Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM027048.
Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Defendant Elijah Shane Parker was tried by a jury and convicted of two counts of forgery in violation of Penal Code section 470, subdivision (d). Defendant waived his right to jury trial on special allegations of one prior strike conviction and one prior prison term. Following a bifurcated hearing on these issues, the trial court found that defendant had previously been convicted of making criminal threats in violation of section 422, a strike offense under California’s “Three Strikes” law, and had served a prior prison term in connection therewith. After denying defendant’s request to strike his prior conviction, the trial court sentenced him to six years four months in state prison (the middle term of two years for the first forgery count, doubled pursuant to the Three Strikes law, plus one year for the prior prison term, plus one year four months (one-third the middle term) for the second forgery count), and imposed other orders.
Hereafter, undesignated section references are to the Penal Code.
On appeal, defendant contends that the trial court abused its discretion by refusing to strike the prior conviction. Defendant also asks that we modify the abstract of judgment to accurately reflect the oral pronouncement of the court at sentencing. As will be explained more fully below, we reject defendant’s contention as to the prior strike conviction. We will, however, correct the abstract of judgment as requested.
Facts and Procedural History
In late December 2006, defendant entered the electronics department of the Paradise Kmart and attempted to purchase $918.41 worth of merchandise with a credit card check signed in the name of Kelli Gordon. When defendant was told that the check would not be accepted because his identification did not match the name on the check, he claimed that the check had been given to him as a Christmas gift. Brandee Goodrich, a member of Kmart’s management team, was not fooled. She made a photocopy of the check and defendant’s identification, and again informed defendant that the check would not be accepted. Defendant left after purchasing a prepaid phone card with cash.
Kelli Gordon confirmed that she never gave defendant a check for Christmas. The check was drawn on her Washington Mutual credit card account and had been mailed to Gordon along with her credit card bill. The signature on the check defendant attempted to pass at Kmart was not Gordon’s signature. Indeed, her last name was misspelled.
The next day, defendant and Deashauna Michelle Hannah entered the Walgreens in Paradise and attempted to purchase prepaid phone cards and Visa gift cards with a credit card check signed in the name of Cheryl Dahl. Hannah had found the check when she “ransacked” Dahl’s mailbox the night before. Prior to their arrival, Hannah called the Walgreens and spoke with manager Keith Fickert. She informed Fickert that she needed to pick up some prescriptions and toiletries for someone who was in the hospital, and she wanted to know if Walgreens would allow her to use a check belonging to this hospitalized individual. Fickert agreed over the phone to accommodate the request.
However, upon their arrival, rather than prescriptions and toiletries, defendant and Hannah brought prepaid phone cards and Visa gift cards to the register. Fickert informed defendant and Hannah that the check would not be accepted as these were not the items previously discussed over the phone. Hannah expressed that she was confused and surprised by Fickert’s refusal to accept the check and presented a handwritten note purportedly authorizing its use.
Fickert’s resolve was firm; defendant and Hannah retrieved the check and left the store.
Cheryl Dahl confirmed that she often received credit card checks in the mail and that someone had been stealing mail out of her mailbox. She further confirmed that she had never used a credit card check at Walgreens, did not know defendant or Hannah, and had never authorized either of them to use any of her credit card checks.
A consolidated information was filed charging defendant with four counts of forgery. The information also alleged that defendant had one prior strike conviction and had served one prior prison term in connection with that conviction. Following dismissal of one of the forgery counts, defendant was tried by a jury and convicted on the two counts of forgery described above. Defendant waived his right to jury trial on the special allegations, and the trial court found that defendant had previously been convicted of making criminal threats, a strike offense under California’s Three Strikes law.
Defendant requested the trial court to strike his prior strike conviction pursuant to People v. Superior Court (Romero)(1996) 13 Cal.4th 497 (Romero). The trial court denied defendant’s request.
Defendant filed a timely notice of appeal.
