Opinion
A148137
03-22-2018
THE PEOPLE, Plaintiff and Respondent, v. JEREMY LORENZO DUKE, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51521533)
Defendant Jeremy Duke was arrested after he stole a car and led the police on a high-speed chase during which he sped through a neighborhood at 90 miles an hour and on a freeway going opposite the direction of traffic. He was found guilty of six offenses, including felony fleeing a peace officer and driving against traffic (count 1) and felony auto theft (count 2). He asserts the following four errors: (1) the trial court abused its discretion when it denied his motion to dismiss Juror No. 12 after a witness in the case made comments to the juror during a break; (2) count 2 must be reduced to a misdemeanor because there was no evidence the value of the car exceeded $950; (3) the felony conviction on count 2 must be reversed because the trial court failed to instruct the jury that it must find that the value of the car exceeded $950; and (4) the trial court abused its discretion in imposing the upper term of three years in state prison on count 1.
In light of the Supreme Court's recent decision in People v. Page (2017) 3 Cal.5th 1175, 1179 (Page), we agree defendant's felony auto theft conviction must be reduced to a misdemeanor. However, we reject his remaining arguments. We thus reverse in part and affirm in part.
BACKGROUND
Evidence at Trial
Johnny Hegarty was the first witness for the prosecution. He testified as follows:
On November 19, 2015 at approximately 12:40 a.m., Hegarty was at home in Pleasant Hill watching television in his garage when he heard a noise that sound like the driver-side door closing on his 1993 Toyota Corolla. The car made a distinctive rattle when the door was closed because the car's passenger-side window was broken. Hegarty then heard the sound of his car starting up, which was also distinctive because of an exhaust leak that made a "[v]ery loud" noise. He immediately ran outside, but his car was gone. Although it was already out of view, he could hear it being driven away because of the exhaust leak. He did not see who stole the car.
Hegarty's car was returned to him later that morning. It started up, but "[t]hat was about it." The tires were blown out, the dashboard ripped apart, the stereo equipment gone, the ignition switch smashed, and the ignition tumblers broken. Inside the car, there was a jacket and a beanie that did not belong to him, as well as "a small shaved screwdriver that car thieves normally use to start up stolen cars," which he knew because his brother used to steal cars.
Five law enforcement officers testified about their involvement in the apprehension of defendant after he stole Hegarty's car. They generally described the pursuit and defendant's arrest as follows:
Pleasant Hill Police Officer Drew Sanchez was on patrol around 2:00 a.m. when he received an alert that a car was seen being driven through a nearby neighborhood with its headlights off. He soon spotted a parked car matching the car's description, so he shined his spotlight on it. The license plate matched that of a stolen car, and defendant was sitting inside. As Officer Sanchez got out of his patrol car to approach the parked car, defendant drove off at a high speed. The officer pursued defendant, who was driving 80 to 90 miles per hour in a 25-mile-per-hour zone and running stop signs and red lights. After defendant sped up an onramp onto Highway 4, Officer Sanchez terminated his pursuit in the interest of public safety.
Another officer then spotted defendant and pursued him as he erratically sped along the freeway, at times driving with the traffic and at other times against it. Defendant eventually drove over a spike strip and continued on the freeway with flat tires and "[s]parks . . . flying everywhere" until he came to a stop on the shoulder. He fled the car and headed towards a residential neighborhood.
Officer Sanchez searched the neighborhood and spotted defendant less than a mile from Hegarty's abandoned car. He recognized defendant as the driver of the stolen car, although defendant was no longer wearing the sweatshirt and hat he had been wearing earlier. Defendant was sweating and breathing heavily, despite that it was a cold night with temperatures in the mid-40's. After detaining defendant, the officer found a screwdriver in his pocket. Also in his pocket was a wallet containing credit cards and membership cards in other people's names.
A search of Hegarty's abandoned car uncovered two backpacks containing car stereos, tools used to steal cars, several keys, and a credit card and a debit card in other people's names. A dark beanie that was still warm and dry was on the wet ground about 300 feet from the car.
