Cal.5th at p. 159.)
“Mounsaveng demanded Suy’s gun and the videotape from the store’s security
camera, but Heng explained [Suy] had no gun and the camera was broken. Eventually,
Suy lost consciousness. As Mounsaveng and [Sivongxxay] cleared out the store’s safe
and the jewelry in its display cases, Heng activated a silent alarm. The two men fled in a
light blue Honda.” (Sivongxxay, supra, 3 Cal.5th at p. 159.)
Based on this incident, both defendants were charged and convicted of count 12,
robbery of Suy, with enhancements that Mounsaveng personally used a firearm
(§ 12022.5, subd. (a)) and personally inflicted great bodily injury on the victim
8
(§ 12022.7, subd. (a)); and count 13, robbery of Heng, with an enhancement that
Mounsaveng personally used a firearm.
Second Robbery of JMP Mini-Mart on December 14, 1996
“Mounsaveng and [Sivongxxay] returned to the JMP Mini-Mart on December 14,
1996. Xeng Wang Her was working in the store with his wife, Phayvane Boulome, and
there were five or six customers inside. Upon entering the store, both Mounsaveng and
[Sivongxxay] pulled out guns, told the customers to lie on the ground, and demanded that
Xeng and Boulome open the cash register. Mounsaveng took money from the cash
register and also picked up Xeng’s gun, which was underneath the counter. Mounsaveng
then forced Xeng into a back room, where Mounsaveng took cigarettes and change.
After that, Mounsaveng grabbed Boulome and demanded that she open a second cash
register, but she explained it was broken.” (Sivongxxay, supra, 3 Cal.5th at p. 159.)
“Before leaving, Mounsaveng and [Sivongxxay] took money and jewelry from the
customers at gunpoint. In the course of robbing the customers, [Sivongxxay] kicked an
elderly woman in the mouth. One customer recalled seeing an unoccupied white car
outside the store with its engine running.” (Sivongxxay, supra, 3 Cal.5th at p. 159.)
Based on this incident, both defendants were charged and convicted of count 4,
robbery of Xeng Wang Her (§ 211, 212.5, subd. (c)); and counts 5-8 and 10-11, robberies
of six customers who were in the store; and that each defendant personally used a firearm
(§ 12022.5, subd. (a)). In count 9, they were charged with the robbery of a seventh
customer, but the trial court accepted the prosecutor’s concession that both defendants
were instead guilty of the lesser included offense of attempted robbery, with the
enhancement that Sivongxxay personally inflicted great bodily injury on that victim
(§ 12022.7, subd. (a)).
Robbery of the Sean Hong Jewelry Store and Murder of Song on December 19, 1996
9
Song and his wife, Seak Ang Hor (Hor), owned the Sean Hong Jewelry store. Hor
testified at trial and gave the following account of the robbery and murder of her
husband.
On November 27, 1996, Sivongxxay went to the Sean Hong Jewelry store, and
sold some rings and other jewelry to Hor for $340. He also left a Buddha pendant to be
repaired. (Sivongxxay, supra, 3 Cal.5th at p. 159.)
On December 19, 1996, Sivongxxay again went to the Sean Hong Jewelry store.
(Sivongxxay, supra, 3 Cal.5th at pp. 159–160.) Mounsaveng entered the store about 10
minutes later, looked at a display case, and initially did not interact with Sivongxxay.
Song was in the rear of the store, repairing jewelry at a worktable. There was a
video camera in the store that was concealed from view. Song activated the camera when
Sivongxxay entered the store, and it kept filming during the robbery and murder,
although it did not capture the entirety of the events.
Hor told Sivongxxay that the Buddha pendant had been repaired. Sivongxxay said
he did not have the money yet. Mounsaveng then asked to look at the pendant.
Hor asked Song to get the pendant out of the safe, which was located inside a
separate small room in the back of the store. Song went into the small room and
unlocked the safe. He could not find the pendant and asked his wife to help him. She left
the front of the store, went into the small room, and looked through the safe. The small
room’s door was left ajar, which would have allowed the defendants to see the safe.
Song and his wife found the pendant, closed and locked the safe, and both returned to the
counter area. Sivongxxay said he did not want a female touching the pendant. Song
removed the pendant from a plastic bag and gave it to Sivongxxay.
Sivongxxay looked at the pendant. Mounsaveng took the pendant from him and
also looked at it. Sivongxxay and Mounsaveng gave it back to Song and said they did not
have money yet.
10
Song turned around to place the pendant on his worktable. Hor testified at that
point, Mounsaveng was the first man to draw a gun, and pointed it at Song and “screamed
‘give the money and gold.’ ” Hor immediately pressed a foot button to activate the silent
alarm. Sivongxxay then pulled his gun and pointed it at Hor.
Mounsaveng forced Song to the cash register. Both defendants then pushed Song
and his wife into the small room that contained the safe. Mounsaveng grabbed Hor by
her hair and dragged her to the safe at gunpoint, and she was forced to crawl on the floor.
Mounsaveng walked out of the small room and closed the door. Sivongxxay
remained inside with Song and Hor, and he told Hor to open the safe. Song also told her
to open it, but she was frightened and could not remember the combination.
At some point while the door to the small room was closed, Song tried to reach for
Sivongxxay’s gun, and the two men engaged in a struggle. Mounsaveng returned to the
small room and beat Song in the head with his gun, and Song screamed. (Sivongxxay,
supra, 3 Cal.5th at p. 160.)
Defendants pulled the victims out of the small room into the main store. Hor
crawled on the floor to the silent alarm button and pushed it again. Mounsaveng
followed Hor, grabbed her shirt, and pulled her back. Hor testified the last time she saw
her husband standing up, he was between Sivongxxay and Mounsaveng. She kicked the
wall and hoped the proprietor of the business next door would hear her.
Mounsaveng said “ ‘let’s go’ ” to Sivongxxay. Hor pushed the button to open the
security door so they could leave. Sivongxxay stood in front of Hor, pointed his gun at
her, and said to give him money. She gave him cash from her purse. Sivongxxay used
his gun to break the glass display case, grabbed jewelry out of it, and defendants left the
store.
Mounsaveng and Sivongxxay stole approximately $30,000 to $40,000 in cash and
jewelry.
11
“After Mounsaveng and [Sivongxxay] left, Hor found her husband lying on the
floor of the back room with blood coming out of his mouth.” (Sivongxxay, supra, 3
Cal.5th at p. 160.) The first officer at the scene testified Song was lying on his back,
face-up, and his arms were above his head. “Song died within the hour. The cause of
death was perforation of the heart and lungs from three gunshot wounds.” (Sivongxxay,
supra, 3 Cal.5th at p. 160.)
Hor testified she “did not see either of the robbers shoot her husband, nor did she
recall hearing the gunshots. However, the robbery was partially captured on the store’s
video camera.” (Sivongxxay, supra, 3 Cal.5th at p. 160.)
“A Fresno Police Department detective testified that in reviewing a video of the
incident, he could identify a moment when several gunshots were audible. At that
moment, [Sivongxxay] and Song were not in the camera’s frame, but Mounsaveng and
Hor were. Mounsaveng was pointing his gun toward the location where [Sivongxxay]
and Song were fighting. After the shots were fired, Mounsaveng moved out of the frame
and toward the back room, where [Sivongxxay] and Song had been fighting. Ballistics
evidence showed that all of the bullets were fired from the same gun. In the video, one of
the defendants is heard to say, ‘shoot, shoot.’ ” (Sivongxxay, supra, 3 Cal.5th at p. 160.)
Mounsaveng’s Trial Testimony About the Sean Hong Jewelry Store Robbery
and Murder
We will review the entirety of Mounsaveng’s trial testimony about his duress
defense below but address herein his testimony about the robbery and murder at the Sean
Hong Jewelry store.
Mounsaveng was shown still photographs from the store’s surveillance video, that
showed him examining the Buddha pendant, laughing, and looking up at the store’s
ceiling and walls. Mounsaveng confirmed that the video showed that he climbed on top
of a couch and asked the owner’s wife about the price of a blanket that was displayed at
12
the top of the wall. Mounsaveng claimed he was interested in buying the blanket even
though he did not have any money. He denied that he was looking for security cameras.
