P. v. Luu
Filed 9/19/13 P. v. Luu CA6
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opinion has not been certified for publication or ordered published for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,
Plaintiff and
Respondent,
v.
HUY THE LUU,
Defendant and
Appellant.
H038511
(Santa Clara
County
Super. Ct.
No. CC302927)
Defendant
Huy The Luu appeals from a judgment sentencing him to four years and four
months in state prison following his
admission of a probation violation.
Defendant’s counsel has filed an opening brief in which no issues are
raised and asks this court for an independent review of the record as required
by People
v. Wende (1979) 25 Cal.3d 436.
Counsel has declared that defendant was notified that no issues were
being raised by counsel on appeal, and that an independent review under
a written argument on his own behalf.
Defendant has filed a supplemental
letter brief arguing that the trial court violated his due process rights,
that his trial counsel rendered ineffective assistance of counsel, and that the
trial court failed to provide him with documents.
Pursuant to
People v. Wende, we have reviewed the
entire record and have concluded that there are no arguable issues. We will provide “a brief description of the
facts and procedural history of the case, the crimes of which defendant was
convicted, and the punishment imposed.â€
(People v. Kelly (2006) 40
Cal.4th 106, 110.) Further, we will
include information about aspects of the trial court proceedings that might
become relevant in future proceedings. (
why we reject his contentions. (
and Procedural Background
Since defendant pleaded
guilty to the underlying offenses, the facts of the case are taken from a
summary provided in defendant’s probation report. On January
27, 2003, officers responded to a home invasion. Officers learned that defendant and three
other individuals entered into the victim’s home. The homeowner was not present, but his wife
and 14-year-old son were. Defendant and
his accomplices tied the wife and son with duct tape and threatened them with
swords. Defendant and his accomplices
took approximately $30,000 in jewelry and $7,000 in cash.
On February 11, 2003, the district attorney filed a
first amended complaint charging defendant with two counts of robbery in the
first degree (Pen. Code, §§ 211, 212.5, subd. (a)).
personally used a deadly and dangerous weapon, a “sword/knife,†within the
meaning of section 12022, subdivision (b)(1).
Defendant pleaded guilty to both counts on December 5, 2003, and
admitted the enhancements under section 12022, subdivision (b)(1). On June 4, 2004, the trial court suspended
imposition of sentence and placed defendant on formal probation for a period of
three years, subject to various terms and conditions. Defendant was also ordered to pay $25,920 in
restitution to the victims.
On February
15, 2007, the probation department filed a petition for modification of the
terms of defendant’s probation.
Defendant appeared without counsel during the hearing on the matter on
February 15, 2007. After the hearing,
the court extended defendant’s probation to February 4, 2013, and modified the
terms of defendant’s probation to include a $350 monthly restitution payment.
The
probation department filed a petition to revoke defendant’s probation on
September 16, 2010. In part, the
petition alleged that defendant had committed a violation of Health and Safety
Code section 11359 on May 14, 2008, and that on October 9, 2008, the defendant
was convicted of this violation and sentenced to 32 months in state
prison.
Sometime
thereafter, defendant petitioned the superior court to direct itself to set
aside its earlier order extending defendant’s probation term and modifying the
terms of probation made in February 2007 on the basis that the trial court
failed to inform defendant of his right to consult with counsel.
an order to show cause on defendant’s petition for writ of mandate. The superior court discharged its order to
show cause and denied defendant’s petition on February 27, 2012, after finding
that it could not issue a writ of mandate to a court unless it is an inferior
court as stated in Code of Civil Procedure section 1085, subdivision (a).
On May 14,
2012, the probation department filed another petition seeking to revoke
defendant’s probation. Defendant
admitted the probation violation on May 14, 2012. The trial court then sentenced defendant to a
low term of three years for the first count of first degree burglary and
one-third the middle term of two years for the second count of first degree
burglary, for a total term of five years in state prison. The weapons enhancement under section 12022,
subdivision (b)(1) was stricken pursuant to section 1385. The trial court ordered defendant to pay a $200
restitution fine under section 1202.4, subdivision (b), and a suspended $200
parole revocation fine under section 1202.45.
Defendant was further ordered to pay $15,481 in restitution to the
victim pursuant to section 1202.4, subdivision (f). The trial court awarded defendant with a
total of 680 days of presentence custody credit, consisting of 592 actual days
plus 88 days conduct credit.
