People v. Nguyen CA4/3

Filed 8/17/22 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G061160

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. Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

Appellant Cuong Viet Nguyen was convicted of murder in 2010. He was sentenced to 55 years to life in prison, but after a successful appeal, that sentence was reduced to 40 years. Two years ago, appellant filed a petition pursuant to Penal Code section 1170.951 seeking resentencing on his murder conviction. Section 1170.95 is the procedural mechanism for implementing legislative changes in California law which narrow the scope of vicarious liability for murder in two ways. First, the Legislature eliminated the natural and probable consequences theory for that crime by providing that “[m]alice shall not be imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3).) Second, it reined in the felony murder rule so that it can only be applied to nonkillers if they aided and abetted the killer in committing first degree murder, or they were a major participant in the underlying felony and acted recklessly indifferent to human life. (§ 189, subd. (e).) In addition to ushering in these changes, the Legislature also enacted section 1170.95, which is the procedural mechanism for challenging a murder conviction based on vicarious liability. To obtain relief under that section, the defendant must show 1) he was prosecuted for murder under the felony murder rule or the natural and probable consequences doctrine, 2) he was ultimately convicted of first or second degree murder, 3) and – and this is the flaw in appellant’s petition – he would not be liable for murder today because of how the Legislature has redefined that offense. (§ 1170.95, subd. (a).) If the defendant makes a prima facie showing to that effect, the trial court is required to issue an order to show cause and, absent a concession by the People, conduct an evidentiary hearing. (§ 1170.95, subds. (c), (d).) At the hearing, the prosecution must prove beyond a reasonable doubt the defendant is ineligible for resentencing because his