Filed 12/19/13 P. v. Nguyen CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G048223

         v.                                                            (Super. Ct. No. 04ZF0054)

KY VAN NGUYEN,                                                         OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Richard
F. Toohey, Judge. Affirmed.
                   Anita P. Jog, under appointment by the Court of Appeal, for Defendant and
Appellant.
                   No appearance for Plaintiff and Respondent.
                                             *               *               *
              Appellant Ky Van Nguyen was convicted in 2005 burglary, conspiracy to
commit burglary, and street terrorism. (The facts of the case, which are not germane to
this appeal, can be summarized as law enforcement watching appellant and two other
men perpetrate a residential burglary in which gold and jewelry were taken.) In addition,
the court found appellant had committed the burglary and entered into the conspiracy for
the benefit of a street gang, and that he had suffered three strike priors (Pen. Code
§§ 6671, subds. (d) and (e)(2)(A) and 1170.12 subd. (b)), two prison priors (§ 667.5 subd.
(b)), and one serious felony prior (§ 667 subd. (a)). The court sentenced him to 25 years
to life on the burglary and an additional 5 years for the serious felony prior. Punishments
for the other crimes and enhancements were stricken or stayed.
              On November 6, 2012, the voters of this state enacted Proposition 36,
which amended the Three Strikes Law and enabled a prisoner serving an indeterminate
sentence with two prior strike convictions to petition for resentencing if his or her current
conviction was not for a serious felony conviction. Proposition 36 was enacted into law
as section 1170.126.
              On February 14 of this year, appellant petitioned for relief under this
provision, despite the fact he was incarcerated for a crime classified as a serious felony,
listed in section 1192.7, subdivision (c)(18). His petition was denied.
              Appellant Nguyen appealed, and we appointed counsel to represent him.
Counsel did not argue against her client, but advised this court she could find no issues to
argue on appellant’s behalf. (People v. Wende (1979) 25 Cal.3d 436.) Counsel filed a
brief which set forth the facts of the case, its procedural history, and the only conceivable
appellate issue in an appeal from a denial of a petition pursuant to section 1170.126 case:
the applicability of section 1170.126 to appellant. Appellant was given 30 days to file



       1      All further statutory references are to the Penal Code.

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written argument in his own behalf if he chose to. That time has long since expired and
no argument has been received regarding the petition for Proposition 36 relief.
              Nor could it be. At least not with any chance of success. The ruling of the
trial court – denying Nguyen’s petition because relief pursuant to section 1170.126 was
not available to him – is correct. Section 1170.126 was enacted to provide relief to
prisoners whose Three Strikes law commitment was based on conviction of a crime that
was not serious or violent under the Penal Code. As noted above, Nguyen’s burglary
conviction is listed as a serious crime under section 1192.7, subdivision (c)(18).
              That is why his attorney filed a Wende brief. Appellant sought relief under
section 1170.126. He is not eligible for such relief and both the court below and
appellate counsel recognized that fact. We have reviewed the record and cannot conceive
of any issue that could be raised on this appeal.
              Appellant has, however, filed a one-page supplemental brief in which he
complains that various legal errors were committed in his original trial eight years ago.
He asserts he was not properly advised of his rights and the evidence against him was
insufficient to support a conviction. These are precisely the issues he raised in the 2006
appeal from his conviction. We rejected them explicitly and with explanation in People




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v. Nguyen (June 22, 2006, G035706) [nonpub. opn.], and the law does not allow him to
raise them again.
             The judgment is affirmed.




                                              BEDSWORTH, J.

WE CONCUR:



O’LEARY, P. J.



MOORE, J.




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