Multiple officers testified that the driver of the stolen car had been wearing a dark beanie and identified defendant as the individual they had seen driving the car during the pursuit.
Procedural Background
On December 22, 2015, the Contra Costa County District Attorney filed a five-count information alleging defendant committed the following offenses: (1) felony fleeing a pursuing peace officer and driving against traffic (Veh. Code, § 2800.4); (2) felony driving or taking a vehicle without consent (id., § 10851, subd. (a)); (3) misdemeanor receiving stolen property (Pen. Code, § 496, subd. (a)); (4) misdemeanor possession of burglar's tools (id., § 466); and (5) misdemeanor driving on a suspended or revoked license (Veh. Code, § 14601.2, subd. (a)). The information was later amended to add a sixth count, felony evasion of a police officer (id., § 2800.2). Count 5 was bifurcated for a separate trial.
Defendant's trial commenced in February 2016, and evidence was heard on the afternoon of Thursday, February 25 and most of the day of Tuesday, March 1, at the conclusion of which both sides rested. The following day, after three hours of deliberation, the jury returned guilty verdicts on all counts. In a subsequent bench trial, the court found defendant guilty of driving on a suspended license.
Defendant was sentenced to the upper term of three years in state prison on count 1 and concurrent, two-year sentences on counts 2 and 6, with execution suspended pending successful completion of three years of formal probation and one year in county jail followed by a one-year residential treatment program. Defendant was awarded 121 actual and 121 conduct credits.
This timely appeal followed.
DISCUSSION
The Trial Court Did Not Abuse Its Discretion in Denying Defendant's Motion to Dismiss Juror No. 12
Background
On the morning of March 1, the second day of testimony, the bailiff reported to the court and counsel that Juror No. 12 had advised him that on the prior court day witness Hegarty had approached her and made comments about the case. Out of the presence of other jurors, the court asked Juror No. 12 to describe her interaction with Hegarty. This colloquy occurred:
Throughout this opinion, we omit excessive paragraph breaks found in the reporter's transcript.
"JUROR [NO. 12]: It was after we came back from lunch, and I was sitting out in the lobby and we were waiting to come back in here. And I was just sitting there, I thought he was another juror, and he said, 'Oh, are you on this case?' And I said, 'Yes.' And before I realized what was happening, he said, 'Oh, it was my car that was stolen and it cost me a lot of money.' That was it. And then at that point I just said, 'Don't talk to me,' or, 'Don't say anything else.'
"THE COURT: Were there any other persons present within earshot, to the best of your recollection? Other jurors that may have overheard this?
"JUROR [NO. 12]: There was another juror, I don't think he heard what was said. But then Mr.—the witness, Mr. Hegarty, seemed like he was nervous. He got up. And so there was a spot next to me and there was another juror, and he sat down and he said something to me, like, 'You know you're not supposed to talk to anybody.' And I said, 'Well I thought he was another juror.' And I really didn't think anything of it because, it didn't—until the weekend, when I started thinking about it, I thought, well maybe I should say something.
"THE COURT: Okay.
"JUROR [NO. 12]: And that was the end of the conversation. Mr. Hegarty got up and left.
"THE COURT: And as far as you know, no other jurors overheard the conversation? They just saw that you talked?
"JUROR [NO. 12]: Right. I don't think the other juror heard anything.
"THE COURT: Okay. And is there anything about that encounter that, in your mind, would make any difference to you in terms of your service as a juror in this case?
"JUROR [NO. 12]: No. And that's why I didn't think anything of it, because it was just such a short little statement, and it didn't—it didn't sway me one way or the other. I don't think it would sway me one way or the other.
"THE COURT: Well, I want to thank you for bringing this to the attention of the deputy. You did exactly the right thing and I appreciate that.
"It's also heartening for me to hear that another juror stepped in and pointed out, not to converse with other persons involved in the case. At least it means that the opening comments that I made about trying to stay clear of folks involved in the case got across the net, so to speak, and everybody is trying to do the right thing. I really do appreciate that very much. I'm going to have you just step out and we'll tell you what we're going to do here in a minute, but thank you very much."
