Filed 3/ 6/ 23 P. v. Nguyen CA 4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.11 15.

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. G0 61749

(Super. Ct. No. 93W F 0981 )

O P I N I O N

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

Pham

, Judge. Affirmed.

Richard J ay M o ller , under appointment by the Court of Appeal, for

Defendant and Appellant.

No ap pearance 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 t he 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. 1 Section 1170.95 is the procedu ral mechanism for

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

liability for murder in two ways. First, the L egislature 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 committin g 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 th e new section, the defendant must show 1) he was

prosecuted for murder under th e 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 wa s 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 f ound 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 S ection 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 Supr eme Court case of People v. Delgadillo (2022) 14 Cal.5th 216, appellant4

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.