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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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