1

Filed 12/22/15 P. v. Covert CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES COVERT,

Defendant and Appellant.

C076486

(Super. Ct. No. 13F07058)

Defendant James Covert appeals from the judgment entered following a jury trial 

resulting in his conviction for willful infliction of corporal injury upon a cohabitant. 

(Pen. Code, § 273.5, subd. (a).)1 In a separate proceeding, the trial court found true 

allegations that defendant suffered three prior convictions, including a prior domestic 

 

1

 Undesignated statutory references are to the Penal Code.
2

violence conviction, and served a prior prison term. The trial court sentenced defendant 

to an aggregate term of nine years in state prison.

On appeal, defendant contends the trial court abused its discretion in refusing to 

reduce defendant’s felony conviction to a misdemeanor, refusing to strike defendant’s 

strike prior, and refusing to strike defendant’s prior prison term enhancement. We reject 

these contentions.

Defendant also contends the trial court erred in imposing a mid-term sentence of 

four years pursuant to section 273.5, subdivision (f), because his previous conviction for 

domestic violence took place more than seven years before the instant offense. The 

People concede the error. Accordingly, we remand for resentencing with respect to this 

issue only. In all other respects, the conviction and judgment are affirmed.

BACKGROUND

Nicole Gutierrez entered into a romantic relationship with defendant in November 

2012. Gutierrez and her three young children lived with defendant until October 2013. 

They did not have a permanent address; instead, they stayed in motels, and with friends, 

and family members. Gutierrez and defendant were both drug users.

Gutierrez had no possessions, except her car. On October 17, 2013, defendant and 

Gutierrez drove to a church to get food. They parked in a parking space reserved for 

parents dropping off and picking up children from the church daycare center. The pastor 

of the church, Shannon Fannin, approached the car and told defendant, who was seated in 

the driver’s seat, that he had to move the car. Fannin saw Gutierrez, and a young boy and 

a young girl in the back seat of the car. Based upon his brief interaction with them, 

Fannin surmised that the couple was “having a hard time.” Defendant moved the car and 

Fannin left the church to take a group of children to school. Fannin was gone for about 

15 minutes.

During Fannin’s absence, the director of the daycare, Martha Mayorga, observed 

some commotion involving a man and a woman in the parking lot. A short time later, 
3

Mayorga discovered Gutierrez hiding in a trailer used to store clothes. Gutierrez was 

scared and said she was “being held” by defendant. Gutierrez asked for help, and 

Mayorga called 911. Mayorga also treated bite marks on Gutierrez’s face and shoulder. 

Gutierrez had a bite mark on her shoulder, which was bleeding, requiring ice, and a 

bandage. She also had a bite mark on her face, which was less serious, requiring ice 

only. While Mayorga was treating Gutierrez, Fannin returned to the school. After 

speaking with Mayorga, Fannin found defendant in the parking lot and asked him to 

leave the premises.

Sacramento City Police Officer Bryan Morrison arrived shortly thereafter. Officer 

Morrison spoke with Gutierrez, noting that she appeared shaken, confused, and 

concerned that the police had been called. Gutierrez told Officer Morrison that defendant 

had become increasingly possessive in recent weeks, and that he tried to control Gutierrez 

by taking the keys to her car and not allowing her to drive it. On the day of the incident, 

Gutierrez explained, the couple was arguing because defendant told her that he planned to 

sell her car. Defendant’s plan to sell the car upset Gutierrez because the car was the only 

valuable thing she owned. She grabbed the keys from the ignition, and defendant 

responded by pulling her head to his chest. As Gutierrez struggled to get away, 

defendant bit her on the cheek. Defendant also put Gutierrez in a choke hold, and bit her 

on the right shoulder. Morrison observed faint red marks on Gutierrez’s shoulder and 

throat. Morrison did not see a bite mark on Gutierrez’s cheek. Gutierrez told Morrison 

that her throat hurt, and it was hard for her to talk and swallow. Gutierrez also told 

Morrison she was leaving town that night because defendant had gang affiliations and she 

was afraid his family would retaliate against her. She did not want Morrison to take 

photographs of her injuries, and told him she would do it herself.

Defendant was arrested and charged by amended information with one count of 

inflicting corporal injury on a cohabitant. (§ 273.5, subd. (a).) The information further 

alleged that defendant had five prior convictions for (1) domestic violence (§ 273.5), (2) 
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kidnapping (§ 207), (3) terrorist threats (§ 422), (4) robbery (§ 211), and (5) assault with 

a firearm (§ 245, subd. (a)(2)), all arising from the same incident in April 2001.

