1 Filed 7/31/14 P. v. Gray CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOURTH APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. QUINTON ULESSESS GRAY, Defendant and Appellant. E058595 (Super.Ct.No. INF1100632) OPINION

APPEAL from the Superior Court of Riverside County. Graham Anderson Cribbs, Judge. (Retired Judge of the Rive rside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified. Victoria H. Stafford, under appointmen t 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, Lynne G. McGinnis and Eric A. Swenson, Deputy Attorn eys General, for Plaintiff and Respondent.2 A jury found defendant and appellant Qu inton Ulessess Gray guilty of first degree robbery (Pen. Code, §§ 211, 212.5, subd. (a); count 1) 1 and assault with a deadly weapon (§ 245, subd. (a)(1); count 3). 2 The jury also found true that in the commission of counts 1 and 3, defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)). In a bifurcated proceeding, the sa me jury found that defendant was legally sane when he committed the offenses. In a subsequent bench tr ial, the trial court found true that defendant had suffered eight prior prison term s (§ 667.5, subd. (b )), three prior serious felony convictions (§ 667, subd. (a)), and th ree prior serious and violent felony strike convictions (§§ 667, subds. (c) & (e)(1), 11 70.12, subd. (c)(1)). After the trial court denied defendant’s motion to dismiss his prior strike convictions, defendant was sentenced to an aggregate determinate term of 23 years, plus a consecutive indeterminate term of 29 years to life in state pr ison with credit for time served. On appeal, defendant contends: (1) the trial court abused its discretion in denying his motion to strike prior remote convictions under People v. Superior Court ( Romero ) (1996) 13 Cal.4th 497 ( Romero ); (2) the trial court erred in staying three of his prior prison term enhancements, rather than striking them; (3) the trial court erred in imposing a criminal conviction assessment fee pursuant to Government Code section 70373 in the amount of $40 on each of the tw o convicted counts; and (4) he is entitled to an additional

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

2 The jury was unable to reach a verdic t on count 2, residential burglary (§ 459), and a mistrial was declared as to that coun t. The People later dismissed that charge.3 11 days of presentence custody credits. For the reasons explained be low, we will affirm the judgment with modifications.
I FACTUAL BACKGROUND On March 9, 2011, Lance Ybarra was sl eeping in his home when he was awoken by a knock at the front door. Ybarra ignored the knock and we nt to the bathroom. While inside the bathroom, Ybarra heard a loud noise. Ybarra walked into his living room and saw defendant standing inside. Ybarra told defendant to get out of his house. When defendant refused to comply, Ybarra punche d him. Defendant responded by hitting Ybarra in the head seve ral times with a rock the size of a grapefruit. Ybarra eventually made his way to the back door and outside hi s residence, as defendant repeatedly struck him on the head with the rock. Once outside, Ybarra flagged down a car and asked the occupants inside to call 911. The occupants noticed that Ybarra wa s covered in blood and that his skull was visible through the lacerations on his scalp. As the occupant s spoke with Ybarra, they all saw defendant carrying a flat screen televisi on out of Ybarra’s home and loading it into a Toyota sedan. Ybarra asked the occupants to approach the vehicle and to take down the car’s license plate number. As they neared the vehicle, defendant made threatening gestures and remarks and sc ared the occupants off.4 Paramedics and police eventually arrived. Ybarra was taken to a hospital. As a result of the assault, Ybarra suffered three scars on his head and painful headaches that lasted for several months. Sergeant Gustavo Paiz heard a police br oadcast of a home invasion robbery and the description of the suspects. Approximat ely 20 to 30 minutes later, Sergeant Paiz located the vehicle and conducted a high-risk traffic stop. Defendant was the driver of the vehicle and a male was in the passenger seat. After handcuffing defendant and his passenger, Sergeant Paiz located two remote cont rols with blood on them. Sergeant Paiz did not find the television in the car. Se rgeant Paiz also noticed blood spots on defendant’s