Filed 6/3/15 P. v. Dawson CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B253047

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA382515)
         v.

LEVELL DAWSON,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Los Angeles County.
Frederick N. Wapner, Judge. Modified and affirmed with directions.


         John J. Uribe, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Gerald Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and
William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
                  ___________________________________________________
       A jury convicted defendant Levell Dawson of driving under the influence of
alcohol (Veh. Code, § 23152, subd. (a))1 (count 1); two counts of evading an officer with
willful disregard (§ 2800.2, subd. (a)) (counts 2, 5); driving when privilege suspended or
revoked (§ 14601.2, subd. (a)) (count 3); and possession for sale of cocaine base (Health
& Saf. Code, § 11351.5) (count 4). In count 1, the jury found defendant willfully refused
a peace officer’s request to submit to, and willfully failed to complete, a chemical test
pursuant to section 23612. In counts 4 and 5, the jury found, and defendant admitted, that
at the time he committed the offenses, he was on bail or on his own recognizance.
Defendant admitted having suffered a prior conviction for driving under the influence and
four prior prison terms.
       In count 4, the trial court sentenced defendant to the high term of five years for
possession for sale, three years for the prior conviction, and two years for the out-on-bail
allegation, for a total sentence of 10 years in that count. The trial court imposed
consecutive sentences of one-third the midterm of two years (eight months) in each of
counts 1, 2, and 5. The court imposed a consecutive term of six months in county jail in
count 3. The court imposed three consecutive years for three of defendant’s
enhancements for prior prison terms. Defendant’s total sentence is 15 years and six
months.
       Defendant appeals on the grounds that: (1) the trial court failed to instruct on a
lesser included offense in counts 2 and 5; (2) the trial court abused its discretion in
denying defendant’s oral new trial motion; (3) the state destroyed potentially exculpatory
evidence in violation of defendant’s due process right; (4) the trial court violated Penal
Code section 654 by imposing separate punishment in counts 1 through 3; and (5)
defendant is entitled to additional conduct credits.




1      All further references to statutes are to the Vehicle Code unless stated otherwise.
                                              2
                                          FACTS
Prosecution Evidence
       March 25, 2011 Incident (Counts 1 Through 3)
       On March 25, 2011, at approximately 8:15 p.m., Officers Jonathan Miller and
Javier Hernandez of the Los Angeles Police Department (LAPD) were on patrol in the
Wilshire district of Los Angeles when they saw a black GMC Yukon being driven
without its lights on. Officer Hernandez began to follow the Yukon. The officers
observed the Yukon’s driver, later identified as defendant, commit numerous traffic
violations, and they formed the opinion he might be driving under the influence. The
officers activated the patrol car’s sirens and lights, and defendant accelerated. It was a
residential area, and there were some people and other cars on the streets. Defendant
drove into oncoming traffic lanes to run through a red light.
       After driving through several stop signs, defendant eventually stopped his car and
was told to get out of his vehicle. Officer Miller estimated that the pursuit lasted
approximately five to 10 minutes. Officer Miller observed that defendant had an
unsteady gait, bloodshot and watery eyes, and slightly slurred speech. Officer Hernandez
saw that defendant’s face was flushed. Both officers could smell the odor of alcohol
emanating from defendant. When asked if he had been drinking, defendant said he had
drunk two beers.
       Officer Hernandez had defendant perform field sobriety tests (FST’s). Based on
defendant’s performance, his objective physical symptoms, and his conduct while
driving, Officers Miller and Hernandez believed defendant was under the influence of
alcohol and unable to safely operate a motor vehicle.
       At the police station, Officer Miller attempted to have defendant undergo a breath
test with an ECIR machine to determine his blood-alcohol level. Officer Miller
demonstrated for defendant how to blow into the machine. Defendant did not blow into
the machine long enough for the machine to produce a proper reading. Officer Miller
reinstructed defendant and demonstrated how to take a large breath and blow it out until
the machine beeps, indicating that there is a reading. Officer Hernandez noticed that

                                              3
defendant did not wrap his lips around the tube as instructed and opened his mouth to
allow air out. Officers Miller and Hernandez believed defendant was trying to not blow
into the machine. Out of approximately seven attempts, only one reading was obtained,
which stated that defendant’s level was 0.07.2 Two samples are required to complete the
test. The officers consulted a supervisor from a traffic division who oversaw the
instructions and defendant’s actions. The traffic sergeant advised the officers that
defendant was refusing to blow into the machine. Defendant was informed that if he did
not blow properly into the machine it would be labeled a refusal, and he was given the
standard admonition regarding the consequences of refusing or failing to complete a test.
Defendant refused to take a blood or urine test instead.
       Lisa Smith, an LAPD criminalist, testified regarding the negative effects of
alcohol on the body, and the mental and physical signs of impairment. She testified that
for the purpose of driving, impairment can begin with a blood-alcohol level as low as .05,
and at .08 everyone is impaired. Smith estimated that a man of defendant’s height and
weight who measured .07 approximately two hours after driving had an estimated blood
alcohol level of .08, or perhaps as high as .12, at the time of driving. Based on a
hypothetical describing defendant’s physique, his actions while driving and during the
FST’s, and all of the available circumstances, Smith was of the opinion that the
information collectively was consistent with someone who was under the influence of
alcohol and impaired for the purposes of safely driving a motor vehicle.
       March 31, 2011 Incident (Counts 4-5)
       On March 31, 2011, at approximately 10:30 p.m., Officer Phil Rodriguez was on
patrol near the intersection of Victoria Avenue and 30th Street in Los Angeles. Officer
Rodriguez received information about possible criminal activity with respect to a late
1990’s gold Cadillac, and he was given a partial license plate number. Officer Rodriguez
and his partner saw the vehicle stopped on the street and attempted to conduct an
investigation. The officers got out of the patrol car, and Officer Rodriguez ordered the

