Filed 10/29/13 P. v. Roman CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                   F063876 & F064289
         Plaintiff and Respondent,
                                                                            (Super. Ct. Nos. CRM017492,
                   v.                                                        CRM012650, CRM013284)

ROBERT GONZALES ROMAN,                                                                   OPINION
         Defendant and Appellant.



         APPEALS from a judgment of the Superior Court of Merced County. Ronald W.
Hansen, Judge.
         Jeremy Valverde, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne
LeMon, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                                INTRODUCTION
         Defendant Robert Gonzales Roman appeals his conviction, following jury trial,
asserting: (1) the trial court erred in allowing uncharged crimes evidence to provide his
identity as the driver because the driver‘s identity was contested; (2) trial counsel had a
duty to request the jury be instructed regarding third party culpability and his failure to do
so amounted to ineffective assistance; (3) the trial court allowed prejudicial evidence of
defendant‘s poverty to be admitted, thereby violating his rights to a fair trial and due
process; (4) the prosecutor committed misconduct by misstating the law during closing
argument; (5) trial counsel was ineffective for failing to object to the aforementioned
prosecutorial misconduct; and (6) the trial court erred when it found defendant was not
eligible for sentencing pursuant to Penal Code1 section 1170.9. We will affirm the
judgment.
                      RELEVANT PROCEDURAL BACKGROUND2
       By information, the Merced County District Attorney alleged defendant had
committed the following: count 1, unlawful driving of a vehicle (Veh. Code, § 10851,
subd. (a)); count 2, evading an officer with reckless driving (Veh. Code, § 2800.2, subd.
(a)); count 3, receiving stolen property (§ 496, subd. (a)); count 4, reckless driving (Veh.
Code, § 23103, subd. (a)); and count 5, resisting an officer (§ 148, subd. (a)(1)).
Defendant subsequently pled not guilty to all counts.
       Prior to trial, the People moved to admit evidence of defendant‘s prior offenses
pursuant to Evidence Code section 1101, subdivision (b). Following argument, the trial
court permitted evidence of a November 5, 2006, incident.
       Jury trial commenced September 20, 2011. On September 27, 2011, the jury
found defendant guilty of counts 1, 2, 4 and 5.
       On November 29, 2011, defendant was sentenced to three years in state prison for
evading an officer with reckless driving and a consecutive eight-month term for the
unlawful taking or driving of a vehicle. As to the trailing violation of probation cases,
Nos. CRM012650 and CRM013284, the court imposed consecutive eight-month terms



       1All   further statutory references are to the Penal Code unless otherwise indicated.
       2On    May 14, 2012, the court consolidated its case numbers F063876 and F064289.


                                                 2.
for each case. Thus, defendant was sentenced to a total of five years in prison. This
appeal followed.
                                   FACTUAL BACKGROUND
          On the evening of April 22, 2011, Alan Arancibia invited ―Linda‖ back to his
home. Sometime after he fell asleep, Linda disappeared, as did his keys and his 2001
GMC Jimmy SUV. The following morning, Arancibia reported the theft to Merced
police.
          On May 5, 2011, at about 9:30 p.m. Merced police officer Gerald Bohanan was on
patrol. In an area known for stolen vehicles, the officer ran the license plate of an SUV in
front of him. Dispatch indicated the vehicle had been reported stolen.
          When the driver of the vehicle did not stop, a pursuit ensued. Bohanan‘s ―dash
cam,‖ i.e., a dashboard-mounted video camera, recorded the chase.3 Meanwhile, Merced
police officers Brian Rinder and Eduardo Chavez responded to assist Bohanan. Also
responding was Sergeant Kevin Blake with the Merced County Sheriff‘s Office, who had
been monitoring radio traffic for the City of Merced.
          As the suspect and Bohanan approached the intersection of Glen Avenue and 21st
Street, Rinder approached from the opposite direction. Approximately 10 yards from the
vehicle as it passed, Rinder observed defendant driving the SUV. He recognized
defendant as the driver of the vehicle given the shape of his head and face, and his
hairstyle. Rinder later advised Bohanan that defendant was the driver of the stolen SUV.
          Eventually the vehicle slowed and the passenger and driver of the stolen SUV
jumped from the vehicle, exiting via the passenger door (the driver‘s side door was
inoperable). Rinder identified defendant as the second person to exit the vehicle.4

          3The video   was played for the jury. We have reviewed the video footage as well.
          4Rinder believed
                         the driver of the vehicle was wearing a black shirt. His report reflects
the same. However, Rinder acknowledged the dash cam video from Bohanan‘s patrol vehicle
shows the individual he identified as defendant was wearing a light or white colored shirt. In any
event, Rinder‘s confusion regarding the color of the driver‘s shirt did not affect his identification
of defendant as the SUV‘s driver in any way.


                                                  3.
Bohanan testified the second person to exit the SUV was wearing a white shirt, black
shorts and white socks. The other occupant of the SUV was never identified or arrested.
       Sergeant Blake heard on the radio the description of two fleeing suspects. As he
neared the area of the stopped SUV, Blake noticed a person running northbound out of a
residential area. The individual then stopped and began walking westbound. Blake
illuminated the individual with his spotlight and ordered him to the ground at gunpoint.
That individual was later identified as defendant. Defendant was sweating profusely and
appeared to be out of breath. He was wearing black shorts and carrying a white T-shirt.5
       While conducting a yard-to-yard search, Rinder found a pair of sunglasses with
blood on them in a small alleyway behind a nearby house. Elsewhere, Chavez found a
black bag on the ground in a nearby backyard, about 100 feet from the SUV. Inside the
bag were glass figurines or ornaments, two cell phones, a pink MP3 player, and
paperwork in the name of Michael Donald Jorgenson; Jorgenson could not be contacted
or found.
       A subsequent search of the rear of the SUV revealed documents bearing
defendant‘s name and a number of keys belonging to various vehicle makes, house keys,
and a shaved key, typically used to facilitate entry or to start the ignition of a vehicle
other than the one for which the key was intended. Also found in a bag inside the SUV
were burglar tools, consisting of screwdrivers, electrical wire, filing tools, a pry tool and
a mini crowbar, bolt cutters, a black metal flashlight, a set of small tools, a ceramic or
porcelain tool used to break windows or glass, and cell phone batteries. A larger bag
contained darts in a pouch, a cell phone without a battery, an AAA lockout card, an
eyeglass case, and a trash bag. Another cell phone was found on the SUV‘s floorboard.
Finally, three T-shirts bearing the word or insignia ―Barhoppers‖ were also found in the




       5Defendant‘s  clothing confiscated at booking included black shorts and white socks; it
was received into evidence during trial.


                                               4.
SUV. Bohanan took fingerprints from the driver and passenger sides of the vehicle, and
from the back lift gate of the SUV. Ultimately, Bohanan transported defendant to jail.
       A fingerprint analyst with the Department of Justice analyzed five latent
fingerprint cards. Of those five, latent print card No. 2 contained prints lifted from the
rear bottom half of the SUV‘s back door. Those prints matched defendant‘s right middle
finger and right ring finger. The remaining fingerprints lifted were not usable or did not
belong to defendant.
                                       DISCUSSION
A.     Evidence Code Section 1101, Subdivision (b)
       Defendant contends the trial court erred by allowing evidence of an uncharged
crime to prove defendant‘s identity as the driver. As a result, defendant contends his
constitutional rights to a fair trial and due process have been violated, requiring reversal
of his conviction. The People assert the evidence was admitted to show common design
and plan, not identity, and that defendant was not prejudiced by its admission.
       1.     Legal Standards
       Evidence Code section 1101 provides as follows:

              ―(a) Except as provided in this section and in Sections 1102, 1103,
       1108, and 1109, evidence of a person‘s character or a trait of his or her
       character (whether in the form of an opinion, evidence of reputation, or
       evidence of specific instances of his or her conduct) is inadmissible when
       offered to prove his or her conduct on a specified occasion.

              ―(b) Nothing in this section prohibits the admission of evidence that
       a person committed a crime, civil wrong, or other act when relevant to
       prove some fact (such as motive, opportunity, intent, preparation, plan,
       knowledge, identity, absence of mistake or accident, or whether a defendant
       in a prosecution for an unlawful sexual act or attempted unlawful sexual act
       did not reasonably and in good faith believe that the victim consented)
       other than his or her disposition to commit such an act.‖
―Subdivision (a) of [Evidence Code] section 1101 prohibits admission of evidence of a
person‘s character, including evidence of character in the form of specific instances of
uncharged misconduct, to prove the conduct of that person on a specified occasion.


