Filed 5/6/16 P. v. Roberson CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B261580

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA416243)
         v.

KEVIN L. ROBERSON,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Ronald
H. Rose, Judge. Affirmed as modified.
         Mary Jo Strnad, 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, and Robert C. Schneider, Deputy Attorney
General, for Plaintiff and Respondent.
                                             ___________________
       Defendant Kevin Lamont Roberson was convicted by jury in count 1 of
carjacking, in violation of Penal Code section 215, subdivision (a).1 In count 2,
defendant was convicted of grand theft of an automobile, in violation of section 487,
subdivision (d)(1). Defendant admitted suffering a prior serious felony conviction for
purposes of section 667, subdivision (a), and the three strikes law, as set forth in section
667, subdivisions (b)-(i) and 1170.12, subdivisions (a)-(e). The trial court sentenced
defendant to 23 years in state prison, consisting of the upper term of 9 years on the
carjacking conviction, doubled under the three strikes law, plus five years for the section
667, subdivision (a) prior conviction. A concurrent term of three years in state prison
was imposed on the grand theft charge.
       Defendant raises two issues on appeal. First, he argues the trial court’s denial of
his Romero2 motion to dismiss his prior conviction under the three strikes law was an
abuse of discretion because the court failed to consider a sealed pretrial psychiatric report
that had been prepared to determine defendant’s competency to stand trial. Second,
defendant contends, and the Attorney General concedes, that the abstract of judgment
does not accurately reflect the number of days of conduct credit awarded by the court.
We order the abstract of judgment corrected, and otherwise affirm the judgment.


                                           FACTS


       The facts are not in dispute, and are briefly summarized for purposes of this
appeal. On September 11, 2013, the victim in count 1 left her vehicle on the street,
unlocked and running, with the keys in the ignition, while she went indoors to pick up her
child from the babysitter. The victim saw defendant enter the vehicle and yelled at him
to stop. She tried to enter the vehicle on the driver’s side. Defendant began to drive


       1   Statutory references are to the Penal Code unless otherwise indicated.

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


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away with the victim’s clothing stuck on the seat adjustment lever, leaving her with one
foot in the vehicle and the other foot outside. Defendant punched her twice in the face
and once in the ribs before the victim rolled away from the vehicle. The victim suffered
various injuries including bruising and scratches. Defendant was found by officers near
the vehicle the next day. Defendant initially said his sister gave him the vehicle, but later
admitted taking it from the victim, although he denied striking her.
       On August 21, 2013, the victim in count 2 left her van in the driveway of her
residence while she went inside to retrieve food to take to a party. The vehicle was left
running with the keys in the ignition. She saw the vehicle being driven away, but did not
see the driver. The vehicle was recovered not far from the victim’s home. Defendant
confessed to taking the van in a tape recorded statement.


                                      DISCUSSION


Failure to Consider the Sealed Pretrial Competency Report


       Defendant argues the trial court abused its discretion by ruling on his Romero
motion without having read and considered a sealed pretrial psychiatric report. The
report was prepared in November 2013 by Dr. Kory J. Knapke, who had been appointed
to assess defendant’s competency to stand trial. The report detailed defendant’s
extensive psychiatric history, which included years of diagnosed mental issues,3 an
extensive criminal record, commitment as a mentally disordered offender (§ 2962) and
other psychiatric hospitalizations, a brain injury resulting in a lengthy coma, and
defendant’s delusional and paranoid beliefs. Although Dr. Knapke diagnosed defendant
with “psychotic disorder, not otherwise specified,” he concluded defendant was
competent to stand trial. The judicial officer who conducted the pretrial proceedings
found defendant competent to stand trial.

       3 Defendant was diagnosed at different times with organic personality disorder and
antisocial personality disorder.

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       The Written Romero Motion


       After the jury returned guilty verdicts, defense counsel filed a Romero motion,
seeking to have the trial court dismiss defendant’s 1998 conviction for robbery, which
constituted a prior conviction under the three strikes law. The motion cited the basic
principles of Romero and discussed additional California Supreme Court authorities. The
motion argued the court should dismiss the prior conviction because it was based on
conduct occurring in 1996. Before the prior conviction was resolved in 1998, defendant
had been found incompetent to stand trial and had been committed to Patton State
Hospital for 22 months. The motion forthrightly conceded defendant had not been crime-
free after serving five years in prison on the robbery conviction, but argued that if the
strike prior conviction were stricken, defendant still could be sentenced to 14 years 8
months in state prison.


