Filed 6/7/24 P. v. Nguyen CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

LINH NGOC NGUYEN,

Defendant and Appellant.

 D081433

 (Super. Ct. No. SCD159918-02)

APPEAL from an order of the Superior Court of San Diego County, 

David M. Gill, Judge. Affirmed.

Heather L. Beugen, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters and Charles C. 

Ragland, Assistant Attorneys General, A. Natasha Cortina, Supervising 

Deputy Attorney General, Felicity Senoski and Lynne G. McGinnis, Deputy 

Attorneys General, for Plaintiff and Respondent. 
2

Linh Ngoc Nguyen appeals an order denying his petition for 

resentencing under former Penal Code section 1170.95 (now section 1172.6)1

based on changes to the felony murder rule and the natural and probable 

consequences doctrine (Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 4, eff. 

Jan. 1, 2019)). He contends the court erroneously denied his petition at the 

prima facie stage and we should remand for the court to hold an evidentiary 

hearing because the record, especially the jury instructions as a whole, did 

not clearly establish that he was ineligible for relief as to his seven 

convictions for premeditated attempted murder. We affirm the court’s order.

FACTUAL AND PROCEDURAL SUMMARY

A. Facts

The statement of facts is taken from this court’s nonpublished opinion, 

People v. Linh N. Nguyen et al., D039710 (Apr. 4, 2003), which the trial court 

relied on as well. In that opinion, we affirmed the judgment as to Nguyen 

and his brother, Cuong Nguyen (Cuong). We set out some pertinent facts for 

context, but do not rely on them in resolving this appeal.

On the night of February 17, 2001, Nguyen and his companions were 

outside a café. A group of people approached and started saying things that

Nguyen interpreted as disrespectful.

Nguyen told his companions he knew the other people from school and 

had problems with them before. Nguyen was angry but kept saying he was 

going to “let this slide.” Finally, he could not take it anymore. He drove his 

car to a nearby laundromat, and said he was going to “blast ‘em.” Nguyen

1 Undesignated statutory references are to the Penal Code. Effective 

June 30, 2022, the Legislature renumbered section 1170.95 as section 1172.6, 

with no substantive change in text. (Stats. 2022, ch. 58, § 10.) We refer to 

the statute throughout as section 1172.6.
3

telephoned a relative and told him to bring Cuong, who arrived. The others 

left and only Nguyen and Cuong remained.

Thai Thanh Pham, the most vocal person taunting Nguyen, was the 

only one in that group wearing a red jacket. Pham went home shortly after 

interacting with Nguyen and was not present when Nguyen returned in his 

car to the front of the café, with Cuong as his front seat passenger.

Some of Pham’s friends who were outside the café noticed the 

defendants looking at them as Nguyen drove around in the parking lot. 

Defendants drove up near the group and called out to them. Defendants 

accused the group of “talking shit,” said they were looking for the “guy in a 

red jacket,” and suggested they “go down the street and handle this.” After 

both parties exchanged more words, Cuong suddenly reached down and 

pulled out a gun. The people ducked for cover behind cars and began 

running. Cuong started shooting from the open window of the car and 

Nguyen sped away. Investigators recovered nine 9-millimeter shell casings 

from the scene. A piece of metal hit one of the victims near his eye, causing 

slight bleeding.

The jury convicted Nguyen of conspiracy to commit murder under 

section 182, subdivision (a)(1), and seven counts of attempted murder, finding 

true allegations that the offenses were willful, deliberate and premeditated 

within the meaning of section 189. As to all counts, the jury found true an 

allegation that Nguyen was armed with a handgun during the commission of 

the crimes. (§ 12022, subd. (a)(1).)

The trial court sentenced Nguyen to prison for 25 years to life on the 

conspiracy count plus a consecutive term of life with the possibility of parole

on the first attempted premeditated murder count. 
4

B. Senate Bill No. 1437

The Legislature approved Senate Bill No. 1437, which went into effect 

on January 1, 2019. Senate Bill No. 1437 significantly limited the scope of 

the felony-murder rule and eliminated liability for murder under the natural 

and probable consequences doctrine through two key provisions. First, it 

amended section 189 so that “[d]efendants who were neither actual killers 

nor acted with the intent to kill can be held liable for murder only if they 

were ‘major participant[s] in the underlying felony and acted with reckless 

indifference to human life[.]’ ” (People v. Strong (2022) 13 Cal.5th 698, 708.) 

Second, it amended section 188 to provide that when the felony-murder rule 

does not apply, a principal in the crime of murder can only be convicted if he 

or she acted “with malice aforethought,” and “[m]alice shall not be imputed to 

a person based solely on his or her participation in a crime.” (§ 188, subd. 

(a)(3).)

