Filed 6/16/14 P. v. Robinson 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                                          NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                         (Yolo)
                                                            ----




THE PEOPLE,                                                                             C073749

                   Plaintiff and Respondent,                              (Super. Ct. No. CRF12-4295)

         v.

HARMONTE ROBINSON,

                   Defendant and Appellant.




         A jury convicted defendant Harmonte Robinson of unlawful possession of
methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) As a prior strike offender,
defendant was sentenced to an aggregate term of six years in state prison. On appeal
defendant contends the trial court abused its discretion (1) by denying his motion to
dismiss his prior strike conviction, and (2) by denying his motion to reduce his felony
conviction for possessing methamphetamine to a misdemeanor; he also asserts (3) the
judgment should be amended to reflect his presentence custody credits.

                                                             1
       We shall modify the judgment to reflect defendant’s presentence custody credits,
and affirm as modified.

                  FACTUAL AND PROCEDURAL BACKGROUND

       Pursuant to a residential search warrant executed in November 2012, police
officers discovered in defendant’s pocket a plastic baggie containing what was later
determined to be 0.23 grams of methamphetamine. Defendant admitted the
methamphetamine found in his pocket was his.1 Defendant also stated that he was
homeless and occasionally stayed at the residence where he was discovered by law
enforcement.

       A jury convicted defendant of unlawful possession of methamphetamine as a
felony. In a bifurcated proceeding, the trial court found true enhancement allegations that
defendant had a prior strike conviction under the three strikes law for battery causing
serious bodily injury (Pen. Code, §§ 243, subd. (d), 667, subd. (c)(1)),2 and that
defendant had served two prior prison terms (§ 667.5, subd. (b)). Prior to sentencing,
defendant moved to reduce his felony conviction for possessing methamphetamine to a
misdemeanor pursuant to section 17, subdivision (b) (section 17(b) motion), and moved
to dismiss his prior strike conviction pursuant to section 1385 (Romero motion).3 The
trial court denied both motions. Defendant filed a timely notice of appeal.




1 The parties also stipulated defendant knew of methamphetamine’s nature and character
on the date of the incident.
2 Undesignated statutory references are to the Penal Code.

3 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).



                                             2
                                       DISCUSSION

                                     I. Romero Motion

       Defendant argues the trial court abused its discretion in denying his Romero
motion. Specifically, defendant argues the nature and circumstances of the current
offense, his criminal history, the remoteness of his prior strike conviction, and his
background, character, and prospects, compel a conclusion that the Romero motion
should have been granted. We find no abuse of discretion in the trial court’s denial of
defendant’s Romero motion.
                                     A. Governing Law
       Section 1385, subdivision (a) permits a trial court, in furtherance of justice, to
strike (i.e., dismiss) a prior strike conviction for purposes of sentencing if the defendant
falls outside the spirit of the three strikes law. (People v. Williams (1998) 17 Cal.4th 148,
161 (Williams).) In so doing, the trial court “must consider whether, in light of the nature
and circumstances of [the defendant’s] present felonies and prior serious and/or violent
felony convictions [(i.e., strike 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.)

       A trial court’s decision to strike a prior conviction pursuant to section 1385,
subdivision (a) is reviewed for abuse of discretion. (People v. Carmony (2004)
33 Cal.4th 367, 373 (Carmony).) The burden is on the party attacking the sentence to
show that the decision was “so irrational or arbitrary that no reasonable person could
agree with it.” (Id. at p. 377.) “It is not enough to show that reasonable people might
disagree about whether to strike one or more of his prior convictions. 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,



                                              3
even if we might have ruled differently in the first instance.” (People v. Myers (1999)
69 Cal.App.4th 305, 310.)
                                        B. Analysis
       Here, the relevant considerations supported the trial court’s denial of defendant’s
Romero motion, and there is nothing in the record to suggest that the court denied the
motion for improper reasons or that it failed to consider the relevant factors.

       Defendant has repeatedly transgressed the line of the law. Defendant’s criminal
record includes the following: an August 2000 conviction for battery in violation of
Penal Code section 242; a conviction for obstructing an officer in violation of Penal Code
section 148, subdivision (a)(1) in March 2002; an April 2002 conviction for misdemeanor
possession of a controlled substance in violation of Health and Safety Code section
11377, subdivision (a); a March 2003 conviction for felony possession of a controlled
substance in jail in violation of Penal Code section 4573.6; an August 2003 conviction
for misdemeanor battery in violation of Penal Code section 242; a December 2003
conviction for felony battery causing serious bodily injury (id., § 243, subd. (d)—this is
defendant’s prior strike conviction); a July 2005 conviction for possession of controlled
substance paraphernalia in violation of Health and Safety Code section 11364; a March
2007 conviction for felony unlawful intercourse with a minor in violation of Penal Code
section 261.5, subdivision (c); and a March 2007 conviction for felony infliction of
corporal injury on a cohabitant in violation of Penal Code section 273.5, subdivision (a).

