People v. Tran CA3

Filed 8/20/21 P. v. Tran CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C093005

Plaintiff and Respondent, (Super. Ct. No. 13F06635)

v.

KHIEM TRAN,

Defendant and Appellant.

This appeal arises from the trial court’s denial of defendant Khiem Tran’s Penal Code section 1170.95 petition for resentencing.1 Appointed counsel for defendant filed an opening brief setting forth the facts of the case and asking this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant subsequently filed a supplemental brief also seeking

1 Further undesignated statutory references are to the Penal Code.

1

our review of his case but not arguing any specific issues with the judgment. After reviewing the entire record, we affirm the order. FACTUAL AND PROCEDURAL BACKGROUND Most of the background facts are taken from our previous opinion in People v. Tran (Nov. 3, 2017, C081997) [nonpub. opn.] (Slip Opn.). Defendant killed his wife while intoxicated by stabbing her multiple times after the two got in a fight. (Slip Opn., at p. 2.) In January 2016, a jury found defendant guilty of second degree murder (§ 187, subd. (a)) and found true he personally used a deadly weapon (§ 12022, subd. (b)(1)). (Slip Opn., at p. 2.) In April 2016, defendant was sentenced to 16 years to life in prison. In November 2017, we affirmed defendant’s second degree murder conviction in his direct appeal from the criminal judgment. (Slip Opn., at p. 7.) In July 2019, defendant filed his petition for resentencing pursuant to recently enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.). In September 2020, after receiving briefing from the parties, the court denied the petition. Defendant timely appealed. DISCUSSION Counsel filed an opening brief that sets forth the facts and procedural history of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Counsel acknowledges the split in authority as to whether Wende review of the trial court’s denial of a section 1170.95 petition should be routinely undertaken by the appellate courts, but asks that we review this case on appeal in any event, in the interests of justice. Defendant timely filed a supplemental brief. He argues throughout for a “second chance,” and reiterates his counsel’s request for us to do an independent review, but does not argue there are any specific issues with the judgment. We need not address the split in authority as to under what circumstances the protections afforded by Wende apply to this appeal. Given that counsel has asked for