Filed 8/25/20
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                         DIVISION ONE


THE PEOPLE,                         B298575

       Plaintiff and Respondent,    (Los Angeles County
                                    Super. Ct. No. TA083608)
       v.

ANHTU TRUNG NGUYEN,

       Defendant and Appellant.


      APPEAL from an order of the Superior Court of Los
Angeles County, John J. Lonergan, Judge. Affirmed.
      Steven Schorr, under appointment by the Court of Appeal,
for Defendant and Appellant.
      Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Michael C. Keller, Deputy
Attorneys General, for Plaintiff and Respondent.
              __________________________________
       Anhtu Trung Nguyen, who pleaded guilty to second degree
murder in 2006, appeals from an order denying his petition for
resentencing under Penal Code1 section 1170.95, a statute which
permits a person convicted of felony murder or murder under a
natural and probable consequences theory to petition the court to
have the murder conviction vacated and to be resentenced, if the
person could not be convicted of murder today in light of
amendments to sections 188 and 189. Senate Bill No. 1437,
which added section 1170.95 and amended sections 188 and 189,
was enacted “to amend 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, § 1(f),
p. 6674; §§ 188, subd. (a)(3) & 189, subd. (e).)
       Nguyen contends he made a prima facie showing that he is
entitled to relief under section 1170.95, and therefore the trial
court erred in summarily denying his petition for resentencing
without issuing an order to show cause and holding an
evidentiary hearing. Nguyen based his prima facie showing on
his form petition, the transcripts from the preliminary and plea
hearings on the murder charge, and briefing filed by counsel
whom the trial court appointed to represent Nguyen in
connection with the petition. As explained below, we conclude
Nguyen is not entitled to an order to show cause and an
evidentiary hearing because he did not make the requisite prima
facie showing that he was convicted of felony murder or murder


      1   Further statutory references are to the Penal Code.




                                  2
under a natural and probable consequences theory. Instead he
bases his petition on his contention the prosecution presented
insufficient evidence at the preliminary hearing demonstrating
he aided and abetted the charged offenses with murderous intent.
A petition under section 1170.95 is not a vehicle for such a
collateral attack on a guilty plea. Accordingly, we affirm the
order denying his petition.
                         BACKGROUND
       Nguyen and his codefendant Daniel Kevin Barry were
charged with and pleaded guilty to the murder of Charles Kim (§
187, subd. (a)) and the attempted murder of Daniel Roe (§§ 664 &
187). Nguyen and Barry also admitted a firearm enhancement
allegation in connection with each offense: Barry admitted he
personally and intentionally discharged a firearm within the
meaning of section 12022.53, subdivision (c), and Nguyen
admitted a principal used a firearm within the meaning of section
12022.2 It is undisputed on appeal that only codefendant Barry
fired a gun.
I.     Preliminary Hearing
       Anthony Baertschi, a man who drove Nguyen and Barry to
the crime scene, testified at the June 15, 2006 preliminary
hearing.3 According to Anthony’s testimony, about a week to a


      2 Neither the information nor the abstract of judgment is
included in the record on appeal. The charges, convictions, and
sentence are evident based on the transcripts from the
preliminary and plea hearings, which are part of the record on
appeal.
      3Because both Anthony Baertschi and his wife Karla
Baertschi testified at the preliminary hearing, we refer to them
as “Anthony” and “Karla” (with no surname) to avoid confusion.




