Filed 7/10/14 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039936
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. CC102757)

             v.

VAN THANH NGUYEN,

         Defendant and Appellant.



         In 2004, appellant Van Thahn Nguyen pleaded to and was convicted of assault
with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) with great bodily injury and gang
enhancements. (Pen. Code, §§ 12022.7, subd. (a), 1866.22, subd. (b)(1).) He also
admitted two prior strikes. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.) Prior to
sentencing appellant to 25 years to life pursuant to the former “Three Strikes” law, the
court denied a motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th
497 (Romero), but struck the punishment on the great bodily injury and gang
enhancements at the request of the district attorney who stated that the facts did not
support those enhancements. On appeal from the conviction, appellant argued that the
court erred in denying the Romero motion because the court did not consider the
circumstances of appellant’s life. We affirmed the judgment on appeal.1

         1
        On the court’s own motion, we will take judicial notice of defendant’s prior
appeal People v. Van Thanh Nguyen (Mar. 29, 2005, H026980) [nonpub. opn.].
       On December 28, 2012, appellant filed a petition for resentencing pursuant to the
Three Strikes Reform Act and Penal Code section 1170.126. On January 2, 2013, the
trial court summarily denied the petition on the ground that the great bodily injury
enhancement rendered appellant ineligible for resentencing under Penal Code
section 1170.126. On January 17, 2013, appellant filed a motion for reconsideration of
the order on the ground that the district attorney had conceded at sentencing that the facts
did not support either enhancement to which appellant had admitted. The trial court
granted reconsideration and vacated its order. The court appointed counsel to represent
appellant, and after full briefing and argument, again denied appellant’s petition. The
trial court rejected defendant’s argument that because of the district attorney’s
concession, the act of striking the punishment for the enhancements was tantamount to
striking the enhancements in their entirety. Instead, the court concluded that striking the
punishment for the enhancements did not operate to defeat the defendant’s factual
admission to the truth of the allegation, it simply served to prohibit the use of the
allegation to increase defendant’s sentence. (In re Pacheco (2007) 155 Cal.App.4th
1439.) This timely appeal ensued.
       On appeal, we appointed counsel to represent appellant in this court. Appointed
counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436
(Wende) which states the case and the facts but raises no specific issues. Wende review is
only available in a first appeal of right from a judgment of conviction. (People v.
Serrano (2012) 211 Cal.App.4th 496, 501 (Serrano).) Because appellant’s appeal is from
an order after judgment, and not a first appeal of right, he is not entitled to Wende review.
(Ibid.) Therefore, we will proceed with this appeal pursuant to the standard we
enunciated in Serrano.
       Pursuant to Serrano, on February 11, 2014, we notified defendant of his right to
submit written argument in his own behalf within 30 days. On March 14, 2014, we
received an “Appellant’s Amended Brief” from appellant. In his brief appellant argues
                                              2
that one of his prior convictions cannot properly be used as a strike. The validity of the
strike prior to which appellant admitted and which forms the basis for his sentence should
have been raised in the appeal from the judgment of conviction. This issue is not timely
raised on appeal from a petition to recall the sentence pursuant to the Three Strikes
Reform Act and Penal Code section 1170.126 because the new statutory scheme only
allows courts to review the nature of the current commitment offense, not the underlying
strike priors. (Pen Code § 1170.126. subd. (e).) Nothing in appellant’s letter raises any
arguable issues on appeal from the trial court’s order denying the petition for recall of
sentence. Therefore, we decline to retain the appeal.
       The appellant having failed to raise any arguable issue on appeal, we dismiss the
appeal. (Serrano, supra, 211 Cal.App.4th at pp. 503-504.)




                                              3
                                DISPOSITION
     The appeal is dismissed.




                                    _____________________________________
                                               RUSHING, P.J.




WE CONCUR:




_________________________________
      PREMO, J.




_________________________________
      ELIA, J.




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