Filed 11/6/14 P. v. Garcia CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. DERIK CARL GARCIA, Defendant and Appellant. D066205

(Super. Ct. No. FSB1001603)

APPEAL from a judgment of the Supe rior Court of San Bernardino County, Harold T. Wilson, Jr. Judge. Reversed in part, affirmed in part as modified, and remanded with directions. Law Offices of Russell S. Babcock and Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, A ssistant Attorney General, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys Ge neral, for Plaintiff and Respondent.2 A San Bernardino County ju ry found Derik Carl Garcia guilty of committing three felony offenses against 65-year-old Chong Slone cker at her massage parlor in Highland: (1) attempted second degree robbery (count 4: Pen. Code, 1 §§ 664, 211); (2) elder abuse (count 5: § 368, subd. (b)(1)); and (3) assa ult by means of force likely to produce great bodily injury (count 6: § 245, subd. (a)(1)). 2 The jury also found true the allegations under section 12022.53, subdivision (b) (hereaft er referred to as se ction 12022.53(b)) in counts 4 and 5 that Garcia personally used a firearm during the commission of the attempted robbery and the elder abuse. The tr ial court thereafter fo und true allegations that Garcia had suffered both a prior strike within the mean ing of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.1 2) and a prior serious felo ny conviction (§ 667, subd. (a)(1)) as a result of his 2001 convic tion of second degree robbery. Garcia thereafter filed an opposed mo tion for new trial, claiming (among other things) that the legal representation his trial counsel, James Gass, provided was prejudicially ineffective in several respects. Following an evidentia ry hearing at which Gass and two other witnesses testified, the court denied Garcia's new trial motion. At the sentencing hearing in February 2013, the court denied Garcia's opposed motion under People v. Superior Court ( Romero ) (1996) 13 Cal.4th 497 ( Romero ) (hereafter referred to as Garcia's Romero motion) to strike his prior strike conviction and sentenced him to an aggregate state prison term of 19 years. The se ntence consisted of

1 All further statutory references are to the Penal Code.
2 The jury acquitted Garcia of three counts of robbery allegedly committed at the Smart Time Food Store in Gr and Terrace, as charged in counts 1 th rough 3.3 the middle term of two years doubled to fo ur years under the Three Strikes law for Garcia's attempted robbery conviction (count 4); plus a consecutive term of 10 years for the count 4 personal-use-of-a-firearm enhanc ement under section 12022.53(b); plus a consecutive term of five years under section 667, subdivision (a)(1), for the prior felony
conviction. 3 Garcia appeals, raising three principa l contentions. First, he contends his convictions and related firearm enhancements must be reversed because his trial counsel failed to effectively represent him in viola tion of his right to competent counsel under both the Sixth Amendm ent to the federal Constitution and the California Constitution by (1) not adequately investig ating the case, (2) not requesting all applicable jury instructions, and (3) not calling all relevant witnesses. Second, he contends the court abused its discretion by denying his Romero motion to strike his prior strike robbery conviction. Last, he contends the jury's tr ue finding on the count 5 section 12022.53(b) personal-use-of-a-firearm enhancement allega tion attached to the elder abuse charge (count 5) must be vacated because that su bdivision on its face does not apply to elder abuse. Regarding this conten tion the Attorney General respo nds, and Garcia in his reply brief agrees, that the count 5 section 12022. 53(b) firearm enhancemen t should be reduced

3 The court also imposed but stayed under section 654 the execution of (1) a term of two years for Garcia's elder abuse conviction (count 5), (2) a term of three years four months for the count 5 personal-use-o f-a-firearm enhancement under section 12022.53(b); and (3) a term of two years for his count 6 conviction of assault by means of force likely to produce gr eat bodily injury.4 to the lesser included firearm enhancemen t under section 12022.5 , subdivision (a) (hereafter referred to as section 12022.5(a)). For reasons we shall explain, we modify Garcia's convictions by reducing the jury's true finding on the count 5 personal-use-of-a-firearm enhancement allegation under section 12022.53(b) to a lesser included viola tion of section 12022.5(a). We also vacate Garcia's sentence and remand the matter to the trial court for re sentencing in light of the reduction of his count 5 firearm enhancement to a violation of section 12022.5(a). In all other respects, we affirm the judgment.
