People v. Nguyen CA3

Filed 4/8/22 P. v. Nguyen CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C092775

Plaintiff and Respondent, (Super. Ct. No. 99F09906)

v.

DAI NGUYEN,

Defendant and Appellant.

Defendant Dai Nguyen appeals from an order denying his postjudgment petition for resentencing under Penal Code1 section 1170.95. Defendant’s appointed counsel found no arguable issues and filed a brief under People v. Wende (1979) 25 Cal.3d 436, asking this court to independently review the record to determine whether there were any arguable issues on appeal. Defendant filed a supplemental brief complaining about appellate counsel’s performance and claiming the trial court erred in denying his petition as the jury was instructed on both felony murder and natural and probable consequences. After examining the record, we find no arguable error that would result in a disposition more favorable to defendant and affirm.

1 Undesignated statutory references are to the Penal Code.

1

BACKGROUND2 We briefly summarize the relevant background from our opinion in defendant’s previous appeal from the underlying conviction. (People v. Nguyen (Dec. 19, 2002, C037200) [nonpub. opn.] (Nguyen).)3 In December 1999, while on the hunt for methamphetamine, defendant went to Jeff Hutchings’s home while the victim, John Beren, was there. Defendant and Beren got into an argument, during which defendant claimed Beren approached him with a clenched fist. “[D]efendant pulled a gun from his pocket and held it to Beren’s head. He said to Hutchings, ‘Jeff, you didn’t see shit.’ Defendant shot Beren in the head and Beren died.” A jury found defendant guilty of second degree murder and found true the allegation he personally used a firearm while committing the murder. The trial court sentenced him to state prison for 15 years to life on the murder conviction, with a 25-year enhancement on the firearm allegation. We affirmed the judgment on appeal. (Nguyen, supra, C037200.) In September 2019, defendant filed his third section 1170.95 petition for resentencing, alleging he was convicted of second degree murder under CALJIC No. 8.32, “which is consistent with [the] 2nd degree felony murder doctrine,” and could not now be convicted of murder because of the changes made to section 188 in Senate