California Court of Appeal Aug 8, 2025 No. E082292Unpublished
Filed 8/8/25 P. v. Barker 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E082292
v. (Super.Ct.No. FVI08614)
CURTIS DASHAWN BARKER, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Shannon L.
Faherty, Judge. Affirmed with directions.
Martin Kassman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Assistant Attorney General,
Steve Oetting and Heather B. Arambarri, Deputy Attorneys General, for Plaintiff and
Respondent.
The trial court found Curtis Dashawn Barker eligible for resentencing under Penal
Code section 1172.75, struck his now-invalid prior prison term enhancement, dismissed 1
his two prior serious felony enhancements, and declined to dismiss a prior strike
conviction under subdivision (a) of Penal Code section 1385 and People v. Superior
conviction allegations in furtherance of justice.” (Romero, supra, 13 Cal.4th at p. 530.)
In making that determination, a trial court must balance the constitutional rights of
defendants, including the right to avoid disproportionate punishment, against society’s
legitimate interest in the fair prosecution of properly charged crimes. (Id. at pp. 530-
531.) In People v. Williams (1998) 17 Cal.4th 148, 161 (Williams), our Supreme Court
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held that when considering a Romero motion, “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.” Only “extraordinary” circumstances warrant
finding that a defendant who is a career criminal “falls outside the spirit of the three
strikes scheme.” (Carmony, supra, 33 Cal.4th at p. 378; People v. Philpot (2004) 122
Cal.App.4th 893, 907.)
We review a trial court’s decision not to strike a prior felony conviction for abuse
of discretion. (Carmony, supra, 33 Cal.4th at p. 371.) It is the defendant’s burden on
appeal to “‘“show that the sentencing decision was irrational or arbitrary.”’” (Id. at
p. 376.) Absent “‘“such a showing, the trial court is presumed to have acted to achieve
legitimate sentencing objectives, and its discretionary determination to impose a
particular sentence will not be set aside on review.”’” (Id. at pp. 376-377.) In addition,
we will not reverse a trial court’s sentencing decision “‘“merely because reasonable
people might disagree. ‘An appellate tribunal is neither authorized nor warranted in
substituting its judgment for the judgment of the trial judge.’”’” (Id. at p. 377.)
We cannot say that the trial court’s decision was irrational or arbitrary. (Carmony,
supra, 33 Cal.4th at p. 377.) The record demonstrates that the court considered all of the
relevant factors, including the nature and circumstances of Barker’s past and present
offenses and his background, character, and prospects, and the court declined to strike
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either of the prior strike convictions because committing three robberies in such a brief
period—from age 21 to age 30—“is within the spirit of the three strikes law.” (Williams,
supra, 17 Cal.4th at p. 161.) When the court considered whether to strike Barker’s
enhancements, it also considered the relevant factors under subdivision (c)(2) of section
1385 and the relevant postconviction factors listed in subdivision (d)(2) of section
1172.75. The court was not required to consider those factors when considering Barker’s
Romero motion (§ 1172.75, subd. (d)(2); People v. Burke (2023) 89 Cal.App.5th 237,
242-244), and in any event we do not reweigh the evidence on appeal (People v. Scott
(1994) 9 Cal.4th 331, 355). For all of these reasons, we cannot conclude that the court
abused its discretion by declining to dismiss one of Barker’s prior strikes.
B. Calculation of custody credits
Barker argues that the trial court failed to recalculate his custody credits. The
People agree and contend that from the date Barker was arrested for the present offense
(October 1, 1998) to the date of the resentencing hearing (September 29, 2023), Barker
was in custody for 9,130 days and also had 1,371 days of conduct credit. Barker’s reply
brief does not dispute those figures. We accept the People’s concession.
“Everyone sentenced to prison for criminal conduct is entitled to credit against his
term for all actual days of confinement solely attributable to the same conduct.”
(§ 2900.5, subd. (d); see also People v. Buckhalter (2001) 26 Cal.4th 20, 29-30, 37
(Buckhalter).) When a defendant is imprisoned and later resentenced, “the sentencing
court must recalculate and credit against the modified sentence all actual time the
defendant has already served, whether in jail or prison, and whether before or since he
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was originally committed and delivered to prison custody.” (Buckhalter, supra, at p. 29.)
The trial court did not state an updated number of days of custody credit, the resentencing
minute order states Barker’s custody credits in terms of years rather than days, and the
new abstract of judgment states only Barker’s custody credits as of his original
sentencing. We therefore direct the trial court to correct both the 2023 resentencing
minute order and the abstract of judgment to reflect Barker’s 9,130 days of actual custody
credit and 1,371 days of conduct credit for a total of 10,501 days of credit.
DISPOSITION
The trial court is directed to correct the minute order of October 2, 2023, nunc pro
tunc to reflect 9,130 actual days of actual custody credit and 1,371 days of conduct for a
total of 10,501 days of credit. The court is further directed to prepare an amended
abstract of judgment conforming to the corrected minute order and to forward a copy to
the CDCR. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICAL REPORTS
MENETREZ J.
We concur:
MILLER Acting P. J.
RAPHAEL J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's sentence, finding no abuse of discretion in the denial of his Romero motion to strike a prior conviction, but remanded for the ministerial correction of custody credits.
Issues
Did the trial court abuse its discretion by declining to dismiss a prior strike conviction under Romero?
Did the trial court fail to properly calculate custody credits upon resentencing?
Disposition. Affirmed with directions.
Quotations verified verbatim against the opinion
“I do think that initially that this idea of three robberies committed within 6 years, that is within the spirit of the three strikes law. So I’m not going to strike a prior strike.”
“We cannot conclude that the court abused its discretion by declining to dismiss one of Barker’s prior strikes.”
“We therefore direct the trial court to correct both the 2023 resentencing minute order and the abstract of judgment to reflect Barker’s 9,130 days of actual custody credit and 1,371 days of conduct credit for a total of 10,501 days of credit.”