2      A criminalist testified that the machine’s documentation showed the person blew
into the instrument 13 times and only one of the breath volumes was acceptable.
                                             4
driver, identified as defendant, to turn off the engine. Defendant “revved” his vehicle and
fled at a high rate of speed. The officers got back in the patrol car and tried to catch up
with defendant’s car.
       As he fled through the residential area, defendant committed numerous traffic
violations before turning right on Buckingham Street. As the vehicle turned, an object
was thrown from the driver’s side. Another object was thrown from the driver’s side as
defendant turned again. Defendant then abruptly pulled over onto the sidewalk.
Assisting officers later found a baggie containing a green leafy substance resembling
marijuana near Buckingham Street and 28th Street. Officer Rodriguez’s partner found a
baggie near Buckingham Street and 30th Street containing 13 individually wrapped
pieces of what Officer Rodriguez believed was cocaine base. Tests later confirmed that
the packages contained marijuana and cocaine base.
       A passenger in defendant’s vehicle, a Mr. Samuels, was taken into custody and
later released at the scene. After recovering the second baggie of drugs, Officer
Rodriguez searched defendant’s car. A box of empty baggies was found inside. When
searching defendant’s person, officers found $25 in one dollar bills and a cell phone.
Officer Rodriguez saw a text message to defendant in reference to buying a $40 piece of
narcotics. The message said, “Please come before it’s time for me to leave,” and “Lady’s
back for another 40 p.” Officer Rodriguez was of the opinion that defendant possessed
the narcotics for sale because of the amount, the packaging, the absence of paraphernalia,
the cell phone order, defendant’s tactics while driving, and the area of the pursuit, which
was a “problem narcotics location.”
       The cell phone eventually went to the property division and was later destroyed.
Officer Rodriguez testified that he was told the case was adjudicated, or perhaps not filed,
and the narcotics property officer was given clearance to release it to the defendant.
Since defendant did not pick it up, it was destroyed several months later.
       During Officer Rodriguez’s testimony, the trial court took judicial notice of the
fact that defendant had posted bail on March 26, 2011, with respect to the March 25,
2011 incident.

                                              5
Defense Evidence
       Defendant testified that when he was arrested on March 31, 2011, a man named
Ray was in his car with him. He had met Ray on Virginia Road and 30th Street about
five minutes earlier. Ray was a dealer, and defendant had telephoned Ray earlier about
purchasing cocaine from him. Defendant waited for Ray in his girlfriend’s car, and Ray
drove up and parked his BMW behind him. Ray got in defendant’s car, and defendant
attempted to make his purchase. When the police showed up, defendant panicked and
took off. Ray threw something out of the car at Buckingham and 30th Street. Ray was in
the passenger seat, and he “flicked” the item right past defendant and out the driver’s side
window. Defendant did not know what the object was, but he believed it had to be some
type of drugs.
       Defendant threw the marijuana out of the car on 28th Street. Defendant admitted
he ran several stop signs while trying to evade the police. Defendant did not know where
the cell phone with the text message came from, and the sandwich bags found inside his
car were for sandwiches. He had a cell phone that night, but he got it back when he
posted bail and was released after four hours. The text messages were not on his cell
phone. Defendant said he still had the cell phone he recovered from the police station.
       Upon cross-examination, defendant admitted having suffered felony convictions in
2003, 2007, and 2009. He said he understood that going through a stop sign is
dangerous. When asked if he understood he could hurt someone, he replied that he was
not going that fast. He eventually admitted he could hurt someone.
       Thomas Maeweather, a former LAPD officer who is a licensed investigator,
testified that a police officer who found out about an error in his police report would
submit a follow-up report.3 Maeweather testified that 30 minutes at the scene of a traffic
stop might not be enough time to resolve the issue of whether one of the car’s occupants
should be released.