Mounsaveng admitted he was the first person to draw his gun, and he pointed it at
Song. He claimed Sivongxxay ordered him to do that. Mounsaveng admitted that he was
the person on the store’s security video who said, “ ‘Don’t move, don’t move, I shoot
you, I shoot you right now, get down, get down, get down.’ ” Mounsaveng testified he
said that because he did not want anyone to get hurt. He also admitted that he pulled
Song’s wife by her hair.
Mounsaveng testified he was standing by a showcase when he saw Sivongxxay
fighting with Song. Mounsaveng identified Sivongxxay as the person heard on the video
who said, “ ‘[s]hoot, shoot.’ ” Sivongxxay said that to him, and he was referring to Song.
At that moment, Mounsaveng was only holding his own gun.
Mounsaveng testified he went to where Sivongxxay and Song were fighting. Both
men were kneeling on the floor and fighting with their hands. Mounsaveng saw a gun on
the floor near them. Mounsaveng believed Sivongxxay had dropped his gun during the
struggle. Mounsaveng testified he “grabbed” the gun from the floor while he still held
his own gun, and ran back to the showcase area.
Mounsaveng acknowledged the video showed him holding two guns.
Mounsaveng told Hor to come out from the back, and she stood up. Mounsaveng walked
closer to the cash register area to see what Sivongxxay and Song were doing, and they
were still fighting. As Mounsaveng looked at them, Sivongxxay “pulled” the second gun
away from him.
Mounsaveng was scared and again ran across the showroom. He heard a lot of
noise, but he was not sure if he heard gunshots.
After they left the store and returned to a residence, Mounsaveng saw blood on
Sivongxxay’s clothes, and Sivongxxay said that he shot someone. Mounsaveng admitted
he asked for and received money from the Sean Hong Jewelry store robbery.
13
Based on this final incident, both defendants were charged and convicted of count
1, first degree murder of Song (§ 187) with the robbery/murder special circumstance
found true (§ 190.2, subd. (a)(17)); count 2, robbery of Song (§§ 211, 212.5, subd. (c));
and count 3, robbery of Hor; with enhancements that both defendants personally used a
firearm in the commission of counts 1-3. (§ 12022.5, subd. (a).)
Arrest of Defendants
On February 5, 1997, police officers in Worthington, Minnesota received
information that Mounsaveng was in the area. He was seen driving a vehicle with
California license plates, and he pulled out a large quantity of $100 bills when he was at a
gas station. The officers informed detectives at the Fresno Police Department, and an
arrest warrant for Mounsaveng was issued.
On February 7, 1997, numerous police officers served the arrest warrant at a
mobile home in Worthington where Mounsaveng was living. Khanthlay “Kathy”
Sengphet, Mounsaveng’s girlfriend, walked out with their two young children.
Mounsaveng walked out next, said he was “Pong Intavong,” and presented an
identification card in that name with someone else’s photograph. Mounsaveng was
arrested and taken into custody.
The officers searched the mobile home and Mounsaveng’s vehicle pursuant to
warrants. There was a clip of ammunition “for a .25 auto” in the mobile home. There
was one live nine-millimeter round in the vehicle, along with a clip loaded with seven
rounds for an automatic weapon. The officers did not find any firearms.
Sivongxxay was arrested in Fresno on February 12, 1997. In subsequent pretrial
interviews, he admitted that he shot Song. (Sivongxxay, supra, 3 Cal.5th at pp. 160–161.)
Mounsaveng’s Attempted Escape
On February 18, 1997, two officers escorted Mounsaveng from Minnesota to
Fresno for trial. As they were about to board an airplane at the Los Angeles International
Airport for the last leg of their trip to Fresno, Mounsaveng broke away from the officers
14
and ran across the airfield. The officers chased Mounsaveng and repeatedly yelled at him
to stop, but Mounsaveng ignored their orders and kept running.
Mounsaveng ran approximately 250 to 300 yards across the airfield. He climbed
over the airport’s perimeter fence, dropped to the other side, and was within 15 to 20 feet
of heavy vehicle traffic on a major thoroughfare. As Mounsaveng was about to run
toward the street, an officer fired and shot him three times.
When officers reached Mounsaveng, he was lying on the ground, wounded but
alert, and spontaneously said, “ ‘I have just been shot by this asshole. I was just trying to
get away.’ ”
Mounsaveng was shot in the spinal area, rib cage, and arm during his attempted
escape. He was paralyzed and in a wheelchair.
MOUNSAVENG’S TRIAL TESTIMONY
“In defending these charges, [Mounsaveng] did not contest his involvement in the
robberies. Instead, [he] claimed he acted under duress. [Mounsaveng] outlined a
sequence of events that precipitated his participation in both the charged and several
uncharged robberies.” (Mounsaveng I, supra, F033224.)
“[Mounsaveng] testified that the coercion began in December 1995, approximately
one year before the murder took place. While [Mounsaveng] and his girlfriend, Kathy
Sengphet, were at the hospital with their youngest child, [Mounsaveng] received a
telephone call from a man that he knew as ‘Turre.’ Turre asked [Mounsaveng] to meet
him at a certain location. However, after [Mounsaveng] arrived there with his other
young son, [Mounsaveng] was tied up and he and the child were kidnapped. Turre, an
African-American man named ‘Frank’ and a third man [Mounsaveng] believed to be
Sivongxxay drove [Mounsaveng] around in his car for approximately 90 minutes.
[Mounsaveng] was asked if he had any money to pay a debt owed by his friend ‘Lut.’
[Mounsaveng] did not and he and his son were eventually released.” (Mounsaveng I,
supra, F033224.)
15
“[Mounsaveng] returned to the hospital and told Sengphet what had happened. At
first Sengphet did not believe him. However, later that evening [Mounsaveng] and
Sengphet saw the same three men standing near their house. Thereafter, Sengphet
reported the matter to the police.” (Mounsaveng I, supra, F033224.)
“Following this kidnapping, [Mounsaveng] drove to Visalia and stayed with a
friend. About two weeks later [Mounsaveng] returned to Fresno. However,
[Mounsaveng] was afraid for himself and his family. [Mounsaveng] and Sengphet then
moved to Portland, Oregon, to stay with [Mounsaveng’s] parents.” (Mounsaveng I,
supra, F033224.)
Mounsaveng testified Turre found him “in Portland. On January 17, 1996, Turre
and two other Asian men appeared at [Mounsaveng’s] parents’ house and asked
[Mounsaveng] for money. [Mounsaveng] responded that he did not have any. The men
then pointed a gun at [Mounsaveng] and told him to go with them. [Mounsaveng]
refused and the men left. A short time later a car drove by and three or four shots were
fired at the house.” (Mounsaveng I, supra, F033224.)
“A few weeks later [Mounsaveng] and Sengphet moved back to Fresno with their
children. Then, around May 1996, Turre approached [Mounsaveng] again. Turre,
Sivongxxay, and a third Asian man told [Mounsaveng] that they would contact him and
he would have to help rob a store at that time. [Mounsaveng] testified he was scared so
he answered ‘ “Yes, do not disturb my family, myself.” ’ ” (Mounsaveng I, supra,
F033224.)
On cross-examination, however, Mounsaveng admitted he had known Sivongxxay
for seven or eight years before the alleged kidnapping and threats. Mounsaveng also
admitted that when he was previously living in Oregon, Sivongxxay provided a gun to
him when he was arguing with another person.
Mounsaveng testified he had a prior conviction for felony theft in Oregon in 1989.
Mounsaveng’s codefendant in the Oregon theft case was Sivongxxay’s brother.
16
Uncharged Robberies
Mounsaveng testified that “Sivongxxay and two other men made contact with
[him] about a month and a half later. They ordered [Mounsaveng] to accompany them
while they robbed a store. [Mounsaveng] agreed to act as the getaway driver because he
was afraid.” (Mounsaveng I, supra, F033224.) When they arrived at the store, the two
men got out and told Mounsaveng to stay in the car. They returned with guns and
money, and told him to drive away. They also told him not to talk about what happened.
Mounsaveng was not charged with this robbery. (Ibid.)
One or two weeks later, Sivongxxay and another man contacted Mounsaveng and
again told him to drive the car while they committed a robbery, or they would hurt his
family. Mounsaveng drove the car, the men went into the store, and they returned with
guns and money. He did not receive any of the proceeds. Mounsaveng was not charged
with this robbery. (Mounsaveng I, supra, F033224.)