       Defendant asserts that his current offense and most of his prior offenses are not
particularly egregious, that his prior strike conviction is 10 years old, and that he was
trying to improve himself by participating in substance abuse treatment after the current
conviction. The trial court could not overlook the fact, however, that defendant
consistently committed criminal offenses—a strong indication of defendant’s
unwillingness to comply with the law. Indeed, defendant committed the current offense


                                              4
within seven months of being released from prison and while still on postrelease
community supervision, after having served a term of six years eight months (as a prior
strike offender) for his convictions for felony infliction of corporal injury upon a
cohabitant and unlawful sexual intercourse with a minor. And, as already mentioned,
defendant has been convicted of several prior drug-related offenses. “[T]he existence of
such convictions reveals that [defendant] ha[s] been taught, through the application of
formal sanction, that [such] criminal conduct [i]s unacceptable—but ha[s] failed or
refused to learn his lesson.” (People v. Gallego (1990) 52 Cal.3d 115, 208-209, fn. 1
(conc. opn. of Mosk, J.).)

       Defendant also argues that his criminal conduct was “secondary to untreated
substance abuse.” “However, drug addiction is not necessarily regarded as a mitigating
factor when a criminal defendant has a long-term problem and seems unwilling to pursue
treatment.” (People v. Martinez (1999) 71 Cal.App.4th 1502, 1511.) The trial court did
consider defendant’s history of substance abuse and his willingness to enter a treatment
program, and remarked, “[defendant] should have been given [the] chance in [a] drug
program a long time ago.” The record indicates defendant had been using marijuana
daily since the age of 13 and had been snorting methamphetamine daily since the age of
16. And while defendant has been participating in a substance abuse treatment program,
he sought treatment only after committing the current offense. The purpose of the three
strikes law is to provide greater punishment for recidivist criminal offenders who have
not been rehabilitated or deterred from further criminal activity. (People v. Davis (1997)
15 Cal.4th 1096, 1099; People v. Leng (1999) 71 Cal.App.4th 1, 14.) Defendant’s
conduct demonstrates he is unable to remain law abiding, even with supervision.

       Defendant cites In re Saldana (1997) 57 Cal.App.4th 620, People v. Cluff (2001)
87 Cal.App.4th 991 (Cluff) and People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968




                                              5
(Alvarez), for the proposition that his prior strike offense should have been dismissed
despite his criminal history.

       However, Saldana is inapposite as the appellate court there found no abuse of
discretion in the trial court’s decision to dismiss the defendant’s prior conviction. (In re
Saldana, supra, 57 Cal.App.4th at pp. 626-627.) Here, defendant is asking us to find
abuse of discretion in the trial court’s decision not to dismiss his prior conviction.

       Defendant’s reliance on Cluff is also misplaced. The defendant in Cluff was
convicted of failing to comply with the sexual offender registration requirements and, as
a three strikes offender, was sentenced to a term of 25 years to life in prison. (Cluff,
supra, 87 Cal.App.4th at p. 994.) The trial court denied the defendant’s motion to strike
the prior conviction allegations, largely because it inferred the defendant failed to comply
with the registration requirements to evade the reach of law enforcement. (Id. at
p. 1001.) The appellate court in Cluff found an abuse of discretion because there was no
substantial evidence to support the trial court’s inference, and the record strongly
suggested the defendant committed a mere “technical violation” of the registration
requirements. (Id. at pp. 994, 1001-1002.) In the present case, by contrast, defendant’s
criminal conduct was an affirmative act, not a technical violation, and there is substantial
evidence in the record, particularly defendant’s criminal history, supporting the trial
court’s determination that defendant was within the spirit of the three strikes law.

