People v. Nguyen CA4/3

Filed 12/19/13 P. v. Nguyen CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G048223

v. (Super. Ct. No. 04ZF0054)

KY VAN NGUYEN, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Richard F. Toohey, Judge. Affirmed. Anita P. Jog, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. * * *

Appellant Ky Van Nguyen was convicted in 2005 burglary, conspiracy to commit burglary, and street terrorism. (The facts of the case, which are not germane to this appeal, can be summarized as law enforcement watching appellant and two other men perpetrate a residential burglary in which gold and jewelry were taken.) In addition, the court found appellant had committed the burglary and entered into the conspiracy for the benefit of a street gang, and that he had suffered three strike priors (Pen. Code §§ 6671, subds. (d) and (e)(2)(A) and 1170.12 subd. (b)), two prison priors (§ 667.5 subd. (b)), and one serious felony prior (§ 667 subd. (a)). The court sentenced him to 25 years to life on the burglary and an additional 5 years for the serious felony prior. Punishments for the other crimes and enhancements were stricken or stayed. On November 6, 2012, the voters of this state enacted Proposition 36, which amended the Three Strikes Law and enabled a prisoner serving an indeterminate sentence with two prior strike convictions to petition for resentencing if his or her current conviction was not for a serious felony conviction. Proposition 36 was enacted into law as section 1170.126. On February 14 of this year, appellant petitioned for relief under this provision, despite the fact he was incarcerated for a crime classified as a serious felony, listed in section 1192.7, subdivision (c)(18). His petition was denied. Appellant Nguyen appealed, and we appointed counsel to represent him. Counsel did not argue against her client, but advised this court she could find no issues to argue on appellant’s behalf. (People v. Wende (1979) 25 Cal.3d 436.) Counsel filed a brief which set forth the facts of the case, its procedural history, and the only conceivable appellate issue in an appeal from a denial of a petition pursuant to section 1170.126 case: the applicability of section 1170.126 to appellant. Appellant was given 30 days to file