P. v. Jake

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Filed 11/18/03 P. v. Jake CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
RONNIE JAKE,
Defendant and Appellant.
E032592
(Super.Ct.No. FSB032733)
OPINION
APPEAL from the Superior Court of San Bernardino County. Roberta McPeters,
Judge. Affirmed.
Nancy Olsen, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney
General, Gary W. Schons, Senior Assistant Attorney General, Gil P. Gonzalez,
Supervising Deputy Attorney General, and Stacy A. Tyler, Deputy Attorney General, for
Plaintiff and Respondent.

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Following a bifurcated trial, a jury found defendant guilty of second degree
robbery. (Pen. Code, § 211.)1 The trial court thereafter found true that defendant had
suffered three prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d));
three prior serious felony convictions (§ 667, subd. (a)(1)); one prior violent felony
prison term (§ 667.5, subd. (a)); and three prior felony prison terms (§ 667.5, subd. (b)).
As a result, defendant was sentenced to a total term of 46 years to life in state prison: 25
years to life on the robbery conviction pursuant to the three strikes law; three years (one
year each) for the three prior felony prison terms (§ 667.5, subd. (b)); 15 years (five years
each) for the three prior serious felony convictions (§ 667, subd. (a)(1)); and three years
for the prior violent felony prison term (§ 667.5, subd. (a)). On appeal, defendant
contends (1) the case must either be remanded for resentencing or his sentence must be
reduced by a total of 13 years for various sentencing errors; and (2) the trial court abused
its discretion in denying his motion to strike his prior strike convictions. We reject these
contentions and affirm the judgment.
I
FACTUAL BACKGROUND
On November 27, 2001, defendant approached the victim and stated that he liked
the victim’s watch and that he was going to take the watch. After the victim objected,
defendant began swinging at the victim, and the victim fought back. During the fight,
two other men jumped on the victim and wrestled him to the ground. Defendant
1 All future statutory references are to the Penal Code unless otherwise stated.

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eventually took the watch. The victim called the police, and the police caught defendant
within half an hour. The watch was in defendant’s shoe.
II
DISCUSSION
A. Alleged Sentencing Errors
The amended information alleged that defendant had suffered five prior
convictions: (1) first degree burglary (§ 459) (case No. A567064) in 1985; (2) robbery
(§ 211) (case No. A570498) in 1986; (3) possession of a controlled substance (Health &
Saf. Code, § 11350, subd. (a)) (case No. A570517) in 1986; (4) soliciting a minor to sell
narcotics (Health & Saf. Code, § 11353) (case No. A576533) in 1988; and (5) grand theft
(§ 487, subd. (c)) (case No. FSB12455) in 1996. Based on those five prior convictions,
the amended information also alleged that defendant had suffered three prior strike
convictions (robbery, burglary, and solicitation) (§§ 667, subds. (b)-(i), 1170.12, subds.
(a)-(d)); three prior serious felony convictions (robbery, burglary, and solicitation)
(§ 667, subd. (a)(1)); one prior violent felony prison term (§ 667.5, subd. (a)) based on
the robbery conviction; and three prior felony prison terms (§ 667.5, subd. (b)) based on
the possession, solicitation, and grand theft convictions. Essentially, the amended
information alleged that defendant had suffered five prior convictions; three prior strike
convictions; and seven additional special enhancements stemming from the five prior
convictions.

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At the bifurcated court trial on the priors, the trial court found each and every
alleged prior conviction and related enhancement to be true. The court referred to four of
the prior convictions listed in the information, case Nos. A570498, A570517, A576533,
and FSB12455, by their number, and referred to the remaining prior, case No. 1567064,
by the particular crime, burglary. The court and the prosecutor also referred to the
specific Penal Code sections relating to the seven special enhancements: sections 667,
subdivision (a)(1); 667.5, subdivision (a); and 667.5, subdivision (b). Nonetheless,
because there were several priors and numerous enhancements, the prosecutor asked the
court to restate and clarify its true findings on the record, which it did. The minute order
of this proceeding individually lists all seven enhancement allegations, apart from the
strikes, at the top of the page, under the heading “CHARGES[.]” First, it lists the three
allegations under section 667.5, subdivision (b), then the three allegations under section
667, subdivision (a)(1), and then the one allegation under section 667.5, subdivision (a).
However, in recording the court’s true findings on the seven enhancement allegations, the
minute order refers to them as “prior(s)” one through seven.
At the sentencing hearing, before the trial court sentenced defendant, it denied
defendant’s motion to strike his prior strike convictions. In the People’s opposition to
defendant’s motion to strike, the prosecutor restated the court’s true findings of three
prior serious felony convictions under section 667, subdivision (a)(1), three prior felony
prison terms under section 667.5, subdivision (b), and one prior violent felony prison

