Opinion
H049789
09-25-2023
THE PEOPLE, Plaintiff and Respondent, v. SUNNY VAN NGUYEN, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. 191354)
Greenwood, P. J.
Defendant Sunny Van Nguyen appeals from an order denying his petition for resentencing under former Penal Code section 1170.95. For the reasons set forth below, we reverse the court's order denying the petition.
Undesignated statutory references are to the Penal Code. Effective June 30, 2022, the Legislature amended section 1170.95 in several respects. (See Stats. 2021, ch. 551, §§ 1, 2; see also People v. Birdsall (2022) 77 Cal.App.5th 859, 865.) The Legislature later renumbered section 1170.95 as 1172.6, with no change to the text of the statute. (Stats. 2022, ch. 58, § 10, eff. June 30, 2022.)
This court granted judicial notice of the records in People v. Nguyen, H030918.
A. Procedural History
In 1996, the Santa Clara County District Attorney filed an information charging Nguyen and seven codefendants with three counts of first degree murder. (§ 187.) The information alleged that Nguyen personally used a firearm in connection with each murder (§ 12022.5, subd. (a)(1)), and it also alleged a multiple murder special circumstance against Nguyen as to each count (§ 190.2, subd. (a)(3)).
At his first trial, a jury found Nguyen guilty of three counts of first degree murder. The jury also found that he personally used a firearm during the commission of the three offenses, and it found true the multiple murder special circumstance. In 1998, the trial court sentenced Nguyen to three consecutive terms of life without the possibility of parole for the murder counts, plus 30 years (three consecutive determinate terms of 10 years) for the gun use enhancements.
Nguyen appealed his conviction, and he also filed a petition for writ of habeas corpus challenging his conviction. This court ordered that the appeal and the habeas petition be considered together. It then granted the habeas petition on the basis that Nguyen's statements to police had been taken in violation of Miranda v. Arizona (1966) 384 U.S. 436. The court reversed the judgment, and it remanded the case to the trial court for further proceedings. (People v. Nguyen (May 8, 2003, H019770, H021137) [nonpub. opn.].)
Nguyen was tried a second time, this time as the sole defendant at trial. In verdicts dated September 26, 2006, the jury found him guilty of second degree murder in counts 1 and 3, and guilty of first degree murder in count 2. The jury found that Nguyen personally used a firearm during the commission of all three offenses, and it also found the multiple murder special circumstance to be true as to each of the three counts. The court sentenced Nguyen to life without parole on count 2, plus 30 years to life (two consecutive terms of 15 years to life) on counts 1 and 3, plus 30 years (three consecutive terms of ten years) for the firearm use allegations.
Nguyen appealed the conviction, and this court affirmed the judgment in full. (People v. Nguyen (Mar. 28, 2008, H030918) [nonpub. opn.].)
On June 16, 2020, Nguyen filed, through counsel, a petition for resentencing under former section 1170.95. The petition sought to vacate the conviction in count 2 only.
After receiving briefing from the parties as to whether Nguyen had made a prima facie case for relief, the court held a hearing. The trial court then issued a written order summarily denying the petition without issuing an order to show cause.
Nguyen filed a timely notice of appeal.
B. Evidence At Nguyen's Second Trial
The facts as set forth here are drawn from the record in People v. Nguyen, H030918.
The charges in Nguyen's case stemmed from a shooting incident that took place at the Mai Tiem Cafe in San Jose on the morning of March 11, 1995. During this incident three men-Tri Minh Le (count 1), Truc Le Nguyen (count 2), and Chinh Trung Vu (count 3)-were fatally shot.
A few hours before the Mai Tiem Cafe shooting, on the night of March 10, 1995, Nguyen was at the First Club, socializing with members of the "Asian Boys" gang, including Cuong Do. At about 12:30 a.m., Cuong Do was shot inside the club. One of the Asian Boys present at the First Club, Khan Hinh, saw a person wearing a brown or mustard colored shirt or jacket run from the bar after Cuong Do was shot. Hinh did not see the face of the person he saw running out of the First Club.
After the First Club shooting, Nguyen and several other people associated with the Asian Boys went to Khoa Nguyen's house. Khoa was friends with a number of Asian Boys, and he kept guns at his house. The people gathered at the house were upset, and they were yelling about Cuong Do's shooting.
Because Khoa Nguyen has the same last name as appellant, this opinion will refer to him as Khoa for clarity.
