Filed 9/3/14 P. v. Wiley 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.



                                                       COPY

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




THE PEOPLE,                                                                                  C074988

                   Plaintiff and Respondent,                                    (Super. Ct. No. NCR85811)

         v.

REBECCA LYNETTE WILEY,

                   Defendant and Appellant.




         Defendant Rebecca Lynette Wiley pleaded guilty to child endangerment (Pen.
Code, § 273a, subd. (a); count I; unless otherwise stated, statutory references that follow
are to the Penal Code) and transportation of hydrocodone (Health & Saf. Code, § 11352,
subd. (a); count II). She admitted a 2001 first degree burglary strike conviction as to
count I. (§§ 459, 460, subd. (a), 667, subds. (b)-(i), 1170.12.) In return for her guilty
plea, five related counts and a prior prison term allegation were dismissed. Defendant’s
invitation to dismiss the strike conviction for purposes of sentencing was denied.


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(People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).) She was
sentenced to prison for nine years four months and was awarded 219 days’ custody credit
and 219 days’ conduct credit.
       On appeal, defendant contends (1) the denial of her Romero motion was an abuse
of discretion, and (2) the abstract of judgment must be corrected to reflect the foregoing
custody credits; the People concede this latter point. We affirm the judgment and order
the correction.

                                  FACTS AND PROCEEDINGS

       Because the matter was resolved by plea, our statement of facts is taken from the
probation officer’s report.
       On December 21, 2013, a Red Bluff Police Officer arrived at the location of a
noninjury accident. He contacted defendant who told him she had been driving
westbound on Antelope Boulevard when she ran into the back of a man’s pickup truck.
Her friend’s nine-year-old daughter was her passenger at the time of the collision. She
told the officer that she did not see the truck and did not know if her traffic signal was red
or green.
       The officer noticed that defendant was under the influence of a drug. He asked
when she last had used methamphetamine, and she said, “three days ago.” She said she
had smoked an $80 bag. The officer asked if she had felt the effect of the drugs. She
replied, “ ‘[w]ell, I didn’t think so.’ ”
       The officer searched defendant’s purse and found 17 syringes, two grams of
methamphetamine, 10 hydrocodone pills, 19 methadone pills, and a glass smoking pipe.
Defendant planned to sell or give away the pills.
       In further conversation with the officer, defendant said she had smoked a “bowl”
of methamphetamine three hours before the collision.
       The girl was taken home and released to her mother.


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                                          DISCUSSION

                                               I

                                            Romero

         Defendant contends the trial court’s refusal to dismiss her 2001 prior burglary
conviction for purposes of sentencing was an abuse of discretion. She claims she fell
outside the spirit of the “Three Strikes” law because, (1) the 2001 strike offense occurred
more than 12 years earlier when she was only 29 years old; (2) she had been “free of
serious crime since 2001” in that her subsequent criminal record consisted of
misdemeanor battery in 2008, grand theft in 2010, and the present convictions; and (3)
dismissal would have allowed her to be placed on probation through the adult felon drug
court.
         Defendant filed a written invitation to dismiss the strike allegation for purposes of
sentencing. The invitation argued that the strike offense was (1) dated and was more
serious than the present offense; (2) in the present offense she was not armed, caused no
physical harm or injury, and showed little criminal sophistication; (3) she is a suitable
candidate for probation; (5) she would not benefit from imprisonment; and (6) her future
prospects are hopeful.
         The prosecution filed opposition that highlighted defendant’s criminal record. In
1987 and 1988, she had two juvenile adjudications and a probation violation in each
matter. In 2001, she had felony convictions of possession of a controlled substance for
sale, two counts of second degree burglary, and the count of first degree burglary that
was the subject of the Romero request. In 2008, she had a misdemeanor conviction of
battery. In 2010, she had her fifth felony conviction: grand theft by use of an access
card. Defendant was sentenced to prison for three years and was on postrelease
community supervision at the time of the present offenses. She was 41 years old at the
time of sentencing.