Mounsaveng admitted he did not call the police between or after the two
uncharged robberies, even anonymously, to report the alleged threats against him.
Charged Robberies
“With respect to the charged robberies, [Mounsaveng] testified that his
involvement was forced through fear. He further claimed that his gun was unloaded and
that he never received any of the cash or loot.” (Mounsaveng I, supra, F033224.)
Mounsaveng admitted that during the attempted robbery at the Thanh Tin Jewelry
store, he grabbed and pulled someone by the collar, but insisted that he did not want to
hurt that person.
Mounsaveng admitted he went to the Phnom Penh Jewelry store in August 1996,
and left a charm for repair. In October 1996, Mounsaveng returned with Sivongxxay to
rob the store, and admitted that he hit, kicked, and pushed down a victim, but he did that
so the person would not get shot. He also asked a victim for the video from the store’s
surveillance camera. He claimed Sivongxxay told him to do these things.
17
Mounsaveng testified he committed the second robbery at the JMP Mini-Mart on
December 14, 1996, because Sivongxxay threatened him and pointed his gun at him
during the robbery. Mounsaveng admitted he took the victim’s handgun but he didn’t
know if that weapon was loaded. He apologized for grabbing one of the victims, and
claimed he didn’t know if Sivongxxay kicked anyone.
As for the Sean Hong Jewelry store robbery on December 19, 1996, Mounsaveng
again testified he committed the offense because Sivongxxay threatened him and his
family, and he was given an unloaded gun. He acknowledged that his girlfriend and their
children were living in Minnesota by that time, but he had other family in Fresno.
Mounsaveng was asked if he heard the prosecution’s evidence about Sivongxxay’s
post-arrest statement, where Sivongxxay claimed Mounsaveng forced him to commit the
robberies and the homicide. Mounsaveng testified that was not true.3
Arrest and Attempted Escape
3 At trial, the prosecution introduced Sivongxxay’s post-arrest statements, where he
“initially denied involvement in the robberies. However, after the detective showed him
stills from the Sean Hong Jewelry store’s video camera, [Sivongxxay] admitted he took
part in the robbery. At first, he claimed Mounsaveng was the one who shot Henry Song.
[Sivongxxay] described his struggle with Song and claimed that Song hit him on the head
with a chair. But when the detective asked how the struggle ended, [Sivongxxay]
confessed that he, not Mounsaveng, had shot Song. He apologized for lying at the outset
of the interview and said he was sorry to Song’s family for what he had done.
[Sivongxxay] also told the detective that Mounsaveng forced him to rob the Sean Hong
Jewelry store and that he was so high on cocaine that day he could hardly think.”
(Sivongxxay, supra, 3 Cal.5th at pp. 160–161.)
The trial court held the entirety of Sivongxxay’s post-arrest statements were
admissible against him. As to Mounsaveng’s case, the trial court stated it would only
consider Sivongxxay’s admission that he was the shooter. The court stated it would not
consider the rest of Sivongxxay’s post-arrest statements against Mounsaveng. During the
prosecutor’s cross-examination of Mounsaveng, the court permitted the prosecutor to ask
about the credibility of Sivongxxay’s claim that Mounsaveng forced him to commit the
robberies.
18
Mounsaveng testified that “[f]ollowing the murder, [he] fled to Los Angeles
because he was scared. From there he went to Minnesota to join Sengphet and the
children. Sengphet had been in Minnesota since September [1996].” (Mounsaveng I,
supra, F033224.)
Mounsaveng testified that on the day of his arrest in Minnesota, someone called
the mobile home and said the police were outside and to come out with his hands up. He
told his girlfriend to go out first and identify him with a false name because he was
afraid, he didn’t want to talk to the police, and he knew he had an outstanding warrant for
theft in Oregon.
After he was arrested, Mounsaveng was told that he murdered someone.
Mounsaveng ran away at the Los Angeles airport because he was scared and missed his
family.
Sengphet’s Testimony
Kathy Sengphet, the mother of Mounsaveng’s children, testified for the defense
and corroborated most of his story.
Sengphet testified that in September 1996, she left Mounsaveng and took the
children to live in Minnesota to get away from the threats. She admitted Mounsaveng
had been with another woman in Fresno, and she moved because of domestic problems.
Mounsaveng arrived in Minnesota in December 1996, and told Sengphet that he was in
trouble and had done something bad. Sengphet never saw Sivongxxay in Minnesota. On
further examination, Sengphet testified Mounsaveng arrived in Minnesota in January
1997, a few weeks before he was arrested, and said he wanted to be with her and the
children.
Sengphet testified that on the day that Mounsaveng was arrested, he answered a
telephone call at their mobile home. After he finished the call, Mounsaveng told
Sengphet that someone was coming to arrest him, she should say that he was not there,
and she should falsely identify him as “Pong Intavong.” Mounsaveng told Sengphet to
19
walk out with the children and he would follow her. When the police arrived, Sengphet
walked out and said the man in the trailer was “Pong Intavong.” Sengphet admitted she
pleaded guilty to a felony for falsely identifying Mounsaveng.
Sengphet claimed the ammunition clip found in the mobile home belonged to her.
She could not remember what she told an officer about the clip.
The parties stipulated that after Mounsaveng was arrested, Sengphet told an officer
in Minnesota that the ammunition clip found in the mobile home belonged to
Mounsaveng and not to her. She also told an officer that three months before he was
arrested, Mounsaveng visited her in Minnesota, stayed one week, went back to
California, and then returned.
TRIAL COURT’S FINDINGS AND VERDICTS
On March 11, 1999, the trial court found both defendants guilty of count 1, first
degree murder of Song with the robbery/murder special circumstance found true, and that
each personally used a firearm (§ 12022.5, subd. (a)).
The court found beyond a reasonable doubt that Sivongxxay was guilty of first
degree murder with the robbery/felony murder special circumstance, based on both his
admission that he was the actual killer, and scenes from the store’s surveillance video.
“You reach a point in the tape where the first of the three shots
can be heard. When I say the first of the three, there are three shots,
one and then two others more rapid, all – in the confusion of all the
banging and clanging and various sounds, those three are of an
identical nature in my opinion and are clearly the shots.
“But in reaching this factual determination, Mr. Mounsaveng is
clearly in the frame and across the room with the female victim
when the first shot is fired. He also appears to react to that shot by
turning back towards the employee area of the store with his gun in
his hand, and then moves out of [the] frame when the next two shots
are fired. [¶] This, coupled with the voluntary, knowing and
intelligent waiver and statement by Mr. Sivongxxay to Detective
Wells that he shot the victim, establishes in my mind clearly without
reasonable doubt that [Sivongxxay] fired the shots.”
20
The trial court found Mounsaveng was guilty of first degree murder with the
robbery/felony murder special circumstance because he was a “willing” and major
participant who acted with reckless indifference to human life.
“The pattern of robberies in this case—the pattern of robberies
that he participated in … the carrying of weapons thought to be
either unloaded not known to be loaded or unloaded, the willingness
to do harm in the pattern of robberies through physical forces
exerted on victims and witnesses, clearly shows a reckless
indifference to human life.”
The trial court also found both defendants were guilty of the robberies in counts 2-
8 and 10-15; and attempted robberies in counts 9 and 16. The court found true the
firearm and great bodily injury enhancements attached to those counts. (Sivongxxay,
supra, 3 Cal.5th at pp. 158–161.)
Findings on Duress Defense
As to all counts, the trial court held there was insufficient evidence to support
Mounsaveng’s duress defense and his trial claims that he was forced by Sivongxxay and
“Turre” to commit the robberies and murder:
“[I]n between the time of those uncharged robberies that
[Mounsaveng] testified to and … the first charged offense in this
case, he had ample opportunity to alert authorities to protect himself
and his family, long periods of time unaccompanied by any other
persons who were in a position to threaten him or his family with
any imminent peril or danger.”
The trial court also held there was insufficient evidence to support the duress
defense as to Sivongxxay, to the extent Sivongxxay raised it in his post-arrest statements
that he committed the offenses because Mounsaveng threatened him.
Sentences
After conducting the penalty phase, the court sentenced Mounsaveng to 53 years
for counts 2-16 and the enhancements, plus an LWOP term for first degree murder with
the special circumstance. Sivongxxay was sentenced to death.
