Filed 3/25/13 P. v. Beckwith CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B242147

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA052644)
         v.

GERALD DELANE BECKWITH,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Akemi D. Arakaki, Judge. Affirmed as modified.
         Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Lawrence M. Daniels,
Supervising Deputy Attorney General and Ana R. Duarte, Deputy Attorney General, for
Plaintiff and Respondent.
                                            _____________________
       Gerald Beckwith was convicted of first degree residential burglary and petty theft,
and received a sentence of 37 years to life. Beckwith appeals, arguing that the trial court
abused its discretion in denying his motion to dismiss one or both of his prior strikes. We
modify the abstract of judgment and otherwise affirm the judgment.
                                      BACKGROUND
       An amended information charged Beckwith with one count of first degree
residential burglary in violation of Penal Code section 4591 (count 1), and one count of
petty theft with three priors in violation of section 666, subdivision (a) (count 2). The
information also alleged that Beckwith had suffered two prior strike convictions as to
both counts within the meaning of sections 1170.12, subdivisions (a) through (d), section
667, subdivisions (b) through (i), and section 667, subdivision (a)(1), and further alleged
that Beckwith had served eight prior prison terms within the meaning of Penal Code
section 667.5, subdivision (b). Beckwith pleaded not guilty and denied the allegations.
       A jury found Beckwith guilty as charged on both counts. In a bifurcated
proceeding, Beckwith waived jury trial, and the court found the prior conviction
allegations to be true, except for one of the eight prior prison term allegations. The trial
court also denied Beckwith‟s motion to dismiss his prior “strike” convictions pursuant to
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The court
sentenced Beckwith to a total of 37 years to life, detailed as follows: On count 1,
Beckwith received a term of 25 years to life pursuant to the “Three Strikes” law, five
years each for the two prior serious felony convictions, and one year each for two of the
seven prior prison terms. The court stayed the term for count 2 under section 654. The
court ordered Beckwith to pay fines and fees, and awarded him 478 days of custody
credit. Beckwith filed a timely notice of appeal.
       The testimony at Beckwith‟s trial was that on April 30, 2011, Tiara Eaton was
moving into her new apartment at 44641 10th Street West in Lancaster. At 2:30 p.m., she
locked the apartment door and went with her mother to buy some pizza.

       1   All further statutory references are to the Penal Code unless otherwise indicated.

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       That same day, Angelena Blue, whose apartment was directly across from Eaton‟s,
returned home about 1:00 p.m. or 2:00 p.m. Beckwith, who was a former boyfriend of
Blue‟s daughter, loitered outside Blue‟s apartment asking for the return of his things.
Blue‟s daughter gave Beckwith the items in a plastic bag, and Blue asked Beckwith to
leave. Instead, Beckwith sat on a windowsill of Eaton‟s apartment. Blue called the
police, but when nobody answered she gave the phone to her daughter and peeked
outside.
       Blue watched Beckwith make a call and then a younger man, Antonio Smalls,2
arrived. Beckwith pushed Eaton‟s apartment door open and went inside, followed by
Smalls. Smalls then came out of Eaton‟s apartment with a box. Blue told him to put the
box back, and when he reentered Eaton‟s apartment, Blue went inside her apartment to
call the police. When she returned to her door, she saw Beckwith and Smalls walking
away on the street, holding boxes. She shouted at them to bring the boxes back, but they
continued to walk away. Blue called the police.
       When Eaton returned from buying a pizza, she saw that her apartment door was
open and the frame was damaged, and when she went inside she saw that her things had
been knocked down and some of her property was missing. Blue told Eaton that she had
seen two men steal a couple of boxes. Blue then drove to where Beckwith and Smalls
had gone, followed by Eaton and her mother. The women confronted Beckwith and
Smalls, who were holding boxes of Eaton‟s property, and demanded that the men give it
back. Eaton and her mother eventually recovered the stolen items.
       Eaton‟s brother found a shaving kit in Eaton‟s apartment. They turned the bag
over to the police, who found inside a utility bill with Beckwith‟s name and address.
While on the way to Beckwith‟s apartment, the police arrested Beckwith on the street.
       The defense read into the record a stipulation between the parties that a doctor
reviewed Beckwith‟s medical record, and based on that review and an examination of


       2The parties stipulated that Smalls was convicted of the first degree residential
burglary of Eaton‟s apartment.

