California Court of Appeal Sep 1, 2016 No. E063033Unpublished
Filed 9/1/16 P. v. Williams 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E063033
v. (Super.Ct.No. FVI1401190)
EDWIN ALDO WILLIAMS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Debra Harris,
Judge. Affirmed.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Arlene A. Sevidal and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and
Respondent.
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Defendant and appellant Edwin Aldo Williams appeals after he was convicted of
driving under the influence of alcohol (DUI) and driving with a blood-alcohol content of
0.08 percent or higher (0.33 percent, in this case). (Veh. Code, § 23152, subds. (a), (b).)
He contends that the trial court abused its discretion in declining to dismiss his strike
prior and instead sentencing him to a doubled prison term as a second striker. We affirm.
reduces certain felonies (mostly theft- or drug-related charges) to misdemeanors and
creates two separate mechanisms for reclassifying felony convictions as misdemeanors,
depending on whether the defendant is currently serving a sentence for an eligible felony
conviction or has completed his or her sentence.
In the tea leaves of these various enactments, defendant divines a legislative
intention to drastically reform sentencing norms away from punishment and toward
rehabilitation. He suggests that the statutory reforms make increased sentences for repeat
offenders an “out-dated justification for harsh sentencing.” He contends that, “[n]ow the
‘spirit of the law’ must be interpreted in light of sentencing changes, rejecting the
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simplistic and disproven notion, that locking people up longer deters recidivism, and
makes us safer.”
Defendant cannot claim, however, that the statutory changes he points to have any
application to him. The requirement that a third strike life sentence be based upon a
serious or violent third strike felony is inapplicable to defendant, who was sentenced as a
second striker. For third strikes that are not serious or violent felonies, the Three Strikes
Reform Act leaves second strike doubled sentences intact. The Three Strikes Reform Act
did nothing to alter second strike sentences. Defendant admits that the explicit purpose
of the Three Strikes law is to ensure longer prison terms for recidivists—those previously
convicted of serious or violent (strike) felonies—and that that stated purpose remains in
place. As to the Realignment Act, defendant also knows that he is ineligible for a local
custody or split sentence because of his prior strike. (Pen. Code, § 1170, subd. (h).)
Defendant’s current offense is a felony. It could have been charged as either a felony or a
misdemeanor (also known as a “wobbler”). However, it was charged as a felony and
remains a felony, despite Proposition 47 and its conversion of certain kinds of less
serious theft and substance abuse cases to misdemeanors. Defendant’s crime is not an
offense that has been statutorily reduced to a misdemeanor. Notably, defendant himself
never applied in the trial court to have his current offense designated a misdemeanor.
(Pen. Code, § 17, subd. (b).) In short, defendant’s claimed “seismic changes” in
sentencing apply only to crimes unlike his and to people unlike himself.
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C. Defendant’s Sentence as a Second Striker Is Not Disproportionate to His
Culpability
Defendant argues that the common thread of the sentencing reforms, as well as
existing Romero case law and constitutional considerations, is to ensure that whatever
punishment is imposed is properly proportional to the offense and the offender. (Citing
Cal. Const., art. I, § 17; see In re Lynch (1972) 8 Cal.3d 410, 425-427.) He contends that
his present second strike sentence (i.e., based upon the failure to dismiss the strike
conviction) is disproportionate to his offense and his personal circumstances and
characteristics. First, the offense is a “wobbler” and so could have been charged as a
misdemeanor. Second, he is an “ill older man.” Third, the trial court, in declining to
dismiss the strike, improperly relied on speculative hearsay, to the effect that defendant
was or must have been the individual reported by bystanders for threatening behavior in
the park. Fourth, the doubled term for a second striker, before the Three Strikes Reform
Act, “was the ‘soft option’ before the enactment of [Penal Code section] 1170.126. Now
for those with a current nonviolent offense, it is the maximum.”
We consider defendant’s points, but we do not find them persuasive.
1. Defendant’s “Wobbler” Offense Was Charged as, and Remains, a Felony
for All Purposes
As to the first point, it is true that defendant’s current offense was a wobbler. But,
as previously noted, it was explicitly charged as a felony and a felony sentence was
imposed. (This was likely because of the seriousness of defendant’s current offense, his
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recent string of almost annual misdemeanor drunk driving convictions [defendant admits
in his briefing that his repeated convictions within the past 10 years were a reason for the
felony charges], and his prior poor performance on parole and probation.) “ ‘ “A wobbler
offense charged as a felony is regarded as a felony for all purposes until imposition of
sentence or judgment. [Citations.] If state prison is imposed, the offense remains a
felony; if a misdemeanor sentence is imposed, the offense is thereafter deemed a
misdemeanor. [Citations.]” ’ ” (People v. Tran (2015) 242 Cal.App.4th 877, 885.) It is
of no moment that defendant’s offenses could have been charged as misdemeanors.
