Opinion
C079543
01-27-2017
THE PEOPLE, Plaintiff and Respondent, v. DANIEL DAVID LUSBY, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14F4312)
A jury convicted defendant Daniel David Lusby of, inter alia, evading an officer and driving with a suspended license. On appeal, defendant contends the trial court erred in (1) declining to judicially notice a presentence investigation report; (2) overruling his hearsay objection to the introduction of a motor vehicle record; (3) instructing the jury it could conclude he knew his license was suspended if the Department of Motor Vehicles (DMV) sent notice to his address on record, and it was not returned unclaimed; and (4) imposing and then staying sentence on count 2, to which Penal Code section 654 applied. As to each contention, we conclude the trial court acted properly. We therefore affirm.
Undesignated statutory references are to the Penal Code.
BACKGROUND
In June 2014, defendant was arrested following a high-speed chase. On a motorcycle, he fled police, sometimes exceeding 100 miles per hour, running stop signs and a red light, and driving on the wrong side of the road.
Before the chase, defendant's license had been suspended. In February 2014 notice of the suspension was sent to his address on record with the DMV. But at trial, defendant maintained he had moved and never notified the DMV of his new address. Consequently, he never received notice of the suspension. But he conceded he had a "feeling" his license had been suspended: he had been convicted of a DUI and was told his license would be suspended unless he completed DUI school—he did not.
A. The defense's request to judicially notice defendant's statement in a presentence investigation report
Before trial, defense counsel asked the court to judicially notice a statement in a January 2014 presentence investigation report. The report contained an address for defendant that was different from the address on record with the DMV. Defense counsel explained: "I presume it's an address provided by my client."
The court responded it was not sure what hearsay exception could admit defendant's statement of his address. Defense counsel conceded she too "had trouble figuring that out," but proposed having a bench trial on the charge of driving on a suspended license, whereby defendant could testify to his address, and his statement in the report could possibly come in as a prior consistent statement. The discussion then shifted to bifurcating the trial. After the prosecution refused to waive a jury trial on the suspended license count, defense counsel did not raise the presentence investigation report again. And after defendant testified that in July of 2009 he had moved away from the address registered with the DMV, defense counsel did not seek to admit defendant's statement in the presentence report.
B. The defense's objection to the introduction of a DMV record
Defense counsel next objected to the introduction of a DMV record obtained through the California Law Enforcement Telecommunications System (CLETS). The record reflected defendant's mailing address on record with the DMV as of September 25, 2009. It also reflected that on February 4, 2014 (more than four months before the high-speed chase), notice of the license suspension was mailed to the address on file and was not returned unclaimed.
Defense counsel argued the report lacked "indicia of trustworthiness," explaining: "this is something that may or may not have been mailed. That's all we know about it. And may or may not have been returned." Counsel continued: "[W]e don't know whether it was mailed and not returned unclaimed the very day after it was mailed, whether it was a week after it was mailed, whether it was a month after it was mailed. We don't know that. And without that knowledge, there is not the trustworthiness that we expect of a government document. [¶] . . . It's just too vague."
The court responded: "What I was imagining is that I was hearing a preview of your final argument to the jury." The court explained the document's shortcomings do not affect admissibility because the record "is not necessarily a correct or accurate reflection of where [defendant] was receiving mail . . . . All it is . . . is a record of what a government employee did at some point pursuant to their official duty to act." "Whether the things that they contain are all accurate or lead inevitably to valuable proof in the case, that's a matter for a jury to decide."
The court then overruled defense counsel's objection, noting: "The things set forth in the record appear, based on my examination of it, to have been recordations made at or about the time of the act or condition, [or] event reported on, and it is a document that I find inherently trustworthy based on the fact that an official employee—public employees have a duty, a responsibility to act accurately and to record things accurately. And that record seems to me to be accurate in the absence of any proof to the contrary. And when I say accurate, I mean only that it's accurate in reflecting the information maintained by the Department of Motor Vehicles."
