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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 APPELLATE 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 Riverside Super. Ct. assigned by the Chief Justice 

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified. 

 Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant 

and Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and Eric A. 

Swenson, Deputy Attorneys General, for Plaintiff and Respondent. 
2

 A jury found defendant and appellant Quinton 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 same jury found that defendant was legally sane when he 

committed the offenses. In a subsequent bench trial, the trial court found true that 

defendant had suffered eight prior prison terms (§ 667.5, subd. (b)), three prior serious 

felony convictions (§ 667, subd. (a)), and three prior serious and violent felony strike 

convictions (§§ 667, subds. (c) & (e)(1), 1170.12, 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 prison 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 two 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 verdict on count 2, residential burglary (§ 459), 

and a mistrial was declared as to that count. The People later dismissed that charge. 
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11 days of presentence custody credits. For the reasons explained below, we will affirm 

the judgment with modifications. 

I 

FACTUAL BACKGROUND 

 On March 9, 2011, Lance Ybarra was sleeping in his home when he was awoken 

by a knock at the front door. Ybarra ignored the knock and went 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 punched him. Defendant responded by hitting 

Ybarra in the head several times with a rock the size of a grapefruit. Ybarra eventually 

made his way to the back door and outside his 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 was covered in blood and that his skull was 

visible through the lacerations on his scalp. As the occupants spoke with Ybarra, they all 

saw defendant carrying a flat screen television 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 scared the occupants off. 
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 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 broadcast of a home invasion robbery and 

the description of the suspects. Approximately 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 controls with blood on them. Sergeant Paiz 

did not find the television in the car. Sergeant Paiz also noticed blood spots on 

defendant’s pants. Defendant was arrested, 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 gave the items to the police. DNA samples taken from these 

items matched the DNA samples obtained from defendant. 
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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 trial court authority to order an action dismissed, “in 

furtherance of justice.” (§ 1385, subd. (a).) Under this authority, the court may vacate a 

prior strike conviction for purposes of sentencing under the Three Strikes law, “subject, 

however, to strict compliance with the provisions of section 1385.” (Romero, supra, 13 

Cal.4th at p. 504.) The decision to strike a prior conviction is reviewed 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 norm. As such, in 

reviewing a Romero decision, we will not reverse for abuse of discretion unless the 

defendant shows the decision was “so irrational 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 strike 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 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 
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should be treated as though he had not previously been convicted of one or more serious 

and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.) 

 Here, the trial court considered the probation report, testimony and reports from 

the psychologists and arguments of counsel, the intent and spirit of the law, defendant’s 

mental health issues, and defendant’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 exercise its discretion to 

strike any prior strikes. The record supports the trial court’s conclusion. 

 Defendant’s criminal history dates back over 35 years. He began a life of crime in 

1976 as a juvenile when he committed a robbery. 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 robbery; 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 vehicle 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. Finally, in 2004, defendant sustained a second conviction for 

transportation or sale of a controlled substance and was sentenced to six years in state 

prison. 
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 Defendant accumulated nine felony and several misdemeanor convictions between 

1976 and 2004. Eight prison terms and countless 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 was on parole and/or on probation when he 

committed many of the offenses in this case. His 35-year criminal record, in short, made 

him “the kind of revolving-door career criminal for whom the Three Strikes law was 

devised.” (People v. Gaston (1999) 74 Cal.App.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 factors, and there is nothing on this record that 

removes defendant from the three strikes scheme. 

 While conceding he has not led a “blameless” life since his 1981 and 1988 

convictions, defendant asserts the court failed to adequately consider his mental 

illnesses and possible brain damage and should have struck the remote convictions in 

light of his long history of serious mental health issues. Courts have routinely 

rejected arguments where the defendant did 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 dismiss 14-year-old strike justified where the 

defendant’s criminal activity “continued unabated” upon his release from prison, 

“despite . . . the drug rehabilitation efforts” he claimed to have made]; People v. 
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Humphrey (1997) 58 Cal.App.4th 809, 813 (Humphrey) [reversing the dismissal of a 20-

year-old prior].) “In determining whether a prior conviction 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 stricken where the record establishes “a crimefree cleansing period of rehabilitation after a defendant has had the opportunity 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 record 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 aware of defendant’s mental health issues. 

