Filed 4/30/21 P. v. Lee 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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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.

MINH NGHIA LEE,

 Defendant and Appellant.

 G058779

 (Super. Ct. No. 00NF1347)

 O P I N I O N

Appeal from an order of the Superior Court of Orange County, Kimberly 

Menninger, Judge. Affirmed.

Nancy J. King, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Xavier Becerra, Attorney General, Daniel Rogers and Kristen Kinnaird 

Chenelia, Deputy Attorney General, for Plaintiff and Respondent.
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In 2005, a jury convicted Minh Nghia Lee and a codefendant of murder 

(Pen. Code, § 187, subd. (a)),1conspiracy to commit murder (§ 182, subd. (a)(1)), and 

attempted murder (§§ 664, subd. (a) & 187, subd. (a)). The jury determined the 

defendants intentionally killed the victim by means of lying in wait (§ 190.2, subd.

(a)(15)) and a principal was armed with a firearm (§ 12022, subd. (a)(1)). The trial court 

sentenced Lee to life without the possibility of parole. We affirmed the judgment. 

(People v. Lee (Oct. 9, 2008, G036136) [nonpub. opn.] (Lee I).)

In November 2019, Lee filed a petition for resentencing pursuant to section 

1170.95. A month later, the trial court denied the petition because it failed to set forth a 

prima facie case for relief. Lee argues the trial court erred by summarily denying his 

petition without following the statutory procedures of appointing counsel, issuing an 

order to show cause (OSC), and holding a hearing. We disagree and affirm the order. 

FACTS

Because this appeal concerns issues of law, we need not review the facts in 

any detail. A full recitation of the facts can be found in Lee I. Suffice it to say, Lee was 

involved in a criminal enterprise and lived with his partners in crime in a residence they 

referred to as the “Penthouse.” After the group disbanded, Lee and three cohorts lured 

two of their former partners to a parking lot. After the victims arrived, Lee’s cohort (and 

codefendant at trial) shot the two men, killing one. The injured survivor ran and hid 

behind a telephone pole. Lee drove his vehicle towards him, but stopped just short of 

hitting the pole. (Lee I, supra, G036136.)

In 2005, a jury found Lee guilty of murder by means of lying in wait, 

conspiracy to commit murder, and willful, deliberate and premediated attempted murder. 

The jury also determined Lee was armed with a firearm as to all counts. 

1

All further statutory references are to the Penal Code, unless otherwise 

indicated. 
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In 2019, Lee filed a petition to be resentenced, alleging he was convicted of 

felony murder or murder based on natural and probable consequences theory of vicarious 

liability. 

DISCUSSION

I. Applicable Legal Princples

“Senate Bill 1437 ‘amend[ed] the felony murder rule and the natural and 

probable consequences doctrine, as it relates to murder, 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.’ (Stats. 2018, ch. 1015, § l, subd. (f).) [¶] To further that purpose, Senate 

Bill 1437 added three separate provisions to the Penal Code. First, to amend the felonymurder rule, Senate Bill 1437 added section 189, subdivision (e): ‘A participant in the 

perpetration or attempted perpetration of [qualifying felonies] in which a death occurs is 

liable for murder only if one of the following is proven: [¶] (1) The person was the actual 

killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, 

abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer 

in the commission of murder in the first degree. [¶] (3) The person was a major 

participant in the underlying felony and acted with reckless indifference to human life, as 

described in subdivision (d) of [s]ection 190.2.’” (People v. Gentile (2020) 10 Cal.5th 

830, 842 (Gentile).) 