       The Probation Report


       The probation report contains defendant’s criminal history. Defendant had two
sustained juvenile delinquency petitions: a 1984 sustained juvenile petition for unlawful
taking or driving a vehicle (Veh. Code, § 10851) and a 1986 commitment to the
California Youth Authority on a charge of possession of marijuana for sale (Health &
Saf. Code, § 11359). Defendant’s adult criminal history included the following: a 1989
conviction for misdemeanor joyriding (former § 499); a 1989 conviction for violating
Vehicle Code section 10851 resulting in a two year prison sentence; 1994 convictions for
exhibiting a firearm (§ 417), battery on a peace officer (§ 243, subd. (b)), and resisting or
obstructing an officer (§ 148); a 1995 conviction for obstructing or resisting an executive
officer (§ 69); a 1995 conviction for sexual battery (§ 243.4, subd. (d)); a 1998 conviction
of robbery (§ 211) resulting in a five year prison sentence, during which defendant was
arrested on three occasions for battery on a custodial officer (§ 243.1), each of which was



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resolved administratively; and a 2007 conviction of Vehicle Code section 10851 resulting
in a seven year prison sentence.
          The probation report reflects defendant was found incompetent to stand trial for a
period of time during the proceeding on the robbery conviction, and that “defendant has
been committed to the Patton State Hospital on several occasions, for mental competency
evaluations.” Defendant was on parole at the time of the current offenses. He is a
registered sex offender. The probation officer noted that “defendant has performed
poorly on community based supervision,” he “continues to re-offend,” he is “on parole
for a similar offense,” and defendant “is a threat to the safety of others” whose conduct
warrants a state prison sentence. The probation officer identified six factors in
aggravation of punishment and one in mitigation (defendant admitted guilt at an early
stage.)


          Hearing on the Romero Motion


          The trial court stated it had read the Romero motion. Defense counsel reiterated
that defendant would be subject to a substantial prison sentence if the motion were
granted. The prosecutor opposed the motion, asking the court to consider the probation
report and defendant’s criminal history. The court stated it “has very carefully examined
the defense motion, the defendant’s prior record, and the offense before the court today.
[¶] The court cannot in good conscience grant the motion under the Romero case to
strike the prior conviction based upon the totality of the facts . . . .”


          Sua Sponte Obligation to Read the Pretrial Psychiatric Report


          The premise of defendant’s appellate contention is that the trial court did not
reasonably exercise its discretion in ruling on the Romero motion, because the court
failed to read Dr. Knapke’s sealed pretrial report on defendant’s competency to stand
trial. Defendant points out the judicial officer who ruled on the issue of competency did

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not preside over the trial, and the trial judge denied the Romero motion without the
benefit of Dr. Knapke’s recitation of defendant’s mental health issues.
       We reject the contention. Defendant’s Romero motion did not request the trial
court to consider Dr. Knapke’s report, and the trial court was under no obligation to seek
out a source of information not relied upon by the parties. In fact, the record sheds no
light on whether the trial court was aware of the existence of the sealed report or the
subject of the report. The record does not reveal whether the sealed copy of the report
was even in the court file at the time of the Romero motion. It is a common practice for
judicial assistants in the trial court to remove sealed and confidential documents from the
court during proceedings, to avoid the documents being inadvertently revealed.
       Defendant speculates that trial counsel was unaware of the report, because
defendant had different counsel when Dr. Knapke reported on defendant’s trial
competency, and trial counsel made no reference to defendant’s history of mental issues
at the hearing on the Romero motion. There is nothing in the record to show that defense
counsel was unaware of Dr. Knapke’s report or that he did not know defendant’s mental
health history from other sources. We note that although defendant was represented in
court by different counsel early in the proceedings and at trial, he was at all times
represented by the Los Angeles County Public Defender.4 There is no reason to assume,
on this record, that trial counsel did not have access to all the information obtained while
defendant was represented by the Los Angeles County Public Defender.
       There is no reason why a trial court would assume that a competency report is
necessarily relevant to sentencing issues, particularly after a defendant has been found
competent for trial. Defendant cites no authority for the proposition that a trial court has


       4  Defendant does not argue that trial counsel provided ineffective assistance by
failing to ask the court to read Dr. Knapke’s report in connection with the Romero
motion, and reasonably so. Competent counsel could rationally conclude as a tactical
matter that more harm than good would come from consideration of Dr. Knapke’s report,
which contains abundant negative information regarding defendant’s prior criminal
conduct and current mental condition indicating defendant remains a significant threat to
the safety of the community.

