I. FACTUAL AND PROCEDURAL BACKGROUND4

The victim started dating defendant in December 2017. She moved in with him in

October 2018. She had two daughters from a previous relationship, both who initially

lived with them. Defendant’s daughter also stayed with them on weekends.

In January 2019, they moved into a house together in Corona. At some point, the

victim’s eldest daughter moved out, at least in part, due to her dislike of defendant. In

February 2019, the victim’s mother passed away. In the same month, defendant’s brother

died. Their relationship became strained thereafter.

A. Counts 5 & 6—April 12, 2019

On April 12, 2019, defendant called the victim; he asked her to skip work to come

out to help him in Indio where his truck had broken down. She drove out to help him but

had difficulty locating him; defendant’s phone was not working. She eventually located

him at a hotel. The victim was exhausted and became annoyed when defendant was not

ready to leave; defendant wanted to take a shower before leaving.

Defendant was displeased when the victim grabbed her keys to leave without him.

He reached for the keys and grabbed her throat. Defendant later threw the keys at the

4 We relate the facts adduced at trial only as to the counts on which the jury convicted defendant.

3 victim, scratching her. As a result, the victim sustained discoloration of her face, jawline,

and collarbone. She dropped defendant off at his truck and left.

B. Counts 7 & 9—April 13, 2019

The next day, defendant asked the victim to come out to help him in Indio again.

She again had trouble finding him. Once the victim located defendant, she told him to

hurry up so they could leave or she would leave on her own. Defendant became upset

with her.

After defendant got into the car, the victim sped off at a high rate of speed.

Defendant complained that she was driving too fast and put the car in neutral. The victim

grabbed his hand, scratching him with her nails in the process. Defendant responded by

repeatedly hitting her in the arm with a closed fist. He then grabbed the victim by the

back of her hair and hit her head into the steering wheel.

When they arrived home, they continued to argue. Defendant took the victim’s

phone and physically restrained her on the bed in order to prevent her from calling the

police. She fell asleep with defendant on top of her, awakening the next morning.

C. Counts 10, 11, & 13—April 16, 2019

On April 16, 2019, the victim told defendant he needed to move out. Defendant

later took her phone, threw her on the bed, and restrained her. The victim said she was

going to call for her daughter, so defendant covered her mouth and nose with a towel to

keep her from screaming. The victim could not breath; she thought defendant was going

to kill her. The victim told an officer she had been fighting for her life.

4 The victim’s daughter reported seeing defendant push the victim into the wall.

Defendant took the victim’s phone to prevent her from calling the police. He laid down

upon her; she would tell him to get off, but he would tell her she needed to calm down.

The daughter heard the victim say that defendant was trying to strangle her. The

daughter messaged a friend on her iPad requesting that she call the police. Officers

arrived shortly thereafter. A forensic nurse who examined the victim documented more

than 30 injuries, including bruising, scratches, and abrasions, which were consistent with

the victim’s account of the physical altercations between she and defendant.

II. DISCUSSION

A. Romero Motion

Defendant contends the court abused its discretion in denying his Romero motion.

We disagree.

On September 9, 2019, defense counsel filed a Romero motion urging the court to

strike defendant’s prior strike conviction based on the circumstances of the instant

offenses; the nature, age, and purported lack of severity of the prior convictions;

defendant’s willingness to undergo counseling; and that defendant was not a danger to

society. The defense deferred to the probation officer’s report regarding defendant’s

social history.

As evidence of prior acts of domestic violence, defendant’s ex-wife testified at

trial that during an argument about their daughter’s custody, defendant stated, “‘You will

never take my daughter away from me. If you ever try to take my daughter away from

me, I will kill you. If anyone ever tries to take her away from me, I will kill them.’”

5 The probation officer’s report reflects that defendant had previously been convicted

on December 4, 2008, for felony criminal threats (Pen. Code, § 422) and on April 26,

2018, for the misdemeanor offenses of driving without a license (Veh. Code, § 12500,

subd. (a)) and possession of ammunition by a prohibited person (Pen. Code, § 30305,

subd. (a)(1)). Defendant had his parole on the felony offense revoked. Defendant was on

summary probation when he committed the instant offenses. Defendant had a long work

history, including working as a correctional officer for the California Department of

Corrections for six years; however, his employment with the latter was terminated for

drug use. Defendant was 41 years old when he committed the instant offense.

