California Court of Appeal Aug 26, 2015 No. E061310Unpublished
Filed 8/26/15 P. v. Terrell CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E061310
v. (Super.Ct.No. RIF1301728)
JAMES CLIFFORD TERRELL, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge.
Affirmed.
Laurel M. Nelson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, and Annie
Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
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I
INTRODUCTION
Defendant James Clifford Terrell appeals from judgment entered following a jury
conviction for evading a peace officer with wanton disregard for safety (Veh. Code,
in Count 1 is non-serious, non-violent, and non-registerable, the defendant is ineligible to
serve any period of incarceration in the county jail, pursuant to 1170(h), because Penal
Code Section 30305(a), does not stipulate the sentence can be served pursuant to
1170(h).[2] As such, imprisonment must be served in state prison, should the Court
2The probation officer’s reference to Penal Code section 30305, subdivision (a), appears to be inadvertent clerical error. Penal Code section 30305, subdivision (a)(1),
[footnote continued on next page]
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choose to deny probation, and impose and execute a sentence.” The probation officer
further stated that probation should be denied because the case was not an unusual case
under Penal Code section 1203, subdivision (e)(4). It was recommended the court
sentence defendant to state prison.
As recommended, the court denied probation, stating that it declined “the
opportunity to find this an unusual case.” The court proposed imposing an aggregate
sentence of five years, consisting of the middle term of two years on the section 2800.2
conviction, plus one year for each of the three priors. Defense counsel argued defendant
should receive probation because the case was unusual. Defense counsel asserted that
defendant had been trying to change his life and had stayed out of trouble the majority of
the time after his last release.
The court rejected defense counsel’s request, noting that, although no one was
injured, defendant’s offense subjected the officer, defendant, and innocent bystanders to
serious harm. The court found the case was not unusual, denied probation, and
concluded sentencing was unavailable under Penal Code section 1170, subdivision (h).
The trial court imposed the originally proposed sentence of five years in state prison.
[footnote continued from previous page] [footnote continued from previous page] states: “No person prohibited from owning or possessing a firearm . . . shall own, possess, or have under custody or control, any ammunition or reloaded ammunition.” Penal Code section 30305, subdivision (a), was not at issue in this case. Most likely the probation officer intended to refer to section 2800.2, rather than Penal Code section 30305.
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Defendant argues he qualified for sentencing under the Realignment Act, which
directs that those subject to the Realignment Act be sentenced to incarceration in county
jail. (Pen. Code, §§ 17.5, subd. (a), 1170, subd. (h)(1), (2).) The People disagree. Citing
People v. Guillen (2013) 212 Cal.App.4th 992, 995, the People argue a section 2800.2
offense is not subject to the Realignment Act because the statute expressly states that a
felony offense under section 2800.2 shall be punished by imprisonment in state prison.
The Realignment Act generally provides that low-level felons who do not have
prior convictions for serious, violent, or sex offenses, are eligible to serve their terms of
imprisonment in local custody rather than state prison. (Pen. Code, § 17.5, subd. (a);
People v. Cruz (2012) 207 Cal.App.4th 664, 671.) If the statute for the charged offense
specifies the defendant shall be punished by imprisonment pursuant to Penal Code
section 1170, subdivision (h), without specifying a particular term of punishment, the
crime is “punishable by a term of imprisonment in a county jail for 16 months, or two or
three years.” (Id., subd. (h)(1).) “If the penal statute calls for punishment pursuant to
section 1170, subdivision (h), and specifies a term, the offense is ‘punishable by
imprisonment in a county jail for the term described in the underlying offense’ (id., subd.
(h)(2)), even when the sentence exceeds the 16-month, two-year, or three-year triad.”
(People v. Cruz, supra, 207 Cal.App.4th at p. 671.)
In People v. Guillen, supra, 212 Cal.App.4th 992, the defendant was convicted of
driving under the influence of alcohol. The defendant admitted having a prior felony
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conviction and was sentenced to state prison. The court in Guillen held that the
defendant was not eligible for sentencing under the Realignment Act. (Id. at p. 995.)
Here, as in Guillen, the statute under which defendant was convicted (§ 2800.2,
subd. (a)) is a Vehicle Code statute and does not specify a sentencing term, does not refer
to imprisonment under Penal Code section 1170, subdivision (h), and states that
punishment shall be either imprisonment in the state prison or confinement in the county
jail for not more than one year. The court in Guillen explained the defendant was
statutorily ineligible to serve his sentence in county jail pursuant to realignment
legislation: “‘As part of the Realignment Legislation, the statutes defining many
substantive offenses were amended to provide for felony punishment under [Penal Code
section] 1170(h). [Citations.] However, the statutes defining many other substantive
offenses provide that the sentence must be served in state prison. [Citations.]’ Thus, by
failing to include language in [Vehicle Code] section 23550.5[3] authorizing punishment
pursuant to Penal Code section 1170, subdivision (h), the Legislature intentionally
excluded defendants convicted of that offense from eligibility for a county jail sentence.”
(People v. Guillen, supra, 212 Cal.App.4th at pp. 995-996.)
Likewise, here, the language in section 2800.2, subdivision (a), excludes
defendants convicted of violating section 2800.2 from eligibility for punishment under
3 This statute states the offense and punishment for multiple driving under the influence violations within 10 years.
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the Realignment Act because the statute requires the sentence be served in state prison
and fails to include any language authorizing punishment under Penal Code section 1170,
subdivision (h). (People v. Guillen, supra, 212 Cal.App.4th at pp. 995-996.) Since the
Legislature did not amend section 2800.2 to provide that the felony offense is punishable
under Penal Code section 1170, subdivision (h), sentencing under the Realignment Act is
inapplicable and defendant’s sentence in state prison is proper.
VI
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
McKINSTER Acting P. J.
KING J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that there was sufficient evidence to support a conviction for evading a peace officer because the siren requirement under Vehicle Code section 2800.1 is only mandatory when reasonably necessary, and the trial court did not commit prejudicial error by striking irrelevant testimony regarding a prior offense.
Issues
Whether there was sufficient evidence to support a conviction for evading a peace officer when the siren was not used during the entire pursuit.
Whether the trial court committed prejudicial error by admitting testimony of a prior uncharged offense that was later stricken.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“the plain language of subdivision (a)(2) indicates the prevailing factual circumstances dictate whether sounding a siren is required to find a person guilty of evading a peace officer.”
“the trial court appropriately ordered stricken Callahan’s testimony and instructed the jury not to consider it.”
“It is not reasonably probable the outcome in this case would have been any different had Callahan not testified.”