FACTUAL BACKGROUND 4
A. The People's Case In the afternoon on April 11, 2010, Garc ia entered a massage parlor that then-65- year-old Slonecker owned and operated in Highland. Slonecker, who is Korean and testified with the assistance of a court-certif ied Korean interpreter, testified that as she was working there alone, Garcia walked up to the customer window behind which she was sitting, and, pretending to be a custom er and talking to her through the window, asked her about prices and pulle d out of his wallet his driver's license and what Slonecker thought was a credit card. Ga rcia suddenly grabbed her wr ist through the window, pulled out a gun, pointed it at her, and demanded money. Garcia then asked her for some water,

4 As Garcia was acquitted of the charge s related to the Smart Time Food Store robberies, the following su mmary of the factual background is limited to crimes committed against Slonecker at her massage parlor.5 and Slonecker told him he woul d have to let her go in orde r for her to get the water. When Garcia let go of her wrist, Slonecker ran towards the back door of her business. Slonecker testified that Garcia kicked open a locked interior door and followed her. Slonecker ran to the back door screaming for help. Ga rcia caught her, grabbed her hair, dragged her into a bathroom, and then kicked her many times on her knees, face, and body. Garcia told her, "Stay there," an d then closed the bathroom door and went back towards the front of the business. Slonec ker tried to escape th rough the locked back door while screaming for help. Garcia followe d her, but fled down an alley after she ran to a neighboring barber shop. Slonecker test ified that Garcia was wearing black pants, a black shirt, and a black hat with "white writin g" on it. Garcia got into a white minivan and quickly drove away. Slonecker testified that, after she went ba ck inside her business, she found Garcia's driver's license and Visa debit card, and also found a Visa debit ca rd belonging to Julie Cantu, who is Garcia's mother. Detectiv e Kari Klaus of the San Bernardino County Sheriff's Department testified that Slonecker gave her the driver's license and the two Visa debit cards. Slonecker also testified that, after Garcia attacked her, Cantu went to Slonecker's business and physically tried to take the debit cards from her hand. On cross-examination, Sloneck er testified that Garcia's gun looked like a real gun, not a toy gun. She also testified that she never told anyone it lo oked like a toy gun.6 Either late at night on Apr il 11 or in the early mornin g hours of April 12, 2010, a white 2006 Nissan Quest minivan was parked in front of Cantu's house. The parties stipulated that Garcia's brother, Je sse Garcia, Jr., owned the minivan. On April 12, the day afte r the attempted robbery, Dete ctive Matthew Peterson of the San Bernardino County Sher iff's Department viewed a video from a surveillance camera owned by another business. He testif ied that the video showed a man running out of the back door of the massage parlor and then running northbound behind the businesses. He also testified that the man shown in the video was wearing a hat with a white patch or emblem.
B. The Defense Lisa Hart, a defense investigator, testif ied she interviewed Slonecker and walked through the massage parlor in August 2011. Hart noticed a mattress on the floor of each of the back bedrooms, but she did not see any massage tables. Sloneck er told Hart that Garcia had handed her an identification ca rd and some credit-type cards, and he had asked Garcia for a glass of wa ter. Slonecker described to Ha rt how Garcia kicked in the door between the waiting area and the area in the back, and then Slonecker showed the door to Hart. Hart also testified that Slonecker said Garcia's gun "looked like a toy gun." On cross-examination, Hart acknowledged that she does not speak Korean, and she did not have a Korean interpreter with he r when she spoke with Slonecker.7 DISCUSSION
I. CLAIMS OF INEFFECTIVE A SSISTANCE OF COUNSEL AND CUMULATIVE ERROR Garcia claims his trial counsel, Gass, failed to effectively represent him in violation of his right to competent counse l under both the Sixt h Amendment to the federal Constitution and the California Constitu tion. Specifically, he contends his convictions and related firearm enhancements must be reversed because Gass (1) failed to adequately investigate Slonecker or her business, (2) failed to request a jury instruction on a lesser included weapons enhancemen t under section 12022, subdivision (b) (hereafter referred to as section 12022(b)), and (3) failed to intervie w Garcia's girlfriend and call her as a witness at trial. Garcia also claims that, even if no ne of Gass's acts or omissions were prejudicial, the "cumulative effe ct of [his] errors . . . requires reversal of [Garcia's] convictions and the related firearm enhancem ent." These claims are unavailing.