Senate Bill No. 1437 also created a resentencing procedure, which is 

now set forth in section 1172.6. (Stats. 2018, ch. 1015, § 4.) It provides: “A 

person convicted of felony murder or murder under the natural and probable 

consequences doctrine or other theory under which malice is imputed to a 

person based solely on that person’s participation in a crime, attempted 

murder under the natural and probable consequences doctrine, or 

manslaughter may file a petition with the court that sentenced the petitioner 

to have the petitioner’s murder, attempted murder, or manslaughter 

conviction vacated and to be resentenced on any remaining counts . . . .” 

(§ 1172.6, subd. (a).)

A petitioner initiates the process by filing a declaration averring that: 

(1) a charging document was filed against the petitioner allowing the 

prosecution to proceed under a theory of felony murder, natural and probable 
5

consequences murder, murder under another theory by which malice is 

imputed to a person based solely on that person’s participation in a crime, or 

attempted murder under the natural and probable consequences doctrine; (2) 

the petitioner was convicted of murder, attempted murder, or manslaughter 

following a trial, or accepted a plea offer in lieu of a trial at which the 

petitioner could have been convicted of murder or attempted murder; and (3) 

the petitioner could not presently be convicted of murder or attempted 

murder because of the changes to the murder laws that were implemented by 

Senate Bill No. 1437. (§ 1172.6, subds. (a)(1)-(3), (b)(1).) If the petitioner 

states a prima facie case for relief, the court must issue an order to show 

cause and schedule an evidentiary hearing to determine whether to vacate 

the murder, attempted murder, or manslaughter conviction, recall the 

sentence, and resentence the petitioner on any remaining counts. (Id., subds. 

(c), (d)(1).)

At the hearing, the prosecution bears the burden of proving beyond a 

reasonable doubt that the petitioner is guilty of murder or attempted murder 

under the amended laws. (§ 1172.6, subd. (d)(3).) “If the prosecution fails to 

sustain its burden of proof, the prior conviction, and any allegations and 

enhancements attached to the conviction, shall be vacated and the petitioner 

shall be resentenced on the remaining charges.” (Ibid.)

C. The Resentencing Petition Proceeding

In 2022, Nguyen filed a form petition for resentencing as to his 

premeditated attempted murder convictions under section 1172.6, alleging all 

the required elements for a prima facie showing under section 1172.6, 

subdivision (a). The court appointed counsel for Nguyen.

The People opposed Nguyen’s petition, arguing that since attempted 

murder requires express malice, Nguyen’s conviction for this crime was 
6

unaffected by the new law. Moreover, they argued the jury found true that 

the attempted murders were willful, deliberate, and premeditated. The 

People stated that on appeal this court held substantial evidence supported 

the jury’s conclusion Nguyen had the intent to kill; therefore, that holding

was “law of the case” and precluded relief.2 Finally, the People explained

that the verdicts were based on direct aiding and abetting theories, and not 

on the natural and probable consequences doctrine.

In reply, defense counsel set forth the law generally and argued 

Nguyen had “met his burden of production and made a prima facie showing 

that he is eligible for relief,” such that the matter should proceed to an 

evidentiary hearing.

In denying the petition, the court ruled “the record of conviction makes 

clear [Nguyen] was not convicted of attempted murder as an accomplice 

under the natural and probable consequences doctrine . . . . Rather, [he] was 

convicted of attempted murder, acting with premeditation. A review of the 

court file reveals that the jury was given instructions on premeditation and 

made specific findings that [Nguyen] acted willfully, deliberately, and with 

premeditation.”

DISCUSSION

Nguyen does not claim he was eligible for relief on the conspiracy to 

commit murder conviction. He instead contends the record of conviction does

not clearly establish that he is ineligible for resentencing on his attempted 

2 This court concluded on direct appeal: “The record amply supports a 

finding of intent to kill. The jury could infer intent to kill from [Nguyen’s] 

statement that he was going to ‘blast ‘em’ and Cuong’s conduct of opening fire 

on a group of people. Defendants armed themselves, circled the parking lot, 

specifically sought out a confrontation, and then fired in a manner which 

could have hit and killed numerous victims.”
7

murder convictions: “Yes, when the jurors were instructed that to find [him] 

guilty of the crime of conspiracy to commit murder, they were told they had to 

find that he ‘harbored express malice aforethought, namely, a specific intent 

to kill’ another person. However, the conspiracy to commit murder jury 

instruction does not make [him] absolutely ineligible for relief on the 

attempted murder counts [ ]. That is so, because the jury instructions on 

attempted murder, coupled with the instructions on the general rules of 

conspiracy, permitted the jury to find [him] guilty of the premeditated 

murder counts as an accomplice who did not have the specific intent to kill 

Pham’s friends.”

Nguyen specifically argues that under CALJIC No. 8.66,3 the jurors 

were not required to find he “was the person who committed the ineffectual 

act towards killing another human being, or that he was the person who 

intended to kill another human being. This point is significant since the facts

undoubtedly established that it was [his] brother, Cuong, not [him], who 

reached down for the gun and started shooting out the open window of [the]

car.”