The trial court earlier had presided over the sanity phase of the trial 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 defendant’s competency 

concerns. The jury found defendant was legally sane when he committed the instant 

offenses. It therefore necessarily found that defendant’s mental disease or defect did not 

render him “incapable of knowing or understanding the nature and quality of (his/her) 

act” or “incapable of knowing or understanding that his act was morally or legally 

wrong.” The psychologists also found that while defendant suffered from a 

schizophrenic condition with evidence of antisocial behavior and poly-substance abuse, 

defendant was voluntarily taking his medications and as a result of the medications, 
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defendant was capable of understanding the nature and objective of the proceedings 

against him. Moreover, in emphasizing the mental 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. The current offenses involved great violence, 

namely, defendant bashing the victim’s skull repeatedly with a rock, and defendant’s 

history of serious and violent 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 his 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 [trial] court erroneously found it lacked authority 

to consider [his] mental condition as a factor.” (Id. at p. 993.) In Carrasco, in denying 

the motion, the trial court commented that case law did not authorize consideration of the 

defendant’s “‘mental state, his mental condition, the reasons why he wanted to do these 

things.’” (Id. at p. 993.) The appellate court explained, “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 defendant’s “background and character in ruling 
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on the motion,” its remarks about his 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 court 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 the [insanity] defense that was presented in this 

case, and the Court having expressed concern regarding [defendant] . . . .” However, as 

noted previously, the record does not demonstrate the trial court failed to consider that 

evidence. “We view the totality of the trial court’s statement 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 totality of the circumstances did not justify 

dismissing any or all of defendant’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 first instance’ [citation].” (Carmony, supra, 33 Cal.4th at p. 378.) 

 Given defendant’s criminal 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 defendant fell within the spirit of the 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. 
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 B. Sentence on the Three Prior Prison Terms 

 Defendant also claims the trial 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 could 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 prior enhancements. The People 

correctly concede the error. We agree the trial court was required to strike, rather than 

stay, the sentence enhancement on the three prior prison term 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 for 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 conviction 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 available for the same prior 

offense, one of which is a section 667 enhancement, 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 (because the underlying offense was a serious 
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felony) and a one-year term (because 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, subdivision (a)(1), and a prison prior enhancement under section 

667.5, subdivision (b), based on the same three qualifying convictions (a 1998 residential 

burglary (second prison prior offense); a 1988 shooting at an inhabited dwelling (fifth 

prison prior offense); and a 1981 robbery (seventh prison prior offense)). Rather than 

remanding the matter as the People suggest, we will 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, subdivision (a)(1), states: “To ensure and 

maintain adequate funding for court facilities, an assessment shall be imposed on every 

conviction for a criminal offense . . . . The assessment shall be imposed in the amount of 

thirty dollars ($30) for each misdemeanor or felony and in the amount of thirty-five 

dollars ($35) for each infraction.” 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, 2013 sentencing hearing, the trial court 

mistakenly imposed a Government Code section 70373 fee in the amount of $40 on each 
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of the convicted counts or $80. The clerk’s minute order of the sentencing hearing also 

erroneously shows that defendant was ordered 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 appears in the abstract of judgment. 

 Accordingly, the Government Code section 70373 criminal conviction assessment 

fee should be reduced to $30 per count, or $60. 

 D. Presentence Custody Credits

 Lastly, defendant contends the trial court 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 awarded. The People agree defendant is entitled to an 

additional 11 days of presentence custody credits. 

 Credits for presentence custody are calculated 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 custody before he was sentenced, not 763 days as noted by 

the trial court. Conduct credit is calculated 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 subdivision (c) of Section 667.5 shall accrue no 

more than 15 percent of worktime credit, as defined in Section 2933.” Robbery is a 

violent felony offense listed in section 667.5, subdivision (c)(9). Because defendant 

served 773 actual days in custody, the correct amount of good conduct credits under the 
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15 percent limitation is 115 days. Accordingly, defendant is entitled to a total of 888 

days (773 plus 115) in presentence custody credits. 

 Furthermore, although not raised by either party, we note that the clerk’s minute 

order of the April 19, 2013 sentencing hearing and the abstract of judgment erroneously 

note that defendant was sentenced to an indeterminate term of 25 years to life. At the 

time of oral pronouncement, the trial court sentenced defendant to a determinate term of 

23 years and a total indeterminate term of 29 years 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 courts 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 judgment be corrected so as to reflect the trial court’s oral 

pronouncement of judgment. 

III 

DISPOSITION 

 The judgment is modified to strike the one-year second, fifth, and seventh prior 

prison term enhancements. The judgment is also modified to reflect a criminal 

conviction assessment fee pursuant to Government Code section 70373 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 the 
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presentence custody, for a total 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 hearing 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 abstract of judgment to the Department of Corrections and 

Rehabilitation. In all other respects, the judgment is affirmed. 

 NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

RAMIREZ 

 P. J. 

We concur: 

RICHLI 

 J. 

MILLER 

 J