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The People v. Nhi A. Truong

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Yolo


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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 "failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).)

"In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, '"[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review."' [Citations.] Second, a '"decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.'"' [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Carmony, supra, 33 Cal.4th at pp. 376-377.)

We are also mindful that "'the Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court "conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme."' [Citation.]" (Carmony, supra, 33 Cal.4th at p. 377.) "[T]he court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (Ibid.; People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)

Thus, the Three Strikes law "creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (Carmony, supra, 33 Cal.4th at p. 378.) This presumption will only be rebutted in an "extraordinary case--where the relevant factors described in [Williams] [citation] manifestly support the striking of a prior conviction and no reasonable minds could differ. . . ." (Ibid.)

Here, the trial court was plainly aware of its discretion, balanced the relevant facts, and did not give any impermissible reasons for its decision. It considered only "the nature and circumstances of the defendant's present felonies and prior [felony offenses], and the particulars of his background, character, and prospects" (Williams, supra, 17 Cal.4th at p. 161) to reach its conclusion that defendant did not fall outside the spirit of the Three Strikes scheme. These are proper considerations.

Defendant acknowledges that his present offense is serious and that he has had multiple drunk driving convictions since his 1994 strike offense. To the extent defendant means to suggest that the remoteness of his prior strike conviction compelled a result in his favor, his argument fails because of his criminal activities in the interim. (See Williams, supra, 17 Cal.4th at p. 163 [finding "not significant" the fact that 13 years passed between the prior serious and/or violent felony convictions and the current felony because the defendant did not refrain from criminal activity during that span of time]; People v. Gaston (1999) 74 Cal.App.4th 310, 322 [remoteness of the priors insignificant because the defendant had not led a legally blameless life in the interim].)

Defendant also argues that because "all of the convictions relate to his addiction to alcohol, and not to a criminal lifestyle," the court should have relieved him from the operation of the Three Strikes law. But defendant offers no authority for the proposition that the court's refusal to strike his prior conviction in light of his alcohol addiction was "so irrational or arbitrary that no reasonable person could agree with it." (Cf. Carmony, supra, 33 Cal.4th at p. 377.) Indeed, other courts have held that addiction is not necessarily regarded as a mitigating factor when, as here, a criminal defendant has a long-term problem and seems unwilling to pursue treatment. (See Williams, supra, 17 Cal.4th at pp. 155, 163; People v. Martinez (1999) 71 Cal.App.4th 1502, 1511; cf. People v. Garcia (1999) 20 Cal.4th 490, 503.)

Further, the court did not err, much less act in a "nonsensical" manner, as defendant argues, in considering the same information in mitigation of sentence while simultaneously denying the Romero motion. When exercising its discretion in selecting among the three authorized prison terms available for the offense, the sentencing court may consider broadly those factors set forth in the applicable California Rules of Court (see Cal. Rules of Court, rules 4.421 & 4.423) and "any other factor reasonably related to the sentencing decision," (Cal. Rules of Court, rule 4.420(b)) and weigh them however it sees fit. A single factor in aggravation can justify the choice in term. (See, e.g., People v. Brown (2000) 83 Cal.App.4th 1037, 1043.) In contrast, as we have explained, "'the Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike,'" unless the sentencing court "conclude[s] that an exception to the scheme should be made. . . ." (See Carmony, supra, 33 Cal.4th at p. 377, italics added.)

The sentencing judge did not abuse its discretion in utilizing the same information to conclude the inapplicability of any exception to the Three Strikes law and to justify imposing the low term of the applicable sentencing triad.

Nor has defendant shown abuse of discretion in denial of the Romero motion.

DISPOSITION

The judgment is affirmed.

We concur: NICHOLSON , Acting P.J. ROBIE ,J.

20110325

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