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an obligation to seek out information not relied upon by the parties at trial. For purposes
of appeal, we review the ruling of the trial court based on the record before the court at
the time of the hearing on the motion. (See People v. Bryant, Smith and Wheeler (2014)
60 Cal.4th 335, 379 [ruling on motion to sever trials of defendants is reviewed on appeal
based on the facts as they appeared at the time of the motion]; People v. Welch (1999) 20
Cal.4th 701, 739 [review of competency determination is limited to evidence before the
court at the time of the ruling, not evidence produced later].) We next address the
contention that the court erred in denying the Romero motion.


       Review of Denial of Romero Motion for Abuse of Discretion


       The standards for review of the denial of a Romero motion are well-settled.
Romero, supra, 13 Cal.4th at pp. 530-531, held that the trial court has discretion under
section 1385, subdivision (a), to dismiss a prior strike conviction on its own motion for
purposes of the three strikes law. “We therefore believe that, in ruling whether to strike
or vacate a prior serious and/or violent felony conviction allegation or finding under the
Three Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to Penal Code
section 1385(a), or in reviewing such a ruling, the court in question 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).) In Romero, the court “implied that, in that balance, no weight whatsoever
may be given to factors extrinsic to the scheme, such as the mere desire to ease court
congestion or, a fortiori, bare antipathy to the consequences for any given defendant.
(See [Romero, supra, 13 Cal.4th] at p. 531.) We also implied that, in that same balance,
preponderant weight must be accorded to factors intrinsic to the scheme, such as the
nature and circumstances of the defendant’s present felonies and prior serious and/or

                                             7
violent felony convictions, and the particulars of his background, character, and
prospects. (See ibid.)” (Ibid.)
       Applying the deferential abuse of discretion standard of review (Williams, supra,
17 Cal.4th at p. 162), defendant has fallen short of demonstrating that the trial court
abused its discretion based on the evidence before it. The trial court was aware of
defendant’s mental issues based on the probation report, the Romero motion, and its own
observations. The court was also aware that defendant’s strike prior conviction occurred
in 1998 and that defendant confessed to the charged offenses. These circumstances do
not establish, as a matter of law, that the totality of defendant’s conduct showed he is
outside the spirit of the three strikes law.
       The conviction in count 1 for carjacking is both a serious felony (§ 1192.7, subd.
(c)(27)) and a violent felony (§ 667.5, subd. (c)(17)). Looking beyond the labels of the
offense, defendant’s conduct during the carjacking placed the victim in count 1 in danger
of serious injury as defendant drove away with her clinging to the vehicle. It was
fortuitous that the victim was not more seriously injured either from defendant’s punches
or from being thrown from the moving vehicle. As to the grand theft charge in count 2,
defendant committed grand theft of the victim’s vehicle simply because the opportunity
presented itself.
       The trial court could reasonably conclude that defendant fell within the spirit of
the three strikes law considering his unabated criminal history dating of 30 years, the
serious nature of the offense in count 1, and defendant’s unsatisfactory performance on
parole. The probation officer’s description of defendant as a threat to the safety of the
community is supported by defendant’s criminal history and conduct in this case.
Defendant’s prospects for rehabilitation are improbable based on this record. The trial
court did not abuse its discretion in denying defendant’s Romero motion. (Williams,
supra, 17 Cal.4th at pp.162-164.)




                                               8
Correction of Conduct Credits in the Abstract of Judgment


       The trial court awarded defendant custody credit for 491 days and conduct credits
of 73 days. The abstract of judgment reflects the proper amount of custody credit, but
misstates the conduct credits as 23 days. We agree with the parties that 73 days is the
correct calculation of conduct credits, and order the abstract of judgment corrected to
reflect the court’s oral pronouncement of judgment.


                                     DISPOSITION


       The abstract of judgment is ordered corrected to reflect an award of 73 days of
conduct credit. The trial court is 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.




              KRIEGLER, J.


We concur:




              TURNER, P. J.




              BAKER, J.




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