3      Officer Rodriguez testified on cross-examination regarding an error in his police
report and another on the face sheet. Officer Miller testified on cross-examination
regarding an error in the face sheet of his report.
                                             6
Prosecution Rebuttal
       On March 31, 2011, Officer Ruben Chavez was assisting in the investigation of
defendant’s evading and possession for sale arrest. He searched defendant and found a
cell phone and currency on his person. Officer Chavez looked at the phone and saw a
text message stating something about a lady waiting and looking to buy a 40 p, which is
street vernacular for “a 40 piece of rock cocaine.” Officer Chavez knew of no other
phones found on defendant, in the car, or on the passenger. Officer Chavez showed the
messages to Officer Rodriguez and then returned the cell phone to defendant’s pocket.
       Officer Chavez saw that the passenger appeared to be a transient. His clothes
were torn and dirty, and he had a strong body odor. The passenger had no drugs or cell
phones. After officers spoke with him and searched him and the car, he was released.
                                        DISCUSSION
I. Absence of Lesser Included Offense Instruction
       A. Defendant’s Argument
       Defendant contends the trial court erred by failing to instruct sua sponte on the
lesser included offense of felony evasion of a peace officer, i.e., misdemeanor evasion of
a peace officer under section 2800.1.
       B. Proceedings Below
       Defendant was charged with felony evasion of a peace officer in relation to both of
the incidents described ante. The trial court instructed the jury with CALCRIM No.
2181, which defines the crime of felony evading a peace officer.4


4       CALCRIM No. 2181 was read as follows: “The defendant is charged in counts 2
and 5 with evading peace officers with a wanton disregard for safety in violation of
Vehicle Code section 2800.2. To prove the defendant is guilty of this crime, the People
must prove that: one, a peace officer driving a motor vehicle was pursuing the defendant;
two, the defendant who was also driving a motor vehicle, willfully fled from or tried to
elude the peace officer, intending to evade the officer; three, during the pursuit, the
defendant drove with willful or wanton disregard for the safety of persons or property;
four, all of the following are true: (a), there was at least one lighted red lamp visible from
the front of the peace officer’s vehicle; (b) the defendant either saw or reasonably should
have seen the lamp; (c) The peace officer’s vehicle was sounding a siren as reasonably
                                              7
       C. Relevant Authority
       The trial court has a duty to instruct sua sponte on general principles of law that
are relevant to the issues raised by the evidence. (People v. Koontz (2002) 27 Cal.4th
1041, 1085; People v. Ervin (2000) 22 Cal.4th 48, 90.) The determination of whether the
trial court has a duty to give a particular jury instruction sua sponte is reviewed de novo.
(People v. Licas (2007) 41 Cal.4th 362, 366 (Licas).)
       A trial court must instruct the jury sua sponte on a lesser included offense only if
there is substantial evidence of the lesser offense. (Licas, supra, 41 Cal.4th at p. 366.)
““‘Substantial evidence” in this context is “‘evidence from which a jury composed of
reasonable [persons] could . . . conclude[]’” that the lesser offense, but not the greater,
was committed. [Citations.]’” (People v. Moye (2009) 47 Cal.4th 537, 553; People v.
Breverman (1998) 19 Cal.4th 142, 162 (Breverman).) It is not simply “‘“the existence of
‘any evidence, no matter how weak’ [that will] justify instructions on a lesser included
offense.”’” (People v. Sattiewhite (2014) 59 Cal.4th 446, 477.) The court must instruct
on a lesser included offense “‘“‘when the evidence raises a question as to whether all of
the elements of the charged offense were present [citation], but not when there is no
evidence that the offense was less than that charged. [Citations.]’”’” (People v. Banks
(2014) 59 Cal.4th 1113, 1159.)




necessary; (d) The peace officer’s vehicle was . . . distinctively marked; and, (e) the
peace officer was wearing a distinctive uniform. A person employed as a police officer
by the Los Angeles Police De[partment] is a peace officer. Someone commits an act
when he does it willfully or on purpose. It is not required that he intend to break the law,
hurt someone else, or gain any advantage. A person acts with wanton disregard for safety
when he is aware that his actions present a substantial and unjustifiable risk of harm; two,
. . . that he intentionally ignores that risk. The person does not, however, have to intend
to cause damage. A vehicle is distinctively marked if it has features that are reasonably
noticeable to other drivers, including a red lamp, siren, and at least one other feature that
makes it look different from other vehicles that are not used for law enforcement
purposes. A distinctive uniform means clothing adopted by a law enforcement agency to
identify or distinguish members of its force. The uniform does not have to be complete
or of any particular level of formality. However, a badge without more, is not enough.”
                                              8
       D. No Sua Sponte Duty
       Section 2800.1 provides in pertinent part that “[a]ny person who, while operating a
motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a
pursuing peace officer’s motor vehicle is guilty of a misdemeanor . . . .” Section 2800.2
is violated when “a person 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, . . .” Thus, section 2800.1 is clearly a lesser included
offense of section 2800.2. (People v. Pendleton (1979) 25 Cal.3d 371, 382 [a lesser
included offense is one that is necessarily committed when another, greater offense is
committed].)
       Defendant contends there was no competent and admissible evidence as to the
location or proximity of any people or property when he fled from the police on
March 25, 2011, or even that there were people around. He points out that when he ran
the red light, the cars at the intersection were already stopped at the light, and there was
no mention of any near misses or crashes. He adds that the pursuit lasted less than 10
minutes, and Officer Miller admitted on cross-examination that defendant was not
detained for felony evading but rather for misdemeanor evading.
       As for the March 31, 2011 incident, defendant testified that he was not “going that
fast.” He said he slowed down for the turns at the stop signs and looked before turning,
which was corroborated by Officer Rodriguez. There was no mention of any people or
vehicles on the road during the pursuit. If the jury believed defendant’s testimony, they
could reasonably have concluded defendant did not drive in a willful or wanton disregard
for the safety of other persons and property had they been given the misdemeanor
instruction.
       We disagree with defendant and conclude there was no evidence showing that the
lesser, but not the greater offense was committed. In the first incident, defendant was
driving in the dark without lights. He drove through a stop sign without slowing down at
an intersection where cross traffic had no stop sign. Officer Miller noticed that the car
was weaving, and defendant was having difficulty staying in his lane. Defendant then