On October
16, 2012, the Division of Adult Institutions, Legal Processing Unit of the
California Department of Corrections and Rehabilitation sent a letter to the
trial court stating that its review of defendant’s trial records indicated the
existence of error. Defendant’s abstract
of judgment and minute order reflected the imposition of one-third the middle
term for first degree robbery, for a total of two years. However, the letter noted that the middle
term for the offense of first degree robbery is four years, thereby making
one-third the middle term one year and four months. (§ 213.)
The trial court corrected defendant’s sentence to the amount suggested
on October 31, 2012.
Defendant
filed a timely notice of appeal on July 6, 2012, over the trial court’s May
2012 order revoking defendant’s probation and imposing the sentence of four
years and four months.
Defendant’s
supplemental letter brief filed July 1, 2013, raises several arguments. We address each of defendant’s contentions in
turn.
First,
defendant contends that the trial court failed to inform him of his right to
representation and his right to consult with an attorney before the probation
modification hearing in February 2007.
This contention is not properly before us, as defendant did not appeal
from the modification of probation in February 2007. Defendant’s present appeal is over the trial
court’s subsequent order imposing sentence after revocation of his probation. An order modifying the terms of probation is
an appealable order. (§ 1237, subd. (b);
People v. Ramirez (2008) 159
Cal.App.4th 1412, 1421.) An appealable
order that is not appealed “becomes final and binding and may not subsequently
be attacked on an appeal from a later appealable order or judgment.†(People
v. Ramirez, supra, at p.
1421.)
Second,
defendant argues that the trial court’s extension of his probationary period in
February 2007 violated his due process
rights because his total probationary period exceeded five years, which he
claims is the statutory maximum.
Preliminarily, this argument arises from the court’s February 2007 order
modifying and extending probation, and is therefore not properly before
us. (People
v. Ramirez, supra, 159
Cal.App.4th at p. 1421.) Furthermore,
defendant misconstrues the applicable law, which provides that a trial court
may impose a period of probation not to exceed the maximum possible term of
sentence for a defendant’s convicted crimes.
(§ 1203.1, subd. (a).)
Defendant’s probationary period, including the extension in February
2007, remained within the maximum sentence for his convicted crimes.
Third,
defendant argues that his trial attorney rendered ineffective assistance of
counsel because he was not present to represent defendant during the probation
modification hearing in February 2007.
Again, this argument arises from defendant’s February 2007 extension of probation
and is therefore not properly before us.
(People v. Ramirez,
1421.) Furthermore, the record before us
does not afford a sufficient basis for us to assess this claim. “If the
record ‘sheds no light on why counsel acted or failed to act in the manner
challenged,’ an appellate claim of ineffective assistance of counsel must be
rejected ‘unless counsel was asked for an explanation and failed to provide
one, or unless there simply could be no satisfactory explanation.’ †(People
v. Ledesma (2006) 39 Cal.4th 641, 746.)
Lastly, defendant contends that a court reporter, Tricia
Gandsey, stated under penalty of perjury that there were no proceedings
reported by her that took place on June 4, 2004. Defendant asserts that Gandsey was the court
reporter for the probation and sentencing hearing dated June 4, 2004, according
to a minute order attached to his letter brief.
The minute order for the June 4, 2004 hearing, which is included in the
clerk’s transcript on appeal, shows that during the hearing defendant changed
his plea to guilty. Thereafter, the
trial court suspended imposition of sentence, placed defendant on three years
of probation subject to various terms and conditions, imposed fines and fees,
and ordered restitution to the victim.
Indeed, the minute order reflects that “T. Gandsey†was the reporter
during the hearing. Defendant claims
that the reporter’s transcripts for the hearing must be released in order to
protect his due process rights.
Nonetheless, defendant does not offer any information as to how the
substance of the transcript in question would aid his appeal, and none of the
arguments advanced in defendant’s letter brief relate to his guilty plea.
Having conducted an independent review of the record, we
conclude that there are no arguable issues on appeal.
The
judgment is affirmed.
Premo,
J.
WE CONCUR:
Rushing, P.J.
Elia, J.
court initially dismissed the appeal as abandoned under People v. Serrano (2012) 211 Cal.App.4th 496. On June 14, 2013, defendant filed a petition
for rehearing pursuant to California Rules of Court, rule 8.268, which this
court granted on June 25, 2013.
Further unspecified statutory references are to the Penal Code.