A. Applicable Legal Principles The law governing Garcia's ineffective assistance of c ounsel claim is settled. A criminal defendant is constitu tionally entitled to effective a ssistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Strickland v. Washington (1984) 466 U.S. 668, 684-685 ( Strickland ); People v. Frye (1998) 18 Cal.4th 894, 979.) To establish a denial of the right to effective assistance of counsel, a defendant must show (1) his or her counsel's performance was below an obje ctive standard of reasonableness under8 prevailing professional norms, and (2) th e deficient performance prejudiced the defendant. ( Strickland , at pp. 687, 691-692; Frye , at p. 979.) To demonstrate prejudice, a defendant asse rting an ineffectiveness claim on appeal must show a reasonable probability he or she would have receive d a more favorable result had counsel's performan ce not been deficient. ( Strickland , supra , 466 U.S. at pp. 693-694; People v. Frye , 18 Cal.4th at p. 979.) "A reas onable probability is a probability sufficient to undermine confid ence in the outcome." ( Strickland , at p. 694.) Strickland explained that "[j]udicial scrutiny of counsel's performance must be highly deferential [because] [i]t is all too temptin g for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." ( Strickland , supra , 466 U.S. at p. 689, italics added.) Strickland also explained that reviewing courts "must indulge a strong presumption that counsel's conduct falls with in the wide range of reasonable professional assistance; that is, the de fendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" ( Ibid. ) The California Supreme Court has explaine d that "'[w]hen a defendant makes an ineffectiveness claim on appeal, the appellate court must look to see if the record contains any explanation for the challenged aspects of representation. If the record sheds no light on why counsel acted or failed to act in the manner challenged, "unless counsel was asked for an explanation and failed to provid e one, or unless there simply could be no satisfactory explanation" [citation], th e contention must be rejected.'" ( People v. Kelly9 (1992) 1 Ca1.4th 495, 520 ( Kelly ).) Thus, "[a] reviewing court will not second-guess trial counsel's reasonable tactical decisions." ( Ibid .)
B. Analysis
1. Claim that Gass provided ineffecti ve assistance by fa iling to adequately investigate Slonecker or her business Garcia asserts that Gass failed to "properly impeach" the prosecution's complaining witness, Slonecker, and that his failure to do so was "largely attributable to his failure to investigate [Slonecker] or her [massage parlor] business thoroughly." Asserting that Gass "believed [Garcia's] claim that Slonecker sold sexual services rather than massages," Garcia points to Gass's test imony at the evidentiary hearing on Garcia's new trial motion that he (Gass) "doubted that [Slonecker's business] was a massage parlor" or "a legitimate busin ess of any kind." Also a sserting that "evidence about Slonecker's business would have been usef ul not only to impeac h Slonecker, but to explain [his] version of events," Garcia claims that,"[s]ince [Gass's] ineffective impeachment strategy resulted from his ineff ective preparation and investigation, the quality of his representation fell below th e established standards of effective representation by crimin al defense counsel." Garcia's first claim of ine ffective assistance of counsel is unavailing. Applying the "highly deferential" Strickland standard of judicial scrutiny, as we must ( Strickland , supra , 466 U.S. at p. 689), we conclude that Garcia has failed to meet his burden of overcoming the "strong presumption" that Gass 's "challenged action 'm ight be considered sound trial strategy.'" ( Ibid .) Under the circumstances, Gass conducted a reasonably10 thorough investigation of Slon ecker and her business. At the hearing on Garcia's new trial motion, Gass testified that he went to Slonecker's business three times and interviewed her with his defense investigator, Li sa Hart. He indicated that he did not see any customers during his three visits to Sl onecker's business, and he testified that Slonecker acknowledged that sh e had not had any customers on the day of the incident. Gass also indicated that he tried using a male "decoy" with "money in hand" to determine whether Slonecker's business was legitimate, but Slonecker turned the decoy away. The record also s hows that Gass made a reasonable tactical choice about both the extent of the investigation and how to proceed following th is investigation. At the hearing, Gass was asked whether it would have helped if he had found business records showing Slonecker's business was a licensed bus iness in the [County] of San Bernardino. Gass replied: "I think that issue kind of cuts both ways . If we knew for sure it was a whorehouse, that hurts [S lonecker's] credibility, but it also probably hurts [ Garcia's ] credibility . If we knew for sure she does Japanese massage, . . . then that makes him look like a more legitimate guy going there, but it makes her look more legitimate , too." (Italics added.) It is apparent from Gass's foregoing tes timony at the hearing on the Garcia's new trial