Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INF059322. Randall Donald White, Judge.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck, and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI Acting P.J.
A jury found defendant and appellant Robert Miranda Rojas guilty of receiving stolen credit cards (Pen. Code, § 496, subd. (a); count 1); possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 2); and transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 3). In a bifurcated proceeding, the trial court found true that defendant had suffered two prior serious and violent felony convictions (Pen. Code, §§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)). The trial court also found true that defendant was on bail when he committed the current offenses (Pen. Code, § 12022.1). Defendant was sentenced to a total term of 100 years to life in state prison with credit for time served as follows: consecutive terms of 25 years to life on counts 1, 2, and 3, and a consecutive term of 25 years to life for the on-bail enhancement.
On appeal, defendant contends (1) there was insufficient evidence to support the on-bail enhancement; (2) the trial court should have stayed his sentence on either count 2 or count 3 pursuant to Penal Code section 654; (3) the trial court abused its discretion when it denied his motion to dismiss one or more of his prior strike convictions; and (4) the abstract of judgment must be corrected because it erroneously describes the convictions as plea-based. We agree with the parties that the on-bail enhancement must be stricken, that defendant’s total sentence should be reduced to 25 years to life, and that the abstract of judgment must be amended. We reject defendant’s remaining contention.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL BACKGROUND
On August 2, 2007, about 7:00 p.m., officers conducted a traffic stop of a car driven by codefendant David Marroquin for running a red light in the City of Indio. Defendant was sitting in the front passenger seat of the vehicle. The passenger’s floorboard contained a “significant amount of water....” Defendant claimed that the water might have come from the air conditioning that was leaking.
Marroquin is not a party to this appeal.
A search of the vehicle revealed a black wallet containing $100 and two credit cards belonging to Jorge and Louise Cansino. When asked by police who owned the credit cards and wallet, defendant and Marroquin stated that they had found the items at a casino.
On the front passenger side of the vehicle, officers also discovered a broken glass methamphetamine pipe with methamphetamine residue inside and a usable amount of methamphetamine. A torn plastic bindle with methamphetamine residue was found next to the glass pipe. There were also several empty wet plastic baggies on the driver’s floorboard. An investigator explained that since methamphetamine is water soluble, an effective way of concealing it is to pour water on it or put it in water.
Defendant later identified the black wallet and $100 as his. However, when questioned about the credit cards, defendant denied owning the wallet or cash. Documents identifying defendant were not located in the wallet. Defendant refused to sign a property form for the money because it connected him by implication to the credit cards.
The Cansinos had not given anyone permission to use their credit cards and were never contacted by either defendant or Marroquin about having the credit cards. They had never been to the casino in question. They had recently ordered the credit cards and were awaiting their arrival by mail.
Defendant testified on his own behalf. He acknowledged that he was a methamphetamine addict and had numerous prior convictions. He explained that Marroquin had picked him up to go to the casino. Defendant did not notice the methamphetamine or glass pipe when he entered the vehicle. He denied being under the influence of methamphetamine on the day of the incident, knowing the methamphetamine or methamphetamine pipe were in the car, or seeing or placing the credit cards in his wallet. He also denied attempting to conceal the methamphetamine or the glass pipe. He asserted the floorboard of the vehicle was wet because the air conditioning was leaking. He admitted that the black wallet was his but asserted the wallet contained a $100 bill rather than five $20 bills as claimed by the officers. He stated that he had left the wallet containing the $100 bill in the car before entering the casino so he would not “waste all [his] money.” He claimed that Marroquin had found the credit cards in the casino parking lot as they were heading back to the car and that Marroquin must have placed the credit cards in defendant’s wallet when defendant fell asleep in the car.
II
DISCUSSION
A. On-bail Enhancement
Defendant contends, and the People concede, there was insufficient evidence to support the trial court’s true finding of the on-bail enhancement. Defendant is correct.
Section 12022.1 provides for a mandatory two-year enhancement on a conviction of a secondary offense when the secondary offense is committed while the defendant is released on bail for the primary offense. Subdivision (a)(1) defines primary offense as follows: “‘Primary offense’ means a felony offense for which a person has been released from custody on bail or on his or her own recognizance prior to the judgment becoming final, including the disposition of any appeal, or for which release on bail or his or her own recognizance has been revoked. In cases where the court has granted a stay of execution of a county jail commitment or state prison commitment, ‘primary offense’ also means a felony offense for which a person is out of custody during the period of time between the pronouncement of judgment and the time the person actually surrenders into custody or is otherwise returned to custody.”
The court’s December 11, 2009, minute order states that, “Court Finds Enhancement(s) FW in count 3 True.” However, a review of the reporter’s transcript of the December 11, 2009, hearing indicates that the trial court failed to specifically find defendant was on bail at the time he committed the present offenses.
