Filed 5/26/15 P. v. Tapia-Reyes CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H040985
                                                                    (Santa Cruz County
         Plaintiff and Respondent,                                   Super. Ct. No. F18058)

         v.

MARTIN TAPIA REYES,

         Defendant and Appellant.




                                                I.        INTRODUCTION
         Defendant Martin Tapia Reyes was convicted, by jury trial, of robbery (Pen. Code,
§ 211)1 and active participation in a criminal street gang (§ 186.22, subd. (a)). The trial
court found that defendant had two prior serious felony convictions (§ 667, subd. (a)(1))
that qualified as strikes (§§ 667, subds. (b)-(i), 1170.12).
         Defendant was sentenced to an indeterminate term of 25 years to life for the
robbery, plus a 10-year determinate term for the prior serious felony allegations. The
trial court imposed a concurrent indeterminate term of 25 years to life for the criminal
street gang offense. The trial court imposed a $66 crime prevention fine (§ 1202.5) as
well as other fees and fines.


         1
             All further statutory references are to the Penal Code unless otherwise indicated.
       Defendant appealed to this court, claiming there was insufficient evidence to
support his conviction of active participation in a criminal street gang. (§ 186.22,
subd. (a).) Based on the recent California Supreme Court case of People v. Rodriguez
(2012) 55 Cal.4th 1125 (Rodriguez), we agreed, and we reversed that conviction.
(People v. Tapia Reyes (May 21, 2013, H037362) [nonpub opn.].)2 We also agreed that
this matter should be remanded for a new sentencing hearing, so the trial court could
reconsider defendant’s motion to dismiss his prior strikes, recalculate the fees and fines,
specify the statutory basis for the penalty assessments used to calculate the $66 aggregate
fine that was imposed pursuant to section 1202.5, and award presentence conduct credit.
       On remand, the trial court denied defendant’s renewed motion to dismiss his prior
strikes. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).) The
trial court also recalculated the court security fee, court facilities fee, and the penalty
assessments imposed in conjunction with the section 1202.5 fine, and it awarded
defendant 60 days of presentence conduct credit.
       On appeal, defendant contends the trial court abused its discretion by denying his
renewed Romero motion. Defendant also contends that the abstract of judgment must be
amended to delete the reference to his conviction of active participation in a criminal
street gang and to reflect the amounts and statutory bases for the penalty assessments
used to calculate the total section 1202.5 fine.
       We will order the abstract of judgment corrected and affirm the judgment as
corrected by our order.




       2
           We have taken judicial notice of the record in defendant’s prior appeal.

                                               2
                                    II.   BACKGROUND3
       A.      Current Conviction
       On June 28, 2009, Kristian P. Ivanov was working alone at the La Selva Surf
Shop. Defendant entered the shop at around 10:30 a.m. Ivanov helped defendant select a
pair of sweatpants. Meanwhile, defendant’s companion, Xavier Carmona, stood in the
shop’s doorway, looking in and out.
       Defendant told Ivanov that he was a Norteño gang member and that he had a
“[f]airly high” status in the gang. He also said that he was “buzzed” or “buzzing.” He
asked if Ivanov could “hook him up with a marijuana dealer.” Ivanov said he did not
know where to find a marijuana dealer. Defendant then asked Ivanov to “hook him up,”
meaning give him the sweatpants or other merchandise for free. Ivanov declined.
       Defendant paid for the sweatpants, but then indicated he had changed his mind.
Ivanov returned the two $20 bills that defendant had given him and asked for the two $5
bills he had given defendant as change. Defendant refused and took a second pair of
sweatpants from a rack. Ivanov said defendant could not do that, but defendant
responded, “I [can] do this if I want.”
       Defendant instructed Carmona to shut the door of the surf shop. Although
Carmona initially refused, he shut the door after defendant reiterated his command. At
that point, Ivanov said “stop” and said he would hook defendant up. Defendant
approached Ivanov behind the counter, boxed Ivanov in, and “nudged” him with his
chest. Defendant said, “[D]o you want to force me to be pushed to the next level” or “do
you want me to get physical.” He also said, “I could have robbed you.” Ivanov felt
intimidated.




