Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Super.Ct.No. RIF146118 Richard A. Erwood, Judge.
Eric R. Larson, 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, Peter Quon, Jr., and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
RAMIREZ P. J.
A jury convicted defendant and appellant Arnold David Juarez of transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 1), and possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 2). The jury conviction included a finding in count 1 that defendant was previously convicted of a violation of Health and Safety Code section 11379, subdivision (a). (Health & Saf. Code, § 11370.2, subd. (c).) The trial court found true the allegations that defendant had seven prison priors (Pen. Code, § 667.5, subd. (b)) and three strike priors (Pen. Code, §§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A)). Prior to sentencing, defendant filed a Romero motion to strike two of the three strike priors. Defendant challenges the denial of his motion, the use of a juvenile adjudication as a strike prior, and an error in the abstract of judgment. We affirm with directions to correct the abstract.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
I. BACKGROUND
Defendant was riding a bicycle on September 22, 2008, when he was stopped by a police officer. Both defendant and the bicycle were searched. The officer removed the end caps on the handlebars and located a green baggie containing methamphetamine.
Defendant’s priors were: transporting a controlled substance (Health & Saf. Code, § 11379, subd. (a)) in 2004; robbery (Pen. Code, § 211) in 1999 and 1984; possessing a controlled substance (Health & Saf. Code, § 11377, subd. (a)) in 1996, 1994, and 1992; carrying a concealed weapon in a vehicle as a felon (Pen. Code, § 12025, subd. (a)(1)) in 1995; and assaulting a peace officer with a deadly weapon (former Pen. Code, § 245, subd. (b)) in 1989. The two robberies and the assault constituted strikes. The 1984 robbery was a juvenile adjudication.
Defendant’s Romero motion was on the ground that defendant’s current offense and personal history did not warrant sentencing him pursuant to the “Three Strikes” law. In particular, defendant’s current offense was not violent, defendant’s violent offenses were almost 10 years old, and most of defendant’s criminality stemmed from his drug addiction. At the hearing, defendant’s trial counsel contended that addiction had not been addressed because “absent some intervention, third party intervention of the state or the government, it’s highly unlikely for an addict to de-addict himself.” He then characterized defendant’s sentence under the Three Strikes law as “sentencing [defendant] to a life sentence, for being an addict, ” and noted that the “Department of Corrections system does not provide the type of counseling that, even if he were to be incarcerated for life, would change his addiction at all.”
The trial court agreed with defense counsel’s characterization that it could be sentencing “somebody to prison for life based on a small amount of contraband in their possession.” The trial court then continued, “[counsel], you’ve indicated that incarceration is not going to work. We know parole hasn’t worked for your client. If you look through his prior record, he’s violating the parole consistently. His misdemeanor conviction for malicious mischief or vandalism, it looks like he may have actually completed the parole period but for the fact that he picked up another felony. And all the felonies that he has, he has violated parole. [¶] So, unfortunately, what the Court is faced with, incarceration for life—which is not going to cure him from his addiction other than the fact it’s going to remove him from the possibility of being addicted—or giving him something less than life, in which he’s going to go out and continue to violate parole. Even—the defendant was only out five months before he picked up this offense. And it’s clearly a minor offense. But your client has not indicated to this Court that he’s going to make any effort to work on his addiction. [¶] He returns back to the same neighborhood when he’s released from parole. He hangs out with the same friends. He gets arrested in almost the same spot carrying drugs. So he just continues to do this. And basically the undercurrent of his statement to the probation officer is, you know, ‘Society’s problem to help me, ’ you know, ‘but I’m not going to make any effort.’ And he hasn’t made any effort. [¶] There’s nothing in this report, nor is there anything in your pleadings that indicates that [defendant] has ever made an effort to beat the problem that he’s faced with. He expects us as a society to somehow cure him, even though he doesn’t want—necessarily want to be cured, or is that interested in being cured. [¶] His attitude in the interview with the probation department, kind of a matter-of-fact attitude of—I forget how they characterize it. Let me just find the quote. You know, he talked about just not really being that concerned with getting treatment. [¶] So what do you do with a person like that? He says the only treatment is to take him off the streets. The DA’s saying, ‘Judge, take him off the streets for as long as we possibly can.’ [¶] The standard is to—for me to strike a strike is I have to have some—something before me that I can use to exercise my discretion on. And he is one of the few defendants I’ve seen that hasn’t given me really anything to exercise my discretion on. I’ve had other defendants come before this Court and I’ve struck strikes over the prosecutor’s objection, but I felt that they at least did something; they had a job, they were providing for their family, they were attempting to do something right to get away from this addiction problem that they have. And, unfortunately, your client hasn’t done a darn thing with respect to that.”
Defendant’s trial counsel responded by asserting that defendant’s attitude was indicative of institutionalization fostering a lack of initiative, and that if defendant were placed in an inpatient program by parole he would “be able to put himself back in the stream of compliance with the law.”