motion, as well as from his closing argu ment later to the jury, that he made a reasonable tactical decision to limit the scope of the investigation and not make the nature of Slonecker's business a central theory of the defense. Du ring his closing argument, in an attempt to diminish Sloneck er's credibility in the eyes of the jury, Gass did briefly suggest that the jury should not believe Slonecker' s testimony because she was selling11 sexual services. Specifica lly, he told the jury, " I'm not going to argue that [ Slonecker's business ] is for sure a house of ill re pute, but one thing's for sure : It's an unusual massage parlor if all they are doing there is massages. And another thing is for sure if you conclude, which I suggest it's r easonable for you to conclude, that they don't do just massages there. That's going to a ffect the credibility of Ms. Slonecker ; isn't it?" (Italics added.) However, Gass's closing argument shows the central theory of the defense was that of mistaken identity . Early in his argument, Gass told the jury, "Unless you want to trust [Slonecker], we don't know that [ Garcia ] was there ." (Italics added.) Referring to the robber as "John," Gass ar gued that "[w]e don't know for sure who the robber was" and "[m]aybe it was [Garcia], and maybe it was some other member of his family that had his I.D., and maybe he was up at the barber shop cu tting hair like he has been for the last four years." Arguing that Garcia "[didn't] need to be robbing or attempting to rob anyone" because he was "making decent money" cutting hair, Gass urge d the jury "to say, 'Yep. That leads us to only one reasonable conclusion: That [Garcia] is not the robber.'" Gass continued to argue the central theory of mistaken identity by reminding the jury they had heard the testimony of the defe nse investigator who testified that Slonecker had demonstrated how the robber had handed the driver's license over to her. Gass asked the jury, "Why would a robber ha nd his driver's license to [S lonecker] and then pull out a gun and try to rob her or assault her? And th e answer to that circum stantial evidence is: It doesn't fit with robbery. No robber would do that. No robber is that dumb. Unless, of12 course, this was a robber with someone else's driver's license trying to implicate someone else and get people off hi s trail, so to speak." In sum, we conclude the record shows that Garcia's counsel made a reasonable tactical decision to limit the scope of his investigation and not make the nature of Slonecker's business a central th eory of the defense. We also conclude that Garcia has failed to meet his burden of overcoming the strong presumption th at this challenged decision by Gass "'might be consider ed sound trial strategy.'" ( Strickland , supra , 466 U.S. at p. 689.) We "will not second-guess tr ial counsel's reasonable tactical decisions." ( Kelly , supra , 1 Ca1.4th at p. 520.)
2. Claim that Gass provided ineffective a ssistance by failing to request a jury instruction on the lesser included persona l-use-of-a-deadly- weapon enhancement We next address Garcia's claim that Ga ss provided ineffective assistance by failing to request a jury instruction on the the lesser in cluded personal use of a deadly weapon enhancement set forth in secti on 12022(b). The jury found true the allegations in counts 4 and 5 that Garcia personally used a fire arm during the commission of the attempted robbery and the elder abuse in violation of section 12022.53(b), which provides: "Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally uses a firearm , shall be punished by an add itional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply." (Italics added.) "A BB gun or pellet gun is not a 'firea rm' for purposes of sentence enhancements [citation], but is a 'dangerous weapon' as th e term is used in s ection 12022[(b)]." ( People13 v. Dixon (2007) 153 Cal.App.4th 985, 1001.) Subdivision (b)(1) of section 12022 provides: "A person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offens e." (Italics added.) A section 12022(b) personal use of a deadly weapon enhancement is a lesser included offense of a section 12022.53(b) personal use of a firearm enhancement. ( People v. Dixon , supra , 153 Cal.App.4th at p. 1001.) Here, Garcia claims that Gass provided in effective assistance by failing to request an instruction on the lesser included secti on 12022(b) personal use of a deadly weapon enhancement, and a pinpoint instruction th at an imitation gun lik e a pellet gun does not qualify as a firearm under section 12022.53(b), because "the evidence at trial suggested that [he] may have used a fake gun" and "if th e jury had concluded that [he] used a pellet gun rather than a real gun, he would have received a [one]-year instead of a 10-year consecutive sentence." Garcia's claim is unavailing. Garcia asserts that "Slonecker's ey ewitness testimony provided the only evidence that [he] used a real gun during the robbery." Indeed , Slonecker testified on crossexamination that Garcia's gun looked like a real gun, not a toy gun. She also testified that she never told anyone it looked like a toy gun. Garcia contends, however, that Slonecker's testimony about the gun was "equ ivocal" and