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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

KY MINH PHAM,

Defendant and Appellant. H041376

(Santa Clara County

Super. Ct. No. 193728)

Over 17 years ago, on September 25, 1996, appellant K y Minh Pham and a

number of accomplices entered a n open garage and used force to take or attempt to take

money and jewelry from multiple victims. According to the trial c ourt’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.2

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

. [ C itation.] ” 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 C al.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 h is right to

submit written argument in h is own behalf within 30 days. On October 14 , 201 4, we

received a supplemental brief from appellant. In h is brief , appellant asks to “dismiss his

appeal without prejudi ce 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 underly ing crime. In so doing, we noticed

discrepancies in the record; a fact that appellate counsel failed to note. On

January 27, 2015, th is c ourt , 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 rev iew of this supplemental t ranscript, 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 app ellant’s supplemental brief, he has failed to

“seek professional assistance,” and we decline to dismiss his case without prejudice. As

n othing in defendant brief or the record raises an arguable issue on appe al, we must

dismiss the appeal with prejudice

.3 D ISPOSITION

The appeal is dismissed.4 ______________________________________

RUSHING , P. J.

WE CONCUR:

____________________________________ ELIA, J.

___________________________________ WALSH, J. *

People v. Pham

H0 41376

* Judge of the Santa Clara County Superior Court assigned by the Chief Justice

pursuant to article VI, section 6 of the California Constitution.