People v. Vongchanh CA3

Filed 11/2/20 P. v. Vongchanh CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte) ----

THE PEOPLE, C090988

Plaintiff and Respondent, (Super. Ct. No. 19CF04225)

v.

SOURIYA DANNY VONGCHANH,

Defendant and Appellant.

Defendant Souriya Danny Vongchanh was seen leaving a grass fire that damaged a fence and threatened to burn residential structures. He was convicted of arson (Pen. Code, § 451, subd. (d))1 and sentenced to three years in state prison plus an additional year for the special allegation he had served a prior prison term (§ 667.5, subd. (b)). The court also imposed various fines and fees. On appeal, defendant makes three arguments: (1) the arson conviction is unsupported by substantial evidence; (2) remand is necessary

1 Undesignated statutory references are to the Penal Code.

1

for the trial court to conduct an ability to pay hearing on the fines and fees, relying on People v. Duenas (2019) 30 Cal.App.5th 1157 (Dueñas); and (3) his prior prison term enhancement should be stricken under Senate Bill No. 136. We strike the one-year prior prison term enhancement and affirm. I. BACKGROUND At a bench trial, two witnesses testified they were nearby the fire when it started and saw defendant leaving the scene. Though people often camped in the area, defendant was the only other person present when the fire started and was about 10 feet away from the fire when the witnesses saw him walking away. One of the witnesses said she heard the defendant say, “How did you like that?” They then left to go call for help. Fire Captain Donald Robinson testified to arriving at the scene, seeing smoke rising behind a fence. Before the fire was put out, a total area of .19 acres of grass had burned and portions of the fence were damaged. He determined a 30-foot area where the fire started, which was grassy and surrounded on three sides by residential structures and sheds within about 50 feet. Captain Robinson could not, however, determine the source of the fire and whether it was or was not arson. There was also no evidence the fire was started naturally such as by lighting or downed power lines, and there was no evidence it was started by cooking or someone smoking. Police Officer Robert Raiter testified defendant was arrested based on the description provided by the witnesses. He was found carrying two lighters at a nearby store within 10 minutes of the fire being started. Officer Raiter did an in-field show up with the witnesses who identified defendant as the person they saw at the fire. He also described that area as a place where homeless people would camp, and he had told defendant to leave the area the day before the fire. The court found defendant guilty of arson. It also found true the prior prison term allegation, which was for evading a police officer. (Veh. Code, § 2800.2, subd. (a).) The court sentenced defendant to four years—the upper term of three years for arson and one