2

 The 

information further alleged that defendant’s prior convictions for kidnapping and terrorist 

threats qualified as “strikes” within the meaning of the “Three Strikes” law. (§§ 1192.7, 

subd. (c), 1170.12, 667, subds. (b)-(i).) The information further alleged that defendant 

served a prior prison term for a serious felony and failed to remain free of custody for a 

period of five years following the conclusion of that term. (§ 667.5, subd. (b).) 

Defendant pleaded not guilty and denied the allegations.

During the trial, Gutierrez was so overcome with emotion that she was initially 

unable to testify. Upon regaining her composure, Gutierrez claimed she could not 

remember anything about the incident. Even so, Gutierrez insisted that defendant had 

never physically harmed her. When asked why she told Officer Morrison that defendant 

had bitten her, Gutierrez responded that she was “most likely on drugs that day.” Later, 

Gutierrez acknowledged that her relationship with defendant was “sick” and “toxic.”

Detective Dennis Prizmich, a domestic violence expert, testified that victims of 

domestic violence frequently minimize their injuries and refuse to cooperate with law 

enforcement in the prosecution of their abusers. Prizmich also testified that victims 

sometimes claim they do not remember incidents of abuse.

The prosecutor introduced jailhouse recordings of conversations between 

defendant and Gutierrez. The transcripts of the recordings reveal that defendant 

encouraged Gutierrez not to testify against him. When Gutierrez mentioned that the 

prosecution had served a trial subpoena on her, defendant suggested that she “[b]ounce” 

or fail to appear. When Gutierrez observed that she could be arrested for failing to 

 

2

 As we shall momentarily discuss, the prior conviction allegations for robbery (§ 211) 

and assault with a firearm (§ 245, subd. (a)(2)) were eventually dismissed on the 

prosecution’s own motion.
5

appear, defendant opined that the charge would be a misdemeanor. When Gutierrez 

protested that she could not risk incarceration for her children’s sake, defendant 

responded that he would watch the children in the event that she was made to serve time 

for failure to appear. During another part of their conversation, Gutierrez told defendant 

that he should “stay single if you have to.” Defendant did not testify at trial. 

The jury returned a guilty verdict. During the ensuing court trial, the prosecutor 

dismissed defendant’s prior convictions for robbery and assault with a firearm as having 

been improperly alleged. The trial court dismissed the strike allegation associated with 

defendant’s prior conviction for making terrorist threats in the interest of justice. The 

trial court found the remaining prior conviction and prior prison term allegations true.

In anticipation of the sentencing hearing, the probation department prepared a 

report indicating that defendant had two prior convictions for domestic violence, a 

juvenile misdemeanor conviction and an adult felony conviction arising from an assault 

that took place in front of the victim’s child in 2001. The probation report also indicated 

that defendant served nine years in state prison as a result of the last domestic violence 

conviction and was on parole at the time of the present offense.

Prior to sentencing, defendant filed a motion asking the trial court to reduce the 

current felony conviction to a misdemeanor on the grounds that Gutierrez’s injuries were 

relatively minor. (§ 17.) Defendant also asked the trial court to strike one or more of his 

prior strike convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 

497 (Romero) on the grounds that the current offense was relatively minor, compared to 

other domestic violence offenses, and Gutierrez’s injuries were minimal. (§ 1385.) 

Defendant asked the trial court to reduce his current felony conviction to a misdemeanor 

for the same reasons. (§ 17, subd. (b).) The trial court acknowledged that Gutierrez’s 

injuries were relatively minor but noted that “it’s the conduct that’s more concerning to 

the Court. The end result was the injuries, and they weren’t as serious as other injuries 

were. But as the facts played out, she escaped, she got away. And it was the conduct 
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that’s more concerning to the Court, and when I look at his record and what happened in 

this case. And, especially, with regard to the continuing manipulation and control that 

the Court heard in the jail calls.” The prosecution argued that Gutierrez’s injuries were 

minor because she managed to escape and seek help. The prosecution also drew parallels 

between defendant’s previous domestic violence conviction and the current offense, 

noting that both involved manipulative and controlling behavior, substance abuse, and a 

violent attack in front of the victim’s child.