                                3
week and a half before the shooting, Nguyen told Anthony, in
codefendant Barry’s presence, that Nguyen was “mad” about
some “dope that he got.” Nguyen did not tell Anthony at that
time the identity of the person he was mad at, but he did tell
Anthony that he (Nguyen) had “to get him back.” Nguyen did not
explain at that point how he planned to get the person back.
Anthony described Nguyen as “angry and furious” during that
conversation.
       Anthony further testified that on November 26, 2005, the
date of the shooting, he met with Nguyen and Barry at Barry’s
house. Nguyen asked Anthony to drive them “somewhere” to
“pay someone that he [Nguyen] owed.” Anthony had seen
Nguyen with money when Anthony arrived at Barry’s house.
Anthony agreed to drive Nguyen and Barry in his pickup truck.
While Anthony was driving, Nguyen was talking to someone on a
cell phone, “trying to find a location” to meet. When they arrived
at the location, Nguyen instructed Anthony “to park and wait.”
Barry exited the truck and Nguyen stayed inside the truck with
Anthony. Before Barry exited the truck, Anthony observed that
Barry had money on him.
       Daniel Roe, the attempted murder victim, also testified at
the preliminary hearing. Roe testified that on November 26,
2005, the date of the shooting, he drove his cousin, Charles Kim,
to a meeting. As Roe drove, Kim was talking on a cell phone and
directing Roe to a location. Roe heard Kim say Nguyen’s and
Barry’s names as Kim talked on the phone. When Roe drove up
to the location (a parking lot), he saw Barry, who was dressed in
all black, standing on a corner.4 Roe was in the driver seat and

      4   Roe had met Barry before and knew Barry as his cousin’s
friend.




                                  4
Kim was in the front passenger seat. Barry climbed into the back
seat of Roe’s vehicle. “A couple seconds later,” Roe “heard a click
in back of [his] head.” Roe turned around and saw that Barry
was holding a gun. Roe asked Barry “what he was doing,” and
Barry responded that “he was just messing around.” Kim turned
around and told Barry to put the gun away. “[A] couple of
seconds later,” Roe “heard a boom.” Kim had been shot. Kim’s
body fell toward Roe. Barry exited the vehicle and then fired
another shot, aimed at Kim, whose body was “sort of in line” with
Roe’s body. Roe drove out of the parking lot and approached a
police patrol car for assistance. Kim’s gunshot wound was fatal.
Roe was not struck by gunfire.
       Returning to Anthony’s preliminary hearing testimony,
Anthony stated that “awhile” after Barry exited the pickup truck,
Anthony heard two gunshots. Barry ran back to the pickup truck
and climbed inside. Both Barry and Nguyen instructed Anthony
to drive away. Anthony drove to his house. He described the
three of them as “jittery and nervous and just out of it” when they
arrived at his house. Nguyen “said that it was done.” Barry
stated that he had shot someone twice and then the gun jammed.
Both Nguyen and Barry told Anthony that Barry had used a “.45
Ruger” in the shooting, but Anthony never saw a gun. Nguyen
asked Anthony if he knew who Barry had shot, and Anthony said
he did not. Nguyen told Anthony the victim was Charles Kim,
someone Anthony had known for a couple years.
       Anthony further testified that later the same night, he
drove Nguyen to a friend’s home. Barry spent the night at
Anthony’s home. The next morning after the shooting, Barry told
Anthony that what happened the night before “was a favor” for
Nguyen and that, in exchange for doing the favor, he (Barry) was




                                5
going to receive $2,000 in cash. Later, Nguyen told Anthony that
he (Nguyen) was going to give Barry $700, so Barry “could live off
of it.” Nguyen did not explain to Anthony why he was going to
give Barry the money. Sometime after the shooting, Nguyen told
Anthony that he had been referring to Charles Kim when he told
Anthony a week to a week and a half before the shooting that he
wanted to get someone back because of a bad dope deal.
        As mentioned above, Karla Baertschi, Anthony Baertschi’s
wife, also testified at the preliminary hearing. She was at her
home when Anthony, Nguyen, and Barry arrived after the
shooting. When she opened the front door for them, she noticed
that Barry was “jittery”; Nguyen was acting “normal”; and
Anthony appeared “shocked.” She heard Barry ask Anthony, “Do
you know who it was?” Anthony said he did not, and Nguyen told
him, “It was Kim.” Then there was silence. According to Karla’s
testimony, “Everybody was kind of still in kind of shock.” (Sic.)
At some point that evening, Karla heard Barry say, “I fucked up.
I fucked up.” She also heard Barry say that he tried to “get [the
driver] too,” but he “couldn’t finish” because the gun “jammed.”
Karla heard Nguyen say, “We got someone back. We did
something bad.” At some point, Anthony and Karla talked with
Nguyen about an alibi for the day of the shooting. Nguyen told
them everyone should have “the same story.”
        At the conclusion of the prosecution’s presentation of
evidence, Nguyen’s counsel argued Nguyen should not be held on
the murder charge, asserting: “There is no evidence that he was
a look-out or a get away [sic] or an aider or abettor.”5 In

