Opinion
C094216
01-24-2022
THE PEOPLE, Plaintiff and Respondent, v. QUYEN TRAN, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 98F03454)
ROBIE, ACTING P. J.
In 1999, a jury found defendant Quyen Tran guilty of first degree murder and assault with a firearm in a gang-related, drive-by shooting. The jury found true the allegation defendant had personally used a firearm. The jury also found true the "drive-by murder" special-circumstance allegation that "[t]he murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person . . . outside the vehicle with the intent to inflict death." (Pen. Code, § 190.2, subd. (a)(21).) (People v. Vo (Apr. 19, 2005, C034960) [nonpub. opn.].) The 1 trial court sentenced defendant to life without the possibility of parole for the murder, a consecutive 25 years to life for the firearm enhancement, and a consecutive six years for the assault with a firearm, plus two years for the gang enhancements. On appeal, we affirmed the convictions, but modified the sentences on the assault conviction and gang enhancement. (Vo, C034960.)
We granted defendant's request to incorporate by reference the record on appeal in case No. C034960.
On March 6, 2020, defendant filed a petition for resentencing under Penal Code section 1170.95, alleging he had been convicted of first degree murder under the felony murder rule or natural and probable consequences doctrine, could not now be convicted based on changes made to Penal Code sections 188 and 189, and was eligible for resentencing because he was not the actual killer, did not aid and abet the actual killer with intent to kill, and the victim was not a peace officer. After briefing by the parties, the trial court denied the petition finding defendant was ineligible for relief as a matter of law because the "jury was not instructed on either the natural and probable consequences doctrine or felony-murder," and under the instructions given, the jury necessarily found he acted with intent to kill by virtue of the true finding on the special-circumstance allegation.
Defendant filed a notice of appeal. Approximately one week later, he filed a motion for reconsideration in the trial court. The trial court noted it would deny the motion for reconsideration, but since defendant had filed a notice of appeal prior to the motion for reconsideration, the trial court did not have jurisdiction to decide the motion for reconsideration.
DISCUSSION
Appointed counsel filed an opening brief that sets forth the facts and procedural history of the case and requests this court review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of his right to file a supplemental brief within 30 days from the 2 date the opening brief was filed. More than 30 days have elapsed, and defendant has not filed a supplemental brief.
Whether the protections afforded by Wende and the United States Supreme Court's decision in Anders v. California (1967) 386 U.S. 738 apply to an appeal from an order denying a postconviction petition is an open question. Our Supreme Court has not spoken on that issue, although the issue is currently pending before it. (People v. Delgadillo (Nov. 18, 2020, B304441) [nonpub. opn.], review granted Feb. 17, 2021, S266305.) In Figueras, we described the Anders/Wende procedure we believed applicable to appeals from postconviction petitions:" '[C]ounsel appointed in such appeals is required to independently review the entire record and, if counsel so finds, file a brief advising the appellate court that there are "no arguable issues to raise on appeal"; [counsel must inform] the defendant [that he or she] has a right to file a supplemental brief [within 30 days of the filing of counsel's brief]; and this court has the duty to address any issues raised by the defendant but otherwise may dismiss the appeal without conducting an independent review of the record.'" (People v. Figueras (2021) 61 Cal.App.5th 108, 112-113, review granted May 12, 2021, S267870.)
We consider defendant's appeal abandoned and order the appeal dismissed.
DISPOSITION
The appeal is dismissed.
We concur: Hoch, J., Renner, J. 3