The trial court denied the motion, stating: “Okay. With regard to the [section] 17

[subdivision] (b) and the Romero motion, the Court has to find that it would be in the 

interest of justice to strike those strikes – strike that strike. [¶] The Court’s looking at the 

defendant’s background, character, prospects to see whether he may be deemed within or 

outside the spirit of the three strikes law. [¶] Looking to see whether he’s been taught 

through the application of formal sanctions, his criminal conduct was unacceptable, and 

whether he’s failed or learned his lesson. Those factors are set forth in People versus 

Williams [(1998) 17 Cal.4th 148, 161].”

The trial court continued: “His strikes are old, but he did receive a long sentence. 

And he was on parole at the time that he committed this particular offense. [¶] He 

previously had been an abscond on parole, had prior domestic violence, and then had a 

very serious domestic violence. [¶] And then when he’s on parole after serving a very 

lengthy prison sentence, is convicted of committing another crime of domestic violence. 

“I agree with Ms. Gutierrez’s jail call when she says he just needs to stay single. 

There’s something that happens in relationships. And what’s happening is the controlling 

and manipulation that he is putting on the women that’s in his life. [¶] The only thing 

that’s mitigating in [defendant’s] case is the extent of the ultimate injuries. But the 

conduct in which those injuries were incurred, I don’t believe it is misdemeanor conduct. 

Especially in light of his prior criminal history. [¶] And this isn’t just a situational 

matter where he got angry with his girlfriend and struck her, pushed her or hit her. This 
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is a controlling, manipulative relationship. [¶] Because of those factors, the [section] 17

[subdivision] (b) motion and Romero motion are denied.”

The trial court then sentenced defendant to nine years in state prison, stating: 

“Okay. [Defendant’s] matter is a difficult situation because of his strike priors and the 

triads of the case, and the count that he was convicted of. [¶] The prior prison 

commitment and prior one year prior being found true, I have to impose the one year. So 

issue is . . . low term doubled for four plus one for five; or mid-term of four doubled for 

eight plus the one; or upper term of five doubled for ten plus the one for 11.” The trial 

court then considered aggravating factors, noting that Gutierrez was particularly 

vulnerable, inasmuch as defendant had control over her car. The trial court also observed 

that defendant had engaged in violent conduct before, had numerous convictions, and was 

on parole at the time of the present offense.

The trial court then considered mitigating factors, noting “the only circumstances 

in mitigation I could find is the extent of the ultimate injuries: The bite mark on the back. 

The bite mark on the cheek was gone by the time anybody else saw that. So, I am 

considering that as something very de minimis, almost scratch-like if at all. [¶] But it 

was the grabbing, the holding, the resisting, the biting in the back. [¶] Ms. Gutierrez was 

petrified when she was in contact with the people there at the church . . . .[¶] The 

children are there when this is happening --- young children in the back seat of their 

vehicle. [¶] There were children in the other previous case as well. [¶] . . . [¶] And 

then while in custody and these cases are pending, he puts the tremendous amount of 

pressure on Ms. Gutierrez. Those jail calls were really telling as far as what their 

relationship was.”

The trial court continued:

“And if this was situational in nature, this was a one time thing, . . . the Court 

would be more inclined to see some mitigation. But this is a domestic violence case, it’s 
8

all about manipulation, all about control. It’s not situational. Even after he’s arrested, he 

continues to put it all on Ms. Gutierrez.

“All the pressure was on her to: Just bounce, get out of here, it’s just a 

misdemeanor, I’m going home if you do not come in and testify.

“She broke down the minute she took the stand before anybody asked her any 

questions. This was a victim who has been victimized more than just this one situational 

incident. It’s very – it was a very traumatic experience for her. She was petrified that he 

would kill her.

“I still have concerns of his ability to be in the community and not commit crimes 

of violence. The Court has concerns that he poses a great danger to the community.

“He’s a serial domestic violence abuser. And I think that’s clear.

“I did consider for a long time giving him a low term. But in light of all the 

aggravating circumstances and being unable to find any mitigation circumstances, absent, 

the end result of the injuries, I think the situation was extremely dangerous. He poses an 

extreme danger to the community. And she’s lucky she got away, got out of that car.”

Accordingly, the trial court sentenced defendant to the midterm sentence of four 

years, doubled for the prior strike conviction, plus one year for the prior prison term 

enhancement, for an aggregate sentence of nine years in state prison.

