Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF020411, Curtis R. Hinman, Judge. (Retired judge of the Riverside S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Barry Carlton and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
In case No. SWF020411, a jury found defendant guilty of felony evading a peace officer (Veh. Code, § 2800.2) (count 2) and not guilty of assault with a deadly weapon on a peace officer (Pen. Code, § 245, subd. (c)) (count 1). The trial court found true that defendant had served two prior prison terms (Pen. Code, § 667.5, subd. (b)) and that he had violated the terms of his probation in case Nos. SWF015834 and RIM471090.
All future statutory references are to the Vehicle Code unless otherwise stated.
Additionally, in case No. RIM514408, defendant had pled guilty to violating Health and Safety Code section 11550.
In this case, defendant was sentenced to a total term of five years eight months in state prison as follows: the upper term of three years for the substantive offense, plus two years for the prior prison term enhancements, plus eight months for the probation violation in case No. SWF015834. On appeal, defendant contends (1) there was insufficient evidence to sustain his conviction of evading a peace officer, and (2) the trial court erred in imposing an upper-term sentence. We reject these contentions and affirm the judgment.
The court also ordered defendant to serve a concurrent sentence of 90 days for the probation violation in case No. RIM471090 and a concurrent term of 90 days for his conviction in case No. RIM514408.
I
FACTUAL BACKGROUND
On March 13, 2007, California Department of Forestry and Fire Protection Battalion Chief Timothy Williams, a sworn law enforcement chief for the state and county fire services in Riverside County, was assisting Riverside County Sheriff’s Department with a licensing and sobriety checkpoint on Perris Boulevard in Riverside County. His primary duties are related to law enforcement and include enforcement of state and county fire laws and laws related to explosives. Around 1:00 p.m., Chief Williams, who was in full uniform and wearing a law enforcement badge and a Sam Browne belt, was monitoring traffic and stopping cars for traffic violations near the checkpoint area when he saw defendant driving a black convertible Mustang with the top down drive past him at a speed of about five miles per hour (mph). There were two passengers in the car; one waved at the chief, and the chief waved back.
Chief Williams was in a center turn lane, fixing cones and delineators that had been knocked down, when he heard tires screeching. He looked up and saw defendant driving the Mustang at a high rate of speed in his direction. Chief Williams put his hands over his head with his palm facing forward and yelled at defendant to stop. Defendant, however, continued to accelerate toward Chief Williams. Chief Williams yelled a second time for defendant to stop, to no avail; defendant still continued to accelerate toward him. Chief Williams then withdrew his weapon from his holster and aimed it at defendant. In response, defendant ducked down into the right side of the vehicle and the vehicle veered to the right, driving approximately 40 mph and coming within about two feet of Chief Williams.
Riverside County Sheriff’s Deputy Michael Heuer was working at the checkpoint that day and was about 100 yards south of Chief Williams when the incident occurred. After observing the incident, Deputy Heuer broadcast over his radio that there was an “[assault] on a peace officer.”
Chief Williams ran to the parking lot where his “department marked” truck was parked, jumped in the truck, activated the truck’s overhead red lights and siren, and began pursuing defendant.
During the pursuit, defendant drove without signaling and at excessive rates of speed: about 80 to 100 mph in 25 mph zones. At one point, defendant drove near a high school; there was a lot of student traffic in front of the school. When Chief Williams entered the school zone, he shut off his overhead lights and siren, believing it to be no longer safe to pursue defendant.
Chief Williams temporarily lost sight of defendant. He subsequently found the car defendant had been driving abandoned on a street a quarter of the way down the block on the wrong side of the road. Other officers had defendant on the ground at gunpoint on the next block.
After being advised of and waiving his constitutional rights, defendant eventually admitted to Chief Williams that he had seen Chief Williams in the middle of the road but that he did not want to stop because he was “[a] little” high. Defendant later admitted to other interviewing officers that he did not want to go through the checkpoint because he had smoked methamphetamine earlier that morning. He denied driving directly at Chief Williams; he claimed that he did not stop because he was scared and had panicked. He admitted to speeding at about 85 to 90 mph in 25 mph zones.
II
DISCUSSION
A. Insufficiency of the Evidence
Defendant contends there was insufficient evidence to sustain his conviction for felony evading a peace officer.
Our review of any claim of insufficiency of the evidence is limited and the standard of review is settled. “‘A reviewing court faced with such a claim determines “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citations.] We examine the record to determine “whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] Further, “the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ [Citation.]” (People v. Moon (2005) 37 Cal.4th 1, 22.)
“In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.) “‘Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.’ [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1141, quoting People v. Maury (2003) 30 Cal.4th 342, 403.)
A person violates section 2800.2 if he or she “flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property....” (§ 2800.2, subd. (a).)
