Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF150180. W. Charles Morgan, Judge.
Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck, Heidi T. Salerno, and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Defendant and appellant Mandaz Johnson contends the trial court abused its discretion by denying his Romero motion and erred by applying the Penal Code section 2933.1 limitation to his section 4019 local custody conduct credits. The People contend the trial court did not abuse its discretion but agree that the application of the section 2933.1 limitation was error. We modify the judgment to award full section 4019 conduct credits and otherwise affirm.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
Undesignated statutory references are to the Penal Code.
I. BACKGROUND
In 1982, as a juvenile, defendant was found to have committed robbery. (§ 211.)
On November 1, 1990, defendant was convicted of second degree robbery. (Former § 212.5, subd. (b).)
Defendant was released on parole on December 3, 1991. Less than two weeks later, on December 16, 1991, defendant was convicted of robbery. (§ 211.)
On March 21, 1997, defendant was convicted of possessing a controlled substance in prison. (§ 4573.6.)
Defendant was convicted on February 4, 2005, of evading a peace officer. (Veh. Code, § 2800.2).
On January 27, 2009, defendant was found to have violated the terms of his parole.
On April 30, 2009, the victim met with a friend in a grocery store parking lot. Defendant approached them, took the victim’s cash, credit cards, identification, and cell phones, looked through both the victim’s and the friend’s cars, and then drove off in the friend’s car. The victim picked up one of his cell phones that defendant had dropped, followed him in his car, and called 911. The victim pursued defendant until he saw the police in his rearview mirror. Sheriff’s deputies pursued defendant until he eventually stopped his vehicle. Defendant was still on parole.
A jury convicted defendant of grand theft (Pen. Code, § 487, count 1), a lesser included offense of robbery (Pen. Code, § 211), and evading a peace officer (Veh. Code, § 2800.2, count 4). Defendant contended, and the victim believed, that the friend had encouraged the incident; the jury acquitted defendant of robbing the friend (Pen. Code, § 211, count 2) and carjacking the friend (Pen. Code, § 215, subd. (a), count 3). Defendant admitted his four prior convictions, which constituted four prison priors (Pen. Code, § 667.5, subd. (b)) and two strike priors (Pen. Code, § 667, subds. (c) & (e)).
The hearing on the Romero motion was heard immediately prior to sentencing on April 2, 2010. Defendant’s trial counsel described defendant as a 40 year old who had been institutionalized when he was 12 and who had “been warehoused almost continually since he was a kid.” Counsel contended that defendant “does not and has never had the opportunity to learn how to live and function in a rational manner in a non-institutional setting.” Defendant’s trial counsel then noted a brain damage diagnosis included in a medical report attached to his motion, and referenced the prior probation report, also attached to his motion, for the proposition that defendant “is a long-time drug user but has never had the opportunity to have any drug treatment.” Counsel then noted defendant had not, in the present offense or in the priors, used a weapon or violence on anyone, but “[w]hat he did was steal from people.” Defendant’s trial counsel then characterized defendant as a nuisance rather than a serious menace, and urged that with drug rehabilitation defendant “just may be able to function on the outside.”
Defendant’s sister then spoke; the trial court agreed to consider her statements for both sentencing and the Romero motion. She first read a statement from their mother offering support for defendant’s rehabilitation and calling a life term “damaging to the family.” She then read her own statement that requested leniency, noted defendant’s brain surgery at age three, noted teacher complaints of poor attention span and hyperactivity, noted that defendant withdrew from the family as his drug problem continued, and requested rehabilitation services for defendant. Defendant’s trial counsel then concluded by asserting that defendant’s conduct “merits the word stupid a lot more than it does the word vicious” and contending that “the three-strikes law was designed for vicious people and this is not a vicious man.”
The People responded, “The defendant has been in and out of incarceration because of the choices that he made. He, at the age of 15, went in to Juvenile Hall for receiving stolen property and has been in and out of the system ever since. He committed his first robbery at the age of about 20 and received three years in prison in 1990. In 1991, he again committed another robbery and received ten years. While he was in prison, he [was convicted of violating Penal Code section] 4573.6.... At that point he was eligible for 25 to life but instead he was given eight years. He had a chance to make a difference in his life and he chose not to make it. [¶] Instead, in 2005, he also received a conviction for evading, a [Vehicle Code section] 2800.2, and again he was eligible for 25 to life but instead received four years. Here we are again, your Honor. He has been convicted of two felonies and he should receive the 25-to-life that he has escaped the last two times.”
The trial court then ruled, “Well, as to the motion to strike the two strikes that the defendant has admitted to, I’m going to deny that request. The overriding or overarching problem with [defendant]—and treating him as an individual, not as just a collective person that falls within the purview of the California strikes laws—and that is what [the prosecutor] has just now said, and that is, he’s had two opportunities. I mean, what a wake-up call that he could have been now in prison instead of out committing these silly crimes, stupid crimes, however you want to phrase them, and he didn’t. He didn’t take advantage twice of that sentencing scheme before. And he knew what he was facing at the time because it was explained without question. And here he is again. [¶] So, that, as I say, is the overarching problem with this specific defendant. And to strike them and give him a, in relative terms, short determinate sentence I don’t think is justified for this individual. As I say, the request is denied.”
