Filed 6/13/16 P. v. Almanza CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H042190
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS141131)

         v.

RAMON ALVAREZ ALMANZA,

         Defendant and Appellant.


         Defendant was placed on probation after entering no contest pleas to evading a
peace officer and driving under the influence of alcohol. After defendant admitted
probation violations, probation was revoked and he was sentenced to the upper term of
three years on the evading charge. Defendant challenges the revocation and sentence as
not supported by substantial evidence. Finding no error, we will affirm.
                                               I. BACKGROUND
A.       UNDERLYING CHARGES
         On May 5, 2014, defendant was arrested after leading police on a high-speed
chase on Highway 101 in Monterey County. Defendant was charged with evading a
peace officer while operating a motor vehicle with willful or wanton disregard for safety
(Veh. Code, § 2800.2, subd. (a); count 1, a felony); driving under the influence of alcohol
(Veh. Code, § 23152, subd. (a); count 2, a misdemeanor); driving with a blood alcohol
level of .08 percent or higher. (Veh. Code, § 23152, subd. (b); count 3, a misdemeanor);
driving on a suspended license (Veh. Code, § 14601.2, subd. (a); count 4, a
misdemeanor); and speeding (Veh. Code, § 22350; count 5, an infraction).
       The arresting officer, a Monterey County Sheriff’s sergeant, testified at the
preliminary hearing that he encountered defendant in his car on the side of Highway 101
after receiving a broadcast that a possible drunk driver had pulled off the highway. The
sergeant stopped behind defendant’s car and as he approached on foot, defendant drove
back onto the highway. The sergeant followed, observing erratic driving. He turned on
his lights and siren to initiate a traffic stop, but defendant did not stop. Defendant slowed
and pulled to the side of the road two or three times, but sped away each time the
sergeant pulled in behind him. Defendant accelerated to 90 miles per hour, and continued
to drive erratically in afternoon traffic for several miles, endangering other drivers.
Maintaining his high speed, defendant passed between two vehicles driving in adjacent
lanes, and avoided causing a three-car collision only because one of the other drivers took
evasive action.
       Sheriff’s deputies joined the pursuit, which ended when defendant pulled into a
gas station and was arrested. Defendant got out of his car slowly. He had trouble
walking and leaned against the car. He refused the officers’ commands, his eyes were
bloodshot and glassy, his speech was slurred, and he smelled of alcohol. After being
placed in the sergeant’s car, defendant appeared to pass in and out of consciousness.
Defendant refused a breath test but submitted to a blood test. Deputies found an open can
of hard lemonade in defendant’s center console cup holder. Deputies also found an
empty can of hard lemonade and an unopened beer in the car. The parties stipulated that
defendant was driving when his driving privilege had been suspended under Vehicle
Code section 14601.2.1

