People v. Vongchanh CA3

Filed 9/25/23 P. v. Vongchanh CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent, C097089

v. (Super. Ct. No. 22CF01797)

SOURIYA DANNY VONGCHANH,

Defendant and Appellant.

A jury convicted defendant Souriya Danny Vongchanh of arson after he set a fire in Oroville. (Pen. Code, § 451, subd. (c).)1 In a bifurcated proceeding, the trial court found that defendant had been previously convicted of arson in 2019, a serious felony offense within the meaning of the three strikes law (§§ 1170.12, 667, subd. (b)-(i))

1 Undesignated statutory references are to the Penal Code.

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and also qualifying him for an additional five-year term of imprisonment. (§ 667, subd. (a)(1).) The trial court sentenced defendant to serve an aggregate determinate prison term of 13 years. On appeal, defendant contends (1) there is insufficient evidence that he acted intentionally and maliciously when he set the fire, and (2) the trial court abused its discretion in declining to strike the five-year enhancement under section 1385, as recently amended by Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate Bill 81). Finding no merit in defendant’s contentions, we will affirm the judgment. BACKGROUND On April 11, 2022, at 9:41 a.m., Battalion Chief Isaac Ruiz of the Oroville Fire Department was dispatched to a fire at Bedrock Park in Oroville. Bedrock Park is situated along the Feather River with a residential community directly to the south. Immediately adjacent to the park are tennis courts, separated from the park and river by a levee. As Chief Ruiz approached the park, he saw smoke coming from the lower part of the levee, just north of the tennis courts. When he got closer, he could see a small fire burning the short grass that was growing on the levee, as well as fallen leaves and other organic material. Defendant was standing in a blackened area. Chief Ruiz asked defendant what he was doing and defendant said he “lit the fire to clear the white grass” and rid the area of either ticks or leeches. Ruiz remembered defendant’s response because he thought it was odd. Ruiz testified that fires are not allowed at the park, and wind could cause a fire to travel from the levee and threaten homes and property. Ruiz contacted law enforcement. A fire engine arrived and Chief Ruiz told defendant to leave so his firefighters could put out the fire. Defendant said he would put the fire out himself, picked up a nearby concrete block, and started slamming the block on the ground. Ruiz again asked