C. The jury instruction
Before closing arguments, the jury was instructed, using CALCRIM No. 2220, that in order to convict defendant of driving with a suspended license the People must prove, inter alia, "[defendant] knew that his driving privileges was suspended or revoked." The instruction continued: "If the People prove that, one, the California Department of Motor Vehicles mailed a notice to the defendant telling him that his driving privilege had been suspended or revoked, two, the notice was sent to the most recent address recorded to the Department or any more recent address reported by the person, a court, or law enforcement agency and, three, the notice was not returned to the Department as undeliverable or unclaimed, then you may but are not required to conclude that the defendant knew that his driving privilege was suspended or revoked." Defense counsel did not object to the instruction.
D. Verdicts and sentencing
The jury convicted defendant of evading an officer with disregard for public safety (Veh. Code, § 2800.2; count 1); evading an officer while driving on the wrong side of the road (Veh. Code, § 2800.4; count 2); resisting, obstructing, or delaying an officer (Pen. Code, § 148 subd. (a)(1); count 3); and driving on a suspended license with a prior DUI (Veh. Code, § 14601.2, subd. (a); count 4).
On count 1, the court imposed the upper term of three years. On count 2, it imposed a three-year term to be run concurrently with count 1. For counts 3 and 4, it imposed one-year and six-month terms respectively. It then stayed imposition of sentence for counts 2, 3, and 4 under section 654.
DISCUSSION
I
The Trial Court Properly Declined to Judicially Notice Defendant's Statement in the
Presentence Report
On appeal, defendant first contends the trial court erred in declining to judicially notice the presentence investigation report containing his statement of his address. He argues the report was admissible under the public records hearsay exception (Evid. Code, § 1280). Defendant is mistaken.
The trial court did not, as defendant contends, refuse to judicially notice the investigative report as an official record. Defense counsel sought to notice only defendant's statement of his address in the report. That statement would require its own hearsay exception—even if the court had judicially noticed the report under the public records exception. While the official records exception eliminates the need for calling each public employee involved in preparing the document, multiple layers of hearsay still require independent hearsay exceptions to be admissible. (See Nissel v. Certain Underwriters at Lloyd's of London (1998) 62 Cal.App.4th 1103, 1107, fn. 4.)
Defense counsel never offered a hearsay exception for defendant's statement. Counsel only speculated as to offering it as a prior consistent statement as part of a bifurcated proceeding on the suspended license count. But that idea was abandoned after the prosecution refused to waive a jury trial on that count.
Having no hearsay exception, the trial court properly declined to notice defendant's statement of his address, as contained in the investigative report.
II
The Trial Court Properly Admitted DMV Records Obtained Through CLETS
Defendant next contends the trial court erred in admitting DMV records obtained through CLETS purporting to show defendant's recorded address as of September 25, 2009, and that notice of his license suspension was mailed on February 4, 2014, and not returned unclaimed. Defendant argues the record lacked foundation as an official record. He reasons, "[F]ive years was too long to be a trustworthy indicator of [defendant's] address when the notice was sent, especially in light of [defendant's] testimony that he had moved, long before the notice was sent." Defendant is again mistaken.
A trial court may admit a writing under the official records exception if: "(a) The writing was made by and within the scope of duty of a public employee. [¶] (b) The writing was made at or near the time of the act, condition, or event. [And] [¶] (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness." (Evid. Code, § 1280.) " '[T]he trustworthiness requirement . . . is established by a showing that the written report is based upon the observations of public employees who have a duty to observe the facts and report and record them correctly.' [Citation.]" (Gananian v. Zolin (1995) 33 Cal.App.4th 634, 640, italics & fn. omitted.)
"A trial court has broad discretion in determining whether a party has established" the requirements for the official records exception. (People v. Martinez (2000) 22 Cal.4th 106, 120.) Its ruling implies all necessary fact findings for the exception. (Ibid.) We will reverse " ' "only upon a clear showing of abuse." ' " (Ibid.)
Here, as the trial court cogently explained, the infirmities of the DMV record did not affect its admissibility. The report was properly admitted as a record of what a government employee did pursuant to an official duty to act. Any shortcomings of the report went to its weight (which could be argued to the jury)—not admissibility. Defendant having offered nothing at trial or on appeal to suggest the report did not reflect the information maintained by the DMV, the trial court acted well within its discretion in admitting the document under the public records exception.
