People v. Asbury CA2/1

Filed 4/2/21 P. v. Asbury CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B307139

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA 052970) v.

DIANE C. ASBURY,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, David E. Hizami, Judge. Affirmed. ____________________________

Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. ____________________________

This is our third opinion in this case. In the first opinion (People v. Asbury (2016) 4 Cal.App.5th 1222 (Asbury I)), we reversed defendant and appellant Diane C. Asbury’s conviction for second degree murder and remanded the case to the trial court, giving the prosecution the option either to retry Asbury for murder or to accept a modification of the judgment to reflect a conviction for voluntary manslaughter. (Id. at p. 1232.) The prosecution chose the latter option, and the trial court resentenced Asbury to 21 years in prison. The court selected the high term of 11 years for voluntary manslaughter (see Pen. Code,1 § 193, subd. (a)), plus a 10-year enhancement pursuant to section 12022.5, subdivision (a) for personal use of a firearm in the offense. Asbury appealed, and we affirmed the trial court’s exercise of discretion in selecting the upper term for manslaughter. (See People v. Asbury (Oct. 24, 2018, B284220) [nonpub. opn.] (Asbury II).) We remanded the case to the trial court once again, however, in light of the enactment of Senate Bill No. 620 (2017-2018 Reg. Sess.), which gives trial courts discretion to strike firearm enhancements for purposes of sentencing. On remand, the trial court granted Asbury’s motion to strike the enhancement, and resentenced Asbury to the upper term of 11 years for manslaughter. Asbury filed a timely notice of appeal, and we appointed counsel to represent her in the matter. After examining the record, counsel filed a Wende2 brief raising no issues on appeal