       1
        Vehicle Code section 14601.2 prohibits a person from driving a motor vehicle
when his or her driving privileges are suspended for a driving under the influence
conviction.
                                              2
       Defendant was held to answer all charges, except the charge that he had driven
with a .08 percent or higher blood alcohol level. (Veh. Code, § 23152, subd. (b).) The
blood test results were not available at the preliminary hearing, and the court sustained
defendant’s objection to a highway patrol officer providing opinion testimony as to
defendant’s blood alcohol level. Defendant later pleaded no contest to the felony evading
charge and to driving under the influence, on the condition that he receive felony
probation with up to one year in jail as a condition of that probation.
       When interviewed by a probation officer, defendant stated that he lived in Santa
Rosa with his sister. On the day of the offense, he drove to Santa Barbara to reconcile
with his wife, who had been ill. He had an “alcohol energy drink” with his lunch in
Gilroy, but did not feel impaired. He attributed any signs of intoxication to the
interaction of that beverage with his type 2 diabetes. He drove away from the sergeant
when first approached because the officer had not activated his lights. Defendant did not
remember whether the sergeant ever activated his lights, but then he said he figured the
lights were for another car in front of him. He denied having any alcohol in his car.
       The probation officer assessed defendant as having “engaged in extremely
dangerous and potentially lethal criminal behaviors.” The assessment continued:
“[Defendant] not only chose to operate a vehicle while intoxicated, but then chose to flee
from Sheriff’s deputies and repeatedly attempted to elude them by feigning yielding. At
one point, the defendant nearly collided with the vehicles of two innocent motorists who
would have likely suffered significant injuries or death had they not had the ability to
move out of the way and off the road. Although the defendant has partially accepted
responsibility for his actions, stating that the instant offense was a ‘mistake,’ he refuted
several of the details of the offense, including his level of intoxication, and displayed a
clear denial of a very apparent alcohol abuse issue.” The probation officer considered
defendant’s conduct to constitute aggravating circumstances under California Rules of
Court, rule 4.421(a)(1) (a crime involving threat of great bodily harm) and
                                              3
rule 4.421(b)(1) (violent conduct indicating a serious danger to society). Still, consistent
with the plea agreement, he recommended felony probation with alcohol restrictions and
treatment.
       At the August 2014 sentencing hearing, the court referred to a .24 blood alcohol
level as it sought clarification of defendant’s criminal history. The probation officer’s
report had noted “no prior criminal history.” But according to the arresting officer’s
report, defendant was driving on a suspended license and had three warrants for driving
under the influence charges. The court asked “So, where is that? Because that – that, and
a .24, would make a big difference to the Court.”2 The prosecutor also commented about
one energy drink “get[ting] to a .24,” reasoning that defendant was “somebody who’s
inexperienced at misleading the Court, makes up stories that are incredible.” Defendant’s
attorney also referenced defendant’s blood alcohol level at the sentencing hearing. In
challenging the probation officer’s impression that defendant was not accountable for his
conduct, defendant’s attorney explained: “The fact that he doesn’t admit to some of the
evidence in the case I don’t think reflects his lack of accountability as much as his lack of
recall, given the alcohol level, the things that were going on [in] his personal life with his
family, and his diabetic condition at the time.” The court’s copy of the probation report
contained hand-written marginalia, which on appeal defendant attributes to the trial
judge, including the notation, “What’s B.A.? .24.”
       The trial court suspended imposition of sentence for five years and placed
defendant on formal probation with conditions including reporting to probation


       2
         Referencing defendant’s rap sheet, the prosecutor explained the suspended
license may have been related to a 1997 driving under the influence conviction “which
would have dropped off after ten years, although the suspended license may not have.”
The prosecutor also noted a 2003 driving under the influence charge with a prior. The
court responded: “So, there is no prior record, his license is suspended, and this is his
first DUI? That’s how we’re looking at this?” The prosecutor replied, “That’s one
view.”
                                              4
immediately upon release from custody, not changing his residence from Sonoma County
without the probation officer’s permission, reporting any change of residence, address, or
phone number within 24 hours, not possessing or consuming illegal drugs or alcohol,
completing an alcohol treatment program, and obeying all laws. The remaining counts
were dismissed.
B.     THE PROBATION VIOLATIONS
       In October 2014, the probation department petitioned under Penal Code section
1203.2 to modify defendant’s probation. The petition stated that defendant had failed to
report to probation upon his release from jail and had failed to report a phone number
change. The clerk sent a notice of probation violation hearing to defendant at his last
known address. Defendant failed to appear at that hearing, his probation was summarily
revoked, and a bench warrant was issued.
       In February 2015, the probation department filed an amended probation violation
petition, adding that defendant had further violated his probation by possessing marijuana
and methamphetamine on January 12, 2015 in Lompoc. Defendant was arrested for the
drug offenses and on outstanding warrants from Monterey and Napa counties. At a
formal hearing, defendant admitted the violations contained in both petitions, and the
matter was set for sentencing.
       According to the supplemental probation report, the Monterey County jail had
released defendant to Napa County in August 2014, and in October the probation officer
had learned that defendant was no longer in custody in Napa. The probation officer
attempted to contact defendant by mail and phone, but neither the address nor phone
number defendant had provided were valid. Defendant told the probation officer that he
had not reported to probation after his release from jail because he did not have any
contact information. He drove to Santa Barbara to be with his wife, and although he
drove through Monterey County, he did not have any money to stop or call probation.


