Filed 6/10/14 P. v. Grajeda CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D064452

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. FVA025452)

TOMAS GRAJEDA, JR.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Bernardino County,

Stephen G. Saleson, Judge. Affirmed as modified.

         Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Sean M.

Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.

         Tomas Grajeda, Jr., appeals a judgment following his jury conviction of one count

of willful, deliberate, and premeditated attempted murder (Pen. Code, §§ 664, 187, subd.
(a))1 and one count of carrying a loaded firearm while an active participant in a criminal

street gang (Pen. Code, former § 12031, subd. (a)(2)(C)). In a bifurcated proceeding, the

trial court found true allegations that Grajeda had two or more serious or violent felony

convictions within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12,

subd. (c)(2)). On appeal, Grajeda contends: (1) the trial court abused its section 1385

discretion by denying his request to dismiss two or more of his prior strike conviction

allegations in the interests of justice; (2) the court erred by denying him presentence

conduct credits; and (3) the abstract of judgment must be corrected to reflect the court's

permanent stay of the restitution and parole revocation fines it imposed.

                   FACTUAL AND PROCEDURAL BACKGROUND

        In September 2005, Grajeda met Shannan Baird and, a few weeks later, they began

staying in hotels together. On September 22, they began staying at a Best Western Hotel

in Rialto. During the evening of September 24, the hotel manager sent Amer Hameed,

the hotel's security officer, to their room to talk to them about paying their telephone bill.

When Hameed knocked on the door, Baird opened the door and he told her about the bill.

While Hameed waited outside, Baird called the hotel's front office. During the call,

Grajeda walked into the hotel room and sat on the bed without saying anything to

Hameed. After the call, Baird told Hameed she had talked to the front office. The hotel

manager then contacted Hameed and told him the matter had been resolved, and Hameed

left.


1       All statutory references are to the Penal Code.

                                              2
       Later that night, Hameed was sitting in his car in the hotel's parking lot when he

saw Grajeda and Baird get in their truck and prepare to leave. Hameed could hear them

arguing. Grajeda, the truck's driver, stopped the truck near Hameed's car and walked

toward Hameed. Grajeda was upset with Hameed and accused him of going into his

hotel room. Inferring that Grajeda was accusing him of having a relationship with Baird,

Hameed told him he did not know Baird and had not gone inside their room. Hameed

looked toward Baird in the truck and asked her whether he had gone into their room.

Baird rolled up her window without replying.2 Hameed turned back toward Grajeda,

who pulled out a gun and pointed it at him. Hameed raised his hands in a stopping

motion and asked Grajeda what he was doing. Grajeda then shot Hameed in the chest.

Hameed survived the gunshot, but remained in the hospital for eight days.

       A second amended information charged Grajeda with one count of willful,

deliberate, and premeditated attempted murder (§§ 664, 187, subd. (a)) and one count of

carrying a loaded firearm while an active participant in a criminal street gang (Pen. Code,

former § 12031, subd. (a)(2)(C)). It further alleged that in committing count one, he

personally and intentionally discharged a firearm and proximately caused great bodily

injury (§ 12022.53, subd. (d)), he personally and intentionally discharged a firearm

(§ 12022.53, subd. (c)), and he personally used a firearm (§ 12022.53, subd. (b)). The




2      At trial, Baird contradicted Hameed's testimony, stating she replied, "I don't know
anything."

                                             3
information further alleged that he had three prior serious or violent felony convictions

within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subd. (c)(2)).

       At trial, the prosecution presented the testimony of Hameed and other witnesses

substantially as described above. In his defense, Grajeda testified, denying he ever had a

gun or shot Hameed. He testified that he only punched Hameed in the face and then

walked away. The jury found Grajeda guilty on both counts and found true the firearm

and gang allegations. In a bifurcated proceeding, the trial court found true the allegation

that Grajeda had two or more prior serious or violent felony convictions within the

meaning of the three strikes law. The trial court initially sentenced him to a total term of

70 years to life in prison, but on appeal in case No. D058090 we reversed the judgment in

part based on insufficient evidence to support the criminal street gang enhancement. On

remand, the trial court resentenced Grajeda to a total term of 50 years to life in prison.

On appeal in case No. D060725, we remanded the matter for resentencing because

Grajeda was not present for the second sentencing hearing.

       At the third sentencing hearing, the trial court denied Grajeda's request to dismiss

two or more of his prior strike conviction allegations pursuant to section 1385. The court

granted the People's motion to dismiss count 2 and, applying the three strikes law,

sentenced him to a total term of 50 years to life in prison for count 1 and the section

12022.53, subdivision (d), firearm allegation. The court also imposed various fines.

Grajeda timely filed a notice of appeal.




