P. v. Brogdon

Filed 10/26/06 P. v. Brogdon CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Craig Riemer, Judge. Affirmed.

H. Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Kristen K. Chenelia, Deputy Attorney General, for Plaintiff and Respondent.

Following a jury trial, defendant was convicted of evading a police officer (Veh. Code, § 2800.2)^[1] (count 1), driving under the influence of alcohol (§ 23152, subd. (a)) (count 2), and driving with a blood alcohol greater then 0.08 percent (§ 23152, subd. (b)) (count 3). The trial court later found true that defendant had suffered four prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). Defendant was sentenced to a total term of six years in state prison. On appeal, defendant contends (1) the trial court prejudicially erred in failing to instruct the jury sua sponte that reckless driving is a lesser included offense of felony evading a police officer, and (2) the trial court erred in imposing a fee for the cost of the presentence probation report without conducting a hearing on his ability to pay or taking a knowing and intelligent waiver of such a hearing. We reject these contentions and affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND

On December 18, 2004, about 9:30 p.m., Riverside Police Officer Lisa Johnson received a dispatch regarding a possible drunk driver. Officer Johnson saw defendant driving a brown, two-door Pontiac matching the description and license plate number provided by dispatch. Defendant was driving between five and 10 miles per hour without the car’s headlights on. Officer Johnson pulled behind defendant and activated her marked patrol car’s overhead lights in an attempt to stop defendant. Defendant did not stop; instead, he accelerated and ran a stop sign. Officer Johnson activated her siren and continued to follow defendant as he drove over a center divider on Magnolia Avenue and ran over a small tree. Defendant pulled back onto Magnolia and continued driving. Officer Johnson followed defendant about a car length behind as she broadcast her position over the radio to other officers. Defendant stuck his left hand out the window a few times and “gave [her] the middle finger . . . .” As Officer Johnson, Sergeant Mark Rossi, Officer Dawson Smith, and a police helicopter pursued defendant, he drove up to speeds of about 80 miles per hour (mph) in an area that was posted for 40 mph. He ran at least four stop signs and three red traffic lights. He also straddled the lanes and drove in the wrong lane. The pursuit came to an end when defendant eventually pulled into a Wendy’s restaurant parking lot. The entire pursuit was about eight miles and lasted approximately eight minutes. Two patrol cars took up a position behind defendant and placed their spotlights on him.

With several officers pointing handguns at him, Officer Johnson ordered defendant to get out of his car and put his hands on the top of his head. Defendant stumbled out of the car. As he reached for the driver’s door to hold himself up, his right arm went through the open window and he fell against the door. He then used his left hand to pull himself into a standing position. When it was apparent that defendant was having difficulty obeying the commands, Officer Johnson and several officers moved forward, placed handcuffs on him, and arrested him. Defendant appeared intoxicated; was having a hard time standing and maintaining his balance; was argumentative, yelling, and slurring words; and was verbally abusive towards the officers. He smelled strongly of alcohol. A field sobriety test was not conducted because defendant could not stand up, much less complete a test.

It was later determined that defendant had a blood alcohol level of 0.26 percent. Assuming defendant was a moderate social drinker, his blood alcohol level was probably about 0.28 or 0.29 percent when he was driving. An expert explained that alcohol acts as a depressant to the central nervous system and impairs four measurable areas of performance: perception, divided attention, sensory motor skills, and cognitive functioning. Slurred speech is an example of a depressed central nervous system. At 0.26 percent, a driver’s eye movements, perception of color, and peripheral vision would be “extremely impaired.” Regarding cognition, the expert noted that consuming a lot of alcohol will disrupt information processing in the brain and interfere with critical judgment and decisionmaking, leading an intoxicated person to take unreasonable risks.

II

DISCUSSION

A. Instruction on Lesser Included Offense

Defendant was charged in count 1 of felony reckless evasion of a uniformed peace officer, in violation of Vehicle Code section 2800.2, which occurs if a person driving a vehicle “flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property. . . .” (§ 2800.2, subd. (a), italics added.) A section 2800.1 violation is committed when “[a]ny person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer’s motor vehicle . . . .” (§ 2800.1, subd. (a).) Misdemeanor reckless driving, in violation of section 23103, subdivision (a), is defined as driving “any vehicle upon a highway in willful or wanton disregard for the safety of persons or property . . . .”

At trial, defendant conceded that he was driving while intoxicated. He argued, however, that he was so intoxicated that he did not intend to evade police officers. He claimed the numerous traffic violations he committed were merely a result of his impaired ability to drive, not his attempt to elude the officers. The trial court instructed the jury on the lesser included offense of flight from a peace officer (see § 2800.1, subd. (a)), as well as on the charged offense.

