Filed 7/31/14 P. v. Gray 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     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,                                       E058595

v.                                                                       (Super.Ct.No. INF1100632)

QUINTON ULESSESS GRAY,                                                   OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Graham Anderson

Cribbs, Judge. (Retired Judge of the Riverside Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified.

         Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and Eric A.

Swenson, Deputy Attorneys General, for Plaintiff and Respondent.



                                                             1
       A jury found defendant and appellant Quinton Ulessess Gray guilty of first degree

robbery (Pen. Code, §§ 211, 212.5, subd. (a); count 1)1 and assault with a deadly weapon

(§ 245, subd. (a)(1); count 3).2 The jury also found true that in the commission of counts

1 and 3, defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)). In a

bifurcated proceeding, the same jury found that defendant was legally sane when he

committed the offenses. In a subsequent bench trial, the trial court found true that

defendant had suffered eight prior prison terms (§ 667.5, subd. (b)), three prior serious

felony convictions (§ 667, subd. (a)), and three prior serious and violent felony strike

convictions (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)). After the trial court

denied defendant’s motion to dismiss his prior strike convictions, defendant was

sentenced to an aggregate determinate term of 23 years, plus a consecutive indeterminate

term of 29 years to life in state prison with credit for time served.

       On appeal, defendant contends: (1) the trial court abused its discretion in denying

his motion to strike prior remote convictions under People v. Superior Court (Romero)

(1996) 13 Cal.4th 497 (Romero); (2) the trial court erred in staying three of his prior

prison term enhancements, rather than striking them; (3) the trial court erred in imposing

a criminal conviction assessment fee pursuant to Government Code section 70373 in the

amount of $40 on each of the two convicted counts; and (4) he is entitled to an additional


       1   All future statutory references are to the Penal Code unless otherwise stated.

       2 The jury was unable to reach a verdict on count 2, residential burglary (§ 459),
and a mistrial was declared as to that count. The People later dismissed that charge.


                                              2
11 days of presentence custody credits. For the reasons explained below, we will affirm

the judgment with modifications.

                                             I

                              FACTUAL BACKGROUND

      On March 9, 2011, Lance Ybarra was sleeping in his home when he was awoken

by a knock at the front door. Ybarra ignored the knock and went to the bathroom. While

inside the bathroom, Ybarra heard a loud noise. Ybarra walked into his living room and

saw defendant standing inside. Ybarra told defendant to get out of his house. When

defendant refused to comply, Ybarra punched him. Defendant responded by hitting

Ybarra in the head several times with a rock the size of a grapefruit. Ybarra eventually

made his way to the back door and outside his residence, as defendant repeatedly struck

him on the head with the rock.

      Once outside, Ybarra flagged down a car and asked the occupants inside to call

911. The occupants noticed that Ybarra was covered in blood and that his skull was

visible through the lacerations on his scalp. As the occupants spoke with Ybarra, they all

saw defendant carrying a flat screen television out of Ybarra’s home and loading it into a

Toyota sedan. Ybarra asked the occupants to approach the vehicle and to take down the

car’s license plate number. As they neared the vehicle, defendant made threatening

gestures and remarks and scared the occupants off.




                                            3
       Paramedics and police eventually arrived. Ybarra was taken to a hospital. As a

result of the assault, Ybarra suffered three scars on his head and painful headaches that

lasted for several months.

       Sergeant Gustavo Paiz heard a police broadcast of a home invasion robbery and

the description of the suspects. Approximately 20 to 30 minutes later, Sergeant Paiz

located the vehicle and conducted a high-risk traffic stop. Defendant was the driver of

the vehicle and a male was in the passenger seat. After handcuffing defendant and his

passenger, Sergeant Paiz located two remote controls with blood on them. Sergeant Paiz

did not find the television in the car. Sergeant Paiz also noticed blood spots on

defendant’s pants. Defendant was arrested, and soon thereafter, Ybarra identified

defendant during a curbside lineup.

       Ybarra’s blood was splattered both inside and outside of his residence. Police

discovered a rock with possible blood on it in the dining area of Ybarra’s house; a shoe

print on the front exterior door; and a shoe impression in the dirt by the door. The

shoeprint impressions matched the tread pattern on the soles of the boots defendant was

wearing when he was arrested. Later, Ybarra found some glasses and a watch that did

not belong to him. Ybarra gave the items to the police. DNA samples taken from these

items matched the DNA samples obtained from defendant.




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                                               II

                                        DISCUSSION

       A.     Motion to Strike Priors

       Defendant contends the trial court abused its discretion in denying his Romero

motion to strike his prior remote convictions. We disagree.

