Opinion
E068810
07-03-2018
THE PEOPLE, Plaintiff and Respondent, v. JACK ALBERT CHAPPELL, Defendant and Appellant.
Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Charles C. Ragland, Marvin Mizell, and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1600616) OPINION APPEAL from the Superior Court of Riverside County. Jean P. Leonard. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed in part; affirmed in part. Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Charles C. Ragland, Marvin Mizell, and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant, Jack Albert Chappell, pled guilty to driving with a suspended license. (Veh. Code, § 14601.2, subd. (a); count 3.) A jury thereafter convicted defendant of evading a police officer in wanton disregard for the safety of persons or property (Veh. Code, § 2800.2; count 1) and driving under the influence of an alcoholic beverage (Veh. Code, § 23152, subd. (a); count 2). The court subsequently found true allegations defendant had suffered a prior strike conviction (Pen. Code, §§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)) and five prior prison terms (Pen. Code, § 667.5, subd. (b)). The court sentenced defendant to an aggregate term of incarceration of 11 years.
The court also found defendant in violation of his probation in another matter.
After defendant's counsel filed a notice of appeal, this court appointed counsel to represent him on appeal. Counsel filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the facts, a statement of the case, and identifying one potentially arguable issue: whether the court erroneously found the prior prison term allegations true where the evidence was insufficient to establish that defendant did not remain free for five years of both prison custody and the commission of a new offense prior to his current conviction.
Defendant was offered the opportunity to file a personal supplemental brief, which he has done. Defendant raises the same issue identified as potentially arguable by his counsel on appeal. Defendant additionally contends the court erred in denying his Romero motion.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
After our review of the record, we ordered the parties to brief the following issue: "Did the court err in finding true and imposing sentence on the first five prior prison term enhancement allegations (Pen. Code, § 667.5, subd. (b))? In other words, since the court found prior prison term allegations 6 through 9 not true, did insufficient evidence support the court's ruling that the 'washout rule' did not apply to prior prison allegations 1 through 5 when defendant was released from prison on prior 5 on November 8, 2005, and committed the offenses in the instant case on February 9, 2016? (People v. Fielder (2004) 114 Cal.App.4th 1221, 1229.)" The People concede that insufficient evidence supports the trial court's findings on the first five prior prison term allegations due to the "washout rule." We reverse the court's findings on prior prison term allegations 1 through 5 and remand the matter for retrial and resentencing. In all other respects, the judgment is affirmed.
I. FACTUAL AND PROCEDURAL HISTORY
On February 9, 2016, around 12:34 a.m., a California Highway Patrol officer and his partner were patrolling State Route 91 in the City of Corona in their patrol vehicle. The freeway was undergoing major construction; therefore, the speed limits in the construction zones had been reduced from 65 miles per hour to 55 miles per hour. The officer observed defendant in a Ford F-150 pickup truck weaving in his lane, a violation of Vehicle Code section 21658, subdivision (a); driving within two to four feet behind a semitruck, a violation of Vehicle Code section 21703; and driving between 55 and 65 miles per hour, a violation of Vehicle Code section 22350.
The officer told his partner defendant might be under the influence and the officer activated the red lights on his patrol vehicle in order to pull defendant over. Defendant continued to drive. The officer activated his vehicle's flashing red and blue lights. Defendant changed lanes, went around the semitruck, and accelerated rapidly. The officer activated his siren, notified other units he was attempting to stop a Ford F-150 for possibly driving under the influence, and gave pursuit.
The pursuit continued westbound on State Route 91 to southbound State Route 55 in Orange County where defendant exited the freeway at Katella Avenue; ran a red light, a violation of Vehicle Code section 21453, subdivision (a); and got back on State Route 55 going north; defendant eventually transitioned back onto State Route 91 east. The pursuit took place over 45 minutes over the course of 40 to 45 miles, from Corona to Orange County, back through Corona, into Riverside, and back to Corona.
