Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F02106
CANTIL-SAKAUYE, J.
Defendant Raymond Barreno was found guilty by a jury of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)) and admitted a prior strike conviction. (§ 667, subds. (b)-(i).) He was sentenced to state prison for a term of two years eight months, consisting of a low term doubled pursuant to the three strikes law.
Hereafter, undesignated statutory references are to the Penal Code.
Defendant appeals, contending the trial court abused its discretion by denying his motion to strike his prior strike conviction and erred by retroactively applying Government Code section 70373 to impose a court facilities assessment. We shall affirm the judgment and order correction of an error on the abstract of judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2008, an altercation erupted between defendant’s girlfriend and his wife. Defendant’s girlfriend and her children assaulted defendant’s wife with a car and other objects. Defendant attempted to break up the altercation and, at some point he grabbed a shotgun from the trunk of his car and told everyone to get away. He then threw the shotgun on the ground. Defendant’s wife obtained the shotgun and shot at the tires of the girlfriend’s car but missed.
Defendant had a 1993 conviction for voluntary manslaughter. (§ 192.) According to the probation report in the current offense, the prior conviction stemmed from an incident in which defendant intervened in an altercation between two people, during which he chased one of the individuals down a street and stabbed him, resulting in that individual’s death. Defendant was sentenced to seven years in state prison for the prior offense, was returned to prison once on a parole violation, and was discharged from parole in December 1999. Defendant had no subsequent convictions, but he had prior misdemeanor convictions in 1989 for battery (§ 242) and brandishing a weapon during a fight. (§ 417.)
At the time of his sentencing in the present matter, defendant was 38 years old and had three children. Numerous letters were submitted on his behalf, attesting to the fact that he was a good father who worked hard to take care of his family, as well as being a father figure to several nieces and nephews. Defendant’s wife and one of his nephews made statements at his sentencing hearing that were consistent with this portrayal of his character.
At the sentencing hearing, defendant’s trial attorney made a motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), asking the trial court to strike defendant’s prior 1993 strike conviction. The attorney pointed to the remoteness in time of the prior conviction, the fact that defendant had not committed any crimes since then and had instead served as a role model to others, and the “differen[ce] in character” of his current crime, in which he was attempting to protect people.
The trial court stated it was leaning toward denying the Romero motion but was agreeable to continuing the matter if defendant wished to present additional information about the circumstances of his prior strike and his parole violation. The court noted that additional information could also prove to be detrimental to defendant. The defense attorney initially requested additional time but withdrew the request later in the hearing, after the trial court noted defendant’s prior strike was “among the most serious felony priors that one can have” and that defendant might not want the court “to see a whole lot more information.”
The trial court denied defendant’s motion to strike his prior strike conviction, finding defendant did not “fall[] outside the provisions of the strike law.” The court denied probation and imposed a state prison sentence of 32 months (a low term of 16 months, doubled based on defendant’s strike). The court imposed various fines and fees, including a $30 court facilities assessment pursuant to Government Code section 70373.
DISCUSSION
I.
Defendant contends the trial court abused its discretion when it denied his motion to strike his prior strike conviction. We disagree.
“‘[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.”’” (People v. Carmony (2004) 33 Cal.4th 367, 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, ... 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.” (People v. Williams (1998) 17 Cal.4th 148, 161.) “[P]reponderant weight must be accorded to factors intrinsic to the scheme, such as the nature and circumstances of the defendant’s present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects.” (Ibid.) The circumstances under which a defendant with strike priors may be found to fall outside the spirit of the three strikes law must be extraordinary. (People v. Philpot (2004) 122 Cal.App.4th 893, 905.)
The trial court’s determination of whether to dismiss a strike is subject to the deferential standard of abuse of discretion. (People v. Williams, supra, 17 Cal.4th at p. 162.) “‘[A] trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not “aware of its discretion” to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation].’ [Citations.] Discretion is also abused when the trial court’s decision to strike or not to strike a prior is not in conformity with the ‘spirit’ of the law.” (People v. Philpot, supra, 122 Cal.App.4th at p. 905.)
It is defendant’s burden to show that the trial court abused its discretion by failing to strike a prior conviction. (People v. Carmony, supra, 33 Cal.4th at pp. 374, 376-377.) “[A]n appellant who seeks reversal must demonstrate that the trial court’s decision was irrational or arbitrary.... Where 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.” (People v. Myers (1999) 69 Cal.App.4th 305, 309-310, (Myers).)