                                              9
went through two more stop signs in succession. When the officers turned on their lights
and sirens, defendant not only did not stop, he accelerated—even though he was driving
through a residential area. On a major street, Washington Boulevard, he swerved around
cars stopped at a red light and entered the oncoming traffic lane to go around the cars and
run through the red light. He continued fleeing police by failing to stop for another stop
sign. Defendant finally stopped his car when he was pursued by two patrol cars and a
helicopter on Venice Boulevard, another major road. Officer Miller testified that there
was traffic on Washington Boulevard and there were other people on the streets. We
believe that driving without lights, running through four stop signs and a red light after
accelerating in both a residential area and a busy thoroughfare paints a clear picture of
willful and wanton disregard for safety.
       In the second incident, defendant “revved” his engine and fled at a high rate of
speed. It was nighttime, and Officer Rodriguez testified that defendant was going at
twice the speed limit of the residential neighborhood. Defendant passed “several” stop
signs without stopping before turning, at which time he ignored another stop sign. He
ignored yet another stop sign when he turned again. Only after both parcels of narcotics
had been thrown out the window did defendant stop his “reckless” driving and pull over.
       Apart from the obvious dangers of speeding through streets at night while ignoring
traffic signs and signals, under section 2800.2, subdivision (b), as pertinent here, “willful
and wanton disregard” is found where a defendant drives while fleeing pursuing officers
and during that time commits three or more violations that are assigned a traffic violation
point count under section 12810. Subdivision (f) of section 12810 provides in pertinent
part that any “traffic conviction involving the safe operation of a motor vehicle” is
subject to one violation point. Given the number of traffic violations committed by
defendant in both incidents, his conduct while driving is properly characterized as
demonstrating willful and wanton disregard for the safety of other persons and property
under the statute. Defendant even admitted during cross-examination that he understood
that going through a stop sign is dangerous and that he could hurt someone.


                                             10
       Accordingly, the trial court was not obliged to sua sponte instruct on misdemeanor
evading. There was no question as to whether all of the elements of the charged offense
were present, and there was no evidence that the offense was less than that charged.
(People v. Lopez (1998) 19 Cal.4th 282, 288.)
       Moreover, even if the trial court were found to have erred in not giving an
instruction on the lesser included offense, the error would have been harmless under the
test of People v. Watson (1956) 46 Cal.2d 818, 836). The California Supreme Court has
stated that “to instruct sua sponte on a lesser included offense in a noncapital case is, at
most, an error of California law alone, and is thus subject only to state standards of
reversibility.” (Breverman, supra, 19 Cal.4th at p. 165.) Because the evidence that
defendant drove with a willful and wanton disregard for the safety of others was
overwhelming, a more favorable result would not have been reasonably probable with an
instruction on misdemeanor evading. (People v. Watson, at p. 836.)
II. Denial of New Trial Motion
       A. Defendant’s Argument
       Defendant contends the cell phone that was booked into evidence and destroyed,
and which contained incriminating text messages, belonged to Samuels. Thus, there was
new evidence of a second cell phone. Defendant’s conviction for possession for sales
rested primarily on the text messages on the cell phone inspected at the scene, and given
the evidentiary value of this new information, denial of his motion for new trial was an
abuse of discretion.
       B. Proceedings Below
       During the defense cross-examination of Officer Rodriguez, the following
exchange occurred:
“[COUNSEL]: The cell phone, did you personally find the cell phone?
“[OFFICER RODRIGUEZ]: No.
“[COUNSEL]: And was the cell phone booked in evidence?
“[OFFICER RODRIGUEZ]: Yes.
“[COUNSEL]: Is it here in court, to your knowledge?

