P. v. Le













Filed 10/7/10 P. v. Le CA6

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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



SIXTH
APPELLATE DISTRICT




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THE PEOPLE, Plaintiff and Respondent, v. SI DUNG LE, Defendant and Appellant.

H034430 (Santa Clara County Super. Ct. No. CC895738)

Defendant Si Dung Le pleaded no contest to second degree robbery (Pen. Code,
§§ 211, 212.5, subd. (c))[1]
and misdemeanor petty theft (§§ 484, 488).
He also admitted
allegations that he personally used a deadly or dangerous weapon (§ 12022,
subd. (b)(1)) in the commission of the robbery and had suffered a prior serious
felony conviction that also qualified as a strike (§§ 667, subds. (a), (b)-(i),
1170.12). After refusing to dismiss the
prior strike conviction finding pursuant to People v. Superior Court
(Romero) (1996) 13 Cal.4th 497 (Romero),
the trial court imposed a nine-year prison term.

On appeal, defendant
claims the trial court misunderstood the scope of its discretion on the >Romero motion and abused that discretion
when it refused to strike the prior strike conviction finding. We affirm.

I. Factual[2]
and Procedural Background

Defendant loaded $530 worth of food
items into a shopping cart and left a San Jose
market without paying for them. When the
store's security officer, David Ngar, and its manager, William Ly, struggled
with defendant for the cart outside the market, defendant pulled a large knife
from the waistband of his pants and waved it around in a threatening
manner. As he did so, a smaller knife
fell to the ground. Ngar and Ly backed
off, and defendant fled, leaving the cart behind. Police apprehended him a few blocks away. Ngar and Ly identified him at an in-field
showup, and Ngar told police defendant was the same man who had stolen about
$250 worth of food from the market the day before.

Defendant told police that he was
homeless and hungry and planned to sell the items to get money for food.

Defendant was charged by
information with second degree robbery (§§ 211, 212.5, subd. (c)) and
misdemeanor petty theft (§§ 484, 488).
It was also specially alleged that he had personally used a deadly or dangerous weapon
(§ 12022, subd. (b)(1)) in the commission of the robbery and that he had
suffered a prior serious felony and strike conviction (§§ 667, subds. (a),
(b)-(i), 1170.12).

Defendant pleaded not guilty and denied the
prior conviction allegation. Eight weeks
later, he changed his plea to not guilty by reason of insanity (NGI), and the
court appointed two doctors to examine him to determine whether he was
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