P. v. Miller











Filed 3/24/17 P. v. Miller CA5






NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

DUSTIN LEON MILLER,

Defendant and Appellant.


F071115

(Super. Ct. Nos. CRF43303, CRF43353, CRF43470, CRF44734, & CRF44915)


OPINION

APPEAL from a judgment of the Superior Court of Tuolumne County. Donald I. Segerstrom, Jr., Judge.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jamie A. Scheidegger, Deputy Attorneys General, Plaintiff and Respondent.
-ooOoo-


Dustin Leon Miller (defendant) received an aggregate sentence of 28 years eight months for convictions in five different criminal cases. He makes two contentions on appeal. First, pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), the trial court should have dismissed his prior conviction for assault with a deadly weapon. Second, in the fifth and most recent case, the court did not adequately advise him of the penal consequences of admitting the abovementioned prior. For the reasons set forth below, we reject these contentions.
The Attorney General asks us to remand the case for the limited purpose of amending the information to allege a prior serious conviction under Penal Code[1] section 667, subdivision (a)(1), and affording defendant the opportunity to either admit or contest the allegation. We reject the request to remand and, instead, strike the enhancement.
BACKGROUND
I. Prior felony convictions.
On January 19, 2001, in San Joaquin County, defendant was convicted of assault with a deadly weapon (§ 245, subd. (a)(1)).
On November 25, 2002, in Tuolumne County, defendant was convicted of felony driving under the influence (DUI) (Veh. Code, § 23152, subd. (a)).
On December 8, 2003, in Calaveras County, defendant was convicted of possession of a controlled substance for sale (Health & Saf. Code, § 11378), for which he served a term in prison.
On July 6, 2004, in Tuolumne County, defendant was convicted of possession of a controlled substance for sale (Health & Saf. Code, § 11378), for which he served a term in prison.
II. Current criminal cases.
a. CRF43303 (Case No. 1).
On February 6, 2014, a probation search was conducted at the residence of Christopher Goodrich in Sonora. In the bedroom where defendant and Goodrich were found, officers discovered a glass pipe and a small metal box containing two bags of methamphetamine.
Defendant was charged with possession of methamphetamine for sale (Health & Saf. Code, § 11378 [count I]) and possession of a device used for smoking a controlled substance (id., former § 11364.1, subd. (a) [count II]). The information further alleged he (1) was previously convicted of drug-related felonies in 2003 and 2004 (id., § 11370.2, subd. (c)); and (2) was previously convicted of a serious and/or violent felony in 2001, a qualifying strike under the Three Strikes law (§ 667, subds. (b)-(i)). Defendant admitted these priors.
On June 18, 2014, following a consolidated trial,[2] the jury found defendant guilty as charged.
b. CRF43353 (Case No. 2).
On December 16, 2013, at Black Oak Casino in Tuolumne, an employee found a speaker box containing methamphetamine. Video surveillance footage showed defendant placing the speaker box between two slot machines, playing the machines, and leaving without the speaker box.
Defendant was charged with possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)).[3] The criminal complaint, thereafter deemed an information, further alleged he was previously convicted of a serious and/or violent felony in 2001, a qualifying strike under the Three Strikes law (§ 667, subds. (b)-(i)). Defendant admitted the prior.
On June 18, 2014, following the consolidated trial (see ante, fn. 2), the jury found defendant guilty as charged.
c. CRF43470 (Case No. 3).
On February 28, 2014, defendant, who had outstanding warrants, was arrested at Black Oak Casino and brought to jail. On March 1, 2014, methamphetamine was found in the holding cell. Surveillance footage confirmed it belonged to defendant.
Defendant was charged with possession of methamphetamine in jail (§ 4573.6). The criminal complaint, thereafter deemed an information, further alleged he was previously convicted of a serious and/or violent felony in 2001, a qualifying strike under the Three Strikes law (§ 667, subds. (b)-(i)). Defendant admitted the prior.
On June 18, 2014, following the consolidated trial (see ante, fn. 2), the jury found defendant guilty as charged.
d. CRF44734 (Case No. 4).
On June 13, 2014, the third day of the consolidated trial (see ante, fn. 2), defendant failed to appear in court. The trial proceeded in his absence.
Defendant was charged with willful failure to appear in court (§ 1320.5). The criminal complaint, thereafter deemed an information, further alleged he (1) committed the offense while he was out on bail in Case No. 1 (§ 12022.1); (2) committed the offense while he was out on bail in Case No. 2 (ibid.); (3) committed the offense while he was out on bail in Case No. 3 (ibid.); and (4) was previously convicted of a serious and/or violent felony in 2001, a qualifying strike under the Three Strikes law (§ 667, subds. (b)‑(i)).
On October 14, 2014, pursuant to a plea agreement, defendant pled guilty and admitted the prior and a single on-bail allegation. The remaining on-bail allegations were dismissed.
e. CRF44915 (Case No. 5).
On June 12, 2014, the second day of the consolidated trial (see ante, fn. 2), at approximately 1:45 p.m., Detective Victor Serrano, Jr., read the following post on defendant’s Facebook page:
“Wow, so I’m on lunch break for my second day of trial and guess who’s next to testify against me? Good ol Chris Goodrich. Wow. Supposed to be my homey, my ace. Now you want to slap the taste out of my mouth. I need anybody and everybody who knows this man to come down here so it makes it harder for him to testify. Big courthouse up top, walk through the front doors, go to the left of the stairs into the courtroom. Go in the back and watch the show.”