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Beckwith, the doctor determined that due to a prior injury to Beckwith‟s right hand, it
would have been painful, although not impossible, for Beckwith to hold an object in his
right hand.
I.     The court did not abuse its discretion in failing to strike all the prior strike
allegations.
       Beckwith filed a posttrial motion requesting that the trial court dismiss prior strike
allegations in the interest of justice under section 1385 and Romero, supra, 13 Cal 4th
497. Beckwith argued that the court should exercise its discretion to do so because his
current offense was not violent or life-threatening, he would receive a long sentence even
without the prior strikes, and he cooperated with the police after his arrest. Beckwith also
argued that his two prior strikes were remote, consisting of robbery convictions in 1985
and 1988.
       At the sentencing hearing, the trial court found true Beckwith‟s alleged prior
convictions of robbery in 1985 and 1988. Beckwith‟s prior prison terms included two for
taking a vehicle without the owner‟s consent in 1986, and 1999; attempted grand theft
auto in 1988; robbery in 1988; possession of a controlled substance in 2003 and 2007;
and petty theft with a prior in 2006. The court stated that it had taken time to analyze the
Romero motion, including consideration of Beckwith‟s constitutional rights, the interest
of society in fair prosecution, the current charges, the prior convictions, and Beckwith‟s
background, character, and prospects.3 The court continued: “The problem is, the court
struggled with it. I will admit. I really considered the age of the strikes. However, based
on Mr. Beckwith‟s criminal history and the fact that he has not remained crime free for
such a long period of time, he has suffered so many prison priors, and based on the
seriousness of the current charge, the court does not believe that Mr. Beckwith is outside

       3 The court took into account references and a letter from a psychologist who had
examined Beckwith. The psychologist reported that although Beckwith stated that he had
been diagnosed with schizophrenia and bipolar disorder (for which he required
medication), at the time of the interview he was calm and clear in his thoughts, and
nothing in the record suggested that Beckwith‟s thought process was impaired at the time
of the offense.

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the scope or spirit of the third strikes law in the sentencing scheme.” The court denied
the Romero motion.
       Beckwith addressed the court and asked it to reconsider, arguing that there were
inconsistencies in the evidence, and maintaining his innocence of the burglary charge.
The court replied that Beckwith had been convicted by a jury, Beckwith‟s prior strikes
were serious, and “it‟s been time and time again that you have continued to conduct
yourself inappropriately and pick up felony convictions, sir. It is not a matter of you
walking in here, Mr. Beckwith, 25 years later with a clean slate . . . . For the last seven
cases, Mr. Beckwith, you have gone to prison. [¶] . . . [¶] . . . And for theft-related
offenses. And based on those circumstances the Romero motion was denied.”
       The trial court has discretion under the Three Strikes law to dismiss prior
conviction allegations in the furtherance of justice. (§ 1385, subd. (a); Romero, supra, 13
Cal.4th at pp. 529–530.) In exercising its discretion, the court must take into account the
particulars of the defendant‟s background, character, and prospects; his constitutional
rights; the nature and circumstances of the current and prior offenses; and the interests of
society, to decide whether the defendant may be deemed outside the anti-recidivist
“spirit” of the Three Strikes law, in whole or in part. (People v. Williams (1998) 17
Cal.4th 148, 161; Romero, at pp. 530–531.) We give deference to the court‟s exercise of
its discretion, and will not reverse the court‟s denial of a Romero motion “unless its
decision is so irrational or arbitrary that no reasonable person could agree with it.”
(People v. Carmony (2004) 33 Cal.4th 367, 377.) The 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. In doing
so, the law creates a strong presumption that any sentence that conforms to these
sentencing norms is both rational and proper. [¶] In light of this presumption, a trial
court will only abuse its discretion in failing to strike a prior felony conviction allegation
in limited circumstances.” (Id. at p. 378.) If the record shows that the trial court has
considered the relevant facts and reached its decision impartially and in the spirit of the



