Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC788131
Bamattre-Manoukian, J.
Defendant Sean Pete Bearquiver was convicted after jury trial of felony driving under the influence (DUI) with three prior convictions (Veh. Code, §§ 23152, 23550, subd. (a)), misdemeanor being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), misdemeanor driving with a license suspended for a DUI conviction (Veh. Code, § 14601, subd. (a)), and misdemeanor driving with a license suspended for driving with a blood alcohol level of.08 or more (Veh. Code, § 14601.5, subd. (a)). Defendant admitted having served three prior prison terms (Pen. Code, § 667.5, subd. (b)). The trial court sentenced defendant to five years in state prison and ordered him to pay $778.88 in victim restitution.
Further unspecified statutory references are to the Penal Code.
On appeal, defendant contends that he was denied his right to a jury trial on the prison prior allegations, that there is insufficient evidence to support the prison priors, and that the court abused its discretion by imposing victim restitution in the amount of $778.88. As we disagree with all of defendant’s contentions, we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged by information filed December 20, 2007, with driving under the influence of a drug with three prior convictions (Veh. Code, §§ 23152, subd. (a), 23550; count 1), misdemeanor being under the influence of phencyclidine (PCP) (Health & Saf. Code, § 11550, subd. (a); count 2), misdemeanor driving with a license suspended for a DUI conviction (Veh. Code, § 14601.2, subd. (a); count 3), and misdemeanor driving with a license suspended for driving with a blood alcohol level of.08 or more (Veh. Code, § 14601.5, subd. (a); count 4). The information further alleged as to count 1 that defendant had three prior Vehicle Code section 23152 convictions, as to count 3 that he had a prior Vehicle Code section 14601.5 conviction, and as to counts 3 and 4 that he had a prior Vehicle Code section 14601.1 [driving on a suspended license] conviction, and that he had served three prior prison terms within the meaning of section 667.5, subdivision (b).
On February 14, 2008, the court denied defendant’s Marsden motion. (People v. Marsden (1970) 2 Cal.3d 118.)
On the morning of February 20, 2008, defense counsel moved to bifurcate trial on the prison priors and to “sanitize[]” the driving-on-a-suspended-license charges as to “why the licenses were suspended.” The court granted the request to bifurcate trial on the prison priors (§ 667.5, subd. (b)), and on the driving-on-a-suspended-license priors (Veh. Code, §§ 14601.1, 14601.5), but denied the request to bifurcate trial on the DUI priors. Defendant then admitted all priors except for the prison priors. Before accepting defendant’s admission, the court informed defendant that he had a right to a jury trial on the allegations, and defendant stated that he understood and waived that right. That afternoon, the court and parties heard hardship excuses by prospective jurors.
On the morning of February 21, 2008, prior to jury voir dire, defendant submitted a signed Faretta waiver form, waiving representation by counsel and requesting self-representation. (Faretta v. California (1975) 422 U.S. 806.) As part of the waiver form, defendant stated that he understood that, “in the event of a conviction, it will be necessary for me, WITHOUT THE ASSISTANCE OF COUNSEL, to conduct all matters after trial consisting of (but not limited to): [¶]... [¶] Making appropriate motions after trial....” Noting defendant’s prior convictions, the court asked defendant “if you have been a defendant who has actually gone to trial before, watched the attorneys at trial and seen how the whole case progresses?” Defendant answered affirmatively. After going over the waiver form and discussing the matter with defendant, the court granted defendant’s request for self-representation. Defendant then informed the court that he wanted the prosecutor to have to prove both his priors and that he knew of his license suspension.
The Trial Evidence
Jose Alvarez testified that around 7:30 p.m. on November 22, 2007, he was in the living room of his home on Warrington Avenue in San Jose when he heard a noise outside. He told his brother-in-law to look outside. His brother-in-law did, and said that somebody had hit Alvarez’s car. Alvarez looked out the window and saw that a van had come in the wrong direction and hit the front of his car. Defendant was at the wheel of the van. Defendant opened the driver’s side door and got out of the van as Alvarez stepped outside. Defendant took off his sweater and shoes and walked around the van. Alvarez saw that some paint had come off the passenger-side corner of his car. Alvarez tried to talk to defendant, but defendant did not respond to anything Alvarez said. Alvarez’s daughter brought him a phone, and he called the police. He has submitted a collision repair report seeking $778 for the cost of the collision repair.
