People v. Nguyen CA6

Filed 3/6/23 P. v. Nguyen CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H047090 (Santa Clara County Plaintiff and Respondent, Super. Ct. Nos. C1774396, C1765364, C1774610, v. C1775282, C1893897 & F1767109) TAN VAN NGUYEN,

Defendant and Appellant.

Defendant Tan Van Nguyen received a split sentence of 11 years 8 months, including eight years in prison, after he pleaded no contest to, among other things, 23 counts of second degree burglary. Defendant contends on appeal that the trial court failed to properly consider his pro se letter that defendant characterizes as a motion to withdraw his plea and a motion to discharge his retained counsel. Defendant also contends that he is entitled to resentencing under recent amendments to Penal Code section 1170, subdivision (b), and that he is entitled to have the unpaid balances of various fees vacated under recently added Penal Code section 1465.9, subdivision (a) and Government Code section 6111, subdivision (a). We find no error in the trial court’s handling of defendant’s letter but will remand for resentencing and vacatur of the unpaid fees due to the recent statutory changes.

I. TRIAL COURT PROCEEDINGS Defendant pleaded no contest to charges in five cases in March 2018 and pleaded no contest to charges in a sixth case in September 2018. The facts of the offenses are not relevant to the issues raised on appeal. On January 15, 2019, two days before defendant was scheduled to be sentenced, the trial court received a letter from defendant. Defendant, who was represented by retained counsel in the trial court, stated in the letter that he had pleaded no contest to the charges against him because his attorney had advised him that he would serve less than five years in prison. He regretted hiring his attorney, who he said had ignored his correspondence and failed to appear for a scheduled sentencing hearing. Defendant explained in the letter that he did not have money to hire another attorney, and asked the trial court for a Cruz1 waiver or a stay of execution so that he could spend time with his sick parents and help sell an investment property in Coalinga that he co-owned with a friend. He wrote that he planned to use proceeds from the sale to hire a new attorney and withdraw his plea, but did not know whether his circumstances would allow him to withdraw the plea and he asked the trial court for advice. On January 17, 2019, the trial court imposed a split sentence of 11 years 8 months, including eight years in prison. The sentence included “the aggravated term of three years” on one count of second degree burglary in case No. C1774396 (§§ 459, 460, subd. (b), count A1; unspecified statutory references are to the Penal Code). Among other fees, the court imposed a criminal justice administration fee of $129.75 and a probation supervision fee of $25 per month in case No. C1774396; a criminal justice administration fee of $259.50 in case No. C1774610; a criminal justice administration fee of $259.50 in case No. C1775282; a criminal justice administration fee of $259.50 and a probation supervision fee of $25 per month in case No. C1765364; a criminal justice