The probation officer listed eight factors in aggravation, including that the instant

offenses involved violence, defendant threatened witnesses, defendant took advantage of

a position of trust, defendant had prior convictions of increasing seriousness, defendant

had served a prior term in prison, and defendant’s performance on probation was

unsatisfactory. The probation officer listed no circumstances in mitigation. The

probation officer observed that during their interview, defendant “appeared to minimize

the seriousness of his actions . . . .” “His lack of responsibility for his actions and

inability to avoid such situations makes him a serious threat to the community.”

At the hearing on the motion, the People argued against the court exercising its

discretion to grant the motion. Defense counsel argued in favor of the motion. The court

ruled, “I will decline to grant the Romero motion at this time.”

“[A] court’s failure to dismiss or strike a prior conviction allegation is subject to

review under the deferential abuse of discretion standard.” (People v. Carmony (2004)

6 33 Cal.4th 367, 374.) Under this standard, the defendant bears the burden of establishing

an abuse of discretion. In the absence of such a showing, the trial court is presumed to

have acted correctly. The appellate court may not substitute its judgment for that of the

trial court when determining whether the trial court’s decision to strike the prior was

proper. (Id. at pp. 376-377.)

“‘[I]n ruling whether to strike or vacate a prior serious and/or violent felony

conviction allegation or finding under the Three Strikes law, on its own motion, “in

furtherance of justice” pursuant to . . . section 1385[, subdivision] (a), or in reviewing

such a ruling, the court in question 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 should be treated as

though he had not previously been convicted of one or more serious and/or violent

felonies.’” (People v. Carmony, supra, 33 Cal.4th at p. 377.) “‘[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.’” (Id. at p. 378.)

Here, immediately after denying the motion, the court, who was the judge at trial,

indicated it had “read and considered the probation officer’s report.” Thus, the court was

familiar with the relevant facts. Although the court did not give reasons for its denial of

defendant’s motion, we presume the court acted correctly unless defendant proves

otherwise. Defendant has failed to bear his burden to demonstrating error.

7 Here, defendant engaged in a series of violent acts against his girlfriend for which

she sustained numerous injuries. Defendant had previously threatened the life of a person

with whom he was in a domestic relationship. Defendant had several previous

convictions, including one for felony terrorist threats. Defendant had performed poorly

on his parole from that offense by having his parole revoked. Defendant committed the

instant offenses while he was still on probation from his most recent convictions.

Defendant failed to take responsibility or take seriously the offenses for which he

was convicted in the instant case. Although defendant had a consistent work history, he

had been fired for drug use. Defendant admitted he continued to use drugs, including the

daily use of methamphetamine when he committed the instant offenses. Thus, defendant

failed to demonstrate he was outside the scope of the spirit of the three strikes law, and

the court acted within its discretion in denying defendant’s Romero motion.

B. Section 1203.1c Costs

Defendant contends the court erred in imposing $1,500 in costs for his presentence

incarceration. The People concede the issue. We agree.

“In any case in which a defendant is convicted of an offense and is ordered to

serve a period of confinement in a county jail, city jail, or other local detention facility as

a term of probation or a conditional sentence, the court may, after a hearing, make a

determination of the ability of the defendant to pay all or a portion of the reasonable costs

of such incarceration, including incarceration pending disposition of the case.”

(§ 1203.1c, subdivision (a).)

8 Here, defendant was sentenced to prison, not a local detention facility as a term of

probation. Thus, the court erred in imposing the costs of defendant’s presentence

incarceration. We shall order the judgment modified accordingly.

III. DISPOSITION

The judgment is modified by striking the $1,500 costs imposed for defendant’s

presentence incarceration pursuant to section 1203.1c. The trial court is ordered to

amend the abstract of judgment and sentencing minute order to reflect the striking of

$1,500 costs and to forward a certified copy of the amended judgment to the Department

of Corrections and Rehabilitation. As modified, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER Acting P. J. We concur:

CODRINGTON

J.

FIELDS

J.

9