Instead, they were and remain felonies.
2. Defendant’s Age and Medical Conditions Did Not Warrant Dismissal of the
Strike Allegation
As to the second point, defendant appended a declaration to his request to dismiss
the strike; the declaration averred defendant’s age (55 years old) and described various
medical conditions he had. For example, he suffered from apnea, a 10-year-old back
injury, and a recent broken leg, which had left him confined to a wheelchair during most
of his pretrial incarceration. However, as defendant himself acknowledged, the chief
component of defendant’s illness, disease, or disability was his untreated alcoholism.
Defendant averred: “I began drinking when I was twelve years old. My problems with
alcohol have only gotten progressively worse. I have never received any treatment for
that problem. I probably bear some responsibility for this lack of treatment. I have little
doubt that further medical treatment is going to be necessary as my liver continues to
deteriorate.”
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That defendant “probably” bore “some responsibility” for his failure to seek any
treatment for his alcoholism was an understatement. No amount of prior consequences
had yet convinced defendant to seek actual treatment for his disease. Defendant was
largely, if not wholly, responsible for his health issues, and he failed to show
extraordinary circumstances to justify disparate treatment on account of those issues.
“[D]rug addiction [or alcoholism] is not necessarily regarded as a mitigating factor when
a criminal defendant has a long-term problem and seems unwilling to pursue treatment.”
(People v. Martinez (1999) 71 Cal.App.4th 1502, 1511.)
The instant case is one in which defendant’s medical condition of alcoholism
cannot be regarded as a mitigating factor. Defendant has waited until after conviction
and the serious prospect of incarceration to, for the first time, admit that his continued
drinking has severely damaged his health (liver). Even under the impending severity of
his situation, the best that defendant could say was that, if he were granted leniency yet
again, he would “never have another drink for the rest of [his] life,” and—an equally
dubious assurance—that he “plan[ned] on being pro-active in maintaining sobriety.”
(Italics added.) Defendant had absolutely nothing concrete to offer in mitigation of the
most obvious factor in his repeated criminal behavior.
3. The Trial Court Was Permitted to Take Hearsay in the Probation Report
into Account and Did Not Rely Primarily on the Hearsay Matters
As to the third point, the trial court did recite matters from the probation report, to
the effect that defendant may well have been the man who harassed some people in the
park and then drove recklessly when leaving. Defendant objects that the remarks in the
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probation report, repeated by the trial court at sentencing, were pure speculation; the trial
court impermissibly relied on such unproven speculations in declining to dismiss
defendant’s strike prior.1
a. The trial court properly considered the hearsay statements in the
probation report
In considering whether or not to make certain sentencing choices in the first
instance, a trial court may properly refer to hearsay matters within a probation report.
“Superior courts consider and rely upon hearsay statements contained in a presentence
report to determine whether to place a defendant on probation, and to evaluate his [or her]
1 The probation officer reported that a sheriff’s deputy “subsequently interviewed a witness regarding what she observed. She stated she and her family were at the park for a Mother’s Day barbecue when the defendant arrived. He began making lewd gestures with a beer bottle toward several 15-year-old girls. He continued making lewd comments and told one of the girls she had ‘nice boobs.’ Several people confronted the defendant, and he became angry when someone called him a ‘pervert.’ He was asked to leave the park, and when he got into his vehicle, he peeled out of the parking lot. He began driving recklessly back and forth, and drove over the curb onto the grass area, before he left the park driving eastbound on El Camino. . . . [Defendant] sped down the residential street at approximately 60 miles per hour, nearly hitting several children. He sped to the end of the roadway, spun his tires, and continued driving recklessly westbound on Cazadero Road toward Village Drive.” A second witness gave a similar account: “While attending the barbecue, [defendant] got angry and left in his truck driving recklessly. He began doing donuts in the paved parking lot, jumped the curb into the grass area, and sped back and forth, nearly hitting the witness’ vehicle. The defendant then sped to the end of the roadway and proceeded westbound on Cazadero Road at approximately 60 miles per hour.” The implication of the statements was that defendant was an attendee of the barbecue, and was therefore known to the witnesses. The witnesses identified him as the man who drove recklessly from the park shortly before he was stopped. These accounts were, however, hearsay statements when given to the investigating officer, and as repeated in the probation report.
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level of culpability when selecting an appropriate sentence. (Pen. Code, § 1203,
subd. (b)(3); Cal. Rules of Court, rule 4.411(d).) This includes the court’s assessment of
aggravating and mitigating factors, such as whether the crime involved great bodily harm
or other act[s] disclosing a high degree of viciousness, cruelty, or callousness, whether
the victim was particularly vulnerable, whether the crime was carried out with
sophistication, whether the defendant took advantage of a position of trust or confidence,
whether the defendant played a minor role in the crime, whether the victim participated in
the incident and, if so, under what circumstances, and whether the defendant exercised
caution to avoid harm or damage. (Rules 4.420(b), 4.421(a)(1), (3), (8), (11), 4.423(a)(1),
(2), (6).)