       Defendant’s reliance on Alvarez is also misplaced. In Alvarez, the defendant was
convicted of possessing 0.41 grams of powdered methamphetamine and he admitted to
having four prior serious felony convictions. (Alvarez, supra, 14 Cal.4th at pp. 973-974.)
The trial court reduced the possession conviction to a misdemeanor stating “ ‘that’s for
sure what it was.’ ” (Id. at p. 973.) The Supreme Court found that the trial court acted
within its discretion. (Id. at pp. 980, 981.) The Supreme Court did not hold, however,
that a defendant possessing less than 0.41 grams of methamphetamine is always entitled


                                              6
to have one or more prior convictions stricken as a matter of law. Moreover, the felony
conviction in Alvarez was reduced to a misdemeanor pursuant to section 17(b), which
gives especially broad discretion to the trial courts. (Id. at p. 977 [“section 17(b), read in
conjunction with the relevant charging statute, rests the decision whether to reduce a
wobbler solely ‘in the discretion of the court’ ”].) Conversely, in this case, defendant is
arguing his prior strike conviction should be dismissed pursuant to section 1385 in the
context of the three strikes law, which involves a more limited discretion. (Romero,
supra, 13 Cal.4th at p. 530 [trial court’s discretion to strike prior felony conviction under
§ 1385 “ ‘is limited by the amorphous concept which requires that the dismissal be “in
furtherance of justice” ’ ”]; Carmony, supra, 33 Cal.4th at p. 378 [“[T]he three strikes
law not only establishes a sentencing norm, it carefully circumscribes the trial court’s
power to depart from this norm and requires the court to explicitly justify its decision to
do so.”].) Alvarez is also distinguishable, as the Supreme Court in that case was
examining whether the trial court abused its discretion in granting the defendant’s section
17(b) motion, while the first issue in this case involves whether the trial court abused its
discretion in denying defendant’s Romero motion. (Alvarez, supra, 14 Cal.4th at pp. 972-
973.)

        Defendant cites to People v. Philpot (2004) 122 Cal.App.4th 893 and Williams,
supra, 17 Cal.4th 148 for the proposition that the nature and circumstances of his prior
offenses and the remoteness of his prior strike offense show he fell outside the spirit of
the three strikes law. Although defendant’s criminal history is not as severe and
extensive as the defendants’ criminal histories in Philpot and Williams, his record, as
reflected in the probation report, “consists of four (4) felony and seven (7) misdemeanor
convictions, all of which occurred within a seven-year period, indicating a pattern of
regular criminal activity.”




                                              7
       Defendant also argues that “[p]roper consideration of the particulars of [his]
background, character and prospects, further support[s] the conclusion [he] fell outside
the spirit of the three strikes law.” However, the record shows defendant had persistent
difficulty maintaining a job and a residence and had two children he did not financially
support. These facts weigh against any finding of prospects that might cause defendant
to land outside the spirit of the three strikes law. The record also shows defendant has a
long history of substance abuse and criminal conduct—including a prior strike conviction
for felony battery, at least three other convictions for physical violence, and numerous
parole violations—and had never sought treatment for his substance abuse problem until
after the current conviction despite having several prior drug-related convictions.

       We conclude the trial court did not abuse its discretion in denying defendant’s
Romero motion.

                                II. Section 17(b) Motion

       Defendant argues the trial court abused its discretion in denying his section 17(b)
motion by failing to properly consider all the relevant factors. Specifically, defendant
asserts that the nature and circumstances of the current offense, defendant’s appreciation
and attitude toward the current offense, and an assessment of the general sentencing
objectives compel a finding that the current offense should have been reduced to a
misdemeanor and that the trial court abused its discretion in finding otherwise. We
disagree.
                                    A. Governing Law
       Defendant was convicted of methamphetamine possession. (Health & Saf. Code,
§ 11377, subd. (a).) Because that conviction allows for punishment in county jail for a
period of not more than one year, or by imprisonment under the provisions of section
1170, subdivision (h), the offense is considered a “wobbler,” and the trial court has the



                                             8
discretion, under section 17(b), to treat the offense as a felony or a misdemeanor for
sentencing purposes. (Alvarez, supra, 14 Cal.4th at p. 977.)

       The trial court has broad authority in ruling on a motion to reduce a wobbler
offense to a misdemeanor. (Alvarez, supra, 14 Cal.4th at p. 977.) In determining
whether to exercise its discretion under section 17(b), the trial court should consider
“ ‘the nature and circumstances of the offense, the defendant’s appreciation of and
attitude toward the offense, or his traits of character as evidenced by his behavior and
demeanor at the trial.’ [Citations.] When appropriate, judges should also consider the
general objectives of sentencing such as those set forth in California Rules of Court, rule
[4.410].” (Alvarez, at p. 978.)