                                              4
                                       DISCUSSION

                                              I

                       Denial of Request to Dismiss Prior Felony
                     Conviction Allegations under Three Strikes Law

       Grajeda contends the trial court abused its discretion under section 1385 by

denying his request to dismiss two or more of his prior felony conviction allegations. He

argues that because those prior felony convictions occurred when he was a juvenile and

less morally culpable than an adult, the court should have concluded he was outside the

spirit of the three strikes law and exercised its section 1385 discretion to dismiss two or

more of his prior felony conviction allegations in the interests of justice.3

                                              A

       Section 1385, subdivision (a), provides: "The 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. . . ." In People v. Superior Court

(Romero) (1996) 13 Cal.4th 497, the court concluded trial courts have the discretion

under section 1385, subdivision (a), to dismiss prior felony conviction allegations under

the three strikes law. (Romero, at pp. 529-530.) Exercise of that discretion is subject to

review for abuse of discretion. (Id. at p. 530.) In deciding whether to dismiss a prior

felony conviction allegation, a trial court must consider the constitutional rights of the


3     We note that because the trial court found Grajeda had three prior felony
convictions, he would not have received a more favorable sentence under the three strikes
law unless the court dismissed at least two of those prior felony conviction allegations.
(§§ 667, subds. (b)-(i), 1170.12, subd. (c)(2).)

                                              5
defendant and the interests of society. (Id. at pp. 530-531.) In so doing, 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 . . . spirit" of the three

strikes law. (People v. Williams (1998) 17 Cal.4th 148, 161.) Williams stated:

           "[I]n ruling whether to strike or vacate a prior serious and/or violent
           felony conviction allegation or finding under the Three Strikes law,
           on its own motion, 'in furtherance of justice' pursuant to Penal Code
           section 1385[, subdivision] (a), or in reviewing such a ruling, the
           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." (Ibid., italics added.)

       The reasons for dismissal of a prior felony conviction allegation must be set forth

in the trial court's order entered in the minutes. (§ 1385, subd. (a); People v. Williams,

supra, 17 Cal.4th at p. 161.) However, section 1385, subdivision (a), does not require a

trial court to state its reasons for declining to dismiss a prior felony conviction allegation.

(People v. Zichwic (2001) 94 Cal.App.4th 944, 960.)

       The trial court's decision whether to dismiss a prior felony conviction allegation is

reviewed for abuse of discretion. (People v. Romero (2002) 99 Cal.App.4th 1418, 1434.)

"Where the record demonstrates that the trial court balanced the relevant facts and

reached an impartial decision in conformity with the spirit of the law, we shall affirm the

trial court's ruling, even if we might have ruled differently in the first instance." (People

v. Myers (1999) 69 Cal.App.4th 305, 310.)

                                               6
                                                B

       We conclude the trial court did not abuse its section 1385 discretion by not

dismissing two or more of Grajeda's prior felony conviction allegations. The court was

aware of, and considered, the circumstances of those prior felony convictions. Grajeda

was 16 years old when he committed those prior offenses. On February 19, 1988,

Grajeda committed an armed robbery against one victim at a market. On February 21,

1988, he committed an armed robbery against two victims at another market. In denying

Grajeda's section 1385 request, the court expressly considered the fact he was 16 years

old at the time of those prior felony offenses, but noted he had a gun during both

robberies and "[s]omeone could have been killed."

       The trial court further described Grajeda's criminal history since his prior felony

convictions, concluding it showed he had not refrained from criminal activity, gained

maturity or wisdom, or felt "the need to conform to society's laws as you got older."

Since Grajeda's prior felony convictions in 1988, he had a forgery conviction, multiple

drug convictions, multiple firearm convictions, and repeated parole violations. The

prosecutor noted Grajeda had not been free of custody for more than a period of one or

two years during the 20 or more years he had been in the criminal justice system. The

court addressed Grajeda, stating: "Your actions speak loudly about your character for

being law-abiding, but the positive attitudes that you would like me to consider have been

very quiet." The court concluded: "I can't find based on all of that criteria that you would

be outside the spirit of the three strikes law. . . . I think your behavior is within it, and it



                                                7
has been for a long time for whatever reason." The court denied his section 1385 request

to dismiss two or more of his prior felony conviction allegations.

       The record shows the trial court clearly considered Grajeda's relative youth and

immaturity at the time of his prior felony convictions, but weighed those mitigating

factors against the egregious nature of those prior convictions, his criminal history and

the nature and circumstances of the instant offense, and found he was not outside the

spirit of the three strikes law. Based on our review of the record, we conclude the trial

court did not abuse its discretion by so finding.