Defendant filed a timely notice of appeal.

DISCUSSION

I

Motion to Reduce Conviction to a Misdemeanor

Defendant contends the trial court abused its discretion in denying his motion to 

reduce his domestic violence conviction from a felony to a misdemeanor under section 

17, subdivision (b).

Section 17, subdivision (b) gives the trial court discretion to reduce a wobbler 

offense from a felony to a misdemeanor. (People v. Mendez (1991) 234 Cal.App.3d 
9

1773, 1779.) To establish error, a defendant must show a clear abuse of that discretion. 

An abuse of discretion occurs only when the trial court exceeds the bounds of reason in 

light of all of the surrounding circumstances. (People v. Giminez (1975) 14 Cal.3d 68, 

72.) 

In People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, our Supreme Court 

explained that the discretion to reduce felonies to misdemeanors in based on a “broad 

generic standard,” i.e., that the discretion exercised must be controlled and guided by 

fixed legal principles, conform with the spirit of the law, further rather than impede the 

ends of justice, and must not be capricious, arbitrary, unreasonable, or prejudiced. (Id. at 

p. 977.) The court acknowledged that the trial court’s discretion is not unlimited, and 

must be based on reasoned consideration of a particular offender’s background and 

circumstances. (Id. at pp. 977-978.) 

In making its determination, the trial court should consider “ ‘the nature and 

circumstances of the offense, the defendant’s appreciation of and attitude toward the 

offense, or his traits of character as evidenced by his behavior and demeanor at the 

trial.’ ” (Alvarez, supra, 14 Cal.4th at p. 978.) Further, “the fact a wobbler offense 

originated as a three strikes filing will not invariably or inevitably militate against 

reducing the charge to a misdemeanor. Nonetheless, the current offense cannot be 

considered in a vacuum; given the public safety considerations underlying the three 

strikes law, the record should reflect a thoughtful and conscientious assessment of all 

relevant factors including the defendant’s criminal history. [Citations.]” (Id. at p. 979.) 

Here, defendant argues the trial court abused its discretion in refusing to reduce his 

conviction to a misdemeanor because Gutierrez’s injuries were relatively minor. 

Defendant also argues that the assault “was likely influenced by mutual drug 

intoxication,” and claims “it was an isolated incident according to Gutierrez.” We are not 

persuaded.
10

Despite Gutierrez’s faulty memory, there was substantial evidence that defendant 

inflicted physical injury on Gutierrez and the offense was serious. Defendant grappled 

with Gutierrez, placed her in a choke hold, and bit her twice, causing her to bleed. These 

acts caused Gutierrez to sustain injuries, which could have been far more serious had 

Gutierrez not managed to escape and seek help. On this record, the trial court could 

reasonably conclude that defendant intended to cause more serious injuries, and was only 

prevented from doing so because Gutierrez managed to escape. 

Defendant’s possible drug use provides no justification for leniency. Even 

assuming defendant was under the influence of drugs, his criminal record reveals that he 

previously assaulted a woman while under the influence of alcohol, and apparently failed 

to rehabilitate himself, despite a nine-year prison term. On this record, the trial court 

could reasonably conclude that defendant would be unlikely to succeed in rehabilitation, 

and would likely repeat the charged offense or harm someone else in a similar manner. 

Indeed, the trial court expressly found that defendant is a “serial domestic violence 

abuser” who poses a “great danger to the community.” Under the circumstances, we 

perceive no abuse of discretion. 

We flatly reject defendant’s contention that the present offense “was an isolated 

incident according to Gutierrez.” Gutierrez said nothing to suggest that the present 

offense was an “isolated incident.” To the contrary, Gutierrez variously denied any 

memory of the incident and maintained that defendant was never violent with her, a claim 

the trial court evidently disbelieved. There is absolutely nothing in the record to suggest 

that defendant’s attack on Gutierrez was an “isolated incident,” and the trial court 

expressly found that the incident was not “situational,” but part of a pattern of controlling 

and manipulative behavior. Furthermore, defendant’s criminal record establishes that he 

has engaged in such conduct before.

