People v. Asbury CA2/1 ( 2021 )

Filed 4/2/21 P. v. Asbury CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B307139
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA 052970)
v.
DIANE C. ASBURY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, David E. Hizami, Judge. Affirmed.
____________________________
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
____________________________
This is our third opinion in this case. In the first opinion
(People v. Asbury (2016) 4 Cal.App.5th 1222 (Asbury I)), we
reversed defendant and appellant Diane C. Asbury’s conviction
for second degree murder and remanded the case to the trial
court, giving the prosecution the option either to retry Asbury
for murder or to accept a modification of the judgment to reflect
a conviction for voluntary manslaughter. (Id. at p. 1232.)
The prosecution chose the latter option, and the trial court
resentenced Asbury to 21 years in prison. The court selected
the high term of 11 years for voluntary manslaughter (see Pen.
Code,1 § 193, subd. (a)), plus a 10-year enhancement pursuant to
section 12022.5, subdivision (a) for personal use of a firearm in
the offense.
Asbury appealed, and we affirmed the trial court’s exercise
of discretion in selecting the upper term for manslaughter.
(See People v. Asbury (Oct. 24, 2018, B284220) [nonpub. opn.]
(Asbury II).) We remanded the case to the trial court once
again, however, in light of the enactment of Senate Bill No. 620
(2017-2018 Reg. Sess.), which gives trial courts discretion to
strike firearm enhancements for purposes of sentencing.
On remand, the trial court granted Asbury’s motion to
strike the enhancement, and resentenced Asbury to the upper
term of 11 years for manslaughter.
Asbury filed a timely notice of appeal, and we appointed
counsel to represent her in the matter. After examining the
record, counsel filed a Wende2 brief raising no issues on appeal
1Unless otherwise specified, subsequent statutory
references are to the Penal Code.
2 People v. Wende (1979) 25 Cal.3d 436 (Wende).
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and requesting that we independently review the record. On
January 12, 2021, we sent a letter to Asbury and to counsel.
In the letter, we directed counsel to immediately send the
record on this appeal and a copy of the Wende brief to Asbury
and informed her that she had 30 days to submit by letter or
brief any ground of appeal, contention or argument she wished
us to consider.3 We have received no communication from
Asbury.
We have reviewed the entire record on appeal, and we
conclude that the trial court did not abuse its discretion by
striking the firearm enhancement and reimposing the upper
term of 11 years for manslaughter. We are satisfied that
Asbury’s counsel has fully complied with his responsibilities
and that no arguable appellate issue exists. (Wende, supra,
25 Cal.3d at p. 441; People v. Kelly (2006) 40 Cal.4th 106,
123-124.)
3 The letter was returned to the court undeliverable
because Asbury was no longer located at the prison to which we
addressed the letter. We contacted Asbury’s appointed counsel,
who confirmed that Asbury had received a copy of the Wende
brief and the record on appeal. Asbury’s counsel also informed
her of her right to file a supplemental brief.
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DISPOSITION
The trial court’s order is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
BENDIX, J.
FEDERMAN, J.*
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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