       3
       Our factual and procedural summary is based on our prior opinion in People v.
Tapia Reyes, supra, H037362.

                                            3
       Before leaving with both pairs of sweatpants and the two $5 bills, defendant told
Ivanov, “[P]eople like you call the police.” He also said, “I will be back.”
       B.     Jail Incident and Gang Evidence
       On October 28, 2009, defendant and two other inmates were being escorted from
the medical area to the N unit. The three inmates attacked another inmate who claimed to
be a Norteño “dropout.” Defendant and his companions ignored an officer’s commands,
so the officer used pepper spray to stop the fight.
       Defendant had a number of gang-related tattoos, including a star on his face, the
Roman numeral XIV on his stomach, a Mayan figure on his chest with the number 14 on
it, and the word “Norteno” across his lower back. Carmona (his companion at the surf
shop) had gang-related tattoos, had admitted involvement in a gang-related jail fight, and
had previously admitted he “backs up” Norteños.
       By stipulation, the jury learned that defendant had admitted gang affiliation to law
enforcement officers on four occasions in 2008 and 2009. The jury also learned by
stipulation that during the commission of a felony offense on July 21, 1996, defendant
had displayed a tattoo of XIV on his stomach and told witnesses he was from North Side,
and that he had been in the company of four other Norteño gang members when he
committed the offense. Finally, the jury learned by stipulation that on October 11, 2002,
defendant committed a felony offense, during which he had claimed gang affiliations.
       C.     Procedural History
       Defendant was charged with active participation in a criminal street gang (count 1;
§ 186.22, subd. (a)), robbery (count 2; § 211), assault by means likely to produce great
bodily injury (count 3; former § 245, subd. (a)(1)), and resisting arrest (count 4; § 148,
subd. (a)). The first amended information alleged that counts 2 through 4 were
committed for the benefit of, at the direction of, or in association with a criminal street
gang (§ 186.22, subds. (b) & (d)). The information further alleged that defendant had
two prior serious felony convictions (§ 667, subd. (a)(1)) that qualified as strikes (§§ 667,

                                              4
subds. (b)-(i), 1170.12): a 1996 robbery conviction and a 2003 conviction of assault by
means of force likely to produce great bodily injury, with an enhancement for personal
infliction of great bodily injury.
       The jury found defendant guilty of active participation in a criminal street gang
(count 1) and robbery (count 2), but was unable to reach a verdict on the charges of
assault by means likely to produce great bodily injury (count 3) and resisting arrest
(count 4). The jury made a not true finding on the allegation that the robbery was
committed for the benefit of, at the direction of, or in association with a criminal street
gang (§ 186.22, subd. (b)). The trial court declared a mistrial as to counts 3 and 4, and it
ultimately dismissed those counts upon the prosecutor’s motion. The trial court found all
of the prior conviction allegations true.
       Prior to sentencing, defendant filed a Romero motion, requesting the trial court
dismiss one or both strike allegations. (See Romero, supra, 13 Cal.4th 497.) The trial
court denied the Romero motion.
       At the sentencing hearing on July 29, 2010, the trial court sentenced defendant to a
term of 25 years to life for the robbery, plus a 10-year determinate term for the two prior
serious felony allegations. It imposed a concurrent term of 25 years to life for the crime
of active participation in a criminal street gang. The trial court ordered defendant to pay
a $10,000 restitution fine (§ 1202.4, subd. (b)), a suspended $10,000 parole revocation
fine (§ 1202.45), a $60 court security fee (§ 1465.8), a $60 court facilities fee (Gov.
Code, § 70373), and a $66 crime prevention fine (§ 1202.5).
       This court subsequently reversed defendant’s conviction of actively participating
in a criminal street gang (count 1; § 186.22, subd. (a)) based on Rodriguez, supra, 55
Cal.4th 1125. We also remanded the matter for a new sentencing hearing, so the trial
court could reconsider defendant’s motion to dismiss his prior strikes, recalculate the fees
and fines, specify the statutory basis for the penalty assessments used to calculate the



                                              5
$66 fine that was imposed pursuant to section 1202.5, and award him presentence
conduct credit.
       D.     Romero Hearing
       Following our remand, defendant filed a new Romero motion, asking the trial
court to dismiss one or both of his prior strikes. Defendant argued that the current
offense “was nonviolent and did not involve a weapon,” that he had been under the
influence at the time, and that he had not intended to commit a crime when he entered the
surf shop. Defendant noted that his strikes consisted of a robbery 17 years earlier and an
assault “with his fist” 11 years earlier. Defendant further claimed he had good prospects
for rehabilitation, noting that he was committed to sobriety and that he had job skills.
       The prosecution filed written opposition to the motion in which it described
defendant’s criminal history as “egregious and continuous.” The prosecution listed
defendant’s prior arrests, convictions, and parole violations, and the prosecution provided
documentation of each offense. The prosecution contended that defendant was still a
gang member and that he had recently engaged in “yet another” jail fight.
       The documentation provided by the prosecution showed the following. In
December of 1992, defendant was arrested after police found him with a .22-caliber rifle
that had been stolen a few months earlier. In February of 1993, defendant was arrested
after police saw him fire a .38 Special pistol towards a bar. In June of 1993, defendant
was arrested after police found a loaded .357 magnum revolver in a car that he had been
driving. In April of 1995, defendant was arrested after he punched someone and then
took the person’s money, during a party where numerous gang members were in
attendance. The documentation also included records related to defendant’s two prior
strike convictions: the 1996 robbery conviction and the 2003 conviction of felony
assault. The documentation also contained defendant’s prison records, which showed
several parole violations, defendant’s validation “as an Associate of the Northern
Structure prison gang,” and the fact that defendant was in custody for much of the time

