Filed 9/29/16 P. v. Montoya 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                                           NOT TO BE PUBLISHED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
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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,                                                                                  C076708

                   Plaintiff and Respondent,                                    (Super. Ct. No. CRF121637)

         v.

ROBERT STEVEN MONTOYA,

                   Defendant and Appellant.




         A jury convicted defendant Robert Steven Montoya of three counts of selling or
offering to sell methamphetamine (Health & Saf. Code, § 11379, subd. (a)—counts 1,
3, & 19) and two counts of conspiracy to sell methamphetamine (Pen. Code, § 182,
subd. (a)(1); Health & Saf. Code, § 11379, subd. (a)—counts 5 & 18).1 The jury
acquitted defendant on all three counts of participation in a criminal street gang (Pen.
Code, § 186.22, subd. (a)—counts 2, 4, & 21) and did not sustain any of the criminal
street gang enhancements (§ 186.22, subd. (b)(1)). In bifurcated proceedings, the trial



1   Codefendant Dewayne Dean Lewis has appealed in case No. C076707.

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court sustained allegations of a strike prior (Pen. Code, § 667, subds. (b)-(i)), two prior
prison terms (Pen. Code, § 667.5, subd. (b)), and the commission of a felony while
released on bail (Pen. Code, § 12022.1, subd. (b)).
       The trial court sentenced defendant to state prison for an aggregate term of
13 years: on count 19, the midterm of three years, doubled for the strike prior; on
counts 1 and 3, consecutive sentences of one-third the midterm, or one year each,
doubled for the strike prior; a consecutive two-year term for the on-bail enhancement;
and a consecutive one-year term for the prior prison term. For both conspiracy counts
(counts 5 & 18) and the second prior prison term finding the court imposed and stayed
sentence. (Pen. Code, § 654.)
       Defendant appeals. He contends (1) counts 5 and 18 were duplicative counts, one
of which must be stricken; (2) the second prior prison term must be stricken because the
trial court sustained only one prior prison term and defendant served only one prior
prison term; (3) the minute order must be corrected to reflect the oral pronouncement of
judgment; and (4) the trial court abused its discretion in failing to strike the strike prior.
       The People respond (1) the bases for the conspiracy charges in counts 5 and 18
were identical and one count must be reversed, (2) the stayed prison term for the second
prior prison term enhancement was improper since there was only one prior prison term
found to be true, and (3) the minute order requires correction. The People respond that
the trial court did not abuse its discretion in denying defendant’s request to strike the
strike prior.
       With respect to defendant’s first contention, we conclude that the umbrella
conspiracy (count 5) is not supported by sufficient evidence. Accordingly, we reverse
defendant’s conviction on count 5 and affirm his conviction on count 18, thereby
rendering the contention moot.




                                               2
       With respect to defendant’s second contention, we conclude the evidence supports
only one prior prison term. We will modify the judgment, vacating the stay on the
second prior prison term and striking the finding of a second prior prison term.
       With respect to defendant’s third contention, we modify the judgment and order
correction of the minute order. We reject defendant’s last contention and affirm the
judgment as modified.
       The relevant facts will be recounted in our discussion of defendant’s contentions.
                 FACTUAL AND PROCEDURAL BACKGROUND
       In 2011 and 2012 the Yolo Narcotics Enforcement Task Force (YONET)
conducted an investigation (Operation Red Sash) of a criminal street gang known as the
Broderick Boys. Based on that investigation, 12 defendants were charged with various
crimes in an amended indictment. Defendant and codefendants Lewis, Esiquiel Zeke
Butcher, and Guillermo Duke Rosales were tried together.
       On May 23, 2011, undercover officer Ryan Bellamy called defendant and asked
for a “teener,” or one-sixteenth of an ounce of methamphetamine. They met on
Evergreen Avenue in West Sacramento. Bellamy picked up defendant, paid $100 for
1.062 grams of methamphetamine, and then dropped off defendant at about the same
place he had picked him up. Bellamy believed that defendant was a “street-level dealer,”
not a “big-time” dealer.
       On June 7, 2011, the same undercover officer called defendant, seeking an “8-
ball,” or an eighth of an ounce, of methamphetamine. Defendant offered some “okay”
methamphetamine for $150 and some “fire,” or higher quality methamphetamine, for
$200. Bellamy opted for the satisfactory quality and asked for a price break because the
previous purchase was short (it should have been between 1.6 and 1.7 grams). They
agreed to meet at a McDonald’s restaurant on Harbor Boulevard. The officer saw a truck
that he associated with defendant, but it did not stop. Later that day, defendant was
arrested. He was a passenger in his truck, driven by Sophia Valadez, who had