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       In its ruling denying the Romero request, the trial court said:
       “The Court has read and considered the moving papers along with the opposition,
and it really is under Romero and Williams a situation where the Court has to review the -
- in light of the nature and circumstances--all of the present felonies and the prior
convictions and the defendant’s background, character, and prospects. And what it
comes down to is whether or not she should be deemed to be outside the scheme, spirit,
the three strikes indeterminate issues in this case and should be treated as though she had
not been convicted of one or more of the prior felonies.
       “The Court certainly would take counsel’s argument into consideration in full if
you were to say, well, in this matter she only has the felonies. Well, the problem is she
has more than just those strike felonies, back in ’01 and after she had been released she
then ended up having in 2008 a misdemeanor battery charge, which is certainly not the
end of the story and is not the end of the story for her as far as a Romero motion, but then
you come to 2010 and she then gets another felony in Tehama County for which she
served three years in state prison for grand theft.
       “As such, the Court certainly does not find that her background and prospects are
such that she should be deemed to be outside the spirit of the Three Strikes law. As such,
the Romero motion is denied.” (Italics added.)
       A trial court has discretion to dismiss a prior serious felony conviction for
purposes of sentencing only if the defendant falls outside the spirit of the Three Strikes
law. (§ 1385; People v. Williams (1998) 17 Cal.4th 148, 161 (Williams); Romero, supra,
13 Cal.4th at pp. 529-530.) In ruling on a Romero motion, the court “must consider
whether, in light of the nature and circumstances of [her] present felonies and prior
serious and/or violent felony convictions, and the particulars of [her] 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 [she] had not previously been
convicted of one or more serious and/or violent felonies.” (Williams, supra, at p. 161.)

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The court’s discretion is limited by the concept of “furtherance of justice,” requiring the
court to consider both the defendant’s constitutional rights and the interests of society.
(Romero, supra, 13 Cal.4th at p. 530.) Dismissal of a strike is a departure from the
sentencing norm. That is, “ ‘the Three Strikes law does not offer a discretionary
sentencing choice, as do other sentencing laws, but 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 [she] actually fell outside the Three Strikes scheme.” ’ ”
(People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).)
       We will not reverse the ruling on a Romero motion for an abuse of discretion
unless the defendant shows that the decision was “so irrational or arbitrary that no
reasonable person could agree with it.” (Carmony, supra, 33 Cal.4th at p. 377.) Reversal
is justified where the trial court was unaware of its discretion to strike a prior strike or
refused to do so, at least in part, for impermissible reasons. (Id. at p. 378.) But where the
trial court was aware of its discretion, “ ‘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 . . . .’ [Citation].” (Ibid.)
       It is defendant’s burden to affirmatively establish that the “ ‘ “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.]” (Carmony, supra, 33 Cal.4th at pp. 376-377.)
       The forfeiture doctrine applies to claims “involving the trial court’s failure to
properly make or articulate its discretionary sentencing choices. Included in this category
are cases in which the stated reasons allegedly do not apply to the particular case.”
(People v. Scott (1994) 9 Cal.4th 331, 353 (Scott).)

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       The plea agreement provided for a prison term between five years four months and
13 years four months. Defendant’s Romero contention does not attack her plea and does
not require a certificate of probable cause.
       In denying defendant’s Romero request, the trial court stated two reasons that
arguably do not apply to this case. First, the court made vague reference to “three strikes
indeterminate issues,” even though no issue of indeterminate sentencing arises in this
second-strike case. Second, the court referred to “those strike felonies, back in ’01,” even
though only one of the four 2001 felonies--the first degree burglary that is the subject of
the Romero request--had been a strike. Defendant claims the trial court’s decision to
deny the Romero request was “based on inaccurate information,” but her failure to object
on that ground in the trial court forfeits any error on appeal. (Scott, supra, 9 Cal.4th at
pp. 352-353, fn. 15.)
       In any event, the trial court made plain its belief that defendant’s 2001 felonies
and 2008 misdemeanor were “not the end of the story,” such that they precluded Romero
relief. Rather, the “story” did not “end” until defendant’s 2010 felony conviction and
three-year prison sentence. Even if the court believed that defendant’s 2001 conduct was
more severe than it actually was, the court did not rely on that mistaken belief when it
denied the Romero request.
       Defendant acknowledges that the trial court stated “what factors should be
considered” when evaluating a Romero request, but she claims “there is no indication the
court actually took [her] ‘background, character and prospects’ into consideration.” Her
failure to raise this point at sentencing, when the court could have elaborated on the
disputed points, forfeits the claim on appeal. (Scott, supra, 9 Cal.4th at pp. 352-353, fn.
15.) In any event, the trial court stated that it “does not find that [defendant’s]
background and prospects are such that she should be deemed to be outside the spirit of
the Three Strikes law.” The court’s mere failure to mention defendant’s character does
not mean that it failed to properly rule on the request.

