People v. Nguyen CA4/3

Filed 2/15/22 P. v. Nguyen CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G059907
v. (Super. Ct. No. 98WF2055)
EM VAN NGUYEN, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Michael J. Cassidy, Judge. Affirmed.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Randall D.
Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
Em Van Nguyen1 appeals from the trial court’s postjudgment order denying
his Penal Code section 1170.952 resentencing petition. Em argues the court erred by
denying his section 1170.95 petition without issuing an order to show cause and
conducting an evidentiary hearing. We disagree and affirm the postjudgment order.
FACTS
A detailed recitation of the facts can be found in People v. Hung Nguyen et
al. (June 21, 2001, D037303) [nonpub. opn.]. Suffice it to say, Em drove his car on the
freeway while his passenger, Hung Nguyen, shot at another car that contained a woman
and killed her.
An information charged them with murder with the special circumstance
they discharged a firearm from a vehicle. The information alleged Hung personally
discharged a firearm, and Em was vicariously armed with a firearm.
The prosecution’s theory was Em aided and abetted Hung. The trial court
instructed the jury with CALJIC No. 3.01, “Aiding and Abetting.” The trial court did not
instruct the jury with CALJIC No. 3.02, “Principals—Liability for Natural and Probable
Consequences.”
The jury convicted them of first degree murder and found true the
allegations. The trial court sentenced Em to prison for life without the possibility of
parole. In People v. Hung Nguyen et al., supra, D037303, the Fourth Appellate District,
Division One, affirmed.
Em filed a section 1170.95 petition. The trial court appointed counsel for
Em. The prosecution filed a response, and Em filed a reply. At a hearing, the trial court
denied the petition. The court stated it “[was] not allowed to do fact finding” but after
1 Because codefendants have the same last name, we refer to them by their
first names for ease of reference.
2 All further statutory references are to the Penal Code.
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reviewing the record, including the appellate opinion, the jury instructions, and the
verdicts, the court concluded “[Em] was convicted on an aiding and abetting theory . . .
and . . . the jury found he did act with the intent to kill” even though he was not the actual
shooter.
DISCUSSION
Section 1170.95, subdivision (a), allows “[a] person convicted of felony
murder or murder under a natural and probable consequences doctrine or other theory [to]
file a petition” to seek to have that “murder conviction vacated and to be resentenced on
any remaining counts” if certain conditions are met. The statute did not change or alter
the law regarding the criminal liability of direct aiders and abettors of murder because
such persons necessarily “know and share the murderous intent of the actual perpetrator.”
(People v. McCoy (2001) 25 Cal.4th 1111, 1118; see People v. Chiu (2014) 59 Cal.4th
155, 167 [direct aider and abettor “acts with the mens rea required for first degree
murder”] superseded by statute in part as stated in People v. Gentile (2020) 10 Cal.5th
830, 849.) One who directly aids and abets another who commits murder is thus liable
for murder under the new law just as he or she was liable under the old law.
After petitioner files a facially sufficient petition and the trial court appoints
counsel, the court evaluates the petition to determine if it makes a prima facie showing
that relief is available, and if so, it issues an order to show cause. (People v. Lewis (2021)
11 Cal.5th 952, 970-971 (Lewis); § 1170.95, subd. (c).) At the prima facie stage, the
court may use the record of conviction to determine if the petitioner qualifies for relief.
(Lewis, supra, 11 Cal.5th at p. 970.) Our review is de novo. 3 (People v. Drayton (2020)
47 Cal.App.5th 965, 981, overruled on other grounds in Lewis, supra, 11 Cal.5th at
p. 963.)
3 Because our review is de novo, we do not review the trial court’s ruling,
and we need not address the parties’ arguments on appeal the court denied the petition on
legally incorrect grounds.
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Here, the prosecution’s theory was Em directly aided and abetted Hung in
the crime. The trial court instructed the jury on aiding and abetting (CALJIC No. 3.01),
and importantly not on the natural and probable consequences doctrine (CALJIC No.
3.02), a point Em concedes. (People v. Daniel (2020) 57 Cal.App.5th 666, 677 [trial
court may deny petition for resentencing if jury instructions show jury was not instructed
on either natural and probable consequences or felony murder doctrines], review
dismissed, cause remanded (Dec. 1, 2021, No. S266336).) Em is ineligible for relief
because the jury instructions and the verdicts establish the jury found he had the intent to
kill because he was an aider and abettor.
DISPOSITION
The postjudgment order is affirmed.
O’LEARY, P. J.
WE CONCUR:
BEDSWORTH, J.
MOORE, J.
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