People v. Perry CA3

Filed 12/20/13 P. v. Perry CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Placer) ----

THE PEOPLE,

Plaintiff and Respondent, C072728

v. (Super. Ct. No. 62115729)

KEVIN M. PERRY,

Defendant and Appellant.

A jury convicted defendant Kevin Perry of evading a peace officer while driving in a direction opposite traffic (count one), evading a peace officer with willful and wanton disregard for the safety of others (count two), misdemeanor hit and run (count three), and resisting a peace officer (counts four through six). The trial court determined that defendant was ineligible for probation and sentenced him to two years in prison on count two, two years concurrent on count one, and six months concurrent on each of counts three through six.

1

Defendant now contends the trial court abused its discretion in finding him ineligible for probation, and his trial counsel was ineffective in failing to object. Defendant also contends the sentence for evading arrest while driving in a direction opposite of traffic (count one) should have been stayed pursuant to Penal Code section 654. We conclude that although the trial court did not have sufficient information to find that defendant was ineligible for probation, defendant’s contention is forfeited because he did not object at sentencing. Moreover, trial counsel was not ineffective in failing to object because defendant was adamant that he did not want probation. But the concurrent sentence for evading arrest while driving in a direction opposite of traffic (count one) should have been stayed pursuant to Penal Code section 654. We will modify the judgment and affirm the judgment as modified. BACKGROUND Officer Ryan Steele, with the Department of Parks and Recreation, attempted to stop defendant for a Vehicle Code violation as defendant drove out of Folsom Lake State Recreation Area. Defendant did not stop, but instead proceeded on Auburn-Folsom Road at approximately 45 to 50 miles per hour and crossed into the opposing lane of traffic. When Officer Steele turned on his siren, defendant accelerated to between 85 to 90 miles per hour. The pursuit continued into a residential neighborhood, where Officer Steele lost sight of defendant’s car and ended the pursuit. Defendant’s driving caused another driver, Ronald Evans, to swerve in an effort to avoid being hit. Rocks and debris hit Evans’s car, chipping the paint. Steele continued to look for defendant’s car and found it disabled further down the road. There was damage to the front end and one of the front tires was blown out. Defendant was not in the car, but officers found him in the weeds. Although defendant fled when an officer approached him, defendant was ultimately arrested.