Filed 6/13/ 16 P. v. A lmanza CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent,

v. RAMON ALVAREZ ALMANZA, Defendant and Appellant. H042190 (Monterey County Super. Ct. No. SS141131 )

Defendant was placed on probation after entering no contest plea s to evading a peace officer and driving under the influence of alcohol

. After defendant admitted probation violations , p robation was revoked and he was sente nced to the upper term of three years on the evading charge.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. U NDERLYING C HARGES On May 5, 2014, defendant wa s 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, § 28 00.2, 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 ) ;2

driving on a suspended lice nse ( Veh. Code, § 14601.2, subd. (a); count 4, a misdemeanor); a nd speeding (Veh. Code, § 22350 ; count 5 , an infraction). The arresting officer, a Monterey County Sheriff’s sergeant, testified at the preliminary hearing that he encounter ed 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 a s 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 caus ing 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 arrest ed

. Defendant got out of his car slowly . He had trouble
walki ng and leaned against the car. He refused the officers’ commands , h is 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

. De fendant refused a breath test but submitted to a blood test. De puties found an open can of h ard l emonade 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.3

D efendant 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)

. ) T he 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. D efendant 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 ye a r 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. O n 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 int oxication to the interaction of that beverage with his type 2 diabetes. H e drove away from the sergeant when first approached because the officer had not activate d his lights. D efendant 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.
T he probation officer assess ed defendant as having “ engaged in extremely dangerous and potentially lethal criminal behaviors .” The as sessment continued: “[D efendant ] not only chose to operate a vehicle while intoxicated, but then chose to f lee
from S heriff’s deputies and repeatedly attempted to elude them by feigning yielding . At one point, the defendant nearly collided with the vehic les 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 a ctions, 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 constitu te aggravating circumstances under California Rules of Court, rule 4.421(a)(1) (a crime involving threat of great bodily harm) and4

rule 4.421(b)(1) (violent conduct indicating a serious danger to society). Still, consistent with the plea agreement, he rec ommended 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 a ccording 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.” Defe ndant’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 , d efendant’s attorney explained: “ The fact that he doesn’t ad mit 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.”
T he trial court suspended imposition of sentence for five years and place d
def endant on formal probation with conditions includ ing reporting to probation

2 Referencing defendant’s rap sheet, the prosecutor explained the suspended lice nse 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.”5

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 a n alcohol treatment pro gram, and obeying all laws. The remaining counts
were dismissed.
B

. T HE P ROBATION V IOLATION S In October 2014 , the probation department petition ed 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 ph one number change. The clerk sent a n otice 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.
I n February 2015 , the probation department filed an amended probation violation petition , adding that defendant had further violated his probation by posses sing marijuana and methamphetamine on January 12, 2015 in Lompoc

. D efendant was arrested for the drug offenses and o n outstanding warrants from Monterey and Napa counties. At a formal hearing , d efendant admitt ed 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 pho ne number defendant had provided were valid. D efendant told the probation officer that he
had not report ed to probation after his release from j ail because he did not have any contact information. He drove to Santa Barbara to be with his wife , and a lthough he drove through Monterey County, he did not have any money to stop or call probation.6

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 defen dant. Defendant denied using drugs, claiming
someone had just given him the drugs in January, saying “Here! Try it!” Yet he ple a d ed
to th e January drug possession charges in Santa Barbara County and was ordered to serve three years supervised probatio n under Prop osition 36. In the probation officer’s view, defendant had demonstrated an unwillingness to cooperate with probation, and he recommended that sentence be imposed.
I n April 2 0 1 5, the court formally revoked and terminated defendant’s probation

an d 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

attor ney with his wife’s phone number which was “off by two” from the number probation had called. Defendant was ready to undertake the P roposition 36 drug program in Lompoc, and h e asked the court for the opportunity to complete that program and
demonstrate c ompliance

. 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 and7

circumstances of the underlying offense, I do note defendant’s blood alcohol w as 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 uppe r 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 a n in significant criminal record , had never been on felony probation , and took early responsibility for his actions

