Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super. Ct. No. FSB059410. Cara D. Hutson, Judge.
Steven A. Torres, 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, James D. Dutton and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
RAMIREZ, P. J.
A jury convicted defendant David Lemon Graves of attempted first degree burglary with a person present. (Pen. Code, §§ 664, 459.) At a bifurcated court trial, the trial court found true the allegations that defendant was convicted in 1991 of first degree residential burglary (§§ 459, 460, subd. (a)) and was convicted in 1992 of forcible rape (§ 261). Defendant was sentenced to 25 years to life. Prior to sentencing, defendant filed a Romero motion to strike the prior convictions, which the court denied. Defendant contends the trial court’s denial of the Romero motion was an abuse of discretion and that his presentence custody credit was not properly calculated. We find no abuse of discretion and remand with instructions regarding the presentence custody credit.
Unless otherwise indicated, further statutory references are to the Penal Code.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
BACKGROUND
On December 7, 2006, defendant and another man attempted to break into a residence while a mother and her children were home. One of the children, a 15-year-old girl, heard the two men through a window and pulled back the curtain. When defendant saw the girl, he told her “to open the door, they were there to do some yard work.” After the girl said “no,” defendant got mad and repeated his demand. The girl again told him “no.” Defendant then told the other man, “Let’s just leave. We’ll be back anyway.”
Defendant’s court trial on the prior conviction allegations resulted in the admission of not just information related to the alleged strike priors, but also resulted in the admission of a rap sheet summarizing defendant’s numerous interactions with the criminal justice system, as well as the admission of the chronological history of defendant’s incarceration with the Department of Corrections and Rehabilitation. The most recent strike prior occurred in 1992, for which defendant was sentenced to 13 years. In 2000, shortly after being paroled, defendant committed a misdemeanor and then had other parole compliance issues in 2000 and 2001.
Defendant’s Romero motion was based upon the priors being remote in time, and the punishment under the three strikes law being disproportionate to the current offense. When the motion was argued, defense counsel also asserted that “there was no incursion into the house” and that the severity of the present offense was less than that of the prior strikes. In denying the motion the trial court stated: “I have considered both the defense and the prosecution’s moving papers in this matter. And of utmost concern to the Court in exercising my discretion to strike any strikes is the factor of remoteness in time. And while it is true that the burglary charges and the rape charges were from the early ‘90s, it is of note that [defendant] has not been free from police custody for any significant period of time. [¶] And for that reason, the Court will not exercise its discretion to strike a strike in this situation.”
Defendant was given credit for 647 actual days served, and 97 conduct days, for a total of 744 days. The trial court stated it was computing the conduct credit “pursuant to Penal Code Section 29.1 [sic].” The field for indicating credit for time served in the abstract of judgment was left blank.
ROMERO MOTION
Defendant, in effect, asks that we reweigh the evidence by pointing out that: (1) defendant faced a long time in prison even if one of the strike prior allegations was dismissed; (2) the instant offence was not violent; (3) defendant’s violent and more serious crimes were in the past; (4) defendant “appeared to be turning around his life” by supporting himself with his own landscaping business; and (5) defendant had a history of mental illness. We find no abuse of discretion.
A trial court’s decision not to strike a prior conviction pursuant to Penal Code section 1385, subdivision (a), is reviewed for abuse of discretion. (Romero, supra, 13 Cal.4th at p. 531.) In reviewing for abuse of discretion, we may not substitute our judgment for that of the trial court. (People v. Carmony (2004) 33 Cal.4th 367, 377.) Even if we might have ruled differently in the first instance, we will affirm the trial court’s ruling as long as the record shows the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law. (Id. at p. 378.) Defendant has the burden of demonstrating an abuse of discretion, and in the absence of such a showing, we presume the trial court acted correctly. (Id. at pp. 376-377.) 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 record indicates that the trial court reviewed the parties’ moving papers and entertained oral argument. While the trial court’s statement when it announced its decision may have only discussed defendant’s criminal history, there is no indication that the trial court failed to consider any relevant information before it. Indeed, defendant’s long history of encounters with the criminal justice system places him within the spirit of the antirecidivist three strikes scheme. Accordingly, defendant has not overcome the strong presumption that the trial court properly exercised its discretion.
CUSTODY CREDIT CALCULATION
Defendant contends that his actual days of custody should have been set at 650 rather than 647, because defendant “was arrested on December 7, 2006 and sentenced on September 16, 2008. Defendant is mistaken, the sentencing minute order has “9/16/08” stated on the header of pages 2 and 3, but sentencing occurred on September 12, 2008. Thus, the trial court accurately calculated the actual days of presentence custody.
Defendant further contends, and the People agree, that defendant’s presentence custody credit should have been calculated under section 4019 not 2933.1.
“[S]ections 2933.1 and 667.5[, subdivision (c)(7),] limit a defendant’s presentence conduct credit to a maximum of 15 percent only when the defendant’s current conviction is itself punishable by life imprisonment, not when it is so punishable solely due to his status as a recidivist.” (People v. Thomas (1999) 21 Cal.4th 1122, 1130.) If “current convictions are not ‘violent’ within the meaning of section 667.5, subdivision (c), the trial court properly [awards] presentence conduct credits under section 4019 rather than section 2933.1.” (Ibid.)
While burglary with a person present in the residence is a violent felony under section 667.5, attempted burglary is not. Thus, defendant is entitled to credits under section 4019. Calculated by the “two-for-four” method he should be awarded credit for 647 actual days and 322 conduct days, for a total of 969 days. (See People v. Browning (1991) 233 Cal.App.3d 1410, 1413.)
DISPOSITION
The judgment is modified to award defendant 322 days of conduct credit and total presentence credit of 969 days. The trial court is directed to amend its sentencing minute order and abstract of judgment to indicate presentence custody credit of 647 actual days, 322 conduct days, and a total credit of 969 days and to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: HOLLENHORST, J., MILLER, J.