III
The Jury Was Properly Instructed
Defendant next contends the court erred in instructing the jury with CALCRIM No. 2220 that it could conclude he knew his license was suspended if the people proved the DMV sent notice of suspension to his address on record, and notice was not returned. Defendant argues the instruction reduced the prosecution's burden of proof and was argumentative because it allowed the jury to find knowledge of suspension regardless of whether knowledge was proven beyond a reasonable doubt. He also points to the CALCRIM No. 2220 bench notes stating: "The court must not give the bracketed paragraph [in question] if there is evidence that the defendant did not receive the notice or for other reasons did not know that his or her driving privilege was revoked or suspended." We find no error.
First, the instruction neither reduced the prosecution's burden of proof nor was it argumentative. (See County Court of Ulster County, N. Y. v. Allen (1979) 442 U.S. 140, 157 [60 L.Ed.2d 777, 792] (Ulster County) [a permissive presumption "affects the application of the 'beyond a reasonable doubt' standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference"]; People v. Battle (2011) 198 Cal.App.4th 50, 85 [" 'An instruction is argumentative when it recites facts drawn from the evidence in such a manner as to constitute argument to the jury in the guise of a statement of law' "].) As to the proffered bench notes, they do not automatically render the instruction error. (People v. McDonald (2015) 238 Cal.App.4th 16, 25-26 [jury instruction bench notes do not have the force of law].) We see no reason why defendant's testimony that he did not receive notice of suspension should render the instruction error.
Particularly when defendant's testimony lacked credibility. At sentencing, the trial court noted defendant "didn't help his case by telling what I think the jury must have concluded was a preposterous pack of falsehoods." --------
Second, and in any event, defendant did not object to the instruction. Any error is therefore forfeited unless the error resulted in a miscarriage of justice. (People v. Anderson (2007) 152 Cal.App.4th 919, 927.) It did not.
A permissive inference instruction, "allows—but does not require—the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and . . . places no burden of any kind on the defendant." (Ulster County, supra, 442 U.S. at p. 157.) It "leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof." (Ibid.) "[I]t affects the application of the 'beyond a reasonable doubt' standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference." (Ibid.)
Here, a reasonable juror would understand the instruction to set forth a permissive inference: jurors could, but were not required to, infer defendant's knowledge of the suspension from proof of the DMV's mailing notice and it not being returned undeliverable or unclaimed. On this record, we cannot conclude "there is no rational way the [jury] could make the connection permitted by the inference." (See Ulster County, supra, 442 U.S. at p. 157.) Accordingly, the instruction did not undermine the jury's responsibility to find the ultimate facts beyond a reasonable doubt. (Id. at p. 156.)
Third, and finally, any instructional error would be harmless. Defendant all but conceded he knew his license was suspended. He testified he had a "feeling" his license had been suspended, explaining he had been convicted of a DUI and was told his license would be suspended unless he completed DUI school, which he did not. That simple cause-and-effect was far more likely to have swayed the jury than the permissive inference. We find no error.
IV
The Trial Court Followed the Proper Sentencing Procedure Under Section 654
Finally, defendant contends the trial court erred in imposing a concurrent term for count 2 because that count had been stayed under section 654. He further contends the abstract of judgment must be corrected pursuant to section 654. The People agree. But both parties are mistaken, and we therefore reject the concession.
This court has explained the proper procedure for sentencing under section 654. (See People v. Alford (2010) 180 Cal.App.4th 1463, 1466.) "[W]hen a trial court determines that section 654 applies to a particular count, the trial court must impose sentence on that count and then stay execution of that sentence. There is no authority for a court to refrain from imposing sentence on all counts, except where probation is granted." (Ibid.) "[O]therwise if the nonstayed sentence is vacated, either on appeal or in a collateral attack on the judgment, no valid sentence will remain." (Id. at p. 1469.)
Here the trial court did precisely this. It imposed a three-year term on count 2, to be run concurrent with count 1. It then stayed execution of that sentence under section 654 and ordered the stay to become permanent upon completion of the sentence under count 1. The abstract of judgment properly reflects this. We find no error.
DISPOSITION
The judgment is affirmed.
NICHOLSON, Acting P. J. We concur: ROBIE, J. HOCH, J.