People v. Khau CA6

Filed 11/18/21 P. v. Khau CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H048366 (Santa Clara County Plaintiff and Respondent, Super. Ct. Nos. C1920413, C1922313)

v.

XUAN CHI KHAU,

Defendant and Appellant.

Defendant Xuan Chi Khau pleaded no contest to possession of methamphetamine for sale, possession of cocaine base for sale, possession of a firearm by a felon, and assault with a deadly weapon and admitted an arming allegation in connection with one of the drug charges in exchange for a four-year prison sentence. Consistent with the plea agreement, the trial court sentenced defendant to a four-year prison term. On appeal, defendant’s counsel filed an opening brief in which no issues are raised and asked this court to independently review the record under People v. Wende (1979) 25 Cal.3d 436. We sent a letter to defendant notifying him of his right to submit a written argument on his own behalf on appeal. He has not done so. Finding no arguable appellate issue, we affirm.

I. PROCEDURAL HISTORY1 In October 2019, a felony complaint was filed against defendant in Santa Clara County case No. C1920413. It alleged that defendant had committed possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 1), possession of cocaine base for sale (id., § 11351.5; count 2), two counts of unlawful possession of controlled substances while armed with a loaded firearm (id., § 11370.1, subd. (a); counts 3 & 4), possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1); count 5), and possession of ammunition by a prohibited person (§ 30305, subd. (a)(1); count 7).2 As to counts 1 and 2, it was alleged that defendant was armed with a firearm within the meaning of section 12022, subdivision (a)(1). In November 2019, a felony complaint was filed against defendant in Santa Clara County case No. C1922313, alleging that defendant had committed attempted murder (§§ 664/187, subd. (a); count 1), assault with a with a semiautomatic firearm (§ 245, subd. (b); count 2), possession of a firearm by a felon (§ 29800, subd. (a)(1); count 3), and possession of ammunition by a prohibited person (§ 30305, subd. (a)(1); count 4). The complaint further alleged that defendant had personally used a firearm in the commission of counts 1 (§ 12022.53, subd. (b)) and 2 (§ 12022.5, subd. (a)). On June 8, 2020, the People successfully moved to amend the felony complaint in case No. C1922313 to add a fifth count alleging assault with a deadly weapon (§ 245, subd. (a)(1)). Immediately thereafter, defendant pleaded no contest to counts 1 and 2 (possession of methamphetamine and cocaine base for sale) in case No. C1920413 and to counts 3 and 5 (possession of a firearm by a felon and assault with a deadly weapon) in case No. C1922313. He also admitted the allegation that he was armed with a firearm within the meaning of section 12022, subdivision (a)(1) during the commission of count 1