Filed 4/2/21 P. v. Asbury CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.

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.

 B307139

 (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. Asbury’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 selected 

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

Code,1 § 193, subd. (a)), plus a 10-year enhancement pursuant 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. 24, 2018, B284220) [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 sentencing. 

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

strike the enhancement, and resentenced Asbury to the upper 

term of 11 years for manslaughter.

Asbury filed a timely notice of appeal, and we appointed 

counsel to represent her in the matter. After examining the 

record, counsel filed a Wende2 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 her that she had 30 days to submit by letter or 

brief any ground of appeal, contention or argument she wished 

us to consider.3 We have received no communication 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 his responsibilities 

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

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

123-124.)

3 The letter was returned to the court undeliverable 

because Asbury was no longer located at the prison to which we 

addressed 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 informed

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 Obispo County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.