IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE A112490

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1 Filed 8/21/06 P. v. Hall CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE THE PEOPLE, Plaintiff and Respondent, v. TYRONE LASHAWN HALL, Defendant and Appellant. A (Contra Costa County Super. Ct. No. SC ) Appellant contends the court committed two errors in sentencing him following a court trial. One contention is conceded by respondent; the other has no merit. The matter is remanded for the preparation of a new abstract of judgment. FACTS AND PROCEDURAL HISTORY At 1:02 a.m. on November 25, 2003, appellant was seen by Pittsburg Police Officer Blazer weaving in a traffic lane and running a red light. Blazer attempted to stop appellant s car using lights and siren. Appellant drove for approximately a half mile before stopping. Upon contacting appellant, Blazer saw that appellant s eyes were watery and bloodshot, his speech was slow and slurred, and there was a strong odor of an alcoholic beverage coming from the car. Blazer had appellant perform a series of field sobriety tests which, in Blazer s opinion, appellant failed. Appellant was arrested and submitted to a breath test at the Pittsburg police station. The results were.24 and.23 percent blood alcohol. 1

2 Following a preliminary hearing where the foregoing facts were adduced, 1 appellant was charged with felony driving under the influence of alcohol (count one, Veh. Code 2, 23152, subd. (a)), felony driving with a blood alcohol level greater than.08 percent (count two, 23152, subd. (b)), and misdemeanor driving with a suspended or revoked driving privilege (counts three & four, 14601, subd. (a), , subd. (a)). As to counts one and two, it was alleged that appellant had suffered a similar felony conviction within the past ten years ( ). That same felony conviction was alleged as an enhancing prison prior under Penal Code section 667.5, subdivision (b), and appellant was alleged to be probation ineligible pursuant to Penal Code section 1203, subdivision (e)(4), in light of that felony conviction and five others for drug offenses. Appellant s trial counsel moved to dismiss count two, pursuant to Penal Code section 995, alleging there had been insufficient evidence at the preliminary hearing that the machine used to test appellant s breath was approved for such use and in proper working order. The motion was granted. Thereafter, appellant waived jury trial and submitted the question of his guilt to the court on the police reports, preliminary hearing transcript and exhibits. We set forth a significant portion of the voir dire of appellant by the deputy district attorney at the time of the waiver: [THE PROSECUTOR]:... I need to advise you that today what has been proposed is that you are going to waive or submit to the Court, you are going t[o] waive your trial by jury. [ ] You have a right to a trial in this matter by a jury representative of this community or by a judge of the Superior Court. [ ] What is being suggested is that you give up that right and have the Court decide your guilt based upon information submitted to the Court, including police reports, breath card, preliminary hearing transcripts, and I have marked those items, as well. [ ] What this means is that the Judge will determine your guilt or innocence based only on the 1 Copies of the breath test printout, defendant s Department of Motor Vehicles history, and records of his prior convictions were marked as exhibits and received into evidence at the preliminary hearing. 2 Unless otherwise noted, all further statutory references are to the Vehicle Code. 2

3 information submitted to the Court as I have described. [ ] You cannot add to, subtract from, or explain that information. [ ] The Judge s decision will be made solely from what is contained in these documents. [ ] Do you understand that? [ ] THE DEFENDANT: Yes. [ ] [THE PROSECUTOR]: Do you give up your right to a trial in this matter? [ ] THE DEFENDANT]: Yes. Specifically, the breathalyzer printout was received in evidence by the trial court without objection. 3 The court found appellant guilty of driving under the influence of alcohol (count one) and of having a prior felony conviction for the same offense. Additionally, the court found him guilty of both counts of driving with a suspended driving privilege (counts three & four). Finally, the court found all of the alleged prior felony convictions, including the one for which a prison term was served, to be true. A probation report was prepared for sentencing. Therein, appellant was described as cavalier. Initially, he misrepresented the results of the breath test to the probation officer and contended he had had only two drinks of tequila. When pressed, he acknowledged that his consumption and the test results had been higher. He also maintained that he had been fired from a recent job for arguing with the boss, later admitting he had, in fact, been caught stealing. In explaining how he keeps busy, appellant asserted that he takes care of his four children. In fact, only two children live with him and his girlfriend. His other two children live with their mother, and appellant has never paid child support for them. Appellant claimed his use of controlled substances was restricted to marijuana and ceased when he turned 21 years old, despite the fact that three of his four convictions for violating Health and Safety Code section postdate that event. In July 2003, appellant was placed on two years of probation for driving with a suspended driving privilege and was, thus, on that probation at the time of the offense in this matter. Additionally, while out of custody pending resolution of this matter, he 3 THE COURT: Okay. [Defense counsel], any objection to Exhibit 1, for the record is the Drager breathalizer [sic] printout containing the breath results, as well as the checklist? [ ] Any objection to admission of Exhibit 1? [ ] [DEFENSE COUNSEL]: No. 3