While the group was at Khoa's house, someone heard via a phone call that Cuong Do's shooter had been seen at Mai Tiem Cafe. Members of the group left the house, armed with a shotgun and handguns, to confront Cuong Do's shooter. Khoa had a shotgun, Nguyen had a nine-millimeter Glock handgun, and Senh Duong, another member of the group, had a .22-caliber handgun. Members of the group drove to the Mai Tiem Cafe in two cars. Hinh, who drove one of the cars to the cafe, stated that no one in the group knew what Cuong Do's shooter really looked like.
The manager of the Mai Tiem Cafe, Lam Ngo, witnessed the shooting. Lam Ngo saw six people enter the cafe together and some of them had their shirts pulled up over their faces. One of the men had a shotgun and several of the others had handguns. The man with the shotgun walked over to the entrance of a game room that was within the cafe, and he stood at the center of the doorway to that room. He was first to fire his gun. The other men stood at the doorway near the man with the shotgun, and they fired their guns into the game room after the man with the shotgun began shooting. After the shooting, all the men ran out of the cafe and fled in two vehicles.
All three shooting victims died from their wounds. The victim in count 2, Truc Le Nguyen, died from a shotgun wound to his head. He also had a gunshot wound to his leg, caused by a bullet from a handgun.
Chinh Trung Vu, the victim in count 3, had a fatal gunshot wound to the upper left chest. A bullet that caused a second injury to him was recovered from the soft tissue of his back. That bullet was from a nine-millimeter Glock handgun. He also had a third gunshot wound to his forearm.
The victim in count 1, Trin Minh Le, had a fatal gunshot wound that went though his brain. He also had six other nonfatal gunshot wounds in other parts of his body.
Several days after the Mai Tiem Cafe shooting, police officers executed a search warrant at the home of Hinh's friend, and there they recovered the guns used by Khoa, Nguyen, and Senh Duong. The nine-millimeter Glock handgun used by Nguyen was a semi-automatic pistol that ejected a casing each time it was fired. The seven spent Glock shell casings recovered at the Mai Tiem Cafe were fired from the seized Glock gun.
Nguyen made several statements in the days after the Mai Tiem Cafe shooting. Nguyen told his girlfriend the day after the shootings that he had seen someone get shot in the face. Nguyen told her that he had a gun at the cafe, and that he had fired the gun a few times into the wall but had not killed anyone. Nam Duong saw Nguyen on the afternoon of the shooting and observed that Nguyen was acting "scared." Nguyen told Nam Duong that at the cafe he had pointed the gun, turned his head away, and shot it. A couple of days later Nguyen told Long Ngo that he had seen one of the victims almost get his neck blown off, which made him feel sick. After he saw that, he turned his head away and fired his gun. Nguyen said that he was not looking when he fired the gun and that he shot into the room blindly.
The jury was instructed that there were three pathways to convict Nguyen of first degree murder, as to each of the counts: (1) willful, deliberate, and premeditated murder; (2) direct aiding and abetting; and (3) co-conspirator liability for an uncharged conspiracy to commit murder. In his closing argument, the prosecutor explained how, under the evidence presented at trial, the jury could find Nguyen guilty under each of these bases for liability. As to conspiracy, the prosecutor stated: "And in conspiracy law-we don't have to worry about it in this case, but it is so strict and powerful, that even if [Nguyen] somehow believed that his buddies were only going to go in and commit a separate crime of bradishing [sic] a weapon of exhibiting a firearm to scare these guys, if you found that a natural and probable consequence of that would be these guys might get killed, and even though [Nguyen] didn't do anything more than conspire, that they go and exhibit a firearm, they never fired. He would be liable for the natural and probable consequences of these co-conspirators." The theory of the case the prosecutor emphasized to the jury was that Nguyen was guilty of first degree murder as a direct perpetrator or aider and abettor on all three counts because he intentionally participated in a revenge killing for the benefit of the Asian Boys gang. Defense counsel argued to the jury that Nguyen was guilty of involuntary manslaughter as to each count.
The court gave multiple instructions related to the uncharged conspiracy theory of liability, including CALJIC No. 6.11, on joint responsibility for conspiracy, which stated, in part:
"Each member of a criminal conspiracy is liable for each act and bound by each declaration of every other member of the conspiracy if that act or declaration is in furtherance of the object of the conspiracy.
"The act of one conspirator pursuant to or in furtherance of the common design of the conspiracy is the act of all conspirators.
"A member of a conspiracy is not only guilty of the particular crime that to his knowledge confederates agreed to and did commit, but is also liable for the natural and probable consequences of any crime of a co-conspirator to further the object of the conspiracy, even though that crime was not intended as a part of the agreed upon objective and even though he was not present at the time of the commission of that crime.