pants. Defendant was arrest ed, and soon thereafter, Ybarra identified defendant during a curbside lineup. Ybarra’s blood was splattered both inside and outside of his residence. Police discovered a rock with possible blood on it in the dining area of Ybarra’s house; a shoe print on the front exterior door; and a shoe impression in the dirt by the door. The shoeprint impressions matched the tread pattern on the soles of the boots defendant was wearing when he was arrested. Later, Ybarra found some glasses and a watch that did not belong to him. Ybarra ga ve the items to the police. DNA samples taken from these items matched the DNA samples obtained from defendant.5 II DISCUSSION
A. Motion to Strike Priors Defendant contends the trial court abused its discretion in denying his Romero motion to strike his prior remote convictions. We disagree. Section 1385 gives the tria l court authority to order an action dismissed, “in furtherance of justice.” (§ 1385, subd. (a).) Under this au thority, the court may vacate a prior strike conviction for purposes of sent encing under the Three Strikes law, “subject, however, to strict compliance with th e provisions of section 1385.” ( Romero , supra , 13 Cal.4th at p. 504.) The decision to strike a prior conviction is review ed under an abuse of discretion standard. ( People v. Carmony (2004) 33 Cal.4th 367, 374 ( Carmony ).) Dismissal of a strike is a departure from the sentencing nor m. As such, in reviewing a Romero decision, we will not reverse for abuse of discretion unless the defendant shows the decision was “so irratio nal or arbitrary that no reasonable person could agree with it.” ( Carmony , supra , 33 Cal.4th at p. 377.) Reversal is justified where the trial court was unaware of its discretion to strike a prior st rike or refused to do so, at least in part, for impermissible reasons. ( Id . at p. 378.) In ruling on a Romero motion, the trial court “must consider whether, in light of the nature and circumstances of his present felonies and prior se rious and/or violent felony convictions, and the particulars of hi s background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence6 should be treated as though he had not previously been convi cted of one or more serious and/or violent felonies.” ( People v. Williams (1998) 17 Cal.4th 148, 161.) Here, the trial court considered the pr obation report, testimony and reports from the psychologists and arguments of counsel, th e intent and spirit of the law, defendant’s mental health issues, and defe ndant’s criminality, including the remoteness of the priors and defendant’s failure to lead a crime-free life. Despite defendant’s mental health problems and the remoteness of the priors, the court declined to exer cise its discretion to strike any prior strikes. The record supports the trial court’s conclusion. Defendant’s criminal history dates back ov er 35 years. He began a life of crime in 1976 as a juvenile when he committed a ro bbery. A few years later, in 1978, he was convicted of assault and battery . In 1980, he sustained two convictions for second degree burglary; in 1981, a second conviction for ro bbery; and in 1985, a third conviction for burglary. Thereafter, in 1988, defendant was convicted of discharging a firearm at an inhabited dwelling or an occupied motor vehi cle and sentenced to state prison for five years. In 1991, he sustained a conviction for possessing a controlled substance; and in 1992, a conviction for vehicle theft. In 1992, he was also convicted of transportation or sale of a controlled substance and sentenced to six years in state prison. In 1998, he was convicted of first degree burglary (his fourth burglary conviction) and sentenced to eight years in state prison. Fina lly, in 2004, defend ant sustained a second conviction for transportation or sale of a c ontrolled substance and was sent enced to six years in state prison.7 Defendant accumulated nine felony and se veral misdemeanor convictions between 1976 and 2004. Eight prison terms and countle ss years in jails did not persuade him to change his criminal ways. Although he has repeatedly been granted probation and parole, his performance was dismal. He wa s on parole and/or on probation when he committed many of the offenses in this case. His 35-year crim inal record, in short, made him “the kind of revolving-door career crim inal for whom the Three Strikes law was devised.” ( People v. Gaston (1999) 74 Cal.A pp.4th 310, 320 ( Gaston ).) The denial of his Romero motion was not an abuse of discretion. The court was aware of its discretion, properly considered the relevant facts and fact ors, and there is nothing on this record that removes defendant from the three strikes scheme. While conceding he has not led a “b lameless” life since his 1981 and 1988 convictions, defendant asserts the court fa iled to adequately consider his mental illnesses and possible brain damage and should have struck the re mote convictions in light of his long history of serious mental health issues. Courts have routinely rejected arguments where the defendant di d not live a crime-free life between his or her strike prior and current crimes. (E.g., Gaston , supra , 74 Cal.App.4th at p. 321 [abuse of discretion to strike 17-year-old prior where the defendant’s “continuous crime spree . . . substantially spanned his entire adult life”]; People v. Barrera (1999) 70 Cal.App.4th 541, 554-555 [refusal to dismis s 14-year-old strike justified where the defendant’s criminal activity “continued unabated” upon his release from prison, “despite . . . the drug rehabilitation e fforts” he claimed to have made]; People v.8 Humphrey (1997) 58 Cal.App.4th 809, 813 ( Humphrey ) [reversing the dismissal of a 20- year-old prior].) “In determ ining whether a prior convicti on is remote, the trial court should not simply consult the Gregorian calendar with blinders on.” ( Humphrey , at p. 813.) A remote prior may properly be st ricken where the record establishes “a crimefree cleansing period of rehabilitation after a de fendant has had the o pportunity to reflect upon the error of his or her ways.” ( Ibid .) That was not the case here. Here, as in the above cases, defendant’s 35-year criminal re cord renders the remoteness of his prior strike “not significant.” ( Gaston , at p. 321.) Furthermore, we disagree with defendant’s characterization of the record that the trial court “gave insufficient consideration” to defendant’s mental illnesses. As the record demonstrates, the trial court was well aw are of defendant’s mental health issues. The trial court earlier had presided over the sa nity phase of the tria l and, as such, had before it the testimony of psychologists, Drs. Robert Suiter and Michael Leitman. The court also had psychological reports filed in response to defe ndant’s competency concerns. The jury found de fendant was legally sane wh en he committed the instant offenses. It therefore necessar ily found that defendant’s ment al disease or defect did not render him “incapable of knowing or unders tanding the nature and quality of (his/her) act” or “incapable of knowing or understa nding that his act was morally or legally wrong.” The psychologists also found that while defendant suffered from a schizophrenic condition with ev idence of antisocial behavior and poly-substance abuse, defendant was voluntarily taking his medica tions and as a result of the medications,9 defendant was capable of understanding the nature and objective of the proceedings against him. Moreover, in emphasizing the me ntal health issues that are part of his background, defendant either ignores or minimizes other aspects relevant to the Romero motion that were unfavorable to him. Th e current offenses involved great violence, namely, defendant bashing the victim’s sku ll repeatedly with a rock, and defendant’s history of serious and viol ent convictions, incarcerations, and the commission of new offenses within short periods of time after being released. Defendant does not cite any authority—nor are we aware of any—that suggests that a court should grant a Romero motion where the defendant makes a showing that mental illness played some role in hi s criminal history. In fact, in People v. Carrasco (2008) 163 Cal.App.4th 978 ( Carrasco ), where the defendant’s Romero motion was based on the fact that he had “‘significant mental health history and issues’” and was “suffering from the effects of long-term drug use” ( id . at p. 992), the Court of Appeal rejected the defendant’s claim that “the [tri al] court erroneously fo und it lacked authority to consider [his] mental condition as a factor.” ( Id . at p. 993.) In Carrasco , in denying the motion, the trial court comme nted that case law did not authorize consideration of the defendant’s “‘mental state, hi s mental condition, the reasons why he wanted to