Relying on Alvarez, supra, defendant argues that “his ‘criminal history, although 

relevant to the decision, is not dispositive.’ (Alvarez, supra, 14 Cal.4th at p. 973.)” 
11

Contrary to defendant’s implicit suggestion, there is nothing in the record to suggest that 

the trial court focused solely on his criminal history, to the exclusion of other relevant 

factors. The record confirms that the trial court properly considered the nature and 

circumstances of the offense, and defendant’s appreciation and attitude towards the 

offense, as evidenced by his attempts to discourage Gutierrez from testifying. Thus, the 

record confirms that the trial court properly weighed all relevant factors, including 

defendant’s criminal history and public safety. Under the circumstances, we find no 

abuse of discretion in treating defendant’s third domestic violence conviction as a felony, 

rather than reducing it to a misdemeanor. 

II

Motion to Strike Prior Conviction

Defendant argues the trial court abused its discretion in denying his motion to 

strike his prior kidnapping conviction pursuant to section 1385 and Romero. We 

disagree.

Rulings on Romero motions are reviewed for abuse of discretion. (People v. 

Myers (1999) 69 Cal.App.4th 305, 309 (Myers).) Discretion is abused where the trial 

court’s decision is “irrational or arbitrary.” (Id. at p. 310.) Discretion is also abused 

when the trial court’s decision to strike or not to strike a prior is based on improper 

reasons (Romero, supra, 13 Cal.4th at p. 531; People v. Benevides (1998) 64 Cal.App.4th 

728, 735, fn. 7, overruled on another ground in People v. Carmony (2004) 33 Cal.4th 

367, 375) or the decision is not in conformity with the “spirit” of the law. (People v. 

Williams, supra, 17 Cal.4th 148, 161; Myers, supra at p. 310.) 

“It is not enough to show that reasonable people might disagree about whether to 

strike one or more of [defendant’s] 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.]” (Myers, supra, 69 Cal.App.4th at p. 
12

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 is a rare case in which the 

trial court abuses its discretion in declining to strike a prior conviction of a recidivist 

offender. 

In making such a determination, we 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, supra, 17 Cal.4th at p. 161; see also People v. Garcia 

(1999) 20 Cal.4th 490, 498-499.)

Defendant argues that the trial court failed to give due consideration to a number 

of mitigating factors that, in defendant’s view, weighed in favor of striking the prior 

strike conviction. Specifically, defendant claims the trial court failed to appreciate that 

defendant’s “abuse of his girlfriend was an isolated incident, minor in nature, and likely 

driven by drug intoxication.” As previously discussed, nothing in the record supports 

defendant’s characterization of the crime as an “isolated incident.” To the contrary, the 

trial court found that defendant is a “serial domestic violence abuser.” As we have also 

discussed, the trial court could reasonably conclude that defendant poses a “great danger 

to the community,” despite the fact that Gutierrez managed to escape with minor injuries. 

And, as we have also discussed, the trial court could reasonably conclude that 

defendant’s possible substance abuse should not excuse defendant’s conduct, inasmuch 

as he previously assaulted a woman while under the influence of alcohol, and apparently 

failed to rehabilitate himself. (See People v. Martinez (1999) 71 Cal.App.4th 1502, 1511 

[“The record demonstrates defendant has had lifelong problems with alcohol and drugs. 

However, drug addiction is not necessarily regarded as a mitigating factor when a 

criminal defendant has a long-term problem and seems unwilling to pursue treatment.”]; 
13

In re Handa (1985) 166 Cal.App.3d 966, 973-974 [“Drug use or drug addiction at the 

time of an offense is an example of a disputable factor in mitigation. The sentencing 

court may find that drug use did not significantly affect the defendant’s capacity to 

exercise judgment or, in the case of an addiction of long standing, that the defendant was 

at fault for failing to take steps to break the addiction.”].) 

Here, the record reflects that the trial court was aware of its discretion and the 

applicable factors it must consider in dismissing a prior strike, and appropriately applied 

those factors as outlined in Williams. In light of defendant’s criminal history, the 

seriousness of his past and present offenses, the fact that he committed the present 

offense while on parole for a previous domestic violence offense, his manipulative 

attempts to discourage Gutierrez from testifying, and his seemingly bleak prospects for 

rehabilitation, we cannot say that the trial court abused its discretion in declining to strike 

defendant’s prior strike convictions. 

III

Prior Prison Term Enhancement

Next, defendant contends the trial court failed to appreciate its discretion to strike 

his prior prison term enhancement. Specifically, defendant contends the trial court’s 

statement, “I have to impose the one year,” reveals that the court “did not understand it 

had discretion under section 1385 to strike the section 667.5 enhancement.” We disagree. 