The juror exited the courtroom, and the court and counsel engaged in the following exchange:
"THE COURT: [¶] . . . [¶] Here's my take on this.
"One, the jurors did listen when I admonished them at the beginning of the trial not to have any contact with anybody involved in the case, as demonstrated by [Juror No. 12's] candor here. And also, her relating that another juror said, 'You know you're not supposed to talk to anybody involved in the case.' That's a very good thing.
"But two, when you get into these type of situations, which doesn't happen very often—I maybe have had one other time in 20 years, this is not a common thing, by any means—the issue is whether or not any damage has been done. Whether there's anything that was said or conveyed that could in some way affect the trial.
"The witness, Mr. Hegarty, testified on Thursday, and related the entirety of the situation with regard to allegations of Mr. Duke stealing his car and what not. And as such, [Juror No. 12] didn't hear anything from Mr. Hegarty that she didn't hear from the stand, during the course of the trial. As such, I can't see how this could affect the trial in any way. And she has articulated that it was very short, and that it wouldn't affect the trial in any way. So based on what I've heard, it would be my intent to not do anything except to just go forward with the trial. If she had heard something from the witness that was something different than what the witness testified to on the stand, or something that would have been otherwise not allowable, that's an entirely different circumstance. But here, it's what I would call 'harmless error.'
"Mr. Cunnane [the prosecutor], I'm going to assume that you don't see it differently than the court does?
"MR. CUNNANE: I agree with the court's analysis, your Honor.
"THE COURT: So Miss Askeland [defense counsel], what do you want to do?
"MS. ASKELAND: Here's my concern. At this point I would be moving for a mistrial. And the reason is because, the witness should have been admonished by Mr. Cunnane to not speak with any of the jurors, in the first place. The impropriety of witnesses even speaking with jurors is a huge problem in this case. The first problem being that I don't know how many people Mr. Hegarty sought out to speak with. He sat next to one of the jurors, and then said specifically, 'Are you on this jury?' And then decided to tell her, 'Oh, yeah, it was my car that was stolen.'
"I don't know if he approached other jurors. I don't know what he said. He was clearly not properly admonished, and clearly not following witness instructions. And maybe that's because he didn't know, or maybe that's because he intentionally sought out to do so. I would like to think he would not do that. But then there are other jurors who are in the same area. Although, this juror specifically said that she didn't think that the other juror overheard. She doesn't know whether he overheard. And he obviously thought it was important enough to intervene.
"THE COURT: Let me interrupt you right there. I will ask the panel when they come in, in their totality, whether or not anybody has heard or had any contact with anybody else involved in the case. So I will make sure that that's not a problem. But this is the second time that you have asked for a mistrial in this case on matters that are de minimis. If there's no harm, . . . the court does not grant a mistrial based on something that has occurred that makes no difference, that doesn't change the complexion of case in any way. And it's what we all recognize as harmless error, because there's been a technical violation. I mean, it would be no different than if one of the witnesses in the case came up to one of the jurors and said, 'Boy, I sure hope we get some rain this week.' It's not something that's going to cause the court to grant a mistrial. [¶] . . . [¶]
"I find it somewhat disturbing, as you do, that witnesses for either side are not admonished by counsel to stay clear of anybody involved in the case, i.e., particularly jurors. But if there's been an inadvertent contact that doesn't cause any problem with regard to the presentation of evidence in the case, then why would we start over and pick another jury panel? That would make no sense. But at the very most, even if there was something said, if it didn't taint any of the other twelve jurors, at the very most the . . . remedy would be to unseat [Juror No. 12] and seat the alternate. That's the very most that could happen.
"MS. ASKELAND: Well your Honor, I do have to protect the record. And I do believe that, because I don't know the entirety of what was said or what other jurors overheard, that's why I'm asking for a mistrial, to protect the record. I am concerned that Mr. Hegarty was out with the jurors for a long period of time before he ended up testifying. And I don't know what else he said— [¶] . . . [¶]
"THE COURT: Well I think we know the entirety of what he said. I think [Juror No. 12] was pretty clear and completely credible in every way.