“Thus, courts routinely rely upon hearsay statements contained in probation
reports to make factual findings concerning the details of the crime. These findings, in
turn, guide the court’s sentencing decision . . . . As one Court of Appeal has stated, ‘In
every felony proceeding in the State of California, a probation report is required and must
be read and considered by the sentencing judge. [Citation.] The Legislature does not
require trial court judges to read and consider “unreliable” documents as a prerequisite to
the imposition of sentence.’ (People v. Miller (1994) 25 Cal.App.4th 913, 918 [31
Cal.Rptr.2d 423].)” (People v. Otto (2001) 26 Cal.4th 200, 212-213.)
Trial defense counsel asked the court to refrain from considering any matters not
adduced in the trial evidence, referring specifically to the events alleged to have taken
place in the park. On appeal, defendant argues that the events described in the police
report, and repeated in the probation report, were “absurd and unproven.” He asserts that
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the statements were “unreliable hearsay,” and urges that “sentencing factors must also be
rationally based upon preponderant evidence,” but that the police report and probation
report evidence did not meet that standard. Defendant points out that he was not charged
with any crime relating to making lewd remarks, or to dangerous driving, or to trying to
strike pedestrians with his vehicle: “There were no such charges arising out of this
incident, so if there was any credible or trustworthy report of these uncharged crimes, it
would have appeared somewhere, as something the prosecutor espoused, as trustworthy
hearsay.”
We disagree with defendant’s implication. To begin with, there was nothing
inherently absurd about the initial reports to law enforcement, or the witnesses’
subsequent statements made to the police during the investigation. The matters contained
within the hearsay statements include indicia of reliability: the witnesses appeared to
know the identity of the person behaving erratically and driving dangerously. He
appeared to have been an invitee to the social gathering (Mother’s Day barbecue) at the
park. At the preliminary hearing, Deputy Kunzman testified that the witnesses’ reports
from the park identified the man driving erratically by the nickname, “Texas.” In
defendant’s papers requesting a Romero review, defense counsel asserted that the
“probation report reflects ‘facts’ of what allegedly happened at a park before [defendant]
was stopped. There is total disagreement between [defendant] and the version of events
from those people, as their stories are related in both the police and probation reports.”
The request to dismiss defendant’s strike prior did not, however, contain anything further
to indicate any such disagreement. Defendant provided a personal declaration in
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connection with his Romero request. Nowhere in his declaration did defendant deny, or
even address, the incidents at the park which led to the police dispatch broadcast.
Defendant never denied being at the park, being the person who was driving recklessly at
the park, or having the nickname, “Texas.” In his personal declaration, defendant did
include the statement that he wished to “move back to Texas” to be with his children and
grandchildren. He thus had a significant connection to Texas, as might be expected of
someone nicknamed, “Texas.”
When defendant was interviewed by the probation department in preparation of
the sentencing report, he “made no statement with regard to what happened on the day of
the offense, other than to state the people in the park are not his family.” He did not deny
being at the park, driving recklessly, knowing the people at the park, or having the
nickname, “Texas.” Instead, he told the probation officer that, “[h]e is actually a resident
of Texas, but he ha[d] been traveling back and forth between California and Texas every
few months to obtain medical treatment. He want[ed] to return to Texas to be with his
grandchildren.”
There was nothing about the witnesses’ statements, as repeated in the probation
report, that was inconsistent, or improbable, such that they should be deemed inherently
untrustworthy.
In addition, the failure to bring a specific charge after an investigation does not
mean that statements made by witnesses during the investigation are untrustworthy or
false. The charging authority lies with the prosecutor, not with the courts. (People v.
Birks (1998) 19 Cal.4th 108, 134.) “A court should not second-guess the prosecution’s
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decision regarding whether sufficient evidence exists to warrant bringing charges.”
(People v. Nelson (2008) 43 Cal.4th 1242, 1256.) Just because no charges have been
filed against defendant arising from the alleged incidents at the park, does not mean that
the statements alleging the uncharged conduct are automatically untrustworthy. As
previously noted, the trial court is not precluded from considering uncharged conduct or
hearsay statements contained in the probation report when it is making its sentencing
determinations. (People v. Otto, supra, 26 Cal.4th 200, 212-213.)
b. Even if the trial court improperly considered the hearsay statements in
the probation report, any error was harmless because the court had sufficient
independent justification to deny the request to dismiss defendant’s strike prior
The trial court did repeat the gist of the witnesses’ stories about the man driving
dangerously in the park, but any error in its recitation of the hearsay statements was
harmless. If the hearsay statements had been absent from the probation report, the trial
court still had ample and controlling reasons to refuse to dismiss defendant’s strike prior.
