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The People v. Nhi A. Truong

March 25, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
NHI A. TRUONG, DEFENDANT AND APPELLANT.



Super. Ct. No. 09800

The opinion of the court was delivered by: Duarte ,j.

P. v. Truong CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Nhi A. Truong pled guilty to driving under the influence of alcohol within 10 years of three or more prior drunk driving convictions, and driving with a blood-alcohol level of 0.08 percent or greater within 10 years of three or more prior drunk driving convictions. He also stipulated to having the prerequisite three prior drunk driving convictions and to having a prior strike conviction for robbery in 1994.

Defendant moved to strike his prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The trial court denied the motion and sentenced defendant to the low term of 16 months, which was doubled by virtue of the strike conviction to total a sentence of 32 months in prison. (Pen. Code, §667.)

Defendant's sole contention on appeal is that the trial court abused its discretion by refusing to strike his prior conviction. We disagree and shall affirm the judgment.

BACKGROUND

In his motion to strike the prior strike conviction for robbery, defendant argued that he was "not egregiously intoxicated" in connection with his current offense because his blood-alcohol level was only 0.12 percent, he neither caused an accident nor injured anyone, and he voluntarily admitted wrongdoing. He also argued that his alcohol addiction "significantly reduces his culpability for the [present] crime" and his prior criminal record in the recent past was directly related to that addiction.

Moreover, he argued, the previous "violent" behavior that led to his strike conviction for robbery occurred 15 years ago. Since then, he "has experienced a complete turnaround in his life. He went from the gang lifestyle of Chinatown in San Francisco in the early 1990's to a working, family man" and "walked away from that lifestyle, improved his life and did not become a career criminal. This is a remarkable feat and exactly the type of case where the . . . 'Three Strikes' law should not be applied."

At the conclusion of the hearing on the motion, the court found that defendant "was not outside the heartland" of the Three Strikes law, and that defendant's repetitive driving under the influence convictions were "well within the heartland" of the statutory scheme. The court noted that driving under the influence is a serious and destructive crime, and even though defendant's current offense involved no injuries, defendant had shown repeated disregard for the law by drinking and driving. Finding that defendant's case was not one where the interests of justice would be served by dismissing the prior strike, the court denied the Romero motion.

Continuing on with the sentencing hearing, the court noted that the factors set forth above were mitigating factors to be considered when deciding where in the applicable triad defendant's sentence should lie. After considering these factors, the court sentenced defendant to the low term of 16 months, doubled due to the prior strike, for a total sentence of 32 months.

DISCUSSION

Defendant asserts the trial court abused its discretion by refusing to strike his prior strike conviction under Romero. Under Penal Code section 1385, subdivision (a), a "judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed." In Romero, our Supreme Court held that a trial court may utilize Penal Code section 1385, subdivision (a) to strike or vacate a prior strike conviction for purposes of sentencing under the Three Strikes law, "subject, however, to strict compliance with the provisions of [Penal Code] section 1385 and to review for abuse of discretion." (Romero, supra, 13 Cal.4th at p. 504.) It follows that a trial court's ...


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