                                             6
since 1996. Finally, the documentation included a jail incident report regarding a
September 19, 2013 incident in which defendant was placed in “ad seg” after he was
pepper sprayed and a correctional officer was injured.
       The trial court held a hearing on defendant’s Romero motion on April 16, 2014.4
At the beginning of the hearing, the trial court indicated that its tentative opinion was to
deny the motion. The trial court noted that there had not been “a change of
circumstances” since the prior Romero hearing. The court indicated that its tentative
opinion was based on defendant’s criminal history.
       Defendant argued that although his current conviction was for a violent felony as
defined by statute, “the actual acts could hardly be less violent.” He argued that the
victim’s fear is “what made it a 211” and noted that the jury had not found that the crime
was gang-related. As for defendant’s criminal background, he noted that the prosecution
had provided documentation of a number of defendant’s arrests without providing
information about whether the arrests led to convictions. Regarding his prior strikes,
defendant noted that the 1996 offense occurred when defendant was only 22 years old
and that “there was no weapon,” and that the second strike was “an assault with a fist.”
Defendant noted that he had documentation of his employment prospects and skills. He
also noted that although he had been placed with other gang members while in prison, it
was not because he was active in a gang but “because of his history and . . . desire not to
be assaulted or potentially killed.”
       Several witnesses testified on defendant’s behalf at the hearing. Efrain Roman
had been defendant’s friend for over 30 years and believed defendant was “a good, good
man.” Maria Zarate, defendant’s sister, spoke on behalf of herself and defendant’s
mother. She asked the trial court to give defendant a chance to prove that “he is a great


       4
       As the original trial judge had retired, a different judge heard defendant’s
renewed Romero motion.

                                              7
person, that he has changed and learned his lessons and basically that we need him in our
family.”
       Defendant also addressed the court, saying he was “embarrassed and ashamed”
about his criminal actions. He told the court that he had “left that gang lifestyle long
ago” and that he understood that being in a gang had not been good for him. He
described his drug and alcohol addiction as “the very core” of his “present situation.”
He requested an “opportunity to redirect [his] life.”
       The prosecutor argued that what defendant was telling the court was “a continuing
lie and a continuing evasion of responsibility for a 20-year crime spree as a gang
member.” He argued that defendant would not have requested the N unit of the gang or
said that he “can program” if he was no longer an active gang member. He argued that
the current offense was gang-related and not “de minimis.” He noted that a number of
defendant’s prior offenses involved possession of firearms and that defendant had
knocked out two of the victim’s teeth during the offense leading to his 2003 strike
conviction. He argued that defendant “should never ever be out on the streets again.”
       Defendant subsequently submitted documentation showing that he had been
classified as a gang member at the county jail due to his history, not because of a recent
admission.
       On April 29, 2014, the trial court denied defendant’s Romero motion. The court
referred to defendant’s two prior strikes and the current offense, then found that
defendant’s criminal history did not “allow[]” the court to find that defendant was outside
the scope of the Three Strikes law. The court acknowledged that the strikes were from
1996 and 2003 convictions, but found that defendant had been in custody for much of the
intervening time, which “undermines the argument that’s being made as to the
remoteness of those strike convictions.”




                                              8
       E.     Status Conference
       On May 22, 2014, the trial court held a status conference to address the other
matters addressed in our remand order, including the calculation of fees, fines, and
presentence conduct credit. The trial court indicated it had recalculated the penalty
and assessments to be imposed for the section 1202.5 fine, and it imposed a “total fine
of $36.” The trial court also imposed a $30 court security fee pursuant to section 1465.8
and a $30 court facilities fee pursuant to Government Code section 70373, and it awarded
defendant 60 days of presentence conduct credits in addition to the 402 days of actual
presentence custody credit he had previously been awarded.