21
DEFENDANTS’ DIRECT APPEALS
In his direct appeal, Mounsaveng argued the trial court improperly rejected his
duress defense to the robberies and murder by erroneously using the preponderance of the
evidence standard. (Mounsaveng I, supra, F033224.) We agreed but held the error was
harmless beyond a reasonable doubt because the trial court “specifically limited this
finding to the uncharged robberies. Thus, this error could not have contributed to the
verdict.” (Ibid.) The error was also harmless as to the charged offenses because the trial
court “determined it was clear that between the time of the uncharged robberies and the
first charged robbery [Mounsaveng] ‘had ample opportunity to alert authorities to protect
himself and his family, long periods of time unaccompanied by any other persons who
were in a position to threaten him or his family with any imminent peril or danger,’ ” and
“it is this finding that establishes beyond a reasonable doubt that the trial court’s
application of the incorrect burden of proof did not contribute to the verdict.” (Ibid.)
“[T]he trial court’s finding that [Mounsaveng] had the opportunity to
alert the authorities condemns [his] duress defense. He had the
ability to refuse to participate in the robberies and to avoid the
threatened harm. Under these circumstances, the trial court’s
application of an incorrect burden of proof to [his duress] defense is
inconsequential. The existence of reasonable and legal options alone
caused [his] defense to fail.” (Mounsaveng I, supra, F033224.)4
In 2017, the California Supreme Court rejected Sivongxxay’s challenges to the
validity of his waivers to jury trials for the guilt and penalty phases, and affirmed the
judgment. (Sivongxxay, supra, 3 Cal.5th at pp. 157, 164, 199.)
PETITION FOR RESENTENCING
On July 20, 2023, Mounsaveng, in propria persona, filed a petition in the trial
court for resentencing of his murder conviction and LWOP term pursuant to section
4 After notice and without objection, this court also takes judicial notice of In re
Mounsaveng (Feb. 8, 2018, F076835 [nonpub. order]; In re Mounsaveng (Mar. 19, 2020,
F080085) [nonpub. order]; and In re Mounsaveng (Jun. 30, 2021, F082481) [nonpub.
order], where his petitions based on his renewed duress arguments were denied by the
trial court and this court.
22
1172.6 and the amendments enacted by Senate Bill 1437. Mounsaveng alleged that he
was not the shooter, he did not act with the intent to kill, his gun was unloaded, and he
was forced to commit the crimes because of duress and threats against his family.
Mounsaveng admitted that at the time of the crimes, he was a “no good dirty and really
wrong person” and “wrong in every way,” but he had changed and become a better
person through mental health and religious programming in prison. The court appointed
counsel.
The People conceded Mounsaveng’s petition stated a prima facie case. The court
accepted the People’s concession and issued an order to show cause for an evidentiary
hearing.
EVIDENTIARY HEARING
The Parties’ Briefs
The People filed a brief for the evidentiary hearing and moved for introduction of
the trial transcript into evidence.
The People argued Mounsaveng was still guilty of first degree murder with the
special circumstance because the trial evidence undermined his duress claim. He
participated in five different charged robberies over six months and had numerous
opportunities to stop. Mounsaveng knew Sivongxxay was dangerous and continued to
perform robberies with him. Mounsaveng initiated the violence at the Sean Hong
robbery when he drew his firearm first, he dragged Song’s wife by her hair, and he beat
Song in the head with his gun. He did nothing to minimize the violence against both
Song and his wife. He immediately fled the store after Song was killed and did not
render aid. While Mounsaveng claimed he was always given unloaded firearms, the
police found ammunition in his vehicle when he was arrested in Minnesota, and
Mounsaveng admitted he received profits from the robbery of Song’s store.
Mounsaveng’s counsel also filed a brief for the evidentiary hearing. Mounsaveng
relied on his trial testimony and again argued that he committed the offenses under
23
duress, he had an unloaded weapon which minimized the risk of harm, no one fired any
gunshots during the prior robberies, he never had the opportunity to alert the police
because he was constantly under Sivongxxay’s threats, and he was not a major participant
who acted with reckless indifference as defined by Banks and Clark.
The Court’s Hearing
On November 22, 2024, the trial court convened the evidentiary hearing.
Mounsaveng’s counsel argued he was likely in possession of ammunition in Minnesota to
protect himself if Sivongxxay tried to eliminate him as a potential witness to the murder.
The court granted the People’s motion to introduce the trial transcripts and took the
matter under submission.
The Court’s Denial of the Petition
On January 17, 2025, the trial court convened a hearing and stated it had
“carefully reviewed and considered” the trial transcript, the parties’ briefs, and their
arguments. The court reviewed Mounsaveng’s duress defense and the Banks and Clark
factors, and denied his petition.
The court held Mounsaveng was still guilty of first degree murder with the
robbery/felony murder special circumstance after the amendments enacted by Senate Bill
1437, because he was a major participant who acted with reckless indifference to human
life.
“The court[’s] evaluation of the totality of the circumstances in
this case supports a finding that Mounsaveng was indeed a major
participant in the robbery and senseless killing of Mr. Song.
Specifically, Mounsaveng played a major role in the offenses. He
personally participated in five separate robberies. Moreover,
although Mounsaveng claims that this firearm was not loaded, he
nevertheless was personally armed with a firearm during each
robbery. During the December 19, 1996 robbery that led to Henry
Song’s untimely death, Mounsaveng initiated the violence against
both Henry Song and his wife. Moreover, Mounsaveng drew his
firearm during this offense. Furthermore, there is no evidence that
he did anything to mitigate or prevent the violence.
24
“Mounsaveng was also clearly aware of the danger posed by
these offenses. Certainly, a robbery facilitated with a firearm is
inherently dangerous. Mounsaveng was also aware that his co-
defendant was extremely violent. Finally, after the robbery and
murder of Henry Song, Mounsaveng fled the scene without any
attempt to render aid or even call 911. For all of these reasons, the
totality of the circumstances reveals that Mounsaveng was indeed a
major participant in the murder and robberies.”
The court found appellant acted with reckless indifference to human life. It
acknowledged Mounsaveng’s participation “was not as violent” as the defendants in
other Banks/Clark cases, but he was also “not as passive.”
“Given the totality of the circumstances, this court finds that
Mounsaveng did in fact act with reckless indifference to human life.
Specifically, during the course of the charged robberies that occurred
over a five-month period, both Mounsaveng and [Sivongxxay] were
always personally armed with firearms. Furthermore, Mounsaveng
was present when Sivongxxay shot and killed Henry Song. Further
still, Mounsaveng actually initiated the violence and drew his
firearm and forced Henry Song to the cash register before
Sivongxxay fired the lethal shot. After the shooting, Mounsaveng
fled the scene without rendering aid or calling 911. The evidence
clearly establishes that Mounsaveng was indeed an active participant
in the subject robberies and the murder of Henry Song.”
On January 24, 2025, Mounsaveng filed a timely notice of appeal.
DISCUSSION
As explained above, appellate counsel filed a brief with this court pursuant to
Wende and Delgadillo. The brief also included counsel’s declaration that Mounsaveng
was advised he could file his own brief with this court.
In response to this court’s invitation to file a supplemental letter brief,
Mounsaveng requested appointment of another appellate counsel, and filed most of the
brief that his counsel filed with the trial court prior to the section 1172.6 evidentiary
hearing. By doing so, he again asserts that he was not a major participant, he did not
intend to kill, he did not act with reckless disregard, he participated in all the robberies
and was present during the murder because Sivongxxay threatened him, and he acted
under duress.
25
I. Request for New Appellate Counsel
Mounsaveng asserts this court must appoint another attorney to represent him in
this appeal because appellate counsel filed a brief pursuant to Delgadillo and Wende. He
complains appellate counsel had “little to no interest in litigating [the] case” and counsel
was unwilling to conduct interviews, discuss the law presented in the trial court, or argue
the facts or law on his behalf.
Delgadillo held that in an appeal from the denial of a section 1172.6 petition,
“[w]hen appointed counsel finds no arguable issues to be pursued on appeal: (1) counsel
should file a brief informing the court of that determination, including a concise recitation
of the facts bearing on the denial of the petition; and (2) the court should send, with a
copy of counsel’s brief, notice to the defendant, informing the defendant of the right to
file a supplemental letter or brief and that if no letter or brief is filed within 30 days, the
court may dismiss the matter.” (Delgadillo, supra, 14 Cal.5th at pp. 231–232.) “If the
defendant subsequently files a supplemental brief or letter, the Court of Appeal is
required to evaluate the specific arguments presented in that brief and to issue a written
opinion. The filing of a supplemental brief or letter does not compel an independent
review of the entire record to identify unraised issues. [Citations.] ... While it is wholly
within the court’ s discretion, the Court of Appeal is not barred from conducting its own
independent review of the record in any individual section 1172.6 appeal.” (Id. at p.
