Opinion
G057777
04-30-2020
THE PEOPLE, Plaintiff and Respondent, v. BAO QUOC NGUYEN, Defendant and Appellant.
Eric E. Reynolds, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 05ZF0082) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Lance Jensen, Judge. Affirmed. Eric E. Reynolds, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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In 2005, a jury convicted appellant Bao Quoc Nguyen of first degree murder, attempted premeditated murder, and conspiracy to commit murder. The jury also found true the allegation Nguyen committed all three crimes for the benefit of, at the direction of, and in association with a criminal street gang (Pen. Code, 186.22, subd. (b)(1)(A)(i); all further statutory references are to the Penal Code, unless otherwise stated), and that a principal in the offense intentionally discharged a firearm (§ 12022.53, subd. (c)).
In an unpublished opinion, this court reversed the first degree conviction for insufficient evidence, but affirmed the attempted murder and conspiracy conviction. (People v. Nguyen (Aug. 30, 2007, G036745) [nonpub. opn.].) On remand, the trial court sentenced Nguyen on the attempted murder and conspiracy counts and associated enhancements to a total term of 45 years to life in state prison.
In 2019, Nguyen filed a petition to vacate his convictions under section 1170.95, alleging he was convicted "pursuant to the felony murder rule or the natural and probable consequences doctrine." The trial court denied the petition on the ground it "does not set forth a prima facie case for relief under the statute." The court explained: "A review of court records indicates defendant is not eligible for relief under the statute because the defendant does not stand convicted of murder or defendant's murder conviction(s) is not based on felony-murder or on a natural and probable consequences theory of vicarious liability for aiders and abettors."
Nguyen appealed, and his appointed counsel filed a brief under the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738. Nguyen also filed a supplemental brief raising numerous issues. Because our review of the record discloses no arguable issues, we affirm the postjudgment order denying Nguyen's section 1170.95 petition.
I
FACTS AND PROCEDURAL HISTORY
We discussed in detail the underlying facts in our opinion affirming Nguyen's convictions for attempted premeditated murder and conspiracy to commit murder. Nguyen was a member of a criminal street gang, Asian Crip Boys (ACB), which in July 1999, was in an ongoing feud with a rival street gang, Asian Gang (AG). After AG gang members assaulted an ACB gang member and shot at ACB's leader, Nguyen and fellow ACB members plotted retaliation. They drove to a restaurant known to be frequented by AG members and engaged in a shoot-out with AG members. After driving away from the scene with his fellow gang members, Nguyen observed one of his passengers had been shot in the head. The passenger later died from a single bullet wound to his head. Gunshot residue was found on Nguyen's right hand. (People v. Nguyen Aug. 30, 2007, G036745) [nonpub. opn.].)
As noted, a jury convicted Nguyen of attempted murder and conspiracy to commit murder and found a principal intentionally discharged a firearm during the offenses. After Senate Bill No. 1437 became effective, Nguyen filed a petition to vacate his convictions under section 1170.95. The trial court denied Nguyen's petition without appointing counsel for him. After Nguyen appealed, his appointed counsel filed a brief raising no issue, but asking this court to independently review the record on appeal. Nguyen filed a supplemental brief.
II
DISCUSSION
Senate Bill No. 1437 (Sen. Bill 1437), which became effective January 1, 2019, was enacted to "'amend 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. Martinez (2019) 31 Cal.App.5th 719, 723 (Martinez), quoting Stats. 2018, ch. 1015, § 1, subd. (f).) It added section 1170.95, which allows those "convicted of felony murder or murder under a natural and probable consequences theory . . . [to] file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts . . . ." (§ 1170.95, subd. (a).)
"An offender may file a petition under section 1170.95 where all three of the following conditions are met: '(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine[;] [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder[;] [¶] [and] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.' (§ 1170.95, subd. (a)(1)-(3).)" (Martinez, supra, 31 Cal.App.5th at p. 723.) "The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a response within 60 days of service of the petition and the petitioner may file and serve a reply within 30 days after the prosecutor response is served. These deadlines shall be extended for good cause. If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause." (§ 1170.95, subd. (c).)
Here, we do not find any arguable issues that might cast doubt on the trial court's denial of Nguyen's section 1170.95 petition. Nguyen is not entitled to relief under Sen. Bill 1437 because he was not convicted of murder under a natural and probable consequences theory. The relevant statutory language does not extend the benefits of Sen. Bill 1437 to offenders such as Nguyen. (See People v. Medrano (2019) 42 Cal.App.5th 1001, 1018 ["the relief provided in section 1170.95 is limited to certain murder convictions and excludes all other convictions, including a conviction for attempted murder"]; People v. Verdugo (2020) 44 Cal.App.5th 320 (Verdugo) [trial court properly denied defendant's section 1170.95 petition because there is no possibility the jury found defendant guilty of murder on a natural and probable consequences theory when it convicted defendant of conspiracy to commit murder].)
We discern no arguable issue that would cast doubt on the trial court's decision to deny Nguyen's section 1170.95 petition without appointing counsel because section 1170.95, subdivision (c), requires appointment of counsel only if the trial court determines a petitioner has made a prima facie showing for relief, which the trial court did not find here. (See People v. Verdugo, supra, 44 Cal.App.5th at pp. 332-333 ["If, as here, the court concludes the petitioner has failed to make the initial prima facie showing required by subdivision (c), counsel need not be appointed."].)
In his supplemental brief, Nguyen argues that under Sen. Bill 1437, "the gun enhancements attached to the (over-turned) first degree murder conviction" must be stricken. We need not consider this argument because the gun enhancement was initially imposed on the first degree murder count, but after we remanded Nguyen's case for resentencing, the trial court imposed the gun enhancements on the conspiracy count, not the overturned first degree murder count. Gun use enhancements were alleged as to all counts, and the jury found true the gun allegations on all counts. Based on the jury verdict, the trial court could impose the gun enhancement on any count when it resentenced Nguyen. (See People v. Hill (1986) 185 Cal.App.3d 831, 834 ["When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme."]; People v. Burbine (2003) 106 Cal.App.4th 1250, 1259 ["upon remand for resentencing after the reversal of one or more subordinate counts of a felony conviction, the trial court has jurisdiction to modify every aspect of the defendant's sentence on the counts that were affirmed"].)
Finally, Nguyen argues it would be a denial of equal protection to deny him the benefits of Sen. Bill 1437. There is no equal protection violation because "there is a rational basis for the Legislature's decision to grant relief pursuant to section 1170.95 only to murder convictions and exclude attempted murder convictions based on judicial economy and the financial costs associated with reopening both final murder and final attempted murder convictions." (People v. Medrano, supra, 42 Cal.App.5th at p. 1018.)
Our review of the entire record, including the matters identified by counsel and Nguyen, does not show the existence of an arguable issue. (Wende, supra, 25 Cal.3d at pp. 442-443.) Consequently, we affirm. (Id. at p. 443.)
III
DISPOSITION
The postjudgment order is affirmed.
ARONSON, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.