"MS. ASKELAND: I think [Juror No. 12] was very credible in what was said to her. But I don't know whether there were any statements that specifically Mr. Hegarty made to other people, that he said over his breath while he was sitting—he was clearly sitting right next to them, when he shouldn't have even been in the same area as him. So obviously that gives the defense, you know, major concern. I think in the very least, it makes sense to reseat [Juror No. 12] with the alternate. Because this is Mr. Duke's case. This is—the fact that there was a juror—that there was a witness sitting next to her, saying these things, I think that it's very important that she brought this up to the court. And I think the fact that she even waited a while to bring it up to the court, she probably didn't know. And that's what concerns me, is that a lot of these jurors don't really know when a witness is crossing the line, or when something is being said that shouldn't be.
"And so I think that [Juror No. 12] should at the very least be reseated, given that there was a witness who spoke with her, who said, 'That's my car.' 'It was my car that was stolen.' And you know, whatever else he may have said. My concern is that she should in the very least be reseated. And I do have concerns as to whether any of the other jurors overheard.
"THE COURT: Well I'm going to interrupt you again, because at this point we're just re-plowing the same field. [Juror No. 12] heard nothing more. It was very limited what she heard. But she heard the entirety of what Mr. Hegarty had to say when he came into court, took the stand, and testified to the whole thing. She didn't hearing [sic] anything from Mr. Hegarty that she didn't hear when he came into court and testified. [¶] . . . [¶] The question is, whether there's any harm to the error. It's error. I agree it's error. But it's harmless error. . . . [L]et's bring in the panel and find out if anybody else was affected by it."
The jury was then brought into the courtroom, and the court asked the panel whether anyone other than Juror No. 12 had been approached by anyone involved in the case or overhead anyone involved in the case discussing any aspect of the case. Noting that it had "twelve other heads all nodding in the negative," the court declared the issue resolved.
Testimony resumed, and then the court adjourned for lunch. After the lunch recess and out of the presence of the jury, defense counsel renewed her motion for a mistrial. She told the court that according to the bailiff, Juror No. 12 actually told him that Hegarty said defendant was the one who had stolen his car, his property was rifled through, and he was out a lot of money. Additionally, she claimed Juror No. 12 was now a possible impeachment witness against Hegarty to demonstrate his bias. The trial court asked the bailiff directly to repeat what Juror No. 12 had told him. This exchange ensued:
"THE BAILIFF: Juror Number Twelve told me, on Thursday, that the first witness approached her. Asked her if she was a juror. She said, 'Yes.' And she said that, 'He's the one that stole my car.'
"THE COURT: Okay.
"THE BAILIFF: And I stopped the juror. And I said, 'I'll let the judge know. The judge will bring you into court, and the judge will ask you questions.
"THE COURT: All right. Neither here nor there, items from the car are found in the defendant's possession. It's a reasonable inference. I don't see any issue here."
Analysis
A criminal defendant has a constitutional right to a fair trial by an impartial jury. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16; Duncan v. Louisiana (1968) 391 U.S. 145, 149; In re Hamilton (1999) 20 Cal.4th 273, 293-294.) "An impartial jury is one in which no member has been improperly influenced [citations] and every member is ' "capable and willing to decide the case solely on the evidence before it." ' [Citations.]" (In re Hamilton, supra, at p. 294.) As the United States Supreme Court long ago recognized: "Private communications, possibly prejudicial, between jurors and third persons, or witnesses, or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness is made to appear." (Mattox v. United States (1982) 146 U.S. 140, 150.)