                                             5
His wife called the Public Defender’s office and probation, but she was not given the
probation officer’s name or contact information.
       Defendant provided the probation officer with a Lompoc address different from
the address he had given the Lompoc police when he was arrested. He gave the
probation officer his wife’s number to confirm that address, but the person who answered
at that number did not know defendant. Defendant denied using drugs, claiming
someone had just given him the drugs in January, saying “Here! Try it!” Yet he pleaded
to the January drug possession charges in Santa Barbara County and was ordered to serve
three years supervised probation under Proposition 36. In the probation officer’s view,
defendant had demonstrated an unwillingness to cooperate with probation, and he
recommended that sentence be imposed.
       In April 2015, the court formally revoked and terminated defendant’s probation
and sentenced him to the upper term of three years on count 1, with 345 days custody
credit. Defendant received a concurrent 180-day sentence on count 2, with credit for time
served. Defendant argued for reinstatement of probation, characterizing his
noncompliance as “a mix of misunderstandings.” He pressed that the Napa County
warrant was for an old driving under the influence case, he had never been on formal
felony probation, he had been living with his wife in Lompoc, and he had provided his
attorney with his wife’s phone number which was “off by two” from the number
probation had called. Defendant was ready to undertake the Proposition 36 drug program
in Lompoc, and he asked the court for the opportunity to complete that program and
demonstrate compliance.
       Rejecting defendant’s request, the court commented “in reviewing both
[probation] reports, the court does question the defendant’s ability to tell the truth, at the
time he’s contacted by officers, during probation officers [sic], or any other time. [¶]
Based upon the defendant’s conduct, based upon his poor performance on probation, I
find that he’s no longer amenable to probation. [¶] In reviewing the facts and
                                               6
circumstances of the underlying offense, I do note defendant’s blood alcohol was a .24
when he went on a 2800.2. That was very dangerous and could have resulted in the loss
of life. [¶] Accordingly, due to the extreme dangerousness of this case, in this matter,
probation is revoked as to Count I. Court’s going to impose the upper term of three
years.” The hearing concluded after defendant’s attorney argued for the middle term on
count 1, minimizing the duration and speed of the freeway chase and pressing that
defendant had an insignificant criminal record, had never been on felony probation, and
took early responsibility for his actions.
                                     II. DISCUSSION
A.     STANDARDS OF REVIEW
       Penal Code section 1203, subdivision (a) authorizes a court to revoke and
terminate probation “if the interests of justice so require and the court, in its judgment,
has reason to believe … that the person has violated any of the conditions of his or her
[probation] … or has subsequently committed other offenses[.]” Revocation of
probation is within the sound discretion of the trial court. (People v. Pinon (1973)
35 Cal.App.3d 120, 123, fn. 4.) We will not disturb the court’s discretion to revoke and
terminate probation absent a showing of abusive or arbitrary action. (People v. Silva
(1966) 241 Cal.App.2d 80, 84.)
       When the trial court pronounces judgment after revoking and terminating
probation, it exercises its discretion to impose a lower, middle, or upper term for each
felony count. (Pen. Code, §§ 1170, 1203.2, subd. (c); Cal. Rules of Court, rule 4.420(a).)
The sentencing court “may consider circumstances in aggravation or mitigation, and any
other factor reasonably related to the sentencing decision.” (Cal. Rules of Court, rule
4.420(b).) It must then state the reasons for its selection on the record. (Id., subd. (e).)
“The relevant circumstances may be obtained from the case record, the probation
officer’s report, other reports and statements properly received, statements in
aggravation and mitigation, and any evidence introduced at the sentencing hearing.”
                                              7
(Id., rule 4.420(b).) A trial court abuses its sentencing discretion when it relies on
circumstances that constitute an improper basis for decision. (People v. Sandoval (2007)
41 Cal.4th 825, 847.) “[A] trial court’s reasons for its sentencing choice are upheld if
‘supported by available, appropriate, relevant evidence.’ [Citations].” (People v. Black
(2007) 41 Cal.4th 799, 818, fn. 7.)
B.     DEFENDANT’S ARGUMENT
       Defendant argues that the trial court violated his due process rights by revoking
his probation based on factual findings not supported by substantial evidence. He
contends that the court based its refusal to reinstate probation “on the ‘fact’ that
‘defendant’s blood alcohol was a .24 when he went on a 2800.2,’ ” and that “no
competent evidence supported the court’s factual finding that [defendant] was ‘extremely
dangerous’ because his BAC was .24 during the underlying offense.” He argues that the
court’s handwritten notes cannot be evidence of a fact that was “never adjudicated,
admitted, or presented in the form of competent evidence.”
       1.     Probation Revocation Challenge
       Defendant conflates the trial court’s decision to revoke and terminate probation
with its separate decision to sentence defendant to the upper term on count 1.
Defendant’s probation was summarily revoked, entitling him to a hearing on the validity
of that revocation, i.e., whether he violated the terms of probation. (People v. Youngs
(1972) 23 Cal.App.3d 180, 188.) Here, defendant admitted the violations in full. That
admission constituted proof of multiple probation violations, and was sufficient to
support the probation revocation. (People v. Rodriguez (1990) 51 Cal.3d 437, 446.) We
find no abuse of discretion in the court’s decision to revoke and terminate defendant’s
probation based on defendant’s poor performance on probation.