                                              5.
Subdivision (b) of [Evidence Code] section 1101 clarifies, however, that this rule does
not prohibit admission of evidence of uncharged misconduct when such evidence is
relevant to establish some fact other than the person‘s character or disposition.‖ (People
v. Ewoldt (1994) 7 Cal.4th 380, 393, superseded by statute on another ground as stated by
People v. Britt (2002) 104 Cal.App.4th 500, 505.)
       The trial court‘s ruling under either Evidence Code section 1101 or Evidence Code
section 352 is reviewed on appeal for abuse of discretion. (People v. Homick (2012) 55
Cal.4th 816, 865; People v. Lenart (2004) 32 Cal.4th 1107, 1123; People v. Kipp (1998)
18 Cal.4th 349, 369.)
       Evidence of crimes not charged in the present proceeding, though sometimes
admissible for the purposes set forth in Evidence Code section 1101, subdivision (b),
must be handled with care:

       ―It is … well settled that evidence may be admitted, even though it
       embraces evidence of the commission of another crime, if it logically tends
       to prove a material element in the People‘s case. [Citations.] However, ‗It
       has frequently been recognized … that because of the sound reasons behind
       the general rule of exclusion, the relevancy of evidence of other crimes, and
       therefore its admissibility, must be examined with care. [Citation.] The
       evidence should be received with ―extreme caution,‖ and if its connection
       with the crime charged is not clearly perceived, the doubt should be
       resolved in favor of the accused. [Citations.]‘‖ (People v. Guerrero (1976)
       16 Cal.3d 719, 724.)
Even when evidence is relevant under Evidence Code section 1101, subdivision (b), it
must be excluded under Evidence Code section 352 if its prejudicial effect substantially
outweighs its probative value:

       ―Our conclusion that [Evidence Code] section 1101 does not require
       exclusion of the evidence of defendant‘s uncharged misconduct, because
       that evidence is relevant to prove a relevant fact other than defendant‘s
       criminal disposition, does not end our inquiry. Evidence of uncharged
       offenses ‗is so prejudicial that its admission requires extremely careful
       analysis. [Citations.]‘ [Citations.] ‗Since ―substantial prejudicial effect
       [is] inherent in [such] evidence,‖ uncharged offenses are admissible only if
       they have substantial probative value.‘ [Citation.] [¶] … We thus proceed
       to examine whether the probative value of the evidence of defendant‘s

                                            6.
         uncharged offenses is ‗substantially outweighed by the probability that its
         admission [would] … create substantial danger of undue prejudice, of
         confusing the issues, or of misleading the jury.‘ (Evid. Code, § 352.)‖
         (People v. Ewoldt, supra, 7 Cal.4th at p. 404.)
         2.     Relevant Testimony
         California Highway Patrol Sergeant Jeremy Key testified regarding a November 5,
2006, incident. On that date, at about 11:15 p.m., Key was on patrol in the County of
Merced. Key observed a white Dodge pickup truck with a missing front license plate; he
executed a U-turn and attempted to pull over the vehicle, which he noticed had a
defective rear taillight. The vehicle did not yield.
         The vehicle pulled into a trailer park. The driver—the only occupant—then
suddenly opened the door and took off running west. The vehicle continued forward; the
door remained open. Key‘s partner pursued the driver. Key stopped the vehicle before it
hit anything. The driver jumped a fence and was not apprehended. Nevertheless, Key
did get a look at the driver before he ran from the truck. Defendant was the driver of the
truck.
         The truck had been reported stolen. Following a search, Department of Motor
Vehicle documents bearing defendant‘s name were found in the truck. Additionally,
other personal items, clothing and toiletries were located, as were a number of tools.
         3.     The Trial Court’s Ruling
         Defense counsel argued the evidence should not be admissible, and the following
colloquy occurred:

                ―[DEFENSE COUNSEL:] But [the prosecutor] is seeking to admit this
         under some sort of theory. He wants it to prove intent. I don‘t think intent
         is a material issue in this case, so I don‘t think that the evidence is relevant
         for that reason. I don‘t think it‘s going to be a disputed issue at trial
         whoever, whoever possessed the vehicle seemed to intend to possess stolen
         property.

                ―[PROSECUTOR]: If I can clarify one thing, Your Honor. I‘m going
         to bring a—I‘m going to bring in—if the Court will allow me, I‘m going to
         bring in a police officer, Officer Key, who‘s going to say that in this prior
         incident he actually saw the defendant … driving that vehicle.

                                                7.
       ―Now [defendant] may have pled to 496, that‘s quite true, but the
evidence that prosecution is going to put on is that the defendant, once
again, was driving the stolen vehicle; once again, was alluding [sic] the
police; and once again, left—engaged in this unusual technique of letting
the vehicle continue to roll, which is exactly what happened in the case
before the court ….

        ―THE COURT: The evidence is really not being offered for intent, but
to show a common plan and modis operandi. And it is distinctive. I have
to say it is distinctive that in the face of apprehension that to create a
diversion and the necessity to focus on the vehicle and get it stopped to
prevent further damage as opposed to giving chase, that is distinctive.

       ―And the officer in 2007 [sic: 2006] incident is positive it was—
there was only one person in the vehicle?

       ―[PROSECUTOR]: Yes. Yes, to both questions, Judge.

       ―THE COURT: And he‘s clear on his identification.

      ―[PROSECUTOR]: In his police report he says he was sure it was the
defendant that was driving.

        ―THE COURT: Okay. …[¶] … [¶] [Y]ou know, the distinctive
element is that there is a greater degree of similarity required in order for
the 1101(b) to come in under common plan or modis operation. I think it
falls in that category. It is distinctive.

        ―[DEFENSE COUNSEL]: Your Honor, I‘d ask the Court to go through
the 352 balancing test. I think that the fact that [the prosecutor] alleges
from the 2007 [sic: 2006] event creates a substantial risk of confusing the
jury about what is it that they‘re suppose to be deciding, whether they are
deciding who was the driver of the 2007 [sic: 2006] event or this event. I
think it also involves undue consumption of time. And I think that the
danger of prejudice to [the defendant] is great. [¶] … [¶]

       ―THE COURT: Okay. It doesn‘t fall under that category as far as
confusion of the issues. What‘s your argument, again, on confusion of the
issues …?

       ―[DEFENSE COUNSEL]: [The prosecutor] wants to put before the jury
two, at least according to him, identical crimes separated by five years. I
think there is a risk that the jury is going to be caught up and focusing on
what happened in 2007 [sic: 2006] case as opposed to what happened in
this particular case. When you have facts like he‘s alleging, and the facts


                                       8.
       that he‘s trying to prove up in the current case, there is a risk that the jury is
       going to be confused about what they‘re suppose to be deciding.

               ―THE COURT: Yeah, I don‘t believe that there is a risk of confusion
       of the issues between the 2007 [sic: 2006] and the May 2011 events. The
       jury is going to be made well aware that the focus is the May 2011 crimes
       for which he‘s charged. And there are cautionary admonitions with respect
       to 1101(b) evidence.

               ―Well, I‘ll think about the 352 issue, but my tentative is to allow it.
       I‘ll think about it some more over the lunch hour, but right now it has to be
       unduly prejudicial, and it‘s prejudicial to [defendant]. There is no question
       about it. It‘s prejudicial.

             ―But that distinctive similarity of letting that vehicle, jump out of a
       moving vehicle and letting it head down the road or whatever it‘s headed
       and both officers in each case say it was [defendant] driving.

              ―Okay. Tentatively it‘s coming in. That‘s the only prior uncharged
       or prior uncharged conduct you want admitted?