points out that the defense investigator, Hart, testified th at Slonecker told her that the gun looked like a toy gun.14 As noted, ante , when a defendant makes an ine ffectiveness claim on appeal, the reviewing court must look to see if the reco rd contains any explanation for the challenged aspects of representation. ( Kelly , supra , 1 Ca1.4th at p. 520.) If the record sheds no light on why defense counsel acted or failed to act in the manner ch allenged, the claim must be rejected unless counsel was asked for an expl anation and failed to provide one or unless there simply could be no sa tisfactory explanation. ( Ibid .) Here, the record is silent on why Gass did not request the lesser included section 12022(b) personal use of a deadly weapon enha ncement. However, th e record suggests a satisfactory explanation. As already discussed, Garcia's ce ntral defense at trial was the defense of mistaken identity . In other words, his defense was that he was not present at the time of the robbery at Sl onecker's massage parlor and someone else committed the crimes. In light of this defense, an inst ruction on the lesser included section 12022(b) personal use of a deadly wea pon enhancement and a pinpoint instruction that an imitation gun like a pellet gun does not qualify as a fi rearm under section 12022 .53(b) would have undermined Garcia's mistaken identity defense by emphasiz ing not only that he might have been present at the time of the robbery, but that he wa s armed with a dangerous or deadly weapon. Thus, we conclude Garcia again has failed to meet his burden of demonstrating Gass's representati on was unconstitutiona lly deficient.
3. Claim that Gass failed to interview Garcia 's girlfriend and call her as a witness at trial Garcia also claims Gass provided ineffec tive assistance by failing to independently interview Garcia's girlfriend, No ra Gallegos, and call her as a w itness at trial. This claim15 is unavailing because the record demonstrates that Gass's decision to not interview Gallegos or call her as a witness was a reasonab le tactical decision that a reviewing court will not second guess. (See Kelly , supra , 1 Ca1.4th at p. 520.) Garcia acknowledges that Gass knew before trial that the police had interviewed Gallegos and she had told them that Garcia owned a BB or pellet gun. The record shows that, during his testimony at the hearing on Ga rcia's new trial motion, Gass indicated that Gallegos told the detectives that Garcia owne d a black BB or pellet gun that resembled a real handgun. The record of that evid entiary hearing also demonstrates that Gass made a reasonable tactical decision to not interview Gallegos or ca ll her as a witness at trial because he felt confident that Garcia would be acquitted
─ as he eventually was (see fn. 2,

ante )
─ of the three robberies committed at the Sm art Time Food Store (counts 1-3, which are not at issue in this appeal), and he belie ved she would have "nothing to add" to the defense against the charges (counts 4-6) rela ted to the incident at Slonecker's massage parlor. Specifically, the reporter's transcri pt of the new trial hearing shows that Gass testified as follows: "I was confident we were going to win . . . the three liquor store robberies, and she had nothing to add . . . on the massage parlor incident unless we were going to argue that [Garcia] was there and he did have a gun, but it was a pellet gun, which . . . he denied; and we're trying to avoi d the attempted robbery charge, of course." Again, as already discussed, Ga rcia's central defense at trial was the defense of mistaken identity; that is, the defense that he was not at Slonecker's massage parlor at the time the crimes charged in counts 4 through 6 were committed. Gi ven Garcia's defense to the16 charges in counts 4 through 6, the reco rd shows that Gass
─ knowing that Gallegos had made pretrial statements to the pol ice that tended to incriminate Garcia
─

made a reasonable tactical decision not to interview he r or call her as a witness at trial because her testimony would have unde rmined the defense theory th at Garcia was not present during the commission of the crimes at the massage parlor. For all of the foregoing reasons, we conc lude Garcia has failed to meet his burden of establishing any of hi s claims of ineffective assistance of counsel.
4. Claim of cumulative error Last, Garcia also claims that, "[a]ssumi ng that none of [Gass's] acts or omissions were prejudicial in isolation, the cumulative eff ect of [his] errors . . . requires reversal of [Garcia's] convictions and th e related firearm enhancement. " This claim is unavailing. "If none of the claimed errors were individual errors, th ey cannot constitute cumulative errors that somehow a ffected the . . . verdict." ( People v. Beeler (1995) 9 Cal.4th 953, 994, abrogated on other grounds as recognized by People v. Pearson (2013) 56 Cal.4th 393, 462.) Here, we have concluded that all three of Garcia's claims of ineffective assistance of counsel are unavailing because Garcia has fa iled to show that Gass's performance was unconstitutionally deficient. Accordingly, we reject Garc ia's claim of prejudicial cumulative error. ( People v. Beeler , supra , 9 Cal.4th at p. 994.)