do these things.’” ( Id . at p. 993.) The appellate court expl ained, “The record reflects the trial court considered a wide range of appropriate factors in passing sentence, particularly the nature and circumstances of appellant’s present and past convictions.” ( Ibid .) Since the trial court had expressly considered the defe ndant’s “background an d character in ruling10 on the motion,” its remarks about hi s mental condition amounted to “an acknowledgement that the court could not give undue weight to an inherently speculative argument that defendant’s mental state ‘made him do it.’” ( Id . at pp. 993-994.) In the present case, the trial court made only a brief reference to the evidence of defendant’s mental illness. Specifically, the c ourt stated: “I don’t know how else to say it—as bad as it can be in the context of what his behavior has been like. However, that’s not to say that the Court is not mindful of th e [insanity] defense that was presented in this case, and the Court having expre ssed concern regarding [defenda nt] . . . .” However, as noted previously, the record does not demonstr ate the trial court failed to consider that evidence. “We view th e totality of the trial court’s st atement of reasons, not just one snippet.” ( Carrasco , supra , 163 Cal.App.4th at p. 993.) As in Carrasco , the record reflects the trial court believed that the to tality of the circumst ances did not justify dismissing any or all of defenda nt’s strikes. “‘[W]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the firs t instance’ [citation].” ( Carmony , supra , 33 Cal.4th at p. 378.) Given defendant’s cr iminal history, his inability to avoid criminal activity for a substantial period of time, and his violent behavior, the trial court was well within its discretion to find that defend ant fell within the spirit of th e Three Strikes law despite his mental health history. Thus , we conclude the trial court did not abuse its discretion in declining to strike some or all of defendant’s prior strike convictions.11 B. Sentence on the Thre e Prior Prison Terms Defendant also claims the tr ial court erred in staying, rather than striking, three of his eight prison prior sentence enhancements (§ 667.5, subd. (b)). Defendant argues the trial court properly recognized that it coul d not impose both a one-year prison prior sentence enhancement (§ 667.5, subd. (b)) and a five-year serious felony sentence enhancement (§ 667, subd. (a)(1 )) based on the same prior convictions, but that the trial court erred in staying, rather than striking, the prison prio r enhancements. The People correctly concede the error. We agree the trial court was required to strike, rather than stay, the sentence enhancemen t on the three prior prison te rm enhancements. (See People v. Jones (1993) 5 Cal.4th 1142, 1153 ( Jones ).)
In Jones , the defendant was sentenced to five years for a section 667, subdivision (a) enhancement, and to a one-year section 667.5, subdivision (b) enhancement, based on a prior conviction fo r a single serious felony and the resulting prior prison term for that felony. ( Jones , supra , 5 Cal.4th at p. 1145.) The Jones court held that a single prior conv iction cannot be the basis of both a prior serious felony enhancement and a prior prison term enhancement. ( Id . at p. 1150.) The court concluded that when multiple statutory enhancement provisions are av ailable for the same prior offense, one of which is a section 667 enha ncement, the greatest enhancement—but only that one—will apply. ( Jones , at p. 1150.) Because the trial court in Jones had used the same offense to impose a five-year term (bec ause the underlying offense was a serious12 felony) and a one-year term (b ecause the defendant was imprisoned for the prior serious felony), Jones held the one-year term should be stricken. ( Jones , at pp. 1150-1153.) Likewise, the trial court here imposed both a serious felony prior enhancement under section 667, subdivis ion (a)(1), and a prison prior enhancement under section 667.5, subdivision (b), based on the same thre e qualifying convictions (a 1998 residential burglary (second prison prior offense); a 198 8 shooting at an inha bited dwelling (fifth prison prior offense); and a 1981 robbery (seventh prison prio r offense)). Rather than remanding the matter as the People suggest, we w ill strike the one-year second, fifth, and seventh prior prison term enhancements.
