People v. Tran CA4/1

Filed 5/17/24 P. v. Tran CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D082106

Plaintiff and Respondent,

v. (Super. Ct. No. SCD249683) VICTOR MINH TRAN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Affirmed. Lizabeth Weis, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance from Plaintiff and Respondent. In 2014, a jury convicted Victor Minh Tran of two counts of attempted

murder (Pen. Code,1 §§ 187, subd. (a), 664) and two counts of assault with a firearm (§ 245, subd. (a)(2)), for conduct involving two victims. The jury was instructed as to aiding and abetting liability with respect to these counts.

1 All further statutory references are to the Penal Code.

The jury also convicted Tran of one count of robbery (§ 211), and one count of assault with a deadly weapon (§ 245, subd. (a)(1)) for conduct involving a third victim. The jury was instructed as to aiding and abetting, conspiracy, and natural and probable consequences liability with respect to these counts. In 2022, Tran filed a petition for resentencing under section 1172.6 on the ground that he was convicted of “attempted murder under the natural and probable consequences doctrine” and “could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019.” The court appointed counsel, received briefing from Tran and the People, and held a hearing. The trial court found that the jury instructions refuted Tran’s allegation that he was convicted of attempted murder under a natural and probable consequences theory, and thus Tran was not eligible for relief under the statute as a matter of law. The petition for resentencing was denied without issuing an order to show cause. Tran filed a timely notice of appeal. Appellate counsel subsequently filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), indicating she has not been able to identify any potentially meritorious issues for reversal on appeal. We notified Tran of his right to file his own brief on appeal. He elected to do so and raised two principal arguments. First, he claims “the trial court failed to instruct the jury as to the elements needed to convict based off a theory of aiding/abetting a specific intent crime and that the mens rea of an aider/abett[o]r is separate from the perpetrator.” Second, he claims that, although the jury was not instructed on natural and probable consequences liability with respect to attempted murder, it could nonetheless have convicted him under a natural and probable consequences theory due to the presence of a natural and probable