Filed 4/2/21 P. v. Asbury C A2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.11 15.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

DIANE C. ASBURY,

Defendant and Appellant. B 307139

(Los Angeles County Super. Ct. No. MA 052970)

APPEAL from an order of the Superior Court of

Los Angeles County, David E. Hizami , Judge. Affirmed

.

____________________________

Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

____________________________2 This is our third opinion in this case. In the first opinion
( People v. Asbury (2016) 4 Cal.App.5th 1222 ( Asbury I

) )

, we reversed defendant and appellant Diane C. Asbur y’s conviction

for second degree murder and remanded the case to the trial
court, giving the prosecution the option either to retry Asbury

for murder or to accept a modification of the judgment to reflect

a conviction for voluntary manslaughter. ( Id. at p

. 1232.)

The prosecution chose the latter option, and the trial court
resentenced Asbury to 21 years in prison. The court sel ected

the high term of 11 years for voluntary manslaughter (see Pen.

Code, 1 § 193, subd. (a))

, plus a 10

- year enhancement pursua nt to
section 12022.5, subdivision (a) for personal use of a firearm in

the offense.
Asbury appealed, and we affirmed the trial court’s exercise

of discretion in selecting the upper term for manslaughter

. (See People v. Asbury ( Oct. 2 4 , 2018, B 284220) [nonpub. opn.]
( Asbury II

).) We remanded the case to the trial court once
again, however

, in light of the enactment of Senate Bill No. 620
( 2017

- 2018 Reg. Sess. ) , which gives trial courts discretion to

strike firearm enhancements for purposes of s entencing

. On remand, the trial court granted Asbury’s motion to

strike the enhancement, and re sentenced Asbury to the upper
term of 11 years for manslaughter.
Asbury filed a timely notice of appeal , and w e appointed
counsel to represent her in the matt er. After examining the

record, counsel filed a Wende 2 brief raising no issues on appeal

1 Unless otherwise specified, subsequent statutory

references are to the Penal Code.

2 People v. Wende (1979) 25 Cal.3d 436 ( Wende )

.3

and requesting that we independently review the record. On

January 12, 2021 , we sent a letter to Asbury and to counsel.

In the letter, we directed counsel to immediately send the

record on this appeal and a copy of the Wende brief to Asbury

and informed h er that s he had 30 days to submit by letter or

brief any ground of appeal, contention or argument s he wished

us to consider. 3 We have received no communicati on from
Asbury

. We have reviewed the entire record on appeal , and we
conclude that the trial court did not abuse its discretion by
striking the firearm enhancement and reimposing the upper

term of 11 years for manslaughter

. We are satisfied that
Asbury ’s counsel has fully complied with h is responsibilities

and that no arguable appellate issue exists. ( Wende , supra,

25 Cal.3d at p. 441; People v. Kelly (2006) 40 Cal.4th 106,

1 23

- 124 .)

3 The letter was returned to the court undeliverable because Asbury was no longer located at the prison to which we address ed the letter. We contacted Asbury’s appointed counsel,

who confirmed that Asbury had received a copy of the Wende

brief and the record on appeal . Asbury’s counsel also i nform ed

her of her right to file a supplemental brief.4 DISPOSITION

The trial court’s order is affirmed

. NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

BENDIX , J.

FEDERMAN , J. *

* Judge of the San Luis Obisp o County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of

the California Constitution.