During the pursuit, defendant reached speeds of over 110 miles per hour and hit construction cones in the construction zones, a violation of Vehicle Code section 2218. Multiple law enforcement units from various agencies became involved in the pursuit, including a helicopter, which placed a spotlight on defendant's vehicle. The People played a video recording to the jury of the pursuit obtained from the officer's patrol vehicle.
Another officer made contact with defendant when he eventually pulled over. Defendant did not have a valid driver's license; his license had been suspended. The officer smelled a strong odor of alcohol on defendant. Defendant's eyes were red and watery; his "demeanor" was "[s]low"; his face was "droopy" and "lethargic"; his speech was slow and slurry; and he was unsteady on his feet. The officer opined defendant was under the influence of alcohol.
Defendant was unwilling to perform field sobriety tests. The officer witnessed a nurse conduct a blood draw on defendant at the police station at 2:18 a.m. An analysis of defendant's blood sample reflected a blood-alcohol content of 0.079 percent.
On February 11, 2016, the People filed a felony complaint charging defendant with reckless driving to evade (Veh. Code, § 2800.2; count 1), driving while under the influence (Veh. Code, § 23152, subd. (a); count 2), and driving with a suspended license (Veh. Code, § 14601.2, subd. (a); count 3). The People additionally alleged defendant had suffered nine prior prison terms (Pen. Code, § 667.5, subd. (b)) and one prior strike conviction (Pen. Code, §§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)).
The nine prior prison term allegations included the following: (1) a conviction for possession of controlled substances for sale (Health & Saf. Code, § 11378) in San Diego County, case No. CR76430, on December 6, 1985, for which the court sentenced defendant to two years in state prison and on which he was paroled on September 20, 1988; (2) a conviction for second degree burglary (Pen. Code, § 459) in San Diego County, case No. CR00220, on February 15, 1989, for which the court sentenced defendant to two years in state prison and upon which he was discharged on February 4, 1994, after multiple releases and violations of parole; (3) a conviction for possession of controlled substances for sale (Health & Saf. Code, § 11378) in Orange County, case No. 96NF0953, on June 6, 1996, for which the court sentenced him to four years in state prison and upon which he was finally paroled on February 19, 2003, after multiple violations and returns; (4) a conviction for identity theft (Pen. Code, § 530.5, subd. (a)) in Orange County, case No. OOCF2640, on January 9, 2001, for which the court sentenced defendant to three years in state prison; (5) a conviction for forgery of handwriting to defraud (Pen. Code, § 470b) in Orange County, case No. 03NF1356, on June 25, 2003, for which the court sentenced defendant to two years in prison and upon which he was finally paroled on November 8, 2005, after two parole violations; (6) a conviction for possession of fraudulent checks (Pen. Code, § 475, subd. (a)) in Orange County, case No. 05NF4443, on November 28, 2005, for which the court sentenced defendant to three years in state prison and upon which defendant was paroled on May 24, 2007, after one parole violation; (7) a conviction for possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) in Orange County, case No. 07WF1268, on July 24, 2007, for which the court sentenced defendant to three years in state prison and upon which defendant was discharged on December 22, 2014, after two violations of parole; (8) a conviction for possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) in Orange County on June 11, 2008; and (9) a conviction for petty theft with a prior (Pen. Code, §§ 666, 484) in Orange County, case No. 12CF0446, on April 6, 2012, for which the court sentenced defendant to two years in prison and upon which defendant was discharged on December 22, 2014.
The record does not reflect when defendant was released on this sentence.
The probation officer's report and abstract of judgment reflect the conviction actually occurred on June 16, 2003.
No evidence of this conviction is reflected in either the probation officer's report or the Penal Code section 969b packets entered into evidence at the trial on the priors.
No evidence of this conviction was presented in the Penal Code section 969b packets entered into evidence at the trial on the priors.