Nguyen also argues that “the jury instructions, as a whole, permitted 

the jurors to base his liability for the attempted murder counts on his 

3 The jury was instructed with CALJIC No. 8.66, which provided in part: 

“[Defendant is accused [in Count[s] 2-8] of having committed the crime of 

attempted murder, in violation of sections 664 and 187 . . . .] [¶] Every 

person who attempts to murder another human being is guilty of a violation 

of . . . sections 664 and 187. [¶] Murder is the unlawful killing of a human 

being with malice aforethought. [¶] In order to prove attempted murder, 

each of the following elements must be proved: [¶] 1. A direct but ineffectual 

act was done by one person towards killing another human being; and [¶] 2. 

The person committing the act harbored express malice aforethought, 

namely, a specific intent to kill unlawfully another human being.”
8

brother’s unilateral actions of shooting at people even after [Pham] was not 

found among them. Certainly, Cuong’s shooting into the crowd of people 

outside the café could have been interpreted as a natural and probable 

consequence of the original agreement to kill [Pham]. [¶] But, [Nguyen’s]

intent to kill could have dissipated once he realized that his brother really 

was going to shoot at a crowd of people that no longer included Pham.”

A. Applicable Law

The trial court’s prima facie inquiry under section 1172.6 is “limited.” 

(People v. Lewis (2021) 11 Cal.5th 952, 971.) “Like the analogous prima facie 

inquiry in habeas corpus proceedings, ‘ “the court takes petitioner’s factual 

allegations as true and makes a preliminary assessment regarding whether 

the petitioner would be entitled to relief if his or her factual allegations were 

proved. If so, the court must issue an order to show cause.” ’ [Citations.] ‘[A] 

court should not reject the petitioner’s factual allegations on credibility 

grounds without first conducting an evidentiary hearing.’ ” (Ibid.) Further, 

it must refrain from “ ‘factfinding involving the weighing of evidence or the 

exercise of discretion.’ ” (Id. at p. 972.) However, “the court may deny the 

petition at the prima facie stage if the record of conviction discloses that the 

petitioner is ineligible for relief as a matter of law.” (People v. BerryVierwinden (2023) 97 Cal.App.5th 921, 931.)

“We independently review a trial court’s determination on whether a 

petitioner has made a prima facie showing.” (People v. Harden (2022) 81 

Cal.App.5th 45, 52.)

Section 1172.6 applies by its terms only to attempted murders based on 

the natural and probable consequences doctrine. (§ 1172.6, subd. (a) [“A 

person convicted of . . . attempted murder under the natural and probable 

consequences doctrine . . . may file a petition”].) 
9

B. Analysis

The court did not instruct the jury on the natural and probable 

consequences doctrine. “[I]f the record shows that the jury was not instructed 

on either the natural and probable consequences or felony-murder doctrines, 

then the petitioner is ineligible for relief as a matter of law.” (People v. 

Harden, supra, 81 Cal.App.5th at p. 52.) Rather, the court instructed the 

jury regarding aiding and abetting with CALJIC Nos. 3.00 and 3.01. “ ‘Direct 

aiding and abetting remains a valid theory of attempted murder.’ ” (People v. 

Coley (2022) 77 Cal.App.5th 539, 548; People v. Sanchez (2022) 75 

Cal.App.5th 191, 196-197.)

Nguyen failed to make a prima facie showing that he was entitled to 

relief because the record of conviction demonstrates that he was convicted of 

attempted murder as a direct aider and abettor. (People v. Cortes (2022) 75 

Cal.App.5th 198, 204.) As stated, the court instructed the jury with CALJIC 

No. 8.66 that to convict Nguyen of attempted murder it was required to find 

the “person committing the act harbored express malice aforethought, 

namely, a specific intent to kill unlawfully another human being.” Thus to 

find Nguyen guilty of attempted murder, the jury had to find that the 

perpetrator intended to kill, that Nguyen knew the perpetrator intended to 

kill, and that Nguyen himself intended to commit, encourage, or facilitate the 

killing. These combined findings are equivalent to a finding that Nguyen 

shared the perpetrator’s express malice. (See People v. Beeman (1984) 35 

Cal.3d 547, 560 [“an aider and abettor will ‘share’ the perpetrator’s specific 

intent when he or she knows the full extent of the perpetrator’s criminal 

purpose and gives aid or encouragement with the intent or purpose of 

facilitating the perpetrator’s commission of the crime”).] Accordingly, by 

finding Nguyen guilty of attempted murder, the jury necessarily concluded he 
10

shared Cuong’s intent to kill. Nguyen is therefore ineligible for relief as a 

matter of law. (People v. Coley, supra, 77 Cal.App.5th at pp. 547-548 [absent 

justification or excuse, jury finding of intent to kill conclusively precludes 

eligibility for resentencing under section 1172.6].)