In Godoy v. Spearman (9th Cir. 2017) 861 F.3d 956, 959, the Court of Appeals recently summarized the federal law that applies when there has been improper contact between a juror and a witness: "[C]ourts apply a settled two-step framework. At step one, the court asks whether the contact was 'possibly prejudicial,' meaning it had a 'tendency' to be 'injurious to the defendant.' [Citation.] If so, the contact is 'deemed presumptively prejudicial' and the court proceeds to step two, where the 'burden rests heavily upon the [state] to establish' the contact was, in fact, 'harmless.' Remmer v. United States, 347 U.S. 227, 229, 74 S. Ct. 450 (1954). If the state does not show harmlessness, the court must grant the defendant a new trial. See Remmer v. United States, 350 U.S. 377, 382 (1956) (Remmer II). When the presumption arises but the prejudicial effect of the contact is unclear from the existing record, the trial court must hold a 'hearing' to 'determine the circumstances [of the contact], the impact thereof upon the juror, and whether or not it was prejudicial.' Remmer, 347 U.S. at 229-30." (Godoy v. Spearman, supra, 861 F.3d at p. 959.)
Under California state law, "a nonjuror's tampering contact or communication with a sitting juror, usually raises a rebuttable 'presumption' of prejudice. [Citations.]" (In re Hamilton, supra, 20 Cal.4th at p. 295.) "Any presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant. [Citations.]" (Id. at p. 296.)
Thus, under both the federal and state standards, prejudice is generally presumed when an outside party makes contact with a sitting juror. The court must then determine whether the contact was harmless. This requirement is fatal to defendant's claim here, because the record supports the trial court's finding that the contact between Hegarty and Juror No. 12 was nonprejudical.
Juror No. 12 told the court that Hegarty asked her if she was on the case and she responded affirmatively. He then told her: " 'Oh, it was my car that was stolen and it cost me a lot of money.' " Hegarty testified that his car had been stolen, so evidence to that effect was indisputably before the jury independent of his comment to Juror No. 12. As to Hegarty's comment that the theft cost him a lot of money, he testified that the car suffered extensive damage: it had flat tires, the dashboard was torn apart, the stereo was missing, the ignition switch was smashed in, and the tumblers were broken. The reasonable inference from that testimony, heard by all jurors, was that it would cost Hegarty a lot to repair the damages to the car. Additionally, Juror No. 12 affirmatively represented that Hegarty's remarks would not sway her opinion. And the court also confirmed that no other juror had heard Hegarty's comments or had been contacted by him or any other witness. In light of all this, the court's finding that Hegarty's interaction with Juror No. 12 was harmless error was sound.
Defendant disagrees, first asserting that the trial court never found that the prosecution rebutted the presumption that Juror No. 12 was biased. This assertion is curious since as the court expressly said multiple times that Hegarty's interaction with Juror No. 12 was harmless error. Moreover, the discourse between the court and counsel both after the court had questioned Juror No. 12 and the bailiff made it clear that it was finding that defendant had not suffered any prejudice. Clearly, the court found the presumption of prejudice rebutted.
Defendant also contends that the prosecutor did not in fact rebut the presumption of prejudice because the court's "finding that the extrinsic evidence to which Juror No. 12 was exposed was already in evidence at the trial was flatly contradicted by the record." He reasons: "Witness Hegarty did not identify Appellant from the witness stand as the man who stole his car. In fact, he testified that he did not see who took it. Yet he informed Juror No. 12 that he did know, that he knew Appellant was the person who stole his car. And he went on to inform her that Appellant had cost him a good deal of money when he stole the car, a fact about which he had also not testified." We have already addressed Hegarty's comment regarding the costs he incurred as a result of the theft. As to the remainder of defendant's argument, it presumes that what the bailiff told the court Juror No. 12 reported to him (that Hegarty said defendant was the one who stole his car) was accurate, while Juror No. 12's account of what Hegarty said (that he was the one who had his car stolen) was incorrect. Defendant goes so far as to assert that "[w]hen questioned [by the trial court] about it, Juror No. 12 gave an inaccurate and incomplete report to the court of what the witness said to her, omitting very material facts." But the trial court was the one who interviewed Juror No. 12, and it found her "completely credible in every way." Defense counsel herself conceded the juror "was very credible in what was said to her." It certainly makes more sense for the court to credit the individual with personal knowledge of what Hegarty said. Defendant offers no reason why the court's conclusion in that regard was not entitled to deference.