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term under section 667.5, subdivision (a).2 The prosecutor also noted that the sentence
calculation for these true findings, plus that for the current robbery conviction (which
was enhanced pursuant to the three strikes law), was 46 years to life in state prison.
The trial court ultimately sentenced defendant to 46 years to life in state prison.
The court specifically stated: “On Count 1, second degree robbery, in violation of Penal
Code Section 211, pursuant to Penal Code Section 667 . . . [¶] . . . [a]nd Penal Cold [sic]
Section 1170.12[, subdivision] (c)(2)(a). [¶] . . . [25] years to life. [¶] Consecutive to the
above, with the enhancement of a serious felony conviction in case number A570498,
pursuant to [section] 667[, subdivision] (a)(1), the allegation was found true, five years.
[¶] Also consecutive to the above in case A570498, pursuant to [section]
667[, subdivision] (a)(1), the allegation was true, five years. [¶] And consecutive to the
above, with the enhancement of a prior prison term in FSB 12455, pursuant to [section]
667.5[, subdivision] (b), one year. [¶] Consecutive to the above with the enhancement of
a prior prison term in case number A576533, pursuant to [section] 667.5[, subdivision]
(b) of the People [sic] Code, one year. [¶] Consecutive to the above with the
enhancement of a prior prison term in case number A570517, pursuant to [section]
667.5[, subdivision] (b) of the Penal Code, one year. [¶] And for the prior conviction in
case number A565567, pursuant to [section] 667[, subdivision] (a)(1) of the Penal Code,
five years. [¶] And further prior conviction pursuant to [section] 667. -- or [section]
2 The prosecutor also pointed out that the probation report neglected to list one of
the prior serious felonies and the prior violent felony prison term.

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667[, subdivision] (a), three years. For a total committed to state prison of [46] years to
life with credit for time served . . . .” (Italics added.)
The minute order of that proceeding again lists the seven enhancements, apart
from the strikes, at the top of the page under the heading “CHARGES[.]” And again, it
lists the three section 667.5, subdivision (b) enhancements first, then the three section
667, subdivision (a)(1) enhancements, and lastly the one section 667.5, subdivision (a)
enhancement. The minute order further again refers to the seven enhancements as
“prior[s]” one through seven.
Defendant contends that (1) the trial court improperly imposed two identical five-
year sentences under section 667, subdivision (a)(1) for the same offense; (2) the trial
court incorrectly imposed one five-year sentence under section 667, subdivision (a)(1) for
a prior that was not alleged in the information and which was not proven at the court trial
on the priors; and (3) it is impossible to determine from the record which Penal Code
section and which prior led to the three-year sentence. He therefore claims this court
must either remand the matter for resentencing or his sentence must be reduced by a total
of 13 years.
“When we view the whole record in the light most favorable to the judgment (see,
e.g., People v. Memro (1985) 38 Cal.3d 658, 695), as opposed to certain of the trial
court’s contemporaneous remarks” (People v. Bravot (1986) 183 Cal.App.3d 93, 95), we
conclude defendant’s contentions are without merit. Since the special allegations in this
case were complicated and defendant had numerous prior convictions, including the sale

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of marijuana conviction (case No. A565567), which was mentioned in the People’s
opposition to defendant’s motion to strike his prior convictions, it is not surprising that,
in pronouncing the sentence, the trial court confused case numbers and a code section.
Essentially, the court simply misspoke when it cited the wrong case numbers and a Penal
Code section at the sentencing hearing.
However, as the People point out, no such confusion lies in the rest of the record.
The court found all of the prior convictions and special allegations as alleged in the
amended information true and sentenced defendant accordingly. The amended
information alleged five priors, three strikes, and seven special enhancements. The seven
enhancements were three prior prison terms (§ 667.5, subd. (b)) in case Nos. A570517,
A576533, and FSB12455, which carried a term of one year each; three prior serious
felony convictions (§ 667, subd. (a)(1)) in case Nos. A567064, A570498, and A576533,
which carried a term of five years each; and one prior violent felony prison term (§ 667.5,
subd. (a)) in case No. A570498, which carried a term of three years. At the bifurcated
trial on the priors, the court found every allegation in the information true. In doing so,
the court referred to each of the five priors in the information by case number or crime,
and both the court and the prosecutor referred to each of the Penal Code sections cited in
the amended information. The minute order of the trial court reflects seven true findings,
apart from the strikes, and the same Penal Code sections cited in the amended
information. A sentence, including all of the allegations in the amended information,
would be 46 years to life in state prison. (See §§ 667, subds. (a)(1), (e), 667.5, subds. (a),