              ―[PROSECUTOR]: Yes, Your Honor.‖
Later, after denying the prosecutor‘s request regarding additional uncharged crimes
evidence, the court stated, ―if I change my mind on the November 5th, ‘06 incident then
the other two will come in, but right now the November 5th, ‘06 incident comes in.‖
       4.     Analysis
       Here, the evidence was offered to prove a fact other than defendant‘s character or
identity, and thus, the evidence is not prohibited. (People v. Ewoldt, supra, 7 Cal.4th at
p. 393.) The record establishes the evidence of the November 2006 incident was
admitted to establish defendant‘s common plan: when confronted by law enforcement
attempting to stop him while operating a stolen vehicle, defendant jumps from the
moving vehicle and flees, requiring the officer to focus on stopping the runaway vehicle
versus stopping defendant. The trial court expressly admitted this evidence for that
purpose. (People v. Ewoldt, supra, 7 Cal.4th at p. 406 [―it is imperative that the trial
court determine specifically what the proffered evidence is offered to prove, so that the




                                               9.
probative value of the evidence can be evaluated for that purpose‖].) The People argued
this common plan in closing arguments to the jury.6
       ―The probative value of the uncharged offense evidence must be substantial and
must not be largely outweighed by the probability that its admission would create a
serious danger of undue prejudice, of confusing the issues, or of misleading the jury.‖
(People v. Kipp, supra, 18 Cal.4th at p. 371.) We review the trial court‘s determination
in this regard for abuse of discretion. (Ibid.)
       The California Supreme Court has identified various factors in determining
whether the probative value of the evidence is outweighed by its prejudicial effect.
Specifically, ―(1) whether the inference of a common design or plan is strong; (2)
whether the source of evidence concerning the present offense is independent of and
unaffected by information about the uncharged offense; (3) whether the defendant was
punished for the prior misconduct; (4) whether the uncharged offense is more
inflammatory than the charged offense; and (5) whether the two incidents occurred close
in time.‖ (People v. Dancer (1996) 45 Cal.App.4th 1677, 1690, disapproved on other
grounds in People v. Hammon (1997) 15 Cal.4th 1117, 1123; see People v. Ewoldt,
supra, 7 Cal.4th at pp. 404-405.)
       The prior incident and the current offense are very similar, and thus there is
nothing to suggest the inference of a common plan or design is weak. Defendant
contends that ―bailing from a vehicle while fleeing police‖ is ―not so unusual to be like a
signature …, but instead a natural response to the circumstances.‖ As we have already
noted, the evidence was offered to prove common plan, rather than identity. Therefore,
the evidence was not required to be ―‗so unusual and distinctive as to be like a
signature.‘‖ (People v. Ewoldt, supra, 7 Cal.4th at p. 403.) In any event, the cases cited
by defendant in support of his assertion are wholly unpersuasive. Unlike this case, none


       6The abandonment     of personal documents and effects that identify defendant as an
occupant of the vehicle is also a similarity between these two incidents.


                                               10.
of those cases involved uncharged crime evidence regarding a common plan. Rather, a
review of those cases reveals merely that each case involved a defendant who fled from
police and jumped from a moving vehicle in order to escape. None of the cases involved
prior incidents of similar conduct. In this case, the prior incident and the current offense
both involved defendant in a stolen vehicle, fleeing from a marked patrol vehicle, where
the driver leapt from the moving vehicle in an attempt to escape an arrest. In each
instance, defendant‘s belongings were left behind in the stolen vehicle. We hold that the
uncharged conduct and the charged offense are sufficiently similar to support an
inference of common plan or design. (People v. Ewoldt, supra, 7 Cal.4th at pp. 401-402.)
       Next, defendant contends the 2006 incident is too remote in time to be of
probative value.

       ―However, ‗[n]o specific time limits have been established for determining
       when an uncharged offense is so remote as to be inadmissible.‘ (People v.
       Branch (2001) 91 Cal.App.4th 274, 284.) And similar time periods have
       been approved in other cases. (See People v. Ing (1967) 65 Cal.2d 603,
       612, questioned on other grounds in People v. Tassell (1984) 36 Cal.3d 77,
       89 [15 years before charged offenses]; People v. Branch, supra, 91
       Cal.App.4th at pp. 284–285 [more than 30 years]; People v. Waples (2000)
       79 Cal.App.4th 1389, 1395 [18 to 25 years].)‖ (People v. Spector (2011)
       194 Cal.App.4th 1335, 1388-1389.)
We are not persuaded the November 2006 incident is too remote in time. It occurred less
than five years prior to the charged crimes.
       We have already determined this evidence was not offered to prove defendant‘s
identity. Nevertheless, we briefly address defendant‘s assertions that his identity as the
driver was a ―close call.‖ We disagree. While the jury requested the readback of certain
testimony, those requests and the jury‘s question did not necessarily pertain solely to
identity. In fact, the jury heard readback of Officer Rinder‘s entire testimony on direct
examination.7

       7We note  the minute order regarding this day‘s proceedings is somewhat confusing with
regard to what requests were made by the jury and what testimony was re-read. In any event,
because the reporter‘s transcript is clear regarding what portion of the testimony was the subject

                                                11.
       Here, there is a strong inference of common plan, the source of the information
regarding either offense is not a concern, the uncharged offense is not more inflammatory
than the present offense, and the two incidents are not separated too distantly in time.
(People v. Dancer, supra, 45 Cal.App.4th at p. 1690.)
       As described above, the court considered the prejudicial effect of the evidence, but
concluded it had more substantial probative value. The trial court also disagreed with
defendant‘s argument the evidence would confuse the issues or mislead the jury. We
perceive no error in the trial court‘s determination. There was no abuse of discretion.
(People v. Homick, supra, 55 Cal.4th at p. 865.)
       Moreover, even if we were to find the evidence was improperly admitted, we
would find no prejudice. That is, there is no reasonable probability defendant would have
had a more favorable result in the absence of error. (People v. Watson (1956) 46 Cal.2d
818, 836.) Minutes after the stolen SUV was abandoned, defendant was found a short
distance away. He was sweating profusely and was wearing clothing that matched the
description of the driver of the stolen vehicle. Additionally, Officer Rinder positively
identified defendant at the scene and again at trial.
       Notably too, to the degree defendant argues the trial court erred by instructing the
jury with CALCRIM No. 375 because the instruction seems to reference identity rather
than common plan or design, assuming error, we conclude it was not prejudicial. In
determining the prejudicial effect of an erroneously given instruction, we apply the
Watson standard of prejudice (i.e., whether it is reasonably probable the defendant would
have obtained a more favorable result had the instruction not been given). (People v.
Prieto (2003) 30 Cal.4th 226, 249; People v. Watson, supra, 46 Cal.2d at p. 836.)
Assuming CALCRIM No. 375 was erroneously given, any harm to defendant was
minimal. That instruction stated the jury could consider evidence of the November 2006


of a readback, it controls. (See People v. Harrison (2005) 35 Cal.4th 208, 226; People v.
Malabag (1997) 51 Cal.App.4th 1419, 1422-1423.)


                                              12.
offense only if it found, by a preponderance of the evidence, defendant committed that
offense. Furthermore, that instruction stated the jury then could, but was not required to,
consider that evidence only for the limited purpose of determining whether defendant was
the person who committed the charged offenses. It also instructed that that conclusion (if
made) was only one factor to consider along with all of the other evidence presented at
trial and was not sufficient, by itself, to prove defendant‘s guilt of the charged offenses,
which must be proved by the People beyond a reasonable doubt.
       As noted above, despite defendant‘s characterization of the evidence as weak or
his identity as the driver being a ―close call,‖ the evidence presented was strong. We
have reviewed video of the dash cam footage that was played for the jury. The difference
in the clothing worn by the first person to exit the vehicle through the passenger door (the
passenger) versus the second person to exit the vehicle through the passenger door (the
driver) is compelling. The passenger is wearing all light-colored, possibly tan or khaki
colored, clothing. The driver is wearing a light-colored or white T-shirt, starkly
contrasting dark-colored shorts, and white socks. When defendant was spotted running
near the scene of the stolen vehicle, Sergeant Blake noted he was wearing black shorts
and white socks, and was carrying a white T-shirt.
       In sum, considering the instructions as a whole, we conclude it is not reasonably
probable defendant would have obtained a more favorable result had the court not
instructed the jury with CALCRIM No. 375. (People v. Prieto, supra, 30 Cal.4th at p.
249; People v. Watson, supra, 46 Cal.2d at p. 836; People v. Foster (2010) 50 Cal.4th
1301, 1332-1333 [applying Watson standard to erroneous instruction that jury could
consider evidence of defendant‘s prior crime with respect to issue of identity of
perpetrator, and observing that, because evidence was admissible regardless of whether it
was relevant to issue of identity, jury would have heard it even if trial court had not
admitted it to establish defendant‘s identity as perpetrator]; see also People v. Rivas
(2013) 214 Cal.App.4th 1410, 1421-1422.)