232.)
In this appeal, Mounsaveng responded to this court’s Delgadillo notice and filed a
supplemental brief. We will address the issues raised in his supplemental brief below
and, in an abundance of caution, exercise our discretion to conduct our own independent
review of the record.
As to Mounsaveng’s complaints that appellate counsel refused to investigate or
conduct interviews, “ ‘[t]he purpose of section [1172.6] is to give defendants the benefit
of amended sections 188 and 189 with respect to issues not previously determined, not to
26
provide a do-over on factual disputes that have already been resolved.’ ” (People v.
Farfan (2021) 71 Cal.App.5th 942, 947.) Section 1172.6 does not permit “ ‘litigat[ing]
anew’ any trial issues or allowing ‘a petitioner to challenge any aspect of the factfinding
from the original trial that he or she wishes to revisit.’ ” (People v. Curiel (2023) 15
Cal.5th 433, 470.)
Mounsaveng’s request for appointment of a new appellate attorney is denied.
II. Section 1172.6
In his supplemental letter brief, Mounsaveng argues the trial court improperly
denied his section 1172.6 petition after the evidentiary hearing because he is no longer
guilty of murder after the amendments enacted by Senate Bill 1437.
As explained above, Senate Bill 1437 amended the felony murder rule “ ‘to ensure
that murder liability is not imposed on a person who is not the actual killer, did not act
with the intent to kill, or was not a major participant in the underlying felony who acted
with reckless indifference to human life.’ ” (Hill, supra, 100 Cal.App.5th at p. 1065.)
Section 1172.6 permits a petitioner convicted under the former version of the
felony murder rule to file a petition to have the conviction vacated and to be resentenced
if the following conditions apply:
“(1) A complaint, information, or indictment was filed against the petitioner that
allowed the prosecution to proceed under a theory of felony murder, murder under the
natural and probable consequences doctrine or other theory under which malice is
imputed to a person based solely on that person’ s participation in a crime, or attempted
murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was
convicted of murder, attempted murder, or manslaughter following a trial or accepted a
plea offer in lieu of a trial at which the petitioner could have been convicted of murder or
attempted murder. [¶] (3) The petitioner could not presently be convicted of murder or
attempted murder because of changes to [s]ection 188 or 189 made effective January 1,
2019.” (§ 1172.6, subd. (a).)
27
“Upon the filing of a facially sufficient resentencing petition under section 1172.6,
the superior court must conduct a prima facie analysis with briefing to determine the
petitioner’s eligibility for relief, and, if the requisite prima facie showing is made, issue
an order to show cause.” (Hill, supra, 100 Cal.App.5th at p. 1065.)
“At the evidentiary hearing following issuance of an order to show cause, the
superior court acts as an independent fact finder, and the prosecution bears the burden of
proving beyond a reasonable doubt that the petitioner is guilty of murder or attempted
murder under California law following Senate Bill No. 1437’s amendments. [Citations.]
The petitioner and the prosecutor may offer new or additional evidence, and the court
may consider evidence ‘previously admitted at any prior hearing or trial that is admissible
under current law,’ including witness testimony.” (Hill, supra, 100 Cal.App.5th at p.
1065.) This includes the transcript of the petitioner’s trial that resulted in his homicide
conviction. (Cody, supra, 92 Cal.App.5th at p. 104.)
The focus at the evidentiary hearing is on evidence made relevant by the
amendments to the substantive definition of murder which, in the context of
Mounsaveng’s petition, required the prosecution to prove beyond a reasonable doubt that
he was a major participant who acted with reckless indifference to human life. (People v.
Vargas (2022) 84 Cal.App.5th 943, 952 (Vargas).) “[T]he trial judge must review all the
relevant evidence, evaluate and resolve contradictions, and make determinations as to
credibility, all under the reasonable doubt standard.” (People v. Clements (2022) 75
Cal.App.5th 276, 298.)
If the trial court “finds beyond a reasonable doubt that the petitioner is guilty of
murder notwithstanding the amendments to sections 188 and 189, the petitioner is
ineligible for relief under section 1172.6.” (Vargas, supra, 84 Cal.App.5th at p. 951.)
“On appeal from the denial of a section 1172.6 petition after an evidentiary
hearing, we review the superior court’s factual findings for substantial evidence and the
court’s application of the law to those facts de novo. [Citation.] In conducting our
28
review, we consider the whole record in the light most favorable to the superior court's
findings [citation], and we presume ‘ “ ‘every fact in support of the judgment the trier of
fact could have reasonably deduced from the evidence.’ ” ’ [Citation.] We ask ‘whether
substantial evidence, defined as reasonable and credible evidence of solid value, has been
disclosed, permitting the trier of fact to find guilt beyond a reasonable doubt.’ [Citation.]
And based on this whole record review, we ‘ “determine whether any rational trier of fact
could have found the essential elements of the crime ... beyond a reasonable doubt.” ’
[Citation.] Finally, our Supreme Court has held that whether the prosecutor relied upon
direct or circumstantial evidence, if the trier of fact’s determination is supported, reversal
is not warranted, even where ‘ “ ‘the circumstances might also reasonably be reconciled
with a contrary finding.’ ” ’ ” (Hill, supra, 100 Cal.App.5th at p. 1066.)
III. Duress and Murder
Mounsaveng again relies on his trial testimony about his alleged duress defense to
argue that he was not a major participant and did not act with reckless indifference as
defined by Banks and Clark, because he was forced to perform the crimes as a result of
Sivongxxay’s threats. We thus review his duress claim.
A. Murder, Felony Murder, and Duress
“[F]ear for one’s own life does not justify killing an innocent person. Duress is
not a defense to murder.… [D]uress cannot reduce murder to manslaughter. Although
one may debate whether a killing under duress should be manslaughter rather than
murder, if a new form of manslaughter is to be created, the Legislature, not this court,
should do it.” (People v. Anderson (2002) 28 Cal.4th 767, 770.) “A person can always
choose to resist rather than kill an innocent person. The law must encourage, even
require, everyone to seek an alternative to killing. Crimes are often committed by more
than one person; the criminal law must also, perhaps especially, deter those crimes.” (Id.
at p. 777.)
29
“Although ‘duress is not a defense to any form of murder,’ [citation] ‘duress can,
in effect, provide a defense to murder on a felony-murder theory by negating the
underlying felony. [Citations.] If one is not guilty of the underlying felony due to
duress, one cannot be guilty of felony murder based on that felony.’ ” (People v. Wilson
(2005) 36 Cal.4th 309, 331; People v. Anderson, supra, 28 Cal.4th at p. 784.)
While duress is not a defense to murder, Mounsaveng’s duress claim at the section
1172.6 evidentiary hearing was potentially cognizable since he was charged and
convicted of first degree murder based on the robbery/felony murder special
circumstance.
B. Duress
“Duress is available as a defense to defendants who commit a crime ‘under threats
or menaces sufficient to show that they had reasonable cause to and did believe their lives
would be endangered if they refused.’ [Citations.] An essential component of this
defense is that the defendant be faced with a direct or implied demand that he or she
commit the charged crime.” (People v. Saavedra (2007) 156 Cal.App.4th 561, 567.)
“Because the defense of duress requires a reasonable belief that threats to the
defendant’s life (or that of another) are both imminent and immediate at the time the
crime is committed [citations], threats of future danger are inadequate to support the
defense.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 100; People v. Heath
(1989) 207 Cal.App.3d 892, 900 (Heath).) “The person being threatened has no time to
formulate what is a reasonable and viable course of conduct nor to formulate criminal
intent.” (Heath, supra, 207 Cal.App.3d at p. 900.) “[A] person committing a crime
under duress has only the choice of imminent death or executing the requested crime.”
(People v. Condley (1977) 69 Cal.App.3d 999, 1012.)
