Filed 9/15/14 P. v. Ortiz CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN


THE PEOPLE,                                                          B249226

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA401225)
         v.

GERARDO ORTIZ,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, David V.
Herriford, Judge. Affirmed as modified.
         Lenore De Vita, 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, Linda C. Johnson and
Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.


                                           ______________________
                                    INTRODUCTION


       Defendant Gerardo Ortiz appeals from the judgment entered following his
conviction by a jury of willfully inflicting corporal injury on a former cohabitant within
the meaning of Penal Code section 273.5, subdivision (a).1 On appeal, Ortiz contends the
trial court abused its discretion in denying his motion to dismiss his prior strike
conviction pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13
Cal.4th 497. We affirm.


                  FACTUAL AND PROCEDURAL BACKGROUND


       Monique Pinto was Ortiz’s former girlfriend and the mother of their three-year-old
daughter. On the afternoon of August 3, 2012 Pinto encountered Ortiz when she was
walking home. The two of them got into an argument, which escalated into a physical
altercation resulting in cuts and bruises to Pinto’s face, knee, and ribs. Pinto told police
that Ortiz had caused the injuries by repeatedly hitting her with a handgun. She also
reported that Ortiz had threatened to kill her before beating her with the gun.2
       The People charged Ortiz in an amended information with willfully inflicting
corporal injury on Pinto, a former cohabitant (§ 273.5, subd. (a)), making a criminal
threat (§ 422, subd. (a)), and assault with a firearm (§ 245, subd. (a)(2)). The information
specially alleged that Ortiz had used a handgun to commit the offenses (§ 12022.5,
subd. (a)) and had suffered one prior serious or violent felony conviction within the
meaning of section 667, subdivision (a)(1), and the three strikes law (§§ 667, subds. (b)-
(i), 1170.12).



1      Undesignated statutory references are to the Penal Code.
2      Pinto gave conflicting accounts of the altercation in her police interview, in her
preliminary hearing testimony, and in her trial testimony.


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       A jury convicted Ortiz of willfully inflicting corporal injury on a former
cohabitant and of simple assault as a lesser included offense of assault with a firearm, and
acquitted him of making a criminal threat. The jury found not true the firearm-use
allegation. In a bifurcated proceeding, the trial court found true the prior conviction
allegations.
       Prior to sentencing, counsel for Ortiz moved pursuant to Romero to dismiss
Ortiz’s prior strike conviction in 1996 for willfully inflicting corporal injury on a
cohabitant (not Pinto) and causing great bodily injury (§§ 273.5, 12022.7). Counsel for
Ortiz argued that the 1996 strike conviction was remote, Ortiz’s only convictions in the
ensuing 16 years were for misdemeanor offenses, and Pinto’s injuries were minor. The
prosecutor argued in response that Ortiz was on misdemeanor probation at the time of the
current offense and that his criminal record reflected a history of violence, particularly
against women.
       The probation officer’s report, which the trial court read and considered, stated
that Ortiz was 35 years old at the time of the current offense. His criminal activities
began in 1993 with a juvenile adjudication for receiving stolen property. As an adult,
apart from his 1996 strike conviction, Ortiz was convicted of the following misdemeanor
offenses: vandalism in 1996, driving on a suspended license in 2000, making a criminal
threat in 2001, possession of a controlled substance in 2007, giving false identification to
a police officer and driving without a valid license in 2005 and in 2006, driving on a
suspended license in 2008, disturbing the peace in 2008, driving under the influence in
2011, and domestic violence involving Pinto in 2011. Ortiz also had a number of
probation violations and was a documented gang member.
       In denying the Romero motion, the trial court considered counsel for Ortiz’s
arguments in the context of Ortiz’s entire criminal history. The court observed that,
although the 1996 strike conviction was relatively remote, Ortiz had engaged in a pattern
of criminal conduct since 1996, including violent offenses against women, and he had
performed poorly on probation. The court then sentenced Ortiz to an aggregate state
prison term of eight years consisting of the middle term of four years for violating


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section 273.5, subdivision (a), doubled under the three strikes law. The court stayed a
six-month term for simple assault pursuant to section 654.