                                              11
“[OFFICER RODRIGUEZ]: If I can explain? Not here. It’s not here in court. It went
to property division; it’s been destroyed.
“[COUNSEL]: So it was part of the evidence in this case, to your knowledge; right?
“[OFFICER RODRIGUEZ]: Yes.
“[COUNSEL]: And it was destroyed when? In March or April of 2011?”
         There was a pause while Officer Rodriguez referred to the property report. He
then testified:
“[OFFICER RODRIGUEZ]: The way it was explained to me, sir, is initially when the
item was booked, the case was adjudicated, giving the property, narco—narcotics
property officer clearance to release it to the defendant. When he did not recover . . .
come to gather his belongings, it was destroyed several months later.
“[COUNSEL]: When you said ‘adjudicated,’ you mean the case was over?
“[OFFICER RODRIGUEZ]: It was . . . I don’t know if it wasn’t filed or if it was . . .it
was . . . this case was refiled. I’m not sure. But that’s the way it was explained to me
today.
“[COUNSEL]: And the text message on that cell phone apparently went with the cell
phone; is that right, sir?
“[OFFICER RODRIGUEZ]: Yes, sir.”
         Defendant subsequently testified that he did not know where the cell phone with
the text message came from and that the phone he had that night was given back to him
when he bailed out. The text message was not on his cell phone, and he did not “do” text
messages. He testified that he still had the cell phone he recovered from the police
station.
         Officer Chavez testified on rebuttal that he found a cell phone in defendant’s front
right pants pocket when he searched defendant. He looked at the phone and saw the text
messages about buying a 40p. He knew of no other phones found on defendant, in the
car, or on the passenger. He put the phone back into defendant’s pocket at the scene.
         At the close of trial, defense counsel requested to reopen because defendant
claimed Officer Chavez had “lied on him” regarding the cell phone Chavez claimed to

                                              12
have found in defendant’s pocket. The court denied the request because defendant had
already testified the phone he had was not the one with the text messages.
       At sentencing, defendant told the court he took his case to trial because he knew
he could prove his innocence, but the prosecution destroyed the evidence that could prove
it. It was the passenger’s cell phone, and “they turn around and say I was lying on the
stand.” Defendant said that someone should have told the jurors “they destroyed the
evidence.” Defendant claimed the prosecution’s rebuttal witness, Officer Chavez,
perjured himself on the stand.
       Defendant’s counsel addressed the court and argued that defendant had made
some good points, and his statement should be treated as an informal motion for a new
trial. The trial court said it required a written motion, notice to the prosecution, and a
hearing. After an off-the-record discussion, the trial court stated it agreed with defense
counsel’s statement that there were no grounds for a new trial. The trial court had
reviewed all of the grounds in Penal Code section 1181 and found that none applied.
There was no newly discovered evidence. The cell phone with the incriminating text
messages was found in defendant’s pocket. Defendant’s claim that Samuels was the
seller and defendant the buyer, and that Samuels arrived in a white BMW lacked
credibility in the light of the testimony that Samuels was unkempt and appeared to be
homeless. The court stated that, to the extent defendant had made an oral motion for new
trial, it was denied.
       C. Relevant Authority
        Penal Code section 1181, subdivision 8, authorizes a trial court to order a new
trial “[w]hen new evidence is discovered material to the defendant, and which he could
not, with reasonable diligence, have discovered and produced at the trial.” We review an
order denying a new trial motion for abuse of discretion. (People v. Musselwhite (1998)
17 Cal.4th 1216, 1251.) The Supreme Court has held: “‘In ruling on a motion for new
trial based on newly discovered evidence, the trial court considers the following factors:
“‘1. That the evidence, and not merely its materiality, be newly discovered; 2. That the
evidence be not cumulative merely; 3. That it be such as to render a different result

                                              13
probable on a retrial of the cause; 4. That the party could not with reasonable diligence
have discovered and produced it at the trial; and 5. That these facts be shown by the best
evidence of which the case admits.’”’ [Citation.]” (People v. Beeler (1995) 9 Cal.4th
953, 1004 (Beeler).)
       D. No Abuse of Discretion
       Defendant urges that evidence “came to light during trial which established not
only that there were two cell phones as opposed to one involved in this case, but that
either Officer Rodriguez or Officer Chavez had fabricated their story regarding the cell
phone.” According to defendant, there was no way to reconcile the conflict absent an
investigation, and he was therefore denied his right to develop a defense. Despite
defendant’s characterization of his own and Officer Rodriguez’s testimony, there was no
newly discovered evidence at trial.
       Although defendant claims the accounts by Officers Rodriguez and Chavez were
at odds, we do not agree. Officer Chavez may have returned defendant’s cell phone to
him at the scene. Despite that possibility, it is also quite likely that the phone was taken
from defendant at booking and placed in evidence. The evidence from defendant that he
collected his phone after posting bail was controverted, since Officer Rodriguez testified
that the phone was booked into evidence and was eventually handed over to the property
department, where it remained until it was eventually destroyed. The jury was fully
aware of the conflict in testimony and decided which version to believe. It was not
“established,” contrary to defendant’s assertion, that there were two cell phones found at
the scene, and in ruling upon a new trial motion, the trial court may consider the issue of
credibility. (People v. Delgado (1993) 5 Cal.4th 312, 329.)
       Moreover, the evidence of the cell phone was known to the defense before trial by
means of the discovery requirements. The incriminating text messages were included in
Officer Rodriguez’s police report, which was provided to the defense and used to cross-
examine the officer. As stated in Penal Code section 1181, subdivision (8), a new trial is
proper when “new evidence is discovered material to the defendant, and which he could
not, with reasonable diligence, have discovered and produced at the trial.” To the extent

