Opinion
A150450
02-09-2018
THE PEOPLE, Plaintiff and Respondent, v. GENOVE ALVARADO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR-680010)
Following a no contest plea, defendant Genove Alvarado was convicted of felony driving under the influence of alcohol (DUI) within 10 years of a prior felony DUI offense, felony driving with a blood-alcohol level of .08 percent or more within 10 years of a prior felony DUI offense, misdemeanor providing false identification information to a police officer, and misdemeanor driving on a license that had been suspended or revoked for a DUI conviction. Defendant also admitted enhancement allegations alleging that he had committed the present offenses with a blood-alcohol level of 0.15 percent or more.
Relying on two purported factual misstatements by the trial court at sentencing, defendant argues that the denial of probation constituted an abuse of discretion. We conclude defendant waived his right to object to any factual errors by failing to object to them in the court below and, further, that any such errors were not prejudicial. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
As set forth in the presentence report, on the evening of April 2, 2016, the California Highway Patrol responded to a 911 call regarding a suspected DUI driver on Highway 101 in Rohnert Park. The responding officer observed a vehicle weaving and swerving about in its lane and conducted a traffic stop. Defendant, who was driving on a suspended license, was the driver and sole occupant of the vehicle. Defendant's eyes were red and watery, he smelled of alcohol, and he failed field sobriety tests. A preliminary alcohol screening test was administered, which determined that defendant had a .199 percent/.186 percent blood-alcohol concentration. A records check revealed that defendant had four prior DUI convictions. He was arrested without incident.
Following defendant's no contest plea, the probation department recommended that probation be denied and that defendant be sentenced to the upper term in state prison. At the outset of the sentencing hearing, the trial court announced its "initial thoughts regarding sentencing in this case so that you can respond directly to it. It would be my intention to deny probation in this case, give [defendant] the midterm of two years, plus an additional six months . . . [¶][¶] on the [misdemeanor conviction for providing false identification information to a police officer], for a total term of two years, six months."
The prosecutor concurred in the trial court's indicated sentence. Defense counsel, having previously filed an extensive written statement in mitigation advocating probation and treatment, reiterated that "for public policy purposes, and based on the concepts of law and codification both of society and moral values and the pragmatic approach to deal with people who stray from the prescribed path that we wish them to follow, sending someone to State Prison when they've never had an opportunity to participate in meaningful rehabilitation and treatment is counter-indicated. I would submit that it is ill-advised and immoral." At the conclusion of the respective arguments, the trial court imposed its previously-indicated sentence, observing as follows:
"In this case, the Court is going to deny probation in this matter. This is [defendant's] fifth driving under the influence in the last ten years. All of his driving under the influences have been high blood-alcohol levels.
"In this particular case, in the fourth driving under the influence, he was given probation because it was his first felony driving under the influence. After he had finished that probation, he was—or his sentence, he was deported, tried to reenter the Country two or three times, was further deported.
"And that seems to be the reason why we've not seen him in the last four or five years. When he came back to California because of work and so on, he picked up this drunk driving, it seems like, in a short period of time. However, I don't think the aggravated term, as recommended by Probation, is appropriate in this case, as this would be his first time in going to State Prison, this matter.
"I do also find regarding these alcohol-related driving under the influence cases, that this is certainly a disease that is recognized by the professionals and in terms of a chronic type of disease that needs treatment. It is my hope that [defendant] will seek treatment through his term of parole, if he is not deported from CDC."
DISCUSSION
Defendant maintains that the trial court's denial of probation constituted an abuse of discretion because it was based on two factual misstatements—specifically, that all of his DUI convictions involved high blood-alcohol levels and that the absence of DUI arrests in the immediately preceding four to five years was likely attributable to his absence from the country following his deportations. In fact, while defendant had a high blood-alcohol level when arrested for the present offense and in three of his four prior DUI convictions, the record does not indicate his blood-alcohol level for his fourth prior DUI conviction. Likewise, the record does not indicate how long defendant was absent from the country following his most recent deportation.
Defendant acknowledges that failure to object to factual errors in a trial court's statement of reasons at the time of sentencing waives them for purposes of appeal. As our Supreme Court explained in People v. Scott (1994) 9 Cal.4th 331, 353, "[r]outine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention." The purpose of the waiver rule is "to reduce the number of errors committed in the first instance and preserve the judicial resources otherwise used to correct them." (Ibid.) Contrary to defendant's assertion, defense counsel's general argument for probation rather than a state prison sentence cannot reasonably be construed as an objection to subsequent factual defects in the trial court's post-argument statement of reasons. Had the purported misstatements been brought to the trial court's attention by way of a timely objection, it could have addressed them at that time, either by allowing additional evidence on the two facts at issue or by eliminating its reliance on those facts.
In any event, we are confident that neither of the errors ascribed to the trial court's statement of reasons prejudiced defendant. At no point did defendant seek to minimize the gravity of his numerous DUI convictions based on his blood-alcohol level or the time between the convictions. In fact, in his written statement in mitigation, defendant himself acknowledged that after his most recent conviction for felony DUI, for which he received probation, "his drinking worsened again and he began suffering blackouts—a sign of serious trouble." On the present record, there is simply no reasonable probability that the trial court would have opted for probation in lieu of a state prison sentence in the absence of any inconsequential misstatements in its statement of reasons.
DISPOSITION
The judgment is affirmed.
/s/_________
McGuiness, Acting P.J. We concur: /s/_________
Siggins, J. /s/_________
Jenkins, J.
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------