"You must determine whether the defendant is guilty as a member of a conspiracy to commit the originally agreed upon crime or crimes, and, if so, whether the crime alleged in Counts 1, 2, and 3 were perpetrated by co-conspirators in furtherance of that conspiracy and was a natural and probable consequence of the agreed upon criminal objective of that conspiracy."
On September 21, 2006, the day after the jury began deliberating, the court recognized that it had failed to give the instruction defining conspiracy, CALJIC No. 6.10.5, and it determined that it was necessary to do so. The court brought the jury back into the courtroom, and began by answering two questions that had been submitted by the jury that day.
The first question was: "If we determined that the defendant is a co-conspirator do we need to consider his individual mental state?" The second question was: "If we determine that at least one count is guilty for murder, can we find that the defendant is guilty of manslaughter in any of the other counts?" The court told the jury that the answer to each of the two questions was "yes."
The court then read the conspiracy instruction to the jury, and it permitted the prosecutor and defense counsel to make additional arguments to the jury regarding this instruction. The instruction stated, in part:
"A conspiracy is an agreement between two or more persons with the specific intent to agree to commit the crime of murder, and with the further specific intent to commit that crime, followed by an overt act committed in this state by one or more of the parties for the purpose of accomplishing the object of the agreement. Conspiracy is a crime, but is not charged as such in this case.
"In order to find a defendant to be a member of a conspiracy, in addition to proof of the unlawful agreement and specific intent, there must be proof of the commission of at least one overt act. It is not necessary to such a finding as to any particular defendant that defendant personally committed the overt act, if he was one of the conspirators when the alleged overt act was committed."
After the court read the conspiracy instruction, the court allowed counsel to present a supplemental argument. Defense counsel argued that the conspiracy here "is a conspiracy to commit murder." He argued that the prosecution had to show that Nguyen entered into an agreement to commit murder, such that when he went to the cafe with the others he agreed with them that his objective was "to murder," as that term had been defined by the judge. Defense counsel argued that Nguyen's turning his head as he shot his gun "is not evidence that shows a specific intent to murder" and instead constituted proof "that would show that [Nguyen] never had a specific intent to enter into any conspiracy."
In his supplemental argument, the prosecutor stated that "a person is a coconspirator for a crime, in this case murder, when they conspire or agree with their coconspirators to do a crime, murder." The prosecutor also stated that the coconspirator needed to have the specific intent to kill. He argued that even if Nguyen had the intent to kill only Cuong Do's shooter, if his coconspirators killed three people as part of this conspiracy, he would be liable for all three killings "if you find it's a natural and probable consequence of his conspiracy, his agreement, his specific intent to commit one murder."
The jury continued its deliberations, and then reached its verdict on September 26, 2006.
C. The Trial Court's Decision on the Petition for Resentencing
Nguyen filed a resentencing petition, through counsel, in which he alleged that an information had been filed against him that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine, that he was convicted of first degree murder after a jury trial, and that he could not now be convicted of first degree murder on count 2 because of changes to sections 188 or 189 made effective January 1, 2019.
The district attorney filed an opposition to the petition arguing that it should be denied because Nguyen was not convicted of first degree murder under the natural and probable consequences doctrine. While the district attorney noted that the natural and probable consequences theory was mentioned in the court's instruction on joint responsibility for crimes in a conspiracy (CALJIC No. 6.11), it argued that because the court had specifically defined the uncharged conspiracy as a murder conspiracy (CALJIC No. 6.10.5), the jury had to find that Nguyen conspired to commit murder to find him guilty under co-conspirator liability, which would have necessitated a finding that Nguyen had the intent to commit premeditated and deliberate first degree murder.
Nguyen filed a reply to the district attorney's opposition, in which he contended that he had made a sufficient showing that he was convicted of first degree murder based on the natural and probable consequences instruction that was included in the uncharged conspiracy instructions. He asserted that while the uncharged conspiracy instruction required proof of an agreement by "two or more persons" to commit murder, it did not require the jury to find that Nguyen was one of the of the persons who agreed to commit the crime of murder. This was the case, argued Nguyen, because the companion instruction on joint responsibility in a conspiracy told the jury that Nguyen could be liable for conduct beyond some other (non-murder) target crime that he agreed to commit if it was the natural and probable consequences of what he agreed to.
