Opinion
NOT TO BE PUBLISHED
Sup. Ct. No. CM023591
MORRISON, J.
Defendant Lawrence Van Riley entered a plea of no contest to the sale of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and admitted a strike prior (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and three prior prison term allegations (Pen. Code, § 667.5, subd. (b)) in exchange for the prosecutor’s agreement not to add any additional enhancements. Defendant reserved the right to file a motion to strike the strike prior pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
After denying defendant’s Romero motion, the court sentenced defendant to state prison for an aggregate term of nine years, that is, the midterm of three years, doubled for the strike prior, plus three 1-year prior prison term enhancements.
Defendant appeals. He contends the trial court abused its discretion in denying his Romero motion, requiring remand for a new hearing on the motion. We disagree and will affirm the judgment.
FACTS
During a buy program at the Feather Falls Casino in Oroville, Butte Interagency Narcotics Task Force undercover agents approached defendant and asked for methamphetamine. Defendant contacted a man in the casino and then reported to the agents that the man did not have any. When the agents asked again for methamphetamine, defendant left the casino and walked to a residence where he was seen in a shed with a woman. Defendant returned to the casino. The agents and defendant left and went to a mini-mart where defendant sold to the agents .4 grams of methamphetamine worth $40 for $50.
DISCUSSION
Defendant contends that the trial court abused its discretion in denying his Romero motion in that the trial court “applied a singular reason for refusing to strike the strike.” Defendant argues that in view of his background, character and prospects, he is outside the spirit of the three strikes law. He requests remand for a new hearing. We find no abuse of discretion.
Background
The probation report recommended an aggregate state prison sentence of 11 years, that is, the upper term of four years, doubled, for the underlying offense plus three years for the prior prison term enhancements. In aggravation, the probation officer noted that defendant had six felonies (kidnapping and assault with a firearm 1975, assault with a firearm 1980, receiving stolen property 1989, two counts of possession of a controlled substance 1994) and 21 misdemeanors. His performance on probation and parole was unsatisfactory. Defendant was first sentenced to state prison in 1975. He was sentenced to prison on three subsequent occasions. He was discharged from parole in 2002 and was thereafter convicted of trespassing and petty theft. He had never been out on parole for any significant period of time without committing a new offense. At the time of the current offense, defendant was on conditional/revocable release for petty theft. The probation officer cited no factors in mitigation.
When interviewed by the probation officer, defendant claimed he did not sell drugs a lot but did so on this occasion because the agent was pretty and he wanted to impress her. He went to the casino to gamble and felt “‘baited.’” He stopped using methamphetamine in 2003. He hoped the court would strike the strike prior so that he would be eligible for probation and if not, the low term, claiming “‘[s]ince [he had] been off parole [he] [had not] been in trouble.’” Faced with the fact that he had committed trespass and petty theft since he had been discharged from parole, defendant stated he had not committed any new felonies or serious crimes.
In the Romero motion, defense counsel conceded that defendant’s criminal record was “extensive” but noted that the strike prior occurred in 1975 and defendant’s last felony was drug possession in 1994.
The prosecutor opposed the motion, arguing “defendant’s crimes and recidivis[m] for the last [30] years make clear that he is exactly the type of individual contemplated by the ‘three strikes’ law.” The prosecutor sought the upper term, claiming there were no mitigating factors.
At the combined hearing on the Romero motion and sentencing, the court stated that it had read and considered defendant’s Romero motion, the prosecutor’s opposition and the probation report. Defense counsel argued that defendant’s record, although “conceivably voluminous,” was not dispositive. Defense counsel urged the court to consider the underlying facts, that is, defendant was solicited by an undercover agent who was persistent and defendant made only $10 on the sale. Based on such facts, defense counsel argued that an 11-year sentence was not justified.
In opposition, the prosecutor argued that the case easily could have been a three strikes case, or 25 years to life, since defendant had two other serious strike priors, and that defendant, who had “been punished as a recidivist, time and time again, . . . is still committing felonies.”
In denying the motion to strike the strike prior, the court stated: “[F]or whatever it’s worth, my main reason is since the date of the strike that has been admitted [defendant’s] criminal record is such that I think it is appropriate to apply that one strike. It’s not a situation where we have a 25-year-old strike, no criminal conduct, and then a, quote, unquote, ‘[sale] that netted him just $10.’ We do take into account his entire history and that history is rather busy.”
Analysis
Remand for a new Romero hearing is required where the record affirmatively reflects that the trial court misunderstood the scope of its discretion. (People v. Maloney (2003) 30 Cal.4th 1145, 1165; People v. Deloza (1998) 18 Cal.4th 585, 599-600.) The record here presents no such problem; the trial court knew the scope of its discretion. Defense counsel made the argument that defendant’s record was not dispositive and focused on the underlying facts of the current offense. The trial court concluded that defendant did not fall outside the spirit of the three strikes law because he had continued with his life of crime after having been paroled for his 1975 convictions. After having considered the motion, the opposition and the probation report, the trial court concluded that defendant was a career criminal and that the circumstances were not “extraordinary” to deem him outside the spirit of the three strikes law. (People v. Carmony (2004) 33 Cal.4th 367, 378.) We find no abuse of discretion. (Id. at p. 374.)
We note an error in preparation of the abstract of judgment. It fails to reflect that defendant was sentenced as a two-strike offender. There is a box for this purpose on the abstract which needs to be checked.
DISPOSITION
The trial court is directed to prepare a corrected abstract of judgment reflecting that defendant was sentenced as a two-strike offender and to forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is affirmed.
We concur: RAYE, Acting P.J., BUTZ, J.