The People v. Luu CA6

Filed 9/19/13 P. v. Luu CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H038511 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. CC302927)

v.

HUY THE LUU,

Defendant and Appellant.

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 Wende was being requested. We notified defendant of his right to submit 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.1

1 This 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.

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.” (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. (Id. at p. 112.) Pursuant to Kelly, we will consider defendant’s letter brief and will explain why we reject his contentions. (Id. at p. 113.) FACTUAL 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)).2 It was alleged in both counts that defendant 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.