       We review the trial court’s ruling for abuse of discretion. (Alvarez, supra,
14 Cal.4th at pp. 977-978.) The party attacking the sentence has the “ ‘burden . . . to
clearly show that the sentencing decision was irrational or arbitrary.’ ” (Id. at p. 977.)
“ ‘ “An appellate tribunal is neither authorized nor warranted in substituting its judgment
for the judgment of the trial judge.” ’ ” (Id. at p. 978.)
                                         B. Analysis
       Before denying defendant’s section 17(b) motion, the trial court indicated it had
reviewed all the relevant materials; had listened to the witnesses and the attorneys; and
had “looked at this up one side and down the other.” It is also evident the trial court
considered the factors identified in Alvarez. In fact, the trial court stated it was imposing
the middle term for the methamphetamine possession conviction, even though the
probation report had recommended the upper term, because the court “balance[d] a lot of
factors against [defendant’s] history of . . . crime,” including defendant’s history of drug
addiction, and his immediate admission that the methamphetamine was his. (Italics
added.)




                                               9
       Defendant relies on Alvarez for the proposition that the nature and circumstances
of the current offense compel a reduction of the offense from a felony to a misdemeanor.
However, Alvarez is no help to defendant. Although defendant was in possession of less
methamphetamine (0.23 grams) than the defendant in Alvarez (0.41 grams), the Supreme
Court in Alvarez did not hold that possession of less than 0.41 grams of
methamphetamine should always be considered a misdemeanor offense. In fact, Alvarez
makes clear “the current offense cannot be considered in a vacuum; . . . the record should
reflect a thoughtful and conscientious assessment of all relevant factors including the
defendant’s criminal history.” (Alvarez, supra, 14 Cal.4th at p. 979.) Again, the record
here clearly indicates the trial court considered all relevant factors, including defendant’s
repeated criminal activity.

       Defendant also argues that his appreciation and attitude toward the current offense,
and a thoughtful consideration of the general sentencing objectives in rule 4.410 of the
California Rules of Court, support treating his conviction as a misdemeanor. In support
of his argument, defendant notes he admitted the methamphetamine was his and did not
contest that charge at trial (at trial, defendant was also charged with ammunition
possession, for which he was acquitted), he made no excuses for his conduct, he had
begun attending substance abuse treatment meetings, and there were no factors in
aggravation relating to the crime. Defendant also argues that substance abuse was a
factor in his criminal conduct and that his willingness to participate in a substance abuse
treatment program shows that treating the offense as a misdemeanor would not jeopardize
public safety. The record shows the trial court considered defendant’s admission of
possessing methamphetamine, his history of substance abuse and attendance in treatment
programs, and the aggravating and mitigating evidence before denying defendant’s
section 17(b) motion.




                                             10
       We are “neither authorized nor warranted in substituting [our] judgment for the
judgment of the trial judge.” (Brown v. Newby (1940) 39 Cal.App.2d 615, 618.)
Defendant has the burden of clearly showing that the trial court’s decision was irrational
or arbitrary. (Alvarez, supra, 14 Cal.4th at p. 977.) “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.” (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) We decline
defendant’s invitation to reweigh the evidence and substitute our judgment for that of the
trial court. Accordingly, we find no abuse of discretion in the trial court’s denial of
defendant’s section 17(b) motion.

                            III. Presentence Custody Credits

       Finally, defendant argues that the judgment should be amended to reflect his
presentence custody credits. The People concede this point. We agree.

       Under section 2900.5, all days a defendant spends in custody are credited to the
period of confinement pursuant to section 4019. Under section 2900.5, subdivision (d),
the sentencing court has the duty to determine the total number of days to be credited and
to list the number of days in the abstract of judgment.

       During the May 7, 2013 sentencing hearing, the trial court did not have an
accurate calculation of defendant’s custody credits and requested a postsentence report on
credits only. On May 8, 2013, the abstract of judgment was filed, but it did not include
defendant’s custody credits. On May 16, 2013, the probation department issued a
postsentence report on custody credits indicating defendant had 188 days of actual time
served and 188 days of custody credits, for a total of 376 days. The trial court ordered
the credits as outlined in the report on May 22, 2013; however, no amended abstract of
judgment was issued.



                                             11
       Accordingly, defendant is entitled to 376 days of presentence custody credits as
reflected in the postsentence report on credits.

                                      DISPOSITION

       The judgment is modified to award defendant presentence custody credit of 376
days (188 days of actual custody, plus 188 days of conduct credit). The trial court is
directed to prepare an amended abstract of judgment to reflect this modification and to
forward a certified copy of the amended abstract to the Department of Corrections and
Rehabilitation. As so modified, the judgment is affirmed.




                                                       BUTZ                  , Acting P. J.



We concur:



      DUARTE                , J.



      HOCH                  , J.




                                             12