II. DENIAL OF GARCIA'S ROMERO MOTION Garcia next contends the court ab used its discretion by denying his Romero motion to strike his prior strike convi ction. We reject this contention.17 A. Background
1. Garcia's Romero motion In his written Romero motion, Garcia asked the court to strike his prior strike robbery conviction under section 1385 and Romero , supra , 13 Cal.4th 497. Asserting that he did not have a signi ficant prior criminal history, Garcia acknowledged he had suffered a June 2000 misdemeanor conviction for vandalism (§ 594, subd. (b)(4)), a July 2001 strike conviction robber y (§ 211), and a March 2007 misdemeanor conviction for driving without a valid license (Veh. Code, § 12500). He ar gued he had plea ded guilty to the robbery offense, spent 34 da ys in jail, and successfully completed his probation term. Acknowledging he was statutorily ine ligible for probation following his current convictions, Garcia asserted he would have been a good ca ndidate for probation because he was employed full time as a barber, he had lived a cr ime-free life since his 2001 robbery conviction, the victim in the current case "was not substantially harmed and no property was taken from her," and the circumst ances of the current offenses were "not likely to reoccur." He also asse rted that he believed he had a claim of right to retrieve his identification and debit cards from Slonecker, but "perhaps [he] crossed the line in doing so by assaulting [Slonecker]." Garcia further asserted he had no opportun ity to admit his guilt at an early stage of the current prosecution because he been "unf airly targeted" by the district attorney's career criminal prosecution unit, which was st atutorily prohibited from plea bargaining.18 2. The People's opposition In its written opposition, the pros ecution argued that Garcia's Romero motion should be denied because hi s criminal history "[did] not support an exercise of [the] court's discretion of striking" Garcia's prio r strike conviction. The prosecution also argued that Garcia "had not led a legally blam eless life," and he had "multiple factors in aggravation" because he had us ed a deadly weapon in committing his current crimes, he was refusing to take responsibility for his acti ons as indicated in the probation report, and he admitted to the regular use of marijuana. The prosecution conc luded by asserting it was appropriate for the court to deny Garcia's Romero motion because he is "a danger to society" who had received "ample warning through his past a rrests and incarcerations that such criminal conduct was unacce ptable," and he "has refused to change his behavior."
3. Evidentiary hearing and ruling On the day set for sentencing, the court first conducted an ev identiary hearing on Garcia's Romero motion. In support of his motion, Garcia called three witnesses: Richard Alanis, Jr., a family friend; Garcia's brother, Jesse Garcia , Jr.; and Garcia's mother, Julie Cantu. Alanis opined that Garcia was not a violent person, and he had never known Garcia to carry weapons on a regul ar basis. Alanis testified that Garcia began attending The Ranch Program, a liv e-in recovery home program, following his 2001 robbery conviction. Alanis stated th at Garcia completed the program and then participated in the Victory Outreach Urba n Training Center, which was a program for young people who wanted to pursue a life of ministry. Garcia completed this program and received a gradua tion certificate.19 Garcia's brother testified that he had ne ver known Garcia to "be in a gang, running with gang members" and that he had never known Garcia to routinely carry a weapon. After his 2001 robbery conviction, Garcia spent two or three weeks in jail, but he did not go to prison, and he successfully completed his probation. Garcia's brother also testified that Garcia went to school to become a ba rber, and he was working for a barber. He testified that he did not know Garcia to be invo lved in any criminal activity such as robbery, and he believed Garcia was not a violent person. Garcia's mother, Cantu, acknowledged that she was convicted of a related robbery in this case for trying to st eal the identification and deb it cards from Slonecker. Cantu testified that Garcia was not a violent pers on, and she never saw him carry a weapon. Cantu also testified that before he was arrested, Garcia had worked as a barber for five years, and he was not committing any crimes . Cantu acknowledged she did not know that Garcia was charged in 2007 with driving without a license. In his closing argument, Garcia's counse l argued that except for the conviction of driving with a suspended license, Garc ia was crime free after his 2001 robbery conviction. Counsel also argued that Garcia took significant step s towards changing his life that showed he was not the typical type of person who commits these crimes, and the prior and current robberies were not typical types of robberies . Garcia's defense in this case was that he was at the massage parlor to solicit a prostitute and, when he did not like what he saw, he just tried to get his iden tification and credit cards back from Slonecker. Counsel asserted that Garcia wa s crime free for 10 years, he then made a mistake, and the20 Three Strikes law was not meant to apply to someone like him because he was not a "frequent flyer" criminal. The prosecutor responded that there were only nine years between the two robberies that Garcia committed; Garcia admitted he was regularly using marijuana during that time period; and he was convicted in 2007 of drivin g with a suspended license, which was still suspended. The pr osecutor asserted that Garcia's claim was similar to the defendant's claim in People v. Williams (1998) 17 Cal.4th 148, in that, although a span of time passed between the two serious crimes, Garcia "'failed to add maturity to time.'" The prosecutor argued th at, here, Garcia committed a robbery, and he had committed another robbery nine years previously. The prosecutor also pointed out that th e probation report failed to consider an aggravating factor: the use of a deadly weapon . He argued that other aggravating factors placed Garcia within the scheme of the Thre e Strikes law: his victim was elderly and vulnerable, and he used violence causing injury.