. II. DISCUSSION
A. S TANDARDS OF R EVIEW 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 pronounce s 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 r elevant 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.”8

( 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 choi c e are upheld if ‘supported by available, appropriate, relevant evidence.’ [Citations].” ( People v. Black (2007) 41 Cal.4th 799, 818, fn. 7.)
B

. D EFENDANT ’ S A RGUMENT Defendant argues that the trial court violated his due process rights by revoking his p robation based on factual findings not supported by substantial evidence

. H e contends that the court based its refusal to reinstate probation “ on the ‘fact’ that ‘defendant’s blood alcohol was a .24 when he we nt on a 2800.2, ’ ” and that “no competent evid ence 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
D efendant conflates the trial court’s de cision to revoke and terminate probation
with its separate decision to sentence defendant to the upper term on cou n t 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 ful l. That admission constituted proof of multiple probation violation s , and was sufficient to support the probation revo cation . ( People v. Rodriguez (1990) 51 Cal.3d 437, 446.) We
find no abuse of discretion in t he court ’s decision to revoke and terminate defendant’s probation based on defendant’s poor performance on probation.9

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 choice s , ” reasoning t hat “[r]outine defects in the court’s statement of reasons are easily prevented and corrected if called to the court’s attention.” ( I d

. at p. 353). Thus, when a defendant has “a m eaningful opportunity to object ,” he forfeits his right to complain on appe al. ( Id . at p. 356.) Defendant counters that sufficiency of the evidence
issues are never waive d , 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, f n. 2.) Although defendant cast his challenge as a sufficiency of the evidence claim, his argument is not that his blood alcohol level i s insufficient to support the trial court’s sentencing determina tion. (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 court s, that type of evidentiary dispute is subject to forfeiture because i t could have been
resolved if brought to the trial court’s attention. ( Scott , supra , 9 Cal.4th at p. 35 3 ; 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 approv al 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, 7 85 , People v.10

Jones (1992) 10 Cal.App.4th 1566, 157 4 , 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
unde r 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 conv icted of certain sex offen se s. ( 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 Vir ay court observed th at 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 proba ble cause findings are subject to appellate review

. (See Pen. Code, § 999a.) Further,

a lthough 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 t erms of the HIV testing statute and should not be
construed to undermine the Scott forfeiture rule. ( Butler at 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
determina tion, much less a challenge over disputed eviden ce. We recognize that defendant presents a factually driven challenge to the trial court’s statement of rea sons for selecting the upper term on count 1 . But regardless of how he frames the issue,
d efendant’ 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 defendant11

be lieved 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 bl ood test, although the parties were awaiting
those results as of the preliminary hearing

. Both the court and the prosecutor made specific reference s 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 re cord to the contrary. ’ ”].) T he court did not abuse its discretion by relying, in part, on a .24 blood
alcohol level to support the upper term sentence on coun t 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 tri al court may have learned details about the assault in considering an earlier motion to dismiss the allegation, noting that su ch information did not relieve the prosecutor from proving the allegation at trial. ( Id . at12

p. 492.) In contrast to Encinas , defendant here challenges a discretionary sentencing decision, not an allegation which the prosecution bears the burden of provin g at trial.
Crane and Self involve d 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 convict ion
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 p p

. 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 tria l court erred by considering a .093 blood alcohol level noted in Colorado documents ( including
the arrest ing 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 i n 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. T he 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 quali fied 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 rele vant to the determination whether he drove while impaired “ t o the slightest degree ’ ” under Arizona law. ( Id . at p. 1061.)13

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. T he rules of evidence , which apply to a p rior 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 durin g 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 wou ld deem that error harmless. A reversal and remand for resentencing would be appropriate only where it is reasonably probable that defendant would have receive d a more favorable result. ( People v. Watson (1956) 46 Cal.2d 818, 836.) It is reasonably prob able 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.____________________________________ Grover, J.

WE CONCUR:

____________________________ Rushing, P.J.

____________________________ Márquez, J.