      5At the preliminary hearing, Nguyen’s counsel did not
suggest that Nguyen should be held to answer on a charge other
than murder and attempted murder. As discussed below,




                                6
response, the prosecutor summarized evidence in support of the
prosecution’s theory that Nguyen “clearly aided and abetted in
this murder whether it was merely by encouraging Mr. Barry to
commit the murder, paying Mr. Barry to commit the murder,
coordinating with the victim in an effort to establish the meeting
location.” Other than aiding and abetting, the prosecution
presented no other theory of Nguyen’s liability for the charged
offenses. There was no mention of felony murder or the natural
and probable consequences doctrine.
       The trial court held Nguyen and Barry to answer for the
murder of Charles Kim (§ 187, subd. (a)) and the attempted
murder of Daniel Roe (§§ 664 & 187), with firearm enhancement
allegations under section 12022.53.6 Nguyen and Barry were not
charged with any offense other than murder and attempted
murder.
II.    Guilty Plea and Sentencing
       On October 25, 2006, trial was set to commence, and the
parties announced they were ready. The prosecutor informed the
trial court that the prosecution wanted to introduce “statements
made by both defendants together in the presence of others.” The
prosecutor summarized the statements for the court, based on the

Nguyen now argues the evidence presented at the preliminary
hearing could have supported a charge of battery, witness
intimidation, or brandishing a weapon.
      6 The charges against Nguyen and Barry also included a
gang enhancement allegation under section 186.22, and the
prosecution presented evidence at the preliminary hearing in
support of that allegation. On October 25, 2006, the date trial
was set to commence, the prosecution informed the trial court
that it was no longer proceeding on the gang enhancement
allegation.




                                7
police reports regarding the shooting. The gist of the statements,
as pertinent to this appeal, is that both Nguyen and Barry told
others that Nguyen instructed Barry to kill Kim, and Nguyen
paid Barry for doing so. After hearing argument from the parties
regarding admissibility of the statements, the court took its lunch
recess, without ruling on the matter.
       After the lunch recess, the prosecutor informed the trial
court that Nguyen and Barry wanted to change their pleas, and
the plea hearing commenced. After waiving his constitutional
rights, Nguyen pleaded guilty to second degree murder (count 1)
and attempted murder (count 2), and he admitted that in the
commission of the murder and attempted murder a principal
used a firearm within the meaning of section 12022. Nguyen’s
counsel stipulated “that the factual basis [for the guilty pleas] is
based upon the preliminary hearing and the police reports.” The
trial court sentenced Nguyen to state prison for 18 years, eight
months to life: for the murder, 15 years to life, plus a consecutive
term of one year for the firearm enhancement; and for the
attempted murder, two years, four months (one-third the middle
term), plus a consecutive term of four months for the firearm
enhancement.7




      7  Barry pleaded guilty to premeditated and deliberate first
degree murder (count 1) and attempted murder (count 2), and he
admitted that in the commission of the murder and attempted
murder he personally and intentionally discharged a firearm
within the meaning of 12022.53, subdivision (c). The trial court
sentenced Barry to state prison for 45 years to life: 25 years to
life for the murder, plus a consecutive term of 20 years for the
firearm enhancement.




                                 8
III.   Petition for Resentencing Under Section 1170.95
       On February 4, 2019, Nguyen, representing himself, filed a
form petition for resentencing under section 1170.95, checking a
box stating that he pleaded guilty to second degree murder in lieu
of going to trial because he believed he could have been convicted
of second degree murder at trial pursuant to the felony murder
rule or the natural and probable consequences doctrine. He also
checked a box, requesting the trial court appoint counsel to
represent him. On February 11, 2019, after reviewing the
petition, the trial court referred the matter for appointment of
counsel for Nguyen.
       The People filed a response to the petition, asserting
Nguyen cannot make a prima facie showing he is entitled to relief
under section 1170.95 because (1) he was not convicted under a
felony murder or natural and probable consequences theory of
liability, and (2) the record of conviction demonstrates Nguyen
acted with malice aforethought as an aider and abettor. In
support of this assertion, the People argued: “Sufficient evidence
presented at the preliminary hearing demonstrated that Nguyen
was an aider and abettor to the murder of Kim and the attempted
murder of Roe. At no point did the People argue that the natural
and probable consequences applied to this case, and there is
nothing in the record to support that the court considered that
theory in holding Defendant Nguyen to answer.” The People
explained that the “underlying theory for the killing was that it
was a murder for hire,” with Nguyen agreeing to pay Barry for
committing the murder.
       Nguyen’s appointed counsel filed a reply to the People’s
response to the petition, asserting Nguyen is entitled to relief
under section 1170.95 because the preliminary hearing testimony