Discussion
I
Defendant first contends that the trial court abused its discretion in refusing to strike his prior conviction under Romero. We disagree.
Additional Background Information
Roughly eight years and nine months prior to defendant’s forgery convictions, defendant pleaded no contest to making criminal threats and served two years in state prison. While the facts of this conviction are not in the record, the information alleged that defendant willfully and unlawfully threatened to commit a crime “which would result in death and great bodily injury” to his wife and another individual.
In support of his motion to strike this prior conviction, defendant cited the length of the sentence to be imposed absent the relief requested, defendant’s “significant history of drug abuse and addiction,” his “‘jailhouse conversion,’” and the fact that a violation of section 422 “did not qualify as a strike in 1999” when defendant entered his plea of no contest. Prior to the court’s ruling on the motion, defendant’s attorney added that defendant has a young son who would be a teenager before defendant emerged from incarceration. The prosecution opposed defendant’s motion to strike his prior conviction: “The defendant has consistently violated the law, encouraged others in joining him in crimes, and inflicted a good amount of injury, emotional and financial, to the people of this state.”
The probation report confirms defendant’s numerous contacts with the criminal justice system. Defendant’s juvenile record began at the age of 12 with a burglary adjudication resulting in a declaration of wardship. Four months later, a probation violation landed defendant in juvenile hall for 30 days. Over the course of the next three years, defendant was in and out of juvenile hall for possession of alcoholic beverages by a minor, unauthorized taking or driving of a vehicle, resisting arrest, and several probation violations, culminating in his commitment to the California Youth Authority (CYA) for five years. Two months after his release from the CYA, defendant was arrested for the crime of making criminal threats, the prior conviction at issue here. As indicated above, defendant was convicted and served two years in state prison. Defendant subsequently violated parole four times, each violation for use of a controlled substance. Between parole violations, defendant was also convicted of driving under the influence.
Now Department of Corrections and Rehabilitation, Juvenile Justice.
Sergeant Steve Rowe of the Paradise Police Department also confirmed that defendant “has been arrested and incarcerated a number of times, but upon release he continued to abuse drugs and commit crimes on the general public with no regard for consequences.” According to Sergeant Rowe, the Paradise Police Department has had “at least 35 contacts” with defendant since his release from prison following his prior strike conviction.
After reviewing defendant’s motion to strike his prior conviction, the prosecution’s opposition, the probation report, and entertaining argument on the record, the trial court denied the motion.
Analysis
Under section 1385, subdivision (a), a “judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.” (Italics added.) In Romero, our Supreme Court held that a trial court may utilize section 1385, subdivision (a), to strike or vacate a prior strike for purposes of sentencing under the Three Strikes law, “subject, however, to strict compliance with the provisions of section 1385 and to review for abuse of discretion.” (Romero, supra, 13 Cal.4th at p. 504.) Similarly, a trial 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 (Carmony).)
In Carmony, our Supreme Court explained: “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.” (Carmony, supra, 33 Cal.4th at pp. 376-377.)
The court went on to explain that “‘the Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court “conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme.”’ [Citation.]” (Carmony, supra, 33 Cal.4th at p. 377.)
The court then cited People v. Williams (1998) 17 Cal.4th 148, for the proper standard for reviewing a decision to strike a prior conviction “‘“in furtherance of justice”’” pursuant to 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.” (Carmony, supra, 33 Cal.4th at p. 377, quoting Williams, supra, 17 Cal.4th at p. 161.)
The Three Strikes law “creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.” (Carmony, supra, 33 Cal.4th at p. 378, italics added.) This presumption will only be rebutted in “an extraordinary case--where the relevant factors described in Williams, supra, 17 Cal.4th 148, manifestly support the striking of a prior conviction and no reasonable minds could differ.” (Carmony, supra, 33 Cal.4th at p. 378.)
In this case, we cannot find that the trial court abused its discretion in declining to strike the prior conviction. Defendant’s protestations notwithstanding, this is not the “extraordinary case” described in Carmony.