                                             13.
B.     Instruction Regarding Third Party Culpability
       Defendant complains that by failing to request an instruction regarding third party
culpability, defense counsel provided ineffective assistance in violation of his state and
federal constitutional rights. The People assert trial counsel may have had a tactical
reason for not requesting the instruction. And, in any event, had the instruction been
given pursuant to a request, a more favorable outcome was not reasonably likely.
       To prevail on an ineffective assistance of counsel claim, the appellant must
establish two things: (1) counsel‘s performance fell below an objective standard of
reasonableness, and (2) prejudice occurred as a result. (Strickland v. Washington (1984)
466 U.S. 668, 687; People v. Hernandez (2012) 53 Cal.4th 1095, 1105; People v. Bradley
(2012) 208 Cal.App.4th 64, 86-87.) The Strickland court explained prejudice is ―a
reasonable probability that, but for counsel‘s unprofessional errors, the result of the
proceeding would have been different.‖ (Strickland v. Washington, supra, at p. 694.)
Further, the high court stated a reasonable probability is ―a probability sufficient to
undermine confidence in the outcome‖ of the proceeding. (Ibid.)
       Because there was another individual inside the stolen vehicle, defendant contends
the identity of that individual was significant to the issue of the driver‘s identity, and
therefore, he was ―entitled to an instruction [on] third-party culpability as it pertains to
that party‘s flight.‖
       In People v. Henderson (2003) 110 Cal.App.4th 737, the defendant argued he was
entitled to an instruction on the effect of flight by a third party as he relied upon a defense
of third party culpability. (Id. at p. 741.) Division One of the Fourth District Court of
Appeal held a defendant is entitled to such an instruction where it is prepared and
submitted by the defense, and where there is proof the third party was aware of the
discovery of the crime charged. That court concluded the trial court had no sua sponte
duty to instruct on the issue. (Id. at pp. 741-743.) The court went on to find that, even
assuming such a duty existed, any error was harmless because defendant Henderson was
not entitled to a pinpoint instruction regarding the alleged flight of a culpable third party

                                              14.
as ―[t]he evidence of third party culpability was quite weak.‖ (Id. at p. 744.) Further, the
court noted the ―trial court did inform the jury of the purpose of the third party defense
evidence, namely to address the question of whether the prosecution had proved identity
of the perpetrator beyond a reasonable doubt. Additionally, trial counsel argued the
matter of the alleged flight of the third party during closing arguments. Thus, the jury
was clearly aware that the conduct of the third party was important in evaluating the issue
of identity.‖ (Ibid.)
       Here, like Henderson, the evidence of third party culpability was weak. As
pointed out previously, there was strong evidence defendant was the driver of the stolen
vehicle, rather than its mere passenger. Officer Rinder testified he observed defendant
driving the vehicle during the pursuit. The officer‘s credibility was a determination for
the jury. Further, the video captured by Officer Bohanan‘s dash cam reveals the second
person exiting the vehicle from the passenger door was wearing the same dark colored
shorts and white socks that defendant was wearing when he was stopped by Sergeant
Blake. On the other hand, the first person exiting the vehicle—logically, the passenger—
was wearing all light-colored or beige clothing. Instead of addressing the fact
defendant‘s clothing so plainly matched that of the driver of the stolen vehicle, defendant
characterizes Officer Rinder‘s testimony as ―conflicted and tenuous,‖ describes the dash
cam video as ―grainy,‖ and concludes the evidence was not conclusive. Following
review, we simply cannot agree with defendant‘s interpretation of this evidence.
       Additionally, similar to Henderson, defense counsel was free to, and did, argue
during closing arguments the alleged flight of the never-captured third party, whom he
cast as the driver of the stolen vehicle. And the jury was instructed on reasonable doubt
pursuant to CALCRIM No. 220.
       For all of the foregoing reasons, even assuming defense counsel erred by not
requesting a pinpoint instruction regarding third party culpability, defendant was not
prejudiced by its omission. As explained above, it is not reasonably probable the



                                             15.
outcome would have been different had the instruction been given. (Strickland v.
Washington, supra, 466 U.S. at p. 694.)
C.    Evidence Regarding Defendant’s Poverty
      Defendant contends the trial court erred when it permitted the admission of
evidence in the form of his application for food stamp assistance, arguing its admission
was unduly prejudicial and gratuitous thereby depriving him of a fair trial and due
process of law. The People assert this evidence was properly admitted to show defendant
was more than a casual passenger in the stolen vehicle.
      1.       References to Food Stamp Application
      During the hearing on the motions in limine, defense counsel brought up the issue
of paperwork found inside the stolen vehicle that included defendant‘s name:

              ―[DEFENSE COUNSEL:] There is another issue with respect to, I think
      it‘s described as a booking sheet with [defendant]‘s name on it in the
      vehicle. I‘m asking that not be referred to as a booking sheet or referred to
      in any way that would suggest a prior arrest or incarceration. Simply
      paperwork with his name on it would be adequate.

               ―THE COURT: Mr. [Prosecutor]? Any intent to offer a booking
      sheet?

             ―[PROSECUTOR]: I‘m going to offer paperwork items that have the
      defendant‘s name on them, Your Honor. And the officer does state in his
      police report … that there were some items of paperwork in the vehicle as
      follows: The officer states several of the papers which contain
      [defendant]‘s name.

            ―THE COURT: Well, we can refer to those papers as having
      [defendant]‘s name and redact the word ‗Booking Sheet.‘

               ―[PROSECUTOR]: Okay, Judge, that‘s fine.

              ―THE COURT: What you‘re really after is indicia of [defendant]‘s
      personal paperwork is in the car. He had the car long enough to leave some
      of his paperwork in it.

             ―[DEFENSE COUNSEL]: Yes, that‘s the nature of my motion. I just
      don‘t want to refer to it as—



                                           16.
              ―THE COURT: Okay. We‘ll redact the word ‗booking sheet‘ from
       that document or—and the officer not to refer to it as a booking sheet, but
       there were papers, there were legal papers with [defendant]‘s name on it.

              ―[PROSECUTOR]: Okay, Judge. Fine.

              ―[DEFENSE COUNSEL]: Um—

               ―THE COURT: You can refer to them as legal papers with
       [defendant]‘s name on them. Are you actually going to produce the papers
       or just have him testify to them?

              ―[PROSECUTOR]: I‘ll bring the papers and then we can decide on the
       redaction before the jury sees them.

              ―THE COURT: Okay.‖
       In his opening statement, the prosecutor made the following remarks:

       ―Inside the stolen vehicle the police found some interesting items that
       you‘ll see. There were about 11 car keys. There was some paperwork in
       the name of [defendant]. There was a food stamp application, among other
       paperwork, in the name of … the defendant.‖
Defense counsel did not object to the foregoing statement when it was made. Rather,
after giving his own opening statement, he raised the issue:

              ―THE COURT: We‘re outside the presence of the jury on this food
       stamp issue. Mr. [Prosecutor], it‘s part of the paperwork that‘s indicia
       connecting [defendant] to the vehicle?

              ―[PROSECUTOR]: Yes.

              ―THE COURT: It‘s certainly relevant in that respect, highly relevant.
       Characterizing it as a food stamp application, you feel that‘s unduly
       prejudicial, [defense counsel]?

               ―[DEFENSE COUNSEL]: Yes, I do, Your Honor. Especially since we
       had in limine motions yesterday designed to lessen or prevent the impact of
       documents in the vehicle. The only reference documents in the vehicle that
       is in the police reports or any of the discovery that I‘ve received references
       a booking sheet. I made a specific motion yesterday that it not be referred
       to as a booking sheet because it was prejudicial. I also requested to view all
       of these items before we began the trial, and I was not able to do that this
       morning. The reference seems gratuitous to me.



                                            17.
               ―THE COURT: So we have a clear record, it wasn‘t to any fault of
        your own. Mr. [Prosecutor], the documents weren‘t produced because the
        police department doesn‘t want to release the evidence.

               ―[PROSECUTOR]: They won‘t bring them over … until they‘re going
        to be offered so they‘re at the Merced Police Department.

               ―THE COURT: Right. Okay.

