People v. Diep CA4/3

Filed 8/11/21 P. v. Diep 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G059988

v. (Super. Ct. No. 05ZF0092)

JAMES DIEP, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Andre Manssourian. Affirmed. Kristen Owen, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

We appointed counsel to represent James Diep on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against her client but advised the court she found no issues to argue on his behalf. Counsel filed a brief following the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende). The court in Wende explained a Wende brief is one that sets forth a summary of proceedings and facts but raises no specific issues. Under these circumstances, the court must conduct an independent review of the entire record. When the appellant himself raises specific issues in a Wende proceeding, we must expressly address them in our opinion and explain why they fail. (People v. Kelly (2006) 40 Cal.4th 106, 110, 120, 124.) Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), to assist the court with its independent review, counsel provided the court with information as to issues that might arguably support an appeal. Counsel raised only one issue—whether Diep made a prima facia showing of eligibility for resentencing under Penal Code section 1170.95 (all further statutory references are to the Penal Code). We gave Diep 30 days to file written argument on his own behalf, and he did. In his supplemental brief, Diep argued relief under section 1170.95 should not be limited to persons convicted of felony murder or murder under a natural and probable consequences theory, but should include persons convicted “under any other theory which malice is imputed to a person based solely on that persons participation in a crime.” (Bold omitted.) FACTS A detailed recitation of the facts is set forth in the prior opinion in this case. (People v. Diep (June 5, 2009, G039379) [nonpub. opn.] (Diep).) A jury convicted Diep of first degree murder (§ 187, subd. (a)) (count 1), attempted murder (§§ 664, subd. (a),