       Furthermore, contrary to Grajeda's apparent assertion, there is nothing in the

recent cases he cites regarding sentencing of juveniles to life terms without the possibility

of parole that shows the trial court abused its section 1385 discretion in the circumstances

of this case. In People v. Caballero (2012) 55 Cal.4th 262, the California Supreme Court

cited recent decisions of the United States Supreme Court (i.e., Graham v. Florida (2010)

560 U.S. 48 and Miller v. Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455, 183 L.Ed.2d

2455]) and concluded a 110-year-to-life prison term imposed on a juvenile for

nonhomicide offenses constituted cruel and unusual punishment in violation of the Eighth

Amendment to the United States Constitution. (Caballero, at pp. 265-269.) Caballero

reasoned the term imposed on the juvenile was the functional equivalent of the

unconstitutional life-without-the-possibility-of-parole sentence imposed on the juvenile




                                              8
in Graham.4 (People v. Caballero, supra, 55 Cal.4th at pp. 268-269.) It further noted

that Graham requires a sentencing court to consider all mitigating circumstances,

including the chronological age of the juvenile at the time of the crime, whether the

juvenile was the direct perpetrator or an aider and abettor, and his or her physical and

mental development. (Caballero, at pp. 268-269.)

       Because Grajeda was not a juvenile at the time of the instant offense, the cases

discussed above do not, as he concedes, apply to his sentencing under the three strikes

law.5 Instead, Grajeda argues that the underlying reasoning in those cases (e.g.,

juveniles' brains are not as developed as adults' brains and juveniles may have

undeveloped moral senses) should have been considered by the trial court in sentencing

him. He argues that if the court had considered his immaturity at the time of his prior

felony convictions and the long period of time between those prior convictions and the

instant offenses, it would, and should, have concluded he was not within the spirit of the



4       As the People note, the Legislature enacted section 3051 in response to Caballero
and other cases. Section 3051 provides that a juvenile who is sentenced to a term of 25
years to life in prison is eligible for parole during his or her 25th year of imprisonment.
(§ 3051, subd. (b)(3).) Furthermore, during a juvenile's parole hearing, the Board of
Parole Hearings must consider the juvenile's growth and maturity and the diminished
culpability of juveniles. (§ 3051, subd. (f)(1), (2).) However, section 3051 expressly
states that its provisions do not apply in sentencing juveniles under the three strikes law
or when the juvenile, after turning 18 years of age, committed an offense requiring malice
aforethought. (§ 3051, subd. (h).)

5       As the People note, certain juvenile offenses may qualify as strikes under the three
strikes law. (People v. Garcia (1999) 21 Cal.4th 1, 3, 13; § 667, subd. (d)(3).) Grajeda
does not assert that his prior juvenile adjudications for armed robbery cannot, as a matter
of law, be considered prior felony convictions under the three strikes law.

                                             9
three strikes law and granted his section 1385 request. However, as discussed above, the

record shows the trial court did consider those factors. The court noted Grajeda was 16

years old at the time of his prior strike offenses and since that time had not refrained from

criminal activity, gained maturity or wisdom, or felt "the need to conform to society's

laws as [he] got older." Therefore, the court properly weighed those mitigating

circumstances against the nature and circumstances of those prior offenses and of the

instant offense and his criminal history, and found he did not fall outside the spirit of the

three strikes law. We conclude the trial court did not abuse its section 1385 discretion by

so finding.

                                              II

                         Conduct Credits for Presentence Custody

       Grajeda contends the trial court erred by not awarding him conduct credits for his

presentence custody. He asserts that under sections 4019 and 2933.1 he is entitled to

conduct credits for 15 percent of the actual days he spent in presentence custody. The

People concede Grajeda is entitled to conduct credits under section 2933.1 equal to 15

percent of his presentence custody.

       Section 4019 generally provides that a defendant is entitled to four days of credit

for every two days spent in presentence custody for satisfactory conduct. However,

section 2933.1 limits the amount of those conduct credits to only 15 percent of

presentence custody in cases involving felony offenses listed under section 667.5,

subdivision (c). Attempted murder is a listed felony offense. (§ 667.5, subd. (c)(12).)

Accordingly, Grajeda is entitled to conduct credits under sections 4019 and 2933.1 equal

                                             10
to 15 percent of his presentence custody. The People calculate, and Grajeda does not

dispute, that he served a total of 1,296 days from the date of his arrest for the instant

offenses (i.e., January 6, 2006) until the date of his initial sentencing in this case (i.e.,

July 24, 2009). Accordingly, he is entitled to a total of 194 days (i.e., 1,296 multiplied by

0.15) of presentence custody conduct credits under sections 4019 and 2933.1. (People v.

Buckhalter (2001) 26 Cal.4th 20, 32-33 [presentence credits are not awarded for custody

served between initial sentencing and resentencing after remand]; People v. Ramos

(1996) 50 Cal.App.4th 810, 815-816 [section 2933.1 gives defendant greatest whole

number of days not exceeding 15 percent of presentence custody].) Rather than

remanding the matter for resentencing, we elect to modify the judgment to award Grajeda

194 days of presentence custody conduct credits under sections 4019 and 2933.1 and

instruct the superior court clerk to prepare an amended abstract of judgment reflecting

this modification and forward a certified copy of it to the Department of Corrections and

Rehabilitation.

                                               III

                          Restitution and Parole Revocation Fines

       Grajeda contends the abstract of judgment must be corrected to reflect the trial

court's permanent stay of the restitution and parole revocation fines it imposed.

                                                A

       At sentencing, the trial court stated it would reduce Grajeda's section 1202.4

restitution fine and section 1202.45 parole revocation fine to $280 each. However, after



                                               11
Grajeda complained he could not earn sufficient money in prison to pay those fines, the

court stated:

          "Tell you what I will do. I will stay both the [$280] fines and only
          impose the [$3,170] to the Victims Computation Appeals Board
          because I think that has to be imposed, should be imposed, and will
          be imposed. The other two are stayed." (Italics added.)

       The court's minutes state that the court "permanently stayed" the $280 section

1202.4 restitution fine and "stayed pending successful completion of parole" the $280

section 1202.45 fine. However, the abstract of judgment states that Grajeda must pay the

$280 section 1202.4 restitution fine "forthwith" pursuant to section 2085.5, and the $280

section 1202.45 parole revocation fine is "suspended unless parole is revoked."

                                              B

       Contrary to Grajeda's assertion, the trial court did not permanently stay the section

1202.45 parole revocation fine. Rather, it properly stayed that fine by suspending it

unless his parole was revoked. Therefore, the abstract of judgment correctly reflects the

court's judgment regarding the parole revocation fine.

       Although the trial court orally pronounced that it "stayed" Grajeda's section 1202.4

fine, its judgment did not "permanently" stay that fine. To the extent the trial court's oral

pronouncement of judgment and its minutes or abstract of judgment conflict with its oral

pronouncement, its oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th

181, 185 [abstract of judgment does not control if different from the trial court's oral

pronouncement]; People v. Hong (1998) 64 Cal.App.4th 1071, 1075-1076; People v.

Mesa (1975) 14 Cal.3d 466, 471 [rendition of judgment is an oral pronouncement and


                                             12
any discrepancy in court's minutes is presumed to be the result of clerical error]; People

v. Hartsell (1973) 34 Cal.App.3d 8, 14.) Therefore, the record shows the court simply

"stayed" his section 1202.4 fine.

       Nevertheless, as the People assert and Grajeda concedes, the trial court acted in

excess of its authority in staying the section 1202.4 fine. "[V]ictim restitution is

mandated by both the Constitution and section 1202.4." (People v. Rowland (1997) 51

Cal.App.4th 1745, 1751, italics added.) The trial court has discretion only regarding the

amount of the mandated restitution fine and not its imposition. (Id. at pp. 1751-1752.)

Furthermore, a sentence is unauthorized when a court awards less than full victim

restitution without stating a clear and compelling basis for its decision. (People v. Brown

(2007) 147 Cal.App.4th 1213, 1225-1226.) Section 1202.4, subdivision (g), provides:

"The court shall order full restitution unless it finds compelling and extraordinary reasons

for not doing so and states those reasons on the record. A defendant's inability to pay

shall not be considered a compelling and extraordinary reason not to impose a restitution

order, nor shall inability to pay be a consideration in determining the amount of a

restitution order."

       The record in this case shows the trial court did not state any compelling and

extraordinary reason to not impose a section 1202.4 restitution fine on Grajeda. At most,

the court appears to have stayed the $280 restitution fine based on Grajeda's inability to

earn sufficient money in prison to pay that fine. However, that reason does not constitute

a "compelling and extraordinary reason" under section 1202.4, subdivision (g), for a

decision to not impose, or as in this case stay the imposition of, a section 1202.4

                                             13
restitution fine. Therefore, the trial court erred by staying its imposition of the $280

section 1202.4 restitution fine. Rather than remanding the matter for resentencing, we

elect to modify the judgment to impose that fine without any stay. However, because the

abstract of judgment states a section 1202.4 restitution fine of $280 is imposed on

Grajeda without any mention of a stay of that fine, it correctly states the section 1202.4

fine imposed on him and therefore need not be amended.

                                       DISPOSITION

       The judgment is modified to award Grajeda 194 days of presentence custody

conduct credits pursuant to sections 4019 and 2933.1 and to impose a $280 fine pursuant

to section 1202.4. The superior court clerk is ordered on issuance of the remittitur to

prepare an amended abstract of judgment reflecting the modification awarding the

presentence custody conduct credits, and forward a certified copy of the amended

abstract to the Department of Corrections and Rehabilitation. As so modified, the

judgment is affirmed.




                                                                            McDONALD, J.
WE CONCUR:


HUFFMAN, Acting P. J.


AARON, J.




                                             14
