Filed 5/27/16 P. v. Honnette 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,
                                                                                           F069509
         Plaintiff and Respondent,
                                                                        (Stanislaus Super. Ct. Nos. 1252635
                   v.                                                               & 1450107)

RYAN JOHN HONNETTE,
                                                                                         OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Stanislaus County.
Thomas D. Zeff, Judge.
         Maureen M. Bodo, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Catherine Chatman and Jeffrey Grant, Deputy Attorneys General, for Plaintiff
and Respondent.
                                                        -ooOoo-


*        Before Gomes, Acting P.J., Kane, J. and Franson, J.
        In case No. 1252635 appellant Ryan John Honnette pled no contest to gross
vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)) and admitted a
multiple victim enhancement (Veh. Code, § 23558).1 In case No. 1450107 a jury
convicted Honnette of driving under the influence of alcohol with a prior felony
conviction for driving under the influence (§§ 23152, subd. (a) & 23550.5). In a separate
proceeding, Honnette admitted that he had a prior conviction within the meaning of the
three strikes law (Pen. Code, § 667, subds. (b)-(i)).
        On appeal, Honnette contends: (1) the court abused its discretion when it denied
his Romero2 motion; (2) the court erred by its failure to specify the statutory basis for
some fines; and (3) there are inconsistencies between the oral pronouncement of
judgment, the minute order of the sentencing hearing, and Honnette’s abstract of
judgment. We find merit to these last two contentions. In all other respects, we affirm.
                                           FACTS
Case No. 1252635
        On the morning of October 18, 2008, Mike Gonzalves gave Honnette a ride to a
Clampers Club event near Turlock, California, where Honnette drank beer. At
approximately 4:30 p.m., Honnette drove Gonzalves’s car from the event back toward
Turlock with Gonzalves, Matthew Miller, Wesley Romero, and Timothy Romero as
passengers. As Honnette entered a curve travelling 40 miles per hour, the tires on the
right side of the car ran onto the dirt shoulder. Honnette turned the car left toward the
center of the road and then back to the right, which caused him to lose control. The car
rolled over and came to rest on the driver’s side. Honnette and three passengers were
able to get out of the car. However, Miller, who was later determined to have a blood-


1       Unless otherwise indicated, all further statutory references are to the Vehicle
Code.
2       People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).


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alcohol content (BAC) of 0.16 percent, was partially ejected out of the left, rear
passenger window and crushed by the car. Miller was transported to a hospital where he
was pronounced dead. Gonzalves received a laceration on the back of his head. The
other passengers were uninjured.
       When the accident occurred, Honnette was not wearing corrective lenses he was
required to wear while driving. He also told the responding officer he only drank four
beers that day. However, a test on blood drawn from Honnette at 7:30 p.m. measured his
BAC at 0.11 percent.
       On June 12, 2009, the district attorney filed an information charging Honnette
with gross vehicular manslaughter (count 1/Pen. Code, § 191.5, subd. (a)), driving while
under the influence of alcohol causing injury (count 2/§ 23153, subd. (a)), and driving
with a BAC of 0.08 or greater causing injury (count 3/§ 23153, subd. (b)). Each count
also alleged a multiple victim enhancement.
       On August 13, 2009, Honnette entered his plea in case No. 1252635 and the
remaining counts and allegations were dismissed.
       On September 21, 2009, the court suspended imposition of sentence, placed
Honnette on probation for five years, and ordered him to serve 365 days in custody.
From November 16, 2009, through November 12, 2010, Honnette served this sentence on
the home detention program.
Case No. 1450107
       On September 28, 2012, while still on probation in case No. 1252635, Honnette
was arrested during a traffic stop after he failed several field sobriety tests and his BAC
was measured at 0.22 percent.
       On November 19, 2013, the district attorney filed an information charging
Honnette with driving under the influence of alcohol with a prior felony conviction
(count 1/§§ 23152, subd. (a) & 23550.5) and driving with a BAC of 0.08 percent or
greater with a prior felony conviction (count 2/§§ 23152, subd. (b) & 23550.5). Each