                                       III.     DISCUSSION
       A.     Romero Motion
       Defendant contends the trial court erred by denying his renewed Romero motion,
arguing that the court’s decision “ignored many relevant factors, and is inconsistent with
the facts, and case law.”
              1.      Applicable Law
       In People v. Carmony (2004) 33 Cal.4th 367 (Carmony), the California Supreme
Court set forth the basic principles applicable to a trial court’s decision to strike a prior
conviction. “ ‘In Romero, we held that a trial court may strike or vacate an allegation or
finding under the Three Strikes law that a defendant has previously been convicted of a
serious and/or violent felony, on its own motion, “in furtherance of justice” pursuant
to . . . section 1385(a).’ [Citation.] We further held that ‘[a] court’s discretionary
decision to dismiss or to strike a sentencing allegation under section 1385 is’ reviewable
for abuse of discretion. [Citation.]” (Carmony, supra, at p. 373.) “[A] trial court does
not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable
person could agree with it.” (Id. at p. 377.)




                                                9
       “ ‘[T]he 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 he actually fell outside the Three Strikes scheme.” ’ [Citation.]” (Carmony,
supra, 33 Cal.4th at p. 377.) “ ‘[I]n 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.’ [Citation.]” (Carmony, supra, at p. 377.)
              2.     Analysis
       Defendant first contends that the trial court erroneously treated his criminal
history, and particularly his two prior strike offenses, as dispositive of the Romero
motion. The record does not support this claim. In announcing its ruling, the trial court
noted it had considered all of the evidence submitted by both the defense and
prosecution, but that the defense evidence was “not persuasive.” The fact that the trial
court “focused its explanatory comments” primarily on defendant’s strike priors does not
mean that the trial court failed to consider all of the relevant Romero factors. (See People
v. Myers (1999) 69 Cal.App.4th 305, 310.)
       Defendant next contends that the trial court erred by finding that there was no new
evidence since the original Romero hearing. Defendant points out that he presented new
evidence showing that he was no longer an active gang member, and that this court

                                             10
reversed his gang conviction. Defendant also argues that the trial court’s comments
indicate it erroneously believed defendant had to show a change of circumstances from
the original hearing. Again, defendant’s claims are not supported by the record. The trial
court noted it had considered all of the evidence submitted by both the defense and
prosecution, which included the evidence that defendant claimed he was no longer an
active gang member, and the trial court indicated that it had “balance[d]” that
information. Although the trial court referred to the lack of any “change of
circumstances” when announcing its tentative ruling, the trial court’s comments in
announcing its decision do not indicate that the court applied an incorrect legal standard.
The trial court found, based on all of the information presented by the parties, that
defendant was not “outside the scope of the three strikes law,” which is the proper legal
standard. (See Carmony, supra, 33 Cal.4th at p. 377.)
       Regarding his current offense, defendant claims the trial court failed to “fully
consider” that it was “about as minor as a robbery can be.” He points out that his initial
encounter with the victim was nonviolent, that he was under the influence, and that he
was not armed. Defendant claims that the offense was akin to the new crime of
shoplifting. (See § 459.5, subd. (a).5) The record does not support defendant’s
characterization of the robbery as akin to a mere shoplifting offense. During the offense,
defendant physically cornered the victim in a small space from which the victim had no
escape, after boasting about being a high-ranking Norteño gang member. He threatened
to “get physical” and that he would come back. As a result of defendant’s actions, the




       5
         Section 459.5, subdivision (a) defines the crime of shoplifting as “entering a
commercial establishment with intent to commit larceny while that establishment is open
during regular business hours, where the value of the property that is taken or intended to
be taken does not exceed nine hundred fifty dollars ($950),” and it provides that
shoplifting is generally a misdemeanor.

                                             11
victim was intimidated and so fearful of defendant’s return he did not call the police
for 10 minutes.
       Defendant further argues that a second strike sentence of 16 years (a doubled term
of six years for robbery plus a term of 10 years for the prior serious felonies) would be
“more than sufficient” to punish him “for an offense in which he hurt no one, and took
property worth about $70.” Defendant notes that by the time he would be released from
such a sentence, he would be about 48 years old and less likely to reoffend or engage in
gang activity. Defendant cites to In re Stoneroad (2013) 215 Cal.App.4th 596, which
discussed a study noting that “ ‘as a general matter, people age out of crime,’ ” with rates
of criminality declining “ ‘drastically after age 40 and even more so after age 50.’
[Citation.]” (Id. at p. 634, fn. 21.) We acknowledge that “a defendant’s sentence is . . .
a relevant consideration when deciding whether to strike a prior conviction allegation; in
fact, it is the overarching consideration because the underlying purpose of striking prior
conviction allegations is the avoidance of unjust sentences.” (People v. Garcia (1999)
20 Cal.4th 490, 500.) However, defendant’s current offense is not the only reason he is
subject to a Three Strikes sentence. The record reveals that the current offense was just
one offense in defendant’s long criminal history, which included numerous crimes
involving violence and weapons. Based on its context in defendant’s criminal
background, the trial court reasonably determined that a third strike sentence for the
robbery was appropriate because defendant demonstrated that he continues to pose a
danger to society.
       Finally, defendant contends that his “prospects to function in society are
favorable,” pointing to evidence of his membership in a construction trade union and
evidence that he can be employed as a tattoo artist. He also notes that he has support
from family and friends. These facts do not convince us that the trial court abused its
discretion by denying defendant’s Romero motion. Defendant presumably had the same
ability to work and family support when he committed the robbery, but those factors did

