People v. Moore CA3

Filed 5/4/21 P. v. Moore CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C090953

Plaintiff and Respondent, (Super. Ct. No. 18FE019389)

v.

SHERMAN MOORE,

Defendant and Appellant.

Defendant Sherman Moore pled no contest to assault with a firearm, along with a firearm enhancement. The trial court sentenced him to a stipulated 14-year aggregate term. On appeal, defendant contends the trial court (1) abused its discretion in refusing to strike his prior strike, and (2) erred in converting a restitution fine to custody time and in failing to orally impose several mandatory fines and fees. We find some merit in the second contention. We will strike the concurrent custody time and modify the judgment to impose all mandatory fines. In all other respects, we affirm.

1

FACTUAL AND PROCEDURAL BACKGROUND At sentencing, the parties stipulated that in early 2018, defendant shot a firearm in the victim’s direction, nearly hitting him. In exchange for the dismissal of the remaining charges and a stipulated 14-year term, defendant pled no contest to assault with a firearm (Pen. Code, § 245, subd. (a)(2)),1 admitted to a firearm enhancement (§ 12022.5, subd. (a)), and admitted a prior strike conviction allegation (§ 667, subd (b)-(i)). Prior to sentencing, defendant invited the trial court to strike the prior strike under People v. Superior Court (Romero) (1996) 13 Cal.4th 497.2 The court declined. Thereafter, the trial court sentenced defendant to the stipulated 14-year term, calculated as follows: four years for assault with a firearm (the low term doubled for the strike) and 10 years for the firearm enhancement. DISCUSSION

I. The Romero Request A. Additional Background and Defendant’s Contention Defendant’s strike arose from a 2004 conviction for first degree burglary. As described in defendant’s points and authorities, defendant had kicked in multiple doors of an apartment complex and took $338 cash from one victim’s purse. He received a four- year sentence and was discharged from parole in 2010. Defendant asked the trial court to strike the prior strike, arguing it was remote, he had no intervening criminal convictions, and his criminal history was insignificant. Defendant also highlighted his strong family and community ties, work history, and acceptance into alcoholism treatment programs.