People v. Phu CA3

Filed 10/22/14 P. v. Phu CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE,

Plaintiff and Respondent, C073986

v. (Super. Ct. No. 12F00716)

DUC PHU,

Defendant and Appellant.

Appointed counsel for defendant Duc Phu asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We directed the parties to file supplemental letter briefs discussing whether a recent amendment to Health and Safety Code section 11379 affects defendant’s conviction for transportation of a controlled substance.

1

Based on our review of the record and the supplemental letter briefs filed by the parties, we will reverse the judgment, vacate the plea, reinstate the original charges, and remand the matter to the trial court for further proceedings. BACKGROUND Defendant drove a vehicle containing approximately 19.4 grams of methamphetamine on January 26, 2012. He drove the vehicle for the benefit of the Tiny Rascal Gangsters street gang. An amended consolidated information charged defendant with active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a) -- count one); possession of a controlled substance for sale (Health & Saf. Code, § 11378 -- count two); transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a) -- count three); possession of a controlled substance while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a) -- count four); possession of a firearm by a convicted felon (Pen. Code, § 29800, subd. (a)(1) -- count six); and driving in willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer (Veh. Code, § 2800.2, subd. (a) -- count seven). The amended consolidated information further alleged that defendant was previously convicted of a serious felony (Pen. Code, §§ 667, subd. (b)-(i), 1170.12), was armed with a firearm during the commission of his crimes (Pen. Code, § 12022, subd. (c)), committed his crimes for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)), and was ineligible to be sentenced to county jail because he was previously convicted of a serious or violent felony and is required to register as a sex offender (Pen. Code, § 1170, subd. (h)(3)). Defendant moved the trial court to have his appointed counsel discharged pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). The trial court denied the motion. Defendant pleaded no contest to transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a) -- count three) and admitted that he committed the crime for