That afternoon, Goodrich testified for the prosecution.
Defendant was charged with witness intimidation in furtherance of a conspiracy (§ 136.1, subd. (c)(2) [count I]) and conspiracy to commit witness intimidation (§ 182, subd. (a)(1) [count III]). The criminal complaint, thereafter deemed an information, further alleged he (1) committed the offenses while he was out on bail in Case No. 1 (§ 12022.1); (2) committed the offenses while he was out on bail in Case No. 2 (ibid.); (3) committed the offenses while he was out on bail in Case No. 3 (ibid.); and (4) was previously convicted of a serious and/or violent felony in 2001, a qualifying strike under the Three Strikes law (§ 667, subds. (b)-(i)).
Trial commenced on December 10, 2014. The next day, after a meeting in chambers and outside the presence of the jury, Judge Donald Segerstrom, defendant, and defendant’s attorney Robert Price engaged in the following colloquy:
“THE COURT: . . . I met briefly with counsel in chambers. It’s the Court’s understanding, based on discussions with counsel, that Mr. Miller . . . is going [to] admit the prior and also admit the out on bail enhancements[,] is that correct Mr. Price[?]
“MR. PRICE: Correct, Your Honor.
“THE COURT: All right. Mr. Miller, you have a right to have this jury that’s here decide whether you suffered the prior conviction. What they decide is whether or not you got convicted or not. The Court decides whether or not that prior conviction qualifies as a prior serious or violent felony, so the Court decides that legal question. The jury gets to decide whether you actually suffered the prior conviction, and the evidence is usually with papers to identify you and so on and so forth. So you have a right to have the jury decide that.
“You also have a right to confront and cross-examine any witnesses against you. You have a right to compel the attendance of witnesses in your defense by the subpoena power of the court, and you have a privilege against self-incrimination, which means no one can force you to testify against yourself.
“If you admit the prior conviction, there’s not going to be a trial on that issue and the jury won’t hear anything about it. There’s not going to be any witnesses by saying, yes, I suffered this conviction and you’ll be incriminating yourself.
“Do you understand that?
“THE DEFENDANT: Can I speak to Mr. Price[?]
“THE COURT: Yes, absolutely.
“(Short pause in proceedings.)
“MR. PRICE: Ready to proceed. Just for clarification, Mr. Miller is admitting he has his [section] 245 conviction out of Manteca from January of 2001. The Court indicated [it] would later decide whether or not that’s a strike under the three strike law, correct?
“THE COURT: Well, . . . it’s my understanding . . . Mr. Miller has other cases. I don’t know whether it’s been determined whether that is or is not a strike.
“What I told Mr. Miller is that that decision as to whether or not it qualifies as a strike is up to the Court and it’s not up to the jury. So the Court isn’t making any determination whether it is or is not a strike at this time. All I’m asking you is whether you suffered that conviction. And then based on whatever paperwork is submitted, the Court makes a determination that it is or is not a strike.
“Do you understand your rights, Mr. Miller?
“THE DEFENDANT: Yes, I do, sir.
“THE COURT: Do you give up those rights?
“THE DEFENDANT: Yes.
“THE COURT: You understand if it is a strike, the net effect of that – it has the potential to double any sentence that you would receive in this case.
“THE DEFENDANT: Yes, sir.
“THE COURT: Do you understand that?
“THE DEFENDANT: Yes.
“THE COURT: All right. So is anybody forcing you to do this sir?
“THE DEFENDANT: No.
“THE COURT: Anybody threatened you or threatened close to you to get you to do this?
“THE DEFENDANT: No.
“THE COURT: Mr. Price, do you concur in your client’s waiver of rights and his decision to admit the prior conviction?
“MR. PRICE: Yes, Your Honor.
“THE COURT: All right. Mr. Miller, it’s alleged in the Information that on January, 19th, 2001, in Superior Court in Manteca, which would be San Joaquin County, . . . you suffered a conviction for violation of . . . [s]ection 245[,] subdivision (a)(1).
“Do you admit that that conviction is true?
“THE DEFENDANT: Yes.[[4]] [¶] . . . [¶]
“THE COURT: All right. The Court will find that the defendant’s waivers were knowing and intelligent and his admissions were freely and voluntarily made. That removes those issues from consideration by the jury.”
On December 12, 2014, the jury found defendant guilty as charged.
III. Presentence probation report.
A presentence probation report dated December 30, 2014, summarized defendant’s criminal history. In addition to the abovementioned prior felony convictions (see ante, at p. 2), defendant was convicted of 32 misdemeanors: battery (§ 242) in 1998; DUI (Veh. Code, § 23152, subd. (b)) in 2000; vandalism (§ 594, subd. (b)) in 2000; battery of a spouse or cohabitant (§ 243, subd. (e)) in 2001; driving with a suspended license (Veh. Code, § 14601.2, subd. (a)) in 2002; resisting a peace officer (§ 148, subd. (a)(1)) in 2004; resisting a peace officer (ibid.) in 2004; battery of a spouse or cohabitant (§ 243, subd. (e)(1)), vandalism (§ 594, subd. (a)), and contempt of court (§ 166, subd. (a)(4)) in 2010; contempt of court (ibid.) in 2010; seven counts of contempt of court (ibid.) in 2010; possession of an opium pipe or paraphernalia (Health & Saf. Code, § 11364) in 2010; two counts of contempt of court (§ 166, subd. (a)(4)) in 2010; two counts of contempt of court (ibid.) in 2010; three counts of contempt of court (ibid.) in 2010; DUI (Veh. Code, § 23152, subd. (a)) in 2012; possession of a device used for smoking a controlled substance (Health & Saf. Code, former § 11364.1) in 2012; possession of a controlled substance (id., § 11377, subd. (a)) and possession of an opium pipe or paraphernalia (id., § 11364) in 2012; and theft (§ 484, subd. (a)) and resisting a peace officer (§ 148, subd. (a)(1)) in 2013. The report noted defendant participated in a drug treatment program pursuant to Proposition 36 in December 2012 but was terminated from the program after he failed a drug test and twice failed to appear for mandatory testing. Regarding his likelihood to reoffend, defendant was given a “ ‘High’ ” rating.