The immediacy requirement of duress negates an element of the crime—the intent
to commit the act. (Heath, supra, 207 Cal.App.3d at p. 901.) “ ‘[I]f there was a
reasonable, legal alternative to violating the law, “a chance both to refuse to do the
30
criminal act and also to avoid the threatened harm,” ’ ” then the duress defense fails. (Id.
at p. 900.)
The trier of fact may consider a defendant’s duress defense “if there is substantial
evidence of the defense and it is not inconsistent with the defendant’s theory of the case.”
(People v. Wilson, supra, 36 Cal.4th at p. 331.)
C. Analysis
At his bench trial, Mounsaveng testified that he acted under duress when he
committed all the crimes in this case because of the alleged threats from Sivongxxay
and/or his associates to harm Mounsaveng and his family if he did not commit the
uncharged and charged robberies, and those threats continued before he entered the Sean
Hong Jewelry store. The trial court rejected Mounsaveng’s credibility about his duress
defense because “in between the time of those uncharged robberies that [Mounsaveng]
testified to and … the first charged offense in this case, he had ample opportunity to alert
authorities to protect himself and his family, long periods of time unaccompanied by any
other persons who were in a position to threaten him or his family with any imminent
peril or danger.”
At his section 1172.6 evidentiary hearing, Mounsaveng reasserted his duress
defense by relying on his trial testimony. The trial court found Mounsaveng was an
active, willing, and major participant who acted with reckless indifference to human life
in the robberies, and the final robbery and murder of Song. By doing so, the court
impliedly rejected his credibility about his duress defense.
On appeal, Mounsaveng again raises his duress defense and the claims that
Sivongxxay and/or his associates allegedly threatened to harm Mounsaveng and his
family if he refused to commit the crimes, they always gave him an unloaded gun to hold
during the crimes, the prosecution never proved that he was holding a loaded weapon
during any of the robberies or the murder, he never had an opportunity to withdraw or
31
seek assistance because of the alleged threats, and his possession of an unloaded gun
refutes any intent to kill, being a major participant, or acting with reckless indifference.
The trial court’s implied rejection of Mounsaveng’s credibility about his purported
duress defense is supported by substantial evidence. As explained above, “a person
committing a crime under duress has only the choice of imminent death or executing the
requested crime.” (People v. Condley, supra, 69 Cal.App.3d at p. 1012.) Based on
Mounsaveng’s own version of events, however, he had multiple opportunities to
formulate a viable course of conduct that did not include committing the crimes. Even if
Mounsaveng’s description of the events is credible, there were lengthy periods between
each crime when Sivongxxay and/or his alleged associates did not approach, bother, or
threaten Mounsaveng and his family in any way. Mounsaveng testified one or two weeks
passed between the first and second uncharged robberies. He admitted that he did not
call the police, even anonymously, between the first and second uncharged robberies, or
after the second uncharged robbery, to report the alleged threats on his life.
Mounsaveng never testified that Sivongxxay threatened him every day or between
each crime. He thus had numerous opportunities to withdraw or seek assistance between
the second uncharged robbery and the first charged offense, which was the attempted
robbery of the Thanh Tinh Jewelry store on July 31, 1996, and between each subsequent
offense—the first robbery of JMP Mini-Mart on August 16, 1996, the robbery of Phnom
Penh Jewelers on October 10, 1996, the second robbery of the JMP Mini-Mart on
December 14, 1996, and their final robbery on December 19, 1996, at the Sean Hong
Jewelry store that ended with Song’s murder.
Mounsaveng’s own conduct also undermined the credibility of his testimony about
the alleged duress. He frequently took the lead to scout robbery locations, and committed
violent acts against unresisting victims on his own volition. During the attempted
robbery of the Thanh Tin Jewelry store in July 1996, Mounsaveng walked into the store
by himself, looked at merchandise, left, returned with Sivongxxay an hour later, waited
32
around, and left again. When they returned, Mounsaveng was the first person to pull a
gun, he grabbed the owner’s wife by her collar, and pointed his gun at her. During the
first robbery of the JMP Mini-Mart in August 1996, Mounsaveng again acted as scout
and checked out the store to determine if they cashed checks. He returned with
Sivongxxay, they waited around until the owner returned from the bank, and then they
produced their guns and robbed the market.
Before they committed their next robbery at Phnom Penh Jewelry, Mounsaveng
again acted as scout when he went to the store in August 1996, and asked the owner to
repair the Buddha pendant. He returned to that store with Sivongxxay in October 1996,
asked the owner to repair the pendant, and they committed the robbery. Mounsaveng
joined Sivongxxay in punching, kicking, and stomping the owner after they tied him up.
Mounsaveng confronted the owner’s wife and demanded the video from the store’s
surveillance camera, raising the inference that he had noticed the video camera during his
initial visit to the store, but he did not realize the camera was not working.
Mounsaveng’s duress defense was also based on his claim that he was always
given an unloaded gun to hold during the robberies, and Sivongxxay threatened him to
perform certain acts during the offenses. His credibility on these points is undermined by
his own testimony since he admitted possession of other firearms during some of the
robberies. During the second robbery of the JMP Mini-Mart on December 14, 1996, he
grabbed the store owner’s handgun and thus had the means to effectuate his own escape
from Sivongxxay’s alleged threats. Instead, Mounsaveng continued with the robbery,
pushed the owner into the back room, took cigarettes and money, and joined Sivongxxay
in robbing the customers in the store.
For the Sean Hong Jewelry store robbery, Sivongxxay and Mounsaveng again
used the ruse of presenting the Buddha pendant for repair. During the robbery,
Sivongxxay struggled with Song, and Mounsaveng admitted Sivongxxay told him to
“ ‘[s]hoot, shoot.’ ” Mounsaveng testified that when Sivongxxay told him to shoot,
33
Mounsaveng was only holding the gun that Sivongxxay allegedly gave him.
Sivongxxay’s order constituted circumstantial evidence that he knew Mounsaveng was
carrying a loaded firearm.
Mounsaveng testified he watched as Sivongxxay continued to struggle with Song,
and he picked up Sivongxxay’s own gun which he apparently dropped during the
struggle. Once again, Mounsaveng possessed a gun that was obviously loaded,
Sivongxxay was unarmed, and he could have left the store. He remained in the store,
however, and allowed Sivongxxay to retrieve his gun, which Sivongxxay used to fatally
shoot Song. Mounsaveng admitted he asked for and received his share of the proceeds
from this robbery, even after Sivongxxay said he shot someone.
Mounsaveng’s conduct after the murder of Song is further evidence that he was
not acting under duress. Mounsaveng testified his girlfriend and children moved to
Minnesota to avoid the alleged threats. However, his girlfriend testified that she moved
with the children to Minnesota in September 1996, and admitted there were domestic
problems between them. Mounsaveng claimed he committed the two robberies in
December 1996 to keep his family safe, but his girlfriend and children were already
living in Minnesota by then, and his girlfriend testified she never saw Sivongxxay there.
The girlfriend also testified that Mounsaveng arrived in Minnesota in December 1996,
and said he had done something bad and he was in trouble.
When the police arrived at the mobile home in Minnesota to arrest Mounsaveng,
he instructed his girlfriend to walk out and identify him by a false name, and she
followed his directions. He continued the farce by presenting an identification card to the
police with that same false name. Moreover, ammunition was found in the mobile home
and the car, and his girlfriend stated the ammunition belonged to Mounsaveng.
There is thus substantial evidence to support the trial court’s obvious rejection of
the credibility of Mounsaveng’s trial testimony that he acted under duress at all times,
including during the crimes he committed at the Sean Hong Jewelry store.
34
IV. Mounsaveng Was a Major Participant Who Acted With Reckless Indifference
We now turn to Mounsaveng’s claims that he was no longer guilty of felony
murder after the amendments enacted by Senate Bill 1437 because he was not a major
participant and he did not act with reckless indifference to human life.
As explained above, Senate Bill 1437 amended section 189 to “limit[] liability
under a felony-murder theory principally to ‘actual killer[s]’ [citation] and those who,
‘with the intent to kill,’ aid or abet ‘the actual killer in the commission of murder in the
first degree’ [citation]. Defendants who were neither actual killers nor acted with the
intent to kill can be held liable for murder only if they were ‘major participant[s] in the
underlying felony and acted with reckless indifference to human life, as described in
subdivision (d) of … Section 190.2’ — that is, the statute defining the felony-murder
special circumstance.” (Strong, supra, 13 Cal.5th at p. 708.)
