Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA086925. Mike Camacho, Judge.
Jennifer M. Hansen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Defendant Kwame Alexander Francis appeals from a judgment entered after he pled no contest to one felony count and admitted a prior conviction, in exchange for the dismissal of four other felony counts and a sentence to the low term, doubled under the “Three Strikes” law due to the prior conviction. Defendant contends that the trial court abused its discretion in refusing to strike his prior conviction, because it relied in part on a factual error. Defendant also asks that we strike an unauthorized fee and penalty assessments. We strike the fee and assessments, but we find the trial court’s reliance on a factual error harmless, and affirm the judgment.
See Penal Code sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i). All further statutory references are to the Penal Code unless otherwise indicated.
BACKGROUND
In a five-count information, defendant was charged in count 1 with possession of a firearm by a felon in violation of section 12021, subdivision (a)(1); in count 2, sale or transportation of marijuana in violation of Health & Safety Code section 11360, subdivision (a); in count 3, possession of marijuana for sale in violation of Health & Safety Code section 11359; in count 4, possession of hydrocodone in violation of Health & Safety section 11350, subdivision (a); and in count 5, possession of hydrocodone while armed with a loaded, operable firearm in violation of Health & Safety Code section 11370.1, subdivision (a). The information further alleged that defendant had suffered a prior serious or violent felony -- a “strike” under the Three Strikes law.
After entering not guilty pleas, defendant brought a motion to suppress evidence pursuant to section 1538.5. Testimony given at the hearing on the motion showed that on April 6, 2009, after defendant was stopped by the police for a traffic violation, the odor of marijuana caused the officer to search him and his car. Defendant had baggies of marijuana in his pocket, and a loaded semiautomatic handgun under the driver’s seat. In a backpack in the car, there was a large amount of marijuana, currency, a digital scale, baggies, an additional magazine for the gun, and a prescription bottle with approximately 25 white pills in it.
The trial court denied the motion to suppress. A plea agreement was reached at the pretrial conference. Defendant agreed to plead no contest to count 5 (possession of hydrocodone while armed) and admit his prior strike, a 1996 conviction of assault with a firearm in violation of section 245, subdivision (a)(2). In exchange, he would be sentenced to four years in prison. He initialed a written plea agreement.
In accepting the agreement, the trial court modified the terms to reflect an agreed sentence of the low term of two years, doubled to four years due to the prior strike. The court agreed to entertain a motion to strike the prior conviction pursuant to a Romero motion. Defendant entered a plea according to the agreement and the trial court set a hearing for the Romero motion and sentencing.
See People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), and section 1385, subdivision (a).
Because the trial court changed the terms in this way, defendant was not required to obtain a certificate of probable cause prior to bringing this appeal. (See People v. Cole (2001) 88 Cal.App.4th 850, 869-870; § 1237.5.)
Defendant filed a written Romero motion. No declarations were submitted, but defense counsel represented that defendant was married, living with his wife and two small children, and providing support and a “solid home” for them in La Canada. Counsel represented that the 1996 conviction arose out of defendant’s “hanging around with the wrong people when someone was shot.” The only other conviction suffered by defendant since 1996 was for the possession of less than an ounce of marijuana in 2005, and that otherwise, he had had no contact with the police since his 1996 conviction of assault with a firearm.
At the hearing on the Romero motion, defendant submitted medical records showing that his youngest child was severely developmentally disabled and required lifetime therapy. Defense counsel spoke on behalf of defendant, whom he had come to know as a good father, a good husband, and a responsible person who took care of his family. Counsel argued that the gun was not in the car for a violent or offensive purpose, and that at the time of his prior felony offense, he was young and stupid.
The prosecutor represented to the court that the 1996 offense had been charged as attempted murder, and that defendant was convicted of assault with a firearm under a plea agreement. He added that defendant was sentenced to six years in prison in that case and had been discharged from parole in 2006, although the probation report states that defendant was discharged from parole on August 24, 2004. The prosecutor also pointed out that defendant had been charged with robbery as a juvenile and was permitted to plead to a misdemeanor. According to the prosecutor, the gun found in this case was a stolen gun, and he argued that because the prior conviction also involved the possession of a gun, and because the plea agreement permitted defendant to avoid consecutive sentences in this case despite the gun possession, striking the prior conviction and imposing a sentence of less than four years would be inappropriate.
The trial court denied the motion. The court noted that defendant had already been afforded leniency under the plea agreement, which allowed him to avoid the possibility of a longer sentence. The court took into consideration the condition of defendant’s child, and how much his family needed him. It found, however, that defense counsel’s description of a good and responsible parent was in conflict with defendant’s conduct in risking another criminal conviction. The court also found that counsel’s representation that the prior offense was an act of youthful foolishness conflicted with the defendant’s having committed another offense as an adult with full knowledge of the consequences.
The trial court observed that whether defendant was the type of person who fell outside the spirit of the Three Strikes law was a “close call, ” and that whether the court should strike the prior was “borderline.” The court gave great weight to the nature of the prior conviction, which had been charged as attempted murder with the use of a gun, but reduced when defendant was given the benefit of a plea bargain. The court noted that defendant served a substantial prison term, and was “discharged from parole roughly four years ago.” The court added, “Three years into that parole, evidently or just shortly after being discharged, obviously he commits the present offense....” The court also gave weight to the fact that the prosecution had already given him “quite a bit of leniency” in the plea agreement, which it considered fair under the circumstances, but found that the circumstances did not warrant undermining that lenient plea agreement by striking the prior conviction.