In Myers, supra, 69 Cal.App.4th 305, the appellate court upheld the denial of a Romero motion under circumstances similar to those in the present matter. In that case, the defendant was convicted of being a felon in possession of a firearm after two guns were found under his bed during a search of his home. He had three prior robbery convictions that occurred on one occasion 14 years prior to his current offense. The trial court denied the defendant’s Romero motion because the defendant’s prior convictions were violent felonies with the potential for great violence and the current offense “involved possession of a gun and the possibility of violence.” (Myers, supra, at p. 308.) The appellate court concluded this ruling did not evince an abuse of discretion. (Id. at p. 310.)
As in Myers, defendant’s current offense had the potential for violence: he had a loaded shotgun in the trunk of his car, which he removed and displayed, with children present, during an already heated altercation between his wife and his girlfriend. Defendant’s prior conviction for manslaughter reportedly occurred under similar circumstances--he was attempting to break up a fight and ended up stabbing one of the participants. In another previous offense, defendant brandished a knife during a fight. Thus, defendant’s current offense falls into a pattern of displaying weapons during physical altercations, thereby elevating the potential for serious injury during these incidents.
Defendant argues that the remoteness in time of his prior strike conviction, his conduct since being released from parole, and “the minor and non-aggravated nature of the current offense” support dismissal of his prior strike. Regardless of whether these factors might support a contrary ruling, the record does not evince an abuse of discretion on the part of the trial court in denying defendant’s Romero motion. While it is true that “a prior conviction may be stricken if it is remote in time, ” “the trial court should not simply consult the Gregorian calendar with blinders on.” (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.) And although (as noted by defendant) the court placed particular weight on the seriousness of defendant’s prior conviction, there is nothing in the record to suggest it did not consider all of the information before it regarding defendant when making its ruling.
In sum, we detect no abuse of discretion on the part of the trial court in finding that defendant did not fall outside the spirit of the three strikes law and refusing to strike his prior strike conviction.
II.
Defendant next claims it was improper for the trial court to impose a court facilities assessment pursuant to Government Code section 70373 because he committed his offense prior to the enactment of that statute. Again, he is mistaken.
Government Code section 70373, which imposes a court facilities assessment on all criminal and traffic convictions, became effective on January 1, 2009 (Stats. 2008, ch. 311, § 6.5), and provides in relevant part: “To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463 of the Penal Code, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. 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.” (Gov. Code, § 70373, subd. (a)(1).)
Defendant does not contend that imposition of the assessment in Government Code section 70373 constituted a violation of the constitutional proscription against ex post facto application of laws. This court has rejected this argument. (People v. Fleury (2010) 182 Cal.App.4th 1486.)
Instead, defendant urges that retroactive application of Government Code section 70373 is prohibited under the general rule that new statutes are “‘presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise.’” (People v. Alford (2007) 42 Cal.4th 749, 753 (Alford), citing People v. Hayes (1989) 49 Cal.3d 1260, 1274.) This argument, too, must be rejected.
In Alford, the Supreme Court analyzed section 1465.8--which imposes a court security fee--under the general rule regarding retroactivity (in addition to subjecting the statute to constitutional scrutiny) and concluded that the legislative history confirmed an intent to apply the statute’s provisions to all criminal convictions after its effective date. (Alford, supra, 42 Cal.4th at pp. 754-755.)
Section 1465.8, subdivision (a)(1), provides: “To ensure and maintain adequate funding for court security, a fee of thirty dollars ($30) shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code.”
In People v. Castillo (2010) 182 Cal.App.4th 1410, 1414, this court relied on Alford in rejecting the general rule regarding prospective application of a statute as applied to Government Code section 70373. Noting the nearly identical language in the two statutes, we reasoned: “The Legislature’s decision to word section 70373 like the court security fee statute, after the latter statute had been interpreted by Alford to apply to convictions occurring after that statute’s effective date, shows that the Legislature intended the new assessment to apply to convictions occurring after the new statute’s effective date.” (People v. Castillo, supra, 182 Cal.App.4th at p. 1414.)
Accordingly, we reject this claim as well.
III.
Our review of the record discloses that a box on the abstract of judgment is marked that designates defendant’s sentence to be a middle term, whereas a low term sentence of 16 months (which was doubled based on his prior strike conviction) was imposed by the trial court. We shall direct correction of this error.
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the abstract of judgment to reflect that the sentence imposed was a low term.
The recent amendments to section 4019 do not operate to modify defendant’s entitlement to presentence custody credits, as he has a prior conviction for a serious or violent felony. (§ 4019, former subds. (b)(2) & (c)(2) as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50, § 2933, subd. (e)(3) as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010.)
We concur: NICHOLSON, Acting P. J., RAYE, J.