Nguyen relies on People v. Whitson (2022) 79 Cal.App.5th 22 for his 

claim he is eligible for relief based on the trial court’s instruction of the jury 

with CALJIC No. 8.67 as follows: “To constitute willful, deliberate and 

premeditated murder, the would-be slayer must weigh and consider the 

question of killing and the reasons for and against such a choice and, having 

in mind the consequences, decides to kill and makes a direct but ineffectual 

act to kill another human being.” He argues, “[I]t was clear that Cuong, and 

not [Nguyen], was the ‘would-be slayer’ who reached down, pulled out a gun 

and shot at the people in the parking lot through the open car window. 

[Nguyen] was the one who sped away and out of the parking lot.” 

That case is inapposite. A jury convicted Whitson of first degree 

murder, three counts of willful, premeditated, and deliberate attempted 

murder, and conspiracy to murder in a drive-by shooting case. (Whitson, 

supra, 79 Cal.App.5th at pp. 25, 27.) Unlike here, the trial court instructed 

the jury on the natural and probable consequences doctrine on all five counts.

(Id. at p. 29.) On appeal from a summary denial of Whitson’s petition for 

resentencing, the court affirmed the order on the conspiracy count but 

reversed and remanded the matter on the murder and attempted murder 

counts. (Id. at p. 30.)

Most of the Whitson opinion addresses the conspiracy to murder issue. 

In a brief single paragraph entitled, “Attempted Murder Convictions,” the 

court noted the parties agreed “that the matter must be reversed and 

remanded with respect to the attempted murder convictions as well [as the 
11

murder conviction].” (Whitson, supra, 79 Cal.App.5th at p. 33.) The court 

quoted part of CALJIC No. 8.67: “ ‘To constitute willful, deliberate, and 

premeditated attempt to commit murder, the would-be slayer must weigh 

and consider the question of killing and the reasons for and against such a 

choice and, having in mind the consequences, decides to kill and makes a 

direct but ineffectual act to kill another human being.’ ” (Whitson, at p. 33.) 

The court stated, “Based on this language, and in particular the possibility 

that the jury considered [the shooter], and not Whitson [the driver][,] to be 

the would-be slayer, we cannot conclude as a matter of law that the jury 

found Whitson himself harbored the intent to kill.” (Ibid.)

The Whitson court did not analyze this issue in any detail. Instead, it 

essentially accepted a stipulation between the parties—a concession by the 

Attorney General to Whitson’s contention—that it was appropriate to remand 

the attempted murder counts for further consideration. The Attorney 

General has made no such concession here.

In any event, in arguing the “would-be slayer” language in CALJIC No. 

8.67 could have caused his jury to impute Cuong’s malice to him, Nguyen 

ignores the preamble to that instruction. It requires the jury to find the 

defendant guilty of attempted murder before considering the truth of the 

allegation “that the crime attempted was willful, deliberate, and 

premeditated murder.” (CALJIC No. 8.67.) Thus the jury already had 

determined Nguyen shared Cuong’s intent to kill and was guilty as an aider 

and abettor of attempted murder when it considered whether the crimes were

willful, deliberate, and premeditated. CALJIC No. 8.67 does not concern the 

requisite intent or mental state for conviction of attempted murder. And 

assuming—as we must—that Nguyen’s jury understood and followed the 

instructions given, it had no bearing on the jury’s underlying determination 
12

of his guilt on the attempted murder charges. (See People v. Buenrostro

(2018) 6 Cal.5th 367, 431 [we presume jurors understand and follow the 

instructions they are given, including the written instructions].)

Finally, even assuming the instruction did not require the jury to find 

Nguyen personally premeditated the crimes in order to find the allegations

true, our conclusion about Nguyen’s ineligibility for section 1172.6 relief 

would not change. Section 1172.6 relief is available only to a defendant 

convicted under a theory of imputed malice, not imputed premeditation.

(§ 1172.6, subd. (a); see People v. Smith (2005) 37 Cal.4th 733, 739-740 

[attempted murder requires specific intent to kill, and the prosecution may 

seek an additional finding of premeditation “for purposes of sentence 

enhancement”].) According to the instructions given in this case, in order to 

convict Nguyen of attempted murder as an aider and abettor, the jury was 

required to find he shared Cuong’s specific intent to kill. (See People v. 

Nguyen (2015) 61 Cal.4th 1015, 1055-1056 [“ ‘ it is the jury, not the appellate 

court which must be convinced of the defendant’s guilt’ ”].)
13

DISPOSITION

The order denying Nguyen’s section 1172.6 petition is affirmed.

O’ROURKE, Acting P. J.

WE CONCUR:

IRION, J.

DATO, J.