People v. Pham CA6 ( 2015 )

Filed 9/22/15 P. v. Pham 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H041376
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. 193728)
v.
KY MINH PHAM,
Defendant and Appellant.
Over 17 years ago, on September 25, 1996, appellant Ky Minh Pham and a
number of accomplices entered an open garage and used force to take or attempt to take
money and jewelry from multiple victims. According to the trial court’s order, he was
convicted of aggravated robbery and attempted robbery (Pen. Code, §§ 213, subd. (a)(1),
§664),1 dissuading a witness (§ 136.1), and two counts of felony false imprisonment
(§§ 236/237), all with firearm enhancements (§ 12022.5, subd (a)(1).) No prior
convictions were alleged, proven, or used to enhance his sentence under sections 667,
subdivisions (b)-(i) or section 1170.12 or any other provision of law.
On August 1, 2014, appellant filed a motion for resentencing. He argued that the
recent Supreme Court decision in People v. Vargas (2014) 59 Cal. 4th 635 (Vargas)
applied to his case, and that pursuant to Vargas the trial court was required to dismiss one
1
All future statutory references are to the Penal Code unless otherwise
specified.
of his two prior convictions. On August 6, 2014 the court denied the motion. Reciting
the charges underlying his conviction, the trial court concluded “the rule of Vargas has
no bearing on the sentence imposed in this case, and this court has no jurisdiction to
modify a sentence more than 120 days after it was imposed. [Citation.]” On August 20,
2014, appellant timely filed a notice of appeal from the order
denying his motion.
On appeal, we appointed counsel to represent appellant in this court. Appointed
counsel filed an opening brief pursuant to People v. Serrano (2012) 211 Cal. App. 4th 496
(Serrano), which states the case but raises no specific issues. We note that counsel failed
to include any facts regarding the underlying crime, contending that none were included
in the record.
Pursuant to Serrano, on September 30, 2014, we notified appellant of his right to
submit written argument in his own behalf within 30 days. On October 14, 2014, we
received a supplemental brief from appellant. In his brief, appellant asks to “dismiss his
appeal without prejudice at this time” in order to allow him time to seek professional
assistance. He does not, however, wish to abandon his appeal.
Although pursuant to Serrano we are not required to do so, we reviewed the
record to extrapolate some facts about the underlying crime. In so doing, we noticed
discrepancies in the record; a fact that appellate counsel failed to note. On
January 27, 2015, this court, on its own motion, ordered the record corrected or
augmented to resolve the inconsistencies in the record. On June 30, 2015, we received a
supplemental clerk’s transcript. After review of this supplemental transcript, we have
concluded that any inconsistencies in the record are not relevant to the instant appeal. In
the nearly one year that has elapsed since appellant’s supplemental brief, he has failed to
“seek professional assistance,” and we decline to dismiss his case without prejudice. As
nothing in defendant brief or the record raises an arguable issue on appeal, we must
dismiss the appeal with prejudice.
2
DISPOSITION
The appeal is dismissed.
3
______________________________________
RUSHING, P. J.
WE CONCUR:
____________________________________
ELIA, J.
___________________________________
WALSH, J.*
People v. Pham
H041376
*
Judge of the Santa Clara County Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
4