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count also alleged that Honnette had a prior conviction within the meaning of the three
strikes law and that Honnette’s BAC was 0.15 percent or greater.
       At trial, the prosecution evidence established that on September 28, 2012, at
approximately 2:00 a.m., California State University Police Officer Aimee Powers
stopped a Toyota driven by Honnette after seeing the Toyota swerving in its lane. As
Officer Powers approached Honnette, she smelled alcohol and cigarettes. Honnette told
the officer several times that he had not had anything to drink. However, he failed three
field sobriety tests and during a search of Honnette’s car, Powers found an empty 375
milliliter bottle of 80-proof whiskey. A blood test performed at 2:50 a.m. measured
Honnette’s BAC at 0.22 percent.
       Honnette testified that earlier the night he was stopped, he drank a 24-ounce can of
beer while watching a football game and went to bed at 10:00 p.m. At 1:30 a.m. he got
up hungry and went to a Taco Bell where he bought a drink and some food. While
driving home, he was stopped by Officer Powers. After obtaining Honnette’s driver’s
license, registration and insurance information, Officer Powers walked back to her patrol
car to run Honnette’s license. Initially, Honnette was not concerned because he did not
have any outstanding warrants. However, after realizing he was on probation and subject
to being searched, Honnette did a quick inventory of his car and found an unopened 375
milliliter bottle of whiskey. Honnette thought the officer would find the bottle and that
he needed to “get rid of the evidence.” He drank the whiskey in 15 to 20 seconds
because he did not think possessing an empty bottle would violate his probation.
       On February 24, 2014, a jury convicted Honnette of driving under the influence of
alcohol but it found the allegation that his BAC was 0.15 percent or greater not true. The
jury was not able to reach a verdict on count 2 and a mistrial was declared as to that
count. In a separate proceeding, Honnette admitted the three strikes allegation.




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The Probation Reports
         The probation department prepared a probation violation report in case
No. 1252635 and a probation report in case No. 1450107 that were both filed on April 25,
2014. The probation violation report indicated that on December 28, 2009, probation
officers found several empty wine bottles in Honnette’s bedroom during a search of his
residence. Honnette claimed the bottles were “collectibles.”
         On December 11, 2010, probation officers found a bottle of whiskey in the front
room of Honnette’s residence and two bottles of wine on a kitchen counter during a home
visit. One of Honnette’s roommates told the officers that the bottles belonged to him.
         On January 13, 2011, during a contact with the probation department Honnette
admitted that he celebrated completing his sentence on home detention by consuming
alcohol.
         On July 30, 2011, the probation department conducted a home visit and tested
Honnette with an intoximeter. One test measured Honnette’s BAC at 0.26 percent. A
second test measured his BAC at 0.25 percent. Honnette admitted drinking a beer with
lunch.
         On August 1, 2011, Honnette called his probation officer to complain that the test
results obtained on July 30, 2011, were false because he drank only a tall beer while
having lunch at a restaurant with his family. He also admitted drinking alcohol in
January 2011. Honnette was admonished about the positive test results and directed to
attended Alcoholics Anonymous meetings until further notice.
         On August 25, 2012 during a home visit, probation officers found two whiskey
bottles, one empty and one half full, located between a television set and a wall in
Honnette’s bedroom. The following day Honnette called a probation officer to report that
he did not consume the contents of the bottles. According to Honnette, his cousin had
been at his residence and probably left the whiskey there without Honnette’s knowledge.



