Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern CountySuper. Ct. No. BF113463A, Richard J. Oberholzer, Judge.
Tara K. Allen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Clayton S. Tanaka and David A. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
Ardaiz, P.J.
INTRODUCTION
This case involves the cross-appeals of a judgment that Bobby Lee Kinder evaded a police officer, drove under the influence, and drove with a blood alcohol level exceeding 0.08 percent in violation of the Vehicle Code. Kinder appeals from the judgment, contending that there was insufficient evidence of felony evasion and that the trial court erred in sentencing him. The People appeal from the trial court’s decision to grant Kinder’s motion to strike two prior strikes. For the following reasons, we affirm the convictions and remand for resentencing.
STATEMENT OF THE CASE
On February 27, 2006, information No. BF113463A was filed in the Kern County Superior Court, against Bobby Lee Kinder alleging as follows: count 1, felony evasion of a peace officer (Veh. Code, § 2800.2), count 2, felony driving under the influence with three or more prior convictions (§ 23152, subd. (a)/23550), count 3, felony driving under a blood alcohol content exceeding 0.08 percent with three or more prior convictions (§ 23152, subd. (b)/23550); and count 4, driving with a suspended license (§ 14601.2, subd. (a)). The information also alleged that Kinder previously had suffered three prior strikes within the meaning of the Three Strikes Law and had served three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).
All further statutory citations are to the Vehicle Code, unless otherwise indicated.
Jury trial began on May 19, 2006. Out of the presence of the jury, Kinder admitted that counts 2 and 3 had occurred within 10 years of three or more separate driving under the influence convictions. The remaining prior conviction allegations were bifurcated for the purposes of trial.
At the conclusion of the prosecution’s case, the People dismissed count 4. On May 22, 2006, Kinder was convicted on the remaining counts. The prosecutor moved to strike the three Penal Code section 667.5, subdivision (b), allegations, and this motion was granted. As to the remaining allegations, the trial court found them to be true.
Kinder was sentenced on July 26, 2006. The trial court granted Kinder’s motion to strike two of his prior strikes. The trial court found that there were no circumstances in mitigation. In aggravation, the trial court found that Kinder had numerous prior convictions as an adult and sustained juvenile petitions. The trial court also found that Kinder had served three prior prison terms and that Kinder was on probation when the crimes charged were committed. Finally, the trial court found that Kinder’s prior performance on probation and parole were unsatisfactory and that his blood alcohol level was twice the legal limit.
In light of the aggravating factors, the trial court imposed the upper term of three years on count 1. On count 2, the court imposed a consecutive sentence of one third of the middle term, or 16 months. On count 3, the court imposed the upper term of three years. Each of these terms was then doubled pursuant to the three strikes law. Kinder’s sentence on count 3 was stayed pursuant to Penal Code section 654. The total term imposed was eight years, eight months.
On July 10, 2006, Kinder filed a notice of appeal. The People filed a notice of appeal on July 21, 2006.
STATEMENT OF THE FACTS
At approximately 1:45 p.m. on January 1, 2006, Kinder was observed driving erratically at excessive speed with his headlights out by two Bakersfield police officers. As the officers turned around to give chase, they saw Kinder run a stop sign and a red light and narrowly miss another car. After the officers turned on their lights and siren, Kinder slowed and pulled to the right of the road. However, before stopping fully, Kinder accelerated and sped away from the officers. After a short distance, Kinder lost control of his car, drove through a chain-link fence, and slammed into a car parked in a driveway, pushing it into another car and the garage door of the house.
Kinder was found unconscious in the driver’s seat. A blood-alcohol test taken shortly thereafter showed his blood to contain 0.21 percent alcohol.
Defense Case
Kinder did not testify. The defense presented evidence from Kinder’s wife, Laverne. She testified that the two of them consumed more than 40 cans of beer on New Year’s Eve. She indicated that she passed out and knew nothing until she learned the next morning that Kinder was in the hospital.
Probation Report
In connection with the instant offenses, the probation officer prepared a probation report. The probation report shows that Kinder was born in May of 1961, and was 45 years old when he committed the offenses at issue. At the age of 14, he was adjudged a ward of the court in November of 1974 for petty theft and sentenced to probation. Two years later, in December 1976, Kinder committed his first burglary and was continued on probation, which he completed in August of 1979.
In November of 1981, at the age of 21, Kinder suffered his first adult conviction when he was convicted of assault with a deadly weapon, sentenced to six months in jail, and placed on three years probation. Fifteen months later (only nine months after getting out of jail), Kinder committed a first-degree burglary in February of 1983 and was sentenced for the first time to state prison, receiving a term of four years. He was paroled on March 29, 1985. One year later, on March 30, 1986, Kinder was convicted of drug possession and resisting arrest. He received 90 days in jail and three years probation. Three months after getting out of jail, he was arrested in September 1986, for vehicle theft and grand theft. After conviction, he was given 15 days in jail and was placed on three years probation.