       Section 1385 gives the trial court authority to order an action dismissed, “in

furtherance of justice.” (§ 1385, subd. (a).) Under this authority, the court may vacate a

prior strike conviction for purposes of sentencing under the Three Strikes law, “subject,

however, to strict compliance with the provisions of section 1385.” (Romero, supra, 13

Cal.4th at p. 504.) The decision to strike a prior conviction is reviewed under an abuse of

discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).)

       Dismissal of a strike is a departure from the sentencing norm. As such, in

reviewing a Romero decision, we will not reverse for abuse of discretion unless the

defendant shows the decision was “so irrational or arbitrary that no reasonable person

could agree with it.” (Carmony, supra, 33 Cal.4th at p. 377.) Reversal is justified where

the trial court was unaware of its discretion to strike a prior strike or refused to do so, at

least in part, for impermissible reasons. (Id. at p. 378.)

       In ruling on a Romero motion, 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



                                               5
should be treated as though he had not previously been convicted of one or more serious

and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)

          Here, the trial court considered the probation report, testimony and reports from

the psychologists and arguments of counsel, the intent and spirit of the law, defendant’s

mental health issues, and defendant’s criminality, including the remoteness of the priors

and defendant’s failure to lead a crime-free life. Despite defendant’s mental health

problems and the remoteness of the priors, the court declined to exercise its discretion to

strike any prior strikes. The record supports the trial court’s conclusion.

          Defendant’s criminal history dates back over 35 years. He began a life of crime in

1976 as a juvenile when he committed a robbery. A few years later, in 1978, he was

convicted of assault and battery. In 1980, he sustained two convictions for second degree

burglary; in 1981, a second conviction for robbery; and in 1985, a third conviction for

burglary. Thereafter, in 1988, defendant was convicted of discharging a firearm at an

inhabited dwelling or an occupied motor vehicle and sentenced to state prison for five

years. In 1991, he sustained a conviction for possessing a controlled substance; and in

1992, a conviction for vehicle theft. In 1992, he was also convicted of transportation or

sale of a controlled substance and sentenced to six years in state prison. In 1998, he was

convicted of first degree burglary (his fourth burglary conviction) and sentenced to eight

years in state prison. Finally, in 2004, defendant sustained a second conviction for

transportation or sale of a controlled substance and was sentenced to six years in state

prison.



                                               6
       Defendant accumulated nine felony and several misdemeanor convictions between

1976 and 2004. Eight prison terms and countless years in jails did not persuade him to

change his criminal ways. Although he has repeatedly been granted probation and

parole, his performance was dismal. He was on parole and/or on probation when he

committed many of the offenses in this case. His 35-year criminal record, in short, made

him “the kind of revolving-door career criminal for whom the Three Strikes law was

devised.” (People v. Gaston (1999) 74 Cal.App.4th 310, 320 (Gaston).) The denial of

his Romero motion was not an abuse of discretion. The court was aware of its discretion,

properly considered the relevant facts and factors, and there is nothing on this record that

removes defendant from the three strikes scheme.

       While conceding he has not led a “blameless” life since his 1981 and 1988

convictions, defendant asserts the court failed to adequately consider his mental

illnesses and possible brain damage and should have struck the remote convictions in

light of his long history of serious mental health issues. Courts have routinely

rejected arguments where the defendant did not live a crime-free life between his or

her strike prior and current crimes. (E.g., Gaston, supra, 74 Cal.App.4th at p. 321

[abuse of discretion to strike 17-year-old prior where the defendant’s “continuous

crime spree . . . substantially spanned his entire adult life”]; People v. Barrera (1999)

70 Cal.App.4th 541, 554-555 [refusal to dismiss 14-year-old strike justified where the

defendant’s criminal activity “continued unabated” upon his release from prison,

“despite . . . the drug rehabilitation efforts” he claimed to have made]; People v.



                                              7
Humphrey (1997) 58 Cal.App.4th 809, 813 (Humphrey) [reversing the dismissal of a 20-

year-old prior].) “In determining whether a prior conviction is remote, the trial court

should not simply consult the Gregorian calendar with blinders on.” (Humphrey, at

p. 813.) A remote prior may properly be stricken where the record establishes “a crime-

free cleansing period of rehabilitation after a defendant has had the opportunity to reflect

upon the error of his or her ways.” (Ibid.) That was not the case here. Here, as in the

above cases, defendant’s 35-year criminal record renders the remoteness of his prior

strike “not significant.” (Gaston, at p. 321.)

       Furthermore, we disagree with defendant’s characterization of the record that the

trial court “gave insufficient consideration” to defendant’s mental illnesses. As the

record demonstrates, the trial court was well aware of defendant’s mental health issues.

