Filed 8/25/15 P. v. Smith CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E060911

v.                                                                       (Super.Ct.No. FVI1202862)

KEVIN DEON SMITH,                                                        OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,

Judge. Affirmed with directions.

         Marianne Harguindeguy, under appointment by the Court of Appeal, for

Defendant and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Kristen

Hernandez, Deputy Attorneys General, for Plaintiff and Respondent.




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       A jury convicted defendant and appellant Kevin Deon Smith of one count of

felony driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)) and two

counts of misdemeanor child endangerment (Pen. Code, § 273a, subd. (b)). In a

bifurcated bench trial, the trial court found true the allegations that defendant suffered a

prior strike (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and four prior

prison terms (Pen. Code, § 667.5, subd. (b)).

       The trial court sentenced defendant to a total term of eight years: two years as the

midterm for the felony DUI, doubled to four because of the prior strike; and one year for

each of the four prior prison terms. The trial court ordered the felony DUI and the four

one-year prior prison enhancements to run consecutively. The trial court imposed one-

year terms for each of the two child endangerment counts, and ordered those sentences to

run concurrently with the principal term.

       On appeal, defendant argues that the trial court abused its discretion by refusing to

strike his prior strike pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th

497 (Romero) and Penal Code section 1385, subdivision (a). We disagree.

                              FACTUAL BACKGROUND

       Defendant’s argument on appeal focuses on the trial court’s sentencing discretion.

It suffices to say of the offenses of conviction that the jury found beyond a reasonable

doubt that defendant drove drunk while two children of his girlfriend were in the car.




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       Following his jury trial, defendant submitted a Romero motion inviting the trial

court to exercise its discretion under Penal Code section 1385 to dismiss his prior

strike—a 2008 conviction where defendant admitted being a felon in possession of a

firearm, with a gang enhancement (Pen. Code, §§ 12021, subd. (a)(1), 186.22, subd.

(b)(1)(a)). The motion detailed how the offense was nonviolent in that the gun in

question was found buried in the backyard of defendant’s home rather than found on his

person; how scant evidence linked defendant’s possession of the gun to the benefit of a

gang (the Project Watts Crips) in that the expert witness testified at the preliminary

hearing, in general terms, that if a gang member possessed a gun, then it was for the

benefit of the gang; how the current law regarding gang enhancement allegations under

Penal Code section 186.22 would not have permitted defendant’s 2008 conviction to rest

on such generic expert opinion testimony; and how defendant’s recent engagement to his

girlfriend and his commitment to substance abuse treatment should militate in favor of

striking the prior strike.

       The People filed an opposition, citing as reasons to reject defendant’s Romero

motion his lengthy criminal history; his admission of the strike offense, by which he

necessarily satisfied the offense elements of possessing the gun in question with the

specific intent to benefit a gang; the dangerous nature of the offense and its tendency to

show defendant’s refusal or inability to alter his alcohol habits—defendant had already

suffered two prior DUI convictions; and the similarity of the motion to a (far too

untimely) renewal of a Penal Code section 995 motion to dismiss.




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       At defendant’s sentencing hearing, in response to defense counsel’s question, the

trial court indicated that it had read and considered the entirety of defendant’s Romero

motion, as well as a social worker’s report containing mitigating factors that defense

counsel had submitted. The trial court also heard both defendant’s counsel and the

People orally expand on the same arguments made in the Romero motion and the

opposition to it, including the need for defendant to obtain professional treatment for

substance abuse, defendant’s support network from his fiancé and family, defendant’s

criminal history, and the dangers the present offense posed to other people. The trial

court then denied the Romero motion, commenting that it was not “appropriate” to grant

it. The trial court cited defendant’s lengthy criminal record; the court’s doubt regarding

the seriousness of defendant’s efforts to bring under control his problems with alcohol

and crime; and the dangers defendant posed to California drivers based on his alcohol-

related vehicular offenses. The trial court then sentenced defendant to state prison and

ordered that he should be considered for placement in the California Substance Abuse

Treatment Facility program.

                                      DISCUSSION

       A.     PRIOR STRIKE

       Defendant argues that the trial court focused exclusively on his prior criminal

history and based its decision to deny his Romero motion primarily (if not solely) on that

ground. Defendant contends this is shown by the trial court’s failure in its discussions

with defense counsel and the People to mention the nature and circumstances surrounding

his prior strike, as detailed in the Romero motion; the trial court only mentioned “once”


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the prior strike it was considering and did not mention the altered evidentiary standards

for the gang enhancement. Defendant also contends the trial court gave no (or far too

little) weight to the nature and circumstances surrounding his personal life, including the

new presence of a supportive fiancé and his attempts to get treatment. Defendant

concludes that these failures constitute an abuse of discretion. We disagree.