                                             14
that the conflict in testimony can be considered new evidence, it was clearly known by
defendant before and during trial. Indeed, any conflict was created by defendant’s
testimony at the end of trial. Defendant’s testimony was the only evidence he received a
cell phone back from the police on bailing out and that he still possessed the cell phone.
He did not produce the phone at trial. Facts “within the knowledge of the defendant at
the time of trial are not newly discovered even though he did not make them known to his
counsel until later,” and they do not support a new trial motion. (People v. Greenwood
(1957) 47 Cal.2d 819, 822; see also People v. Williams (1962) 57 Cal.2d 263, 273.)
       In sum, defendant offers no new evidence that would “render a different result
probable on a retrial of the cause.” (Beeler, supra, 9 Cal.4th at p. 1004.) All of the
evidence was already presented at trial in the form of testimony by Officers Rodriguez
and Chavez and defendant. The only “new” information was that offered by defendant
on the stand, after he heard the testimony of the officers. He does not show what
additional information any investigation could produce. As the trial court pointed out, it
was unlikely a new jury would find credible defendant’s assertion that the alleged second
cell phone, which showed that it had been used by a drug seller rather than a user,
belonged to the transient who was a passenger defendant’s car.
       Finally, contrary to defendant’s assertion, his conviction for possession for sales
did not rest primarily on the text message. In addition to the text messages, Officer
Rodriguez cited myriad reasons for his opinion: the quantity of the narcotics, the lack of
paraphernalia, the location of the arrest (in a “problem narcotics location”), the
packaging, and the evasive driving tactics, i.e., the attempt to flee and get rid of the
evidence.
       The trial court did not abuse its discretion in denying defendant’s oral motion for a
new trial.




                                              15
III. Destruction of Cell Phone
       A. Defendant’s Argument
       Defendant contends that law enforcement violated his due process rights under
Youngblood and Trombetta5 by destroying the cell phone that was purportedly found on
defendant and that contained incriminating text messages. Defendant maintains the cell
phone was not his, but rather that of Samuels. He maintains his conviction must be
reversed without any consideration of prejudice.
       B. Relevant Authority
       Under the Trombetta/Youngblood line of cases, the prosecution and law
enforcement must preserve evidence “that might be expected to play a significant role in
the [defendant’s] defense.” (Trombetta, supra, 467 U.S. at p. 488, fn. omitted.) To meet
this standard, the evidence must “both possess an exculpatory value that was apparent
before the evidence was destroyed, and be of such a nature that the defendant would be
unable to obtain comparable evidence by other reasonably available means.” (Id. at p.
489) To show a denial of federal constitutional due process from the destruction of such
evidence, the defendant must also show that the police acted in bad faith. (Youngblood,
supra, 488 U.S. at p. 58.)
       “The presence or absence of bad faith by the police for purposes of the Due
Process Clause . . . necessarily turn[s] on the police’s knowledge of the exculpatory value
of the evidence at the time it was lost or destroyed.” (Youngblood, supra, 488 U.S. at pp.
56-57, fn.*; Beeler, supra, 9 Cal.4th at p. 1000.) A due process violation occurs when
the state is aware that the evidence could form a basis for exonerating the defendant and
fails to preserve it as part of a conscious effort to circumvent its constitutional discovery
obligation. (Trombetta, supra, 467 U.S. at p. 488; Beeler, at p. 1000; People v. Zapien
(1993) 4 Cal.4th 929, 964.)




5     Arizona v. Youngblood (1988) 488 U.S. 51 (Youngblood); California v. Trombetta
(1984) 467 U.S. 479 (Trombetta).
                                              16
       C. No Due Process Violation
       Defendant mentioned the destruction of his cell phone only in the context of
making an informal new trial motion. This is not the equivalent of objecting on the basis
of a due process violation resulting from law enforcement’s bad faith failure to preserve
potentially useful evidence. Therefore, defendant has forfeited this issue due to a failure
to argue the Trombetta/Youngblood issue below—which would have given the People the
opportunity to argue the Trombetta issue and the trial court the opportunity to rule on the
issue of bad faith. (People v. Homick (2012) 55 Cal.4th 816, 856, fn. 25; People v. Simon
(2001) 25 Cal.4th 1082, 1103.) In any event, we conclude defendant’s argument is
without merit.
       According to defendant, the missing cell phone constituted exculpatory evidence
because it would have shown by its very existence that it was not defendant’s cell phone,
thereby allowing the phone to be tested and/or accessed. This would have shown that it
was that phone that contained the incriminating text messages, as opposed to his own cell
phone, which was released to him. The evidence would also have shown ownership and
identity. Moreover, the evidence would have established the bad faith of Officers
Rodriguez and Chavez, since one of their stories would have been shown to be a
fabrication. The destruction of the cell phone also prevented defendant from effectively
cross-examining Officers Rodriguez and Chavez and the property officer in violation of
Davis v. Alaska (1974) 415 U.S. 308 [defense must be allowed to effectively cross-
examine witnesses on existence of possible bias and prejudice].)
       Throughout this argument, defendant presumes that it has been established that his
own story about picking up the cell phone upon release was not a fabrication. This was a
decision to be made by the jury, which heard all three accounts. Defendant has not
shown that the cell phone with the text messages was not his by his mere assertion that
there were two cell phones. As a result, there is no basis for assuming there were two cell
phones found at the scene of the traffic stop. Both Officer Rodriguez and Officer Chavez
testified that only one cell phone—the one in defendant’s pocket—was found at the stop,
and no phone was found either in the car or on the passenger who appeared to be a