Nature and Circumstances of the Present Felonies
Defendant contends that the “minor and nonaggravated” nature of these forgery offenses, coupled with the remoteness of the prior strike conviction, are “powerful factors” supporting the dismissal of his prior conviction. We do not accept defendant’s characterization of his present felony convictions. We do not consider forgery to be a “minor” offense. Nor does the fact that defendant’s attempts to pass unauthorized checks were thwarted by alert cashiers somehow require the dismissal of his prior strike conviction. Moreover, while roughly eight years and nine months elapsed between defendant’s prior strike conviction and the current forgery convictions, defendant has violated parole four times in the interim. While a prior conviction may be stricken if it is remote in time, where the defendant “has led a continuous life of crime after the prior, there has been no ‘washing out’ and there is simply nothing mitigating” about the amount of time between the prior strike and the current offense. (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.)
Defendant’s reliance on In re Saldana (1997) 57 Cal.App.4th 620, 626-627 and People v. Bishop (1997) 56 Cal.App.4th 1245, 1251 is misplaced. In each of these cases, the court merely affirmed the trial court’s decision to dismiss a prior strike conviction where the present felony offense was minor and the prior strike conviction was remote in time. (Saldana, supra, 57 Cal.App.4th at pp. 623, 626-627 [present felony conviction for possession of.88 grams of heroin; prior strike conviction 16 years old]; Bishop, supra, 56 Cal.App.4th at pp. 1247-1248, incl. fn. 1, 1249, 1251 [present felony conviction for petty theft; prior strike convictions 17 to 20 years old].) Neither Bishop nor Saldana held that the trial court was required to strike the prior conviction based upon these two factors. Indeed, the court in Bishop indicated that, while it was not an abuse of discretion to grant the motion to strike Bishop’s prior convictions, given Bishop’s recidivism, a denial of the request would also have been well within the trial court’s discretion. (Bishop, supra, 56 Cal.App.4th at p. 1251 [“Bishop is not a worthy member of society.... While the People and perhaps even this court may be of the opinion that Bishop appears undeserving of leniency, the paramount consideration is not what the prosecution, defense or appellate court might conclude.... On this record, we cannot say that the trial court’s decision to dismiss two of Bishop’s strikes in furtherance of justice constituted an abuse of discretion.”].)
Nature and Circumstances of the Prior Strike
Defendant’s prior strike conviction was for making criminal threats. Defendant points out that this was not a strike offense when defendant entered his plea of no contest in 1999. While true, the status of the prior conviction at the time it was committed is immaterial. Proposition 21, effective March 8, 2000, added criminal threats (referred to at that time as “terrorist threats”) to the list of serious felonies for purposes of the Three Strikes law. (§ 1192.7, subd. (c)(38); see also People v. James (2001) 91 Cal.App.4th 1147, 1151.) “[I]f a defendant’s current offense was committed on or after the effective date of Proposition 21, a determination whether the defendant’s prior conviction was for a serious felony within the meaning of the three strikes law must be based on the definition of serious felonies in Penal Code section 1192.7, subdivision (c) in effect on March 8, 2000.” (James, supra, 91 Cal.App.4th at p. 1150.) Because defendant’s current offense was committed after the effective date of Proposition 21, his prior conviction of criminal threats constitutes a strike offense.
Background, Character, and Prospects for the Future
Defendant also contends that his background, character, and prospects for the future support the striking of his prior conviction. Not so. The record reveals defendant to be exactly the sort of repeat offender for whom the Three Strikes law was enacted.
Defendant claims that he has marketable skills in the fields of video production and distribution, cabinet installation, paralegal work, construction, and home health care. However, aside from the two years defendant spent producing amateur fight videos for Xeg Entertainment, the record fails to demonstrate that defendant ever utilized the marketable skills he claims to possess. Instead, the “skill” defendant repeatedly utilized for roughly 18 years was that of committing crimes.