                                             3
1.401 grams of methamphetamine on her person. A cell phone had a message from
defendant to Valadez indicating he needed to “drop off this last sack,” which Bellamy
believed meant illegal drugs. No conspiracy counts were associated with the May 2011
sale and June 2011 offer to sell.
       On March 19, 2012, codefendant Lewis agreed to sell $100 worth of
methamphetamine to an undercover agent (YONET Agent Gary Richter). Lewis said he
would arrange for his cousin to deliver the methamphetamine. Richter met Lewis in
West Sacramento and they went to a location on B Street. While they waited for Lewis’s
cousin to arrive, Lewis told Richter he was $80 in debt for methamphetamine his
roommate had smoked. Defendant arrived in a white car, followed by codefendant
Rosales in a black car. Lewis got into defendant’s car and then returned to Richter’s car,
where Lewis sold $20 worth of methamphetamine to Richter. Richter gave Lewis an
additional $80 to cover Lewis’s debt and as a down payment for a gun. Lewis returned to
defendant’s car.
       Count 18 charged defendant, Lewis, and Rosales with conspiracy to sell
methamphetamine, alleging a total of nine overt acts (overt acts 1 through 9), all relating
to the sale of methamphetamine on March 19, 2012. Count 19 charged defendant, Lewis,
and Rosales with the sale of methamphetamine on March 19, 2012. (Health & Saf. Code,
§ 11379, subd. (a).) In connection with each count, a gang enhancement was alleged.
(Pen. Code, § 186.22, subd. (b)(1).) In connection with the March 19, 2012, sale,
defendant and Lewis (but not Rosales) were also charged with participation in a criminal
street gang. (§ 186.22, subd. (a)—counts 21 & 38.) The jury convicted defendant and
Lewis but acquitted Rosales of conspiracy to sell and of the sale. The jury did not find
the gang enhancements to be true and acquitted defendant and Lewis of participation in a
criminal street gang.
       Count 5 charged defendant and 11 codefendants with conspiracy to sell
methamphetamine from December 1, 2011, through April 24, 2012. In addition to

                                             4
defendant, Lewis, and Rosales, the nine other codefendants were Valentino Lorenzo
Castanon, Andrew Thomas Vandyke, Christopher John Castro, Sr., Michael Timothy
Morales, Butcher, Joseph Jeffrey Freed, Jason William Swearengin, Eugene William
Espinoza, and Naomi Marcelina Castro. Count 5 set forth 45 overt acts. Overt acts
1 through 10 were the same overt acts set forth in count 7, which charged Lewis and
Castanon with conspiracy to sell methamphetamine on December 8, 2011. Overt acts
11 through 17 were the same as the overt acts set forth in count 9, which charged Lewis
and Vandyke with conspiracy to sell methamphetamine on December 14, 2011. Overt
acts 18 through 23 were the same as the overt acts set forth in count 13, which charged
Lewis, Castro, and Morales with conspiracy to sell methamphetamine on February 21,
2012. Overt acts 24 through 33 were the same as the overt acts set forth in count 17,
which charged Lewis and Butcher with conspiracy to sell methamphetamine on
March 15, 2012. Overt acts 34 through 42 were the same as the overt acts set forth in
count 18, which again charged defendant, Lewis, and Rosales with conspiracy to sell
methamphetamine on March 19, 2012.2 In connection with count 5, a criminal street
gang enhancement was alleged. (Pen. Code, § 186.22, subd. (b)(1).)
      Based on gang expert testimony, the prosecutor argued that the coconspirators
were members of the Broderick Boys and that Lewis, a member of the Broderick Boys,
sold drugs with the assistance of other members of the Broderick Boys, including
defendant, Butcher, and Rosales, and argued the charged sales and offer to sell were part
of an ongoing criminal enterprise by the gang. “[O]ne very large conspiracy to sell
methamphetamine that encompasses all of the defendants . . . . [¶] [O]ne big, large