San Jose Police Officer Daniel Carley testified as an expert in recognizing when a person is under the influence of PCP. He testified that around 7:30 p.m. on November 22, 2007, he was dispatched to investigate a traffic collision on Warrington Avenue involving somebody who was possibly under the influence. When the officer arrived on the scene, he saw a parked car and an unoccupied van front-bumper-to-front-bumper at a very slight angle in the street, with paint transfers on the bumpers of both vehicles. The van would have had to cross over the street in order to come in contact with the parked car.
Officer Carley saw Sergeant Bastile and defendant standing face-to-face about eight feet apart in the street. Defendant was wearing only boxer shorts, even though it was a cool, dry night. He was leaning on the passenger side of the van, trying to get one of his legs into a pair of pants. Defendant’s body movements were very “robotic.” Sergeant Bastile asked defendant several times to turn around and put his hands behind his back, but defendant did not respond. Officer Carley could tell that defendant was under the influence of PCP, so he got out of his patrol car and offered Sergeant Bastile assistance. Defendant continued to pay no attention to Sergeant Bastile’s commands. When Officer William Young arrived, the three officers approached defendant, placed him in handcuffs, and put him in a patrol car.
Officer Carley determined that the collision occurred when the van was moving “quite slow,” “[b]etween five and 10 miles per hour.” There was no damage to either vehicle other than the “very minor” paint transfers. The van was registered to a woman at defendant’s address, and the parked car was registered to Alvarez. Alvarez told the officer that he saw defendant get out of the driver’s seat of the van. The van was impounded.
Officer Young testified as an expert on the identification of persons under the influence of PCP. He testified that around 7:30 p.m. on November 22, 2007, he was dispatched to the Warrington address, where he found Sergeant Bastile and Officer Carley standing “in a defensive posture,” looking at defendant. Defendant was leaning against the passenger side of a van, repeating what Sergeant Bastile was saying, but otherwise unresponsive. He was wearing boxer shorts and socks, and had sweatpants down around his ankles. He tried to pull his pants up, but was unsuccessful. The van, which was up against a parked car, was running, its lights were on, and the driver’s side door was open. Officer Young helped Sergeant Bastile and Officer Carley handcuff defendant.
Officer Young then observed the following objective symptoms of being under the influence of PCP: defendant had dry lips, constricted pupils, and bloodshot eyes; he smacked his lips, mumbled, repeated questions and delayed answering them; and his movements were slow and methodical. Officer Young concluded that defendant was under the influence of PCP. The officer placed defendant in the back of his patrol car and drove him to the police station. During the drive, defendant asked the officer what he was arrested for. The officer responded that defendant was arrested for being under the influence and crashing into someone’s car. Defendant repeated his question over and over and, after answering defendant multiple times, the officer asked defendant not to ask him any more questions. Defendant said, “ ‘I fucked up. I like to get high sometimes. It’s a little PCP.’ ”
At the police station, Officer Young did a records check on defendant and ordered a blood sample be taken. The blood sample was booked into evidence. One criminalist from the county crime lab testified that the blood sample tested negative for alcohol, but was found to have.025 micrograms of PCP per milliliter of blood. A second criminalist from the lab, who testified as an expert on the effects of PCP on a person’s ability to drive safely, testified that PCP is a psychoactive drug that makes a person “impaired for the purpose of driving with the caution of a sober person.” She further testified that, unlike alcohol, there is no correlation between the level of the drug and the symptomology that a person exhibits. “[S]ome people might be affected completely with the drug at very low levels and other people might not be affected as much at the higher levels.” Being catatonic and nonreactive, having dry lips, constricted pupils, and bloodshot eyes, and smacking lips, repeating questions and delaying answers, are symptoms consistent with somebody who is under the influence of PCP.
Department of Motor Vehicle records showing the effective dates of the suspensions of defendant’s driving privileges and the dates he was notified of the suspensions, were admitted into evidence as People’s exhibit No. 1.
Verdicts, Admission of the Priors, and Sentencing
On February 25, 2008, the jury found defendant guilty of all counts as charged in the information. After the verdicts were read and the jury was polled, the court thanked the jurors for their service and excused them. The jurors left the courtroom. The court then stated: “At this time, the court having bifurcated the issue of the prior convictions alleged in the information, are the parties prepared to proceed to trial on the allegations of prior conviction?” The prosecutor stated that he was not ready to proceed because he thought that defendant had admitted the priors, so the court took the lunch recess.