                                9
fails to establish the plan between Nguyen and Barry was the
murder of Kim, and there is insufficient evidence Nguyen acted
with express or implied malice. As stated in the reply, Nguyen
argued: “[T]he actual testimony as seen in the preliminary
hearing transcript reveals only that something was planned by
defendants Nguyen and Barry to address with victim Kim the
perceived problem with a sale of drugs by Kim to Nguyen. If the
evidence failed to establish that murder was the plan all along,
then malice cannot be imputed to Nguyen as an aider and abettor
to murder, and his petition for resentencing must be granted.”
Nguyen further asserted in the reply that the “factual record
more readily supports a second degree felony murder or natural
and probable consequences theory, but those have both been
eliminated by statute” after the enactment of Senate Bill No.
1437. In support of this assertion, Nguyen argued: “Previously,
a fact pattern like Nguyen’s could also possibly be prosecuted on
a second degree felony murder theory, the underlying felony
being witness intimidation, for example. That is a guess, since
the record is devoid of any description of the contemplated act.
The People could also have pursued a natural and probable
consequences theory, the target crime being battery, or
intimidation, or even brandishing a weapon as a scare tactic.”
       The People filed a sur-reply to Nguyen’s reply, attaching
the police reports setting forth the witness statements the
prosecution sought to introduce at trial (through witness
testimony) prior to the guilty pleas, as described above. The
People argued “the underlying police reports provide additional
evidence to support the People’s position that Defendant Nguyen
directly aided and abetted the murder of Victim Kim.” In
response, Nguyen’s appointed counsel filed a motion to exclude




                               10
the police reports and witness statements from the proceedings
on the petition on the grounds they “are not part of the record of
conviction, they are inadmissible hearsay, and they are not
subject to mandatory or discretionary judicial notice.”8
       On May 14, 2019, the trial court held a hearing on
Nguyen’s petition for resentencing. Nguyen’s appointed counsel
argued Nguyen is eligible for relief under section 1170.95 because
the preliminary hearing transcript does not establish Nguyen
“knew he was going to be aiding and abetting a murder,” and
therefore “the only other theory on which he could have been
prosecuted is a natural and probable consequences theory which
has been expressly limited by the bill [Senate Bill No. 1437] and
the statute [section 188].” The prosecutor argued Nguyen did not
make the requisite prima facie showing under section 1170.95
because the preliminary hearing transcript shows that Nguyen
was a direct aider and abettor, and therefore “a valid theory of
murder still applies” to Nguyen’s conviction. The trial court
denied Nguyen’s petition from the bench. In response to a
question by Nguyen’s counsel, the court indicated it did not
consider the police reports in denying the petition.
       Also, on May 14, 2019, the trial court issued a minute order
setting forth its reasons for “summarily” denying Nguyen’s
petition for resentencing without issuing an order to show cause
or holding an evidentiary hearing. Although the parties did not
raise the issue, the court concluded Senate Bill No. 1437, which
added section 1170.95 and amended sections 188 and 189,

      8  In the motion, Nguyen listed the reporter’s transcripts
from the preliminary and plea hearings as part of the record of
conviction that the court may consider in determining eligibility
for relief under section 1170.95.