The court then sentenced defendant pursuant to the plea agreement to the low term of two years, as provided by Health and Safety Code section 11370.1, and doubled it due to the prior strike, pursuant to sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i), for a total of four years in prison. Defendant was awarded six days of custody credit, which included four days of actual time and two days of good-time/work-time credit. The court imposed statutory fines and fees; it also imposed a laboratory analysis fee plus assessments that totaled $190, pursuant to Health and Safety Code section 11372.5, subdivision (a). Defendant filed a timely notice of appeal from the judgment.
DISCUSSION
I. The Court’s Factual Error Does Not Require Reversal
Defendant contends that the trial court abused its discretion in refusing to strike his prior conviction. He argues that one of the factors upon which the court “heavily relied” was the erroneous date of his discharge from parole.
The trial court’s discretion to strike an allegation of a prior felony conviction is broad, but limited. (Romero, supra, 13 Cal.4th at p. 530; § 1385, subd. (a).) The court must consider the nature and circumstances of the defendant’s present felony and prior serious or violent felony convictions, as well as his background, character, and prospects, to determine whether he may be deemed outside the spirit of the Three Strikes law, in whole or in part. (People v. Williams (1998) 17 Cal.4th 148, 161.) “The court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary. [Citation.]” (People v. Myers (1999) 69 Cal.App.4th 305, 310.)
We review the trial court’s decision for abuse of discretion. (People v. Williams, supra, 17 Cal.4th at p. 162; Romero, supra, 13 Cal.4th at p. 530.) “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377.) To justify reversal, defendant must also show that the abuse of discretion resulted in a manifest miscarriage of justice. (People v. Jordan (1986) 42 Cal.3d 308, 316.)
Defendant argues that the correct parole date, when considered along with his parental responsibilities, how much his family needs him, and the absence of evidence of his involvement in serious crime since 1996, shows him to fall outside the spirit of the Three Strikes law.
Initially, we note that defendant has exaggerated the error. He claims that at the time he committed the current offense, he had been free of felonious or violent conduct for more than 16 years. He also claims that the prior conviction was 14 years old at the time he committed the current offense. Finally, he claims that the trial court erred by two years in stating the time between his parole discharge and the sentencing hearing as “roughly four years.”
According to the probation report, defendant was discharged from parole on August 24, 2004. He committed the current offense on April 6, 2009, and was sentenced March 18, 2010, nearly a year later. The time between defendant’s prior conviction and the commission of the current offense was approximately 12 years 5 months, not 14 years. In addition, because the probation report did not state when the strike offense was committed, the claim that 16 years had elapsed between its commission and the commission of the current offense is unsupported by the record. Further, according to our math, the court erred by one year seven months, not two years, in estimating the time between defendant’s discharge from parole and his sentencing hearing. Finally, although defendant had been discharged from parole for more than five years until the sentencing hearing, he committed the current offense little more than four and one-half years after his discharge from parole.
Not only has defendant exaggerated the error, he has exaggerated the weight the trial court gave to the “roughly four years.” He has done so by disregarding the other aggravating factors upon which the court relied. The “No. 1” adverse fact considered by the court was the nature of the prior conviction: assault with the use of a gun, reduced from attempted murder pursuant to a plea bargain. As the prosecutor argued to the trial court, the involvement of a gun in the strike conviction and again in the current offense is the “scary part in this.” Armed narcotics offenders pose a deadly threat to the public and to law enforcement officers. (In re Ogea (2004) 121 Cal.App.4th 974, 983.)
In any event, errors associated with discretionary sentencing decisions are deemed harmless unless it is reasonably probable that they affected the outcome, determined under the harmless error test of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Avalos (1984) 37 Cal.3d 216, 233; see also People v. Osband (1996) 13 Cal.4th 622, 728 [improper dual use of fact for consecutive terms]; People v. Scott (1994) 9 Cal.4th 331, 355 [error in identifying sentencing choices]; People v. Price (1991) 1 Cal.4th 324, 492 [improper reasons].)
Given the trial court’s primary concern that both the strike and the current offense involved a firearm, it is unlikely that the court would have granted the motion had it known that defendant had managed to remain free of a gun-related crime for five years seven months, instead of approximately four years. This is particularly so in light of the emphasis the trial court gave to the leniency that the prosecution had already given defendant in the plea agreement by dismissing four felony counts and permitting him to avoid possible consecutive sentencing.
We conclude that defendant has failed in his burden to show that no reasonable person could agree with the court’s conclusion that the circumstances did not warrant undermining such a lenient plea agreement. He has thus failed to show an abuse of discretion. (People v. Carmony, supra, 33 Cal.4th at p. 377.) Further, as we discern no reasonable probability that the court would have sentenced defendant to just two years in this case, the court’s factual error does not require reversal. (See People v. Osband, supra, 13 Cal.4th at p. 728; People v. Avalos, supra, 37 Cal.3d at p. 233.)
II. The Laboratory Analysis Fee is Inapplicable and Will Be Stricken
Defendant contends that the laboratory analysis fee and associated penalty assessments imposed by the trial court at sentencing were unauthorized. Respondent agrees that the fee and assessments should be stricken.
Health and Safety Code section 11372.5, subdivision (a), enumerates the offenses subject to the fee, and a violation of Health and Safety Code section 11370.1 is not among them. As the laboratory analysis fee was unauthorized, we shall strike it and the associated penalty assessments from the judgment. (See People v. Chambers (1998) 65 Cal.App.4th 819, 823.)
DISPOSITION
The laboratory analysis fee and assessments totaling $190 are stricken. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the modification and to forward a certified copy of it to the Department of Corrections and Rehabilitation.
We concur: BOREN, P. J., ASHMANN-GERST, J.