After the recess, the court asked defendant, “whether or not you want to proceed to have a trial which will basically amount to the district attorney’s submission of these documents for the court’s consideration. They are certified documents. And I would review basically the information that you and I have just gone over to determine whether or not the allegations of prison priors are true. [¶] If you admit the prison priors, I want you to be absolutely certain that you understand in a sense that it means that I don’t have to make a finding, that you have simply admitted. It means you give up your right to court and jury trial and to confrontation of the evidence. That is the right to confront and cross examine any witnesses, although I understand the People don’t intend to call any witnesses.” “And to introduce, call any witnesses or introduce any evidence in your own defense. As well as the right to testify and the right against self-incrimination. [¶] I’m going over that with you in a bit more detail. I just wanted to find out what you are going to do.” “You know what the best offer that was made to you. And, right, you do know what your maximum possible sentence was. Obviously, the three prison priors that are alleged each are worth one year of that sentence and is what I previously asked you. The question is not what your sentence is going to be, only whether or not you want to have a trial, for what’s that worth, or whether you want to admit.”
Defendant told the court that “I don’t have to take up no more of the court’s time. I just want to get this over with.” The court then formally advised defendant of the rights he would be giving up if he admitted the priors, including the “right to have either a jury or court,” and “at either kind of trial,” “the right to see and hear the witnesses who would testify against you and have them cross examined under oath,” “the right to call witnesses to testify on you own behalf and to use the court’s subpoena power to force them to come to court, which doesn’t cost you anything,” “the right to testify in your own behalf, if you choose to do so,” and “the right against self-incrimination which is the right to remain silent. It means you can’t be forced to testify or to admit these priors.” Defendant stated that he understood and wished to give up each of these rights. He then admitted each of the three alleged prison priors, that is, he admitted three times that he “suffered a prior conviction with a resulting prison term within the meaning of Penal Code section 667.5(b).”
The probation report recommended that defendant be sentenced to five years in state prison, the midterm of two years for the offense in count 1 and one year each for the three prison priors. The probation report further stated that Alvarez submitted a statement of loss form indicating he is requesting $778.88 in restitution.
On May 9, 2008, the date set for sentencing, defendant requested that the court strike the prison priors. He also asked that no restitution to Alvarez be ordered because “the defendant was never charged with a vehicle accident. He was only charged with... driving under the influence with three priors.” “I mean, strike the restitution – I ask to strike that from the case also because it’s a civil matter. It’s not a criminal matter in this case. If he wants to pursue a civil judgment, he has to go to a civil court for that.”
The probation officer responded: “I believe that the request for restitution was made on behalf of victim, Jose Alvarez, not in that there was a specific charge to the accident but that it’s reasonably related conduct. It was the accident that brought the issue of the defendant’s being under the influence and driving to light. [¶] And, additionally, the police report does indicate that there was paint transfer so there is no question that the victim’s vehicle was struck by the defendant’s vehicle.” Defendant replied, “during trial, Mr. Alvarez said that I hit his vehicle and put a large dent in the driver’s side of the front fender and Mr. Carley, officer, accurately stated that it was on – actually on the passenger side of the car and there was barely a minor paint transfer, if that. So I don’t think that is – I don’t think that the request for $778 is reasonable.”
After considering the written materials submitted by defendant and the parties’ comments, the court sentenced defendant to five years in state prison, and ordered defendant to pay restitution to Jose Alvarez in the amount of $778.88. As to the restitution, the court stated: “This court heard evidence during the trial directly from the victim himself, and, in addition, that evidence was corroborated by photographs and the testimony of police officers regarding the damage to the victim’s car as a result of the collision with the – or as a result of being struck by the defendant’s car. That driving and the collision which resulted is directly attributable to the defendant operating a motor vehicle while under the influence of a dangerous and controlled substance and being substantially impaired at the time.”
DISCUSSION
The Prison Priors
Defendant contends that his right to a jury trial on the section 667.5, subdivision (b) enhancements was violated when the court failed to advise defendant of that right until after it had dismissed the jury. He argues that, although he was “subsequently asked if he waived his right to a jury trial, that waiver was meaningless, since it would have been impossible for [him] to have had a jury trial on the bifurcated prior conviction allegations. This constituted a violation of sections 1025 and 1164.” Defendant further argues that he did not waive his right “to challenge the denial of his right to a jury trial by failing to object to discharge of the jury or otherwise bring to the court’s attention its failure to obtain his express, personal waiver of jury trial prior to the dismissal of the jury.”
“[T]he question of whether or not the defendant has suffered the prior conviction shall be tried by the jury that tries the issue upon the plea of not guilty, or in the case of a plea of guilty or nolo contendre, by a jury impaneled for that purpose, or by the court if a jury is waived.” (§ 1025, subd. (b).) “No jury shall be discharged until the court has verified on the record that the jury has either reached a verdict or has formally declared its inability to reach a verdict on all issues before it, including, but not limited to,... the truth of any alleged prior conviction whether in the same proceeding or in a bifurcated proceeding.” (§ 1164, subd. (b).)