2 Overt act 43 related to Castro and Swearengin and stated that on April 24, 2012, they
possessed methamphetamine and a loaded firearm. Overt act 44 related to Castro,
Swearengin, and Freed, and stated that on April 24, 2012, they possessed an assault
weapon. Overt act 45 related to Espinoza and stated that on April 24, 2012, he possessed
ammunition. The jury was not read overt acts 43 through 45.

                                            5
conspiracy. The Court read you all of the overt acts and all of the smaller conspiracies
combined.” The prosecution’s gang theory does not appear to have been well received
by the jury, which acquitted defendants on all gang charges and found none of the gang
enhancements to be true. While convicting defendant and Lewis on count 5, the jury did
not find the gang enhancement to be true with respect to either defendant. The jury
acquitted Rosales and Butcher on all charges. Lewis was convicted on all the other
individual conspiracies to sell or offer to sell and the corresponding sales counts, but the
jury rejected all gang enhancements attached and gang charges related to those
conspiracies/sales.
                                       DISCUSSION
A.     The Conspiracy Counts
       Defendant argues, and the People agree, counts 5 and 18 concerned the same
criminal agreement with the same ultimate objective, that is, to sell methamphetamine on
March 19, 2012, though count 5 was also comprised of additional, individual
conspiracies between others to sell on other dates. Defendant asserts two reasons as to
why he cannot be convicted of both counts.
       First, citing People v. Montoya (2004) 33 Cal.4th 1031 (Montoya), defendant
argues the offense alleged in count 18 is necessarily included in count 5. He is wrong.
Applying the elements test, “ ‘if a crime cannot be committed without also necessarily
committing a lesser offense, the latter is a lesser included offense within the former.’
[Citation.]” (Id. at p. 1034.) Count 18 charged defendant with conspiracy to sell
methamphetamine to Agent Richter on March 19, 2012, and listed nine overt acts.
Count 5, which listed an additional 36 overt acts, could be committed without selling
methamphetamine to Richter on March 19, 2012.
       With the umbrella conspiracy (count 5), the jury was not asked to specify the overt
act it found true to convict defendant. But it is the agreement, not the overt act, that is
punished. The jury had to find unanimously that “ ‘an overt act was done in furtherance

                                              6
of the conspiracy, not in finding a particular overt act was done.’ [Citation.]” (People v.
Russo (2001) 25 Cal.4th 1124, 1133.) “We do not doubt that the requirement of an overt
act is an element of the crime of conspiracy in the sense that the prosecution must prove
it to a unanimous jury’s satisfaction beyond a reasonable doubt.” (Id. at p. 1134.)
Count 18 is not necessarily included in count 5.
       Second, citing People v. Coyle (2009) 178 Cal.App.4th 209 (Coyle), defendant
claims he cannot stand convicted of two identical crimes: the conspiracy to sell on
March 19, 2012, that was alleged in count 18, which was included as one of the
individual conspiracies in count 5, the only one in which he was actively involved. In
Coyle, the defendant killed a drug dealer and was charged with and convicted of three
counts of murder under different theories—murder with the special circumstance that the
murder was committed during a burglary, murder with the special circumstance that the
murder was committed during a robbery, and second degree murder. (Id. at p. 211.)
“ ‘[M]ultiple charges and multiple convictions can be based on a single criminal act, if
the charges allege separate offenses.’ [Citations.]” (Id. at p. 217.) “In California, a
single act or course of conduct by a defendant can lead to convictions ‘of any number of
the offenses charged.’ [Citations.]” (Montoya, supra, 33 Cal.4th at p. 1034, citing Pen.
Code, § 954.) But the defendant in Coyle was “charged [with] a single offense: murder”
and the “three counts simply alleged alternative theories of the offense.” (Coyle, at
p. 217.) Coyle has no application here.
       While Coyle has no application, the proposition that defendant advances is correct:
where a group of conspirators agrees to commit a number of different crimes incidental to
a single objective, there is only one conspiracy. A defendant convicted of that conspiracy
cannot be separately charged with and convicted of conspiring to commit one of the
crimes embraced by the larger conspiracy. (See People v. Liu (1996) 46 Cal.App.4th
1119, 1133.) Thus, defendant cannot be convicted of both count 5 and count 18.