                                       DISCUSSION


       Section 1385, subdivision (a), gives the court discretion to dismiss a prior
conviction, including a qualifying strike conviction, “in furtherance of justice.” (People
v. Superior Court (Romero), supra, 13 Cal.4th at p. 530; see People v. Clancey (2013) 56
Cal.4th 562, 582 [three strikes law does “not restrict the power of a trial court acting on
its own motion to dismiss a prior felony conviction allegation in the furtherance of
justice”]; In re Large (2007) 41 Cal.4th 538, 543 [“trial courts in cases charged under the
Three Strikes law may, in the exercise of their sound discretion, dismiss prior felony
conviction allegations in furtherance of justice under section 1385, subdivision (a)”].)
“[T]he sentence that is actually imposed under the Three Strikes law is frequently
dependent upon the trial court’s exercise of discretion in determining whether, in
furtherance of justice, to strike any of the serious or violent prior convictions that have
been charged by the prosecutor and, if so, how many prior convictions to strike.” (In re
Coley (2012) 55 Cal.4th 524, 559-560.) “[W]hen facing a motion to dismiss a strike
allegation, the trial court ‘must consider whether, in light of the nature and circumstances
of [the defendant’s] present felonies and prior serious and/or violent felony convictions,
and the particulars of [the defendant’s] 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. Vargas (2014) 59 Cal.4th 635, 641, quoting People
v. Williams (1998) 17 Cal.4th 148, 161.)
       “[A] trial court’s refusal or failure to dismiss or strike a prior conviction allegation
under section 1385 is subject to review for abuse of discretion.” (People v. Carmony
(2004) 33 Cal.4th 367, 375.) “‘[T]he three strikes law not only establishes a sentencing
norm, it carefully circumscribes the trial court’s power to depart from this norm and


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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.’ [Citation.]” (In re Large, supra, 41 Cal.4th at pp. 550-551.) “‘[I]t
is not enough to show that reasonable people might disagree about whether to strike one
or more’ prior conviction allegations. [Citation.]” (Carmony, supra, at p. 378.)
“‘[B]ecause the circumstances must be “extraordinary . . . by which a career criminal can
be deemed to fall outside the spirit of the very scheme within which he squarely falls
once he commits a strike as part of a long and continuous criminal record, the
continuation of which the law was meant to attack” [citation], the circumstances where
no reasonable people could disagree that the criminal falls outside the spirit of the three
strikes scheme must be even more extraordinary.’ [Citation.]” (People v. Vargas, supra,
59 Cal.4th at p. 641.)
       Ortiz argues that the trial court abused its discretion in denying his Romero motion
because of the remoteness of the 1996 strike conviction, the nonviolent nature of his
misdemeanor criminal history, and the evidence Pinto had initiated the physical contact
and had suffered only minor injuries in the altercation. The court examined Ortiz’s 1996
strike conviction along with his criminal history and the nature and circumstances of his
current offense. The court noted that while Ortiz’s prior strike conviction was relatively
remote and that his criminal history consisted of misdemeanor offenses, the record
nevertheless established Ortiz was a recidivist offender with a history of violence against
women, had violated probation, and had poor prospects for the future. Under these
circumstances, the trial court did not abuse its discretion in denying Ortiz’s motion to
dismiss his prior strike conviction, even though the conviction was 16 years old. (See
People v. Williams, supra, 17 Cal.4th at pp. 162-164 [trial court abused its discretion by
striking 13-year-old prior strike where there was little or nothing favorable in the
defendant’s background, record, character, or prospects]; People v. Pearson (2008) 165
Cal.App.4th 740, 749 [“argument that [prior] convictions are remote in time is without
merit where, as here, the defendant has led a continuous life of crime”]; People v. Strong
(2001) 87 Cal.App.4th 328, 338 [“the overwhelming majority of California appellate


