People v. Ware CA4/2

• Court: California Court of Appeal
• Decided: September 29, 2023
• Docket: E080353
• Status: Unpublished

Opinion

Filed 9/29/23 P. v. Ware 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E080353

v. (Super.Ct.No. BPR2201060)

ALPHONSO WARE, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Sylwia Luttrell,

Temporary Judge. (Pursuant to Cal. Const., art VI, § 21.) Affirmed.

Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Susan Sullivan Pithey, Assistant Attorney General, Roberta L. Davis and David

A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.

1 Defendant and appellant Alphonso Ware appeals from a judgment revoking his

parole and remanding him to the Department of Corrections and Rehabilitation for further

parole consideration pursuant to Penal Code section 3000.8, subdivision (h).1 Defendant

was under parole supervision following his release from state prison upon a conviction

for second degree murder (§ 187, subd. (a)) for which an indeterminate sentence of 17

years to life in prison was imposed. After being released on parole for approximately

three years, defendant was arrested for driving under the influence of alcohol (Veh. Code,

§ 23152, subd. (a)) and driving without a valid driver’s license. (Veh. Code, § 12500,

subd. (a).) The court found defendant was in violation of his special conditions and

revoked his parole. Defendant appealed.

On appeal, defendant argues (a) there is insufficient evidence he was driving while

intoxicated; (b) insufficient evidence he drove without a valid license; (c) his counsel

provided ineffective assistance by failing to object to evidence of defendant’s blood

alcohol level and the evidence of his unlicensed status; and (d) reversal of the drunk

driving allegation requires remand for reconsideration of the revocation of parole. We

affirm.

BACKGROUND

In 1989, defendant was convicted of second degree murder with an enhancement

for use of a firearm, for which he received a sentence 17 years to life, with possibility of

parole. On October 9, 2019, defendant was released on parole subject to certain special

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 conditions, including conditions that he “shall not engage in conduct prohibited by law

(state, federal, county, or municipal)”, as well as special conditions prohibiting

consumption, possession or having access to alcohol in any form. For approximately

three years, defendant incurred no violations of his parole and had no substance abuse

issues.

On August 27, 2022, at 1:53 a.m., defendant was observed driving in a black

Honda Insight, eastbound on State Route 91, west of the Tyler Street offramp by a

California Highway Patrol officer. The officer observed defendant for approximately

three miles and noticed defendant weaving between lanes three or four times and

following another car too closely. The officer instructed defendant to exit the freeway

and initiated a traffic stop; defendant, the only occupant of the vehicle, exited the freeway

and pulled over to a stop.

The officer approached defendant, and, through the driver’s door window, the

officer detected a strong odor of alcohol and noticed defendant’s eyes were red and

watery. The defendant provided a California Identification Card; information provided to

the officer by dispatch revealed that defendant did not have a valid driver’s license. The

officer asked defendant to exit the vehicle because he suspected defendant was under the

influence of alcohol.

The defendant informed the officer he was returning home to Moreno Valley after

working in Orange County. He admitted consuming two 12-ounce Michelob Ultras

between 6:30 and 8:30 p.m. The officer conducted a horizontal gaze nystagmus test, and

3 the results were indicative of alcohol intoxication. The officer demonstrated and asked

defendant to perform a one-leg stand but defendant responded by saying, “Just take me to

jail,” and informed the officer he was on parole.

The officer, after observing the defendant for 15 minutes, obtained defendant’s

agreement to perform a voluntary preliminary alcohol screening test (PAS), taking the

first breath sample at 2:06 a.m. and the second sample at 2:08 a.m.2 The result of the first

sample indicted defendant’s blood alcohol by breath was 0.162 percent, while the second

sample yielded a result of 0.176 percent.

After the second sample was obtained, the officer placed defendant under arrest

for driving under the influence of alcohol. The officer then offered defendant a chemical

test and defendant elected to submit to a breath test. Using the same device with the

evidentiary settings, the first breath test indicated that at 2:18 a.m., defendant’s blood

alcohol level was 0.16, and a second test administered at 2:21 a.m. indicated the same

blood alcohol level. The officer then transported defendant to jail.