The trial court earlier had presided over the sanity phase of the trial and, as such, had

before it the testimony of psychologists, Drs. Robert Suiter and Michael Leitman. The

court also had psychological reports filed in response to defendant’s competency

concerns. The jury found defendant was legally sane when he committed the instant

offenses. It therefore necessarily found that defendant’s mental disease or defect did not

render him “incapable of knowing or understanding the nature and quality of (his/her)

act” or “incapable of knowing or understanding that his act was morally or legally

wrong.” The psychologists also found that while defendant suffered from a

schizophrenic condition with evidence of antisocial behavior and poly-substance abuse,

defendant was voluntarily taking his medications and as a result of the medications,



                                                 8
defendant was capable of understanding the nature and objective of the proceedings

against him. Moreover, in emphasizing the mental health issues that are part of his

background, defendant either ignores or minimizes other aspects relevant to the Romero

motion that were unfavorable to him. The current offenses involved great violence,

namely, defendant bashing the victim’s skull repeatedly with a rock, and defendant’s

history of serious and violent convictions, incarcerations, and the commission of new

offenses within short periods of time after being released.

       Defendant does not cite any authority—nor are we aware of any—that suggests

that a court should grant a Romero motion where the defendant makes a showing that

mental illness played some role in his criminal history. In fact, in People v. Carrasco

(2008) 163 Cal.App.4th 978 (Carrasco), where the defendant’s Romero motion was

based on the fact that he had “‘significant mental health history and issues’” and was

“suffering from the effects of long-term drug use” (id. at p. 992), the Court of Appeal

rejected the defendant’s claim that “the [trial] court erroneously found it lacked authority

to consider [his] mental condition as a factor.” (Id. at p. 993.) In Carrasco, in denying

the motion, the trial court commented that case law did not authorize consideration of the

defendant’s “‘mental state, his mental condition, the reasons why he wanted to do these

things.’” (Id. at p. 993.) The appellate court explained, “The record reflects the trial

court considered a wide range of appropriate factors in passing sentence, particularly the

nature and circumstances of appellant’s present and past convictions.” (Ibid.) Since the

trial court had expressly considered the defendant’s “background and character in ruling



                                              9
on the motion,” its remarks about his mental condition amounted to “an

acknowledgement that the court could not give undue weight to an inherently speculative

argument that defendant’s mental state ‘made him do it.’” (Id. at pp. 993-994.)

       In the present case, the trial court made only a brief reference to the evidence of

defendant’s mental illness. Specifically, the court stated: “I don’t know how else to say

it—as bad as it can be in the context of what his behavior has been like. However, that’s

not to say that the Court is not mindful of the [insanity] defense that was presented in this

case, and the Court having expressed concern regarding [defendant] . . . .” However, as

noted previously, the record does not demonstrate the trial court failed to consider that

evidence. “We view the totality of the trial court’s statement of reasons, not just one

snippet.” (Carrasco, supra, 163 Cal.App.4th at p. 993.) As in Carrasco, the record

reflects the trial court believed that the totality of the circumstances did not justify

dismissing any or all of defendant’s strikes. “‘[W]here the record demonstrates that the

trial court 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, even if we might have

ruled differently in the first instance’ [citation].” (Carmony, supra, 33 Cal.4th at p. 378.)

       Given defendant’s criminal history, his inability to avoid criminal activity for a

substantial period of time, and his violent behavior, the trial court was well within its

discretion to find that defendant fell within the spirit of the Three Strikes law despite his

mental health history. Thus, we conclude the trial court did not abuse its discretion in

declining to strike some or all of defendant’s prior strike convictions.



                                              10
       B.     Sentence on the Three Prior Prison Terms

       Defendant also claims the trial court erred in staying, rather than striking, three of

his eight prison prior sentence enhancements (§ 667.5, subd. (b)). Defendant argues the

trial court properly recognized that it could not impose both a one-year prison prior

sentence enhancement (§ 667.5, subd. (b)) and a five-year serious felony sentence

enhancement (§ 667, subd. (a)(1)) based on the same prior convictions, but that the trial

court erred in staying, rather than striking, the prison prior enhancements. The People

correctly concede the error. We agree the trial court was required to strike, rather than

stay, the sentence enhancement on the three prior prison term enhancements. (See

People v. Jones (1993) 5 Cal.4th 1142, 1153 (Jones).)

       In Jones, the defendant was sentenced to five years for a section 667,

subdivision (a) enhancement, and to a one-year section 667.5, subdivision (b)

enhancement, based on a prior conviction for a single serious felony and the resulting

prior prison term for that felony. (Jones, supra, 5 Cal.4th at p. 1145.) The Jones court

held that a single prior conviction cannot be the basis of both a prior serious felony

enhancement and a prior prison term enhancement. (Id. at p. 1150.) The court concluded

that when multiple statutory enhancement provisions are available for the same prior

offense, one of which is a section 667 enhancement, the greatest enhancement—but only

that one—will apply. (Jones, at p. 1150.) Because the trial court in Jones had used the

same offense to impose a five-year term (because the underlying offense was a serious




                                             11
felony) and a one-year term (because the defendant was imprisoned for the prior serious

felony), Jones held the one-year term should be stricken. (Jones, at pp. 1150-1153.)