Defendant complains the trial court erred in failing to sua sponte instruct the jury that misdemeanor reckless driving is a lesser included offense of evading a police officer. He basically argues that evidence of his intoxication alone justified an instruction on the lesser offense of reckless driving because the jury could have concluded he was prevented by his intoxication from forming the intent necessary to drive in “willful or wanton” disregard of safety, thus rendering him guilty of the lesser offense only. We do not discern reversible error in this matter.

When a defendant fails to request an instruction on a lesser included offense, the trial court nonetheless has a duty to instruct sua sponte on the lesser included offense if “‘the evidence raises a question as to whether all of the elements of the charged offense were present and there is evidence that would justify a conviction of such a lesser offense.’” (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) In other words, the trial court is obligated to instruct sua sponte on lesser included offenses that the evidence tends to prove (People v. St. Martin (1970) 1 Cal.3d 524, 532-533), but not if there is no such evidence (People v. Daniels (1991) 52 Cal.3d 815, 868) or the pertinent evidence is “minimal and insubstantial” (People v. Springfield (1993) 13 Cal.App.4th 1674, 1680). Generally, in construing statutes descriptive of forbidden driving, the term “wantonness” is defined to “‘include[] the elements of consciousness of one’s conduct, intent to do or omit the act in question, realization of the probable injury to another, and reckless disregard of consequences.’” The word “willful” refers to an “‘intention[al] . . . disregard of safety, etc., not merely to the act done in disregard thereof.’ [Citation.]” (People v. Schumacher (1961) 194 Cal.App.2d 335, 340.) But section 2800.2, subdivision (b) expressly provides that the “willful or wanton disregard” element is satisfied if, while fleeing, “either three or more violations that are assigned a traffic violation point count under Section 12810 occur, or damage to property occurs.” Qualifying violations of section 12810 include driving under the influence of alcohol (§§ 23152, 12810, subd. (b)), driving with a suspended license (§§ 14601.1, 12810, subd. (e)), and driving across a center raised road median (§§ 21651, subd. (b), 360, 12810, subd. (d)(1)). Because the evidence established the occurrence of three qualifying violations -- that defendant drove across a center divider, drove while drunk, and drove with a blood alcohol greater than 0.08 percent -- his conduct constituted “willful or wanton disregard” as a matter of law, without regard to his intent. On the other hand, “[i]n the context of reckless driving, the term ‘willful’ refers to the intentional disregard for safety. [Citation.]” (People v. Dewey (1996) 42 Cal.App.4th 216, 221.)

As defendant’s conduct in violating at least three Vehicle Code sections during the same driving episode constituted “willful or wanton disregard for the safety of persons or property” (§ 2800.2, subd. (a)) as a matter of law, there was no “‘question as to whether all of the elements of the charged offense were present’” (People v. Bradford, supra, 14 Cal.4th at p. 1055), and thus there was no sua sponte duty on the part of the trial court to instruct on the lesser offense.

Even if the trial court erred in failing to instruct on misdemeanor reckless driving, the court’s failure was harmless. When substantial evidence supports an instruction on a lesser included offense of the sort at issue here, the failure to so instruct is assessed for prejudice pursuant to People v. Watson (1956) 46 Cal.2d 818. (People v. Breverman (1998) 19 Cal.4th 142, 148-149.)

Even if the jury had been instructed on reckless driving, it is not reasonably likely that its verdict on felony evading would have been different. The evidence demonstrated that defendant was aware of the police presence, was taking deliberate actions to evade them, and had maintained control of his vehicle even though he was quite inebriated. As detailed in part I, ante, more than substantial evidence shows that defendant was aware he was being pursued and was intentionally evading the police. Accordingly, had the jury been instructed on reckless driving as a lesser included offense, it is not reasonably probable the jury would have found defendant merely drove recklessly but did not do so to evade police.

B. Ability to Pay

The probation officer’s report recommended that defendant “[p]ay the costs of pre-sentence probation report, pursuant to 1203.1b PC, in an amount and manner to be determined by Financial Services Division; not to exceed $318.00[.]” It was also recommended that defendant pay a $110 booking fee pursuant to Government Code section 29550; a $20 court security fee pursuant to Penal Code section 1465.8, subdivision (a)(1); a $200 restitution fine pursuant to Penal Code section 1202.4; and a $200.00 parole restitution fine pursuant to Penal Code section 1202.45. At sentencing, the trial court, in accordance with the probation officer’s recommendation, ordered defendant to “pay the cost of presentence probation report, not to exceed the sum of $318, in an amount to be determined by the Financial Services Division[ and a] booking fee of $110 and court security fee of $20.” The court found restitution unnecessary.