Moving on to sentencing, the trial court selected the evading count as the principal count and, due to the strikes, imposed a term of 25 years to life. However, rather than imposing a second and consecutive 25 year to life term for the theft, the trial court struck the strikes for the purposes of sentencing. It did so “because—it may be [a pyrrhic] victory, but I think it’s appropriate because of what I said earlier about his conduct. But on the other side of that coin, I think it’s appropriate because a person getting convicted of a [section] 487, as this one panned out, the punishment is great disparity in this punishment as to others as mentioned. Also[, ] that the strikes are 18 years old and somewhat old, though they are not extremely old but are rather old, that has brought him to us in this condition. And he is a man of 40 years of age and having to do 85 percent of time, he is going to be an older gentleman—not old, we know that 60s, that’s not old—an older gentleman, and hopefully by then, one will have understood. I don’t care how much or how little he’s had in the past, these things should be wake-up calls every single time.” The trial court then imposed a consecutive midterm of two years for the theft count, and struck all of the prison priors because “[t]he term of 25 to life is a very, very punitive sentence, and that’s enough.”
Defendant was granted credit for the 352 days he had spent in local custody. Defendant’s trial counsel agreed that defendant “gets 2933.1 time.” The prosecutor calculated that 15 percent of 352 is 42, and the trial court granted 42 days of section 4019 conduct credits.
ROMERO MOTION
Defendant contends the trial court abused its discretion by denying his Romero motion. In particular, defendant contends the trial court misunderstood its ability to impose a lengthy determinate sentence and that the trial court’s decision making process was flawed. We disagree.
“On appeal, we presume that a judgment or order of the trial court is correct, ‘ “[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.” ’ [Citation.]” (People v. Giordano (2007) 42 Cal.4th 644, 666.) “[A] 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.) Defendant has the burden of demonstrating that the trial court’s “decision is so irrational or arbitrary that no reasonable person could agree with it, ” and in the absence of such a showing, we presume the trial court acted correctly. (Id. at pp. 376-377.) An exercise of discretion to strike a prior conviction pursuant to section 1385 requires the trial court to balance the legitimate societal interest in imposing longer sentences for repeat offenders and the defendant’s constitutional right against disproportionate punishment. (Romero, supra, 13 Cal.4th at pp. 530-531.) Trial courts “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.” (People v. Williams (1998) 17 Cal.4th 148, 161.) There is a “ ‘strong presumption’ [citation] that the trial judge properly exercised his discretion in refusing to strike a prior conviction allegation.” (In re Large (2007) 41 Cal.4th 538, 551.) The circumstances must be “ ‘extraordinary’ ” for a career criminal to be deemed to fall outside the scheme of the Three Strikes law. (Carmony, at p. 378.)
While defendant’s present convictions may have been neither serious felonies nor violent ones, and while the jury did find him guilty of a lesser offense rather than the charged offense, and not guilty of two others, by virtue of his substantial and consistent criminal activity, he falls squarely within the bounds of the antirecidivist sentencing schemes that enhanced his sentence. Furthermore, the trial court’s statement, about striking “them” to provide “in relative terms, [a] short determinate sentence, ” was merely addressing the motion (as to both strikes) that was before it, and is not an affirmative indication that the trial court was unaware of its discretion to strike only one strike for each count. Indeed, the trial court acknowledged the factors in defendant’s favor and, in effect, granted defendant’s Romero motion in part by striking the strikes for the purposes of sentencing on the theft count. Thus, the trial court’s actions indicate it was aware of its options and did not have to exercise its discretion in an all or nothing manner. Accordingly, the sentence imposed was not irrational or arbitrary and the trial court did not abuse its discretion.
PRESENTENCE CUSTODY CREDITS
Defendant contends, and the People agree, that he was not subject to the section 2933.1 limitation on his section 4019 conduct credits. They are correct because “the limit on conduct credits in section 2933.1 should apply only where the current conviction, considered without reference to the three strikes law, qualifies as a ‘violent’ felony. Because defendant’s current offenses were not, by themselves, ‘violent’ felonies, he should have received presentence credits under section 4019 rather than section 2933.1.” (People v. Henson (1997) 57 Cal.App.4th 1380, 1389–1390 [Fourth Dist., Div. Two].)
DISPOSITION
The judgment is modified to remove the section 2933.1 limitation on defendant’s section 4019 conduct credits. Accordingly, defendant has presentence credit for time served of 528 days, consisting of 352 actual days, and 176 days of section 4019 conduct credit. The superior court clerk is directed to prepare a new minute order, as well as an amended abstract of judgment, reflecting the modification, and forward certified copies to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: MILLER J., CODRINGTON J.