People v. Ho CA4/1 ( 2014 )

Filed 6/5/14 P. v. Ho CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D064618
Plaintiff and Respondent,
v. (Super. Ct. No. SCD247403)
VU LINH HO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Eugenia A.
Eyherabide, Judge. Affirmed.
Patricia Mary Ihara, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
I.
INTRODUCTION
Vu Linh Ho pled guilty to one count of unlawfully taking and driving a vehicle
(Veh. Code, § 10851) and admitted having suffered a prior strike allegation. In
conformance with the stipulated plea agreement, the trial court sentenced Ho to a term of
four years in state prison.
Appointed appellate counsel filed a brief presenting no argument for reversal, but
inviting this court to review the record for error in accordance with People v. Wende
(1979) 25 Cal. 3d 436 (Wende). After having independently reviewed the entire record
for error as required by Anders v. California (1967) 386 U.S. 738 (Anders) and Wende,
we affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2013, the People filed a complaint against Ho alleging one count of
unlawfully taking and driving a vehicle (Veh. Code, § 10851) and one count of
buying/concealing/withholding and/or aiding in concealing/selling/withholding a motor
vehicle, in violation of Penal Code1 section 496, subdivision (d). The People further
alleged that Ho had suffered six prior felony convictions (§ 1203, subd. (e)(4)), four
1 Further statutory references are to the Penal Code unless otherwise specified.
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prison priors (§§ 667.5, subd. (b), 668), and one strike prior (§§ 667, subd.(b)-(i), 668 &
1170.12).
The case was set for a jury trial. On the first day of trial, just prior to the
commencement of voir dire, Ho waived his right to a jury trial on the allegations of his
prior convictions and prison sentences. Ho sought to represent himself at trial, pursuant
the authority of Faretta v. California (1975) 422 U.S. 806 (Faretta), and presented the
court with a Lopez2 waiver. The trial court denied Ho's request to represent himself. Ho
then requested a Marsden3 hearing, seeking a change of attorney. The court held a
Marsden hearing, and denied Ho's request for appointment of a different attorney.
Voir dire commenced. After a lunch break, Ho indicated that he had decided to
enter a change of plea. The prospective jurors were excused.
Ho thereafter pled guilty to count 1, felony vehicle theft, and admitted having
suffered a prior strike conviction. In exchange, the parties agreed to a sentence of four
years in state prison. Ho was informed, both orally and in writing, that as a result of his
prior strike conviction, he would be required to serve 80 percent of the four-year
sentence. The court dismissed the remaining count and struck the prison prior and felony
prior conviction allegations.
2 People v. Lopez (1977) 71 Cal. App. 3d 568, 571.
3 People v. Marsden (1970) 2 Cal. 3d 118, 124.
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As factual support for his plea, Ho admitted that he "drove a car without the
permission of the owner with the intent to deprive [the] owner of said vehicle" and that
he "had a prior strike."
On the day of his scheduled sentencing hearing, Ho requested a continuance of
sentencing. The trial court denied the request for a continuance and sentenced Ho in
accordance with the plea agreement.
Ho filed a timely notice of appeal.
III.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and
proceedings in the trial court. Counsel presented no argument for reversal but invited this
court to review the record for error in accordance with Wende, supra, 25 Cal. 3d 436.
Pursuant to Anders, supra, 386 U.S. 738, counsel identified the following as possible, but
not arguable, issues:
(1) "Is there [a] sufficient factual basis to support the vehicle theft
and the finding of a prior strike? Is this issue appealable without a
certificate of probable cause?"
(2) "Did the trial court err when it denied appellant's Faretta motion
to represent himself on the first day of trial? . . . Is this issue
appealable without a certificate of probable cause?" (Fn. omitted.)
(3) "Did the trial court err when it denied appellant's pre-plea
Marsden motion? . . . Is this issue appealable without a certificate
of probable cause?"
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(4) "Did the trial court err when it denied appellant's request for a
continuance of sentencing?"
(5) "Was appellant expressly informed that by pleading to a strike,
he would get reduced credits?"
After this court received counsel's brief, we provided Ho with the opportunity to
file a supplemental brief. Ho did not file a supplemental brief.
A review of the record pursuant to Wende, supra, 25 Cal. 3d 436, and Anders,
supra, 386 U.S. 738, including the issues suggested by counsel, has disclosed no
reasonably arguable appellate issue. Ho has been adequately represented by counsel on
this appeal.
IV.
DISPOSITION
The judgment is affirmed.
AARON, J.
WE CONCUR:
McDONALD, Acting P. J.
McINTYRE, J.
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