Seven months later, on April 11, 1987, Kinder was arrested and subsequently convicted of rape and resisting arrest. His earlier probation was violated on April 20, 1987, and Kinder received one year in jail. For the rape, Kinder was sentenced to nine years in prison.
Kinder was paroled on January 11, 1992. Eight months later, on September 22, 1992, he was arrested on his first driving-under-the-influence offenses, as well as driving without a license. Upon conviction in October 1992, he received 26 days in jail and three years probation. Three months later, on January 25, 1993, Kinder violated probation and failed to appear. As a consequence, on April 26, 1993, the court ordered him to serve another 26 days in jail. On March 23, 1994, Kinder was found to have again violated his probation for failing to pay his fines.
On April 21, 1993, Kinder was arrested on a charge of attempted rape. Upon conviction in April of 1993, he was sentenced to 11 years in prison.
Kinder was paroled on January 13, 1999. On June 15, 2000, he violated parole and returned to prison. He was paroled on August 1, 2001. Seven and one-half months later, on March 17, 2002, Kinder was arrested for driving under the influence again. After conviction in July of 2002, he received 158 days in jail and three years probation. On April 22, 2002, Kinder again violated parole and was returned to prison. He was discharged from prison on January 13, 2003.
On March 21, 2005, Kinder was arrested and convicted for the third time of driving under the influence, as well as resisting arrest, evasion of a peace officer and driving on a suspended license. He received 90 days in jail. Kinder was arrested for the fourth time for driving under the influence on September 25, 2005. Upon conviction, he received a sentence of 210 days in jail and three years probation. Kinder was released from jail on November 25, 2005. He committed the instant felonies six weeks later on January 1, 2006.
Kinder was interviewed by the probation officer on May 25, 2006, via the teleconferencing system. At the interview, Kinder declined to admit culpability in the present offense but stated, “I need help. I don’t need more time. I keep trying to tell people I need a home, a program, not more time because time don’t [sic] help. They’re quick to lock me up but not get me help.”
DISCUSSION
I.
Sufficiency of the Evidence on Felony Evasion Count
On appeal, Kinder contends that count 1 must be reversed because the record does not contain substantial evidence that he willfully fled or tried to evade the pursuing police officers. Kinder argues that the evidence of his intoxication and his state of unconsciousness after he crashed precludes a finding that he was able to form the specific intent required for felony evasion. Kinder made a similar argument during the jury trial. From the jury’s verdict, we can infer that the jury rejected this argument. Similarly, we reject Kinder’s argument on appeal.
The test to determine a claim of insufficient evidence is whether, on the entire record, a rational trier of fact could find appellant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576-578.) In making this determination, the appellate court must review the evidence in a light most favorable to the judgment and presume the existence of every fact the trier of fact could reasonably deduce from the evidence. The task of the court on appeal is twofold. First, the court must resolve the issue in light of the whole record. Second, the court must judge whether the evidence of each of the elements of the offense is substantial. (People v. Johnson, supra, 26 Cal.3d at pp. 576-577.)
Here, the record shows that, after the officers turned on their lights and siren, Kinder slowed and pulled to the right of the road. However, before stopping fully, Kinder accelerated and sped away from the officers. Finally, after a short distance, Kinder lost control of his car and crashed. From the record, it can be reasonably deduced that Kinder was aware that he was about to be pulled over by the officers, decided to comply, changed his mind, and sped away for a short distance before he lost control of his vehicle. Given these factual deductions, a rational jury could have reached the conclusion that Kinder had sufficient mental capacity to form the specific intent to evade the officers, and that Kinder did have that specific intent in this case.
Thus, we conclude that there was substantial evidence to support Kinder’s conviction on count 1 for felony evasion of peace officers.
II.
Upper Term Sentence
Relying on Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and, inferentially, Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Kinder now contends the trial court violated his Sixth Amendment right to trial by jury by imposing the upper term based on factors not admitted by Kinder or found by the jury to be true beyond a reasonable doubt. We disagree because a trial court may rely upon Kinder’s prior convictions to impose an upper term sentence. (See People v. Black (July 19, 2007, S126182) __ Cal.4th __ [2007 WL 2050875, *pp. 12-24]; Apprendi, supra, 530 U.S. at p. 488; Almendarez-Torres v. United States (1998) 523 U.S. 224, 230, 243, 244.) Moreover, in this case, in light of Kinder’s extensive criminal record, and the lack of any mitigating circumstances, the record amply establishes that the trial court could have imposed the upper term even if factors arguably not strictly related to Kinder’s prior convictions had been excluded from consideration. However, in light of other sentencing errors, we will vacate the sentence and remand to the trial court for resentencing.