                                            17
homeless person. Therefore, defendant’s logical conclusion is actually bereft of logic,
since it is based on a faulty premise. The mere possibility that an item may have helped
the defense is insufficient to establish materiality. (People v. Stansbury (1993) 4 Cal.4th
1017, 1055.) Also, contrary to defendant’s complaint, the jury was fully aware that the
cell phone had been destroyed.
       Although Officer Rodriguez responded “Yes” when asked if the cell phone was
booked into evidence, he then stated the cell phone “went to [the] property division.” It
was the property division that destroyed the cell phone. There is nothing in the record to
suggest that the normal practice of taking an arrestee’s property from him at booking did
not occur, or that Officer Rodriguez did not then take defendant’s cell phone and book it
into evidence, and that the phone was later released to the property division to be picked
up by the owner due to the case being not filed, or due to an error.
       Furthermore, defendant has failed to make a showing of bad faith on the part of
law enforcement. Negligent destruction of (or failure to preserve) potentially exculpatory
evidence, without evidence of bad faith, will not give rise to a due process violation.
(Youngblood, supra, 488 U.S. at p. 58.) There was no evidence to suggest that Officer
Rodriguez’s account of what happened to the cell phone was false. There was no
evidence that any officer connected to defendant’s detention or arrest was involved in the
destruction of the cell phone in a conscious effort to avoid discovery obligations. Since
no bad faith was shown, and since negligence is an insufficient basis on which to base
sanctions under Trombetta/Youngblood, defendant’s claim is without merit. (See People
v. Webb (1993) 6 Cal.4th 494, 519-520.)
IV. Penal Code Section 654
       A. Defendant’s Argument
       Defendant contends the trial court improperly imposed separate punishments for
his convictions for driving under the influence of alcohol (§ 23152, subd. (a)), evading an
officer with willful disregard (§ 2800.2, subd. (b)), and driving with a suspended license
(§ 14601.2, subd. (a)) in counts 1, 2, and 3 respectively. All of these incidents occurred


                                             18
on March 25, 2011.6 According to defendant, the record lacks sufficient evidence to
support the court’s implied finding that defendant’s act of driving under the influence
was divisible from his acts of evading and driving with a suspended license.
       B. Relevant Authority
       Penal Code section 654, subdivision (a) provides in pertinent part that “[a]n act or
omission that is punishable in different ways by different provisions of law shall be
punished under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more than one
provision.” A defendant thus may not be punished for two separate crimes which arise
either out of a single act or out of an indivisible transaction. When Penal Code section
654 applies, the proper procedure is to stay imposition of sentence on one of the crimes,
with the stay to become permanent on completion of the term imposed on the other.
(People v. Pearson (1986) 42 Cal.3d 351, 360.)
       C. One Violation of Penal Code Section 654
       We believe defendant should not have been punished for both driving while under
the influence (count 1) and driving with a suspended license (count 3) under the more
recent test set forth in People v. Jones (2012) 54 Cal.4th 350 (Jones). We do not believe,
however, that defendant’s conviction for evading a peace officer was an indivisible part
of the act of driving under the influence and with a suspended license
       Jones relied on Penal Code “section 654’s plain language” in order to hold that
application of the statute requires a determination as to whether a defendant’s crimes are
based on a single physical act that violates different provisions of law. (Jones, supra, 54
Cal.4th at pp. 352, 358, 360.) Although we would reach the same result under the
decades-old test of Neal v. State of California (1960) 55 Cal.2d 11, 19, which required an
analysis of the defendant’s intent and objective in each count, the Jones court majority
indicated that a court should not be forced to “divine what objective or objectives the
defendant might have.” (Jones, at p. 360.) Jones concluded it was better to rely on Penal

