Filed 9/30/21 P. v. Nguyen CA4/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

GIANG THUY NGUYEN,

 Defendant and Appellant.

 G060096

 (Super. Ct. No. 09ZF0050)

 O P I N I O N

Appeal from a postjudgment order of the Superior Court of Orange County, 

Patrick Donahue, Judge. Affirmed.

Jill Kent, under appointment by the Court of Appeal, for Defendant and 

Appellant.

No Appearance for Plaintiff and Respondent. 
2

This is a Wende appeal from an order denying appellant’s petition for 

resentencing under Penal Code section 1170.95. (See People v. Wende (1979) 25 Cal.3d 

436 (Wende).)1 Having reviewed the record as required under Wende, we conclude there 

are no arguable issues to raise on appellant’s behalf. Accordingly, we affirm the trial 

court’s denial order. 

FACTUAL AND PROCEDURAL BACKGROUND

Appellant and his fellow gang members conspired to murder a member of 

their own gang because they feared he might implicate them in a home invasion robbery 

that had gone awry. Although appellant was not present when the victim was murdered 

execution-style on the side of the road, he helped orchestrate the hit and arranged for the 

perpetrator’s getaway in his girlfriend’s car. 

Following a jury trial, appellant was convicted of conspiracy to commit 

murder and first degree premeditated murder. (§§ 182, subd. (a), 187, subd. (a)(1), 189, 

subd. (a).) The jury also found true a gang enhancement allegation, as well as special 

circumstances allegations the murder was committed to avoid arrest and while lying in 

wait. (§§ 186.22, subd. (b), 190.2, subds. (a)(5), (15).) The trial court sentenced 

appellant to life in prison without parole for the murder, 25 years to life for the 

conspiracy and 10 years for the gang enhancement.

We affirmed the judgment in 2016. Two years later, following the passage 

of Senate Bill No. 1437 (SB 1437), appellant petitioned for resentencing under section 

1170.95. After appointing counsel for appellant and receiving opposition from the 

prosecution, the trial court denied appellant’s petition for failure to establish a prima facie 

case for relief. 

Appellant appealed, and we appointed counsel to represent him. Counsel 

filed a Wende brief which set forth the facts of the case. (Wende, supra, 25 Cal.3d 436.) 

1

All further statutory references are to the Penal Code.
3

Counsel did not argue against appellant but advised the court no issues were found to 

argue on his behalf. Appellant was given 30 days to file written argument on his own 

behalf, but he did not avail himself of that opportunity.

DISCUSSION

SB 1437 was enacted to ensure murder culpability is commensurate with 

the defendant’s own actions and mental state. (People v. Lewis (2021) 11 Cal.5th 952, 

971 (Lewis).) To that end, the law restricted the scope of the felony murder rule and 

eliminated the natural and probable consequences theory for the crime of murder. (Id. at 

p. 959.) These changes were designed to “‘ensure that murder liability is not imposed on 

a person who is not the actual killer, did not act with the intent to kill, or was not a major 

participant in the underlying felony who acted with reckless indifference to human life.’ 

[Citation.]” (Ibid.) 

Section 1170.95 is the procedural mechanism that allows convicted 

murderers to take advantage of these changes. To obtain resentencing relief under that 

section, the defendant must have been convicted of murder under the felony murder rule 

or the natural and probable consequences doctrine. (Lewis, supra, 11 Cal.5th at p. 959.) 

And, the circumstances of his murder must have been such that he could not be convicted 

of murder now, due to the changes wrought by SB 1437. (Id. at p. 960.) If the record of 

conviction negates either one of those requirements, the defendant is ineligible for 

resentencing, and the trial court may properly deny his petition for failure to establish a 

prima facie case for relief. (Id. at p. 971.) 

Our review of the record in this case reveals the prosecution did not utilize 

the felony murder rule or the natural and probable consequences theory in securing 

appellant’s murder conviction, nor was the jury instructed on those theories. This means 

appellant’s liability stemmed from his own actions. He was not convicted utilizing a now 

defunct theory of vicarious liability. 
4

Moreover, by finding appellant guilty of premeditated murder and 

conspiracy to commit murder, and by finding true the special circumstance allegation of 

lying in wait, the jury necessarily determined he personally harbored the intent to kill. 

Therefore, as the trial court ruled, he is outside the scope of section 1170.95. Because 

there is no arguable basis in the record to dispute that ruling, we must affirm. 

DISPOSITION

The trial court’s order denying appellant’s petition for resentencing is 

affirmed. 

BEDSWORTH, J.

WE CONCUR:

O’LEARY, P. J.

FYBEL, J.