People v. Vue CA3

Filed 6/22/23 P. v. Vue CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C092122

Plaintiff and Respondent, (Super. Ct. No. 09F02572)

v.

CHU VUE,

Defendant and Appellant.

In 2016, in an unpublished opinion, this court upheld defendant Chu Vue’s conviction for first degree murder (Pen. Code, § 187, subd. (a))1 with a lying in wait special circumstance (§ 190.2, subd. (a)(15)). (People v. Chu (Jan. 18, 2016, C066885) [nonpub. opn.] (Chu).) On January 17, 2019, defendant filed a petition for resentencing

1 Further undesignated statutory references are to the Penal Code.

1

under former section 1170.95 (now section 1172.6).2 The trial court denied the petition because defendant was ineligible for relief in light of the jury’s verdicts and special circumstance findings, which showed the jury had determined defendant acted with the intent to kill. Defendant timely appealed, and we granted his counsel’s request to incorporate by reference the record in defendant’s original appeal concerning his murder conviction, Chu, supra, C066885. Defendant’s counsel filed a no issues brief under People v. Wende (1979) 25 Cal.3d 436 requesting this court to conduct an independent review of the entire record for arguable issues on appeal. Thereafter, on February 26, 2021, this court, on its own motion, dismissed defendant’s appeal as abandoned. Defendant petitioned our Supreme Court for review; the Supreme Court has now directed us to vacate the prior decision and reconsider the matter in light of People v. Delgadillo (2022) 14 Cal.5th 216. On April 18, 2023, this court sent a letter notifying defendant: (1) his counsel filed an appellate brief stating his review of the record did not identify any arguable issues; (2) as a case arising from an order denying postconviction relief, defendant was not constitutionally entitled to counsel or to an independent review of the record; and (3) in accordance with the procedures set forth in Delgadillo, defendant had 30 days to file a supplemental brief or letter raising any argument he wanted this court to consider. On May 12, 2023, defendant filed a supplemental brief seeking removal of his counsel and arguing he was eligible for resentencing relief because the jury at his trial had been presented with two theories, thus rendering the basis for his murder conviction