                                              7
        However, there is a more fundamental error in the record that affects our analysis
of the issue. As hereafter discussed, our review of the record persuades us that
defendant’s conviction of count 5 is not supported by substantial evidence. Thus, any
issue raised by the dual convictions is rendered moot because count 5 must be reversed
given the lack of evidence to support it.
        In considering the sufficiency of the evidence, we determine “ ‘whether a
reasonable trier of fact could have found the prosecution sustained its burden of proving
the defendant guilty beyond a reasonable doubt.’ . . . Evidence, to be ‘substantial’ must
be ‘of ponderable legal significance . . . reasonable in nature, credible, and of solid
value.’ [Citations.]” (People v. Johnson (1980) 26 Cal.3d 557, 576.)
        A conspiracy is an agreement by two or more persons to commit any crime. (Pen.
Code, §§ 182, subd. (a)(1), 184.) “A conviction of conspiracy requires proof that the
defendant and another person had the specific intent to agree or conspire to commit an
offense, as well as the specific intent to commit the elements of that offense, together
with proof of the commission of an overt act ‘by one or more of the parties to such
agreement’ in furtherance of the conspiracy.” (People v. Morante (1999) 20 Cal.4th 403,
416.)
        “ ‘In a conspiracy, the agreement to commit an unlawful act is not criminal until
an overt act is committed, but when this happens and the association becomes an active
force, it is the agreement, not the overt act, which is punishable . . . .’ [Citations.]”
(People v. Jones (1986) 180 Cal.App.3d 509, 516, italics omitted.) “ ‘One agreement
gives rise to only a single offense, despite any multiplicity of objects.’ ” (People v. Lopez
(1994) 21 Cal.App.4th 1551, 1557.)
        The present case does not at all resemble cases in which a single conspiracy has
been found. “To determine if the evidence supports finding a single conspiracy (that is to
say, a single general agreement), courts have looked for (1) a common goal,
(2) interdependence among the participants, and (3) overlap among the participants.”

                                               8
(U.S. v. Portela (1st Cir. 1999) 167 F.3d 687, 695, fn. omitted (Portela).) In determining
whether there is interdependence among the participants, the question is “ ‘whether the
activities of one aspect of the scheme are necessary or advantageous to the success of
another aspect of the scheme.’ [Citation.]” (Id. at p. 695.)
       Multiple conspiracies exist when the evidence demonstrates no interdependence
among the participants and demonstrates separate agreements, each having a distinct,
illegal end with no drawing of all together in a single, comprehensive plan.
(Blumenthal v. United States (1947) 332 U.S. 539, 556-560 [92 L.Ed. 154, 168-169]
(Blumenthal); Kotteakos v. United States (1946) 328 U.S. 750, 754-755 [90 L.Ed. 1557,
1561] (Kotteakos); People v. McLead (1990) 225 Cal.App.3d 906, 920; People v. Elliott
(1978) 77 Cal.App.3d 673, 684-685; Portela, supra, 167 F.3d at p. 695.) To show a
single conspiracy, considerations include “(1) a common goal, (2) interdependence
among the participants, and (3) overlap among the participants.” (Portela, at p. 695,
fn. omitted.) In determining whether there is interdependence among the participants, the
question is “ ‘whether the activities of one aspect of the scheme are necessary or
advantageous to the success of another aspect of the scheme.’ [Citation.]” (Ibid.)
McLead noted that relevant factors, which were not determinative, included “whether the
crimes involved the same motives, were to occur in the same time and place and by the
same means,” and the number of victims. (McLead, supra, 225 Cal.App.3d at p. 920.)
       Here, instead of an overall plan to support a single conspiracy, the evidence
supports a series of separate conspiracies over an extended period of time with several
different factors. The evidence found credible by the jury was that Lewis had
methamphetamine to sell or knew how to acquire it to sell and that he conspired with
several others at certain times, including defendant on March 19, 2012, to obtain it and
sell it to an undercover agent.
       The facts here are similar to those in Kotteakos, where a broker arranged
fraudulent loans with several borrowers, none of whom were connected, and presented

