Opinion
A158404
06-03-2020
THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. HUNG QUOC NGUYEN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51001346)
Hung Quoc Nguyen (defendant) appeals from the trial court's post-judgment order denying his petition to be resentenced under Penal Code section 1170.95 . Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and requests that we conduct an independent review of the record. Counsel informed defendant of his right to file a supplemental brief, and defendant timely filed one. Having examined the entire record and defendant's supplemental brief, we conclude there are no issues that require further briefing and affirm the order.
All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On June 7, 2010, a jury found defendant guilty of: (1) first-degree murder of Francisco Perez (§ 187, count 1); (2) conspiracy to commit murder (§§ 182, subd. (a)(1), 187, count 2); (3) conspiracy to shoot a firearm from a motor vehicle (§ 182, subd. (a)(1), former § 12034, subd. (c), count 3); (4) shooting from a motor vehicle (former § 12034, subd. (c)); (5) street terrorism (§ 186.22, subd. (a), count 5); and (6) shooting at an occupied motor vehicle (§ 246, count 6). Counts 1 through 5 were related to the murder of Perez on August 5, 2009, alleged to have been committed by defendant, Alberto Alejandre, and Martin Cerda, and count 6 involved a separate shooting on August 3, 2009 alleged to have been committed by defendant and Alejandre. The jury also found true gang and firearm enhancements as to counts 1 through 4 and a firearm enhancement as to count 6 (§§ 186.22, subd. (b)(1), 12022.53). The trial court sentenced defendant to 73 years to life in prison. Defendant appealed, and we struck the firearm enhancement as to count 6 and affirmed the judgment in all other respects. (People v. Nguyen (Sep. 15, 2013, A135195) [nonpub. opn.].)
The facts of the underlying offense are set forth in detail in our prior opinion. To summarize, the victim, Perez, was a former Sureño gang member. In 2003, Perez was with Martin Cerda's older brother, Victor, when Victor shot and killed a rival Norteño gang member. Perez testified against Victor, and Victor was convicted of murder and sentenced to prison.
On August 5, 2009, Perez was leaving his home to go to work when "a fusillade of gunfire erupted" and someone in a white van shot and killed Perez. Police went to the scene and found 19 shell casings from two different firearms. The police also obtained a surveillance videotape from a nearby store that showed a white van driving back and forth in the minutes before the shooting and Perez running from the van as the van drove slowly towards him with its side door open. Cell phone records revealed several calls from defendant's and Alejandre's phones to a known Sureño gang member minutes after the shooting. Defendant's calls were transmitted by cell phone towers along the route traveled by the white van. The police arrested defendant, Alejandre, and Cerda. The two handguns used in the shooting were found in Alejandre's house.
At trial, defendant admitted he, Alejandre, and Cerda were at the shooting. He said Alejandre was driving the van, looking for tire rims to steal, when Cerda saw the man who "snitched" on Cerda's brother and directed Alejandre to make a U-turn. Alejandre made several turns to bring the van back to Perez. Cerda dropped to his knees, opened the van's sliding door, pulled a gun from under his jacket, and fired multiple rounds at Perez. Defendant said he could not see if Alejandre was also shooting at Perez but, when confronted with the fact that two guns were used in the shooting, defendant said the second shooter had to be Alejandre.
On January 2, 2019, defendant filed a petition under section 1170.95, which allows individuals convicted of felony murder or murder under a natural and probable consequences theory to petition the sentencing court to vacate the conviction under recent changes to the law. The trial court denied the petition, ruling defendant did not meet his burden of making a prima facie showing that he was entitled to relief. The court noted defendant was not convicted of felony murder or murder under a natural and probable consequences theory, but was prosecuted on the theories that the murder was: (1) willful, deliberate, and premeditated; (2) committed by lying in wait; and (3) committed by shooting a firearm from a motor vehicle. The court determined that "while there was no direct evidence that [defendant] was the actual killer of Perez, there was evidence that a reasonable trier of fact could find that [defendant], with the intent to kill, aided and abetted the actual killer in committing the murder. . . ." The court also stated there was evidence that defendant conspired to commit the murder, and that the "jury's guilty verdict on that count supports this conclusion." "Accordingly, . . . the court concludes that [defendant] has not shown that he could not be convicted of first degree murder under the new law. . . ."
Section 1170.95 subdivision (a) provides: "(a) A person convicted of felony murder or murder under a natural and probable consequences theory may 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 when all of 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 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. [¶] (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." --------
DISCUSSION
As we have noted, appellate counsel has filed a Wende brief. Defendant has filed a supplemental brief in which he argues the trial court should have granted his petition because "he was not the shooter/killer." He emphasizes that he has always "denied any and all responsibility, legally and otherwise, for the shooting/killing" and that the trial court must have improperly relied on evidence presented at his co-defendant's trial in reaching the erroneous decision that he (defendant) was the shooter.
We have reviewed the entire record and defendant's supplemental brief and have not discovered any arguable issues for reversal on appeal. We are satisfied that counsel has fully complied with her responsibilities. (People v. Kelly (2006) 40 Cal.4th 106, 109-110; Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The order denying defendant's petition is affirmed.
/s/_________
PETROU, J. WE CONCUR: /s/_________
SIGGINS, P.J. /s/_________
JACKSON, J.