                                             12
not stop him from engaging in violent criminal behavior. Considering defendant’s long
history of criminality, the trial court could reasonably determine that defendant “did not
add maturity to age” and that he was not outside the scope of the Three Strikes law. (See
People v. Williams (1998) 17 Cal.4th 148, 163.)
        In sum, on this record, the trial court’s decision not to dismiss either of
defendant’s strikes was not an abuse of discretion. (See Carmony, supra, 33 Cal.4th at
p. 373.)
        B.     Abstract of Judgment
        Defendant contends that the abstract of judgment must be amended to delete the
reference to his conviction of active participation in a criminal street gang and to reflect
the amounts and statutory bases for the penalty assessments used to calculate the total
section 1202.5 fine. The Attorney General concedes that these amendments should be
made.
        The amended abstract of judgment was issued on May 27, 2014, after we reversed
defendant’s conviction for actively participating in a criminal street gang. However, the
abstract still indicates defendant was convicted of that crime. We will order the clerk of
the superior court to correct the abstract of judgment to reflect that defendant’s
conviction of actively participating in a criminal street gang (§ 186.22, subd. (a)) was
reversed.
        Defendant and the Attorney General agree that the trial court should have
separately identified each penalty assessment imposed on the $10 crime prevention fine
(§ 1202.5) and listed each one in the abstract of judgment. In People v. High (2004)
119 Cal.App.4th 1192, the court explained that the abstract of judgment must specify
the amount of each fee, fine, and penalty assessment so that the Department of
Corrections can “fulfill its statutory duty to collect and forward deductions from prisoner
wages to the appropriate agency” and so that state and local agencies can be assisted “in
their collection efforts.” (Id. at p. 1200.) The parties agree that the trial court properly

                                              13
calculated the penalty assessments as follows: a $10 state penalty assessment (§ 1464,
subd. (a)(1)), a $2 state surcharge (§ 1465.7), a $3 state courthouse construction penalty
(Gov. Code, § 70372), a $7 additional penalty (Gov. Code, § 76000, subd. (a)(1)), a
$2 additional penalty for emergency medical services (Gov. Code, §76000.5,
subd. (a)(1)), a $1 penalty to implement the DNA Fingerprint, Unsolved Crime and
Innocence Act (Gov. Code, § 76104.6, subd. (a)(1)), and a $1 penalty to finance
Department of Justice forensic laboratories (Gov. Code, § 76104.7). We will order these
penalty assessments included in the corrected abstract of judgment.

                                      IV.    DISPOSITION
       The clerk of the superior court is directed to correct the abstract of judgment to
reflect that defendant’s conviction of actively participating in a criminal street gang
(§ 186.22, subd. (a)) was reversed, and to reflect that the trial court imposed a $10 crime
prevention fine (§ 1202.5) with the following penalty assessments: a $10 state penalty
assessment (§ 1464, subd. (a)(1)), a $2 state surcharge (§ 1465.7), a $3 state courthouse
construction penalty (Gov. Code, § 70372), a $7 additional penalty (Gov. Code, § 76000,
subd. (a)(1)), a $2 additional penalty for emergency medical services (Gov. Code,
§76000.5, subd. (a)(1)), a $1 penalty to implement the DNA Fingerprint, Unsolved Crime
and Innocence Act (Gov. Code, § 76104.6, subd. (a)(1)), and a $1 penalty to finance
Department of Justice forensic laboratories (Gov. Code, § 76104.7).
       With these corrections, the judgment is affirmed.




                                             14
                             ___________________________________________
                             BAMATTRE-MANOUKIAN, ACTING P.J.




WE CONCUR:




__________________________
MIHARA, J.




__________________________
MÁRQUEZ, J.