                                             9
several conspiracies, like a wheel with spokes meeting at the center hub (the broker)
without a rim enclosing the spokes. (Kotteakos, supra, 328 U.S. at pp. 752-755 [90 L.Ed.
at pp. 1559-1561].) The facts in Kotteakos were summarized in Blumenthal, supra,
332 U.S. at p. 558 [92 L.Ed.2d at p. 169]: “[E]ach separate agreement had its own
distinct, illegal end. Each loan was an end in itself, separate from all others, although all
were alike in having similar illegal objects. Except for Brown, the common figure, no
conspirator was interested in whether any loan except his own went through. And none
aided in any way, by agreement or otherwise, in procuring another’s loan. The
conspiracies therefore were distinct and disconnected, not parts of a larger general
scheme, both in the phase of agreement with Brown and also in the absence of any aid
given to others as well as in specific object and result. There was no drawing of all
together in a single, over-all, comprehensive plan.”
       The five individual conspiracies that made up count 5 involved different
combinations of conspirators. Common to all the individual conspiracies and sales was
only one person, Lewis. Each sale occurred on a different date. Each sale began with a
text message from an undercover agent to Lewis. Prior to the agent’s text message, it
could not be foreseen that Lewis would be selling or trying to arrange with others to sell
methamphetamine to the agent. Each sale occurred in a different manner. On
December 8, 2011, Lewis had the agent drive him to Woodland, where Lewis obtained
the methamphetamine from Castanon. Lewis then sold the drugs to the agent on the drive
back to an apartment complex on West Capitol Avenue in West Sacramento (the West
Capitol complex). On December 14, 2011, Lewis got into the agent’s car with Vandyke.
Lewis had the agent drive to Sacramento, where Lewis met a woman in a restaurant
parking lot, and then drive back to the West Capitol complex, where Lewis and Vandyke
went into an apartment. Lewis returned to the agent’s car and sold him a “fake
substance.” On January 11, 2012, the agent complained about the fake substance and
Lewis, alone, sold methamphetamine to the agent. On February 21, 2012, Lewis planned