4 was convicted of driving with a suspended driving privilege in a separate proceeding. In all, appellant has five convictions for driving under the influence, multiple convictions for driving with a suspended driving privilege, 4 two convictions for public intoxication, and two for resisting arrest, in addition to the felony drug convictions mentioned above. Following his arrest in this matter, appellant completed a 90-day, out-patient treatment program, where he tested clean for drugs and alcohol. However, when asked if he had a substance-abuse problem he said, No, I wouldn t say I have an alcohol-drug problem. At the time, I just enjoyed drinking. At the time of the report, he was not attending any recovery program. Sentencing took place on December 9, 2005 two years after the incident. The court found no unusual circumstances such as to contravene appellant s ineligibility for probation under Penal Code section 1203, subdivision (e)(4). The court noted that appellant s blood alcohol level at the time of the incident was roughly three times the legal limit and that this was his fifth conviction for driving under the influence. The court also noted that appellant had been an active participant in the crime, had poor prior performance on probation, had failed to acknowledge his substance abuse problem, and had continued to drive without ever being licensed. The court acknowledged that there would be hardship to appellant s dependents if he were sent to prison but ultimately determined that it could not put the community at continued risk by granting appellant probation. Probation was denied. The court selected the mid-term of two years for count one and added a year for appellant s prison prior, for a total of three years in prison. The court sentenced appellant identically on count two but ran that sentence concurrent with the sentence for count one. 5 No mention was made of sentencing for counts three and four, the misdemeanors. 4 Indeed, it appears that, at the age of 33, defendant had never been issued a license. 5 The abstract of judgment indicates that the sentence for count two was stayed. Given our resolution of this matter, the distinction between that sentence having been run concurrently and it having been stayed is immaterial. 4

5 DISCUSSION I. Sentence in Count One Appellant contends, given that the motion court dismissed count two because evidence of the reliability of the breath test results was insufficient at the preliminary hearing, the trial court improperly relied upon those results in denying him probation and imposing a prison sentence. Appellant ignores one overwhelmingly salient fact: he agreed that the court could consider those results at the time he waived jury and submitted the question of his guilt to the court. Thus, the results were in evidence and properly considered by the court. We find no error. Additionally, assuming arguendo any error in the consideration of this evidence, we find no prejudice to appellant. Appellant made a poor impression on the reporting probation officer. He misrepresented certain facts and appeared dismissive of his circumstances and his obvious substance abuse problem. He had performed poorly on probation. He continued to drive illegally during the pendency of this matter and had a long record of felony convictions and other offenses. On this record, it would have been unreasonable for the sentencing court to have found appellant eligible for probation despite his statutory ineligibility. Additionally, it is not reasonably likely that the court would have selected the mitigated term in prison, rather than the middle term. (See People v. Burbine (2003) 106 Cal.App.4th 1250, 1265.) Appellant contends such error is not susceptible to a harmless error analysis. The authority relied upon by appellant on this point, in particular People v. Eckley (2004) 123 Cal.App.4th 1072, , does not stand for such a proposition. II. Sentence in Count Two Appellant contends that, in light of the dismissal of count two by the motion court pursuant to Penal Code section 995, the trial court improperly sentenced him on that count. Respondent agrees. Several weeks passed between appellant s conviction and his sentencing. At the time of sentencing, no one reminded the court that appellant had not been convicted in count two. His sentence on that count was, indeed, improper. To the extent the court records, principally the abstract of judgment, indicate appellant was 5

6 convicted of that count, we direct their correction. Obviously, any sentence should be stricken. DISPOSITION The judgment of conviction is affirmed. Appellant s sentence as to count two is stricken. The superior court is directed to amend the abstract of judgment accordingly and to forward a certified copy of the amended abstract to the Department of Corrections. REARDON, J. We concur. SIMONS, Acting P. J. GEMELLO, J. Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 6