When defense counsel asked the trial court if defendant had the ability to pay for his court-appointed counsel, the court replied, “It does not appear to me that he has the ability to do that based on his SSI^[2] and his pending imprisonment. So the Court would not be ordering reimbursement of the County for public defender services.”

Defendant argues the trial court erred in imposing a fee for the cost of the presentence probation report without either conducting a hearing on his ability to pay or taking a knowing and intelligent waiver of such hearing. He also claims there was insufficient evidence to support the court’s finding that he had the ability to pay the cost of the presentence probation report.

Penal Code section 1203.1b provides, in pertinent part, that if the probation officer determines that a defendant has the ability to pay some or all of the reasonable cost of preparing a presentence probation report and determines the amount and manner of such payment, “[t]he probation officer shall inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant’s ability to pay and the payment amount. The defendant must waive the right to a determination by the court of his or her ability to pay and the payment amount by a knowing and intelligent waiver.” (Pen. Code, § 1203.1b, subd. (a).)

The record does not indicate whether the probation officer advised defendant of his right to a hearing, and defendant did not expressly waive that right. Nor did the trial court conduct a hearing to determine defendant’s ability to pay the assessment. The People rebut, however, that defendant has waived the issue for review on appeal because he did not object at the time of sentencing.

The California Supreme Court has established, in a long line of cases beginning with People v. Walker (1991) 54 Cal.3d 1013 and continuing through People v. Welch (1993) 5 Cal.4th 228, People v. Scott (1994) 9 Cal.4th 331, and most recently People v. Gonzalez (2003) 31 Cal.4th 745, that nonjurisdictional sentencing issues not raised in the trial court are waived.

In People v. Valtakis (2003) 105 Cal.App.4th 1066 (Valtakis), Division Two of the First Appellate District held that this rule applies to assessments imposed pursuant to Penal Code section 1203.1b. In Valtakis, the presentence report recommended assessment of a $250 probation service fee, pursuant to Penal Code section 1203.1b, but the report contained no determination of the defendant’s ability to pay the fee or advisement of a right to a separate hearing on the issue. (Valtakis, at p. 1069.) Without any objection from the defendant or his attorney, the sentencing court ordered payment of the fee. (Ibid.) On appeal, the defendant contended imposition of the fee was error because the probation department and the trial court did not comply with the Penal Code section 1203.1b probation fee procedures: the probation officer made no express finding of his ability to pay and gave him no notice of the right to a separate court hearing, and the court did not hold a separate hearing or make its own determination; thus he could not have made a knowing and intelligent waiver of his right to a hearing because he lacked notice of the right. (Valtakis, at pp. 1070-1071.)

Valtakis held that Penal Code section 1203.1b, subdivision (a)’s requirement of a knowing and intelligent waiver of a defendant’s right to an ability-to-pay hearing is subject to the general rule that failure to raise the issue below waives any claim of error on appeal. (Valtakis, supra, 105 Cal.App.4th at pp. 1071-1072, 1076.) It rejected the defendant’s argument that its holding would render meaningless Penal Code section 1203.1b, subdivision (a)’s provision that the defendant must knowingly and intelligently waive “‘the right to a determination by the court’” of his ability to pay, because the context of the entire statute involves the procedures to be followed by the trial court in determining whether to hold a hearing on the ability to pay. (Valtakis, at p. 1073.) “[T]he 1995 amending language [specifying a right to a separate hearing, notice of the right, and a knowing and intelligent waiver] appears designed to clarify that [the defendant’s] acquiescence must now occur actively, not passively, and upon a knowing and intelligent waiver. [Additionally], the waiver language does not speak to appellate review. The context involves trial court procedures . . . , and the Legislature was presumably aware of the long-established principles exemplified in Welch and Scott [citation] and that defendants, unless exercising their right to self-representation, enjoy the assistance of counsel, counsel who are familiar with the need to preserve claims of error by objection.” (Id. at p. 1075.)

Valtakis also observed that to construe Penal Code section 1203.1b, subdivision (a)’s waiver language as abrogating the Welch and Scott rule that failure to object waives the claims of error on appeal “would work results horribly at odds with the overarching cost conservation policy” of Penal Code section 1203.1b, subdivision (a). (Valtakis, supra, 105 Cal.App.4th at p. 1075.) “Criminal defendants often lack the means to pay high recoupment fees, and so the amounts imposed are relatively modest in most of the cases we see. To allow a defendant and his counsel to stand silently by as the court imposes a $250 fee, as here, and then contest this for the first time on an appeal that drains the public fisc of many thousands of dollars in court and appointed counsel costs, would be hideously counterproductive.” (Id. at p. 1076.)