“Second, to amend the natural and probable consequences doctrine, Senate 

Bill 1437 added section 188, subdivision (a)(3) (section 188(a)(3)): ‘Except [for felonymurder liability] as stated in subdivision (e) of [s]ection 189, in order to be convicted of 

murder, a principal in a crime shall act with malice aforethought. Malice shall not be 

imputed to a person based solely on his or her participation in a crime.’” (Gentile, supra, 

10 Cal.5th at pp. 842-843.) 
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“Third, Senate Bill 1437 added section 1170.95 to provide a procedure for 

those convicted of felony murder or murder under the natural and probable consequences 

doctrine to seek relief under the two ameliorative provisions above.” (Gentile, supra, 

10 Cal.5th at p. 843.) 

Under subdivision (a) of section 1170.95, a person convicted of first or 

second degree murder may petition a trial court for resentencing “when all of the 

following conditions apply: [¶] (1) A complaint, information, or indictment was filed 

against the petitioner that allowed the prosecution to proceed under a theory of felony 

murder or murder under the natural and probable consequences doctrine. [¶] (2) The 

petitioner was convicted of first degree or second degree murder following a trial or 

accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first 

degree or second degree murder. [¶] (3) The petitioner could not be convicted of first or 

second degree murder because of changes to [s]ection 188 or 189 made effective January 

1, 2019.”

Procedurally, section 1170.95 subdivision (b)(1)(A) through (C) explains 

what defendants must include in the petition. Subdivision (c) provides the following: 

“The court shall review the petition and determine if the petitioner has made a prima 

facie showing that the petitioner falls within the provisions of this section. If the 

petitioner has requested counsel, the court shall appoint counsel to represent the 

petitioner. The prosecutor shall file and serve a response . . . and the petitioner may file 

and serve a reply . . . . If the petitioner makes a prima facie showing that he or she is 

entitled to relief, the court shall issue an order to show cause.” Next, the court must hold 

a hearing to determine the merits of the petition. “At the hearing to determine whether 

the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, 

beyond a reasonable doubt, that the petitioner is ineligible for resentencing . . . .”

(§ 1170.95, subd. (d)(3).)
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II. Analysis

Lee argues the trial court erred by summarily denying his petition without 

appointing counsel or issuing an OSC. He recognizes several appellate courts have held 

that section 1170.95 authorizes the trial court to consider a petitioner’s record of 

conviction, including an opinion affirming the conviction, when deciding whether the 

petitioner has made a prima facie showing of entitlement to relief warranting the issuance 

of an OSC. (See, e.g., People v. Verdugo (2020) 44 Cal.App.5th 320, 329, review 

granted Mar. 18, 2020, S260493 [statute requires two prima facie reviews and the court 

makes first one before briefing and may review record of conviction to determine prima 

facie showing of entitlement to relief warranting OSC]; People v. Lewis (2020) 

43 Cal.App.5th 1128, 1140, review granted Mar. 18, 2020, S260598 [same].) Defendant 

asserts there is a better-reasoned case reaching a different conclusion. (People v. Cooper

(2020) 54 Cal.App.5th 106, 119, 123, review granted Nov. 10, 2020, S264684 [court 

need not “perform two reviews of a facially sufficient petition before issuing an [OSC]” 

and must hold hearing “upon the filing of a facially sufficient petition for relief that 

requests counsel be appointed”].) The two lines of authority are under review by the 

California Supreme Court, which will have the final say in the matter. 

We need not weigh in on the issue because even if the trial court errs by

failing to appoint counsel, any such error is harmless if the defendant is not entitled to 

relief as a matter of law. (People v. Daniel (2020) 57 Cal.App.5th 666, 673.) Such is the 

case here. It is undisputed Lee was convicted of conspiracy to commit murder. 

Conspiracy is a specific intent crime, and conspiracy to commit murder requires that a 

conspirator personally have the specific intent to kill. (People v. Swain (1996) 12 Cal.4th 

593, 602 (Swain).) Conspiracy to murder cannot be based on an implied malice theory. 

(Id. at p. 607.) 

Thus, even if we assume Lee was not the actual killer, his convictions for 

both conspiracy to commit murder and murder made it abundantly clear he acted with the 
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intent to kill. (See Swain, supra, 12 Cal.4th at p. 607 [“conspiracy to commit murder 

requires a finding of intent to kill”].) There are no circumstances in which convictions 

for murder and conspiracy to commit murder would render Lee eligible for relief under 

section 1170.95. 

DISPOSITION

We affirm the order.

O’LEARY, P. J.

WE CONCUR:

MOORE, J.

THOMPSON, J.