When, as in this case, trial on the priors and enhancement is to a court, the trial court must also make findings on factual matters. If the court does not orally pronounce its findings and judgment on special issues, its silence operates as a finding the special allegation is not true. This is also true in those instances where the defendant has admitted the truth of the special allegation. (In re Candelario (1970) 3 Cal.3d 702, 706 [court struck prior conviction allegation from judgment because trial court neglected to state on the record the defendant had admitted the prior conviction allegation; court’s silence operated as a finding the prior conviction was “not true”]; People v. Mesa (1975) 14 Cal.3d 466, 471-472 [same]; People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1439-1440 [court made no findings on the prior felony conviction allegations, and did not even mention them until after sentencing, operated as a finding of “not true”]; People v. Garcia (1970) 4 Cal.App.3d 904, 907 [court made no finding as to the first prior charged, but found the second and third to be true; operated as a “not true” finding on the first allegation]; People v. Molina (1977) 74 Cal.App.3d 544, 550 [appellate court struck prior felony conviction enhancement from judgment because, although the defendant admitted it prior to trial, court neglected to find the allegation true in its oral pronouncement of judgment].)
Furthermore, there was no evidence presented to the trial court to support the on-bail enhancement.
Accordingly, the on-bail enhancement pursuant to section 12022.1 must be stricken.
Because we agree with defendant that the on-bail enhancement must be stricken from the judgment, we need not address defendant’s alternative contention that his sentence for the on-bail enhancement should have been a two-year term pursuant to the section 12022.1 rather than 25 years to life.
B. Sentencing Issues and Correction of Abstract of Judgment
Defendant also contends that his 25-years-to-life sentence on either count 2 or count 3 should have been stayed pursuant to section 654. Because a review of the record indicates that the trial court intended to impose a total sentence of 25 years to life, rather than 100 years to life, we will order the trial court to correct the minute order of the sentencing hearing as well as the abstract of judgment to accurately reflect the sentence imposed.
Preliminarily, we note defendant is correct in his contention that his conviction on either count 2 (possession of methamphetamine) or count 3 (transportation of methamphetamine) should have been stayed pursuant to section 654, given the facts of this case. The two crimes arose from the same intent and conduct. (§ 654.) Defendant’s conviction on count 2 was based on the same usable quantity of methamphetamine that he was convicted of transporting in count 3. Accordingly, because defendant’s act of transporting methamphetamine and possessing methamphetamine constitute an indivisible course of conduct (§ 654), defendant’s sentence on count 3 should be stayed.
The People have not responded to defendant’s argument that section 654 prohibited imposing sentence on both the possession of methamphetamine conviction and the transporting methamphetamine conviction, thereby impliedly conceding the issue.
Turning now to the trial court’s intended sentence, the procedural background in this regard is as follows: On August 12, 2009, the jury found defendant guilty of receiving stolen credit cards (§ 496, subd. (a)), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)).
Subsequently, on September 25, 2009, defendant filed a motion to dismiss his prior serious and violent felony convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
On December 4, 2009, the trial court denied the Romero motion and sentenced defendant to 25 years to life.
On December 11, 2009, the parties reappeared before the court after realizing the court had not held a hearing and ruled on defendant’s alleged prior serious and violent felony convictions. At that time, the trial court vacated the prior sentence. After a court trial on the prior conviction allegations, the court found the two prior serious and violent felony conviction allegations to be true. Sentencing on the matter was continued.
A new sentencing in this case was held on April 14, 2010. Following a hearing, the trial court denied defendant’s Romero motion again. Defense counsel again empathetically asked the court to reconsider its denial of the Romero motion and impose a sentence shorter than 25 years to life. The trial court denied the request and sentenced defendant as follows: “In this matter the defendant, by operation of law, will be sentenced to state prison for the term of 25 years to life. That is for counts 1 and 2, 3, and the two prior offenses pursuant to [section] 667(c) and (e)(1) and the allegation pursuant to 12022.1”
The minute order of the April 14, 2010, sentencing hearing indicates that the trial court imposed consecutive terms of 25 years to life on counts 1, 2, and 3, as well as a 25-year determinate term for the on-bail enhancement. The abstract of judgment, too, indicates the trial court imposed consecutive terms of 25 years to life on counts 1, 2, and 3. It also indicates that defendant received an additional indeterminate term of 25 years to life for the on-bail enhancement, rather than a 25-year determinate term as noted by the April 14 minute order. Further, the abstract of judgment incorrectly states that defendant was convicted by “plea” rather than “jury.”
We agree with defendant that the abstract of judgment should be amended to reflect that defendant was convicted of counts 1 through 3 by a “jury.”
Based on an entire review of the record, it is apparent that the trial court intended to impose a total sentence of 25 years to life, rather than 100 years to life as indicated in the April 14, 2010, clerk’s minute order and the abstract of judgment. Indeed, the trial court’s statement at the April 14 sentencing hearing reflects that intention. Defense counsel’s statements at the April 14 hearing also indicate that counsel understood the trial court was imposing 25 years to life, as it had previously done. Moreover, the trial court’s intent at the time of the April 14 hearing is supported by the fact that it had initially and unequivocally imposed a total sentence of 25 years to life before having to vacate it for failing to rule on the prior convictions.
“Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.” (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) “The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment.” (Id. at pp. 387-388.) 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.)
The trial court should, therefore, correct its sentencing minute order and abstract of judgment accordingly.
C. Denial of Motion to Dismiss Prior Strike Convictions
Defendant further contends the trial court abused its discretion by refusing to strike his prior serious and violent felony convictions pursuant to Romero, supra, 13 Cal.4th 497. We disagree.
In Romero, the Supreme Court held that a trial court has discretion to dismiss three-strikes prior felony conviction allegations under section 1385. (Romero, supra, 13 Cal.4th at pp. 529-530.) The touchstone of the analysis is “‘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.’ [Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 377.)
“[A] trial court’s refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion.” (People v. Carmony, supra, 33 Cal.4th at p. 375.) “[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 p. 377.)
“Because the circumstances must be ‘extraordinary... by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (People v. Carmony, supra, 33 Cal.4th at p. 378.)
We cannot conclude the trial court abused its discretion in declining to strike one or both of defendant’s prior strike convictions. The relevant considerations supported the trial court’s ruling, and there is nothing in the record to show that the court declined to exercise its discretion on improper reasons or that it failed to consider and balance the relevant factors, including defendant’s personal and criminal background.
Although defendant’s two prior strikes arose from the same course of conduct in 1993 for mayhem (§ 203) and aggravated assault (§ 245, subd. (a)(1)) and his current crimes were nonviolent, defendant has manifested a persistent inability to conform his conduct to the requirements of the law. His past criminal history is extensive and serious. In addition to his prior serious and violent felony strike convictions, defendant has been convicted for possession of a controlled substance in 1999 and 2002, for misdemeanor domestic violence in 2004 and 2005, and for misdemeanor vehicle theft in 2009. Defendant’s criminal record also includes numerous poor performances on probation. Moreover, at the time of his current convictions, defendant had pending charges for felony and misdemeanor stolen property.
The court here could not overlook the fact that defendant continued to commit criminal offenses and violate the terms and conditions of his probation even after serving time in prison. His conduct as a whole was a strong indication of his unwillingness or inability to comply with the law. His disregard for the law is evidenced by his continual criminal convictions. It is clear from the record that prior rehabilitative efforts have been unsuccessful. Indeed, defendant’s prospects for the future look no better than the past, in light of defendant’s record of prior offense and reoffense and apparent substance abuse. All of these factors were relevant to the trial court’s decision under Romero; there is no indication from the record here that the court failed to consider the relevant factors or that it failed to properly balance the relevant factors or that it abused its discretion in determining that, as a flagrant recidivist, defendant was not outside the spirit of the three strikes law. (People v. Carmony, supra, 33 Cal.4th at pp. 375, 377-378.)
Although a court may consider drug addiction as a mitigating factor (People v. Garcia (1999) 20 Cal.4th 490, 503), it may also consider a drug-addicted defendant’s failure to address his or her addiction over a period of many years as a factor in the defendant’s prospects for re-offending if the court were to strike a prior strike and impose a shorter sentence. (People v. Williams (1998) 17 Cal.4th 148, 161, 163.) Defendant had over 17 years since his last conviction for the prior strike offenses to attempt to get his drug habit under control. Moreover, the remoteness of his prior strike convictions do not support the conclusion that defendant falls outside the spirit of the three strikes law.
A trial court abuses its discretion in striking a prior conviction if it is “‘guided solely by a personal antipathy for the effect that the three strikes law would have on [a] defendant, ’ while ignoring ‘defendant’s background, ’ ‘the nature of his present offenses, ’ and other ‘individualized considerations.’ [Citation.]” (Romero, supra, 13 Cal.4th at p. 531.) However, that is precisely what defendant would have this court do.
Thus, given defendant’s continuous criminal history, his numerous probation violations, the seriousness of the past offenses, and his seemingly dim prospects for rehabilitation and lack of meaningful crime-free periods, we cannot say that the trial court abused its discretion when it declined to dismiss one or both of defendant’s prior strike convictions.
III
DISPOSITION
The section 12022.1 on-bail enhancement is stricken. Defendant’s sentence on count 3 is ordered stayed pursuant to section 654. The superior court clerk is directed to correct its sentencing minute order and the abstract of judgment to so reflect and to reflect that sentence on count 2 is to run concurrent with the sentence on count 1, for a total indeterminate term of 25 years to life, and that defendant was convicted in counts 1 through 3 by a jury. The superior court clerk is also ordered to forward a corrected copy of the abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
Because the trial court failed to state at the April 14, 2010, sentencing hearing whether the terms for counts 2 and 3 would be consecutive to count 1, for the sake of judicial economy, we will order the sentence on count 2 to be concurrent to count 1; and the sentence on count 3 stayed pursuant to section 654.
We concur: MILLER J., CODRINGTON J.