The report recommended defendant’s prior conviction for assault with a deadly weapon should qualify as a strike under the Three Strikes law.
IV. Sentencing.
At the February 23, 2015, sentencing hearing for Cases Nos. 1 through 5, the court indicated it considered the presentence probation report as well as letters from defendant and his family and intended to follow the recommendation of the report. Carolyn Woodall, defendant’s attorney in Cases Nos. 1 through 3, asked the court to strike the prior conviction for assault with a deadly weapon in accordance with Romero:
“The strike, I feel given the full circumstances here, would be . . . inappropriate. It was . . . quite awhile ago. . . . [I]t was a strike involving violence, but I don’t believe the rest of his record indicates anything of that nature. . . . [¶] . . . [¶]
“. . . [B]asically the [subsequent] felonies have been a DUI in 2003 [sic] where he received very extensive burns and [violation of Health and Safety Code section] 11378 in 2004, which is subject of an enhancement. Other than that, [defendant’s subsequent crimes] have been misdemeanors. There’s quite a few of them, yes, . . . and the Court should consider those for sentencing purposes, but they don’t justify a strike.
“[Cases Nos. 1 through 3] are drug related. Mr. Miller has freely acknowledged being a drug addict. Shortly after the DUI in 2003, he was on a lot of pain medications for . . . the burns and he’s been using drugs since. The sentence, as I see it for these three cases alone, would be seven years, eight months without the strike. Still very substantial given the nature of the offenses involved here, and I would ask the Court to give consideration to this request. . . . [¶] . . . [¶]
“. . . I would ask the Court to note too that these [drug] sale[ offenses,] aside from [Case No. 1], . . . were back in 2004 and nothing of that nature . . . since. And the Court knows full well, I’m sure, that those who are addicted to drugs do on occasion, some of them, peddle drugs to support their habit. It’s not like it’s something that’s completely divorced from it.”
The court denied the request:
“With regard to the Romero motion, it is the Court’s view that the [section] 245 [violation] in 2001 isn’t all that distant based on the criminal history that appears between then and now. It is an ongoing pattern of criminal conduct that essentially continues unabated . . . starting with the conviction in San Joaquin County and then two, three . . . years later he gets a prison sentence. And there are . . . separate cases out of two separate counties where he’s sentenced to prison.
“Then once he’s back out on the street in 2010, again, the same conduct and . . . it may be misdemeanor conduct, but it continues right up until the time of the current offenses.
“Now, Mr. Miller does protest very greatly that he needs drug treatment, but he was offered drug treatment in 2012 in this county. It was a Prop. 36 program. Somebody who’s really desirous of treatment would take advantage of that and he didn’t.
“So the request to strike the strike, [to] find that he is outside the spirit of the three strikes law. . . . [B]ased on the record before me, I cannot make that finding; therefore, I will not. The request to strike the strike will be denied.”
As to Case No. 3, the court imposed a sentence of eight years: four years doubled pursuant to the Three Strikes law.
As to Case No. 1, the court imposed an aggregate sentence of four years four months: a principal term of eight months doubled pursuant to the Three Strikes law on count I plus three years for the prior drug conviction; and a concurrent subordinate term of 180 days on count II.
As to Case No. 2, the court imposed a concurrent sentence of one year.
As to Case No. 4, pursuant to the October 14, 2014, plea agreement, defendant acceded to a stipulated sentence of three years four months: eight months doubled pursuant to the Three Strikes law on count I plus two years for the on-bail allegation.
As to Case No. 5, the court imposed a sentence of 13 years: three years doubled pursuant to the Three Strikes law on count I plus two years for the on-bail allegation and five years for a prior serious felony conviction (§ 667, subd. (a)(1)). Execution of punishment on count III was stayed pursuant to section 654.
DISCUSSION
I. The trial court’s refusal to strike defendant’s prior conviction for assault with a deadly weapon did not constitute an abuse of discretion.
“[A] judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.” (§ 1385, subd. (a).) This provision “permit[s] a court acting on its own motion to strike prior felony conviction allegations in cases brought under the Three Strikes law.” (Romero, supra, 13 Cal.4th at pp. 529-530; accord, People v. Williams (1998) 17 Cal.4th 148, 158 (Williams).) “[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, . . . the 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 should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (Williams, supra, at p. 161; accord, People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony); see People v. Myers (1999) 69 Cal.App.4th 305, 310 [“The court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary.”].)