III.
Motion to Strike Two Prior Strikes
The People also appeal from the judgment, arguing that the trial court abused its discretion in granting Kinder’s motion to strike two of his prior strikes. Kinder’s motion was based upon the ground that the strikes were remote in time, and that sentencing him to 25 years to life was not in the furtherance of justice. The People also contend that the trial court failed to set forth a statement of reasons in the minutes for its decision to strike Kinder’s prior strikes. We agree that the trial court did not comply with Penal Code section 1385, subdivision (a). Thus, we vacate the sentence and remand for resentencing.
Penal Code section 1385, subdivision (a), provides in relevant part that “[t]he judge ... may, either on his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes.”
The California Supreme Court has concluded that “section 1385(a) ... permit[s] a court acting on its own motion to strike prior felony conviction allegations in cases brought under the Three Strikes law.” (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.) And in People v. Williams (1998) 17 Cal.4th 148, 161 (Williams), our Supreme Court gave further definition to the scope of a sentencing court’s discretion to dismiss a strike “in furtherance of justice” and the standards by which appellate courts review such determinations. As the state high court explained in People v. Garcia (1999) 20 Cal.4th 490, 503 (Garcia), “[i]n Williams, we considered the scope of review applicable to abuse-of-discretion claims of this sort. We described the factors that a trial court should consider when exercising its section 1385 discretion in a Three Strikes case, and we stated that a reviewing court should consider those same factors. [Citation.] Specifically, ‘the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part ....’ [Citation.] We noted, however, that appellate review of a trial court’s section 1385 decision is not de novo. We said, ‘[T]he superior court’s order [i]s subject to review for abuse of discretion. This standard is deferential. [Citations.] But it is not empty. Although variously phrased in various decisions [citation], it asks in substance whether the ruling in question “falls outside the bounds of reason” under the applicable law and the relevant facts [citations].’ [Citation.]”
Here, the trial court found that Kinder previously had suffered three serious or violent felony convictions within the meaning of the California Three Strikes Law. Those convictions were: a February 1983 conviction of first-degree burglary, an April 1987 conviction for rape, and an April 1993 conviction for attempted rape. Despite finding no mitigating circumstances and multiple aggravating circumstances, the trial court granted Kinder’s motion to strike his prior burglary conviction and his prior rape conviction. The trial court did state on the record that, if the two priors were not stricken, Kinder would likely serve the reminder of his life in prison for driving under the influence. The trial court stated “I think[,] in looking at all of the circumstances and the fact that he does have an alcohol problem[,] that putting somebody in prison for the rest of their life for alcohol is not what the vision of this law [the Three Strikes Law] is doing.”
The trial court, however, did not set forth these reasons in its minute order granting the motion to strike the two priors strike. (See Pen. Code, § 1385, subd. (a) [“The reasons for the dismissal must be set forth in an order entered upon the minutes.”]) The failure of the minute order to comply with section 1385, subdivision (a) renders the court’s order “ineffective.” (Romero, supra, 13 Cal.4th at p. 532.) Thus, “[u]nder these circumstances, the appropriate remedy is to vacate the judgment, … and otherwise to proceed in conformity with this opinion.” (Ibid.) However, to provide some guidance to the trial court upon remand, we analyze whether the trial court abused its discretion in granting the motion to strike. (Cf. Williams, supra, 17 Cal.4th at pp. 161-162 [considering the effectiveness and soundness of the trial court’s order granting motion to strike priors].)
On appeal of the trial court’s grant of a motion to strike, we consider the same factors that the trial court did when it granted the motion in order to determine whether the trial court abused its discretion. (Garcia, supra, 20 Cal.4th at p. 503.) Thus, we “consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part.” (Ibid.)
In Garcia, the California Supreme Court held that a trial court did not abuse its discretion in striking five prior serious felony convictions where: (1) the resulting sentence of 31 years, 4 months to life was not lenient; (2) “defendant’s prior convictions arose from a single period of aberrant behavior for which he served a single prison term;” (3) “defendant cooperated with police;” (4) “his crimes were related to drug addiction;” and (5) “his criminal history does not include any actual violence.” (Garcia, supra, 20 Cal.4th at p. 504.) The last four factors were specifically found by the trial court. (Id. at p. 494.) The Supreme Court also noted that a defendant’s recidivist status was not singularly dispositive. (Ibid.)
Here, Kinder’s criminal history distinguishes his case from Garcia because Kinder’s prior convictions did not occur within a “single period of aberrant behavior for which he served a single prison term” and Kinder had convictions for actual violent crimes. Kinder served distinct prison terms for his prior 1983 conviction of first-degree burglary, 1987 conviction for rape, and a 1993 conviction for attempted rape.