The trial court responded, “While I agree with what you’re saying, I think it’s wishful thinking. He’s been on parole on how many felonies; seven? Ten? Probably about seven felonies he’s been on parole for, and he’s failed each time. Does the Court think that all of a sudden parole is now going to come up with a program that’s going to help him? No. I don’t think that. I think that it’s all up to [defendant] to attempt to do something with his life, and he hasn’t done that. [¶] He—I agree with you to a certain extent. It may be part of the—him being institutionalized, but he lets fate move him. He doesn’t try to break out. He just goes back and does the same thing over and over again, and then gets caught and brought back in. [¶] The District Attorney’s Office could have struck him out years ago, and he would have been facing the 25 to life, but for some reason they didn’t. And I’m not criticizing that decision, because I think that that’s the way it should be; that they should not necessarily strike someone out on a drug possession offense the first time they had the opportunity to strike them out and send them off for 25 to life. [¶] But there comes a point in time where after all of the chances he’s been given, that it ends up that there really—there’s no more chance for him. And I think that that’s the problem that the Court’s facing now. There is nothing that the Court can do that’s going to assure a possibility of [defendant] getting out and being successful. [¶] Releasing him on parole is not going to work. Giving him a shorter sentence just so he gets out, were going to be back—may not be back in front of my court, because he doesn’t live in my area, but he’s going to be back for sure, because he always is. And, unfortunately, that’s what the Court’s faced with. And I think it would be abuse of my discretion to strike the strikes. And so I’m going to deny your motion.”
The trial court sentenced defendant after denying his Romero motion. Defendant received 25 years to life for transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)), which was increased by three years because defendant had been previously convicted of the same offense. (Health & Saf. Code, § 11370.2, subd. (b).) A 25-year-to-life sentence was also imposed for the possessing methamphetamine conviction (Health & Saf. Code, § 11377, subd. (a)), but was stayed pursuant to Penal Code section 654. The seven prison priors were each applied to increase defendant’s term by seven years. (Pen. Code, § 667.5, subd. (b).) Thus, defendant received a determinate sentence of 10 years consecutive to an indeterminate term of 25 years to life.
II. ROMERO MOTION
Defendant contends that the trial court erroneously believed that it would have been an abuse of discretion to grant defendant’s Romero motion. In particular, defendant contends “the trial court misconstrued the scope and parameters of its discretion when it determined that it would have been an abuse of such discretion to vacate a prior in this case.” The People contend that the trial court properly exercised its discretion by refusing to grant the motion. We agree with the People.
“[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 an abuse of discretion, 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 Penal Code 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, supra, 33 Cal.4th at p. 378.)
The exchange between counsel and the trial court affirmatively shows that the trial court reviewed defendant’s present felonies, prior strikes, background, character, and prospects. After its review, the trial court held that even though defendant’s criminal history may have been tied to his addiction, defendant did not fall outside the scheme of the Three Strikes law. The court’s decision was based upon its conclusion that defendant lacked any prospect of overcoming his addiction; he did not appear interested in being cured and did not appear to have attempted to cure his addiction. Because the trial court applied Williams to reasonably rule on the Romero motion, we find no abuse of discretion.
Defendant, relying on the dissent in People v. Zichwic (2001) 94 Cal.App.4th 944, 961-962 (dis. opn. of O’Farrell, J.), contends that the trial court’s statement, “I think it would be an abuse of my discretion to strike the strikes, ” indicates the trial court misconstrued the scope and parameters of its discretion. However, this statement does not indicate the trial court misunderstood the scope or parameters of its discretion, as the dissent believed was the case in Zichwic. Instead, the statement indicates the depth of the trial court’s conclusion that defendant, as a career criminal with no prospect of overcoming his criminality causing drug addiction, fell within the spirit of the Three Strikes law. Accordingly, we find no error.
III. JUVENILE ADJUDICATION AS A STRIKE PRIOR
Defendant raises the issue of his juvenile adjudication to preserve it for federal review. He acknowledges that the use of juvenile adjudications to enhance adult sentences was upheld by our Supreme Court in People v. Nguyen (2009) 46 Cal.4th 1007. As defendant acknowledges, we are bound by Nguyen and thus we uphold the use of his juvenile adjudication to enhance his sentence.
IV. ABSTRACT
Defendant was convicted of transporting methamphetamine, a violation of Health and Safety Code section 11379, subdivision (a); section 11379 also prohibits importation, selling, furnishing, administering, and giving away specified controlled substances. While defendant’s conviction under count 1 was specifically for transportation of methamphetamine, the indeterminate abstract states “Import/Sales/Dist/Control” on the line describing the count 1 conviction. We have the inherent power to correct clerical errors to make records reflect the true facts. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Accordingly, the indeterminate abstract should be amended to state, “Transporting methamphetamine.”
V. DISPOSITION
The superior court clerk is directed to amend the abstract of judgment to replace “Import/Sales/Dist/Control” with “Transporting methamphetamine, ” for count 1, and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: RICHLI J., KING J.