                                              8
       2.     Sentencing Challenge
              a.     Forfeiture
       The Attorney General argues that defendant forfeited his sentencing challenge
under People v. Scott (1994) 9 Cal.4th 331 (Scott) by not raising his concern in the trial
court. In Scott, the California Supreme Court held that the waiver doctrine will apply “to
claims involving the trial court’s failure to properly make or articulate its discretionary
sentencing choices,” reasoning that “[r]outine defects in the court’s statement of reasons
are easily prevented and corrected if called to the court’s attention.” (Id. at p. 353).
Thus, when a defendant has “a meaningful opportunity to object,” he forfeits his right to
complain on appeal. (Id. at p. 356.) Defendant counters that sufficiency of the evidence
issues are never waived, citing People v. Neal (1993) 19 Cal.App.4th 1114 (Neal), which
stated that forfeiture would not apply to an insufficient evidence challenge to the
imposition of consecutive sentences. (Id. at p. 1117, fn. 2.)
       Although defendant cast his challenge as a sufficiency of the evidence claim, his
argument is not that his blood alcohol level is insufficient to support the trial court’s
sentencing determination. (See People v. Panah (2005) 35 Cal.4th 395, 476 [“ ‘evidence
received without objection takes on the attributes of competent proof when considered
upon the question of sufficiency of the evidence to support a finding.’ ”].) Rather,
defendant disputes the trial court’s consideration of defendant’s blood alcohol level in its
discretionary sentencing determination. As observed by both the Scott and Neal courts,
that type of evidentiary dispute is subject to forfeiture because it could have been
resolved if brought to the trial court’s attention. (Scott, supra, 9 Cal.4th at p. 353; Neal,
supra, 19 Cal.App.4th at p. 1118.) Defendant’s contention is analogous to the forfeited
sentencing claims noted in Neal, and cited with approval in Scott, such as a claim that the
sentencing court erred by considering a defendant’s statement to a probation officer or a
victim’s statement, or a claim that the probation report contained errors. (Neal, at
pp. 1123–1124, citing People v. Santana (1982) 134 Cal.App.3d 773, 785, People v.
                                              9
Jones (1992) 10 Cal.App.4th 1566, 1574, and People v. Chi Ko Wong (1976)
18 Cal.3d 698, 724–725; Scott, at p. 352, fn. 15.)
       Defendant argues that his challenge can be raised in the first instance on appeal
under People v. Butler (2003) 31 Cal.4th 1119 and People v. Viray (2005)
134 Cal.App.4th 1186. In Butler, the Supreme Court held that a defendant may challenge
for the first time on appeal the probable cause finding required to support an HIV testing
order for persons convicted of certain sex offenses. (Butler, at p. 1126.) Viray involved a
substantial evidence challenge to an order requiring the defendant to reimburse the
county for public defender’s services. (Viray, at p. 1213.) Citing Butler, the Viray court
observed that the sufficiency challenge required no predicate objection in the trial court.
(Id. at p. 1217.)
       In our view, defendant’s challenge falls under Scott and Neal, not Butler and
Viray. In Butler the trial court was required by statute to make a probable cause finding