On appeal, Kinder contends that the trial court did not abuse its discretion in granting his motion to strike priors because “the record shows that his recidivism has been a symptom of his alcoholism, depression, and mental and psychotic illnesses stemming from a childhood in which his father sexually abused him and his sisters.” Kinder cites to the multiple letters submitted on his behalf which show that “he is a lifelong friend, neighbor and mentor, a dedicated and hard worker at a local convalescent hospital, a brother, a grandfather, a stepfather, a Godfather and a loving family man.” One of these letters stated: “‘If there is a poster child for the need of substance abuse treatment, Bobby Lee Kinder is it.…. It is the sincere hope and prayer of our family that our Kern County Courts will hear our plea for leniency concerning Bobby, and allow him the treatment that he not only needs but also deserves as a man who has acknowledged himself as an alcoholic.’”
However, we believe that “in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects,” the trial court erred in granting the motion to strike the prior strikes.
His present felonies do not provide any factors in mitigation. While drunk driving and evading peace officers are generally not considered “crime[s] of violence,” “[d]riving while intoxicated is a dangerous offense which often poses a threat of serious injury and thus may appropriately be considered in deciding whether punishment under the provisions of the Three Strikes law is warranted regardless of whether death or injury actually occurred.” (Williams, supra, 17 Cal.4th at p. 165 (conc. & dis. opn. of Baxter, J.).)
Similarly, Kinder’s prior convictions do not provide favorable support for the trial court’s decision. Between 1974 and present, Kinder suffered 10 misdemeanor convictions and three felony convictions. Besides assertions by Kinder and by his family and friends, there is no evidence in the record showing that these convictions (except for the driving under the influence offenses) stem from his addiction to alcohol. Finally, Kinder’s four prior convictions for driving under the influence, three of which occurred within the three years of the instant offenses, indicate that he did not learn from his prior convictions.
In many respects, Kinder’s current offenses and prior criminal history is remarkably similar to that of the appellant in Williams, supra, in which our Supreme Court held that the trial court abused its discretion in striking a prior strike. In Williams, the appellant was charged with driving under the influence within seven years of three prior DUIs. (Williams, supra, 17 Cal.4th at p. 152.) He also had two strikes: an attempted burglary conviction and a rape conviction, both of which occurred 13 years ago. (Id. at pp. 152-153.) Finally, the appellant had 17 prior felony and misdemeanor convictions. (Id. p. 154.)
As was the case in Williams, “[t]here is little about [appellant’s] present felony, or his prior serious and/or violent felony convictions, that is favorable to his position. Indeed, there is nothing. As to his present felony: It is a conviction of driving under the influence that followed three other convictions of driving under the influence; ‘the existence of such convictions reveals that [he] had been taught, through the application of formal sanction, that [such] criminal conduct was unacceptable-but had failed or refused to learn his lesson’ [citation]. As to his prior serious and/or violent felony convictions: The record on appeal is devoid of mitigation.” (Williams, supra, 17 Cal.4th at p. 163.)
Finally, Kinder’s background, character, and prospects provide little favorable support for the trial court’s determination. The record contains multiple letters filed on his behalf by friends and family members attesting to his loving relationships with his family, neighbors, and friends. The record also shows that, although he had not graduated from high school, he was self-employed washing cars, and that he had worked for a local convalescent hospital. However, there is no indication that Kinder has undergone treatment for his alcoholism, even with free self-help groups such as Alcoholics Anonymous. Instead, he contends that the State and/or other public entity should have provided him with drug treatment. Moreover, he did not admit remorse for his present offenses when interviewed by the probation officer, but only when he was about to be sentenced. Finally, Kinder has violated the conditions of his parole and probation numerous times, and he was on parole for two misdemeanors when he committed the instant offenses.
Based on the record, in reviewing Kinder’s history since 1983 when he committed his first felony conviction, we can make the same observations about Kinder that our Supreme Court made about the appellant in Williams:
“He did not refrain from criminal activity during that span of time, and he did not add maturity to age. Quite the contrary. In those years, he was often in prison or jail; when he was not, he violated parole and, … probation, and committed the offenses that resulted in his [multiple misdemeanor and felony] convictions.…” (Williams, supra, 17 Cal.4th at p. 163.)
On remand, the trial court may make new and additional findings that would support the grant of a motion to strike one or more prior strikes. However, on the current record, we conclude that the trial court could not strike the two prior strikes under Penal Code, section 1385, subdivision (a).
DISPOSITION
The convictions are affirmed, the sentence is vacated, and the case is remanded for resentencing.
WE CONCUR: Hill, J., Kane, J.