People v. Le CA4/1

Filed 6/14/24 P. v. Le CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D082173

Plaintiff and Respondent,

v. (Super. Ct. No. SCD212126)

ERIK HUNG LE,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Polly H. Shamoon, Judge. Reversed. Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Erik Le appeals from an order denying his petition for

resentencing relief under Penal Code section 1172.6.1 His appointed counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Delgadillo (2022) 14 Cal.5th 216 stating counsel was unable to identify any arguable issues on appeal. Le filed a supplemental brief. Based on our independent review of the record, we requested supplemental briefing from the parties addressing whether the matter should be remanded for an evidentiary hearing pursuant to section 1172.6, subdivision (d). The Attorney General concedes in its supplemental brief that the trial court erred and remand is required. We accept the Attorney General’s concession and reverse. FACTUAL AND PROCEDURAL BACKGROUND In 2010, a jury convicted Le and his codefendant of first degree murder (§ 187, subd. (a); count 1), attempted premeditated murder (§§ 187, subd. (a), 189, 664; count 2), shooting from a motor vehicle (§ 12034, subd. (d); count 3), and two counts of assault with a semiautomatic firearm (§ 245, subd. (b); counts 4 & 5). The jury also found true that all counts were committed for the benefit of a street gang (§ 186.22, subd. (b)); that as to counts 1, 2, and 3, Le and his codefendant were principals in the offenses and that during their commission at least one principal used a firearm (§ 12022.53, subds. (d) & (e)); and that as to counts 3 and 4, Le’s codefendant personally used a firearm (former § 12022.5, subd. (a)(1)). Le was sentenced to 14 years plus 82 years to life. This court affirmed the judgment in the direct appeal. (People v. Le (Apr. 27, 2012, D057392) [nonpub. opn.].)