               ―[DEFENSE COUNSEL]: My request, just so the record is clear, is for
        a mistrial. And in the event the Court denies that I‘m asking for a curative
        instruction to admonish the jury not to consider that, although I don‘t
        believe that can be unrung.

                ―THE COURT: Okay. The request for mistrial is denied. The issue
        on mistrial is whether or not the defendant, the statement or event which is
        the subject of the motion is so prejudicial that the defendant is denied a fair
        trial. And again, the central issue of the case is who‘s driving and how
        strong the evidence is in that issue. That hasn‘t changed at all.

                ―Certainly the paperwork showing—belonging to [defendant] as
        indicia of his involvement with the vehicle as something more than just a
        passenger in that he has a food stamp application would be relevant to that.
        I think it‘s very relevant to that issue.

               ―Now I certainly will—there is an instruction that they‘re not to have
        any bias against defendant because they list socioeconomic criteria,
        ethnicity, etc. I will add something about socioeconomic circumstance or
        application for food stamps.‖
Ultimately, the jury was instructed with CALCRIM No. 200 which provided, in relevant
part:

        ―Do not let bias, sympathy, prejudice, or public opinion influence your
        decision. Bias includes, but it not limited to, bias for or against the
        witnesses, attorneys, defendant or alleged victim, based on disability,
        gender, nationality, national origin, race or ethnicity, religion, gender
        identity, sexual orientation, age, socioeconomic status, or possible
        association with a local club, or having filed for public assistance.‖ (Italics
        added.)
        2.     Analysis
        ―An appellate court applies the abuse of discretion standard to review any ruling
by a trial court on the admissibility of the evidence, including a ruling on an Evidence


                                              18.
Code section 352 objection.‖ (People v. Cox (2003) 30 Cal.4th 916, 955, overruled on
other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
       ―Under the well-established rule, a defendant‘s poverty generally may not be
admitted to prove a motive to commit a robbery or theft; reliance on such evidence is
deemed unfair to the defendant, and its probative value is outweighed by the risk of
prejudice.‖ (People v. Koontz (2002) 27 Cal.4th 1041, 1076.)

                ―While ‗lack of money is logically connected with a crime involving
       financial gain … [t]he trouble is that it would prove too much against too
       many.‘ [Citation.] As the court explained in United States v. Mitchell (9th
       Cir. 1999) 172 F.3d 1104, ‗Lack of money gives a person an interest in
       having more. But so does desire for money, without poverty. A rich man‘s
       greed is as much a motive to steal as a poor man‘s poverty. Proof of either,
       without more, is likely to amount to a great deal of unfair prejudice with
       little probative value.‘‖ (People v. Carrillo (2004) 119 Cal.App.4th 94,
       102.)
Some exceptions apply to the general rule that evidence of a defendant‘s poverty is
inadmissible. ―[E]vidence of the defendant‘s indebtedness or relative poverty may be
admitted without undue prejudice to persons of limited means in order ‗to eliminate other
possible explanations for a defendant‘s sudden wealth after a theft offense.‘‖ (People v.
Cornwell (2005) 37 Cal.4th 50, 96, overruled on other grounds in People v. Doolin,
supra, 45 Cal.4th at p. 421, fn. 22.) Evidence concerning the poverty of a defendant is
also admissible if offered to refute a claim by the defendant that he or she did not commit
the offense because the defendant was not in need of any money. (People v. Koontz,
supra, 27 Cal.4th at p. 1076.)
       None of the aforementioned exceptions apply here. Assuming it was error for the
trial court to admit evidence of the food stamp application, defendant did not suffer any
prejudice. ―[G]enerally, violations of state evidentiary rules do not rise to the level of
federal constitutional error.‖ (People v. Benavides (2005) 35 Cal.4th 69, 91.)
―Accordingly, the proper standard of review is that announced in People v. Watson[,
supra,] 46 Cal.2d 818, 836, and not the stricter beyond-a-reasonable-doubt standard
reserved for errors of constitutional dimension (Chapman v. California (1967) 386 U.S.

                                             19.
18, 24).‖ (People v. Fudge (1994) 7 Cal.4th 1075, 1103.) Under Watson, we must
consider whether, after an examination of the entire cause, it appears reasonably probable
the defendant would have obtained a more favorable outcome had the error not occurred.
(People v. Watson, supra, at p. 836.)
       As we have already determined, despite defendant‘s assertion to the contrary, the
evidence defendant was the driver of the stolen vehicle was strong. Officer Rinder
identified defendant as the driver, having observed defendant behind the wheel as the
officer passed the stolen vehicle during the pursuit. Video from Officer Bohanan‘s dash
cam shows two persons in the vehicle. The first person to exit the vehicle via the
passenger door was wearing all light-colored clothing. The second person to exit via the
passenger door—the driver—was wearing a white T-shirt, black or dark-colored shorts,
and white socks. When Sergeant Blake stopped defendant not far from the scene of the
vehicle stop, defendant was sweating profusely and was carrying a white T-shirt. He was
also wearing black shorts and white socks. Even without considering documents bearing
defendant‘s name found in the stolen vehicle,8 it was not reasonably probable, absent the
error, a more favorable outcome to defendant would have been reached.
       Moreover, the trial court expressly admonished the jury it was not to decide the
case on ―bias, sympathy, prejudice, or public opinion,‖ nor was it to consider evidence
defendant applied for public assistance. Thus, the impact of the evidence was limited by
way of the admonishment. (See People v. Lewis (2001) 25 Cal.4th 610, 637.) Jurors are
presumed to follow the law as given to them by the trial court. (People v. Sanchez (2001)
26 Cal.4th 834, 852.)
       In sum, defendant was not prejudiced by admission of the food stamp application.




       8The food   stamp application was dated April 19, 2011, or about two weeks prior to the
date of the stop and four days prior to the vehicle having been stolen from Mr. Arancibia.


                                              20.
D.     Prosecutor’s Alleged Misstatement of Law
       Next, defendant maintains the prosecutor committed misconduct by taking
―liberties with the evidence‖ and misstating the law regarding the elements of the crime
of receiving stolen property. These errors, he contends, deprived him of the right to a fair
trial. The People initially assert defendant has forfeited this claim for purposes of appeal
by failing to object below. Moreover, the People contend the prosecutor did not misstate
the law. Error, if any, was harmless, particularly where the jury did not reach the
receiving stolen property count.
       1.     Relevant Legal Standards

       ―‗Although counsel have ―broad discretion in discussing the legal and
       factual merits of a case [citation], it is improper to misstate the law.
       [Citation.]‖‘ [Citations.] In particular, it is misconduct for counsel to
       attempt to absolve the prosecution from its prima facie obligation to
       overcome reasonable doubt on all elements. [Citations.]‖ (People v.
       Katzenberger (2009) 178 Cal.App.4th 1260, 1266.)

              ―‗The applicable federal and state standards regarding prosecutorial
       misconduct are well established. ―‗A prosecutor‘s … intemperate behavior
       violates the federal Constitution when it comprises a pattern of conduct so
       ―egregious that it infects the trial with such unfairness as to make the
       conviction a denial of due process.‖‘‖ [Citations.] Conduct by a prosecutor
       that does not render a criminal trial fundamentally unfair is prosecutorial
       misconduct under state law only if it involves ―‗―the use of deceptive or
       reprehensible methods to attempt to persuade either the court or the
       jury.‖‘‖‘ [Citation.]‖ (People v. Navarette (2003) 30 Cal.4th 458, 506.)
Prosecutorial misconduct requires reversal only if it results in prejudice to the defendant.
(People v. Fields (1983) 35 Cal.3d 329, 363.) Where it infringes upon the defendant‘s
constitutional rights, reversal is required unless the reviewing court determines beyond a
reasonable doubt the misconduct did not affect the jury‘s verdict. (People v. Harris
(1989) 47 Cal.3d 1047, 1083.) Prosecutorial misconduct that violates only state law is
cause for reversal when it is reasonably probable a result more favorable to the defendant
would have occurred had the prosecutor refrained from the objectionable conduct.
(People v. Barnett (1998) 17 Cal.4th 1044, 1133.)