Under section 667.5, subdivision (b), the trial court is required to impose a 

consecutive one-year term for each prior prison term served for any felony. (People v. 

Savedra (1993) 15 Cal.App.4th 738, 746-747.) Once a prior prison term allegation is 

found true, the trial court must either impose a consecutive one-year enhancement term 

pursuant to section 667.5, subdivision (b) or exercise its discretion to strike the allegation 

pursuant to section 1385. (People v. Langston (2004) 33 Cal.4th 1237, 1241; People v. 

Campbell (1999) 76 Cal.App.4th 305, 311; People v. Jones (1992) 8 Cal.App.4th 756, 

758.) If the trial court exercises its discretion to strike the allegation, it must provide a 
14

statement of reasons for doing so. (§ 1385, subd. (a); People v. Jordan (2003) 

108 Cal.App.4th 349, 368.)

Here, the trial court’s statement, “I have to impose the one year,” was technically 

correct, inasmuch as the prior prison term allegation was found true. (People v. Savedra, 

supra, 15 Cal.App.4th at pp. 746-747.) Although the trial court had discretion to strike 

the prior prison term enhancement, defense counsel never asked the court to do so, and 

did not object to the imposition of the one-year enhancement term. We therefore 

conclude the trial court’s statements were not inconsistent with a proper understanding of 

its discretion. We further conclude that defendant forfeited any claim based on the prior 

prison term enhancement by failing to object in the trial court. (People v. Scott (1994) 

9 Cal.4th 331, 351.) Defendant contends defense counsel’s failure to object constituted 

ineffective assistance of counsel. Again, we disagree. 

To establish ineffective assistance of counsel, a defendant must show “ ‘ “that 

counsel’s representation fell below an objective standard of reasonableness under 

prevailing professional norms, and that counsel’s deficient performance was prejudicial, 

i.e., that a reasonable probability exists that, but for counsel’s failings, the result would 

have been more favorable to the defendant.” ’ ” (In re Crew (2011) 52 Cal.4th 126, 150; 

see Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674, 697, 698].) 

“ ‘The burden of sustaining a charge of inadequate or ineffective representation is upon 

the defendant. The proof . . . must be a demonstrable reality and not a speculative 

matter.’ ” (People v. Karis (1988) 46 Cal.3d 612, 656.)

Here, the trial court imposed the one-year enhancement term after denying 

defendant’s motion to reduce the domestic violence conviction to a misdemeanor and 

rejecting his invitation to strike his prior strike convictions. The trial court offered a 

comprehensive statement of its reasons for refusing to reduce the felony to a 

misdemeanor and refusing to strike the prior convictions, all of which would have applied 

equally to a hypothetical motion to strike the prior prison term allegation. There is 
15

nothing in the record to suggest that the trial court would have been likely to grant a 

motion to strike the prior prison term allegation. We therefore conclude that defendant 

has failed to establish ineffective assistance of counsel. 

IV

Sentencing Error

Finally, in a supplemental brief, defendant contends the trial court erred in 

imposing a mid-term sentence of four years under section 273.5, subdivision (f) because 

the instant offense occurred more than seven years after his last domestic violence 

offense. The People concede the error, and we accept the concession.

Section 273.5, subdivision (f) provides: “Any person convicted of violating this 

section for acts occurring within seven years of a previous conviction under subdivision 

(a) . . . shall be punished by imprisonment in a county jail for not more than one year, or 

by imprisonment in the state prison for two, four, or five years, or by both imprisonment 

and a fine of up to ten thousand dollars ($10,000).” (§ 273.5, subd. (f)(1), italics added.) 

Here, the trial court found that defendant was previously convicted of violating section 

273.5 on April 11, 2001, more than thirteen years before defendant’s conviction for the 

instant offense. Because defendant’s previous conviction occurred more than seven years 

before the instant conviction, the trial court erred in imposing the mid-term sentence of 

four years pursuant to section 273.5, subdivision (f). We therefore remand for 

resentencing.
16

DISPOSITION

The conviction is affirmed. The sentence is vacated and the case is remanded to 

the trial court for resentencing in accordance with this opinion. In all other respects, the 

judgment is affirmed. 

 /s/

Blease, Acting P. J.

We concur:

 /s/

Robie, J.

 /s/

Murray, J.