People v. Nguyen CA6 ( 2014 )


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  • Filed 7/10/14 P. v. Nguyen CA6
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SIXTH APPELLATE DISTRICT
    THE PEOPLE,                                                          H039936
    (Santa Clara County
    Plaintiff and Respondent,                                   Super. Ct. No. CC102757)
    v.
    VAN THANH NGUYEN,
    Defendant and Appellant.
    In 2004, appellant Van Thahn Nguyen pleaded to and was convicted of assault
    with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) with great bodily injury and gang
    enhancements. (Pen. Code, §§ 12022.7, subd. (a), 1866.22, subd. (b)(1).) He also
    admitted two prior strikes. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.) Prior to
    sentencing appellant to 25 years to life pursuant to the former “Three Strikes” law, the
    court denied a motion pursuant to People v. Superior Court (Romero) (1996) 
    13 Cal. 4th 497
    (Romero), but struck the punishment on the great bodily injury and gang
    enhancements at the request of the district attorney who stated that the facts did not
    support those enhancements. On appeal from the conviction, appellant argued that the
    court erred in denying the Romero motion because the court did not consider the
    circumstances of appellant’s life. We affirmed the judgment on appeal.1
    1
    On the court’s own motion, we will take judicial notice of defendant’s prior
    appeal People v. Van Thanh Nguyen (Mar. 29, 2005, H026980) [nonpub. opn.].
    On December 28, 2012, appellant filed a petition for resentencing pursuant to the
    Three Strikes Reform Act and Penal Code section 1170.126. On January 2, 2013, the
    trial court summarily denied the petition on the ground that the great bodily injury
    enhancement rendered appellant ineligible for resentencing under Penal Code
    section 1170.126. On January 17, 2013, appellant filed a motion for reconsideration of
    the order on the ground that the district attorney had conceded at sentencing that the facts
    did not support either enhancement to which appellant had admitted. The trial court
    granted reconsideration and vacated its order. The court appointed counsel to represent
    appellant, and after full briefing and argument, again denied appellant’s petition. The
    trial court rejected defendant’s argument that because of the district attorney’s
    concession, the act of striking the punishment for the enhancements was tantamount to
    striking the enhancements in their entirety. Instead, the court concluded that striking the
    punishment for the enhancements did not operate to defeat the defendant’s factual
    admission to the truth of the allegation, it simply served to prohibit the use of the
    allegation to increase defendant’s sentence. (In re Pacheco (2007) 
    155 Cal. App. 4th 1439
    .) This timely appeal ensued.
    On appeal, we appointed counsel to represent appellant in this court. Appointed
    counsel filed an opening brief pursuant to People v. Wende (1979) 
    25 Cal. 3d 436
    (Wende) which states the case and the facts but raises no specific issues. Wende review is
    only available in a first appeal of right from a judgment of conviction. (People v.
    Serrano (2012) 
    211 Cal. App. 4th 496
    , 501 (Serrano).) Because appellant’s appeal is from
    an order after judgment, and not a first appeal of right, he is not entitled to Wende review.
    (Ibid.) Therefore, we will proceed with this appeal pursuant to the standard we
    enunciated in Serrano.
    Pursuant to Serrano, on February 11, 2014, we notified defendant of his right to
    submit written argument in his own behalf within 30 days. On March 14, 2014, we
    received an “Appellant’s Amended Brief” from appellant. In his brief appellant argues
    2
    that one of his prior convictions cannot properly be used as a strike. The validity of the
    strike prior to which appellant admitted and which forms the basis for his sentence should
    have been raised in the appeal from the judgment of conviction. This issue is not timely
    raised on appeal from a petition to recall the sentence pursuant to the Three Strikes
    Reform Act and Penal Code section 1170.126 because the new statutory scheme only
    allows courts to review the nature of the current commitment offense, not the underlying
    strike priors. (Pen Code § 1170.126. subd. (e).) Nothing in appellant’s letter raises any
    arguable issues on appeal from the trial court’s order denying the petition for recall of
    sentence. Therefore, we decline to retain the appeal.
    The appellant having failed to raise any arguable issue on appeal, we dismiss the
    appeal. 
    (Serrano, supra
    , 211 Cal.App.4th at pp. 503-504.)
    3
    DISPOSITION
    The appeal is dismissed.
    _____________________________________
    RUSHING, P.J.
    WE CONCUR:
    _________________________________
    PREMO, J.
    _________________________________
    ELIA, J.
    4
    

Document Info

Docket Number: H039936

Filed Date: 7/10/2014

Precedential Status: Non-Precedential

Modified Date: 4/18/2021