       In ruling upon the trial court’s decision to strike or not strike a prior strike

conviction, a reviewing court employs the controlling inquiry laid down in People v.

Williams (1998) 17 Cal.4th 148 (Williams), for it is Williams that provides necessary

guidance regarding “how [California] trial and appellate courts should undertake to rule

and review in this area.” (Id. at p. 152.) After reviewing the earlier Romero case, the

amorphous concept of the “furtherance of justice” that supplies the trial court with the

power to strike a prior, and the “Three Strikes” statutory scheme, Williams calibrated the

appropriate analysis in this way: “[T]he court in question must consider whether, in light

of the nature and circumstances of [defendant’s] 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.”

(Williams, at p. 161.)

       We review a trial court’s determination in this area deferentially, for abuse of

discretion. (Williams, supra, 17 Cal.4th at p. 162.) Because our review is deferential,

absent contrary evidence in the record, we presume the trial court to have correctly

applied Williams and properly exercised its discretion. (See People v. Carmony (2004)

33 Cal.4th 367, 378.) The Legislature plainly identified its intent to ensure longer prison


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sentences and greater punishment for those who commit felonies while suffering prior

strikes. (Pen. Code, § 667, subd. (b); Romero, supra, 13 Cal.4th at p. 528.) In light of

that legislative intent, only “extraordinary” circumstances can justify judicially

exempting from the law’s scheme an offender who commits a strike as part of a long and

continuous criminal record. (Carmony, at p. 378.)

       In this case, no evidence suggests the trial court failed to apply Williams, and thus

abused its discretion. The record reveals that the trial court considered defendant’s long

train of convictions—some of which involved alcohol—going all the way back to 1997;

and it discloses that the trial court considered the alcohol-related nature of the current

offense and its attendant dangers to defendant’s girlfriend, her children, and members of

the public. The record reveals that the trial court was aware of defendant’s mitigating life

circumstances, including his relationship with his fiancé and his challenges with alcohol;

it presents no affirmative contrary evidence showing that the court either failed to or

refused to consider those circumstances. In fact, the evidence shows the trial court did

consider those circumstances, but simply chose, as was within its province, to reject

defendant’s contention that he had changed or evolved his habits in light of them. What

is more, the trial court’s order that defendant be considered for state-sanctioned treatment

for his alcohol problems appears in the record.

       Finally, the record reveals that the trial court considered the nature and

circumstances of the prior strike by indicating that it had read defense counsel’s Romero

motion and the People’s opposition to it; it then heard both sides orally argue the motion

and opposition. Williams imposes upon the trial courts no legal obligation to mention the


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prior strike by name on the record before the court may be deemed to have properly

evaluated it. As to the substance of the contentions in the Romero motion regarding the

evolved evidentiary standards for gang enhancements, even if defendant’s strike may in

actuality have been nonviolent and impossible to prove at trial by current standards,

defendant nevertheless admitted the offense. Admitting an offense necessarily

establishes a factual basis for, and admits all elements of, that offense. (See also Pen.

Code, § 1192.5; People v. Chadd (1981) 28 Cal.3d 739, 748.)

       In sum, based on the record, the trial court properly concluded that defendant did

not fall outside the spirit of the Three Strikes law. No evidence shows the trial court

abused its discretion.

       B.      ABSTRACT OF JUDGMENT

       We note a clerical error in the abstract of judgment requiring correction. At the

bottom of the first page of the abstract, the box in section 7 “Additional indeterminate

term (see CR-292)” is checked, but defendant received only determinate sentences in this

case; this box should not be checked. Appellate courts have inherent power to correct

clerical errors contained in abstracts of judgment that do not accurately reflect the

judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) We shall direct the trial

court to correct this error.

                                      DISPOSITION

       The trial court is directed to correct the abstract of judgment to reflect that

defendant did not receive indeterminate sentences. We further direct the trial court to




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send a corrected abstract to the Department of Rehabilitation and Corrections. In all

other respects, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                       RAMIREZ
                                                                                        P. J.


We concur:


HOLLENHORST
                                 J.


CODRINGTON
                                 J.




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