Beyond that, the outcome would be same even if Hegarty did in fact tell Juror No. 12 that defendant was the one who stole his car. This is so because it was not extrinsic evidence. The jury heard extensive details from five law enforcement officers about the pursuit and ultimate capture of defendant, testimony that overwhelmingly indicated defendant stole the car. Additionally, Hegarty testified that he did not see who stole his car, so Juror No. 12 knew he did not have personal knowledge of the thief's identity.
Finally, defendant claims that the trial court agreed the appropriate solution was to dismiss Juror No. 12 but nevertheless failed to do so. This claim stems from the court's statement that "the solution is not a mistrial. The solution is to seat the alternate juror." Defendant's argument takes the court's statement out of context. The comment arose after defense counsel renewed her request for a mistrial based on what the bailiff told her Juror No. 12 had reported to him. When read in context, it is evident the court was speaking in the abstract, explaining that if a juror was biased by receiving extrinsic evidence, the solution would be to replace that juror, not declare a mistrial. It then went on to deny the request because Juror No. 12 was not exposed to extrinsic evidence and defendant suffered no prejudice.
In sum, there was no evidence of juror bias, and there was no abuse of discretion in the court's denial of defendant's motion to remove Juror No. 12 from the jury.
Defendant's Conviction for Felony Auto Theft in Violation of Vehicle Code Section 10851 Must Be Reduced to a Misdemeanor
Defendant was convicted of felony auto theft under Vehicle Code section 10851, which punishes taking a vehicle or driving it without the owner's consent. His second and third arguments contend that the felony conviction cannot stand in light of the passage of Proposition 47, which among other things reduced the punishment for theft of property valued at less than $950 to a misdemeanor. Recent Supreme Court authority confirms he is correct.
It has been said that Vehicle Code section 10851 can be violated in two different ways: "either by taking a vehicle with the intent to steal it or by driving it with the intent only to temporarily deprive its owner of possession (i.e., joyriding)." (People v. Allen (1999) 21 Cal.4th 846, 851.)
In 2014, California voters enacted Proposition 47, which "reduced the punishment for certain theft- and drug-related offenses, making them punishable as misdemeanors rather than felonies." (Page, supra,8 3 Cal.5th at p. 1179.) Codifying Proposition 47, Penal Code section 490.2 provides: "Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor." In Page, the Supreme Court considered whether auto theft under Vehicle Code section 10851 falls within Penal Code section 490.2's petty theft provision, and held that it does. (Page, supra, 3 Cal.5th at pp. 1182-1183.) Its holding is equally applicable here. Thus, in order to prove defendant guilty of felony auto theft under Vehicle Code section 10851, the People were required to establish that Hegarty's car was worth more than $950. No evidence of the car's value was introduced, and we agree with defendant that the People would have been hard pressed to prove its value exceeded $950. The Kelly Blue Book value of a 1993 Toyota Corolla in fair condition is $1,053. Hegarty's car, with its shattered side window and loud exhaust leak, was hardly in fair condition. The People offer no argument that the car's value exceeded $950, contending only—and incorrectly—that Penal Code section 490.2 does not encompass Vehicle Code section 10851 theft offenses. It can thus reasonably be assumed that the car was worth $950 or less.
We granted defendant's unopposed request for judicial notice of the Kelly Blue Book value of a 1993 Toyota Corolla in fair condition. --------
Accordingly, defendant's conviction for auto theft in violation of Vehicle Code section 10851 must be reduced to a misdemeanor and the matter remanded for resentencing consistent with that reduction.
The Trial Court Did Not Abuse Its Discretion in Sentencing Defendant to the Upper Term of Three Years on Count 1
Background
Defendant came on for sentencing on March 18, 2016. At the outset of the hearing, the trial court noted the probation department's recommendation of a three-year grant of probation with " 'an appropriate term' " served in county jail. Defense counsel asked that defendant serve the time in a residential treatment program, advising that while he was in custody he had been working with "Men and Women of Purpose" and had applied to several in-patient treatment programs. The prosecutor, on the other hand, was seeking a three-year prison term. The court inquired of the prosecutor why he believed the probation department thought this was a probation case. The prosecutor answered: "Probation is undervaluing the danger and recklessness of the case. If you compare this to what the court has seen in its experience, and what I have seen in my experience of three years being at the DA's Office, this goes well beyond your average [Vehicle Code section] 2800.2 case. Well beyond, in terms of the driving pattern, the recklessness, the distance. As well as fleeing from the vehicle. This isn't your average one-and-a-half mile, two mile incident. And it's the lives that were put at risk that makes this an aggravated case. That's the main factor that makes this an aggravated case. And in my opinion, the probation officer doesn't sit through the trial. All he does is read the police reports. So I don't think he understands the full gravity of this case."
