People v. Chiemwichitra CA3

Filed 8/4/23 P. v. Chiemwichitra CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Shasta) ----

THE PEOPLE, C096201

Plaintiff and Respondent, (Super. Ct. No. 19F4451)

v. OPINION ON TRANSFER

TIMOTHY CHIEMWICHITRA,

Defendant and Appellant.

This appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). “A jury found defendant Timothy Chiemwichitra guilty of numerous offenses arising out of a violent altercation with his girlfriend . . . . The jury also found that defendant personally inflicted great bodily injury under circumstances involving

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domestic violence ([Pen. Code,] § 12022.7, subd. (e)[, fn. omitted])[1] . . . . The trial court sentenced him to an aggregate term of 12 years eight months in prison.” (People v. Chiemwichitra (Aug. 16, 2021, C091908) [nonpub. opn.].) Defendant appealed and we reversed one conviction, reducing defendant’s sentence to 10 years eight months, but otherwise affirmed the judgment. (Ibid.) On April 18, 2022, after the passage of Senate Bill No. 81 (2021-2022 Reg. Sess.), defendant filed a “Motion to Dismiss Enhancement Under Amended Penal Code [section] 1385, And Senate Bill No. 81.” On April 25, 2022, the trial court denied the motion, finding dismissal of the enhancement would not be “in the furtherance of justice” because the “crime committed against the victim in this case was especially cruel and heinous and [defendant’s] flight from law enforcement endangered the lives of others.” Defendant appealed the trial court’s order denying his motion. Appointed counsel for defendant asked this court to independently review the record pursuant to Wende. Defendant was advised by counsel of the right to file a supplemental brief within 30 days. Defendant did not file a supplemental brief and we dismissed the appeal as abandoned. The California Supreme Court granted review of the case and later transferred the matter back to this court with instructions to vacate the dismissal and reconsider the case in light of People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). We vacated our decision. The Supreme Court in Delgadillo affirmed “the procedures set out in Anders [v. California (1967) 386 U.S. 738] and Wende do not apply to an appeal from the denial of postconviction relief, even if the defendant has a state-created right to the appointment of counsel for that appeal.” (Delgadillo, supra, 14 Cal.5th at p. 226.) Still, it prescribed a procedure for when appellate counsel finds no arguable issues. (Id. at p. 231.) Though