Filed 6/13/16 P. v. Almanza 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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or ordered 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 pleas to evading a 

peace officer and driving under the influence of alcohol. After defendant admitted 

probation violations, probation was revoked and he was sentenced to the upper term of 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. UNDERLYING CHARGES

On May 5, 2014, defendant was 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, § 2800.2, 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 license (Veh. Code, § 14601.2, subd. (a); count 4, a 

misdemeanor); and speeding (Veh. Code, § 22350; count 5, an infraction). 

The arresting officer, a Monterey County Sheriff’s sergeant, testified at the 

preliminary hearing that he encountered 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 as 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 causing 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 arrested. Defendant got out of his car slowly. He had trouble 

walking and leaned against the car. He refused the officers’ commands, his 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. 

Defendant refused a breath test but submitted to a blood test. Deputies found an open can 

of hard lemonade 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

Defendant 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).) The 

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. Defendant 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 year 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. On 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 intoxication to the 

interaction of that beverage with his type 2 diabetes. He drove away from the sergeant 

when first approached because the officer had not activated his lights. Defendant 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. 

The probation officer assessed defendant as having “engaged in extremely 

dangerous and potentially lethal criminal behaviors.” The assessment continued: 

“[Defendant] not only chose to operate a vehicle while intoxicated, but then chose to flee

from Sheriff’s deputies and repeatedly attempted to elude them by feigning yielding. At 

one point, the defendant nearly collided with the vehicles 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 actions, 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 constitute aggravating circumstances under California Rules of 

Court, rule 4.421(a)(1) (a crime involving threat of great bodily harm) and 
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rule 4.421(b)(1) (violent conduct indicating a serious danger to society). Still, consistent 

with the plea agreement, he recommended 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 according 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.” Defendant’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, defendant’s attorney explained: “The fact that he doesn’t admit 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.” 

The trial court suspended imposition of sentence for five years and placed 

defendant on formal probation with conditions including reporting to probation 

 

2 Referencing defendant’s rap sheet, the prosecutor explained the suspended 

license 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 an alcohol treatment program, and obeying all laws. The remaining counts 

were dismissed.

B. THE PROBATION VIOLATIONS

In October 2014, the probation department petitioned 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 phone number 

change. The clerk sent a notice 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. 

In February 2015, the probation department filed an amended probation violation 

petition, adding that defendant had further violated his probation by possessing marijuana 

and methamphetamine on January 12, 2015 in Lompoc. Defendant was arrested for the 

drug offenses and on outstanding warrants from Monterey and Napa counties. At a 

formal hearing, defendant admitted 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 phone 

number defendant had provided were valid. Defendant told the probation officer that he 

had not reported to probation after his release from jail because he did not have any 

contact information. He drove to Santa Barbara to be with his wife, and although 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 defendant. Defendant denied using drugs, claiming 

someone had just given him the drugs in January, saying “Here! Try it!” Yet he pleaded

to the January drug possession charges in Santa Barbara County and was ordered to serve 

three years supervised probation under Proposition 36. In the probation officer’s view, 

defendant had demonstrated an unwillingness to cooperate with probation, and he 

recommended that sentence be imposed.

In April 2015, the court formally revoked and terminated defendant’s probation

and 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 

attorney with his wife’s phone number which was “off by two” from the number 

probation had called. Defendant was ready to undertake the Proposition 36 drug program 

in Lompoc, and he asked the court for the opportunity to complete that program and 

demonstrate compliance.

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 and 
7

circumstances of the underlying offense, I do note defendant’s blood alcohol was 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 upper 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 an insignificant criminal record, had never been on felony probation, and 

took early responsibility for his actions. 

II. DISCUSSION

A. STANDARDS OF REVIEW

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 pronounces 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 relevant 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 choice are upheld if 

‘supported by available, appropriate, relevant evidence.’ [Citations].” (People v. Black

(2007) 41 Cal.4th 799, 818, fn. 7.) 

B. DEFENDANT’S ARGUMENT

Defendant argues that the trial court violated his due process rights by revoking 

his probation based on factual findings not supported by substantial evidence. He 

contends that the court based its refusal to reinstate probation “on the ‘fact’ that 

‘defendant’s blood alcohol was a .24 when he went on a 2800.2,’ ” and that “no 

competent evidence 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

Defendant conflates the trial court’s decision to revoke and terminate probation 

with its separate decision to sentence defendant to the upper term on count 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 full. That 

admission constituted proof of multiple probation violations, and was sufficient to 

support the probation revocation. (People v. Rodriguez (1990) 51 Cal.3d 437, 446.) We 

find no abuse of discretion in the 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 choices,” reasoning that “[r]outine defects in the court’s statement of reasons 

are easily prevented and corrected if called to the court’s attention.” (Id. at p. 353). 

Thus, when a defendant has “a meaningful opportunity to object,” he forfeits his right to 

complain on appeal. (Id. at p. 356.) Defendant counters that sufficiency of the evidence 

issues are never waived, 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, fn. 2.)

Although defendant cast his challenge as a sufficiency of the evidence claim, his 

argument is not that his blood alcohol level is insufficient to support the trial court’s 

sentencing determination. (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 courts, 

that type of evidentiary dispute is subject to forfeiture because it could have been 

resolved if brought to the trial court’s attention. (Scott, supra, 9 Cal.4th at p. 353; 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 approval 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, 785, People v. 
10

Jones (1992) 10 Cal.App.4th 1566, 1574, 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 

under 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 convicted of certain sex offenses. (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 Viray court 

observed that 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 probable 

cause findings are subject to appellate review. (See Pen. Code, § 999a.) Further, 

although 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 terms of the HIV testing statute and should not be 

construed to undermine the Scott forfeiture rule. (Butlerat 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 

determination, much less a challenge over disputed evidence. We recognize that 

defendant presents a factually driven challenge to the trial court’s statement of reasons

for selecting the upper term on count 1. But regardless of how he frames the issue, 

defendant’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 defendant 
11

believed 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 blood test, although the parties were awaiting 

those results as of the preliminary hearing. Both the court and the prosecutor made 

specific references 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 record to the 

contrary.’ ”].) The court did not abuse its discretion by relying, in part, on a .24 blood 

alcohol level to support the upper term sentence on count 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 trial court may have learned details about the 

assault in considering an earlier motion to dismiss the allegation, noting that such 

information did not relieve the prosecutor from proving the allegation at trial. (Id. at 
12

p. 492.) In contrast to Encinas, defendant here challenges a discretionary sentencing 

decision, not an allegation which the prosecution bears the burden of proving at trial. 

Crane and Self involved 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 conviction 

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 pp. 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 trial court 

erred by considering a .093 blood alcohol level noted in Colorado documents (including 

the arresting 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 in 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. The 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 qualified 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 relevant to the determination whether he drove while impaired “to 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. The rules of evidence, which apply to a prior 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 during 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 would deem that error harmless. A 

reversal and remand for resentencing would be appropriate only where it is reasonably 

probable that defendant would have received a more favorable result. (People v. Watson

(1956) 46 Cal.2d 818, 836.) It is reasonably probable 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.