(See People v. Santana (1982) 134 Cal.App.3d 773, 784 [even though the trial court
considered improper arrest data when selecting the aggravated term for sentencing, any
error was harmless because the trial court also articulated several additional valid
reasons].)
According to defendant’s probation report, defendant had a fairly extensive
criminal history dating back over 30 years to 1981. That year, he was convicted of auto
theft in Texas and sentenced to four years’ imprisonment. He was paroled and eventually
discharged in 1987. In 1990, just three years after his discharge, defendant was convicted
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in California of being a felon in possession of a firearm and was sentenced to 16 months
in state prison. Four months later, in August 1990, defendant was convicted of
possession of a controlled substance. He received another 16-month state prison
sentence, to run concurrent with his firearm possession conviction. In 1993, defendant
was convicted of felony taking and driving a motor vehicle, granted probation for
12 months, conditioned on serving 365 days in county jail, and ordered to pay restitution.
In April 1996, defendant was convicted of misdemeanor corporal injury to a spouse or
cohabitant. On that occasion, he was granted probation for 36 months, with an order to
serve 27 days in county jail. About a month later, in May 1996, defendant was convicted
of felony assault with a deadly weapon, other than a firearm. He was sentenced to three
years in state prison.
Defendant continued to offend into the 2000’s. In July 2000, defendant was
convicted of robbery and sentenced to four years in state prison. In 2006, defendant was
convicted of misdemeanor driving without a license and received a probationary term of
36 months, with the requirement that he serve two days in county jail. In November
2009, defendant was charged with misdemeanor drunk driving and eventually convicted
in April 2012. He received a probationary term of 36 months, plus a fine and 180 days in
county jail, to run concurrent with another 2012 conviction. Also in November 2009,
defendant was convicted in Utah of DUI and sentenced to 60 days in county jail, plus a
fine. About four months later, in March 2010, defendant was charged with another
misdemeanor offense in Utah, bypassing an ignition lock device and obstructing a court
order. He was convicted and fined in April 2010. Back in California, defendant was
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charged with another misdemeanor DUI offense in June 2010 and convicted in
April 2012. He was given a probationary term of 36 months, including serving 180 days
in county jail. In October 2010, defendant was charged with yet another misdemeanor
DUI offense in California. He was convicted in April 2012 and admitted a prior strike.
He was sentenced to 36 months’ probation (to be served concurrent with the sentences on
his offenses of June 2010 and Nov. 2009), fined, and ordered to serve 180 days in county
jail and complete a “multiple offender” program.
After this lengthy history, defendant committed the instant felony offense in
May 2012, just a month after embarking on the concurrent probationary terms he had
been granted for his three most recent prior California misdemeanor drunk driving
offenses.
Manifestly, defendant was a repeat offender, who did not learn from multiple
opportunities to reform himself. More lenient treatment was insufficient to stop him from
committing more and more serious offenses. He performed poorly on parole and
probation and had numerous violations. He had no insight into his problems and had
taken no steps to remediate them. Defendant was exactly the kind of repeat offender for
whom the Three Strikes law was devised. In this context, the trial court’s remarks
(repeating the witnesses’ hearsay statements that defendant may have been angry and
driving recklessly while extremely intoxicated) did not affect the key assessment. The
court did not “rely on” the “lurid hearsay” to “deny[] him otherwise appropriate
sentencing relief.” Dismissing defendant’s strike prior was not “otherwise appropriate.”
Defendant was appropriately treated as a second strike offender, based on his record, his
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personal characteristics, his prospects, and the nature of the present offense. The trial
court properly denied defendant’s request to dismiss his strike prior, regardless of any
remarks about the hearsay statements in the probation report.
DISPOSITION
The trial court did not abuse its discretion in declining to dismiss defendant’s
strike prior. The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J. We concur:
MILLER J.
SLOUGH J.
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AI Brief
AI-generated · verify before citing
Holding. The trial court did not abuse its discretion in refusing to dismiss the defendant's prior strike conviction, as it properly considered the relevant factors and the defendant's extensive criminal history.
Issues
Did the trial court abuse its discretion by declining to dismiss the defendant's prior strike conviction?
Did the trial court improperly rely on hearsay evidence in the probation report when sentencing the defendant?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The appropriate standard of review of a trial court’s ruling declining to dismiss a strike is a deferential abuse of discretion standard.”
“The trial court did consider the relevant factors and concluded that defendant did not fall outside the spirit of the Three Strikes law; the court therefore refused to dismiss defendant’s strike prior.”