Section 2800.1 provides that a person is guilty of attempting to elude a pursuing peace officer if “(1) [t]he peace officer’s motor vehicle is exhibiting at least one lighted red lamp visible from the front and the person either sees or reasonably should have seen the lamp; [¶] (2) [t]he peace officer’s motor vehicle is sounding a siren as may be reasonably necessary; [¶] (3) [t]he peace officer’s motor vehicle is distinctively marked; [and ¶] (4) [t]he peace officer’s motor vehicle is operated by a peace officer..., and that peace officer is wearing a distinctive uniform.” (§ 2800.1, subd. (a).)
Defendant contends the evidence was insufficient to establish that the Department of Forestry and Fire Services car driven by Chief Williams was “distinctively marked” as required by section 2800.1. We disagree.
This state’s highest court addressed the question regarding what constitutes “distinctively marked” for purposes of section 2800.1. In People v. Hudson (2006) 38 Cal.4th 1002 (Hudson), police pursued the defendant in a plain car equipped with a forward-facing interior red light located directly under the rearview mirror, a blue amber blinking light in the back, and a siren. (Id. at p. 1006.) After receiving a modified instruction on the meaning of “distinctively marked,” the jury found the defendant guilty of violating section 2800.2, subdivision (a). (Hudson, at p. 1007.) The Court of Appeal affirmed the judgment, and the Supreme Court granted the defendant's petition for review. (Ibid.)
On review, the California Supreme Court agreed with People v. Estrella (1995) 31 Cal.App.4th 716 and People v. Mathews (1998) 64 Cal.App.4th 485, both of which required that a “distinctively marked” vehicle exhibit features in addition to a red light and a siren (Estrella, at pp. 722-723 [pursuing police vehicle equipped with light bar inside front windshield, warning lights in rear, and alternating wig-wag lights in addition to a siren had sufficient distinctive marks to satisfy the statutory requirement]; Mathews, at pp. 489-490 [pursuing vehicle equipped with red lights, siren, and wig-wag headlights was distinctively marked]) and concluded that, “for purposes of section 2800.1, a pursuing peace officer’s vehicle is ‘distinctively marked’ if its outward appearance during the pursuit exhibits, in addition to a red light and a siren, one or more features that are reasonably visible to other drivers and distinguish it from vehicles not used for law enforcement so as to give reasonable notice to the fleeing motorist that the pursuit is by the police.” (Hudson, supra, 38 Cal.4th at pp. 1010-1011.)
Here, the vehicle driven by Chief Williams was “department marked.” Additionally, the vehicle was white and had a red stripe and numbers on it. Moreover, the vehicle was equipped with red lights and a siren, both of which were activated during the pursuit. Defendant does not argue that he could not see the lights, nor does he claim he could not hear the siren.
The distinctive markings on the vehicle were sufficient to satisfy the additional feature required by Hudson. Contrary to defendant’s suggestion, the additional feature does not require that the vehicle also be equipped with wig-wag lights or other types of lights; Hudson holds that to satisfy the requirements of section 2800.1, the vehicle must exhibit “distinctively marked” features “that are reasonably visible to other drivers and distinguish it from vehicles not used for law enforcement” in addition to a red light and a siren. (Hudson, supra, 38 Cal.4th at pp. 1010-1011.)
Coupled with the activated red light and siren, the distinctive markings on the vehicle driven by Chief Williams “distinguish[ed the car] from vehicles not used for law enforcement so as to give reasonable notice to the fleeing [defendant] that the pursuit [was] by the police.” (Hudson, supra, 38 Cal.4th at pp. 1010-1011.) Thus, there was sufficient evidence to establish that the police vehicle in pursuit of defendant was “distinctively marked” as required by section 2800.1.
B. Upper-Term Sentence
The trial court sentenced defendant to the upper term of three years for the felony evading conviction based on the following factors: (1) defendant had engaged in conduct that indicated a serious danger to society; (2) defendant had an extensive criminal history which included five prior felony convictions; (3) defendant was already on probation for possession of a controlled substance when he committed the instant offense; (4) defendant had performed unsatisfactorily while on probation; (5) defendant was arrested for being under the influence of a controlled substance (Health & Saf. Code, § 11550) while this case was pending; and (6) defendant had been previously convicted of the same offense of which he was convicted in this case, showing “he’s not getting it,” and “[h]e hasn’t learned anything.” To the upper term of three years for the substantive offense, the court also added two years for his two prior prison terms, plus eight months for the probation violation in case No. SWF015834.
It appears the trial court did not cite any factors in mitigation and apparently rejected defense counsel’s argument that defendant’s criminal history indicated he was a nonviolent offender, he was remorseful, and he had a drug problem and that the factors in mitigation outweighed the factors in aggravation. The probation officer did not cite any factors in mitigation.