On August 15, 2016, counsel for defendant filed three Penal Code section 1170.18 petitions in Orange County Superior Court for reclassification of his felony convictions in case Nos. 12CF0446 (prior 9), 07WF1268 (prior 7), and OOCF2640 (prior 4). According to the probation officer's report, the Orange County Superior Court granted the petitions, reducing the felony convictions alleged in priors 7 and 9 to misdemeanors and reducing a felony conviction not alleged in the current case, but for which defendant had been sentenced to a concurrent term to the conviction for the offense alleged in prior 4, to a misdemeanor.
On December 19, 2016, defense counsel filed a Romero motion which, after the People filed opposition, the court denied on January 4, 2017. On January 26, 2017, the People filed a felony information which was identical to the complaint for all relevant purposes here. On March 24, 2017, defendant entered a plea of guilty to the court on count 3.
Defense counsel filed an additional Romero motion on June 23, 2017. During the trial on the priors, a forensic technician testified she was able to match defendant's fingerprints to those in the records for all the prior allegations except prior 6. The People moved exhibits 5 and 6, the Penal Code section 969b packets, into evidence. Thereafter, defendant argued prior 6 was unproven without a fingerprint match and that priors 7 and 8 had been reduced to misdemeanors.
There is no evidence in the record that prior 8 was reduced to a misdemeanor; of course, neither did the People adduce any evidence at all of the conviction alleged in prior 8. --------
The court found insufficient evidence to support priors 6 through 9 and found them not true. The court found priors 1 through 5 true. The court found the prior strike conviction allegation true. The court denied defendant's Romero motion, finding defendant had almost yearly contacts with the criminal court since 1982.
II. DISCUSSION
A. Prior Prison Term Allegations
Defendant contends that the record reflects, to the extent of the court's findings, that he was last released from prison on November 8, 2005, on prior 5, and that he remained free from custody until committing the instant offenses on February 6, 2016; thus, the five-year "washout" period applied and the court erroneously found priors 1 through 5 true and erroneously imposed five consecutive one-year prison terms on the priors. We agree.
"The prosecution has the burden of proving beyond a reasonable doubt each element of the [Penal Code] section 667.5, subdivision (b) sentence enhancement, including the fact of no five-year 'washout' period. [Citation.] When, as here, a defendant challenges on appeal the sufficiency of the evidence to sustain the trial court's finding that the prosecution has proven all elements of the enhancement, we must determine whether substantial evidence supports that finding. The test on appeal is simply whether a reasonable trier of fact could have found that the prosecution sustained its burden of proving the enhancement beyond a reasonable doubt. In that regard, in conformity with the traditional rule governing appellate review, we must review the record in the light most favorable to the trial court's finding(s). [Citation.]" (People v. Fielder (2004) 114 Cal.App.4th 1221, 1232.)
"[W]here the new offense is any felony for which a prison sentence . . . is imposed . . . , in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term . . . ; provided that no additional term shall be imposed under this subdivision for any prison term . . . prior to a period of five years in which the defendant remained free of both the commission of an offense which results in a felony conviction, and prison custody . . . ." (Pen. Code, § 667.5, subd. (b).) "The last phrase is commonly referred to as the 'washout rule' where a prior felony conviction and prison term can be 'washed out' or nullified for the purposes of [Penal Code] section 667.5." (People v. Fielder, supra, 114 Cal.App.4th at p. 1229.)
"According to the 'washout' rule, if a defendant is free from both prison custody and the commission of a new felony for any five-year period following discharge from custody or release on parole, the enhancement does not apply. [Citations.] Both prongs of the rule, lack of prison time and no commission of a crime leading to a felony conviction for a five-year period, are needed for the 'washout' rule to apply. This means that for the prosecution to prevent application of the 'washout' rule, it must show a defendant either served time in prison or committed a crime leading to a felony conviction within the pertinent five-year period. [Citations.]" (People v. Fielder, supra, 114 Cal.App.4th at p. 1229.)