“[A] trial court’s refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion.” (Carmony, supra, 33 Cal.4th at p. 375.) “In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘ “[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of 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.” ’ [Citation.] Second, a ‘ “decision will not be reversed 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.’ ” ’ [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at pp. 376-377.) Hence, “a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances.” (Id. at p. 378.)
We conclude the court did not abuse its discretion when it refused to strike defendant’s prior conviction for assault with a deadly weapon because the record “ ‘demonstrates . . . [it] balanced . . . relevant facts and reached an impartial decision in conformity with the spirit of the law.’ ” (Carmony, supra, 33 Cal.4th at p. 378.) At the sentencing hearing, defense counsel conceded the prior “involv[ed] violence.” While the prior arose in 2001, the court reasonably determined it “[wa]sn’t all that distant” in view of the “ongoing pattern of criminal conduct that essentially continue[d] unabated” “between then and [2014].” (See People v. Humphrey (1997) 58 Cal.App.4th 809, 813 [“In determining whether a prior conviction is remote, the trial court should not simply consult the Gregorian calendar with blinders on. . . . [A] prior conviction may be stricken if it is remote in time. In criminal law parlance, this is sometimes referred to as ‘washing out.’ [Citations.] The phrase is apt because it carries the connotation of a crime-free cleansing period of rehabilitation after a defendant has had the opportunity to reflect upon the error of his or her ways. Where . . . the defendant has led a continuous life of crime after the prior, there has been no ‘washing out’ and there is simply nothing mitigating about [the] prior. . . . Far from being ‘washed out,’ this prior was ‘dyed in.’ ”].) Defendant’s 16-year-long criminal history, which actually began in 1998, did not exemplify the “short crime spree” (People v. Garcia (1999) 20 Cal.4th 490, 493 (Garcia)) or “single period of aberrant behavior” (id. at p. 503) that would militate in favor of a Romero dismissal. (See People v. Strong (2001) 87 Cal.App.4th 328, 338 [“[T]he overwhelming majority of California appellate courts have reversed the dismissal of, or affirmed the refusal to dismiss, a strike of those defendants with a long and continuous criminal career.”].) Though most of this history was comprised of misdemeanors,[5] which the court acknowledged, “Williams and its progeny do not hold that a defendant’s criminal career must consist entirely or principally of violent or serious felonies to bring a defendant within the spirit of the Three Strikes law.” (People v. Strong, supra, at p. 340; see ibid. [“Viewed from another perspective, if the spirit of the [Three Strikes] law, as informed by its principal provisions, considers only one strike necessary to place a defendant within the recidivist-targeted law, how does the addition of a lengthy criminal record place the defendant outside the spirit of that law?”].) Defense counsel’s fixation on the nonviolent nature of defendant’s drug-related offenses in Cases Nos. 1 through 3 was similarly unavailing: “Since the express intent of the Three Strikes law is ‘to ensure longer prison sentences’ for any defendant who has a qualifying strike and subsequently commits ‘a felony,’ the nonviolent or nonthreatening nature of the felony cannot alone take the [strike] outside the spirit of the law.” (Id. at p. 344, fn. omitted.)[6] Finally, with regard to defendant’s substance abuse, “drug addiction is not necessarily regarded as a mitigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment.” (People v. Martinez (1999) 71 Cal.App.4th 1502, 1511.) Here, the court was informed defendant was recently expelled from a drug treatment program after he failed a drug test and twice failed to appear for mandatory testing and reasonably surmised he was unwilling to address the problem. (See, e.g., Carmony, supra, 33 Cal.4th at p. 378; Williams, supra, 17 Cal.4th at p. 163; People v. Gaston (1999) 74 Cal.App.4th 310, 322; People v. Barrera (1999) 70 Cal.App.4th 541, 553-554.)
“Because the circumstances must be ‘extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (Carmony, supra, 33 Cal.4th at p. 378.) In the absence of such extraordinary circumstances, we uphold the court’s ruling.
II. Defendant forfeited his argument on appeal that the trial court did not properly advise him of the penal consequences of admitting his prior conviction for assault with a deadly weapon in Case No. 5.
“[B]efore accepting a criminal defendant’s admission of a prior conviction, the trial court must advise the defendant and obtain waivers of (1) the right to a trial to determine the fact of the prior conviction, (2) the right to remain silent, and (3) the right to confront adverse witnesses.” (People v. Mosby (2004) 33 Cal.4th 353, 356, citing In re Yurko (1974) 10 Cal.3d 857, 863.) Furthermore, “before admitting a prior conviction allegation,” “a defendant must also be advised of ‘the full penal effect of a finding of the truth of an allegation of prior convictions,’ ” including “the precise increase in the prison term that might be imposed.” (People v. Cross (2015) 61 Cal.4th 164, 170-171, quoting In re Yurko, supra, at pp. 864-865.) “ ‘[U]nlike the admonition required for a waiver of constitutional rights, advisement of the penal consequences of admitting a prior conviction is not constitutionally mandated. Rather, it is a judicially declared rule of criminal procedure. [Citations.] Consequently, when the only error is a failure to advise of the penal consequences, the error is waived if not raised at or before sentencing.’ ” (People v. Jones (2009) 178 Cal.App.4th 853, 858, quoting People v. Wrice (1995) 38 Cal.App.4th 767, 770-771.)
The record before us does not demonstrate defendant or his attorney objected to the adequacy of the court’s advisement at or before the sentencing hearing. Therefore, defendant cannot raise the issue for the first time on appeal.