Defendant contends the trial court’s imposition of the upper term constituted an abuse of discretion. Specifically, he claims the trial court’s “dual use” of his two prison priors both to enhance his sentence by two consecutive years pursuant to Penal Code section 667.5, subdivision (b) and to impose the upper term was improper, and the remaining factors in aggravation do not outweigh the factors in mitigation. The People counter that the issue is waived because the challenge was not raised at sentencing and, in the alternative, any error was harmless. Defendant responds that an objection would have been futile and that the error was not harmless.
We agree the issue has been waived. The failure to lodge an objection to a trial court’s sentencing choices at the time of sentencing concerning its use of mitigating and aggravating factors generally constitutes a waiver of the issue on appeal. (People v. Scott (1994) 9 Cal.4th 331, 353-355.) Post-Scott cases unanimously agree that the waiver principle applies when a defendant fails to object to what he or she later considers to be an improper dual use of facts to impose the upper term. (People v. Martinez (1998) 65 Cal.App.4th 1511, 1518; People v. De Soto (1997) 54 Cal.App.4th 1, 6-10; People v. Erdelen (1996) 46 Cal.App.4th 86, 90-91; People v. Brandon (1995) 32 Cal.App.4th 1033, 1054.)
In People v. Gonzalez (2003) 31 Cal.4th 745, our Supreme Court reaffirmed the waiver doctrine articulated in Scott and rejected the argument that the waiver doctrine is inapplicable if the court does not issue a tentative decision. (Gonzalez, at p. 748.) The court noted, “It is only if the trial court fails to give the parties any meaningful opportunity to object that the Scott rule becomes inapplicable.” (Id. at p. 752.)
Here, though defendant had an opportunity to do so, he did not object at sentencing, and there is no indication in this record to support defendant’s general assertion that an objection would have been futile. Having failed to bring to the court’s attention the fact that it seemingly relied on dual use of facts to impose the upper term, defendant cannot argue this claim on appeal. (People v. Scott, supra, 9 Cal.4th at pp. 353-355.)
Even if the point was not waived, and the trial court did violate the dual-use prohibition, defendant would not prevail.
We review the sentence for an abuse of discretion. (People v. Castellano (1983) 140 Cal.App.3d 608, 615.) “A trial court is vested with abundant discretion in sentencing. An abuse is found only where its choice is ‘arbitrary or capricious or “‘exceeds the bounds of reason, all of the circumstances being considered.’” [Citations.]’” (People v. Trausch (1995) 36 Cal.App.4th 1239, 1247.)
When a statute specifies three possible terms, the court “shall” impose the middle term, unless there are circumstances in aggravation or mitigation of the crime that justify the imposition of the lower or upper term. (Pen. Code, § 1170, subd. (b).) “‘Sentencing courts have wide discretion in weighing aggravating and mitigating factors....’” (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) “Improper dual use of the same fact for imposition of both an upper term and a consecutive term or other enhancement does not necessitate resentencing if ‘[i]t is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error.’” (People v. Coleman (1989) 48 Cal.3d 112, 166.)
Remanding this case for resentencing is unnecessary and would be a waste of judicial resources. A single factor in aggravation is sufficient to support imposition of an upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.) In addition, “‘[a] trial court may minimize or even entirely disregard mitigating factors without stating its reasons.’“ (People v. Zamora (1991) 230 Cal.App.3d 1627, 1637.)
In the present matter, the remaining three felony convictions would support the fact that defendant had an extensive criminal history. In addition, the trial court properly found as factors in aggravation that defendant had engaged in conduct indicating a serious danger to society; that he was on probation when he committed the instant offense; that his performance on probation was unsatisfactory; and that he had committed another criminal offense while this case was pending. The court properly relied on these valid aggravating factors. Further, not cited by the court but pointed out by the probation officer, the manner in which the crime was carried out indicated planning, sophistication, or professionalism, and defendant’s prior convictions are numerous and/or of increasing seriousness also support an aggravating sentence. Thus, even if defendant had objected to the trial court’s use of the remaining challenged factors as aggravating factors, or if we were to remand for resentencing, defendant would not obtain a more favorable outcome. We see no basis for a reversal. As stated previously, “a single valid factor in aggravation is sufficient to justify an upper term.” (People v. Forster (1994) 29 Cal.App.4th 1746, 1759; see also People v. Osband, supra, 13 Cal.4th at pp. 728, 730.) In fact, under People v. Black (2007) 41 Cal.4th 799, no more is needed to impose the upper term. (Id. at p. 816.)
III
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER, Acting P.J., KING, J.