Filed 3/6/23 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.

LY VAN NGUYEN,

 Defendant and Appellant.

 G061749

 (Super. Ct. No. 93WF0981)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Cheri T. 

Pham, Judge. Affirmed.

Richard Jay Moller, under appointment by the Court of Appeal, for 

Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *
2

This is another of the burgeoning Wende filings occasioned by recent 

legislative changes that are, not unsurprisingly, confusing to people who have not 

received a legal education. Appellant was convicted in 1993 of murder, robbery, and 

burglary. The jury also found enhancement allegations including a prior serious felony 

were true. Appellant was sentenced to life without possibility of parole plus an additional 

five years for the prison prior. Sentence was stayed on the robbery and burglary counts. 

The convictions were affirmed on appeal.

In 2022, appellant filed this action, seeking relief pursuant to newly-enacted 

Penal Code section 1170.95.1Section 1170.95 is the procedural mechanism for 

implementing legislative changes in California law which narrow the scope of vicarious 

liability for murder in two ways. First, the Legislature eliminated the natural and 

probable consequences theory for that crime by providing that “[m]alice shall not be 

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

(a)(3).) Second, it reined in the felony murder rule so that it can only be applied to 

nonkillers if they aided and abetted the killer in committing first degree murder, or they 

were a major participant in the underlying felony and acted recklessly indifferent to 

human life. (§ 189, subd. (e).) 

To obtain relief under the new section, the defendant must show 1) he was 

prosecuted for murder under the felony murder rule or the natural and probable 

consequences doctrine, 2) he was ultimately convicted of first or second degree murder, 

and 3) and he would not be liable for murder today because of how the Legislature has

redefined that offense. (§ 1170.95, subd. (a).)

1

That statute has since been renumbered as Penal Code section 1172.6. (Stats. 2022, ch. 58, § 10.) 

Because that change was nonsubstantive and it occurred after briefing in this case was complete, we will cite to 

Penal Code section 1170.95 for ease of reference. All further statutory references are to the Penal Code. 
3

The trial court appointed counsel for appellant, heard appellant’s motion 

under this section and denied it. He appealed and we appointed counsel to represent him

on appeal. Counsel reviewed the record in the case and concluded there was no issue he 

could argue that had a reasonable chance of success. He did not argue against his client 

but requested – as the law provides – that we independently review the case and see if we

could find an issue that might be arguable. (People v. Wende (1979) 25 Cal.3d 436

(Wende).) Appellant was given the opportunity to write to us and tell us what issues he 

thought might be found in the record but did not respond.

It should be emphasized that a Wende review is not for arguments that 

would necessarily be successful, but merely arguments that could be made, arguments 

whose proposal would not violate ethical prohibitions about frivolous appeals. Our 

review of the case was aimed at merely finding something an attorney could ethically 

argue in favor of reversal. We have made such a review and found nothing.

We have found nothing because appellant does not fall within the terms of 

the statute he is seeking to apply to his case. There was no application of the felony 

murder rule or the natural and probable consequences doctrine in his case. The jury was 

not instructed on those doctrines, and they were not argued by counsel. The jury found 

he had personally used a firearm in his crimes. He was the killer. As the court below 

concluded, “As the actual killer, petitioner would be guilty of murder under the current 

law and is ineligible for resentencing under Section 1172.6.” 

What’s more, appellant has already had one appeal. We affirmed his 

conviction in 1996. This is not his “first appeal of right.” Under the recently decided 

California Supreme Court case of People v. Delgadillo (2022) 14 Cal.5th 216, appellant 
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is not entitled to appointed counsel to raise this issue; Wende review is not an entitlement 

for him.

For both these reasons, the judgment is affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

MOORE, J.

SANCHEZ, J.