a. Ruling After noting it had reviewed all the m oving papers, and it had considered the testimony of Garcia's three witnesses and ha d reviewed the exhibits submitted by the defense, the court denied Garcia's Romero motion.21 B. Applicable Legal Principles
In Romero , supra , 13 Cal.4th at pages 529-530, th e California Supreme Court held that section 1385, subdivision (a) (hereafter § 1385(a)) 5 permits a court acting on its own motion and "in furtherance of justice" to st rike prior felony conviction allegations in cases brought under the Three Strikes law. Although the Legislature has not defined the phrase "in furtherance of justice" containe d in section 1385(a), the California Supreme Court has held that this language requires a court to consider both the " ' "constitutional rights of the defendant, and the interests of so ciety represented by th e People" ' " (italics omitted) in determining whether to strike a prior felony conviction allegation. ( Romero , supra , 13 Cal.4th at p. 530.)
In People v. Williams , supra , 17 Cal.4th at page 161, the California Supreme Court explained that, in determining whether to strike or vacate a prior strike allegation or finding under the Three Strikes law "in fu rtherance of justice" pursuant to section 1385(a), the trial court "must c onsider 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, a nd prospects, the defendant may be deemed outside the [Three Strikes law'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."

5 Section 1385(a) provides in part that a trial court "may, either of [its] own motion or upon the application of the prosecuting attorney, and in furtherance of justice , order an action to be dismissed. The reasons for the di smissal must be set fort h in an order entered upon the minutes." (Italics added.)22 In People v. Carmony (2004) 33 Cal.4th 367, 371, ou r high state court held a trial court's decision not to dismiss a prior strike conviction allegation unde r section 1385(a) is reviewed under the deferential abuse of discretion standard. Carmony explained that "a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." ( Carmony , at p. 377.)
C. Analysis Applying the deferential abuse of discretion standard, as we must ( People v. Carmony , supra , 33 Cal.4th at p. 371), we conclude Garcia has failed to meet his burden on appeal of showing that the court's denial of his Romero motion was an abuse of discretion and that he should be deemed to be outside the spirit of the Three Strikes law. The record shows the cour t carefully considered the factors discussed in Williams : "[T]he nature and circumstances of his presen t felonies and prior se rious and/or violent felony convictions, and the particulars of his background, character, and prospects." ( People v. Williams , supra , 17 Cal.4th at p. 161.) The record before the court demonstrated that, although Garcia comm itted only one other crime (misdemeanor driving without a valid license) during th e nine years between his 2001 robbery conviction and his 2010 commi ssion of his current felony offenses against Slonecker (attempted robbery, elder abuse, and assau lt by means of force likely to produce great bodily injury), Garcia had not learned from hi s prior convictions and in fact committed more serious crimes that involv ed the use of force likely to produce great bodily injury on his 65-year-old victim, Slonecker. Also be fore the court was the probation officer's assessment that Garcia, who refused to be interviewed ab out the circumstances of his23 current offenses, "did not take responsibility fo r his actions." As the record supports a finding that Garcia falls within the spirit of the Three Strike s law, we affirm the court's order denying his Romero motion.