The court disagreed with Nguyen's argument that the instructions allowed the jury to convict him on an uncharged conspiracy theory without finding that he personally acted with malice aforethought. The court pointed to the fact that the instruction defined the conspiracy as an agreement "to commit the crime of murder." It also noted that the court at Nguyen's trial gave this conspiracy instruction after the prosecution mentioned brandishing as a basis for convicting under the natural and probable consequences theory, and that when the conspiracy instruction was given, the parties gave additional arguments, where each argued that a conspiracy "required an agreement to murder and an intent on the part of [Nguyen] to commit murder." The court denied the petition without issuing an order to show cause, stating that on this record it "can find no logical or legal path to the jury's verdict in count 2 without a finding by the jury that [Nguyen] himself acted with malice."
II. Discussion
Nguyen argues that the trial court erred in denying his petition at the prima facie stage because the record of conviction does not conclusively demonstrate that a conviction for first degree murder in count 2 based on the uncharged conspiracy instruction necessarily required the jury to find that he agreed to commit murder, as opposed to a lesser crime, the natural and probable consequences of which was murder. The Attorney General contends that Nguyen failed to make a prima facie showing entitling him to resentencing relief because the record of conviction conclusively shows that his first degree murder conviction required the jury to find that he acted with intent to kill.
A. Legal Principles
"Senate Bill [No.] 1437 'amend[ed] 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.' (Stats. 2018, ch. 1015, § l, subd. (f) [(Senate Bill 1437)].)" (People v. Gentile (2020) 10 Cal.5th 830, 842.) This change in law resulted in three amendments to the Penal Code. First, as amended by Senate Bill 1437, section 188, subdivision (a)(3) was added to require that "in order to be convicted of murder, a principal in a crime shall act with malice aforethought." (§ 188, subd. (a)(3).) That provision also states that "[m]alice shall not be imputed to a person based solely on his or her participation in a crime." (Ibid.) Second, Senate Bill 1437 added section 189, subdivision (e), limiting liability for felony murder. (Stats. 2018, ch. 1015, § 3.)
Third, Senate Bill 1437 "created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended." (People v. Strong (2022) 13 Cal.5th 698, 708 (Strong).) When the trial court receives a petition under section 1172.6 requesting vacatur of a murder, attempted murder, or manslaughter conviction and resentencing, and "containing the necessary declaration and other required information, the court must evaluate the petition 'to determine whether the petitioner has made a prima facie case for relief.' [Citations.] If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition. [Citations.] If, instead, the defendant has made a prima facie showing of entitlement to relief, 'the court shall issue an order to show cause.'" (Ibid., citing People v. Lewis (2021) 11 Cal.5th 952, 970-972 (Lewis), § 1172.6, subd. (c).)
In making the prima facie determination, the court may rely on the record of conviction, including its own documents, containing facts refuting the allegations made in the petition, prior appellate opinions in the matter, jury instructions, and verdict forms. (Lewis, supra, 11 Cal.5th at pp. 970-972.) However, the prima facie inquiry is limited and, at this stage of the proceedings, the court "should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Id. at pp. 971-972, quoting People v. Drayton (2020) 47 Cal.App.5th 965, 980.) Our Supreme Court has emphasized that the "prima facie bar was intentionally and correctly set very low." (Lewis, supra, at p. 972.) "Only where the record of conviction contains facts conclusively refuting the allegations in the petition may the court make credibility determinations adverse to the petitioner." (People v. Flores (2022) 76 Cal.App.5th 974, 991.)
"We independently review a trial court's determination on whether a petitioner has made a prima facie showing." (People v. Harden (2022) 81 Cal.App.5th 45, 52.)
B. Analysis
Nguyen argues that the conspiracy instruction (CALJIC No. 6.10.5), read together with the natural and probable consequences language in the instruction on joint responsibility in a conspiracy (CALJIC No. 6.11) provided a pathway through which the jury could have reached a first degree murder verdict on count 2 without necessarily finding that Nguyen was himself a party to an agreement to commit murder. As support for the argument that the jury could have found him guilty of first degree murder without finding that he possessed the requisite intent to kill, Nguyen also cites the prosecutor's statement in his initial closing argument that even if Nguyen did nothing more than agree to brandish a weapon at Mai Tiem Cafe with the intent to scare the purported shooter of Cuong Do, he could be found guilty for the natural and probable consequences of his conspirators. Nguyen additionally argues that the jury's inquiry in their questions on September 21, 2006, as to the need to find the individual mental state of a coconspirator, and whether they could find murder for one count and manslaughter for another, demonstrates the plausibility of his theory.
We agree that there were ambiguities in the instructions and argument that left open a reasonable possibility that the jury may have convicted Nguyen of first degree murder on count 2 without finding that he personally acted with malice aforethought. We will thus reverse the order summarily denying his petition and remand for an evidentiary hearing.