C. Criminal Conviction Assessment Fee Defendant further argues the Government Code section 70373 criminal conviction assessment fee should be reduced to $ 30 per count. The People agree. Government Code section 70373, subdiv ision (a)(1), states: “To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offens e . . . . The assessment sha ll be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony and in the amount of thirty-five dollars ($35) for each in fraction.” The statute operates upon the event of a defendant’s conviction. ( People v. Castillo (2010) 182 Cal.App.4th 1410, 1414; People v. Fleury (2010) 182 Cal.App. 4th 1486, 1492.) In the present matter, at the April 19, 2 013 sentencing hearing, the trial court mistakenly imposed a Government Code secti on 70373 fee in the am ount of $40 on each13 of the convicted counts or $80. The clerk’ s minute order of the sentencing hearing also erroneously shows that defendant was ordere d to pay a criminal conviction assessment fee pursuant to Government Code section 70373 in the amount of “$80 [$30 per convicted charge].” The same error app ears in the abstract of judgment. Accordingly, the Government Code sec tion 70373 criminal conviction assessment fee should be reduced to $30 per count, or $60.
D. Presentence Custody Credits Lastly, defendant contends the trial cour t erroneously calculated the amount of his custody credits. He argues that he is entitled to a total of 888 days , an additional 11 days over the 877 days he was aw arded. The People agree defendant is entitled to an additional 11 days of pres entence custody credits. Credits for presentence custody are calcul ated from the day of arrest through the day of sentencing. ( People v. Bravo (1990) 219 Cal.App.3d 729 , 735.) Defendant was taken into custody on March 9, 2011, and was sentenced on April 19, 2013. Defendant therefore spent 773 days in cu stody before he was sentenced, not 763 days as noted by the trial court. Conduct credit is calculat ed under section 2933 .1. Section 2933.1, subdivision (a), provides, “( a) Notwithstanding any other law, any person who is convicted of a felony offense listed in subdiv ision (c) of Section 667.5 shall accrue no more than 15 percent of work time credit, as defined in S ection 2933.” Robbery is a violent felony offense listed in section 667.5, subdivisio n (c)(9). Because defendant served 773 actual days in cust ody, the correct amount of g ood conduct credits under the14 15 percent limitation is 115 days. Accordingly, defendan t is entitled to a total of 888 days (773 plus 115) in pr esentence custody credits. Furthermore, although not raised by either party, we note that the clerk’s minute order of the April 19, 2013 sentencing hearin g and the abstract of judgment erroneously note that defendant was sentenced to an indete rminate term of 25 year s to life. At the time of oral pronouncement, the trial court se ntenced defendant to a determinate term of 23 years and a total indeterminate term of 29 y ears to life. When there is a discrepancy between the oral pronouncement of a sentence and the minute order or the abstract of judgment, the oral pronouncement controls. ( People v. Mitchell (2001) 26 Cal.4th 181, 185.) In such circumstances, appellate cour ts may order correction of the clerk’s minute order and abstracts of judgment that do not accurately reflect the oral judgments of sentencing courts. ( Ibid .) Therefore, we order the clerk’s minute order of the sentencing hearing and the abstract of judg ment be corrected so as to reflect the trial court’s oral pronouncement of judgment.
III DISPOSITION The judgment is modified to strike th e one-year second, fift h, and seventh prior prison term enhancements. The judgment is also modified to reflect a criminal conviction assessment fee pursuant to Govern ment Code section 7 0373 in the amount of $30 per convicted count, or $60. The judgment is further modified to reflect 773 actual days in presentence custody, plus 115 days of conduct credit attributable to the15 presentence custody, for a tota l of 888 days in presentence custody credits. The clerk of the superior court is directed to prepare an amended abstract of judgment and minute order of the April 19, 2013 sentencing hearin g to reflect defendant’s total indeterminate sentence as 29 years to life as well as the modifications noted above and to forward a certified copy of the amended ab stract of judgment to the Department of Corrections and Rehabilitation. In all other resp ects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ P. J. We concur:

RICHLI J.

MILLER J