Filed 5/28/13 P. v. Hightower CA2/5
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE



THE PEOPLE,                                                          B243259

         Plaintiff and Respondent,                                   (Los Angeles County Super. Ct.
                                                                      No. MA055348)
         v.

TRACY HIGHTOWER,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Hayden
Zacky, Judge. Affirmed.
         Raymond M. DiGuiseppe, under appointment by the Court of Appeal, for
Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, and Paul M. Roadarmel, Jr.,
Supervising Deputy Attorney General, for Plaintiff and Respondent.


                                ___________________________________
       The jury convicted defendant and appellant Tracy Hightower of second degree
commercial burglary (Pen. Code, § 459).1 In a bifurcated proceeding, defendant admitted
he had suffered a prior serious or violent felony conviction within the meaning of the
three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and that he had served
two prior prison terms (§ 667.5, subd. (b)).
       The trial court denied probation and sentenced defendant to two years, doubled
under the three strikes law, plus one year under section 667.5, subdivision (b), for a total
of five years in state prison. The court struck defendant’s other prior prison term.
Defendant was also assessed various fines and fees.
       Defendant claims the trial court abused its discretion in refusing to strike his prior
strike conviction for burglary. Defendant also challenges the $10 crime prevention fee
and $28 penalty assessed against him.
       We affirm the judgment.


                                      DISCUSSION


       We reject defendant’s contention that the trial court abused its discretion when it
refused to strike his prior strike conviction pursuant to section 1385 and People v.
Superior Court (Romero) (1996)13 Cal.4th 497.
       Under section 1385, subdivision (a), the trial court has discretion to strike a prior
felony conviction allegation in furtherance of justice. (Romero, supra, 13 Cal.4th at
pp. 529-530.) In order 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.” (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) A


1      All further statutory references are to the Penal Code unless otherwise stated.


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trial court must enter a statement of reasons in the minutes of the court when dismissing a
prior conviction; however, it is not required to “‘explain its decision not to exercise its
power to dismiss or strike.’ [Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 376
(Carmony).)
       This court reviews a ruling upon a motion to strike a prior felony conviction under
a deferential abuse of discretion standard. (Williams, supra, 17 Cal.4th at p. 162.) The
defendant bears the burden of establishing that the trial court’s decision was unreasonable
or arbitrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978
[presumption that trial court acts to achieve lawful sentencing objectives].) “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 . . . .” (People v. Myers (1999) 69 Cal.App.4th 305, 310.) “It is not enough to
show that reasonable people might disagree about whether to strike one or more of [the
defendant’s] prior convictions.” (Ibid.) “[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 p. 377.)
       Defendant’s present conviction is for the fraudulent return of a one-gallon can of
paint and the theft of a one-gallon and a five-gallon can of paint from the Home Depot.
The trial court considered as mitigating factors the nature and seriousness of the present
offense and defendant’s professed motivation for it—purportedly he stole the paint and
attempted to return it to feed his young child. The court also weighed the factors in
aggravation, including a long history of criminal activity encompassing crimes similar in
nature to the present offense, and a propensity for “scamming.” Defendant had a prior
arrest in Oklahoma in 1992 for second degree burglary, for which he was sentenced to
five years in prison. In 2000, defendant was convicted of first degree burglary (§ 459) for
which he was sentenced to 24 months in prison. Following that, defendant was convicted
of check fraud (§ 475, subd. (c)) in California in 2002 and sentenced to 28 months in




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prison. Defendant also had three unspecified out-of-state arrests and two outstanding
traffic warrants.2
       In denying defendant’s Romero motion, the trial court stated:
       “[W]hatever the motivation was behind his criminal activities [on the day of the
present offense], what [defendant] has demonstrated to this court, based on what occurred
that day and in his past, is that he is a scam artist.
       “He went into Home Depot that day, pulled some paint off the shelves and tried to
return those very same items. Although the amount wasn’t that great, it’s just a scam.
He has a forgery conviction in his past, so that type of behavior appears to be something
that’s continuing.”
       The trial court concluded the factors in mitigation and aggravation were
“somewhat equal,” such that defendant was not outside the letter and spirit of the three
strikes law.
       In light of the factors considered, the trial court’s decision was not “so irrational or
arbitrary that no reasonable person could agree with it.” (Carmony, supra, 33 Cal.4th at
p. 377.) Accordingly, we hold that it did not abuse its discretion in denying defendant’s
Romero motion.