                                11
violates the California Constitution because it (1) “purports to
vacate final judgments in criminal cases”; (2) “violates the
separation of powers doctrine”; and (3) “impermissibly amended
two California initiatives, Proposition 7 and Proposition 115.”9
The court also concluded Nguyen is not entitled to relief under
section 1170.95 as a matter of law because the preliminary
hearing transcript demonstrates Nguyen aided and abetted the
charged offenses, and the prosecution did not argue a natural and
probable consequences theory of liability.10
                           DISCUSSION
       Nguyen contends he made a prima facie showing that he is
entitled to relief under section 1170.95 based on the form
petition, the transcripts from the preliminary and plea hearings,
and the briefing his appointed counsel filed, and therefore the
trial court erred in summarily denying his petition for

      9 Nguyen argues, and the Attorney General agrees, Senate
Bill No. 1437 is constitutional. We need not address the issue
because we affirm the order denying the petition for resentencing
on other grounds, as set forth below. We note that appellate
courts have rejected challenges to the constitutionality of Senate
Bill No. 1437 on the grounds the trial court cited in its order (as
set forth above). (See, e.g., People v. Lamoureaux (2019) 42
Cal.App.5th 241; People v. Johns (2020) 50 Cal.App.5th 46.)
      10 The trial court also concluded Nguyen is not entitled to
relief under section 1170.95 as a matter of law because he “was a
major participant in the crime and acted with reckless
indifference,” citing section 189, subdivision (e)(3). It is not clear
what “crime” the trial court is referring to here, as section 189,
subdivision (e)(3) relates to the underlying felony in a felony
murder, a theory of liability the prosecution did not advance. No
underlying felony was charged or posited by the parties prior to
the guilty pleas.




                                  12
resentencing without issuing an order to show cause and holding
an evidentiary hearing. We disagree with his contention.
I.      Senate Bill No. 1437 Added Section 1170.95 and
        Amended Sections 188 and 189
        Under section 1170.95, subdivision (a), “A person convicted
of felony murder or murder under a natural and probable
consequences theory may file a petition with the court that
sentenced the petitioner to have the petitioner’s murder
conviction vacated and to be resentenced on any remaining
counts 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 Section 188 or 189 made effective January
1, 2019.”
        In amending section 188, Senate Bill No. 1437 added the
following provision: “Except as stated in subdivision (e) of
Section 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.” (§ 188, subd. (a)(3); Stats. 2018, ch. 1015, § 2.) To prove
liability for murder as a direct aider and abettor—a theory that is
still viable after Senate Bill No. 1437’s amendment of section
188—the prosecution must show the defendant acted with
knowledge of the perpetrator’s criminal purpose and with the




                                13
intent of committing, encouraging, or facilitating commission of
the offense. (People v. McCoy (2001) 25 Cal.4th 1111, 1117-1118.)
       Senate Bill No. 1437 also added subdivision (e) to section
189 [the statute that codified the felony murder rule], providing:
“A participant in the perpetration or attempted perpetration of a
felony listed in subdivision (a)[11] 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 Section 190.2.” (§ 189, subd. (e);
Stats. 2018, ch. 1015, § 3.)
       A trial court that receives a petition for resentencing under
section 1170.95 must follow these steps, in pertinent part: “The
court shall review the petition and determine if the petitioner has


      11 Subdivision (a) of section 189 provides: “All murder that
is perpetrated by means of a destructive device or explosive, a
weapon of mass destruction, knowing use of ammunition
designed primarily to penetrate metal or armor, poison, lying in
wait, torture, or by any other kind of willful, deliberate, and
premeditated killing, or that is committed in the perpetration of,
or attempt to perpetrate, arson, rape, carjacking, robbery,
burglary, mayhem, kidnapping, train wrecking, or any act
punishable under Section 206, 286, 287, 288, or 289, or former
Section 288a, or murder that is perpetrated by means of
discharging a firearm from a motor vehicle, intentionally at
another person outside of the vehicle with the intent to inflict
death, is murder of the first degree.”