       Likewise, the trial court here imposed both a serious felony prior enhancement

under section 667, subdivision (a)(1), and a prison prior enhancement under section

667.5, subdivision (b), based on the same three qualifying convictions (a 1998 residential

burglary (second prison prior offense); a 1988 shooting at an inhabited dwelling (fifth

prison prior offense); and a 1981 robbery (seventh prison prior offense)). Rather than

remanding the matter as the People suggest, we will strike the one-year second, fifth, and

seventh prior prison term enhancements.

       C.     Criminal Conviction Assessment Fee

       Defendant further argues the Government Code section 70373 criminal conviction

assessment fee should be reduced to $30 per count. The People agree.

       Government Code section 70373, subdivision (a)(1), states: “To ensure and

maintain adequate funding for court facilities, an assessment shall be imposed on every

conviction for a criminal offense . . . . The assessment shall be imposed in the amount of

thirty dollars ($30) for each misdemeanor or felony and in the amount of thirty-five

dollars ($35) for each infraction.” The statute operates upon the event of a defendant’s

conviction. (People v. Castillo (2010) 182 Cal.App.4th 1410, 1414; People v. Fleury

(2010) 182 Cal.App.4th 1486, 1492.)

       In the present matter, at the April 19, 2013 sentencing hearing, the trial court

mistakenly imposed a Government Code section 70373 fee in the amount of $40 on each



                                             12
of the convicted counts or $80. The clerk’s minute order of the sentencing hearing also

erroneously shows that defendant was ordered to pay a criminal conviction assessment

fee pursuant to Government Code section 70373 in the amount of “$80 [$30 per

convicted charge].” The same error appears in the abstract of judgment.

       Accordingly, the Government Code section 70373 criminal conviction assessment

fee should be reduced to $30 per count, or $60.

       D.     Presentence Custody Credits

       Lastly, defendant contends the trial court erroneously calculated the amount of his

custody credits. He argues that he is entitled to a total of 888 days, an additional 11 days

over the 877 days he was awarded. The People agree defendant is entitled to an

additional 11 days of presentence custody credits.

       Credits for presentence custody are calculated from the day of arrest through the

day of sentencing. (People v. Bravo (1990) 219 Cal.App.3d 729, 735.) Defendant was

taken into custody on March 9, 2011, and was sentenced on April 19, 2013. Defendant

therefore spent 773 days in custody before he was sentenced, not 763 days as noted by

the trial court. Conduct credit is calculated under section 2933.1. Section 2933.1,

subdivision (a), provides, “(a) Notwithstanding any other law, any person who is

convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no

more than 15 percent of worktime credit, as defined in Section 2933.” Robbery is a

violent felony offense listed in section 667.5, subdivision (c)(9). Because defendant

served 773 actual days in custody, the correct amount of good conduct credits under the



                                             13
15 percent limitation is 115 days. Accordingly, defendant is entitled to a total of 888

days (773 plus 115) in presentence custody credits.

       Furthermore, although not raised by either party, we note that the clerk’s minute

order of the April 19, 2013 sentencing hearing and the abstract of judgment erroneously

note that defendant was sentenced to an indeterminate term of 25 years to life. At the

time of oral pronouncement, the trial court sentenced defendant to a determinate term of

23 years and a total indeterminate term of 29 years to life. When there is a discrepancy

between the oral pronouncement of a sentence and the minute order or the abstract of

judgment, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181,

185.) In such circumstances, appellate courts may order correction of the clerk’s minute

order and abstracts of judgment that do not accurately reflect the oral judgments of

sentencing courts. (Ibid.) Therefore, we order the clerk’s minute order of the sentencing

hearing and the abstract of judgment be corrected so as to reflect the trial court’s oral

pronouncement of judgment.

                                             III

                                       DISPOSITION

       The judgment is modified to strike the one-year second, fifth, and seventh prior

prison term enhancements. The judgment is also modified to reflect a criminal

conviction assessment fee pursuant to Government Code section 70373 in the amount of

$30 per convicted count, or $60. The judgment is further modified to reflect 773 actual

days in presentence custody, plus 115 days of conduct credit attributable to the



                                             14
presentence custody, for a total of 888 days in presentence custody credits. The clerk of

the superior court is directed to prepare an amended abstract of judgment and minute

order of the April 19, 2013 sentencing hearing to reflect defendant’s total indeterminate

sentence as 29 years to life as well as the modifications noted above and to forward a

certified copy of the amended abstract of judgment to the Department of Corrections and

Rehabilitation. In all other respects, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                   RAMIREZ
                                                                                         P. J.
We concur:



RICHLI
                          J.



MILLER
                           J




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