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law, we affirm “„even if we might have ruled differently in the first instance,‟” and
reverse only when the circumstances are “„extraordinary.‟” (Ibid.)
       No extraordinary circumstances appear in this case. The trial court properly
weighed Beckwith‟s particulars, his constitutional rights, and the nature of his current and
prior offenses. Although no statement of reasons is required when the court does not
dismiss a prior conviction finding (In re Large ( 2007) 41 Cal.4th 538, 550), the trial
court in this case noted that although Beckwith‟s robbery convictions were in 1985 and
1988, there were seven other convictions (the most recent in 2007), most of which were
theft related. Beckwith contends that he “clearly has a drug problem” which was related
to his more recent and his current offenses, but substance abuse is not necessarily a
mitigating factor when a defendant has a long-term problem and does not show that he
has pursued treatment for his addiction. (People v. Martinez (1999) 71 Cal.App.4th
1502, 1511.)
       The trial court‟s refusal to dismiss the prior strike convictions was not a decision
with which all reasonable people would disagree, and we therefore conclude that the
court did not abuse its discretion in denying the Romero motion.
II.    The abstract of judgment must be amended.
       Respondent points out, and Beckwith concedes, that one additional court security
fee and one additional court construction fee should be added. The omission of
mandatory assessments, surcharges, and penalties may be corrected for the first time on
appeal. (People v. Castellanos (2009) 175 Cal.App.4th 1524, 1530.) One $40 court
operations assessment “shall be imposed” for each felony criminal conviction. (Penal
Code, § 1465.8, subd. (a)(1); People v. Roa (2009) 171 Cal.App.4th 1175, 1181.) One
$30 fine “shall be imposed” for each felony criminal conviction as a court construction
fee. (Gov. Code, § 70373, subd. (a)(1); People v. Lopez (2010) 188 Cal.App.4th 474,
480.) The court imposed only one court operations fee and one court construction fee.
Beckwith‟s two convictions require that we order the abstract of judgment corrected to
reflect a second $40 court operations assessment under Penal Code section 1465.8,



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subdivision (a)(1), and a second $30 court construction fee under Government Code
section 70373, subdivision (a)(1).
       We agree with respondent that the abstract must be further amended to reflect the
court‟s oral pronouncement imposing a total prior serious felony enhancement of 10
years under section 667, subdivision (a)(1). The court stated that as to count 1 “it is 5
years on each [Beckwith‟s prior robbery convictions], for a total of 10 years.” The
minute order, however, states that the court imposed a single five-year prior serious
felony enhancement under section 667, subdivision (a)(1), and then doubled the five
years under the Three Strikes law for a total of 10 years. The abstract of judgment also
states that one 10-year enhancement was ordered. The abstract of judgment must be
amended to reflect that two separate five-year enhancements were ordered for Beckwith‟s
prior serious felonies.
                                      DISPOSITION
       The trial court is ordered to correct the abstract of judgment to reflect a second
$40 court operations assessment pursuant to Penal Code section 1465.8, subdivision
(a)(1); a second $30 court construction fee under Government Code section 70373,
subdivision (a)(1); and two separate five-year enhancements for Beckwith‟s prior serious
felonies pursuant to Penal Code section 667, subdivision (a)(1). The court is directed to
forward a corrected copy of the abstract of judgment to the Department of Corrections
and Rehabilitation. In all other respects, the judgment is affirmed.
       NOT TO BE PUBLISHED.


                                           JOHNSON, J.


We concur:


       MALLANO, P. J.


       ROTHSCHILD, J.

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