III. The section 667, subdivision (a)(1) prior serious enhancement in Case No. 5 is stricken.
The Attorney General notes defendant “was sentenced for a section 667, subdivision (a) enhancement despite the fact . . . that enhancement was never pleaded in the information.” Because he “was not provided the fair notice required” by due process, he was “improperly sentenced to a five-year term pursuant to section 667, subdivision (a).” The Attorney General asks us to “remand this matter for the limited purpose of allowing the prosecutor to amend the Case [No.] 5 information to allege a section 667, subdivision (a) prior conviction” and allow defendant “to admit the enhancement or proceed to trial.”
Defendant does not address this point in his reply brief. Instead, he states “[t]he absence of additional comment on aspects of respondent’s brief . . . reflects [his] view that the issue has been adequately presented.”
Without deciding whether defendant’s due process rights were violated by the fact the section 667, subdivision (a)(1) enhancement was not pled in the information, we accept the parties’ apparent agreement that the sentence for that enhancement should not stand. We cannot do as the Attorney General requests, however, and remand the matter to allow the prosecutor to amend the Case No. 5 information to allege it now. Under section 1025, subdivision (b), “a defendant has the statutory right to have the same jury decide both the issue of guilt and the truth of any prior conviction allegation[].” (People v. Tindall (2000) 24 Cal.4th 767, 770.) The jury in this case was discharged. The People may not now amend the information to add a section 667, subdivision (a)(1) prior conviction. Accordingly, we strike the enhancement.
IV. The abstract of judgment must be corrected.
With respect to defendant’s aggregate sentence, pursuant to the Three Strikes law, the trial court doubled the four-year base term in Case No. 3; doubled the eight-month base term in Case No. 1; doubled the eight-month base term in Case No. 4; and doubled the three-year base term in Case No. 5. (Ante, at p. 10.) However, part 1 of the abstract of judgment erroneously identifies the original base terms, not the doubled base terms, as the time imposed.
“When an abstract of judgment does not reflect . . . the trial judge’s verbal pronouncement, [an appellate] court has the inherent power to correct such clerical error on appeal, whether on [its] own motion or upon application of the parties.” (People v. Jones (2012) 54 Cal.4th 1, 89.) We therefore order that the abstract of judgment be corrected to conform to the actual sentence imposed by the trial court.
DISPOSITION
The five-year prison term imposed on the prior serious felony enhancement in case No. CRF44915 is stricken.
Part 1 of the abstract of judgment shall be corrected to show the trial court imposed eight years in case No. CRF43470; one year four months in case No. CRF43303; one year four months in case No. CRF44734; and six years in case No. CRF44915. The trial court is directed to prepare the corrected abstract of judgment and transmit copies thereof to the appropriate authorities.
In all other respects, the judgments are affirmed.


