People v. Nguyen CA4/3

California Court of Appeal Jun 25, 2021 No. G059879Unpublished

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Holding. The court affirmed the summary denial of the defendant's Penal Code section 1170.95 petition, holding that the defendant was ineligible for relief as a matter of law because he was the actual killer and not convicted under a theory of felony murder or the natural and probable consequences doctrine.

Issues

Whether the protections of Anders and Wende apply to an appeal from an order denying a section 1170.95 petition.
Whether the trial court erred in failing to appoint counsel before summarily denying the petition.
Whether the trial court erred in considering the record of conviction to determine prima facie eligibility.
Whether the summary denial of the petition without additional briefing violated the defendant's constitutional rights.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“To the contrary, defendant was the actual killer, and therefore is not eligible for relief under section 1170.95 as a matter of law.”

“We have reviewed the record in accordance with Wende and Anders, and we find no arguable issues on appeal.”

Filed 6/25/21 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G059879

v. (Super. Ct. No. 08CF1842)

CUONG VIET NGUYEN, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Cheri T. Pham, Judge. Affirmed. Sharon G. Wrubel, under appointment by the Court of Appeal; and Cuong Viet Nguyen, in pro. per., for Defendant and Appellant. No appearance for Plaintiff and Respondent. * * *

INTRODUCTION A jury convicted defendant Cuong Viet Nguyen of murder. The trial court sentenced him to life in prison without the possibility of parole. Defendant appealed and this court affirmed. Following the passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.), defendant petitioned for resentencing pursuant to Penal Code section 1170.95. (Unless otherwise noted, further statutory references are to the Penal Code.) The trial court summarily denied defendant’s petition; defendant appealed. Appointed appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), setting forth the facts of the case and requesting we review the entire record. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), counsel identified potential issues to assist us in our independent review. We provided defendant 30 days to file written argument on his own behalf; he did so. We have independently examined the entire record (People v. Flores (2020) 54 Cal.App.5th 266), appointed counsel’s Wende/Anders brief, and defendant’s supplemental brief. We have found no reasonably arguable issue and therefore affirm. (Wende, supra, 25 Cal.3d 436.) 1 BACKGROUND “Both defendant and Bui were present at the All Star Café in Stanton on the evening of June 25, 2005. A fight between a group of defendant’s friends and a group of Bui’s friends broke out inside the club about 1:00 a.m. on June 26. Bui was among those thrown out of the club by security after the fight. As Bui walked toward the parking lot, two men who had been watching him argue with the security guards rushed toward Bui

People v. Nguyen CA4/3

AI Brief

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

CUONG VIET NGUYEN, OPINION

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