On September 28, 2022, a petition for revocation of parole was filed by the

Division of Adult Parole Operations of the Department of Corrections and Rehabilitation,

alleging defendant violated the special condition of parole requiring defendant to avoid

engaging in conduct violating any state, federal, county or municipal law by (1) driving

under the influence of alcohol or drugs, in violation of Vehicle Code section 23152,

2 The PAS device has two settings, one is a screening setting for preliminary assessments of alcohol, and another is an evidentiary setting for results to be offered into evidence in a court.

4 subdivision (a), and (2) driving without a license, in violation of Vehicle Code section

12500, subdivision (a).

Defendant denied the petition and an evidentiary hearing was conducted on

December 8, 2022. After hearing the testimony of witnesses and hearing arguments of

counsel, the court found defendant in violation of his conditions of parole, revoked his

parole, and remanded defendant to the CDCR for further parole consideration pursuant to

section 3000.8, subdivision (h).

On December 13, 2022, defendant timely appealed.

DISCUSSION

Defendant challenges the decision to revoke his parole. Along the way, he argues

there is insufficient evidence to support two of the stated grounds for finding defendant

was in violation of the conditions of his parole.

In order to revoke parole, the finder of fact must determine by a preponderance of

the evidence that the parolee violated the condition alleged in the petition for revocation.

(Morrissey v. Brewer (1972) 408 U.S. 471, 488-490 [92 S. Ct. 2593, 33 L. Ed. 2d 484];

People v. Rodriguez (1990) 51 Cal.3d 437, 441 (Rodriquez); In re Prewitt (1972) 8

Cal.3d 470, 473-474.) Trial courts have broad discretion in determining whether a

probationer or parolee has violated any conditions of probation. (See Rodriguez, supra,

at p. 443.) We review an order revoking parole for abuse of discretion. (People v.

Butcher (2016) 247 Cal.App.4th 310, 318.) The facts supporting a parole revocation

must be proved by a preponderance of the evidence. (Rodriguez, supra, at p. 441.)

5 Section 1203.2 provides the court may revoke probation if it has reason to believe

that the person has violated any of the probation conditions. More lenient rules of

evidence apply than at criminal trials [citation], and the facts supporting revocation need

only be proved by a preponderance of the evidence. [Citation.]” (People v. Monette

(1994) 25 Cal.App.4th 1572, 1575.) “‘[T]he standard of proof used in a criminal trial,

namely the “beyond a reasonable doubt” standard . . . [,] is inapplicable to the probation

revocation hearing. [Citations.]’ [Citation.]” (Rodriguez, supra, at p. 445.)

1. Substantial Evidence to Support the Drunk Driving Allegation

Defendant argues there is insufficient evidence to support the claim he violated

probation by driving while under the influence of alcohol because the officer who

obtained his blood alcohol tests did not comply with Title 17 of the California Code of

Regulations regarding the administration of PAS and chemical breath tests for blood

alcohol levels. We disagree.

“We review a probation or a parole revocation decision pursuant to the substantial

evidence standard of review.” (People v. Urke (2011) 197 Cal.App.4th 766, 773, citing

People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681 (Jones).)

“The standard is deferential: ‘When a trial court’s factual determination is

attacked on the ground that there is no substantial evidence to sustain it, the power of an

appellate court begins and ends with the determination as to whether, on the entire record,

there is substantial evidence, contradicted or uncontradicted, which will support the

determination.’ [Citation.]” (Jones, supra, 18 Cal.4th at p. 681, italics omitted.)