_____________________
DETJEN, J.
WE CONCUR:


_____________________
GOMES, Acting P.J.


_____________________
PEÑA, J.




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[1] Unless otherwise indicated, subsequent statutory citations refer to the Penal Code.

[2] The trial court granted the prosecutor’s motion to consolidate Cases Nos. 1 through 3.

[3] Later, due to the passage of Proposition 47, this offense was downgraded from a felony to a misdemeanor.

[4] Defendant then admitted the on-bail allegations.

[5] We point out defendant was convicted of battery in 1998 and battery of a spouse or cohabitant in 2001 and 2010. Though they are misdemeanors, they are “plainly . . . ‘crime[s] involving actual violence.’ ” (Williams, supra, 17 Cal.4th at p. 164; cf. Garcia, supra, 20 Cal.4th at p. 503 [“[The defendant’s] criminal history does not include any actual violence.”].)

We also point out—in addition to his current convictions for willful failure to appear in court in Case No. 4 and witness intimidation in furtherance of a conspiracy and conspiracy to commit witness intimidation in Case No. 5—defendant was previously convicted of contempt of court 16 times in 2010 and resisting a peace officer twice in 2004 and once in 2013. These offenses reveal a penchant for obstructing justice. (Cf. Garcia, supra, 20 Cal.4th at p. 503 [“[the d]efendant cooperated with police”].)

[6] We also note the threatening nature of defendant’s offenses in Case No. 5. (See ante, at p. 5.)