P. v. Truong

P. v. Truong

Filed 9/24/08 P. v. Truong CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, v. NGHIA TRUNG TRUONG, Defendant and Appellant.

A121233 (San Mateo County Super. Ct. No. SC062329A)

Counsel for appellant has filed a brief raising no specific issues and asking for our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Counsel has also notified appellant of this filing and of his right to inform the court of any appellate issues. We have received a letter dated August 31, 2003, from appellant asking this court to dismiss the appeal. We decline to do so, exercising our discretion under California Rules of Court, rule 8.316(b)(2) to proceed. Having conducted the requisite review, we conclude no arguable issues exist on appeal and affirm.

Facts

Appellant was charged by information with five counts of residential burglary, three counts of felony receiving stolen property, and one count of felony possession of a fraudulent check. One of the burglaries was alleged to be a violent felony under Penal Code section 667.5, subdivision (c)(21), in that a victim was present in the home at the time of the burglary. Appellant was also alleged to have a prior conviction for residential burglary, alleged to be a serious felony (Pen. Code,  667, subd. (a)) and a strike conviction (Pen. Code,  1170.12, subd. (c)(1)).

Following an advisement and waiver of rights, appellant pled no contest to three counts of residential burglary, admitted that one was a violent felony and admitted his prior conviction as alleged. The court indicated a sentence of 14 years and 4 months, though it could depart from that indication either upward (to a maximum of 22 years and 4 months), or downward by striking the prior strike conviction.

At sentencing, the court declined to strike the prior strike conviction and sentenced appellant as indicated to the low term of two years for one count of residential burglary (doubled in light of the strike to four years) and, consecutively, to one-third the midterm or one year four months (doubled to two years eight months) for each of the other burglaries. Finally, the court added five years for the serious felony conviction under Penal Code section 667, subdivision (a), for a total sentence of 14 years and 4 months. The court ordered $183,810.23 in restitution to various victims, reserved restitution as to other victims, imposed various fines, and awarded custody credits consistent with Penal Code section 2933.1.

As pointed out by appellants counsel, prior to his change of plea, appellant was not advised on the record that he would be required to pay victim restitution. However, appellant did not object at sentencing to the order of restitution. Additionally, it is clear from the record that, at the time of the plea, appellant was aware that he would be required to pay restitution. Following appellants change of plea, the prosecutor commented: The People [ ] anticipate a Harvey[[1]] waiver as to the balance of the counts, and then we move to dismiss. The court then addressed appellant: And, Mr. Truong, do you agree that the Court can consider the remaining counts against you and the remaining allegations for purposes of imposing sentence and finding restitution in this case? Appellant agreed.

We do not see the foregoing as an arguable issue and, finding no others, affirm the judgment.

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REARDON, J. *

We concur:

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JONES, P. J.

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SIMONS, J.

* Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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[1]People v. Harvey (1979) 25 Cal.3d 754.