Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR30901
Jones, P.J.
William E. Banks appeals from a modified judgment that was entered after a remand from this court. He contends (1) the trial court violated the principles articulated in People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) and its progeny when it declined to strike a prior conviction, (2) the court erred when awarding custody credits, and (3) the abstract of judgment contains an error that could be corrected. We conclude appellant’s second and third arguments have merit and will order the appropriate modifications. In all other respects, we will affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The judgment at issue is based on two separate criminal cases. The first, case number SCR31608, arose from the following facts:
On August 14, 2000, appellant and a cohort went to the home of Marina Williams to speak with her husband Jerry, who was on parole. A roommate, Zachary Brown, was on the porch smoking a cigarette. One of the men hit Brown on the back of the head with a blunt object, and he lost consciousness for a few minutes. Jerry Williams went to the door, but ran back inside the house and closed the bedroom door behind him. Appellant and the other man followed him inside and were confronted by Marina, who was holding her baby. Appellant hit Marina in the face with his gun, knocking her to the floor. He also held the gun to the back of her head. Zachary Brown entered the apartment and struggled with the men until he was knocked unconscious a second time. The assailants left the apartment.
The second criminal case at issue, case number SCR30901, is based on the following facts: Appellant was taken to Sonoma County jail on unrelated charges on June 8, 2001. During the booking process, cocaine was discovered in appellant’s sock.
Based on these facts, appellant was tried before a jury in case number SCR31608 and convicted of first degree burglary (Pen. Code, § 459, count I) and two counts of assault with a firearm (§ 245, subd. (a)(2), counts II & IV). The jury also determined that appellant had personally used a firearm as to all counts and had personally inflicted great bodily injury during the commission of one of the assault with a firearm counts. (§§ 12022.5, subd. (a), 12022.7, subd. (a).) In a bifurcated proceeding, the court found that appellant had sustained a prior conviction within the meaning of the five-year serious felony enhancement provision and the three strikes law (§§ 667, subd. (a), 1170.12), and had previously served a prison term (§ 667.5, subd. (b)).
Unless otherwise indicated, all further statutory references will be to the Penal Code.
In case number SCR30901, appellant pled guilty to possessing a controlled substance, cocaine, under Health and Safety Code section 11350, subdivision (a). He also admitted a prior conviction under the three strikes law. (§ 1170.12.)
Subsequently, the court sentenced appellant to an aggregate term of 34 years, 8 months calculated as follows:
On count I in case number SCR31608, the six-year upper term for the burglary conviction, doubled to twelve years under the three strikes law, plus an aggravated term of ten years for the firearm use enhancement; on count IV in case number SCR31608, a two-year term (one-third the middle term, doubled) for the assault with a firearm conviction, plus a firearm use enhancement of three years, four months (described by the court as “one-third the mid sentence”), plus a one-year term (one-third the middle term) for the great bodily injury enhancement; in case number SCR 30901, a term of one year four months (one-third the middle term, doubled) for the cocaine possession count; and a five-year enhancement under section 667, subdivision (a). Sentence on count II in case number SCR31608, the second conviction of assault with a firearm plus a firearm use enhancement, was stayed under section 654.
Appellant appealed his conviction to this court. He argued the imposition of an upper term sentence on the principal count and accompanying firearm use enhancement violated his Sixth and Fourteenth Amendment rights under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. 270] (Cunningham). He also argued his case must be remanded for resentencing because the court purported to impose a sentence of “one third the middle term” for a firearm enhancement on a subordinate count, when in fact the sentence imposed was one third the upper term.
We found the second issue to be meritorious and remanded to the trial court for resentencing. Having reached that conclusion, we found it unnecessary to determine whether the trial court violated appellant’s Sixth Amendment rights under Apprendi, Blakely, and Cunningham because we had already determined that appellant must be resentenced. Directing the court to follow the procedure outlined by our Supreme Court in People v. Sandoval (2007) 41 Cal.4th 825, we told the court it was authorized to “reconsider the sentence as a whole so long as it does not increase the aggregate term.”
Once the matter was returned to the trial court, appellant filed a motion that asked the court to exercise its discretion under Romero to strike the prior conviction. The trial court declined that request finding appellant’s “prior record and the seriousness of this crime do not qualify him for a granting of a Romero motion.” The court then sentenced appellant to an aggregate term of 22 years, 8 months.
II. DISCUSSION
A. Romero Issue
Appellant contends the trial court erred when it denied his request to strike the prior conviction.