6      Defendant mistakenly states that these three counts relate to the March 31, 2011
incident, which encompasses counts 4 and 5.
                                            19
Code section 654’s actual language in resolving a “single-act” case. (Jones, at p. 360.)
In arriving at its conclusion, the Jones court expressly overruled In re Hayes (1969) 70
Cal.2d 604, which had held that multiple punishment for driving while intoxicated and
with an invalid license was not prohibited, since there were two distinct criminal acts that
shared the neutral noncriminal act of driving. (Jones, at pp. 355, 358, 360; Hayes, at
p. 611.)
       Turning first to the divisibility of the evading count as a separate physical act, we
note that a violation of section 2800.2, subdivision (a) is a specific intent offense. As
charged in count 2, it requires the intent to “evade, flee and otherwise attempt to elude a
pursuing peace officer’s motor vehicle.” Defendant could have stopped his car when the
police notified him by means of their lights and siren that they wished him to do so.
Instead, he accelerated and fled, which we believe constitutes a separate physical act
from merely driving a car while under the influence or without a license. The Jones
court, after propounding its rule, “recognize[d] that what is a single physical act might
not always be easy to ascertain. In some situations, physical acts might be simultaneous
yet separate for purposes of section 654.” (Jones, supra, 54 Cal.4th at p. 358.) We
believe this is just such a situation.
       Finally, we note that, if multiple punishment for evading and for driving under the
influence and/or with a suspended license were prohibited in this situation, there would
be no incentive for a person driving under the influence or with a suspended license to
stop when an officer indicates that the driver is to pull over (apart from a desire not to
further break the law), since the driver would suffer no greater punishment by trying to
escape. (See People v. Butler (1986) 184 Cal.App.3d 469, 474.)
       The convictions for driving under the influence and with a suspended license,
however, constitute a single physical act that violates different provisions of law. It is
akin to the situation in Jones, where the defendant was found to have been erroneously
sentenced to three concurrent terms for his convictions based on having a loaded revolver
in his car. Jones was convicted of possession of a firearm by a felon, carrying a readily
accessible concealed and unregistered firearm, and carrying an unregistered loaded

                                             20
firearm in public. (Jones, supra, 54 Cal.4th at p. 352.) The Jones court concluded that
Penal Code section 654 prohibited punishment for more than one of those crimes because
Jones’s carrying, and thus possessing, a single firearm was a single physical act. (Jones,
at pp. 352, 353, 360.) The court noted that, although it might make sense to punish more
severely the act of firearm possession when it violates multiple penal provisions instead
of only one, it was up to the Legislature to change the law to allow for multiple
punishment in such situations.
       Accordingly, relying on the “plain language” of Penal Code section 654 as
interpreted by Jones, we conclude that defendant’s sentence in count 3 must be stayed:
Counts 1 and 3 are based on the single physical act of driving a car that, under the
circumstance of this case, violated more than one criminal statute.
V. Custody Credits
       A. Defendant’s Argument
       In his reply brief, defendant argues for the first time that he was “shorted” 12 days
of custody credits at the time of sentencing. According to defendant, he was arrested on
March 25, 2011, and he posted bail on March 28, 2011, which entitled him to four days
of credits. He was arrested again on March 31, 2011, and released on bond on April 1,
2011, which totaled two more days in custody, for a total of six days. With six days of
good time/work time, defendant was entitled to 12 days of custody credits that the trial
court did not consider. Defendant contends the trial court found a total of 422 actual plus
442 good time/work time credits for a total of 884 custody credits7 when it should have
been 448 actual plus 448 good time/work time credits for a total of 896 days.
       B. Proceedings Below
       At defendant’s November 26, 2013 sentencing, when the trial court asked the
defense for its credits calculation, defendant responded that he had been in custody since
March 31, 2011. This conflicts with his current assertion that he posted bond on April 1,
2011, noted ante. It also conflicts with his trial testimony that he posted bail for the

7
      Defendant’s math is incorrect unless he means 442 actual days and 442 good
time/work time credits.
                                             21
March 31, 2011 incident the same night he was arrested. His assertion that he posted bail
on March 28, 2011, for the March 25, 2011 incident is contradicted by the trial court
having taken judicial notice that defendant posted bail on March 26, 2011.
       According to the reporter’s transcript, the trial court granted 972 actual days and
972 good time/work time days for a total of 1,944 days total credits. This calculation
corresponds to a finding that defendant had indeed been held in custody since March 31,
2011. This quantity of credits is at odds with defendant’s current claim that he was
awarded only 896 days of total credits. Unfortunately, the clerk’s transcript does not
contain a copy of defendant’s abstract of judgment. Therefore, this court has no way of
knowing the quantity of credit days defendant was actually awarded. Appellate counsel
should address the matter to the trial court if he believes defendant is entitled to
additional custody credits.
                                      DISPOSITION
       The judgment is modified to stay defendant’s sentence on count 3 pursuant to
Penal Code section 654. In all other respects the judgment is affirmed. The superior
court is directed to amend defendant’s abstract of judgment regarding the stay of sentence
in count 3 and forward a copy to the Department of Corrections and Rehabilitation.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                           BOREN, P.J.
We concur:


       ASHMANN-GERST, J.


       CHAVEZ, J.




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