to support the HIV testing order (Butler, supra, 31 Cal.4th at p. 1125), and probable
cause findings are subject to appellate review. (See Pen. Code, § 999a.) Further,
although that order was made in connection with sentencing, it is a stand-alone inquiry
separate from a discretionary sentencing determination. The Butler court made clear that
its decision was driven by the specific terms of the HIV testing statute and should not be
construed to undermine the Scott forfeiture rule. (Butlerat p. 1128, fn. 5.) Similarly, the
forfeiture issue in Viray turned on the conflict inherent in expecting appointed counsel to
object to an order for statutory fees; it was not a challenge to the sentencing court’s
determination, much less a challenge over disputed evidence. We recognize that
defendant presents a factually driven challenge to the trial court’s statement of reasons
for selecting the upper term on count 1. But regardless of how he frames the issue,
defendant’s contention remains a challenge to the trial court’s consideration of certain
evidence in making its sentencing determination—not the sufficiency of that evidence.
Defendant forfeited that challenge by failing to object in the trial court. If defendant
                                             10
believed that the trial court’s reasons for imposing the upper term on count 1 were based
on incompetent evidence, it was incumbent upon him to raise that concern to the trial
court.
                b.     The merits
         Even if defendant had not forfeited his challenge, we would reject it on the merits.
The reasons for imposing the upper term on count 1 were “ ‘supported by available,
appropriate, relevant evidence.’ ” (People v. Black, supra, 41 Cal.4th at p. 818, fn. 7.) It
is undisputed that defendant submitted to a blood test, although the parties were awaiting
those results as of the preliminary hearing. Both the court and the prosecutor made
specific references to a .24 blood alcohol content at defendant’s initial sentencing
hearing. Defendant’s attorney advanced no objection to those references, and in fact
referred to defendant’s “alcohol level” herself to explain his inability to recall events.
We infer from this record that defendant’s blood test results were reported and that all
parties were aware of those results. (See People v. Green (1979) 95 Cal.App.3d 991,
1001 [recognizing “ ‘fundamental principle that all presumptions and intendments are in
favor of the regularity of the action of the lower court in the absence of a record to the
contrary.’ ”].) The court did not abuse its discretion by relying, in part, on a .24 blood
alcohol level to support the upper term sentence on count 1.
         Defendant’s reliance on People v. Self (2012) 204 Cal.App.4th 1054, People v.
Crane (2006) 142 Cal.App.4th 425, and People v. Encinas (1998) 62 Cal.App.4th 489 is
misplaced. In Encinas, the appellate court concluded that the prosecutor had failed to
prove that the defendant’s alleged prior conviction for assault on a peace officer was an
assault committed with a deadly weapon. (Id. at pp. 490–491.) The court rejected the
Attorney General’s argument that the trial court may have learned details about the
assault in considering an earlier motion to dismiss the allegation, noting that such
information did not relieve the prosecutor from proving the allegation at trial. (Id. at


