Filed 12/3/15 P. v. Zammarippa CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B260832

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA419468)
         v.

DAVID JOE ZAMMARIPPA,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Mark A. Young, Judge. Affirmed with modification.

         Stephen Temko, under appointment by the Court of Appeal, for Defendant and
Appellant

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews,
Supervising Deputy Attorney General, Blythe J. Leszkay, Deputy Attorney General for
Plaintiff and Respondent.

                                                   *         *         *
        A jury convicted David Joe Zammarripa (defendant) of kidnapping to commit
robbery, and the trial court imposed a sentence of life in prison with parole eligibility
after 17 years. On appeal, defendant argues that that court erred in not striking his 1995
attempted robbery conviction as a “strike” under the “Three Strikes” law, and that the
abstract of judgment is incorrect. We agree with defendant on the second point, but
conclude that the court did not abuse its discretion in denying his motion to strike. We
accordingly affirm with instructions to modify the abstract of judgment.
                  FACTUAL AND PROCEDURAL BACKGROUND
        Defendant approached a 63-year-old woman sitting in her Porsche, accused her
late husband of causing him to lose his house, slapped her in the head a few times,
shoved her into the passenger’s seat, got into the car and started driving. He insisted that
she owed him money. As they drove, defendant pulled out a gun and told her that it was
“exactly like [the gun] held at your [adult] son’s head right now.” Defendant eventually
let the woman go, and abandoned her car elsewhere. No one ever threatened the
woman’s son.
        The People charged defendant with kidnapping to commit robbery (Pen. Code,
                     1
§ 209, subd. (b)(1)). The People further alleged that defendant personally used a firearm
(§ 12202.53, subd. (b)); that his 1995 conviction for attempted robbery (§§ 211, 664)
constituted a strike within the meaning of the Three Strikes law (§§ 667, subds. (b)-(j),
1170.12, subds. (a)-(d)); and that he had served seven prior prison terms (§ 667.5, subd.
(b)).
        Defendant proceeded to trial, and a jury convicted him of the kidnapping offense
but was unable to reach a verdict on the firearm enhancement. After defendant admitted
the prior convictions, the trial court proceeded to sentencing. The court announced a
tentative prison sentence of 21 years to life: The statutory minimum sentence of 7 years
to life for the kidnapping offense, doubled to 14 years because of the prior strike, plus



1       Unless otherwise indicated, all further statutory references are to the Penal Code.
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another one year for each of the seven prior prison terms. Defendant moved to strike his
1995 prior conviction because the 1995 attempted robbery was “just a struggle over a $20
bill” that involved “no weapons” and caused “no injuries”; because the current
kidnapping offense involved “relatively minor” injuries; and because defendant’s
intervening seven criminal convictions were “nonserious.” The court agreed that the
victim’s physical injuries in the present case were “on the lower end,” but noted that
kidnapping was a “very serious offense,” that the kidnapping here was an “incredibly
traumatic event for the victim,” and that “there was evidence from the victim that a gun
was used.” The court also noted that defendant’s criminal history, while “more minor
than perhaps others,” was nevertheless “relatively prolific.” The court accordingly
denied the motion to strike the strike, but struck four of the seven prior prison sentence
allegations because they involved offenses that would be reduced to misdemeanors under
the recently enacted Proposition 47 (§ 1170.18). The court then imposed a sentence of
life in prison with parole eligibility after 17 years.
       Defendant timely appeals.
                                            DISCUSSION
I.     Refusal To Strike Prior “Strike”
       A trial judge has the discretion to strike (that is, to dismiss) an allegation by the
People that a defendant’s prior conviction constitutes a strike within the meaning of the
Three Strikes law. (§ 1385, subd. (a); People v. Williams (1998) 17 Cal.4th 148, 162.) In
deciding whether to exercise that discretion, a trial court is to “‘consider whether, in light
of the nature and circumstances of [the defendant’s] 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 [Three Strikes] 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 (Carmony).) We review the trial court’s decision
for an abuse of discretion. (Id. at p. 373.)


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          Defendant argues that the trial court abused its discretion for two reasons. First,
he contends that the court erred in giving weight to defendant’s use of a gun because the
jury was unable to reach a verdict on the firearm allegation. To be sure, a trial court
abuses its discretion when it “consider[s] impermissible factors in declining to dismiss.”
(Carmony, supra, 33 Cal.4th at p. 378.) But there was nothing wrong with considering
defendant’s use of a firearm. Courts may consider conduct of which a defendant was
acquitted during sentencing as long as the evidence establishes “such conduct by a
preponderance of the evidence.” (In re Coley (2012) 55 Cal.4th 524, 557; United States
v. Watts (1997) 519 U.S. 148, 155-157.) A court may certainly do the same when the
jury is unable to reach a verdict. The trial court’s discussion of the evidence regarding
the gun and its reliance on that fact constitutes an implied finding that a gun was used.
(See People v. Garcia (2008) 167 Cal.App.4th 1550, 1566.) The record amply supports
that finding: Although the victim’s description of the gun was arguably inconsistent, she
was unequivocal about defendant’s use of a gun.
          Second, defendant asserts that the trial court, in weighing the factors noted above,
gave insufficient weight to the minor nature of the current offense (namely, that the
victim was not physically injured) and the age and minor nature of the 1995 prior
attempted robbery conviction (namely, that it was effectively a tug of war over a $20
bill). Defendant does not argue that the court did not carefully consider or weigh these
factors; nor could he, because the record makes clear that the court conscientiously did
so. Where, as here, “‘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 will
affirm, “‘even if we might have ruled differently in the first instance’ [Citation].”
(Carmony, supra, 33 Cal.4th at p. 378.) Further, in light of defendant’s extensive
criminal history, the nature of his prior attempted robbery conviction, and the
circumstances of the current case, the decision whether to strike the prior conviction is
one on which “reasonable minds could differ”; it was thus not an abuse of discretion.
(Ibid.)


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II.    Abstract of Judgment
       The trial court orally sentenced defendant to a term of life in prison with parole
eligibility after 17 years, but the abstract of judgment reflects a sentence of life without
possibility of parole. Because the oral pronouncement of sentence controls (People v.
Mitchell (2001) 26 Cal.4th 181, 185), the abstract must be corrected to reflect the
sentence imposed.
                                       DISPOSITION
       The trial court is ordered to correct the abstract of judgment to reflect a sentence
of a term of life in prison with parole eligibility after 17 years. The court is further
ordered to forward a copy of the corrected abstract of judgment to the Department of
Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
        NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                                           ____________________, J.
                                                           HOFFSTADT

We concur:


____________________, Acting P.J.
ASHMANN-GERST


____________________, J.
CHAVEZ




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