People v. Nguyen CA6

Filed 7/19/22 P. v. Nguyen CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H048263 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. CC247793)

v.

NGUYEN LE NGUYEN,

Defendant and Appellant.

Nguyen Le Nguyen appeals following the denial of his petition for resentencing under former Penal Code section 1170.951 (Stats. 2018, ch. 1015, § 4).2 The parties agree the trial court should not have denied Nguyen’s petition at the prima facie stage of the proceedings. We concur and therefore reverse the trial court’s order and remand with directions. I. PROCEDURAL BACKGROUND On March 6, 2003, the Santa Clara County District Attorney filed an information against Nguyen and a codefendant, Nhang Dinh Mai. Nguyen was charged with one count of first degree murder (§ 187; count 1), two counts of attempted first degree murder

1 Unspecified statutory references are to the Penal Code. 2 Section 1170.95 has been amended and renumbered as section 1172.6. (Stats. 2022, ch. 58, § 10, eff. June 30, 2022; see also Stats. 2021, ch. 551, § 2, eff. Jan. 1, 2022.)

(§§ 664, 187, subd. (a); counts 2 & 3) and one count of shooting at an occupied motor vehicle (§ 246; count 4). With respect to counts 1, 2, 3, and 4, the information alleged that Nguyen committed the offenses for the benefit of a criminal street gang (§186.22, subd. (b)(1)) and that he was a principal in the offense and at least one principal intentionally and personally discharged a firearm (§ 12022.53, subd. (d), (e)(1)). Nguyen was also charged with assault with a deadly weapon (§ 245, subd. (a)(1); count 5), with a gang allegation (§ 186.22, subd. (b)(1)) and an allegation that he personally inflicted great bodily injury on the victim (§§ 12022.7, subd. (a), 1203, subd. (e)(3).) During the jury selection phase of his trial, on August 12, 2003, Nguyen pleaded guilty. In the plea agreement, the terms of which were recited orally on the record, Nguyen agreed to plead guilty to counts 1, 2, and 3 and admit the gang allegations but not the firearm allegations associated with those counts. Nguyen also agreed to plead guilty to count 5 and to its gang and personal infliction of great bodily injury allegations. Count 4 would be dismissed. Nguyen was to receive a sentence of 25 years to life in the state prison. The parties stipulated that there was “a factual basis contained in the transcript of the preliminary examination for purposes of entry of plea.” Pursuant to the plea agreement, Nguyen pleaded guilty to counts 1, 2, 3, and 5 and admitted the gang and great bodily injury allegations. There was nothing placed on the record about the theory of liability for Nguyen’s convictions for first degree murder and attempted first degree murder. On October 3, 2003, the trial court sentenced Nguyen. The court denied probation and sentenced Nguyen to 25 years to life imprisonment on counts 1, 2, and 3 and 17 years on count 5, all sentences to run concurrently. The trial court dismissed counts 4 and the remaining allegations. The court also ordered fines, fees, and restitution. Nguyen appealed but only to challenge the restitution and fines imposed at sentencing. This court found no error in these orders and affirmed the judgment in an unpublished opinion. (People v. Nguyen (Mar. 29, 2005, H026960) [nonpub. opn.].) 2