                                             10
to sell the drug to the agent but did not have it on his person. He could get it later, but
because of his curfew, he arranged to have Castro provide it. Castro had the agent drive
to a house where Morales came to the car to meet the agent. Castro went into the house,
then returned to the agent’s car with the methamphetamine. On March 15, 2012, the
agent and his partner met Lewis at a taco shop, where Lewis made a phone call. Lewis
spoke with the driver of a Lexus (allegedly Butcher), who arrived 10 minutes later.
Lewis met with Butcher outside, then returned to the taco shop and asked for the money.
When the agent demanded to see the drugs first, the Lexus left but returned 10 minutes
later. Lewis spoke with the driver of the Lexus, then Lewis delivered the drugs to the
agent, who was waiting in his car. On March 19, 2012, although Lewis and Agent
Richter met at the taco shop, they left and went to a location on B Street to wait for
Lewis’s cousin (defendant) to deliver the drugs. Lewis also indicated he could find
someone to assist Richter in the purchase of a gun. Defendant arrived in one car,
followed by Rosales in another car. Lewis got into defendant’s car, then returned to
Richter’s car with the methamphetamine. After Richter paid, Lewis returned to
defendant’s car.
       The jury did not find any of the evidence of interdependence among the
participants (such as the gang expert’s testimony) to be persuasive, having rejected all of
the gang charges and gang enhancements against all of the defendants. And, apart from
the gang evidence, which is not all compelling, there is no other evidence suggesting the
drug sales “were tied together as stages in the formation of a larger all-inclusive
combination, all directed to achieving a single unlawful end or result. On the contrary
each separate [drug sale] had its own distinct, illegal end. Each [drug sale] was an end in
itself, separate from all others, although all were alike in having similar . . . objects.
Except for [Lewis], the common figure, no conspirator was interested in whether any
[drug deal] went through. And none aided in any way, by agreement or otherwise, in
[selling the drugs on the other occasions]. The conspiracies therefore were distinct and

                                               11
disconnected, not parts of a larger general scheme . . . . There was no drawing of all
together in a single, over-all, comprehensive plan.” (Blumenthal, supra, 332 U.S. at
p. 558 [92 L.Ed. at p. 169].)
       Count 5 alleged an alternative theory—a single, all-encompassing conspiracy that
finds no support in the record. Thus, we affirm count 18 but reverse count 5.
B.     Stay of Prior Prison Term
       Defendant next contends, and the People concede, that the trial court erred in
imposing a stayed sentence on a second prior prison term allegation that was never
proved or sustained.
       The court sustained the allegation on the second prior prison term even though it
found only one prior prison term was served. The court then imposed but stayed sentence
on that second prior prison term. Because the record supports only one prior prison term
finding, we will modify the judgment, striking the finding and the stayed sentence on the
second prior prison term.
       The amended indictment alleged two prior prison terms. (Pen. Code, § 667.5,
subd. (b).) It was alleged that defendant served a term of imprisonment for violating
Penal Code section 245, subdivision (a)(1) in Yolo Superior Court case No. 04-0376. It
was also alleged that defendant served a term of imprisonment for violating section 245,
subdivision (a)(1) in Yolo Superior Court case No. 06-2845. To prove the two prior
prison term allegations, the prosecutor submitted a Penal Code section 969b package.
The evidence showed that defendant was convicted of the assault offenses in both case
No. 04-0376 and case No. 06-2845 but was sentenced to state prison on July 25, 2006, for
both offenses at the same time and began his sentence on August 8, 2006. The trial court
sustained both prior prison term allegations, stating, “I would find that the People have
proved . . . Case Enhancement ‘g’ [and] Case Enhancement ‘h.’ ” In sentencing, the
court imposed a one-year term for one prior prison term, then also imposed but stayed a
one-year term for the second prior prison term.

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       Penal Code section 667.5, subdivision (b) provides for a consecutive one-year
enhancement for “each prior separate prison term.” Here, the Penal Code section 969b
package showed defendant was sentenced at the same time for both cases. He did not
serve a separate prison term for the two cases; instead, he served one prior prison term for
both cases.
       Since there was no evidence to support the second prior prison term, the trial court
erred in sustaining the allegation and in imposing a stayed one-year term for the second
prior prison term. We will modify the judgment, vacating the stayed sentence on the
second prior prison term and striking the second finding.
C.     Minute Order Correction
       Defendant contends, the People concede, and we agree that the minute order fails
to reflect the trial court’s imposition of a consecutive two-year term for the on-bail
enhancement (Pen. Code, § 12022.1, subd. (b)) and the consecutive one-year term for the
prior prison term (Pen. Code, § 667.5, subd. (b)). We will direct the trial court to prepare
a corrected minute order accordingly. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
D.     Refusal to Strike Prior Conviction
       Finally, defendant contends the trial court abused its discretion in denying his
request to strike the strike prior. We disagree.
       Background
       The probation report reflects that the 28-year-old defendant had two prior felony
convictions (in 2004 and 2006), both for violation of Penal Code section 245,
subdivision (a)(1), a violent offense. Defendant’s only other conviction was a
misdemeanor violation of Vehicle Code section 23152, subdivision (b). Defendant had
probation and parole violations and no meaningful crime-free periods. He had a longtime
drug and alcohol addiction that he supported by selling methamphetamine; he engaged in
drug sales one month after his release from jail for the same conduct. He lacked a high
school diploma and long-term employment.

