People v. Van CA4/2

Opinion

Filed 6/16/25 P. v. Van CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE,

Plaintiff and Respondent, E085739

v. (Super.Ct.No. FCH01225)

TOAN QUOC VAN, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Daniel W.

Detienne, Judge. Affirmed.

Toan Quoc Van, in pro. per.; and Charles Thomas Anderson, under appointment

by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

1 Defendant and appellant Toan Quoc Van filed a motion for relief pursuant to

Senate Bill No. 567, Assembly Bill No. 518, and Penal Code section 1170.18,1 which the

court denied.

On appeal, counsel has filed a brief under the authority of People v. Delgadillo

(2022) 14 Cal.5th 216 (Delgadillo), setting forth a statement of the case, requesting that

we exercise our discretion to independently review the record for error, and raising two

potentially arguable issues: (1) whether the court erred in denying defendant’s petition

under section 1170.18, subdivision (f); and (2) whether the denial of a request for relief

under section 1203.41, subdivision (a) constitutes an appealable order.2

We offered defendant the opportunity to file a personal supplemental brief, which

he has done.3 Defendant maintains his conviction for robbery should be redesignated as

a misdemeanor, vacated, and/or expunged. Defendant also contends insufficient

evidence supported his plea. We affirm.

1 All further statutory references are to the Penal Code.

2 The court did not deny defendant’s request under section 1203.41, because defendant never moved to withdraw his plea. Nevertheless, Appellate Defenders, Inc., sent this court a letter effectually requesting this court’s help in determining whether the matter was appealable. This court issued an order determining the matter was appealable. (See Teal v. Superior Court (2014) 60 Cal.4th 595, 599-601 [appealability not dependent on merits of underlying claim].)

3 “If the defendant . . . files a supplemental brief or letter, the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion.” (Delgadillo, supra, 14 Cal.5th at p. 232.)

2 I. PROCEDURAL BACKGROUND

The People charged defendant by information with eight counts of robbery (§ 211,

counts 1-8) and nine counts of false imprisonment (§ 236, counts 9-17). The People

additionally alleged that in his commission of all 17 offenses, defendant personally used a

handgun (former § 12022.5, subd. (a)).

On December 4, 1995, defendant pled no contest to one count of robbery (count

1). In return, on the People’s motion, the court dismissed the remaining counts and

allegations. Pursuant to the plea agreement, the court sentenced defendant to the low

term of three years in prison.4

On July 26, 2024, defendant filed a motion for relief under Senate Bill No. 567,

Assembly Bill No. 518, and section 1170.18. Defendant asserted that there was

insufficient evidence to support his conviction and that his conviction should be reduced

to a misdemeanor, expunged, or vacated. The court denied the request asserting it did not

have jurisdiction to consider it.

II. DISCUSSION

Defendant contends his conviction for robbery should be designated a

misdemeanor, vacated, and/or expunged.5 He maintains insufficient evidence supported

his guilty plea. We disagree.

4 Defendant was to serve the sentence concurrently to that imposed in another case in Orange County.

5 Defendant’s contention that his conviction should be vacated or expunged was unaccompanied by citations to authority or argument below. Defendant similarly fails to [footnote continued on next page]

3 “A person who . . . was serving a sentence for a conviction, whether by trial or

plea, of a felony or felonies who would have been guilty of a misdemeanor under the act

that added this section . . . had this act been in effect at the time of the offense may

petition for a recall of sentence before the trial court that entered the judgment of

conviction [in] their case to request resentencing . . . .” (§ 1170.18, subd. (a).)

Robbery is not one of the offenses enumerated in section 1170.18 as eligible for

reduction; defendant incorrectly asserts in his motion for resentencing that, “Robbery is

no longer a crime of violence.” (§ 667.5, subd. (c) [“‘[V]iolent felony’ means any of the

following: . . . (9) Any Robbery.”].) Thus, he is not entitled to relief pursuant to section

1170.18.

With respect to defendant’s challenge to the sufficiency of the evidence,

defendant’s plea, in and of itself, constitutes substantial evidence that he committed the

offense to which he pled. (People v. McGuire (1993) 14 Cal.App.4th 687, 697, fn. 12

[plea concedes all elements of offense, establishing sufficiency of the evidence of guilt];

People v. Maultsby (2012) 53 Cal.4th 296, 304-305, fn. 6.) Moreover, defendant

forfeited any challenge to the plea by failing to file a motion to withdraw it and/or appeal

from the judgment. (People v. Turner (2002) 96 Cal.App.4th 1409, 1412-1413.)

develop any such argument on appeal. “‘[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as [forfeited], and pass it without consideration. [Citations.]’ [Citations] This principle is especially true when an appellant makes a general assertion, unsupported by specific argument . . . . [Citation.]” (People v. Stanley (1995) 10 Cal.4th 764, 793; accord People v. Earp (1999) 20 Cal.4th 826, 894.) We therefore hold that defendant has forfeited any argument that his conviction should be vacated or expunged.

4 Furthermore, section 1170.18 does not afford defendant “a new opportunity to . . .

attack the sufficiency of the evidence . . . .” (See People v. Farfan (2021) 71 Cal.App.5th

942, 947; accord People v. Burns (2023) 95 Cal.App.5th 862, 865 [“Section 1172.6 does

not create a right to a second appeal, and [defendant] cannot use it to resurrect a claim

that should have been raised in his [earlier] direct appeal.”].)

Finally, defendant is not entitled to relief under Senate Bill No. 567 or Assembly

Bill No. 518 because he was sentenced to the low term and was convicted of only one

offense, i.e., the court sentenced defendant to the least potential term of imprisonment

based on his conviction. (People v. Flores (2022) 73 Cal.App.5th 1032, 1038 [“Senate

Bill No. 567 amended section 1170, former subdivision (b) by making the middle term

the presumptive sentence for a term of imprisonment unless certain circumstances exist.

[Fn. omitted.]”]; People v. Mani (2022) 74 Cal.App.5th 343, 351 [Assembly Bill No. 518

amended section 654 to afford sentencing courts discretion to sentence defendant to a

lesser term of the offenses for which defendant was convicted.].) Thus, the court

properly denied defendant’s motion.

5 III. DISPOSITION

The order denying defendant’s motion is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER Acting P. J.

We concur:

MILLER J.

FIELDS J.