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courts have reversed the dismissal of, or affirmed the refusal to dismiss, a strike of those
defendants with a long and continuous criminal career”]; People v. Gaston (1999) 74
Cal.App.4th 310, 320 [trial court abused its discretion in striking 17-year-old prior strike
in light of the defendant’s “unrelenting record of recidivism, even while on parole or
probation from previous felony convictions”]; People v. Barrera (1999) 70 Cal.App.4th
541, 554 [trial court did not abuse its discretion in refusing to strike 14-year-old prior
strike where “trial court here fully considered [the defendant’s] background, the nature of
his current offense, and the individualized considerations of his long-standing drug
addiction and the pattern and nature of his criminal history”].)
       Ortiz also cites an evidentiary ruling during the trial to support his argument that
the trial court abused its discretion in denying his Romero motion after trial. The trial
court ruled that Ortiz’s 1996 conviction was inadmissible under Evidence Code
sections 352 and 1109, subdivision (a)(1), because the conviction was “extremely remote
in time” and its admission “would be highly prejudicial.” On appeal Ortiz argues that the
“trial court’s comments during the hearing on the admissibility of the 1996 incident as
[Evidence Code] section 1109 evidence showed it considered the strike to be so remote as
to be highly prejudicial,” and that “there can be nothing more prejudicial than the trial
court’s subsequent use of that ‘extremely remote’ strike prior to double [Ortiz’s] prison
sentence.”
       The standards for the admissibility of a prior conviction under Evidence Code
sections 352 and 1109 and for striking a prior strike conviction under Romero for
purposes of sentencing, however, are markedly different. Under Evidence Code
section 352, the court considers whether the probative value of the evidence is
substantially outweighed by either an undue consumption or time or a substantial danger
of undue prejudice, confusion of the issue, or misleading the jury. Under Romero the
court considers the circumstances of the defendant’s prior convictions, the defendant’s
“background, character, and prospects,” and whether the defendant is outside the spirit of
the three strikes law. (People v. Vargas, supra, 59 Cal.4th at p. 641.) The concerns
about consumption of time, undue prejudice, confusing the issues, and misleading the


                                              6
jury, do not arise, or at least do not arise in the same way. Moreover, as the People
correctly argue, the applicable presumptions are different. Under Evidence Code section
1109, subdivision (e), evidence of prior incidents of domestic violence that, like Ortiz’s,
occurred “more than 10 years before the charged offense is inadmissible . . . unless the
court determines that the admission of this evidence is in the interests of justice.” (See
People v. Johnson (2010) 185 Cal.App.4th 520, 537, 539 [“while evidence of past
domestic violence is presumptively admissible under [Evidence Code section 1109,]
subdivision (a)(1),” “[s]ubdivision (e) establishes a presumption that conduct more than
10 years prior to the current offense is inadmissible”].) Under Romero, the “‘strong
presumption’” is that the court should consider the prior strike conviction and sentence
the defendant within the three strike “‘sentencing norm,’” unless it is in the furtherance of
justice not to do so. (In re Large, supra, 41 Cal.4th at p. 550; see People v. Carmony,
supra, 33 Cal.4th at p. 378.)
       Finally, although Ortiz does not raise the issue, we note that he is entitled to an
additional 18 days of presentence conduct credit. Ortiz was sentenced under the three
strikes law, but because Ortiz’s conviction was not for a violent felony listed in
section 667.5, his presentence custody credits are not limited under section 2933.1.
(People v. Philpot (2004) 122 Cal.App.4th 893, 908; accord, People v. Thomas (1999) 21
Cal.4th 1122, 1130.) Under section 4019, subdivision (f), “a term of four days will be
deemed to have been served for every two days spent in actual custody.” (See People v.
Rajanayagam (2012) 211 Cal.App.4th 42, 49, 53 [under section 4019, for crimes
committed on or after October 1, 2011, prisoners earn “conduct credit . . . at the rate of
two days for every two days spent in local presentence custody,” so that “‘if all days are
earned under this section, a term of four days will be deemed to have been served for
every two days spent in actual custody’”]; accord, People v. Garcia (2012) 209
Cal.App.4th 530, 540.) Ortiz spent 22 days in custody. Therefore, Ortiz was entitled to
22 days of conduct credit. The trial court gave him only four days. He is entitled to an
additional 18 days of conduct credit, for a total of 44 days of presentence custody credit.
We modify the judgment accordingly.


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                                    DISPOSITION


      The judgment is modified to provide 18 days of conduct credit, for a total of 44
days of presentence custody credit. The judgment is affirmed as modified. The trial
court is directed to prepare a modified abstract of judgment and forward a copy to the
Department of Corrections and Rehabilitation.



                                                SEGAL, J.*


We concur:



             PERLUSS, P. J.



             ZELON, J.




*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


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