First, the prosecutor in this case explicitly argued that the jury could find Nguyen guilty of first degree murder under a conspiracy theory based on the natural and probable consequences theory, which raises the possibility that the jury found him guilty of first degree murder on a theory under which malice was imputed to him based solely on his participation in a crime. The prosecutor told the jury that even if Nguyen "somehow believed that his buddies were only going to go in and commit a separate crime of bradishing [sic] a weapon of exhibiting a firearm to scare these guys, if you found that a natural and probable consequence of that would be these guys might get killed, and even though [Nguyen] didn't do anything more than conspire, that they go and exhibit a firearm, they never fired. He would be liable for the natural and probable consequences of these co-conspirators." While the prosecutor did not rely on this as a main theory of guilt in his arguments, he also did not disavow or abandon this theory when he made his supplemental closing argument after the court belatedly gave the jury the instruction on conspiracy.
Second, the court gave the conspiracy instruction after the jury had been deliberating for a day, and after the jury had expressed, in the form of two questions, some confusion about how to apply the conspiracy theory of liability and whether it could render mixed verdicts for the multiple counts. The court then provided the jury with the additional conspiracy instruction and allowed the parties to make supplemental arguments. The questions posed by the jury provide some evidence that at least a subset of the jurors had already formed an opinion that Nguyen was guilty of first degree murder based on the prior instruction and argument. Absent instruction from the court to discard those opinions and disregard the prior argument, the jury may have reached its first degree conviction on count 2 based on a conspiracy theory of guilt in reliance upon the natural and probable consequences doctrine.
Finally, we agree with Nguyen that the there was some ambiguity created by the conspiracy instruction (CALJIC No. 6.10.5) when considered along with the natural and probable consequences language contained in the instruction on joint responsibility in a conspiracy (CALJIC No. 6.11), such that the jury could have reached a first degree murder verdict on count 2 without necessarily finding that Nguyen was himself a party to an agreement to commit murder. While the uncharged conspiracy instruction required proof of an agreement by "two or more persons" to commit murder, it did not specify that Nguyen had to be one of the persons who agreed to commit murder. Meanwhile, the instruction on joint liability in a conspiracy included natural and probable consequences language which the jury may have interpreted as allowing it to find Nguyen guilty of murder if he agreed with others to commit a lesser offense.
Given the potential for jury confusion caused by the prosecutor's argument on conspirator liability under the natural and probable consequences doctrine, the fact that the jury received the conspiracy instruction only after it had deliberated for a day and had expressed confusion about conspirator liability, and the ambiguities created by the joint responsibility instruction and the conspiracy instruction, we conclude that the record here does not conclusively demonstrate that the jury did not base its first degree murder verdict on a theory of natural and probable consequences liability. We limit this case to its facts: we do not here determine that any one of these factors would be sufficient in itself to compel Nguyen's entitlement to an evidentiary hearing. However, considered together, and under the low prima facie bar articulated in Lewis, supra, we are persuaded that a prima facie showing was made here.
Because Nguyen's petition alleged the facts necessary for relief under section 1172.6 (§ 1172.6, subds. (a)-(c)), and nothing in the record conclusively demonstrates that he is ineligible for relief as a matter of law, we conclude that Nguyen's petition made a prima facie showing of entitlement to relief. (See Lewis, supra, 11 Cal.5th at pp. 970972; § 1172.6, subd. (c); see also Strong, supra, 13 Cal.5th at p. 720.) We thus reverse the trial court's October 13, 2021 order and remand to the trial court with directions to issue an order to show cause and hold further proceedings under section 1172.6.
In his opening brief, Nguyen additionally argues that: (1) the true finding in the multiple murder special circumstance instruction given at trial does not establish that the jury necessarily found that he had the intent to kill with respect to the first degree murder conviction in count 2; and (2) the rulings in Santa Clara Superior Court in Nguyen's prior habeas petitions do not foreclose relief in the instant resentencing petition. With regard to the first issue, the Attorney General states in his brief that he does not rely on the multiple victim special circumstance as a basis for denying the petition. As to the second issue, the Attorney General correctly concedes that the summary denial of habeas relief in Nguyen's prior petitions has no res judicata effect on the current proceedings. Given this, we need not address either of these arguments here.
III. Disposition
The trial court's October 13, 2021 order denying the petition is reversed. The matter is remanded to the trial court with directions to issue an order to show cause and conduct further proceedings in accordance with Penal Code section 1172.6.
WE CONCUR: Grover, J. Lie, J.