Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F2821
OPINION
SIMS, Acting P.J.
Defendant John Elvin Perry entered a plea of no contest to possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a); undesignated section references are to the Health and Safety Code) and admitted a prior strike allegation in exchange for dismissal of all remaining charges against him and a sentencing “lid” of 32 months in state prison. The court denied defendant’s Romero motion (People v. Superior Court (Romero) (1996) 13 Cal.4th 497), imposed a sentence of 32 months in state prison according to the negotiated plea, and ordered that he pay specified fees and fines.
On appeal, defendant contends (1) the trial court abused its discretion in denying his Romero motion, and (2) the court’s minute order is not consistent with the oral pronouncement of judgment with respect to the fees and fines imposed. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant stipulated that the police report provided a factual basis for his plea. As such, the facts are derived from the probation report, which summarizes that police report.
Defendant’s parole officer attempted to contact defendant by telephone after the 9:00 p.m. curfew, to no avail. At the officer’s request, police went to defendant’s home at approximately 10:00 p.m. Defendant answered the door smelling of alcohol. Police conducted a parole search and found pornographic materials, .5 grams gross field weight of methamphetamine and two “snort tubes,” all in violation of defendant’s conditions of parole. Defendant admitted having consumed approximately five beers and snorting methamphetamine earlier that evening, and further admitted that he subscribed to Playboy magazine and had it delivered to a post office box.
Defendant was charged by criminal complaint with possession of a controlled substance (count 1) and possession of paraphernalia for using a controlled substance (count 2). The complaint also alleged that defendant suffered a prior serious or violent felony for violating Penal Code section 288, subdivision (a) (Pen. Code, § 1170.12), and served a prior prison term (Pen. Code, § 667.5, subd. (b)). Defendant pled not guilty and denied the special allegations.
Defendant later entered a negotiated plea of no contest to count 1 and admitted the prior strike allegation in exchange for dismissal of the remaining count and special allegation and a sentencing lid of 16 months in state prison, doubled pursuant to the strike.
Prior to sentencing, defendant moved to have the court strike his prior 1992 strike conviction pursuant to Romero. After hearing testimony from one defense witness and oral argument from both parties, the court denied the motion and sentenced defendant to 32 months in prison pursuant to the plea agreement. The court also ordered that defendant pay a $200 restitution fine (Pen. Code, § 1202.4), a $200 parole revocation fine (stayed) (Pen. Code, § 1202.45), a $20 court security fee (Pen. Code, § 1465.8, subd. (a)(1)) and a $157.50 criminal laboratory fee (§ 11372.5, subd. (a)). Defendant was ordered to provide DNA samples (Pen. Code, § 296, subd. (a)(1)) and register as a controlled substance offender (§ 11590), and was awarded 308 days of presentence custody credit.
Defendant filed a timely notice of appeal.
DISCUSSION
I
Denial of Romero Motion
A trial court has the discretion to strike a prior serious felony conviction for purposes of sentencing only if the defendant falls outside the spirit of the Three Strikes law. (Pen. Code, § 1385; People v. Williams (1998) 17 Cal.4th 148, 161; Romero, supra, 13 Cal.4th at pp. 529-530.) In deciding whether to do so, the court “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.” (Williams, supra, 17 Cal.4th at p. 161.)
The trial court’s “failure to . . . 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.) 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.’”’ [Citation.] 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.” (Id. at pp. 376-377.)
Defendant contends the trial court failed to consider all of the factors required under Williams, supra, 17 Cal.4th 148, in ruling on his motion to strike the strike prior. Conceding that the court noted its consideration of the Williams factors on the record, defendant argues the court merely made “a blanket statement” to that effect but in fact relied “on [defendant’s] record alone” without considering his background, character and prospects as required.
As a preliminary matter, the People argue that, to the extent defendant is objecting to the adequacy of the court’s statement of reasons, defendant has forfeited any such claim because he failed to object at sentencing. We agree. “‘An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or [forfeiture]. . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.’” (Doers v. Golden Gate Bridge Etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1; see In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2 [forfeiture is the correct legal term for loss of right based on failure to assert it in a timely fashion].)
Defendant remained silent in the face of the court’s denial of his Romero motion, making no objection to either the decision or the reasoning given by the court. As a result, his claim is forfeited on appeal. (People v. Walker (1991) 54 Cal.3d 1013, 1023; People v. Saunders (1993) 5 Cal.4th 580, 589-590 [failure to make timely assertion of a right before a tribunal having jurisdiction to determine it results in forfeiture of that right].)
In any event, defendant’s claim fails on the merits. While Penal Code section 1385 requires that the court state its “reasons for the dismissal,” there is no such requirement where the court denies a request to dismiss a prior strike. (See Pen. Code, § 1385, subd. (a); Romero, supra, 13 Cal.4th at p. 531; People v. Orin (1975) 13 Cal.3d 937, 945.) “The court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary.” (People v. Myers (1999) 69 Cal.App.4th 305, 310 (Myers), citing People v. Kelley (1997) 52 Cal.App.4th 568, 582.) As defendant appropriately concedes, albeit with reservation, the trial court made specific reference to the fact that it had applied “the template from [Williams] and measuring those five check points in the Williams case, which the Supreme Court indicated in the Williams case, a judge in the position that I’m now in, looking to determine whether the defendant is appropriate to remain under the three strikes umbrella or whether he falls outside of the -- the law” in making its determination. Indeed, the court was presented with significant discussion regarding defendant’s character, background and prospects both at the hearing and in defendant’s moving papers. We infer that the court considered all of that information in its determinative process, as it said it did.
The fact that the court was mindful of defendant’s background and history was further evidenced by its earlier insistence, at the time defendant entered his plea, that defendant meet with probation for preparation of a presentencing report, despite defense counsel’s repeated waiver of a sentencing recommendation. At that time, the court explained that the probation “report is going to review [defendant’s] history and I want his history reviewed. That’s part of a Romero motion.”
As for whether the court abused its discretion in denying the Romero motion, we conclude it did not. Defendant’s prior felonies include a 1992 conviction for lewd and lascivious acts on a child under the age of 14 (a strike), a 2000 conviction for possession of a controlled substance, and failure to register as a sex offender in 2001. His history of substance abuse began with consumption of alcohol at the age of 15 and methamphetamine use beginning sometime after 1976 while he was in the armed services, and he has continued to use both alcohol and methamphetamine since that time.
Defendant’s current felony is for possession of .5 grams gross field weight of methamphetamine. At the time he was arrested, he was violating at least two conditions of his parole--possessing and using alcohol and failing to abide by a curfew.
In light of the nature and circumstances of defendant’s present felony and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the trial court’s denial of his motion to strike the strike prior was neither irrational nor arbitrary. (Myers, supra, 69 Cal.App.4th at p. 309.)
II
Imposition of Fees
Defendant also contends that the trial court’s minute order is inconsistent with its pronouncement of judgment on the record. We disagree. The initial, or draft if you will, minute order contains what appear to be the handwritten notations by the court clerk, including notes regarding fees and fines imposed. That document also includes a typewritten section which requires that the clerk check the appropriate box(es) to indicate which fees and fines were imposed, if any. None of the boxes in that section is checked. The formal, or final if you will, minute order is typewritten in its entirety and contains no handwritten notations. That minute order, the only one signed by the court, is wholly consistent with the court’s oral pronouncement of judgment with respect to the fees and fines imposed. There is no error to be corrected, and therefore no need to modify the court’s minute order.
DISPOSITION
The judgment is affirmed.
We concur: MORRISON, J., ROBIE, J.