                                 14
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 within 60 days of
service of the petition and the petitioner may file and serve a
reply within 30 days after the prosecutor response is served.
These deadlines shall be extended for good cause. 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.” (§
1170.95, subd. (c).)12 Here, the trial court appointed counsel for
Nguyen, and the People and Nguyen’s appointed counsel filed
and served briefing in connection with Nguyen’s petition.
Therefore, the question on appeal concerns the last sentence of
section 1170.95, subdivision (c)—whether Nguyen made a prima
facie showing that he is entitled to relief.
       “The nature and scope of section 1170.95, subdivision (c)’s
second prima facie review, made following a round of briefing by
the prosecutor and counsel for petitioner, is equivalent to the
familiar decisionmaking process before issuance of an order to
show cause in habeas corpus proceedings, which typically follows
an informal response to the habeas corpus petition by the
Attorney General and a reply to the informal response by the
petitioner. (See Cal. Rules of Court, rule 4.551(b).) Indeed, the
standard for subdivision (c)’s second review—‘a prima facie


      12 We do not set forth in this opinion the statutory
requirements regarding the filing, service, and contents of a
petition for resentencing set forth in subdivision (b) of section
1170.95 because the trial court did not deny the petition based on
a failure to comply with this subdivision, and the People do not
argue Nguyen failed to comply with these requirements.




                                15
showing that he or she is entitled to relief’—is identical to the
standard for issuance of an order to show cause in a habeas
proceeding, as set forth in rule 4.551(c)(1): ‘The court must issue
an order to show cause if the petitioner has made a prima facie
showing that he or she is entitled to relief. In doing so, 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.’ ” (People v.
Verdugo (2020) 44 Cal.App.5th 320, 328, review granted Mar. 18,
2020, S260493.)
        In determining whether a petitioner has made a prima
facie showing that he or she is entitled to relief, the “trial court
should not evaluate the credibility of the petition’s assertions, but
it need not credit factual assertions that are untrue as a matter
of law—for example, a petitioner’s assertion that a particular
conviction is eligible for relief where the crime is not listed in
subdivision (a) of section 1170.95 as eligible for resentencing.
Just as in habeas corpus, if the record ‘contain[s] facts refuting
the allegations made in the petition . . . the court is justified in
making a credibility determination adverse to the petitioner.’
[Citation.] However, this authority to make determinations
without conducting an evidentiary hearing pursuant to section
1170.95, subd. (d) is limited to readily ascertainable facts from
the record (such as the crime of conviction), rather than
factfinding involving the weighing of evidence or the exercise of
discretion . . . .” (People v. Drayton (2020) 47 Cal.App.5th 965,
980.)
        If a petitioner makes a prima facie showing that he or she
is entitled to relief, and the trial court issues an order to show




                                 16
cause, “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. 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.
The prosecutor and the petitioner may rely on the record of
conviction or offer new or additional evidence to meet their
respective burdens.” (§ 1170.95, subd. (d)(3).)
II.    Nguyen Did Not Make a Prima Facie Showing That
       He Is Entitled to Relief
       Based on the transcripts from the preliminary and plea
hearings—which Nguyen and the Attorney General agree courts
may consider in determining whether a petitioner made a prima
facie showing he or she is entitled to relief—we conclude Nguyen
is not entitled to relief as a matter of law, and the trial court did
not err in denying the petition without issuing an order to show
cause and holding an evidentiary hearing.
       A petition for resentencing under section 1170.95 is only
available to a person convicted of felony murder or murder under
a natural and probable consequences theory. (§ 1170.95, subd.
(a).) The transcripts from the preliminary and plea hearings
demonstrate Nguyen was convicted of second degree murder as a
direct aider and abettor. This was the only theory put forth by
the prosecutor, not only at the June 15, 2006 preliminary
hearing, but also on October 25, 2006, the date trial was set to
commence, when the prosecutor sought to introduce at trial
statements that both Nguyen and Barry told others that Nguyen
instructed Barry to kill Kim, and Nguyen paid Barry for doing so.