III. COUNT 5 FIREARM ENHANCEMENT Last, Garcia contends the jury's true finding on the section 12 022.53(b) personal use of a firearm enhancement allegation attach ed to the count 5 elde r abuse charge must be vacated because that subdivisi on on its face does not apply to elder abuse. In response the Attorney General ack nowledges, and Garcia in his repl y brief agrees, that the count 5 section 12022.53(b) firearm enhancement should be reduced to the lesser included firearm enhancement under section 12022.5(a), and that Garcia's sentence should be corrected. We agree. Section 12022.53(b) provides in part: "Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision ( a ), personally uses a firearm, shall be punished by an additional and cons ecutive term of imprisonment in the state prison fo r 10 years." (Italics added.) Thus, the 10-year prison term enhancemen t provided in section 12022.53(b) only applies to a defendant who personally used a firearm to commit "a felony specified in subdivision (a)" of that section. Here, the jury found that Garcia violat ed section 12022.53(b) by personally using a firearm in committing felony elder abuse agai nst Slonecker in violation of section 368, subdivision (b)(1), as charge d in count 5. However, a violation of section 368, subdivision (b)(1), is not one of the felonies listed in subdivision (a) of section24 12022.53. 6 Thus, as the firearm enhancement pr ovided in section 12022.53(b) does not apply as a matter of law to a defendant like Garcia who commits felony elder abuse, we conclude his count 5 convictio n of a violation of section 12022.53(b) is unlawful. Accordingly, we must modify Garcia's convictions by reducing the jury's true finding on the count 5 persona l use of a firearm enhancement allegation under section 12022.53(b)
─ for which the court (as noted in fn. 3, ante ) imposed but stayed a consecutive prison term enhancemen t of three years four months
─ to the lesser included
violation of sec tion 12022.5(a). 7 In all other respects, we affirm Garcia's convictions in this matter. We also must vacate Garcia's sentence and remand the matter to the trial court for resentencing in light of the reduction of his count 5 conviction of a violation of section 12022.53(b) to a violation of section 12022.5(a). Unlike the 10-year prison term

6 Subdivision (a) of section 12022.53 pr ovides: "This section applies to the following felonies: [¶] (1) Section 187 (murde r). [¶] (2) Section 203 or 205 (mayhem). [¶] (3) Section 207, 209, or 209 .5 (kidnapping). [¶] (4) Se ction 211 (robbery). [¶] (5) Section 215 (carjacking). [¶] (6) Section 220 (assault with intent to commit a specified felony). [¶] (7) Subdivision (d) of Section 2 45 (assault with a firearm on a peace officer or firefighter). [¶] (8) Secti on 261 or 262 (rape). [¶] (9) Section 264.1 (rape or sexual penetration in concert). [¶] (10) Section 2 86 (sodomy). [¶] (11) Section 288 or 288.5 (lewd act on a child). [¶] (12) Section 288 a (oral copulation). [¶] (13) Section 289 (sexual penetration). [¶] (14) Section 4500 (assault by a life prisoner). [¶] (15) Section 4501 (assault by a prisoner). [¶] (16) Sectio n 4503 (holding a hostage by a prisoner). [¶] (17) Any felony punishable by death or imprisonm ent in the state prison for life. [¶] (18) Any attempt to commit a crime listed in this su bdivision other than an assault."
7 Section 12022.5(a) provide s: "Except as provided in subdivision (b), any person who personally uses a firearm in the commissi on of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonmen t in the state prison for 3, 4, or 10 years, unless use of a fire arm is an element of that offense."25 enhancement provided in section 12022.53(b), the punishment for a violation of section 12022.5(a), with an exception not applicable here, is "an a dditional and consecutive term of imprisonment in the state prison fo r 3, 4, or 10 years. " (§ 12022.5(a).)
DISPOSITION Garcia's count 5 conviction of a violation of section 1 2022.53(b), which is related to his count 5 conviction of felony elder a buse (§ 368, subd. (b)(1)), is modified and reduced to a lesser included violation of secti on 12022.5(a). Garcia's sentence is vacated and the matter is remanded to the trial court for resentencing in light of the reduction of his count 5 conviction of a vi olation of section 12022.53(b) to a violation of section 12022.5(a). In all other respect s, the judgment is affirmed. The trial court is directed to amend the abstract of judgment following re sentencing to reflect the modification of Garcia's count 5 personal-use-of-a-firearm co nviction and any change in his sentence, and to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. NARES, J.
WE CONCUR:
BENKE, Acting P. J.

IRION, J.