2      In his reply brief, defendant argues for the first time that the trial court considered
“impermissible factors” in denying his Romero motion. Absent a showing of good cause,
we will not consider an argument raised for the first time in an appellate reply brief.
(Authority for California Cities Excess Liability v. City of Los Altos (2006) 136
Cal.App.4th 1207, 1216, fn. 2.) The argument would fail even if we were to consider it
on the merits, however. Defendant asserts the trial court improperly relied on the
prosecution’s unsubstantiated statement that defendant’s rap sheet indicated “he had
parole violations at least charged in 2005, ’06, and ’07.” Directly after the prosecution
made the statement, the trial court responded, “That’s information that is not reflected in
the probation report. [¶] Based on that, though, he has not led a legally blameless life
since the strike conviction occurred. I cannot say he is outside the letter and the spirit of
the three strikes law. So, therefore, I will deny the motion.” We presume the trial court
acted to achieve a legitimate sentencing objective (Carmony, supra, 33 Cal.4th at
pp. 376-377) and interpret the trial court’s statement to indicate it was relying on the
probation report, which it properly considered.


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       We also reject defendant’s argument that the trial court improperly assessed the
$10 crime prevention fee and $28 penalty assessments against him because it failed to
make a finding on his ability to pay the fees and because there was insufficient evidence
in the record to support their imposition.3 Defendant failed to object to the fees at trial,
and thus forfeited the claim. (People v. McCullough (2013) __P.3d ___, 2013
WL1707962 [failure to object to trial court’s imposition of jail booking fees below
forfeited claim on appeal].)
       Alternately, defendant argues that his claim was not waived because the $28 in
penalty assessments was incorrectly calculated and thus constituted an unauthorized
sentence, which can be appealed at any time. (People v. Rodriguez (2000) 80
Cal.App.4th 372, 376 [“[T]he failure to impose a mandatory fine results in an
unauthorized sentence constituting jurisdictional error, which can be raised for the first
time on appeal.”].) We agree with the Attorney General that this contention is based on
an erroneous calculation of the penalty assessment on defendant’s part. Defendant argues
that, based on the calculations outlined in People v. Castellanos (2009) 175 Cal.App.4th
1524, the penalty assessment should be $26, rather than $28.4 Although defendant is



3       Section 1202.5 provides, in relevant part: “(a) In any case in which a defendant is
convicted of any of the offenses enumerated in Section 211, 215, 459, 470, 484, 487, 488,
or 594, the court shall order the defendant to pay a fine of ten dollars ($10) in addition to
any other penalty or fine imposed. If the court determines that the defendant has the
ability to pay all or part of the fine, the court shall set the amount to be reimbursed and
order the defendant to pay that sum to the county in the manner in which the court
believes reasonable and compatible with the defendant’s financial ability.” (Emphasis
added.) The section has been interpreted to require the trial court to evaluate the
defendant’s financial situation before the fee may be imposed. (People v. Castellanos
(2009) 175 Cal.App.4th 1524, 1532 (Castellanos).)
4      Castellanos, supra, 175 Cal.4th at page 1530 summarized its calculations as
follows: “[W]hen a full $10 section 1202.5, subdivision (a) fine is imposed, trial courts
in Los Angeles County must also impose seven additional sums: the $10 section 1464,
subdivision (a)(1) penalty assessment; the $7 Government Code section 76000,
subdivision (a)(1) penalty assessment; the $2 Government Code section 76000.5,
subdivision (a)(1) penalty assessment; the $2 section 1465.7, subdivision (a) state


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correct that the amount of the penalty assessments was $26 at the time Castellanos was
issued, the state-only deoxyribonucleic acid penalty had been raised from $1 to $3 at the
time of defendant’s sentencing. (Gov. Code, § 76104.7, subd. (a).) Thus, the penalty
assessment currently totals $28 and was not unauthorized.
       For these reasons, we conclude defendant forfeited his contention.


                                     DISPOSITION


       The judgment is affirmed.




              KRIEGLER, J.




We concur:


              ARMSTRONG, Acting, P. J.




              O’NEILL, J.*




surcharge; the $3 Government Code section 70372, subdivision (a)(1) state court
construction penalty; the Government Code section 76104.6, subdivision (a)(1) $1
deoxyribonucleic acid penalty; and the Government Code section 76104.7, subdivision
(a) $1 deoxyribonucleic acid state-only penalty. Thus, the additional sum due is $26 if the
trial court, as it did here, imposes the full section 1202.5, subdivision (a) $10 fine in Los
Angeles County.”

*     Judge of the Ventura County Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.


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