                                             21.
      The issue of prosecutorial misconduct is forfeited on appeal if not preserved by
timely objection and request for admonition in the trial court. (People v. Cunningham
(2001) 25 Cal.4th 926, 1000.) If an objection has not been made, ―‗―the point is
reviewable only if an admonition would not have cured the harm caused by the
misconduct‖‘‖ (id. at pp. 1000-1001) or if an objection would have been futile. (People
v. Hill (1998) 17 Cal.4th 800, 820-821, overruled on another ground in Price v. Superior
Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
      2.     The Relevant Proceedings Below
      During closing arguments to the jury, the prosecutor argued as follows:

            ―The third charge is receiving stolen property, this vehicle.
      Defendant is charged in Count 3, receiving stolen property. To prove the
      defendant guilty of this crime, the People must prove that, Number 1, the
      defendant received property that had been stolen, namely 2001 GMC
      Jimmy, SUV. And Number 2, when the defendant received this property
      he knew it had been stolen.

              ―Property is stolen if it was obtained by any kind of theft. To
      receive property means to take possession or control of it. Mere presence
      near or access to the property is not enough. Two or more people can
      possess the property at the same time. Person does not have to actually
      hold or touch something to possess it. It is enough if this person has control
      over it or the right to control over it, either personally [or] through another
      person.

             ―What‘s the evidence on that charge? Number 1, the defendant was
      driving this vehicle. It was apparent that he knew that this vehicle had been
      stolen given his behavior. He fled from the police. And it‘s apparent under
      these circumstances that he knew the vehicle was stolen, given his
      behavior, given his actions. And two, when the defendant received the
      property, he knew the property had been stolen.

             ―Well, he was receiving the property, he was in possession of the
      property, not just for a second or instant, he was in possession of that
      property during the entire chase, obviously. Possession is something that
      can continue. You can possess something for an extended period of time.
      So that‘s the third charge.‖




                                           22.
In his closing argument, defense counsel argued the People had failed to prove defendant
was the driver. He also argued that because defendant was not the driver of the vehicle,
he did not possess the stolen property. In rebuttal, the prosecutor revisited the issue:

              ―Now the attorney for defendant, he says that his client was not the
       driver. Even if we were to find—even if you were to find that the
       defendant was the passenger, he‘s still guilty …. [¶] … [¶]

              ―… I was referring to, when we left off, Count 3. The defendant in
       Count 3 is charged with receiving stolen property in violation of … Section
       496(a). To prove the defendant is guilty of this crime the People must
       prove the defendant received property that had been stolen, and when the
       defendant received the property he knew the property had been stolen. And
       then there is a definition of stolen and a definition of received property.

              ―Now the attorney for the defendant says, well, if the defendant were
       the passenger, he‘s not guilty of any of the first four charges. He‘s not
       guilty of Count 1, 2, 3 or 4. He‘s only guilty of Count 5.

               ―Even if you were to find—the prosecution maintains you should not
       buy this account of what happened in accordance with what the attorney
       told you. But even if you would find that the defendant were the passenger
       he‘s still guilty of Count 3 and here‘s why.

              ―To receive property means, and this is this bottom part, to take
       possession and control of it, mere presence near or access to the property is
       not enough, two or more people can possess the property at the same time.
       Person does not have to actually hold or touch something to possess it, is
       enough if the person has control over it or the right to control if either
       personally or through another person.

               Well, isn‘t it very apparent from the evidence that both of these
       defendants, based upon their actions, they knew they were in a stolen
       vehicle, that‘s why they bolted this way. They both were—had a certain
       activity they were up to.…

               ―And the passenger, if he were on trial, the passenger would be
       guilty of receiving stolen property. Why? Because the passenger is also in
       possession of this vehicle. The passenger has control of this vehicle and the
       right to control it, either personally or through another person. The
       passenger can say, stop this vehicle, let me drive, stop this vehicle I want to
       drive. Let me take over driving.‖




                                             23.
Finally, as to this charge in particular, the prosecutor asked the jury to focus ―solely on
the evidence then. Look for yourself at these burglarious tools and you decide on the
basis of the evidence what was going on.‖
       3.     Analysis
       Assuming without deciding that the issue was not forfeited for purposes of appeal,
and even assuming the prosecutor misstated the law, we find no prejudicial error.
       Significantly here, the jury was instructed to reach a verdict on the theft (Veh.
Code, § 10851) charge first.9 It did so, signing only the verdict forms pertaining to
counts 1, 2, 4 and 5. The jury did not convict defendant of receiving stolen property. It
convicted him on all other counts—all those requiring the jury to find the defendant was
the driver of the stolen vehicle. Thus, it was not necessary for the jury to consider the
receiving stolen property charge. (See People v. Ceja (2010) 49 Cal.4th 1, 10.)
Therefore, whether or not the law regarding the elements of receiving stolen property was
accurately stated, any error is plainly harmless.
E.     Ineffective Assistance of Counsel
       As an alternative to the foregoing argument, defendant complains that if this court
determines no error occurred as the result of the prosecutor‘s misstatement of the law,
trial counsel was ineffective for failing to make a timely objection thereto. The People
assert that because trial counsel could have reasonably concluded the prosecutor did not
misstate the law, any objection would have been unsuccessful. Additionally, the People
contend, had any objection been successful, it is not reasonably probable defendant
would have received a more favorable outcome.


       9Specifically, the jury was instructed as follows: ―The defendant is charged in Count 1
with Unlawful Driving of a Vehicle and in Count 3 with Receiving Stolen Property. You must
first decide whether the defendant is guilty of Unlawful Driving of a Vehicle. If you find the
defendant guilty of Unlawful Driving of a Vehicle, you must return the verdict form for
Receiving Stolen Property unsigned. If you find the defendant not guilty of Unlawful Driving of
a Vehicle you must then decide whether the defendant is guilty of Receiving Stolen Property.‖
(CALCRIM No. 3516.)


                                              24.
          As previously indicated, in order to prevail on an ineffective assistance of counsel
claim, a defendant must establish two things: (1) counsel‘s performance fell below an
objective standard of reasonableness, and (2) prejudice occurred as a result. (Strickland
v. Washington, supra, 466 U.S. at p. 687; People v. Hernandez, supra, 53 Cal.4th at p.
1105; People v. Bradley, supra, 208 Cal.App.4th at pp. 86–87.) The Strickland court
explained prejudice is ―a reasonable probability that, but for counsel‘s unprofessional
errors, the result of the proceeding would have been different.‖ (Strickland v.
Washington, supra, at p. 694.) Further, the high court stated that a reasonable probability
is ―a probability sufficient to undermine confidence in the outcome‖ of the proceeding.
(Ibid.)
          As the previous excerpts from closing argument concerning the receiving stolen
property count make clear (see pt. D.2., ante), the alleged misstatements by the
prosecutor came in rebuttal. Read in context, it is plain the prosecutor was responding to
defense counsel‘s argument that the People had failed to prove defendant was the driver.
The prosecutor then read directly from the jury instruction pertaining to receiving stolen
property and argued that even were the jury to accept that defendant was the passenger,
the passenger could still be convicted of receiving stolen property. We do not view this,
in context, to be a misstatement of the law. Further, CALCRIM No. 1750 plainly states,
in pertinent part, that ―[m]ere presence near or access to the property is not enough‖ to
convict an individual of receiving stolen property.
          Moreover, five hours of deliberation is not an extraordinarily lengthy period of
time after four days of trial and closing arguments. The record, including the various jury
questions and verdicts, indicates the jury took great care to examine the evidence and the
law before reaching its verdicts in the face of the parties‘ debate over numerous facts and
charges. It does not demonstrate the jury would have found defendant not guilty of
receiving stolen property. (See, e.g., People v. Avena (1996) 13 Cal.4th 394, 435-436
[rejecting assumption that lengthy penalty deliberations indicated jury had difficulty
reaching a decision].)

                                               25.
       Even were we to find defense counsel erred by failing to object to the prosecutor‘s
rebuttal argument, considering the second prong of the Strickland analysis, we find it is
not reasonably probable the result of this proceeding would have been different but for
the error. (Strickland v. Washington, supra, 466 U.S. at p. 694.) Again, despite
defendant repeatedly assigning the evidence that he was the driver of the vehicle little
value, the record demonstrates the evidence was quite compelling. As noted previously,
the jury convicted defendant of four counts, three of which expressly required finding
that defendant was the driver of the stolen vehicle. The jury did not buy defendant‘s
argument that he was merely a passenger in the vehicle. Defendant has not met his
burden.
F.     Alternative Sentencing Pursuant to Section 1170.9
       Defendant maintains the trial court erred when it found he was not eligible for
sentencing pursuant to section 1170.9 before it denied probation. More particularly,
defendant contends the trial court ―relied only on the assessment from probation,‖ and
thus failed to make its own findings regarding defendant‘s eligibility for alternative
sentencing. The People contend the trial court did not err.
       1.     Relevant Procedural Background
       On October 18, 2011, the trial court called the matter as follows:

               ―[THE COURT:] This is time for sentencing, and I had thought that
       this was going to be an 1170(h) commitment, but it appears that violation of
       Vehicle Code section 2800.2, reckless evading a police officer, is a felony,
       is one of the exempt felonies. So this needs to go back to probation for a
       full report.