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       The probation violation report alleged Honnette violated his probation by using
and possessing alcohol and by committing a new felony offense. The report
recommended the court sentence Honnette to prison.
       The probation report in case No. 1450107 indicated Honnette was almost 33 years
old when he was convicted in that case. In December 2007 Honnette graduated from a
police academy in Modesto, California. He was employed as a police officer with the
Stockton Police Department when the fatal accident occurred, but was “laid off” two
weeks after his arrest in this matter.
       Honnette told the probation department that after the accident he suffered from
post traumatic stress disorder (PTSD). However, he refused to take prescribed anti-
depression medication.
       Honnette also reported that he began drinking when he was 16 years old, but he
did not start abusing alcohol until he returned home from college and began drinking six
to 12 beers every other night. He claimed that more recently, he consumed beer or one
mixed drink approximately once a month during social gatherings. In an attached
statement, Honnette continued to maintain he was sober when he was pulled over by
Officer Powers and that he drank the bottle of whiskey found in his car because he
thought he would violate his probation if he possessed it while it was full. The report
also recommended Honnette be sentenced to prison.
The Romero Motion and Sentencing
       On April 28, 2014, Honnette filed a Romero motion asking the court to strike his
prior manslaughter conviction. In the moving papers Honnette argued that his current
offense was not particularly egregious because the jury found his BAC did not equal or
exceed 0.15 percent, the offense involved minimal alcohol consumption while actually
driving, and he did not injure anyone or damage any property. Honnette also argued that
his prior vehicular manslaughter conviction should be stricken because it occurred almost
four years prior to his new offense and it was not “particularly egregious” because it

                                            6.
involved a single car accident and all the parties likely understood that Honnette had been
drinking. Honnette further argued that his lapses in sobriety were not uncommon for
someone who suffered from alcohol addiction and that he had not been arrested or
“convicted of any new law violation or probation violation” before he was convicted in
case No. 1450107.
       On May 5, 2014, at Honnette’s sentencing hearing, the court denied the motion
stating,

              “Court having considered the nature and circumstances of the
       present felony conviction, the defendant’s background and character [and]
       his prospects, the Court concludes that the defendant does not fall outside
       the scheme spirit and denies the motion to strike the (b) prior.”3
       The court then sentenced Honnette to an aggregate prison term of eight years four
months: six years on his vehicular manslaughter conviction in case No. 1252635, a one-
year multiple victim enhancement in that case, and a 16-month term on his driving under
the influence with a prior felony conviction in case No. 1450107, one-third the middle
term of two years, doubled to 16 months because of Honnette’s strike conviction.4
                                       DISCUSSION
The Romero Motion
       In Romero, supra, 13 Cal.4th 497, the Supreme Court explained that under Penal
Code section 1385, subdivision (a), a trial court may, in the furtherance of justice, strike
or vacate an allegation or finding under the three strikes law that a defendant has
previously been convicted of a serious and/or violent felony. (Romero, supra, at p. 504.)
       In People v. Williams (1998) 17 Cal.4th 148, 161 the Supreme Court articulated
the standard for striking prior convictions under the three strikes law, as follows:


3      Honnette did not raise any objection to the court’s ruling.
4      During the hearing the court acknowledged on the record that it had read the
probation violation report, the probation report, and the parties’ sentencing briefs.


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               “We therefore believe that, in ruling whether to strike or vacate a
       prior serious and/or violent felony conviction allegation or finding under
       the Three Strikes law, on its own motion, ‘in furtherance of justice’
       pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the
       court in question must consider whether, in light of the nature and
       circumstances of his present felonies and prior serious and/or violent felony
       convictions, and the particulars of his background, character, and prospects,
       the defendant may be deemed outside the scheme’s spirit, in whole or in
       part, and hence should be treated as though he had not previously been
       convicted of one or more serious and/or violent felonies.”
       A trial court’s decision whether or not to strike a prior conviction for purposes of
the three strikes law is subject to review under the deferential abuse of discretion
standard. (People v. Romero (2002) 99 Cal.App.4th 1418, 1433-1434.) As explained in
People v. Carmony (2004) 33 Cal.4th 367, 376-377 (Carmony):