Here, the People failed to adduce evidence that defendant's fingerprints matched those contained in the record for the conviction alleged in prior 6. Indeed, the People submitted on defense counsel's argument that prior 6 was unproven due to the lack of fingerprint evidence. Although defendant introduced no evidence to support the contention that the alleged convictions in priors 7 and 9 had been reduced to misdemeanors, which would disqualify them from being used to enhance defendant's sentence under Penal Code section 667.5, subdivision (b), the record does reflect petitions to reduce the convictions had been filed and the probation report reflects they were granted. Moreover, the People adduced no evidence at all on prior 8. Thus, the court's ruling that priors 6 through 9 were not true were supported by substantial evidence.
Therefore, to prove that defendant had failed to remain free from custody for a felony offense for five years, the People were required to prove that defendant had been convicted of and served prison time on a felony conviction occurring between the date of his release from prison on November 8, 2005, on prior 5, and his commission of the instant offenses on February 9, 2016. However, the court properly found any evidence supporting the allegations in priors 6 through 9 not true; therefore, the "washout rule" applied and the court erroneously found priors 1 through 5 true and erroneously imposed five consecutive one-year sentences on those priors. Therefore, we reverse the court's true findings on prior prison term allegations 1 through 5 and remand the matter for retrial and resentencing. B. Romero Motion
In his supplemental brief, defendant contends the court abused its discretion by denying his Romero motion. We disagree.
The court's denial of defendant's Romero motion was based largely on the court's finding that defendant "has a terrible record, and he just can't stay clean and sober." The court found defendant had a "deplorable" criminal history which went back to 1982 and involved almost yearly contacts with the court through 2013. Having viewed the video from the officer's car, the court observed the instant offenses involved "cruelty, viciousness[,] and callousness" in that defendant's acts posed the danger of great bodily injury to all the people he passed on the roadway: "I think the most frightening part is when he veered off the road where the workers were, and I just thanked God he didn't hit them." The court found defendant did not fall within the purview of Romero "at all." The court's findings and ruling find ample support in the record.
The probation officer's report and the Penal Code section 969b packets reflect defendant had suffered 19 separate conviction dates for numerous offenses beginning in 1982 and stretching through to the current offense committed in 2016. The records reflect numerous violations of parole and at least two revocations of probation. Defendant had been previously sentenced to prison nine times. Thus, the court balanced the relevant facts and acted within its discretion in ruling that defendant could not be deemed outside the "Three Strikes" scheme such that the court should strike his prior strike conviction. (People v. Carmony (2004) 33 Cal.4th 367, 374-377.)
Defendant contends the sentencing transcripts of his December 6, 1985, conviction should be examined because he believes there is an error in the abstract of judgment and that the conviction would not qualify as a strike. First, any reporter's transcripts from defendant's plea conviction in 1985 would long since have been destroyed even if he had appealed. (Cal. Rules of Court, rule 10.1028(d)(2) [criminal records destroyed after 20 years].) If he had appealed the conviction, defendant would have received his own copy of the transcripts which defendant would have had the burden of producing for any contention that the prior strike conviction did not qualify as a strike for purposes of his Romero motion. (People v. Carmony, supra, 33 Cal.4th at pp. 376-377.) Second, the abstract of judgment reflects that defendant pled guilty to "Assault/dly wpn" (Pen. Code § 245, subd. (a)(2)), hit and run while inflicting injury (Veh. Code, § 2001), and possession of a controlled substance (Health & Saf. Code, § 11378). Thus, defendant's conviction for assault with a deadly weapon does qualify as a prior strike conviction because the rational inference is that the deadly weapon was the car defendant was driving when he committed the offense of hit and run causing injury. (People v. Delgado (2008) 43 Cal.4th 1059, 1069-1070 [abstract of judgment which reflected defendant had been convicted of "'Asslt w DWpn'" sufficient to support court's finding that defendant had been convicted of a prior serious felony]; Pen. Code, § 1192.7, subd. (c)(31) [assault with a deadly weapon qualifies as a prior serious felony].) Therefore, the court acted within its discretion in denying defendant's Romero motion.
III. DISPOSITION
We reverse the court's true findings on prior prison term allegations 1 through 5 and remand the matter for retrial and resentencing. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. SLOUGH
J.