6 Section 1203.2, subdivision (a) confers great flexibility upon judges making the

probation revocation determination. Evidence that a probationer has committed another

criminal offense during the period of his probation is admissible at a revocation hearing

despite the probationer’s having been acquitted of the criminal charge at trial. (In re

Coughlin, supra, 16 Cal.3d at p. 58.) This is because, “[a]s the language of section

1203.2 would suggest, the determination whether to grant or revoke probation is largely

discretionary.” (Coughlin, supra, at p. 56, citing In re Larsen (1955) 44 Cal.2d 642, 645,

and In re Davis (1951) 37 Cal.2d 872, 875 [disagreed with on a different point in People

v. Vickers (1972) 8 Cal.3d 451, 455]; see also Rodriguez, supra, 51 Cal.3d at p. 443.)

In the present case, the petition to revoke defendant’s parole did not allege he was

driving with a blood alcohol level of 0.08 or above, pursuant to Vehicle Code section

23152, subdivision (b). Instead, it alleged he was driving under the influence of alcohol,

within the meaning of section 23152, subdivision (a). The generic offense of “driving

under the influence” of alcohol does not require proof of any specific blood alcohol level;

it simply requires proof the defendant’s driving was impaired by the effects of alcohol.

(People v. McNeal (2009) 46 Cal.4th 1183, 1197.) In a generic DUI case, Vehicle Code

section 23610 creates a rebuttable presumption that the defendant was under the influence

of alcohol if a chemical test measures his blood-alcohol concentration at 0.08 percent or

higher. (McNeal, supra, at p. 1197.) The inclusion of subdivision (b) of Vehicle Code

section 23152, was to establish a basis for a violation without having to show driver

impairment. (McNeal, supra, at p. 1197.) In the present case, the record adequately

7 proves defendant’s driving was impaired. Evidence of blood alcohol test results was

surplusage.

In the present case, there was sufficient evidence showing defendant’s driving was

impaired: he weaved between lanes several times and followed the car ahead of him too

closely. In addition, when instructed to exit the freeway and turn right, defendant turned

left before coming to a stop. This alone was sufficient to establish the requisite degree of

proof that defendant violated his parole conditions.

Further, defendant admitted consuming alcohol, a violation of the special

condition of parole prohibiting him from consuming alcohol and he was unable to

complete the field sobriety tests.

Finally, any arguments challenging the manner in which the breath tests were

conducted were forfeited by defendant’s failure to raise the issues at the hearing. “In

order to preserve an issue for appeal, a party ordinarily must raise the objection in the

trial court.” (In re S.C. (2006) 138 Cal.App.4th 396, 406, citing In re S.B. (2004) 32

Cal.4th 1287, 1293.) “The rule that contentions not raised in the trial court will not be

considered on appeal is founded on considerations of fairness to the court and opposing

party, and on the practical need for an orderly and efficient administration of the law.”

(People v. Gibson (1994) 27 Cal.App.4th 1466, 1468; see also, In re Dakota S. (2000) 85

Cal.App.4th 494, 501.)

8 There was ample evidence to support the court’s finding defendant violated the

conditions of parole. The trial court did not abuse its discretion by finding defendant in

violation of his parole based on his driving under the influence of alcohol.

2. Substantial Evidence to Support the Driving Without A License Allegation.

Defendant also challenges the adequacy of proof that defendant was driving while

unlicensed, complaining there was inadequate foundation for admission of the officer’s

testimony he obtained information about defendant’s license status from dispatch. We

disagree.

First, without repeating ourselves, we point out that defendant forfeited any error

by failing to object to the officer’s testimony on the ground it lacked foundation. Second,

we find no error in the officer’s reliance on information relayed through official channels,

insofar as it was offered to establish probable cause to arrest defendant for the violation

and was not proffered for a hearsay purpose.

Officers act reasonably in relying upon information from computerized databases

in making an arrest or conducting a search, provided there is no showing the records were

deliberately or recklessly maintained. (See Arizona v. Evans (1995) 514 U.S. 1, 16 [115

S.Ct. 1185, 131 L.Ed.2d 34] [officer acted objectively reasonably when he relied upon

the police computer record]; Herring v. United States (2009) 555 U.S. 135, 140, 143

[search and seizure violation caused by officers reliance on incorrect warrant records did

not require suppression unless the officers knew the information was incorrect when they

relied upon it].)