                                 17
       If Nguyen had gone to trial, and the parties had presented
no argument and the trial court had given no instructions
regarding felony murder or murder under a natural and probable
consequences theory, there is no question Nguyen would be
unable to make a prima facie showing that he is entitled to relief
under section 1170.95. (See People v. Lewis (2020) 43
Cal.App.5th 1128, 1138, review granted Mar. 18, 2020, S260598
[“ ‘For example, if the petition contains sufficient summary
allegations that would entitle the petitioner to relief, but a review
of the court file shows the petitioner was convicted of murder
without instruction or argument based on the felony murder rule
or [the natural and probable consequences doctrine], . . . it would
be entirely appropriate to summarily deny the petition based on
petitioner’s failure to establish even a prima facie basis of
eligibility for resentencing’ ”].) Nguyen’s murder conviction after
a guilty plea should not be accorded less weight and finality than
a murder conviction after a jury trial, as the transcripts from the
preliminary and plea hearings demonstrate Nguyen was
convicted of second degree murder as a direct aider and abettor.
       There is no mention in the record, prior to the guilty pleas,
of any underlying felony that could be used as the basis of felony
murder liability, or any target offense that could be used as the
basis of liability under the natural and probable consequences
doctrine. This is not a case, for example, where the petitioner
pleaded guilty to a felony murder based on a robbery, and an
evidentiary hearing under section 1170.95, subdivision (d) was
necessary to determine whether the petitioner could be convicted
of felony murder in light of the changes to section 189,
subdivision (e)(3), as a major participant in the underlying felony
who acted with reckless indifference to human life. (See People v.




                                 18
Drayton, supra, 47 Cal.App.5th at pp. 969-970, 981-983.) At no
time prior to the guilty pleas did Nguyen’s counsel posit that
Nguyen could be found guilty of some less serious crime than
murder and attempted murder. And it would be speculative for
his counsel or this court to suggest such a crime at this stage.
      Nguyen’s briefing indicates he is using this petition as a
vehicle for collaterally attacking the judgment, more than a
decade after it was final, by challenging the sufficiency of the
evidence that he aided and abetted the murder. In his opening
appellate brief, he included no discussion of how he could have
been convicted of felony murder or murder under a natural and
probable consequences doctrine. He merely stated that the
evidence presented at the preliminary hearing does not
“preclude[] the prospect that he pleaded guilty because he
believed he could have been convicted under a felony murder or
natural and probable consequences theory that no longer remains
viable after the enactment of S.B. 1437.” He identified no
underlying felony or target offense which would have made either
of these theories viable in 2006, and not today. Relief under
section 1170.95 is only available when certain conditions
enumerated in the statute apply, including that the “petitioner
could not be convicted of first degree or second degree murder
because of changes to Section 188 or 189 made effective January
1, 2019.” (§ 1170.95, subd. (a)(3), emphasis added.) While
Nguyen argues he could not be convicted of murder because there
was insufficient evidence presented at the preliminary hearing
that he aided and abetted the murder, his arguments in his
opening brief do not relate to the changes to section 188 or 189
enacted under Senate Bill No. 1437.




                              19
      In his reply appellate brief, Nguyen directed us to an
excerpt from the reply brief filed by his appointed counsel below,
which we set forth above and quote again here: “Previously, a
fact pattern like Nguyen’s could also possibly be prosecuted on a
second degree felony murder theory, the underlying felony being
witness intimidation, for example. That is a guess, since the
record is devoid of any description of the contemplated act. The
People could also have pursued a natural and probable
consequences theory, the target crime being battery, or
intimidation, or even brandishing a weapon as a scare tactic.” He
further asserted in his reply appellate brief that one of the ways
the prosecutor argued at the preliminary hearing that he aided
and abetted the murder—coordinating with the victim to
establish the meeting location—“could have exposed him to
criminal liability” under a natural and probable consequences
theory.
      Nguyen’s counsel’s conjecture and speculation about other
theories that could have been pursued at trial do not alter our
conclusion, based on the transcripts from the preliminary and
plea hearings, that Nguyen was convicted of second degree
murder as a direct aider and abettor. The record of the
conviction demonstrates that he pleaded guilty under this theory.
His challenge to the sufficiency of the evidence that he aided and
abetted the murder does not establish a prima facie showing that
he could not be convicted of second degree murder based on
changes to section 188 or 189, as required under section 1170.95.
He is not entitled to relief as a matter of law, and the trial court
did not err in denying his petition without issuing an order to
show cause and holding an evidentiary hearing.




                                20
                        DISPOSITION
      The order denying Nguyen’s petition for resentencing is
affirmed.
      CERTIFIED FOR PUBLICATION




                                         CHANEY, J.

We concur:




             BENDIX, Acting P. J.




             SINANIAN, J.*




     *Judge of the Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.




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