The court then directed the following comments to defense counsel:
"You indicate in your sentencing brief that 'Mr. Duke has accepted responsibility and is remorseful.' And also, 'that there is no indication that he's likely to be a danger to others if he's not in prison.' I find that to be entirely disingenuous. The facts are that, on the date of the incident, Mr. Duke fled in a stolen vehicle, with the lights off. Going 90 miles an hour, for three miles, through a residential area. And then on the freeway, going in the opposite direction of the flow of traffic. His complete and utter disregard for anybody other than himself is clear-cut. And then he bails from the car and flees into a neighborhood on foot. And when he's detained, he denies the entirety of the incident. And then he takes the case to trial. He's never accepted any responsibility at any time. In fact, he's done every possible thing he can do within his power to evade any responsibility or culpability for this whole incident. And he's done so at the threat of the lives of other people in the community. So this idea that he is remorseful and has accepted responsibility is absurd.
"On top of which, he says he wants to do a program. And you know, I've been dealing with these issues for a long, long time. You know, I've been a judge now for, I'm in my 21st year—but for five years before taking the bench, I was on the Board of the Drug and Alcohol Abuse Council. And I have dealt with people with substance abuse issues for 30 years. When we started doing Prop 36 as an option for people to do programming, in lieu of jail time, by and large, it's been a miserable failure.
"The majority of people that go through a program in lieu of jail time, re-offend, go through another program, re-offend, and then finally are ineligible and end up finally in custody. [¶] . . . [¶]
"On top of which, methamphetamine users are the most intransigent group of people I have ever dealt with. Methamphetamines users tend to, more often than not, exhibit the attitude of, 'Judge, just give me my time so that I can get out and get back to the lifestyle that I have chosen.' They tend to very rarely want to actually make a change. When faced with the option of going into a program or going into jail, they'll often choose the program. But the long-term benefits of that are largely negligible, in my experience.
"So what you're asking for, is something where I would have to be utterly convinced that Mr. Duke is an exception to the rule. And from everything that I have seen in this case, he is not. As far as I can tell, again, he's not accepted any responsibility. He's done everything possible to evade responsibility. He's put the public's lives in jeopardy. And I strongly suspect that he's only seeking a program as an option to stay out of jail. And you know, I have to call it as I see it. So Miss Askeland, you would have to convince me otherwise. Otherwise, I think he's going to state prison."
Defense counsel acknowledged that defendant had been reckless in driving the wrong way on the freeway but minimized the severity of his conduct because "there was no testimony that there were people who were on the road, who were at risk of being in danger. This was at a very early time of night. It was not busy traffic in the freeways, which was the main area of travel that this incident occurred on." She also claimed defendant was remorseful, had been willing to accept responsibility, and had wanted to enter into a plea agreement but could not reach an agreement with the district attorney. She represented that defendant had recently developed a methamphetamine addiction and admitted he was under the influence when he stole Hegarty's car, but claimed he was seeking probation so he could address his substance abuse issues. He also had no felony convictions and had a strong support system.