“As [our Supreme Court’s] decision in People v. Wiley (1995) 9 Cal.4th 580, 589..., makes clear, a defendant’s right to have a jury determine the truth of the prior conviction allegation is derived from statute. Thus, defendant asserts a violation of his state-created right to have the truth of the prior conviction allegations tried by a jury ‘or by the court if a jury is waived.’ (§ 1025;...].)” (People v. Vera (1997) 15 Cal.4th 269, 274, fn. omitted (Vera).) “In [People v.] Saunders [(1993)] 5 Cal.4th 580 [(Saunders)], [the] court reviewed a defendant’s claim that the trial court violated section 1025 by discharging the jury after it had found defendant guilty of the substantive offense but before the jurors had determined the truth of the prior conviction allegations. [The court] concluded the defendant’s failure to alert the trial court by making a timely objection precluded the claim on appeal. (Saunders, supra, at p. 589.) Defendant is similarly precluded from asserting his claim of an ineffectual jury waiver under the same statutory scheme.” (Vera, supra, 15 Cal.4th at p. 274.)
The defendant in Saunders pleaded not guilty to the charged offenses, and denied the allegations of a prior felony conviction and prison term. The issue of the prior convictions was bifurcated from trial on the substantive offenses. The jury returned a guilty verdict on one of the substantive offenses and acquitted the defendant of the remaining charges. The trial court discharged the jury and continued the matter to the next day. When the proceedings resumed, the court indicated its understanding, confirmed by defense counsel, that defendant wished to waive the right to jury trial on the prior allegations. The court then obtained an express waiver of jury trial from the defendant. The prosecutor presented certified records of the defendant’s prior convictions, and the truth of the allegations was submitted to the court. The next day, after defense counsel raised the issue, the trial court permitted the defendant to withdraw his waiver, and a new jury was impaneled. The new jury found true each of the prior conviction allegations. (Saunders, supra, 5 Cal.4th at pp. 586-587; see also Vera, supra, 15 Cal.4th at p. 275.)
The Saunders court found that the trial court’s discharge of the first jury before that jury determined the truth of the prior conviction allegations constituted a violation of sections 1025 and 1164. (Saunders, supra, 5 Cal.4th at p. 589.) The court pointed out, however, that the defendant failed to bring this error to the trial court’s attention by timely objection to the discharge of the first jury. (Ibid.) Therefore, the court concluded, the defendant could not complain on appeal of a departure from the statutory requirement that the same jury determine his guilt and the truth of the prior allegations. (Id. at p. 590.) In reaching its conclusion, the Saunders court “applied the well-established procedural principle that, with certain exceptions, an appellate court will not consider claims of error that could have been—but were not—raised in the trial court. ([id.] at pp. 589-590.) Saunders emphasized the strong policy reasons for such a rule: It is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided. (Id. at p. 590;...].)” (Vera, supra, 15 Cal.4th at pp. 275-276.)
Defendant contends that his case “differs markedly” from both Saunders and Vera because he was representing himself when the court discharged the jury. “Rather than [defendant’s] causing a misunderstanding that misled the court, as occurred in Saunders and Vera, [defendant] here was himself misled by the court’s immediate dismissal of the jury following the return of its verdict.” “Since the court never informed [defendant] of his right to jury trial prior to discharging the jury, [defendant] did not learn of that right until it was too late, i.e., through the advisements which followed the court’s discharge of the jury.” Defendant further argues that the court “recently made clear in People v. French (2008) 43 Cal.4th 36, 48, fn.3 [(French)], Vera is no longer controlling.”
Like defendant’s claim of error here, the defendant’s claim in Saunders asserted a violation of section 1025 and 1164. “Although the Saunders defendant claimed a denial of the right to the same jury rather than the right to jury trial, the distinction does not compel a different result.” (Vera, supra, 15 Cal.4th at p. 276.) In both this case and Saunders, the trial court discharged the jury after receipt of the verdicts on the substantive offenses before determining that the defendant wished to waive jury trial on the bifurcated priors. If defendant wished a jury trial, he could have pointed this out before admitting the truth of the prior allegations. “The prior conviction allegations could have been properly tried to a jury impaneled for that purpose.” (Ibid.) Instead, defendant expressly stated that he understood he had a right to a jury trial on the prison priors and he wished to waive that right. That defendant was representing himself at the time he admitted the priors is of no moment; he was informed prior to the time his request for self-representation was granted that he would be charged with making any and all appropriate motions after his conviction. Moreover, French, supra, 43 Cal.4th 36, dealt with the Sixth Amendment right to a jury trial on factors relied upon to impose an upper term, not on the statutory right to a jury trial on prior conviction allegations. (Id. at pp. 40, 47.) We are still bound by the holding in Vera that a defendant waives his statutory right to a jury trial on prior conviction allegations if he does not timely raise the issue below.
