People v. Nguyen CA3

Filed 1/9/24 P. v. Nguyen CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C098289

Plaintiff and Respondent, (Super. Ct. No. 07F09493)

v.

DAVIS NGUYEN,

Defendant and Appellant.

Defendant Davis Nguyen appeals from the trial court’s denial of his petition for resentencing under Penal Code section 1172.6.1 Appointed counsel for defendant asks this court to conduct an independent review of the record to determine whether there are any arguable issues on appeal, and defendant has filed a supplemental brief. (People v.

1 Undesignated statutory references are to the Penal Code. Defendant filed his petition under former section 1170.95. Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775) amended section 1170.95, effective January 1, 2022. Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.) This opinion refers to section 1172.6.

1

Wende (1979) 25 Cal.3d 436; People v. Delgadillo (2022) 14 Cal.5th 216.) We have considered defendant’s supplemental brief and affirm. BACKGROUND In 2009, a jury found defendant guilty of attempted murder and being a felon in possession of a firearm. In connection with the attempted murder verdict, the jury found true that defendant personally discharged a firearm causing great bodily injury. Defendant was sentenced to consecutive determinate terms for the substantive offenses, enhanced with a consecutive indeterminate term of 25 years to life. This court affirmed the judgment. (People v. Nguyen (Aug. 5, 2010, C062265) [nonpub. opn.].) In November 2022, defendant filed a petition for resentencing under section 1172.6. Defendant alleged he was convicted of attempted murder under the natural and probable consequences doctrine and could not be so convicted today. The trial court conducted a prima facie hearing and then filed a written order denying the petition. The trial court found defendant ineligible for relief because the jury was not instructed on the felony-murder rule or natural and probable consequences doctrine. Defendant filed a timely notice of appeal. DISCUSSION Defendant’s appointed counsel asks this court to conduct an independent review of the record to determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of his right to file a supplemental brief, and he has done so. Our Supreme Court has considered whether the Wende process applies to a trial court’s order denying a petition for postconviction relief under section 1172.6 and concluded such procedures are not required. (People v. Delgadillo, supra, 14 Cal.5th at pp. 221-222.) Our Supreme Court laid out applicable procedures for such cases saying, where, as here, a defendant has filed a supplemental brief, “the Court of Appeal is