We agree with the reasoning and result of Valtakis and conclude defendant forfeited the right to raise the issue of noncompliance with Penal Code section 1203.1b on appeal by failing to raise it below. Contrary to defendant’s claims, we also believe the reasoning and conclusion of Valtakis equally apply to a case where a defendant is sentenced to prison as opposed to being placed on probation. The probation officer in the probation report specifically recommended the trial court find defendant able to pay an assessment not to exceed $318 for the cost of preparation of the probation report. Defendant had notice that the probation department recommended imposition of this fee. Defense counsel had an opportunity to review the report and recommendations. However, counsel failed to object, even after being given an opportunity to add additional information on this issue. Defense counsel challenged another part of the report without objecting to the probation report’s recommendation regarding defendant’s ability to pay the cost of the probation report or to the court’s order imposing the cost of the report. Defendant’s failure to object to the assessment or to the amount, or to object that he lacked the ability to pay such an assessment, waived any claim of error on appeal.

Defendant tries to avoid this result by arguing his substantial evidence claim is an exception to this general rule. The case on which defendant relies, People v. Butler (2003) 31 Cal.4th 1119, is distinguishable. In Butler, the California Supreme Court considered a challenge to an HIV testing order made pursuant to Penal Code section 1202.1. The trial court’s authority to order the test required both defendant’s conviction of an enumerated offense and a finding by the trial court of probable cause to believe that blood, semen, or any other bodily fluid capable of transmitting HIV had been transferred from the defendant to the victim. (Butler, at pp. 1125-1126.) The Supreme Court concluded a defendant forfeits the procedural claim that the trial court failed to make the required finding of probable cause by failing to object at the trial court level. (Ibid.; People v. Stowell (2003) 31 Cal.4th 1107, 1113-1115.) In contrast, the Supreme Court held a defendant can raise, without a prior objection, a claim that the finding of probable cause is not supported by substantial evidence. (Butler, at pp. 1126-1127.) It carefully noted, however, that this conclusion was required by the specific terms of Penal Code section 1202.1 and the general mandate that involuntary HIV testing is strictly limited by statute. (Butler, at p. 1128, fn. 5.) “For this reason, nothing in our analysis should be construed to undermine the forfeiture rule of People v. Scott, supra, 9 Cal.4th 331, that absent timely objection[,] sentencing determinations are not reviewable on appeal, subject to the narrow exception articulated in People v. Smith (2001) 24 Cal.4th 849.” (Ibid.)

Butler reinforces our conclusion here. In his concurring opinion, Justice Baxter, joined by Justice Chin, wrote separately “only to make explicit what is implicit in the majority opinion. [D]espite our ruling today, it remains the case that other sentencing determinations may not be challenged for the first time on appeal . . . . This includes claims that the record fails to demonstrate the defendant’s ability to pay a fine [citations].” (People v. Butler, supra, 31 Cal.4th at p. 1130, conc. opn. of Baxter, J., second italics added.)

We conclude the forfeiture rule of People v. Scott, supra, 9 Cal.4th 331 precludes review of defendant’s claim on appeal. (Valtakis, supra, 105 Cal.App.4th 1066.) Even if we were to conclude otherwise, however, reversal would not be required.

The probation report contains a statement that defendant had been receiving $810 per month from SSI since 1999. Defendant, who is 41 years old, has a high school degree. He is married and has no children. It is possible defendant had savings from SSI. Despite knowing defendant was unemployed at the time it prepared the probation report, the probation department nevertheless recommended imposition of the presentence report fees, impliedly determining he had the ability to pay them. In these circumstances, substantial evidence supports the trial court’s finding of defendant’s ability to pay the costs of the probation report “in an amount and manner to be determined by Financial Services Division; not to exceed $318.00,” despite defendant’s legal representation by the public defender and his sentence to state prison. On this record there is no evident prejudice to justify a reversal of the fees or remand to assess defendant’s financial circumstances as of sentencing.

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

RAMIREZ

P.J.

MILLER

J.

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^[1] All future statutory references are to the Vehicle Code unless otherwise stated.

^[2] “SSI” refers to defendant’s Supplemental Security Income in the amount of $810 a month. Presumably, as the People point out, this income ceased when defendant was incarcerated. (See People v. Lewis (2001) 26 Cal.4th 334, 374.)