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(b), 1170.12, subd. (c)(2)(A).) After declining to strike any of defendant’s prior strike
convictions, the trial court sentenced defendant to a total term of 46 years to life in state
prison. Both the sentencing minute order and the abstract of judgment indicate the same
number of enhancements and the same Penal Code sections as the amended information.
Accordingly, because the basis for the trial court’s sentence is discernible from the
record, and the sentence calculation is accurate, there is no need to remand the matter for
resentencing.
B. Motion to Strike Prior Convictions
Defendant next claims the trial court abused its discretion in declining to strike
one or more of his prior strike convictions pursuant to section 1385.3 (See People v.
Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).) We disagree.
Rulings on Romero motions are reviewed for abuse of discretion. (People v.
Myers (1999) 69 Cal.App.4th 305, 309.) Discretion is abused where the trial court’s
decision is “irrational or arbitrary.” (Id. at pp. 309-310.) Discretion is also abused when
the trial court’s decision to strike or not to strike a prior is based on improper reasons
3 Defendant also discusses, at length, the trial court’s failure to consider
mitigating factors under California Rules of Court, rule 4.423. However, as the People
point out, rule 4.423 is part of the determinate sentencing law, which applies only to
convictions involving a determinate sentence. (Cal. Rules of Court, rule 4.403.)
Defendant was not subject to a determinate sentence; rather, he was subject to an
indeterminate term of 25 years to life for his current conviction under the three strikes
law. (§ 667, subd. (e).) And the remaining 21 years were comprised of enhancement
terms fixed by statute, which do not provide for upward or downward departure.
(§§ 667, subd. (a)(1), 667.5, subds. (a), (b).) Accordingly, rule 4.423 does not apply
here, and any discussion about it is futile.

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(Romero, supra, 13 Cal.4th at p. 531; People v. Benevides (1998) 64 Cal.App.4th 728,
735, fn. 7) or the decision is not in conformity with the “spirit” of the law (People v.
Williams (1998) 17 Cal.4th 148, 161 (Williams); Myers, at p. 310).
“It is not enough to show that reasonable people might disagree about whether to
strike one or more of his prior convictions. 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. [Citation.]” (People v. Myers, supra, 69 Cal.App.4th at
p. 310.) Once the trial court has exercised its discretion and does not strike a prior
conviction, this court’s role on appeal is very limited. Thus, it would be a rare case in
which the trial court could abuse its discretion in declining to strike a prior conviction of
a recidivist offender.
The touchstone of the analysis must be “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.” (Williams, supra, 17 Cal.4th at p. 161; see also People v. Garcia (1999) 20
Cal.4th 490, 498- 499.)
Defendant here filed his Romero motion on September 16, 2002, and the People
filed their opposition thereafter. The motions included relevant law regarding the factors

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the trial court must consider in dismissing a strike, the circumstances of the present and
prior convictions, and the circumstances relevant to defendant. On October 4, 2002, at
the sentencing hearing, the trial court, after noting that it had read and considered the
motions, declined to strike any of defendant’s prior strike convictions.
Defendant asserts the nature of the current offense (the value of the watch was
minimal), his physical and mental characteristics (he is illiterate and homeless, he has an
undiagnosed mental disorder, and he has a substance abuse problem), and the age and
nonviolence of the priors were such that the trial court should have stricken one or more
of his prior strikes. We reject this contention.
As noted ante, Williams requires consideration of “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” (Williams, supra, 17 Cal.4th
at p. 161), and there is no indication from the record here that the trial court failed to
perform this task. Defendant has manifested a persistent inability to conform his conduct
to the requirements of the law. Defendant’s past criminal history is extensive and
serious. He began his life of crime in 1984, when he was placed on probation on August
2, 1984, after committing the offense of sale/transportation of marijuana (Health & Saf.
Code, § 11360, subd. (a)). About three months later he violated probation by committing
first degree burglary. His probation was then revoked, and reinstated, and he was ordered
to serve 180 days in county jail. Thereafter, on February 1, 1986, he committed robbery
(§ 211), and on April 4, 1986, he committed possession of a controlled substance (Health

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& Saf. Code, § 11350, subd. (a)). He was then sent to state prison for three years. On
September 22, 1987, he was paroled from prison; but then, on November 4, 1987, he
violated parole. Thereafter, in November 1988, he was convicted of soliciting a minor to
sell narcotics (Health & Saf. Code, § 11353) and sent to prison for six years. On January
11, 1992, he was paroled from prison; however, on July 13, 1992; March 2, 1994; and
January 17, 1996, he violated parole. Thereafter, on July 18, 1996, he was convicted of
grand theft (§ 487) and was placed on 36 months probation and given 90 days in county
jail. Less than four months later, he was charged with robbery (§ 211) but convicted of
grand theft and given 16 months of prison time. Thereafter, he violated parole seven
times (on May 13, 1998; April 7, 1999; June 24, 1999; January 31, 2000; September 22,
2000; May 17, 2001; and June 20, 2001). Subsequently, on November 27, 2001, he
committed the instant offense of robbery while he was on parole by attacking the victim
for the victim’s watch. It is clear from the record that prior rehabilitative efforts have
been unsuccessful for defendant. Indeed, defendant’s prospects for the future look no
better than the past, in light of defendant’s record of prior offense and reoffense and lack
of marketable job skills.
There is no indication from the record here that the trial court failed to consider
the factors as outlined in Williams or that it abused its discretion in determining that, as a
flagrant recidivist, defendant was not outside the spirit of the three strikes law.
(Williams, supra, 17 Cal.4th at p. 161.) Thus, given defendant’s continuous criminal
history, his parole and probation violations, the seriousness of the present and past

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offenses, and defendant’s seemingly dim prospects for rehabilitation and lack of
meaningful crime-free periods, we cannot say that the trial court abused its discretion
when it declined to strike any of defendant’s prior strikes.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
HOLLENHORST
Acting P.J.
McKINSTER
J.

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