                                              11
p. 492.) In contrast to Encinas, defendant here challenges a discretionary sentencing
decision, not an allegation which the prosecution bears the burden of proving at trial.
       Crane and Self involved the extent to which an out-of-state drunk driving
conviction can serve as a prior conviction under Penal Code section 23626 for purposes
of imposing a sentencing enhancement. The defendant in Crane admitted a conviction
from Colorado for “driving while ability impaired,” but argued the Colorado offense
would not constitute a violation of Vehicle Code section 23152, subdivision (a) if
committed in California. (Crane, supra, 142 Cal.App.4th at pp. 429–430.) The Crane
court held that the Colorado statute, which criminalizes alcohol impairment to the
slightest degree, punishes conduct which would not necessarily constitute driving under
the influence under California law. (Id. at p. 432.) Crane concluded that the trial court
erred by considering a .093 blood alcohol level noted in Colorado documents (including
the arresting officer’s report and handwritten notes on the court minutes) because those
documents “were not proper parts of the ‘record of conviction’ of which the court could
take judicial notice, were inadmissible hearsay, and did not in any way establish that the
BAC was either admitted by or adjudicated against defendant in Colorado.” (Id. at
p. 434.)
       In Self, an Arizona driving under the influence judgment was admitted to prove a
prior conviction special allegation. The defendant challenged the trial court’s
consideration of his blood alcohol level as shown by handwritten notations on the
judgment to establish that the out-of-state conviction qualified as a conviction under
California law. The defendant in Self unsuccessfully moved to dismiss the allegation in
the trial court, arguing that the blood alcohol level notations were not part of the
conviction record. (Self, supra, 204 Cal.App.4th at p. 1057.) Agreeing, the Self court
concluded that the blood alcohol level was not part of the conviction record in that case
because it was not relevant to the determination whether he drove while impaired “to the
slightest degree’ ” under Arizona law. (Id. at p. 1061.)
                                             12
       Crane and Self are distinguishable because they address a trial court’s reliance on
documents prepared by another court or law enforcement agency to prove a prior
conviction under California law. The rules of evidence, which apply to a prior conviction
adjudication, do not strictly limit the trial court when considering the basis for a
discretionary prison sentence. (Cal. Rules of Court, rule 4.420(b).) In further contrast to
Self, where the defendant preserved his evidentiary challenge in the trial court, here
defendant not only failed to challenge the basis for the .24 blood alcohol level at either
his initial sentencing hearing or during the probation violation and ultimate sentencing
proceedings, but counsel acknowledged “the alcohol level” to explain the failure to fully
account for his conduct.
              c.     Prejudice
       Even if we were to conclude that the court erred by relying in part on a .24 blood
alcohol level to impose the upper term on count 1, we would deem that error harmless. A
reversal and remand for resentencing would be appropriate only where it is reasonably
probable that defendant would have received a more favorable result. (People v. Watson
(1956) 46 Cal.2d 818, 836.) It is reasonably probable that the prosecutor, on remand,
would present admissible evidence of the blood test results. (See Butler, supra,
31 Cal.4th at p. 1129 [remanding for prosecution to produce additional evidence to
establish probable cause to support sentencing order].) And the record shows that
defendant was highly impaired regardless of the level of alcohol measured in his blood.
He could not maintain his balance and passed out in the patrol car. As noted in the
probation officer’s initial report, defendant’s reckless conduct threatened great bodily
harm and placed the public in immediate danger. Even without the test results, we do not
see a reasonable probability of a more favorable sentencing result.
                                    III. DISPOSITION
       The judgment is affirmed.


                                              13
                               ____________________________________
                               Grover, J.




WE CONCUR:




____________________________
Rushing, P.J.




____________________________
Márquez, J.