9 While the fact the officer received the evidence from a dispatcher, an out of court

declarant, it was not offered for a hearsay purpose; it was offered as relevant to show the

effect the information had on the officer in making the arrest. (Evid. Code, § 1200,

[hearsay is evidence of a statement that was made other than by a witness while testifying

at the hearing and that is offered to prove the truth of the matter stated].) The information

relayed by dispatch to the officer about the status of defendant’s driving privileges

provided probable cause to believe the violation occurred. But even if offered for a

hearsay purpose, any error would be harmless because the defendant admitted he was

wrong in driving without a license.

We note that defendant makes no attempt to argue the information that was

relayed was unreliable or incorrect. This is no doubt due to the fact defendant admitted

he drove while unlicensed. (People v. Watson (1956) 46 Cal.2d 818, 836.)

Having failed to make an objection to admission of the evidence that the officer

received from dispatch information that defendant did not have a valid license, either on

the ground there was inadequate foundation or on hearsay grounds, any claim of error

was forfeited. The trial court’s finding of the parole violation was proper and there was

substantial evidence to support the finding.

3. Defendant Was Not Deprived of Effective Assistance of Counsel

Defendant, recognizing the forfeiture of the above claims, argues he was deprived

of effective assistance of counsel for his attorney’s failure to object. We disagree.

10 The law governing claims of ineffective assistance of counsel is well-settled. The

federal and state Constitutions guarantee criminal defendants the right to adequate

representation by counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; People v.

Vines (2011) 51 Cal.4th 830, 875, overruled on another ground as stated in People v.

Hardy (2018) 5 Cal.5th 56, 104.) To prevail on a claim of ineffective assistance of

counsel, a defendant must show both “that counsel’s performance was deficient,” such

that “counsel was not functioning as the ‘counsel’ [constitutionally] guaranteed,” and

“that the deficient performance prejudiced the defense.” (Strickland v. Washington

(1984) 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674; People v. Centeno (2014)

60 Cal.4th 659, 674.)

In the absence of such a showing, we presume that “‘“counsel’s performance fell

within the wide range of professional competence and that counsel’s actions and

inactions can be explained as a matter of sound trial strategy.” [Citation.]’” (People v

Bell (2019) 7 Cal.5th 70, 125.) “[D]eciding whether to object is inherently tactical, and

the failure to object will rarely establish ineffective assistance.” (People v. Maury (2003)

30 Cal.4th 342, 419, citing People v. Hillhouse (2002) 27 Cal.4th 469, 502; People v.

Scott (1997) 15 Cal.4th 1188, 1223.) Thus, “[i]f the record ‘sheds no light on why

counsel acted or failed to act in the manner challenged,’ an appellate claim of ineffective

assistance of counsel must be rejected ‘unless counsel was asked for an explanation and

failed to provide one, or unless there simply could be no satisfactory explanation.’

[Citations.]” (People v. Ledesma (2006) 39 Cal.4th 641, 746.) “[D]eciding whether to

11 object is inherently tactical, and the failure to object will rarely establish ineffective

assistance.” (People v. Maury (2003) 30 Cal.4th 342, 419, citing People v. Hillhouse

(2002) 27 Cal.4th 469, 502; People v. Scott (1997) 15 Cal.4th 1188, 1223.)

Additionally, in the absence of prejudice, the reviewing court may reject the claim

of ineffective assistance of counsel without reaching the issue of deficient performance.

(Strickland v. Washington (1984) 466 U.S. 668, 697; see In re Fields (1990) 51 Cal.3d

1063,1079.)

Here, defendant admitted the conduct that formed the basis for the parole

violation. Whether or not counsel objected to the claimed evidentiary errors, and even if

the evidence had been excluded upon a timely objection, it is not reasonably likely that a

different result would have occurred.

Counsel provided constitutionally effective assistance.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.

We concur:

FIELDS J.

RAPHAEL J.