The court was unpersuaded:
"I think that you have missed the thrust of my concern. I understand your position. The problem is that, I don't really believe that there's anything here that reflects that Mr. Duke is really wanting to make a life change. He has had addiction issues for 18 years. As far as I can see, he's never done anything to step up to the plate and address them. And in fact, he just has transitioned to methamphetamine as his new substance of choice. But on the date that this incident occurred, he was so completely out of control, driving a stolen car, in possession of burglars tools, in possession of [credit] cards in other people's names, and driving 90 miles an hour through a residential neighborhood, and driving the wrong way on the freeway at night with his lights off, as to jeopardize other members of the public. There's nothing to suggest that Mr. Duke wants to do anything except avoid going to jail. That's the way I'm reading this. I have to be honest with you. I think that this is all smoke and mirrors, on his part. I think he'll do anything that he needs to do to stay out of jail, and that's it. But I don't see any real interest in really turning his life around and getting it back on track."
Defense counsel continued to argue that defendant had been attempting to address his addiction problems while in custody, but the court responded that defendant had been using drugs since he was 14 years old and it did not believe defendant wanted to make the changes necessary to beat his addiction. It pointed out that nationwide there were approximately 16,000 drunk driving fatalities the previous year, with 36 in Contra Costa County alone. So, when the court "gets a case like this, where somebody's driving 90 through a residential neighborhood for three miles, and then turning off the lights and going the wrong way on the freeway, the court is horrified."
After further dialogue with defense counsel and the prosecutor, the court sentenced defendant to three years in state prison, with execution suspended contingent on successful completion of three years formal probation with one year in county jail followed by one year in a residential treatment program. With 121 actual and 121 conduct credits, defendant would only serve an additional 59 days in jail.
Analysis
Defendant's final argument asserts that in sentencing him to a three-year base term on count 1 (fleeing a peace officer and driving against traffic), the trial court "arbitrarily selected the upper term" and failed to state on the record any reasons for doing so. He claims the entire discussion at the sentencing hearing was devoted to whether the court should grant formal probation instead of imposing a prison sentence outright, with the court making no findings supporting its imposition of the upper term.
As defendant correctly recognizes, the selection of the appropriate prison term rests in the sound discretion of the trial court. (Pen. Code, § 1170, subd. (b).) The trial court abuses that discretion when it fails to exercise it in a reasonable way or acts contrary to law. (People v. Jacobs (2007) 156 Cal.App.4th 728, 738.) In selecting the lower, middle, or upper term, the court is required to state the reasons for selecting the term orally on the record. (Cal. Rules of Court, rule 4.420, subd. (e).) The record establishes that the court did so here.
California Rules of Court, rule 4.421 lists the circumstances in aggravation for sentencing purposes. The very first factor relating to the crime includes that the crime involved a threat of great bodily harm. (Id., subd. (a)(1).) At the very outset of the sentencing hearing, the prosecutor explained it was seeking the upper term because "it's the lives that were put at risk that makes this an aggravated case." The court agreed that this aggravating factor applied here, stating multiple times during the sentencing hearing that defendant's conduct presented a grave danger to others: defendant "threat[ened] the lives of other people in the community"; "[h]e's put the public's lives in jeopardy"; "on the date that this incident occurred, he was so completely out of control, driving a stolen car, . . . and driving 90 miles an hour through a residential neighborhood, and driving the wrong way on the freeway at night with his lights off, as to jeopardize other members of the public." The court said it was "horrified" by defendant "driving 90 through a residential neighborhood for three miles, and then turning off the lights and going the wrong way on the freeway . . . ." This was not, as defendant would have, the court "merely recit[ing] elements of the crimes of conviction . . . ." This was the court identifying the aggravating circumstance—that defendant's crime involved a threat of great bodily harm—that justified the upper term.
Even if we were to agree with defendant that the court failed to adequately state the aggravating factors on the record, we would still not remand for resentencing because the error was nonprejudicial, as "it is 'not reasonably probable that a more favorable sentence would have been imposed in the absence of the error.' " (People v. Scott (1994) 9 Cal.4th 331, 355.) The court made its feelings crystal clear: defendant's crime involved a threat of great bodily injury. Given that the trial court was "horrified" by the danger defendant created, a more favorable sentence is not reasonably probable.
DISPOSITION
Defendant's conviction on count 2 for auto theft is reduced to a misdemeanor and the matter remanded for resentencing accordingly. In all other regards, the judgment of conviction is affirmed.
/s/_________
Richman, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.