People v. Phu CA3

Filed 3/20/15 P. v. Phu CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. In an amended consolidated information, the People charged defendant with various felonies and misdemeanors, and alleged a number of sentencing enhancements. 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 the benefit of a criminal street gang and that he was previously convicted of a serious or violent felony. Prior to sentencing, defendant moved to withdraw his plea based on ineffective assistance of counsel. The trial court held a closed hearing and ultimately denied defendant’s motion to withdraw his plea. Pursuant to the terms of the plea agreement, the trial court sentenced defendant to 11 years in state prison, dismissed the remaining charges, awarded presentence credit, and ordered defendant to pay various fines and fees. The trial court denied defendant’s request for a certificate of probable cause. DISCUSSION Appointed appellate counsel filed an opening brief setting forth the facts of the case and asking this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing the