Filed 9/22/14 P. v. Bowers CA3
                                           NOT TO BE PUBLISHED



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.



              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                        (Shasta)
                                                            ----




THE PEOPLE,

                   Plaintiff and Respondent,                                                 C075744

         v.                                                                       (Super. Ct. No. 13F4846)

HAROLD LYNN BOWERS,

                   Defendant and Appellant.




         Defendant Harold Lynn Bowers pleaded no contest to inflicting corporal injury on
a spouse and admitted a prior strike conviction allegation. The trial court denied his
request to dismiss the prior strike allegation (People v. Superior Court (Romero) (1996)
13 Cal.4th 497, 504 (Romero)) and sentenced him to four years in prison.
         Defendant now contends (1) the trial court abused its discretion in denying his
Romero request to dismiss the prior strike allegation, and (2) the minute order and
abstract of judgment must be corrected to reflect the oral pronouncement of judgment.


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       The trial court did not abuse its discretion, but we will order correction of the
minute order and abstract of judgment. We will affirm the judgment.
                                     BACKGROUND
       Defendant and his spouse attended a barbecue on July 27, 2013. They both
consumed alcohol but left the gathering when defendant became upset that his spouse
was not paying attention to him. At home, defendant punched his spouse six times, then
grabbed a large knife and told her he would “cut” her if she fell asleep. He also held the
tip of the knife against her knee.
       When defendant passed out, his spouse fled their home and went to a relative’s
home where she called the police. An officer arrived and observed a lump on the
spouse’s forehead and redness on her face. Defendant was arrested at their home. The
spouse requested and obtained an emergency protective order.
       Defendant pleaded no contest to inflicting corporal injury on a spouse (Pen. Code,
§ 273.5, subd. (a))1 and admitted a prior strike conviction allegation (§ 1170.12): a 1996
conviction for assault with a deadly weapon. In exchange, the remaining counts and
allegations were dismissed with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d
754), and another case (case No. 12F5462) was also dismissed. The plea agreement
included a sentencing lid of four years in prison.
       The trial court denied defendant’s Romero request to dismiss the prior strike
allegation and sentenced him to state prison for the low term of two years, doubled to
four years for the prior strike.
       Additional facts are included in the discussion as relevant to the contentions on
appeal.




1 Undesignated statutory references are to the Penal Code.


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                                          DISCUSSION
                                                I
       Defendant contends the trial court abused its discretion in denying his Romero
request to dismiss the prior strike allegation. He claims his strike conviction was remote
and that he falls outside the spirit of the three strikes law.
       In making his Romero request, defendant noted that his prior strike conviction was
in 1996 and that he was now 61 years old and had changed since then. He argued the
1996 offense was an isolated incident and since that time he had not been convicted of an
offense of such gravity. He said his two felony convictions since 1996 were nonviolent
drug offenses from the same case, and his felony conviction prior to 1996 was a petty
theft with a prior. He claimed the nature of his convictions since 1996 have been
decreasing in severity. He also claimed his background (married for 22 years) supported
dismissing the prior strike allegation.
       The People opposed the Romero request, arguing that defendant was a habitual
criminal who had difficulty living a sober, nonviolent, law-abiding life. The People
noted that defendant’s criminal history began in 1983 and included violent and serious
offenses.
       At the hearing on the motion, defense counsel pointed out several errors in the
probation report and noted that defendant had no violations since 2008 when he was
released from prison and that he had done good work in the community.
       The trial court concluded that defendant did not fall outside the spirit of the three
strikes law and denied the Romero request. The trial court explained: “Well, I do believe
in Romero motions. I’ve granted Romero motions. However, never on these
circumstances. So I would have to conclude that there is a factual basis to find that
[defendant] has changed from his ways in the past and has led a law-abiding and moral
life under the laws of the State of California. And I’ll take moral out of that. That’s a
little vague. [¶] We do have this record. It goes back quite a while, as [defendant] is 61,

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I believe. So we have a record of violence, the [section] 273.5 as pointed out by the
People and the [19]87, the battery in [19]89, the 1990 misdemeanor [assault with a
deadly weapon] and brandishing, and then the [19]96 felony, assault with a deadly
weapon, with no crimes of violence until 2013. But we also have a record of substance
abuse. The [driving under the influence] in [19]90, the 2004 possession of cocaine base,
maintaining a place for the use of a controlled substance, a misdemeanor. [¶] We have
the 2002 [driving under the influence], and the probation report on line 3, just under the
lines 1 to 5 about the knife, possessing it, the statements to his wife and pressing the knife
to her knee on lines 5 to 7. It says he was passed out due to his level of intoxication in
the present offense and circumstances. [¶] So I have a pattern of substance abuse and
violence, and so I can’t conclude this is not within the spirit of the three strikes to have
this limited, brief, most recent approximate three-year period of law-abiding citizenship,
and therefore this does definitely fall within the three strikes based on his record, and that
Romero motion is denied.”
       Section 1385, subdivision (a) authorizes a trial court to dismiss an action “in
furtherance of justice.” (Romero, supra, 13 Cal.4th at pp. 504, 529-530.) A trial court’s
ruling denying a request to dismiss a prior strike allegation “is subject to review under the
deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367,
374 (Carmony).)
       In deciding whether to dismiss a prior strike allegation, a trial 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.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
       Carmony, supra, 33 Cal.4th at page 377, explained: “ ‘[T]he Three Strikes law
does not offer a discretionary sentencing choice, as do other sentencing laws, but

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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.]”
       “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.)
       Defendant claims his history of violence ended in 1996, but his current felony was
violent. He also claims he is not a “ ‘revolving door’ ” career criminal, but he has a
history of violence and substance abuse.
       The trial court considered and balanced the relevant factors and reached its
decision in conformity with the law. It did not abuse its discretion in denying defendant’s
Romero request.
                                              II
       Defendant also claims the minute order and abstract of judgment must be
corrected to reflect the oral pronouncement of judgment. The Attorney General agrees,
and so do we.



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       In its oral pronouncement of sentence, the trial court sentenced defendant to state
prison for the low term of two years, doubled to four years for the prior strike. However,
the clerk’s minute order and the abstract of judgment incorrectly indicate that the trial
court sentenced defendant to the midterm of four years. And the abstract of judgment
does not indicate that defendant was sentenced pursuant to a prior strike conviction.
       Section 273.5, subdivision (a), provides a sentencing triad of two, three or four
years. The trial court orally imposed the low term of two years, then doubled the two-
year term to four years for the prior strike. We will direct the trial court to correct the
minute order and abstract of judgment to reflect the trial court’s oral pronouncement of
sentence. (People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Zackery (2007)
147 Cal.App.4th 380, 385-386.)
                                       DISPOSITION
       The judgment is affirmed. The trial court shall prepare a corrected minute order
and abstract of judgment reflecting that it orally imposed the low term of two years,
doubled to four years pursuant to a prior strike conviction. The trial court shall forward a
certified copy of the corrected abstract of judgment to the Department of Corrections and
Rehabilitation.


                                                                 MAURO                        , J.


We concur:


                  RAYE                 , P. J.


                  BLEASE               , J.




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