Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB058486, Annemarie G. Pace, Judge.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Christine Levingston Bergman and Rhonda Cartwright-Ladendorf, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
A jury found defendant and appellant Richard Wooters guilty of two counts of assault with a deadly weapon by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(2)) (counts 1 & 2); one count of dependent or elder abuse (§ 368, subd. (b)(1)) (count 3); and one count of involuntary manslaughter (§ 192, subd. (b)), a lesser included offense of murder (§ 187, subd. (a)) (count 4). The jury also found true that in the commission of count 2, defendant had personally inflicted great bodily injury on a victim, to wit, his grandmother, who was 70 years of age or older (§ 12022.7, subd. (c)). The jury further found true that in the commission of count 3, defendant had caused great bodily injury (§ 12022.7, subd. (c)) to a victim, to wit, his grandmother, age 90 years (§ 368, subd. (b)(2)(B)); and that he had proximately caused the death of his 90-year-old grandmother (§ 368, subd. (b)(3)(B)). In a bifurcated proceeding, the trial court found true that defendant had suffered a prior serious and/or violent felony strike conviction (§§ 667, subd. (b)-(i), 1170.12, subd. (a)-(d)).
All further statutory references are to the Penal Code unless otherwise indicated.
After the trial court denied defendant’s motion to strike his prior strike conviction, defendant was sentenced to a total term of 15 years in state prison. On appeal, defendant contends: (1) the trial court erred in denying his motion to strike his prior strike conviction; and (2) the inaccurate portions of the abstract of judgment and the court’s minute order of the sentencing hearing should be corrected. We agree with the parties that the abstract of judgment and minute order of the sentencing hearing must be corrected. We, however, reject defendant’s remaining contention.
I
FACTUAL BACKGROUND
In 2006, 38-year-old defendant lived with his 60-year-old mother, his father, and his 90-year-old grandmother in Colton. Defendant suffered from schizophrenia and a major depressive disorder. He saw a psychiatrist and had an injection of time-released Risperdal every two weeks. He also took other medications orally to combat his mental disorder on a daily basis.
Defendant had attempted suicide twice in the past by slicing his wrist and shooting himself in the mouth with a shotgun. He was arrested and imprisoned for illegally possessing firearms. While in state prison, something “very traumatic” happened and defendant did not like to be touched.
On October 9, 2006, defendant became agitated, woke his grandmother up around 8:00 a.m., and began calling her obscene names. He eventually “calmed down and apologized” to his grandmother. However, he again began acting strange. He was pacing, getting up and down, and said he was a member of the mafia. Defendant’s mother smelled alcohol on defendant’s breath and realized defendant had been drinking. She found three empty wine bottles inside a pillowcase in defendant’s bedroom. Defendant knew he was not allowed to drink any alcoholic beverages while taking his prescribed medication, and that drinking any alcoholic beverages was prohibited because it was a condition of him living with his parents. In addition, his mother told him he was not allowed to drink any alcoholic beverages at a birthday party held for his grandmother two nights before on a Saturday. Defendant was sober when he went to bed on Sunday, and the bottles of wine were still accounted for.
Defendant eventually calmed down, but about an hour to an hour and a half later, defendant again began loudly shouting at his grandmother, saying he was part of the mafia, that the mafia was his friend, and that he had friends in the mafia. Defendant’s grandmother was sitting at the kitchen table, crying, and saying she did not know what defendant was talking about.
Defendant’s mother told defendant to calm down. As he turned and walked toward the family room, defendant’s mother placed her hand on his shoulder and told him he needed to go upstairs to “sleep this off.” Defendant then turned around and pushed his mother. In response, she slapped him in the face. Defendant then grabbed his mother by the shoulders, pushed her “into the kitchen... into the table and over [a] chair.” He slammed his mother’s head on the table. He then grabbed his mother, threw her to the floor, and began banging her head on the floor. Defendant’s grandmother tried to pull defendant off his mother. However, he grabbed his grandmother and threw her to the floor next to his mother. He then began kicking both of them “pretty hard” with his boots near their stomach areas. He eventually stopped and began throwing items everywhere.
Meanwhile, defendant’s mother crawled to a telephone to call the police. When defendant realized his mother was on the telephone, he began throwing items at her. Defendant’s mother eventually ran outside and again tried to call the police. Defendant continued to scream and throw items.
As defendant’s mother was talking to the police, hysterically telling them that defendant had attacked her and her mother, defendant came outside. He knocked her down, snatched the telephone from her hand, and threw it into the street. Defendant’s mother screamed; she was afraid for her life. Defendant then began walking down the street.
When defendant’s mother returned inside the house, she found her mother unconscious. She again called the police and told them she needed an ambulance. Defendant’s grandmother regained consciousness briefly and wanted to get up; however, her daughter told her to stay still until the ambulance arrived.
A short time later, defendant was arrested. He appeared a bit agitated that he was being stopped, but was cooperative and did not say “weird” things.
Defendant’s mother suffered pulled muscles and bruised ribs as a result of the attack. Defendant’s grandmother was taken to a hospital and went in and out of consciousness for a few days. She suffered fractures to her neck, spine, and cheekbones as a result of the attack. She remained in the hospital for about a month, during which time she required a ventilator. She was then moved to a convalescent home where, after 10 hours, she passed away.
Defendant’s defense essentially focused on showing the extent of his mental illness. His treating psychiatrist testified that defendant displayed symptoms of disorganized thoughts, delusions, agitation, paranoid thoughts, and auditory hallucinations. He opined that despite the continued treatment and medication, defendant was never symptom-free of schizophrenia.