Defendant also asserts that his criminal past was largely the product of his drug addiction, that his relative youth gives him the “potential to conquer his addiction,” and that an extended term of imprisonment would be detrimental to his young son. This may be so. However, the trial court was not required to strike defendant’s prior conviction based on these assertions.
Because defendant falls within the letter of the Three Strikes law, only extraordinary circumstances that manifestly demonstrate that he falls outside the law’s spirit will remove him from its grasp. (Carmony, supra, 33 Cal.4th at p. 378.) As defendant has failed to demonstrate that such circumstances exist in this case, we must affirm the trial court’s ruling.
II
Defendant also contends, and the Attorney General agrees, that the abstract of judgment must be corrected to accurately reflect the oral pronouncement of the court at sentencing. We concur. “All fines and fees must be set forth in the abstract of judgment. [Citations.]... If the abstract does not specify the amount of each fine, the Department of Corrections cannot fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency.” (People v. High (2004) 119 Cal.App.4th 1192, 1200.) “The record of the oral pronouncement of the court controls over the clerk’s minute order[.]” (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.) “Courts may correct clerical errors at any time, and appellate courts... that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts.” (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
In this case, the trial court ordered defendant to pay a restitution fine, pursuant to section 1202.4, subdivision (b), in the amount of $200, plus an additional restitution fine, suspended (§ 1202.45), in the amount of $200. The court also ordered restitution to the victims, Cheryl Dahl and Kelli Gordon, “in an amount that the court reserves jurisdiction to set or modify.” The court further ordered defendant to pay “a court security fee of $20 per count for a total of $40.” These orders are accurately reflected in the minute order and abstract of judgment. However, the court also ordered defendant “to pay a theft fine to Paradise Police Department in the total amount of $72. This is $36 per count for two counts.” The court then asked the clerk to “break the assessments out as provided in the probation report.” The minute order and abstract of judgment do not reflect the fines and assessments as broken down in the probation report.
The probation report broke the fines and assessments out as follows: (1) theft fine pursuant to Penal Code section 1202.5 in the amount of $10; (2) court surcharge pursuant to Penal Code section 1465.7, subdivision (a), in the amount of $2; (3) state court facilities construction fund assessment pursuant to Government Code section 70372 in the amount of $5; (4) state penalty assessment pursuant to Penal Code section 1464 in the amount of $10; (5) county penalty assessment pursuant to Government Code section 76000 in the amount of $7; (6) state DNA Identification Fund penalty pursuant to Government Code section 76104.7 in the amount of $1; and (7) county DNA Identification Fund penalty pursuant to Government Code section 76104.6 in the amount of $1. These fines and assessments equal $36 per count, for a total of $72.
Rather than break down these fines and assessments as instructed by the court at sentencing, the minute order and abstract of judgment incorrectly state that a $76 theft fine is payable to the Chico Police Department.
Disposition
The abstract of judgment will be corrected include the following breakdown of fines and assessments: in Butte County Superior Court Case No. CM027048, for each forgery conviction, defendant is ordered to pay a $10 theft fine to the county for transmittal to the Paradise Police Department (Pen. Code, § 1202.5, subds. (a), (b)); a $2 court surcharge to be collected by the court clerk and transmitted to the state (Pen. Code, § 1465.7, subds. (a), (c)), a $5 courthouse construction fee to be collected by the county and transferred to the state (Gov. Code, § 70372); a $10 state penalty assessment to be collected by the clerk of the court and transferred, as specified, to the county treasury and the State Treasury (the state monies to be deposited in the State Penalty Fund) (Pen. Code, § 1464); a $7 county penalty assessment (Gov. Code, § 76000); a $1 penalty to the state DNA Identification Fund (Gov. Code, § 76104.7); and a $1 penalty to the county DNA Identification Fund (Gov. Code, § 76104.6).
The judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment incorporating these modifications and to forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: NICHOLSON, Acting P. J., HULL, J.