Section 190.2, subdivision (d), the felony-murder special-circumstances statute,
“identifies the circumstances under which murderers and accomplices can be punished by
death or life imprisonment without parole. Participating in a murder during a robbery is
one of these circumstances.” (People v. Douglas (2020) 56 Cal.App.5th 1, 7; People v.
Emanuel (2025) 17 Cal.5th 867, 881 (Emanuel).) “For defendants who did not kill and
lacked intent to kill, section 190.2, subdivision (d) permits such punishment only if they
acted ‘with reckless indifference to human life and as a major participant’ to a qualifying
felony like robbery.” (People v. Douglas, supra, 56 Cal.App.5th at p. 7.)
“The statute, by its text, imposes an actus reus requirement, major participation in
the enumerated felony, and a mens rea requirement, reckless indifference to human life.”
(In re Scoggins (2020) 9 Cal.5th 667, 674 (Scoggins).)
A. Banks and the “Major Participant” Factors
“To guide the ‘fact-intensive, individualized inquiry’ into where a defendant’s
conduct falls on the spectrum of culpability [citations], in Banks we identified a list of
35
considerations relevant to the major participant prong.” (Emanuel, supra, 17 Cal.5th at p.
883.)
Banks listed the following factors: “What role did the defendant have in planning
the criminal enterprise that led to one or more deaths? What role did the defendant have
in supplying or using lethal weapons? What awareness did the defendant have of
particular dangers posed by the nature of the crime, weapons used, or past experience or
conduct of the other participants? Was the defendant present at the scene of the killing,
in a position to facilitate or prevent the actual murder, and did his or her own actions or
inaction play a particular role in the death? What did the defendant do after lethal force
was used?” (Banks, supra, 61 Cal.4th at p. 803, fn. omitted.)
“No one of these considerations is necessary, nor is any one of them necessarily
sufficient. All may be weighed in determining the ultimate question, whether the
defendant’s participation ‘in criminal activities known to carry a grave risk of death’
[citation] was sufficiently significant to be considered ‘major’ [citations].” (Banks,
supra, 61 Cal.4th at p. 803.)
B. Analysis
There is substantial evidence to support the trial court’s finding at the section
1172.6 evidentiary hearing that Mounsaveng played a major, willing, and active role in
all the robberies, and did so during the robbery and murder of Song.
One of the Banks factors posits “[w]hat awareness did the defendant have of
particular dangers posed by the nature of the crime, weapons used, or past experience or
conduct of the other participants.” (Banks, supra, 61 Cal.4th at p. 803, italics added.)
Mounsaveng admitted he committed a series of robberies with Sivongxxay between July
and December 1996, and perhaps even before that with the uncharged offenses. He had
an awareness of the particular dangers posed by the nature of these robberies based on
these past experiences, yet continued to commit additional robberies.
36
Mounsaveng participated in planning the robberies and frequently acted as the
scout to case the stores, look at the merchandise, and even check for video cameras.
While Mounsaveng claimed Sivongxxay always gave him an unloaded gun to use during
the robberies, Mounsaveng was often the first to pull out his gun to initiate the robberies,
acting independently and before Sivongxxay pulled his own firearm, which again
appeared consistent with a plan. Mounsaveng used physical force and violence on his
own volition against the unresisting victims. At the Thanh Tin Jewelry store, he grabbed
the collar of the owner’s wife, and at the Phnom Penh Jewelry store, Mounsaveng joined
Sivongxxay as they both punched the owner and tied him up, even though the owner was
complying with their orders.
Mounsaveng was also aware of the “particular dangers” posed by Sivongxxay’s
commission of the robberies, and that Sivongxxay engaged in violence against
unresisting victims. At the first robbery of the JMP Mini-Mart, the owner obeyed
Sivongxxay’s instructions to get on the floor and did not resist, yet Sivongxxay
repeatedly kicked the owner in the head, and delivered one final kick as he left the store.
During the second robbery of the same store, Sivongxxay kicked an elderly customer in
the mouth.
By the time Mounsaveng entered the Sean Hong Jewelry store, he knew exactly
what to do and performed his role in tandem with Sivongxxay. This time, Sivongxxay
went into the store first, ostensibly to pick up a repaired pendant, similar to the ruse they
used at the Phnom Penh Jewelry store. Mounsaveng entered the store separately, looked
at the walls and ceiling, and even climbed up on a sofa to ask about a certain item on
display. In doing so, he engaged in behavior consistent with looking for surveillance
cameras, similar to when he demanded the video from the security camera at the Phnom
Penh Jewelry store.
Once Sivongxxay lured Song into the front part of the store, purportedly to avoid
having a woman touch the pendant, Mounsaveng initiated the robbery by being the first
37
perpetrator to pull his gun on Song, and demanded money and the gold. There is no
evidence that Mounsaveng did anything to mitigate or prevent the violence. Indeed,
Mounsaveng did not passively stand by and watch Sivongxxay commit the robbery.
Instead, Mounsaveng acted on his own initiative and grabbed Song’s wife by the hair and
dragged her into the room where the safe was located, and he used his gun to beat Song
in the head when Song attempted to resist Sivongxxay.
Sivongxxay entered the Sean Hong Jewelry store in possession of his own firearm
and used that gun to fatally shoot Song. Mounsaveng was not sitting outside in a
getaway car, but he was present in the store when Sivongxxay killed Song and
Mounsaveng played a major role in the murder. Mounsaveng testified Sivongxxay was
struggling with Song and dropped his gun. Mounsaveng testified he picked up
Sivongxxay’s gun from the floor. Mounsaveng admitted he allowed Sivongxxay to take
back that gun.
Mounsaveng was thus in a position to prevent the murder and escape with the
stolen items. Instead, he allowed Sivongxxay to take back the gun and waited for
Sivongxxay. Mounsaveng testified he heard noise and claimed he did not realize
Sivongxxay shot Song until Sivongxxay said something about it later. Based on the trial
evidence, however, he was not a mere bystander. At the time that several gunshots were
audible on the store’s surveillance video, Mounsaveng “was pointing his gun toward the
location where [Sivongxxay] and Song were fighting. After the shots were fired,
Mounsaveng moved out of the frame and toward the back room, where [Sivongxxay] and
Song had been fighting.” (Sivongxxay, supra, 3 Cal.5th at p. 160.)
Mounsaveng’s own actions after the murder also support his role as a major
participant. Mounsaveng admitted he asked for and, more importantly, received his share
of the $30,000 to $40,000 in cash and jewelry they stole from the Sean Hong Jewelry
store. This acceptance of and control over the robbery proceeds supported a major
participant finding. (People v. Mitchell (2022) 81 Cal.App.5th 575, 591.)
38
Mounsaveng left town after the murder and eventually went to Minnesota. He
flashed a roll of $100 bills, carried fake identification, presented that fake identification
when he was arrested, and tried to escape as he was being returned to Fresno for trial.
Generally, giving a false name to a law enforcement officer investigating a crime
supports an inference of consciousness of guilt. (People v. Watkins (2012) 55 Cal.4th
999, 1028; People v. Geier (2007) 41 Cal.4th 555, 589, overruled on other grounds as
explained in People v. Seumanu (2015) 61 Cal.4th 1293, 1320.) In addition, an escape
from custody pending trial is also relevant evidence of consciousness of guilt. (People v.
Carrasco (2014) 59 Cal.4th 924, 963; People v. Pettigrew (2021) 62 Cal.App.5th 477,
497–498.)
We thus find Mounsaveng was a major, willing, and active participant in the Sean
Hong Jewelry store robbery and the murder of Song.
C. Clark and the “Reckless Indifference” Factors
Clark held that reckless indifference to human life “encompasses a willingness to
kill (or to assist another in killing) to achieve a distinct aim, even if the defendant does
not specifically desire that death as the outcome of his actions.” (Clark, supra, 63
Cal.4th at p. 617.)
Reckless indifference “has a subjective and an objective element. [Citation.] As
to the subjective element, ‘[t]he defendant must be aware of and willingly involved in the
violent manner in which the particular offense is committed,’ and he or she must
consciously disregard ‘the significant risk of death his or her actions create.’ [Citations.]
As to the objective element, ‘ “[t]he risk [of death] must be of such a nature and degree
that, considering the nature and purpose of the actor’s conduct and the circumstances
known to him [or her], its disregard involves a gross deviation from the standard of
conduct that a law-abiding person would observe in the actor’s situation.” ’ [Citations.]