Defendant testified that he did not assault his mother or grandmother. Specifically, he claimed that he did not suffer from a mental illness; that he was not prescribed any medication; that his mother is not his biological mother; that he is in a member of the mafia; that he was living in a sober living home for drug addicts on the date of the incident; and that he did not attack his grandmother or his mother.
II
DISCUSSION
A. Motion to Strike Prior Strike Conviction
Defendant argues the trial court abused its discretion by refusing to strike his prior serious and violent felony conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, because he suffered from a mental illness. We disagree.
A trial court’s decision to not dismiss or strike a prior serious and/or violent felony conviction allegation under section 1385 is reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376 (Carmony).) “In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘ “[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.” ’ [Citations.] Second, a ‘ “decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’ [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at pp. 376-377; see also People v. Myers (1999) 69 Cal.App.4th 305, 309 (Myers).)
The California Supreme Court explained, “In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not ‘aware of its discretion’ to dismiss [citation], or where the court considered impermissible factors in declining to dismiss.” (Carmony, supra, 33 Cal.4th at p. 378.) Discretion is also abused when the trial court’s decision to strike or not to strike a prior is not in conformity with the “spirit” of the law. (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams); Myers, supra, 69 Cal.App.4th at p. 310.)
But “[i]t is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance.” (Myers, supra, 69 Cal.App.4th at p. 310.) “Because the circumstances must be ‘extraordinary... by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (Carmony, supra, 33 Cal.4th at p. 378, quoting People v. Strong (2001) 87 Cal.App.4th 328, 338.)
The touchstone of the analysis must be “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.” (Williams, supra, 17 Cal.4th at p. 161.) A decision to dismiss a strike allegation based on its remoteness in time is an abuse of discretion where the defendant has not led a life free of crime since the time of his conviction. (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.)
Defendant contends the court should have granted his request to strike his prior strike conviction due to the “overwhelming evidence of [his] profound mental illness.” We cannot conclude the trial court abused its discretion in declining to strike defendant’s prior strike conviction. The relevant considerations supported the trial court’s ruling, and there is nothing in the record to show that the court declined to exercise its discretion on improper reasons or that it failed to consider and balance the relevant factors, including defendant’s mental illness, personal characteristics, and criminal background. In fact, the record clearly shows the court considered defendant’s mental illness and was aware of its discretion, aware of the applicable factors a court must consider in dismissing a prior strike, and appropriately applied the factors as outlined in Williams. None of defendant’s mitigating circumstances required the court to strike the prior.
This case is far from extraordinary. Defendant has manifested a persistent inability to conform his conduct to the requirements of the law. He had been convicted of evading a peace officer and placed on probation in 1994. In 1995, his probation was revoked and he was sentenced to 180 days in county jail. In 1996, he was convicted of robbery and sent to the California Rehabilitation Center (CRC) for three years. In 2003, he was found not suitable for a commitment to the CRC and was ordered to serve two years in state prison. Subsequently, in 2006, he committed the instant violent offenses. Although defendant had been diagnosed with schizophrenia and a major depression disorder, he denied suffering from any mental condition other than depression. In addition, the record shows that defendant is unreliable in taking his prescribed medication or not consuming alcohol while taking his prescribed medication. Moreover, defendant is a threat to public safety based on his past violent and serious felony conviction and his current violent offenses.
The court here could not overlook the fact defendant continued to commit serious criminal offenses and violate the terms and conditions of his probation and parole even after serving time in state prison and receiving continued treatment for his mental illness. His conduct as a whole was a strong indication of unwillingness or inability to comply with the law. It is clear from the record that prior rehabilitative efforts have been unsuccessful for defendant. All of these factors were relevant to the trial court’s decision under Romero; there is no indication from the record here that the court failed to consider the relevant factors or defendant’s mental illness or that it failed to properly balance the relevant factors. Given defendant’s criminal history, his inability to avoid criminal activity for a substantial period of time, his increasingly violent behavior, and his lack of remorse for the present crimes, the trial court was well within its discretion to find that defendant fell within the spirit of the three strikes law despite his mental illness. Thus, we conclude the trial court did not abuse its discretion in declining to strike defendant’s prior strike conviction.
B. Correction of Abstract of Judgment
At the June 24, 2009, sentencing hearing, the trial court struck the great bodily injury enhancement under section 368, subdivision (b)(2)(B). However, the court’s minute order of the sentencing hearing and the abstract of judgment incorrectly notes that a concurrent five-year term was imposed for the section 368, subdivision (b)(2)(B), enhancement. The abstract of judgment also incorrectly notes that defendant was convicted in count 4 of “1st MURDER” pursuant to “PC 187(A)*.” In addition, the abstract of judgment fails to show a check mark in the box indicating defendant was sentenced under the two strikes provisions of sections 667, subdivisions (b)-(i), and 1170.12, subdivision (c) (item No. 4 of the abstract of judgment).
As the parties point out, the abstract of judgment and the court’s minute order of the sentencing hearing should, therefore, be corrected accordingly. We agree. The court’s oral pronouncement of sentence prevails over the minutes and the abstract of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Clerical errors can and should be corrected at any time. (Id. at pp. 185-187.) We have the inherent power to correct errors to make records reflect the true facts. (Id. at p. 185.) The trial court should, therefore, correct its sentencing minute order and abstract of judgment accordingly.
III
DISPOSITION
The superior court clerk is directed to correct its sentencing minute order and the abstract of judgment to reflect that the section 368, subdivision (b)(2)(B), enhancement was stricken; that defendant was convicted of involuntary manslaughter pursuant to section 192, subdivision (b), in count 4; and to place a check mark in box No. 4 on the abstract of judgment indicating sections 667, subdivisions (b)-(i), and 1170.12, subdivision (c). The superior court clerk is also ordered to forward a corrected copy of the abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: RAMIREZ P. J., HOLLENHORST J.