               “In reviewing for abuse of discretion, we are guided by two
       fundamental precepts. First, ‘ “[t]he burden is on the party attacking the
       sentence to clearly show that the sentencing decision was irrational or
       arbitrary. [Citation.] In the absence of such a showing, the trial court is
       presumed to have acted to achieve legitimate sentencing objectives, and its
       discretionary determination to impose a particular sentence will not be set
       aside on review.” ’ [Citations.] Second, a ‘ “decision will not be reversed
       merely because reasonable people might disagree. ‘An appellate tribunal is
       neither authorized nor warranted in substituting its judgment for the
       judgment of the trial judge.’ ” ’ [Citations.] Taken together, these precepts
       establish that a trial court does not abuse its discretion unless its decision is
       so irrational or arbitrary that no reasonable person could agree with it.”
       The court’s decision to deny Honnette’s Romero motion was not “so irrational or
arbitrary that no reasonable person could agree with it.” (Carmony, supra, 33 Cal.4th at
p. 377.) Honnette’s strike conviction was based on his 2009 conviction for gross
vehicular manslaughter in case No. 1252635. The seriousness of that offense was
underscored by the death of one of Honnette’s passengers, an injury to a second one, and
the presence of two other passengers in the car who miraculously escaped injury.
Further, Honnette had a BAC of 0.11 percent two hours after the accident and he was not
wearing the corrective lenses he was required to wear while driving. Additionally, as a



                                              8.
police officer, Honnette should have been well aware of the dangers of drinking and
driving.
       Moreover, it is clear from the numerous times alcohol was found at Honnette’s
house and his admissions to probation officers, that he continued drinking alcoholic
beverages through the date he was arrested in case No. 1450107. Further, when he
committed the current offense he had a BAC of 0.22 percent, he was still on probation for
his manslaughter offense, and he showed no remorse and failed to take responsibility for
his conduct by continuing to insist that his high BAC was the result of drinking a 375
milliliter bottle of whiskey while Officer Powers checked his license. Additionally,
Honnette’s strike added only eight months to his sentence. These circumstances amply
support the court’s finding that Honnette did not fall outside the spirit of the three strikes
law.
       Honnette contends the court abused its discretion when it denied his Romero
motion because it failed to give adequate consideration to several circumstances of his
manslaughter offense including the following: (1) Honnette was employed as a police
officer when the accident occurred; (2) he was not speeding at that time; (3) the victim
also consumed alcohol and had a BAC of 0.16 percent; and (4) at his original sentencing
hearing for his gross vehicular manslaughter conviction, Gonzalves and the mother of the
deceased victim requested leniency on Honnette’s behalf. Honnette further contends the
court failed to consider his alcoholism, PTSD, depression, “history of denial or
noncompliance with what little medical or therapeutic help was offered to him[,]” and his
abilities and prospects if he received appropriate treatment for his medical conditions.
According to Honnette, his case is not as serious as that of the defendant in People v.
Vargas (2014) 59 Cal.4th 635 (Vargas), which the Supreme Court described as “one of
the extraordinary cases … in which the nature and circumstances of defendant’s prior
strike convictions demonstrate the trial court was required to dismiss one of them because



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failure to do so would be inconsistent with the spirit of the Three Strikes law.” (Id. at p.
649.) Honnette is wrong.
       In People v. Scott (1994) 9 Cal.4th 331, the Supreme Court held that “the
[forfeiture] doctrine should apply to claims involving the trial court’s failure to properly
make or articulate its discretionary sentencing choices. Included in this category are
cases in which the stated reasons allegedly do not apply to the particular case, and cases
in which the court purportedly erred because it double-counted a particular sentencing
factor, misweighed the various factors, or failed to state any reasons or give a sufficient
number of valid reasons.” (Id. at p. 353, italics added.)
       Honnette did not raise any objection to the trial court’s ruling denying his Romero
motion. Thus, he forfeited his contention that the court did not consider certain
circumstances and misweighed others. However, even if this contention were properly
before us, we would reject it. The court considered most of the circumstances cited by
Honnette because this information was included in the two probation reports that were
prepared for Honnette’s May 5, 2014, sentencing which the court acknowledged reading.
       Further, during the hearing on the Romero motion, the defense did not present any
evidence that Honnette was ever diagnosed with alcoholism, PTSD, or depression or of
his prognosis for any of these conditions if he received treatment. Additionally, it
appears the court was unaware that victim Gonzalves and the parents of victim Miller
expressed empathy for Honnette at his original sentencing hearing because a different
judge presided over that hearing and defense counsel did not bring this circumstance to
the court’s attention.
       “In determining whether there was an abuse of discretion, we examine the record
before the trial court at the time of its ruling.” (People v. Mendoza (2000) 24 Cal.4th
130, 161.) Thus, in reviewing the court’s denial of Honnette’s Romero motion we do not
consider the circumstances noted in the preceding paragraph because they were not
established in the record when the court considered the motion.