               ―[DEFENSE COUNSEL]: Judge, could the minute order also note that
       I think [defendant] may qualify for sentencing under 1170.9, it‘s a
       provision that pertains to Veterans. And part of that provision requires an
       inquiry whether [defendant] is, in fact, a Veteran. I think probation would
       be helpful in making—helping the Court make that determination. It‘s my
       understand, [defendant] has told me, that he‘s a Gulf War Veteran and he‘s
       served overseas in Iraq.

              ―THE COURT: What program, 1170.9? Is there—did he suffer from
       an injury in the service?

                                            26.
              ―[DEFENSE COUNSEL]: No, but [defendant] has a substance abuse
       problem. I don‘t know [defendant] well enough to know whether he has
       PTSD from service. Whether the substance abuse is related to his service
       in the military. [¶] I do know that he has prior arrest for methamphetamine.
       I believe he has a prior conviction for methamphetamine. I think one—I
       believe one of the probation cases that is before the Court for sentencing is
       [a Health and Safety Code section] 11377 charge.

              ―THE COURT: No. You mean the two VOP cases? Two VOP cases
       are dirk and dagger cases. Each of them was a dirk and dagger.

              ―[DEFENSE COUNSEL]: Both of them are?

              ―THE COURT: Both of them.

              ―THE CLERK: One of them is a drug case, [Health and Safety Code
       section] 12560.

             ―THE COURT: Okay. Yeah. Well, he pled to possession of dirk and
       dagger. He had possession of meth in one of them. He‘s got two
       possession of prohibited weapons, two dirk and dagger convictions and one
       meth. I don‘t see enough evidence for substance abuse.

               ―[DEFENSE COUNSEL]: I think maybe that‘s just because right now
       all that‘s before the Court are the pending VOP files. For instance, the
       Court doesn‘t have a copy of [defendant]‘s RAP Sheet. And also probation
       hasn‘t met with [defendant] to get his personal history. That‘s why I
       thought it might be helpful.

              ―THE COURT: I‘ll have them explore it in the probation report.

              ―[DEFENSE COUNSEL]: Thank you.

              ―THE COURT: Matter is referred to probation for full probation
       report because it appears that the conviction of Vehicle Code 2800.2(a) is
       an offense which requires a prison commitment.

              ―In the probation report they should evaluate and make a
       recommendation as to whether [defendant] may have committed the current
       offenses as a result of a substance abuse problem and whether he would
       benefit from any type of treatment provided under … 1170.9.‖
       On November 29, 2011, following receipt of the probation officer‘s report, the
court began by noting ―[p]robation had done some research and analysis of those facts
and finds that he is not eligible for treatment under … 1170.9 for a disability or substance

                                            27.
abuse problem arising out of his military service.‖ The court then stated it found
defendant unsuitable for probation. When the trial court began to address aggravating
factors, defense counsel interrupted:

               ―[DEFENSE COUNSEL]: Judge, I‘m sorry. I thought when you asked
       if we were prepared to proceed to sentencing I thought you were going to
       invite us to speak.

             ―THE COURT: Oh, sure, I‘m sorry. Sure. Go ahead, [counsel].
       [¶] … [¶]

              ―[DEFENSE COUNSEL]: With respect to the rest of the probation
       report I‘d ask the Court to take into consideration [defendant]‘s prior
       Honorable service in the military, that is detailed to some extent in the
       probation report.

              ―I‘d also ask the Court to consider that [defendant] has a long
       standing substance abuse problem with methamphetamine and other
       substances, that is corroborated by his statements to probation. It‘s also
       corroborated by his prior convictions. I think those played a significant—
       his substance abuse problem played a significant role in the crime that was
       committed in this particular case.‖
After hearing from defendant‘s mother, and without any further comment to its findings
regarding the request pursuant to section 1170.9, the trial court sentenced defendant to
five years in prison.
       2.     The Probation Report
       The probation report filed November 29, 2011, included a summary of defendant‘s
adult record as maintained by the California Department of Justice. That information
indicates that between 1989 and 2010, defendant was arrested on nine occasions. More
particularly, in 1989 and on two occasions in 2007, defendant was arrested for theft
related offenses. In 2006 and again in 2007, defendant was arrested for narcotics related
offenses. In 2008, he was arrested for driving under the influence and related traffic
offenses. In 2009, defendant was arrested for resisting arrest, disorderly conduct, and
―criminal street gang.‖ In 2010, defendant was arrested for possession of a concealed
weapon and possession of a controlled substance and narcotics paraphernalia. The
probation report also notes ―defendant‘s criminal record also includes charges for
                                            28.
carrying a loaded firearm, transportation of narcotics, spousal abuse, vehicle theft,
unlawful registration, and passing fictitious checks.‖
       Included as personal history, the probation report details the following:

               ―According to the defendant, he stated he went into the United States
       Navy in 1990, and was honorably discharged (DD214) in 1992. He was
       stationed in San Diego and then deployed for nine months to Bahrain. The
       defendant failed to identify his occupation in the Navy and did not relay to
       this officer any specific experience or event that may have caused his Post
       Traumatic Stress Disorder. Bahrain is an island in the Persian Gulf just off
       the Saudi Arabian coastline. This officer learned that the Bahrain base
       served as a western air base during the Persian Gulf War and continues to
       serve as the base of the United States Fifth fleet, which patrols the Gulf
       today. [¶] … [¶]

               ―This officer spoke with the defendant extensively about his
       substance abuse history. The defendant started drinking alcohol at the age
       of eight (8) years old. The last time he drank alcohol was the day before
       his arrest. The defendant stated he only drinks occasionally, but did include
       the statement that at one point he was drinking on a daily basis. The
       defendant started smoking marijuana when he was twelve (12) years old.
       He last smoked marijuana the week of his arrest. The defendant stated he
       smokes occasionally and uses marijuana for relaxation or to alleviate pain.
       The defendant stated he started using cocaine when he was twelve (12)
       years old and used until approximately ten years ago. The defendant
       started using methamphetamine when he was seventeen (17) years old and
       he last used methamphetamine the day of his arrest. He stated he uses
       methamphetamine when he is feeling ‗stressed‘ or he is fighting with his
       mother. The defendant admitted he had also experimented during his high
       school years with ‗mushrooms‘ and he liked to do LSD every 4th of July.‖
       With particular regard to the probation department‘s evaluation regarding
defendant‘s suitability for alternative sentencing pursuant to section 1170.9, the following
was noted:

               ―The defendant alleges the offenses he has committed were a result
       of his substance abuse problems which arose from Post Traumatic Stress
       Disorder (PTSD) after his military service. The defendant brought up the
       issue of [section] 1170.9 …, which indicates that if a person convicted of a
       crime for which he would otherwise be incarcerated, is found to have
       committed that offense as a result of sexual trauma, traumatic brain injury,
       post traumatic stress disorder, substance abuse or mental health problems


                                            29.
       stemming from service in the United States Military, the court shall send
       that person for appropriate treatment instead of incarceration.

              ―After a thorough investigation into the defendant‘s personal history,
       and an exhaustive evaluation of the Persian Gulf War during the period of
       1990-1992, this officer believes that the defendant‘s substance abuse
       history arose quite some time before his military service and his initial
       foray into criminal behavior also started before he enlisted in the military.
       [¶] … [¶]

              ―This officer appreciates the defendant would like to participate in a
       drug treatment program and this officer personally believe[s] he needs an
       intensive treatment program due to the fact he started ingesting illegal
       substances at the age of eight (8) years old. The defendant has been given
       several opportunities to participate in substance abuse treatment on his
       other grants of probation and has failed to take advantage of the
       opportunity.