In Romero, our Supreme Court ruled that trial courts have the discretion under section 1385 to strike a prior conviction in furtherance of justice. (Romero, supra, 13 Cal.4th at p. 531.) In People v. Williams (1998) 17 Cal.4th 148, the court articulated the factors trial courts should evaluate when exercising discretion under section 1385: “[T]he court in question 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.” (Id. at p. 161.) The trial court is granted the discretion to decide whether to strike a prior conviction and its ruling may be reversed on appeal only where the court abused its discretion. (People v. Garcia (1999) 20 Cal.4th 490, 503.)
Applying these principles, we conclude the trial court did not err. Appellant’s current offense was extremely serious. Appellant and an accomplice broke into a home and brutally assaulted two of the people inside. One of appellant’s victims was a woman who was holding her 10-day-old baby. Appellant hit her in the face, knocked her to the ground, and put a gun to her head. The brutal nature of the current offense fully supported the court’s ruling.
Appellant’s prior criminal history also supported the trial court’s decision not to strike the prior conviction. While appellant’s record is not the worst we have seen, it does include numerous arrests for serious offenses such as robbery. Furthermore and importantly, appellant was previously convicted of battery causing serious bodily injury, thus indicating the current offense was not an aberration.
Appellant’s background, character and prospects also supported the trial court’s ruling. As the initial probation report explained, “With the exception of a grant of formal probation as a juvenile and his first grant of conditional sentence as an adult, [appellant] has established an abysmal record of noncompliance while on conditional sentence, [s]upervised OR, and formal probation. In the early ‘90s, he was placed on formal probation for a misdemeanor domestic-violence-related conviction. While on formal probation in that matter, he suffered additional misdemeanor convictions. He suffered a violation of probation in 1994 due to his first felony conviction. He was initially committed to CDC for this felony, but that sentence was amended and he was granted a second opportunity on formal probation. While on this second grant of formal probation, he admitted a violation of probation, failed SOR, and sustained his second felony conviction, the 2800.2 VC in Marin County, resulting in a prison commitment in both felony matters.”
Based on this record, we do not hesitate to conclude the trial court did not abuse its discretion when it declined to strike appellant’s prior conviction.
In arguing the trial court erred, appellant notes that one of the witnesses at trial had recanted and said that appellant’s accomplice, not appellant had struck the woman holding the baby. Appellant also notes that at the resentencing hearing, he presented evidence that suggested he had taken advantage of educational opportunities while in prison, and that he had the strong support of his family and the members of his church. Furthermore, appellant himself addressed the court at sentencing telling the court that he had “learned a valuable lesson from all of this” and that he was no longer a “threat to society.”
Factual issues, such as whether the witness’s recantation was worthy of belief were for the trial court to decide. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We find no error in the trial court’s implied rejection of the evidence appellant presented. As for the remaining factors appellant cites, if appellant has in fact made positive changes in his life, he is to be commended. Indeed, the trial court imposed the middle rather than the upper term on appellant’s substantive crimes, citing the “rehabilitative efforts” appellant had made. Furthermore, the fact that appellant has the support of his family and his community is a positive development that bodes well for his future. However, none of those factors, alone or in combination, compelled the conclusion that the trial court was required to grant appellant’s motion to strike. We conclude the trial court did not abuse its discretion even though a different conclusion might also have been reasonable. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Having reached this conclusion, we need not address the People’s argument that appellant could not validly file a Romero motion on remand.
B. Credits
At the resentencing hearing, the trial court declined to recalculate the credits to which appellant was entitled. Appellant now contends that under People v. Buckhalter (2001) 26 Cal.4th 20, 23, the court was required to recalculate his credits. The People concede the error and we agree. We remand for the appropriate calculation.
C. Error in the Abstract of Judgment
At the resentencing hearing, the trial court imposed the middle term of eight years on count 1, first degree burglary, in case number SCR31608. However, the abstract of judgment shows the court imposed an eight-year, eight-month term for that offense. Appellant argues the error must be corrected. Again, the People concede the point. We will order the appropriate modification.
III. DISPOSITION
The trial court is ordered to recalculate the credits to which appellant is entitled as required by People v. Buckhalter, supra, 26 Cal.4th at page 23. The court must then prepare and forward to the Department of Corrections an amended abstract of judgment showing the recalculated credits, and showing that appellant was sentenced to an eight-year sentence on count one in case number SCR31608. In all other respects, the judgment is affirmed.
We concur: Needham, J., Bruiniers, J.