                                             13
       Defendant requested that the trial court strike his strike prior, arguing his addiction
to methamphetamine, which resulted from his using Ritalin for his mental health
problems, led to his life of crime. He noted that his “Rap Sheet” reflected “drug use has
been a chronic problem throughout his life” and “his criminal past has been motivated
solely by his addiction to drugs.” He noted his criminal past was “littered with various
Driving Under the Influence charges as well as drug possession convictions.” He
requested treatment for his drug addiction.
       The trial court noted it had read defendant’s request to strike the strike prior as
well as the current probation report and the probation report filed in the 2006 (strike)
case. The court stated: “From all of those documents, I have found that the defendant
has an extensive criminal history that began in the year 2000, and there are three crimes
of violence since the defendant first came into the criminal justice system. One was as a
juvenile back in 2001. That was a [Penal Code section] 245[, subdivision] (a)(1), assault
by force likely to produce great bodily injury, and a [Penal Code section] 243. Then he
had a 2004 conviction, which is referenced in the latest probation report. That is a
conviction for violation, again, of [section] 245[, subdivision] (a)(1). He was placed on
probation in this case. And, finally, we have the assault with a deadly weapon case from
2006 where the defendant was committed to state prison.” The court counted the number
of convictions (eight felony, four of which were crimes of violence) and noted that
defendant had never been out of custody for an extended period of time. The court also
noted that in the current case, defendant had been released for less than two months
before he was arrested again for a drug sale and conspiracy. The trial court “accept[ed
defendant’s] representation” that the current crimes were committed because he was
addicted to methamphetamine. In denying defendant’s request to strike the strike prior,
the trial court cited defendant’s criminal history and the lack of an extended period of
crime-free life.



                                              14
       Analysis
       A trial court may strike a felony conviction for purposes of sentencing if and only
if the defendant falls outside the spirit of the three strikes law. (People v. Williams
(1998) 17 Cal.4th 148, 161.) The trial 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.” (Ibid.)
       Striking a strike prior is a departure from the sentencing norm, and as such, we
may not reverse the denial of a request to strike the strike prior unless the defendant
shows the decision was “so irrational or arbitrary that no reasonable person could agree
with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377.) Reversal is justified where
the trial court was unaware of its discretion or applied improper factors. (Id. at p. 378.)
But where the trial court knew 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.’ ” (Ibid.)
       Here, the trial court considered defendant’s criminal history and his lack of
prospects for the future given his addiction to methamphetamine. Defendant has not
shown that the trial court’s denial of his request was irrational or arbitrary. Defendant
had several violent felonies and had been to prison but continued his life of crime.
Defendant has failed to demonstrate that the trial court abused its discretion in denying
his request to strike the strike prior.
                                          DISPOSITION
       Defendant’s conviction and sentence on count 5 (conspiracy) is reversed. The trial
court’s finding and stayed sentence on the second prior prison term is reversed and
vacated, respectively, and the allegation is dismissed for lack of proof at the bifurcated

                                              15
proceeding. The trial court is directed to prepare an amended abstract of judgment
accordingly and to forward a certified copy thereof to the Department of Corrections and
Rehabilitation. The trial court is also directed to prepare a corrected minute order
reflecting the two-year sentence on the on-bail enhancement and the one-year sentence
for the prior prison term. As modified, the judgment is affirmed.



                                                            RAYE              , P. J.



We concur:



        BUTZ                , J.



        RENNER              , J.




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