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       Defendant claims her criminal history was less egregious than that of the
defendant in Williams, supra, 17 Cal.4th 148. She is correct, in that Williams was a third
strike case; but she is not assisted, because Williams nowhere suggests that her criminal
history fails to support a second strike sentence.
       Defendant claims her 2001 convictions “all arose from a single period of aberrant
behavior related to drug use and abuse.” The probation report shows that the 2001 strike
burglary was accompanied by two other burglaries and possession of a controlled
substance for sale, all within a period of six days.
       But even if the offenses were confined to a single period, the surrounding drug
abuse was not. Defendant used marijuana in junior high and high schools. She first tried
methamphetamine at age 14 and felt addicted to the drug through age 17. She stopped
using the drug following a motorcycle accident, but she resumed using it in 1998. Her
usage became a “significant problem” after her divorce in 1999.
       Thus, even if defendant’s 2001 criminal offenses arose within a brief period of
time, they arose from a lengthy pattern of drug abuse that cannot be dismissed as an
aberration.
       Defendant argues her “severe drug addiction” militated “against a second strike
sentence.” But her only successful rehabilitation occurred when she received “a year of
substance abuse treatment while incarcerated” for the 2001 felonies. Although defendant
was “looking forward to” additional treatment following her 2010 imprisonment, she
evidently failed to obtain it in the Red Bluff area to which she was released. This record
does not compel a finding that the second strike sentence would hinder, rather than
facilitate, defendant’s return to substance abuse treatment.
       Defendant notes that, following her 2001 strike conviction, she was “free of any
felonious conduct” for a period of nine years. Perhaps for that reason, her 2010 felony
was not sentenced as a second strike. But the present offenses occurred while defendant
was on postrelease community supervision for the 2010 felony. The Three Strikes law

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was intended to deter this sort of prompt recidivism. Defendant’s argument that she is
outside the scheme’s spirit has no merit.
       Defendant claims there were “no allegations in the record” that anyone was
physically harmed by any of her conduct. But “the nonviolent or nonthreatening nature
of the felony cannot alone take the crime outside the spirit of” the Three Strikes law.
(People v. Strong (2001) 87 Cal.App.4th 328, 344.) In any event, it was only by good
fortune that the collision was not sufficiently violent to physically harm the nine-year-old
passenger or another person.
       Defendant argues her “circumstances indicated [she] could be outside the spirit of
the Three Strikes law, at least ‘in part.’ ” (Italics added.) We construe this passage as
suggesting the trial court could have found her to be outside the scheme’s spirit. But
defendant’s burden is much greater than to show that the court could have made a
different ruling. Defendant must show that the decision was “so irrational or arbitrary
that no reasonable person could agree with it.” (Carmony, supra, 33 Cal.4th at p. 377.)
This she has not done.

                                              II

                            Correction of Abstract of Judgment

       Defendant contends, and the People concede, the abstract of judgment must be
corrected to accurately reflect the trial court’s oral pronouncement of judgment. We
accept the People’s concession.
       The trial court did not address the issue of presentence credits at the original
sentencing hearing on October 7, 2013. When the matter was put back on calendar on
October 21, 2013, the trial court stated: “As of the date of the [probation] report which
anticipated sentencing on September 16th, 2013, [defendant] had 198 [custody] and 198
conduct credits. The sentencing did not go forward until October 7th, so she has




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additional credits and those would be 219 [custody] and 219 conduct credits for a total of
438.”
        The abstract of judgment does not reflect the trial court’s oral pronouncement of
additional custody and conduct credits. The abstract must be corrected to accurately
reflect the oral pronouncement of 219 days’ custody credit and 219 days’ conduct credit.
(People v. Zackery (2007) 147 Cal.App.4th 380, 385.)

                                        DISPOSITION

        The judgment is affirmed. The trial court is directed to correct the abstract of
judgment and to forward a certified copy to the Department of Corrections and
Rehabilitation.



                                                         HULL                  , J.



We concur:



        NICHOLSON            , Acting P. J.



        MURRAY               , J.




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