Defendant also contends that his due process rights were violated because there was insufficient evidence to support the three prior prison term enhancements. “In this case, the prosecution failed to prove substantial evidence of two elements of the section 667.5, subdivision ([b]) enhancement, i.e., that [defendant] served a separate prison term for each of the offenses, and that he did not remain free of prison custody and felony conviction for a period of five years after concluding a prior prison term.”
“A guilty plea admits every element of the offense charged and is a conclusive admission of guilt. [Citations.] It waives any right to raise questions about the evidence, including its sufficiency.” (People v. Lobaugh (1987) 188 Cal.App.3d 780, 785.) The same principles apply to a defendant’s admission of an enhancement. (Ibid.) “A defendant may admit an enhancement for a variety of reasons: as part of a plea bargain,...; to obtain a perceived tactical advantage, such as keeping the convictions from the ken of the jury,...; because he believes it futile to contest the prosecution’s proof; or simply because he honestly knows the allegations to be true.” (People v. Thomas (1986) 41 Cal.3d 837, 844.) “[W]hen the sufficiency of an admission of a prior conviction is called into question, the only issue is whether the admission was voluntary, made by a defendant who has been informed of his constitutional rights and of the consequences of the admission. [Citation.] An admission which meets those standards is binding whether or not defendant obtained an adequate consideration in return for the admission.” (Id. at pp. 844-845.)
On the record before us, we conclude that defendant’s admissions that he served three prior prison terms within the meaning of section 667.5, subdivision (b), were sufficient to establish those allegations. Therefore, the court properly imposed three one-year enhancements under that section. No due process violation has been shown.
Victim Restitution
Defendant contends that the court abused its discretion in ordering him to pay victim restitution in the amount of $778.88 to Alvarez. He argues that Officer Carley’s and Alvarez’s testimony made it clear that the only damage to Alvarez’s car was an “inconsequential,” “ ‘very minor paint transfer.’ ” “[C]ommon experience mandates a conclusion that the cost of repairing a ‘very minor paint transfer’ was not $778.”
Under article I, section 28 of the California Constitution, victims have a right to restitution for financial losses. (Cal. Const., art. I, § 28, subds. (a) & (b); People v. Carbajal (1995) 10 Cal.4th 1114, 1122 (Carbajal).) This constitutional mandate is implemented by section 1202.4, which provides in pertinent part: “In every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims....” (§ 1202.4, subd. (f).) The restitution order “shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as a result of the defendant’s criminal conduct, including, but not limited to, all of the following: [¶] (A) Full or partial payment for the value of stolen or damaged property. The value of stolen or damaged property shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible....” (§ 1202.4, subd. (f)(3).)
The trial court must have a factual and rational basis for the amount of restitution it orders. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.) We review a restitution order for abuse of discretion. (People v. Mearns (2002) 97 Cal.App.4th 493, 498.) “Under that standard, we are required to keep in mind that even though the trial court has broad discretion in making a restitution award, that discretion is not unlimited. While it is not required to make an order in keeping with the exact amount of loss, the trial court must use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary and capricious. [Citations.]” (People v. Thygesen (1999) 69 Cal.App.4th 988, 992.) “Restitution orders may not be based merely upon the trial court’s subjective belief regarding the appropriate compensation; there must be a factual and rational basis for the amount ordered....” (Carbajal, supra, 10 Cal.4th at p. 1125.)
Here, during trial, defendant showed Alvarez his collision repair report, and asked Alvarez if he was requesting $778 to repair his car. Alvarez said that he was. Officer Carley testified that the damage to Alvarez’s car and defendant’s van amounted to very minor paint transfers. The probation report stated that the collision repair report submitted by Alvarez showed a damage repair estimate of $778.88 to this car. Although defendant contends here, as he did below, that the amount of Alvarez’s request is not reasonable, we find that the record before us discloses a factual and rational basis for the trial court’s order of restitution to Alvarez of $778.88. No abuse of discretion has been shown.
DISPOSITION
The judgment is affirmed.
WE CONCUR: RUSHING, P.J., ELIA, J.