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        Moreover, Vargas is inapposite. The defendant in Vargas had two prior strike
convictions for robbery and carjacking, which “were based on the same act of taking the
victim’s car by force[.]” (Vargas, supra, 59 Cal.4th at pp. 640, 645, italics added.)
Vargas held that “two prior convictions arising out of a single act against a single victim”
cannot constitute two separate strikes, and that the sentencing court should have
dismissed one conviction. (Id. at p. 637.) Vargas explained that treating such a
defendant as a third strike offender was inconsistent with the intent underlying the three
strikes law because the defendant’s prior strikes “were not only tried in the same
proceeding and committed during the same course of criminal conduct, they were based
on the same act, committed at the same time, against the same victim ....” (Id. at pp. 638,
645.)
        Vargas is easily distinguishable because Honnette’s case does not involve two
prior convictions that are based on the same act perpetrated against a single victim. Thus,
we conclude that the court did not abuse its discretion when it denied Honnette’s Romero
motion.
The Other Issues
        Honnette contends the court erred because it imposed a $1,600 fine without stating
the statutory basis for the fine. He also contends the court’s order that he pay a probation
revocation fine of $300 is inconsistent with the court’s oral pronouncement of judgment
on September 21, 2009, in case No. 1252635 because in that proceeding it imposed only
a $200 probation revocation fine. Additionally, he contends his abstract of judgment
erroneously fails to state the statutory basis for the $3,371 in Vehicle Code fines the court
imposed, the $110 court operations assessment included in the abstract is incorrect, and
the operations assessment included in his abstract is incorrect. Honnette also contends
there are inconsistencies between the court’s oral pronouncement of judgment, one of the
minute orders of the May 5, 2014 sentencing hearing, and his abstract of judgment.
Therefore, according to Honnette, remand is required to allow the court to clarify or

                                             11.
correct these errors. We agree the matter must be remanded to allow the court to correct
several errors of which Honnette complains.
       All fines and fees and their statutory basis must be set forth in the abstract of
judgment. (People v. Hamed (2013) 221 Cal.App.4th 928, 940; People v. High (2004)
119 Cal.App.4th 1192, 1200.) Thus, the court erred by its failure to specify the statutory
basis for the $1,600 fine it orally imposed at the May 5, 2014, sentencing hearing and by
failing to specify the statutory basis for the $3,371 in Vehicle Code fines that are
memorialized in Honnette’s abstract of judgment.
       Further, a restitution fine survives the revocation of probation. (People v.
Chambers (1998) 65 Cal.App.4th 819, 822.) Since the court originally imposed a $200
restitution fine in case No. 1252635, and the probation revocation fine must be assessed
in the same amount (Pen. Code, § 1202.44), the court erred when it increased Honnette’s
probation revocation fine to $300.
       Moreover, the court imposed a $30 court operation fee in case No. 1256235 when
it originally sentenced Honnette and a $40 court operation fee in case No. 1450107 when
it sentenced him on May 5, 2014. However, Honnette’s abstract of judgment erroneously
indicates in section 9 (d) that the court imposed $110 in court operations fees.
       The abstract also fails to separately memorialize the $4 emergency air medical
penalty fee imposed by the court or the statutory basis for this fee. Further, the minute
order for the May 2014 sentencing hearing that was prepared in case No. 1450107 omits
this fee. It also erroneously indicates that the court imposed an $80 court operations
assessment in that case and a $60 assessment pursuant to Government Code section
70373. In view of the foregoing, we will remand this matter to the trial court so that it
may correct the errors noted above and issue a corrected abstract of judgment.
                                      DISPOSITION
       The matter is remanded to the trial court for it to issue an amended minute order
and an amended abstract of judgment that correct the errors noted above and that identify

                                             12.
the statutory basis for the fees and fines imposed in each case. The trial court is also
directed to forward a certified copy of the amended abstract of judgment to the
Department of Corrections and Rehabilitation. In all other respects, the judgment is
affirmed.




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