              ―Due to the defendant‘s charges, the defendant is ineligible for
       probation. This officer also does not believe the defendant is eligible under
       [section] 1170.9 … to be sent to a Veterans Treatment Center. Due to the
       defendant‘s charge of [section] 2800.2(a) of the California Vehicle Code,
       the defendant is ineligible to be incarcerated at the local level.

             ―Therefore, it is recommended the court order the defendant to the
       Department of Corrections and Rehabilitation for a term specified by law.
       Time credits for this matter are attached for the court‘s review.‖
       3.     Analysis
       Section 1170.9 was enacted in 1982 to ―offer[] the trial judge a meaningful
alternative to either probation or imprisonment in the case of Vietnam veterans convicted
of a felony who might otherwise be committed to state prison.‖ (People v. Bruhn (1989)
210 Cal.App.3d 1195, 1198.) It authorized the court, in an appropriate case, to ―commit
such a defendant for a time period equal to the prison term to a federal facility for
treatment for substance abuse or psychological problems resulting from Vietnam combat
service.‖ (Ibid.)
       In 2006, the Legislature found section 1170.9 was ―not sufficient to cover
returning Iraq and Afghanistan veterans,‖ and therefore amended the section ―to extend
the opportunity for alternative sentencing to all combat veterans, regardless of where or

                                             30.
when those veterans served our country, when those veterans are found by the court to be
suffering from‖ posttraumatic stress disorder (PTSD). (Stats. 2006, ch. 788, § 1(d), (e).)
Subdivision (a) of the 2006 version required a mental health assessment of any qualifying
veteran convicted of a criminal offense who alleges he or she committed the offense as a
result of psychological problems ―stemming from service in a combat theater in the
United States military.‖10 Subdivision (b) authorized the court to order a defendant who
suffers from PTSD, substance abuse or psychological problems as a result of service in a
combat theater and who is ―otherwise eligible for probation‖ and actually placed on
probation, ―into a local, state, federal, or private nonprofit treatment program for a period
not to exceed that which the defendant would have served in state prison or county jail,
provided the defendant agrees to participate in the program and the court determines that
an appropriate treatment program exists.‖11
       Effective January 1, 2011, subdivision (a) of section 1170.9 was amended to
extend the availability of a mental health assessment to all military veterans regardless of
whether or not they served in a combat theater.12 (Subd. (b) of § 1170.9 was unchanged

       10Former subdivision   (a) of section 1170.9 provided in full: ―In the case of any person
convicted of a criminal offense who would otherwise be sentenced to county jail or state prison
and who alleges that he or she committed the offense as a result of post-traumatic stress disorder,
substance abuse, or psychological problems stemming from service in a combat theater in the
United States military, the court shall, prior to sentencing, hold a hearing to determine whether
the defendant was a member of the military forces of the United States who served in combat
and shall assess whether the defendant suffers from post-traumatic stress disorder, substance
abuse, or psychological problems as a result of that service.‖ (Italics added.)
       11Subdivision   (b) of section 1170.9 provides in full: ―If the court concludes that a
defendant convicted of a criminal offense is a person described in subdivision (a), and if the
defendant is otherwise eligible for probation and the court places the defendant on probation, the
court may order the defendant into a local, state, federal, or private nonprofit treatment program
for a period not to exceed that which the defendant would have served in state prison or county
jail, provided the defendant agrees to participate in the program and the court determines that an
appropriate treatment program exists.‖
       12Subdivision    (a) of section 1170.9 now provides: ―In the case of any person convicted
of a criminal offense who could otherwise be sentenced to county jail or state prison and who
alleges that he or she committed the offense as a result of sexual trauma, traumatic brain injury,
post-traumatic stress disorder, substance abuse, or mental health problems stemming from
service in the United States military, the court shall, prior to sentencing, make a determination as

                                                31.
by the 2011 amendment.) Because defendant committed his crime in 2011, the
requirement pertaining to service in a combat theater is not applicable to him.13
       The mandatory nature of subdivision (a) of section 1170.9 reflects the importance
our society places on protecting these individuals. The court must seriously consider a
defendant‘s allegations that he or she may qualify for the benefits provided by section
1170.9 and should make every attempt to respect the related process. Even if probation is
ultimately denied, an assessment conducted pursuant to subdivision (a) will assist the
court in its sentencing determinations.
       Disregarding the requirement of service in a combat theater in light of the 2011
amendment to section 1170.9,

       ―the following conditions must be satisfied: (1) the defendant must have
       served … [as] a member of the United States Armed Forces; (2) the
       defendant must suffer from PTSD, substance abuse, or psychological
       problems as a result of that service; (3) the defendant must be eligible for
       probation; (4) the court must place the defendant on probation; (5) there
       must be an appropriate local, state, federal, or private nonprofit program
       that can treat the defendant; and (6) the defendant must agree to participate
       in that program. If those requisites have been met, the trial court then has
       discretion to order the defendant into the treatment program for a period not
       to exceed that which he would have served in prison. [Citation.]‖ (People
       v. Ferguson (2011) 194 Cal.App.4th 1070, 1089.)
       In this case, defendant did not establish he met the second, third and fourth
conditions. Further, despite defendant‘s assertion to the contrary, the court seriously
considered defendant‘s allegation of qualification. It ordered a full probation report be
prepared and expressly required a recommendation regarding alternative sentencing
pursuant to section 1170.9. That report contained defendant‘s criminal history and

to whether the defendant was, or currently is, a member of the United States military and
whether the defendant may be suffering from sexual trauma, traumatic brain injury, post-
traumatic stress disorder, substance abuse, or mental health problems as a result of that service.
The court may request, through existing resources, an assessment to aid in that determination.‖
       13Nevertheless,  the probation report addresses this issue and concluded that ―Bahrain was
used only for ‗war games‘ or training personnel for combat. Bahrain never saw any ground
fighting during the 1990-1992 time spans.‖


                                                32.
addressed the alternative sentencing issue. The trial court reviewed and considered
probation‘s recommendation regarding section 1170.9 and concurred, finding defendant
not eligible for alternative sentencing. Additionally, in denying probation, the court
noted defendant‘s ―record and … past performance on probation‖ were not good. It
determined defendant ―was not a good candidate for probation.‖14 The court then
considered defense counsel‘s argument and the statement from defendant‘s mother before
stating: ―The Court reiterates its reasons for selecting Count 2, violation of Vehicle Code
Section 2800.2, the upper term of three years for the reasons previously stated.‖ (Italics
added.)
       Moreover, when defendant‘s mother interrupted the pronouncement of sentence to
ask if it was possible her son could be ordered to a Delancy Street type facility, the court
stated the following:

       ―No, it‘s not. It‘s not an option that‘s available to your son. That‘s not an
       option that‘s available to your son at this point. Okay. This is—it‘s the
       Court‘s obligation to impose the appropriate sentence. He‘s been given
       plenty of chances, plenty of chances.‖
       In sum, the trial court did not err. It found there was no evidence of PTSD by
adopting the conclusion of the probation officer who noted defendant neither claimed to
have endured an event that caused PTSD, nor did he identify any job or position he may
have held during his military service that would explain PTSD. It also found there was
no evidence of substance abuse arising from defendant‘s service in the military, agreeing
with the probation report that noted defendant‘s substance abuse issues arose well before
his military service as evidenced by his personal and criminal histories. We disagree


       14―The decision    whether to grant or deny probation is reviewed under the abuse of
discretion standard. [Citations.] ‗An order denying probation will not be reversed in the absence
of a clear abuse of discretion. [Citation.] In reviewing the matter on appeal, a trial court is
presumed to have acted to achieve legitimate sentencing objectives in the absence of a clear
showing the sentencing decision was irrational or arbitrary. [Citations.]‘ [Citation.]‖ (People v.
Ferguson, supra, 194 Cal.App.4th at p. 1091.) We note the trial court‘s denial of probation in
this case was neither irrational nor arbitrary. There was no abuse of its discretion.


                                               33.
with defendant‘s assertion that the trial court relied only on the probation officer‘s report.
It is clear from the record that the court considered the probation report, defense
counsel‘s argument, and the statements proffered by defendant‘s mother. No error
occurred.
                                      DISPOSITION
       The judgment is affirmed.

                                                          ___________________________
                                                                              PEÑA, J.
WE CONCUR:


 ________________________________
LEVY, Acting P.J.


 ________________________________
CORNELL, J.




                                             34.