‘Awareness of no more than the foreseeable risk of death inherent in any [violent felony]
is insufficient’ to establish reckless indifference to human life; ‘only knowingly creating
39
a “grave risk of death” ’ satisfies the statutory requirement. [Citation.] Notably, ‘the fact
a participant [or planner of] an armed robbery could anticipate lethal force might be used’
is not sufficient to establish reckless indifference to human life.” (Scoggins, supra, 9
Cal.5th at p. 677.)
“[P]articipation in a ‘ “garden-variety armed robbery,” ’ i.e., one in which the only
factor supporting a reckless indifference finding is that a participant was armed with a
gun, is insufficient without more to establish reckless indifference.” (Emanuel, supra, 17
Cal.5th at p. 884; Scoggins, supra, 9 Cal.5th at p. 682.)
“We analyze the totality of the circumstances to determine whether [the
defendant] acted with reckless indifference to human life. Relevant factors include: Did
the defendant use or know that a gun would be used during the felony? How many
weapons were ultimately used? Was the defendant physically present at the crime? Did
he or she have the opportunity to restrain the crime or aid the victim? What was the
duration of the interaction between the perpetrators of the felony and the victims? What
was the defendant’s knowledge of his or her confederate’s propensity for violence or
likelihood of using lethal force? What efforts did the defendant make to minimize the
risks of violence during the felony?” (Scoggins, supra, 9 Cal.5th at p. 677, citing Clark,
supra, 63 Cal.4th at pp. 618–623.)
As in Banks, Clark held that no one of these considerations “ ‘is necessary, nor is
any one of them necessarily sufficient.’ ” (Clark, supra, 63 Cal.4th at p. 618.) “Because
the major participant and reckless indifference elements often ‘ “significantly overlap” ’
[citations], this list of factors also overlap[s] with those we had identified in connection
with the major participation inquiry in Banks.” (Strong, supra, 13 Cal.5th at p. 706.)
1. Analysis
In reviewing the Clark factors in this case, there is significant overlap between the
major participant and reckless indifference factors. Mounsaveng was an active partner
when he committed robberies with Sivongxxay over six months. Mounsaveng knew
40
from these prior robberies what they would do—each would possess and brandish a
firearm, remain inside the store during the entirety of each robbery, and use violence
against unresisting victims beyond simply pulling a gun and demanding money and
jewelry.
When Mounsaveng entered the Sean Hong Jewelry store, he knew that
Sivongxxay possessed a gun and engaged in gratuitous acts of violence against
unresisting victims in their prior robberies. Mounsaveng began the Sean Hong Jewelry
store robbery by pulling his own gun and demanding money and gold. Mounsaveng did
not simply smash a display case and take jewelry. Instead, he grabbed Song’s wife by
her hair and dragged her into the back room where the safe was located. When
Sivongxxay struggled with Song, Mounsaveng used his gun to beat Song in the head.
After Sivongxxay told Mounsaveng to shoot, Mounsaveng walked closer to where they
were struggling and realized Sivongxxay had dropped his gun. Mounsaveng picked up
the gun, allowed Sivongxxay to take back his gun, stayed in the store with his gun
pointed at the area where Sivongxxay was still struggling with Song, and he remained
there when Sivongxxay fatally shot Song.
In his supplemental letter brief, Mounsaveng asserts that after the amendments
enacted by Senate Bill 1437, the prosecution must prove that an aider and abettor acted
with the intent to kill in order to find that person acted with reckless indifference to
human life. Mounsaveng asserts he only intended to commit a robbery, there was a fight
that got out of hand, and he did not aid and abet an execution-style murder with the intent
to kill.
Section 1437 amended the felony murder rule to ensure that murder liability is not
imposed on a person “ ‘who is not the actual killer, did not act with the intent to kill, or
was not a major participant in the underlying felony who acted with reckless indifference
to human life.’ ” (People v. Lewis (2021) 11 Cal.5th 952, 959, italics added.) At the
section 1172.6 evidentiary hearing, the trial court was not required to find Mounsaveng
41
had the intent to kill Song to find he was a major participant who acted with reckless
indifference to human life. The amended statute defines murder liability in the
disjunctive “or” and does not require evidence of the petitioner’s intent to kill, plus
evidence that the petitioner was a major participant who acted with reckless indifference.
Mounsaveng next argues the People failed to prove beyond a reasonable doubt that
he possessed a loaded gun during all the robberies, and the absence of such evidence
meant he could not have acted with reckless indifference since he lacked the means to
kill. As explained above, however, Mounsaveng’s duress defense was partially based on
his claim that Sivongxxay or one of his associates always gave him an unloaded gun
before each robbery, threatened to harm him if he failed to commit the crime, and he had
no ability to resist their threats since he only had an unloaded gun. Mounsaveng’s duress
defense was properly rejected. Moreover, even if his own weapon may have been
unloaded, Mounsaveng possessed a loaded gun in the Sean Hong Jewelry store when he
picked up Sivongxxay’s weapon. He had the opportunity to leave the store but did
nothing to assist the victims. Instead, he allowed Sivongxxay to take back the gun, and
remained in the store until Song was shot.
Mounsaveng also argues that while defendants used the same procedure for each
robbery, they never killed anyone before Sivongxxay “unexpectedly” shot Song, and that
showed Mounsaveng’s actions did not knowingly created a grave risk of death. While
they never shot or killed anyone during the prior robberies, both defendants engaged in
their own acts of violence against unresisting victims. Mounsaveng thus knew
Sivongxxay was capable of again engaging in violence, especially when Song tried to
resist.
Mounsaveng further argues he did not act with reckless indifference based on the
trial court’s findings at the conclusion of the joint bench trial, when the court described
what was depicted on the store’s video camera. Mounsaveng asserts the trial court found
that based on the video, he was on the opposite side of the store from Sivongxxay’s
42
location when the gunshots were fired. Based on this alleged finding, Mounsaveng
argues he had no apparent ability to stop Sivongxxay or aid Song because he feared for
his own life if he failed to commit the robbery with Sivongxxay.
The trial evidence was that the surveillance video did not show Sivongxxay
actually shoot Song but three shots were audible. At the conclusion of the joint bench
trial, the trial court found beyond a reasonable doubt that Sivongxxay was guilty of first
degree murder and the felony murder special circumstance, based on his admission that
he was the actual killer, and the court also relied on the store’s surveillance video.
“You reach a point in the tape where the first of three shots can
be heard. When I say the first of three, there are three shots, one and
then two others more rapid, all – in the confusion of all the banging
and clanging and various sounds, those three are of an identical
nature in my opinion and are clearly the shots.
“But in reaching this factual determination, Mr. Mounsaveng is
clearly in [the] frame and across the room with the female victim
when the first shot is fired. He also appears to react to that shot by
turning back towards the employee area of the store with his gun in
his hand, and then moves out of [the] frame when the next two shots
are fired. [¶] This, coupled with the voluntary, knowing and
intelligent waiver and statement by Mr. Sivongxxay to Detective
Wells that he shot the victim, establishes in my mind clearly without
reasonable doubt that [Sivongxxay] fired the shots.”
The trial court made these findings to support its conclusion that Sivongxxay shot
and killed Song, and that Mounsaveng was not the shooter. The court concluded that
since the surveillance video showed Mounsaveng was on the opposite side of the store
with Song’s wife when the fatal shots are heard on the audio, he could not have fired the
fatal shots. The court had already rejected Mounsaveng’s duress defense. The court’s
findings on this point did not amount to an express or implied finding that Mounsaveng
had no apparent ability to stop Sivongxxay, or that he could not have acted with reckless
indifference. Instead, once the court determined Sivongxxay was the actual killer, it
separately found Mounsaveng was guilty of first degree murder as a major participant
who acted with reckless indifference to human life.
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D. Conclusion
The trial court’s findings that Mounsaveng was a major, active, and willing
participant who acted with reckless indifference to human life during the crimes at the
Sean Hong Jewelry store is supported by substantial evidence, and the court properly
denied his section 1172.6 petition.
DISPOSITION
Mounsaveng’s motion for appointment of a new appellate counsel is denied.
The trial court’s order of January 17, 2025, denying Mounsaveng’s section 1172.6
petition for resentencing, is affirmed.
44