Filed 6/16/22 P. v. Torres CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

LUIS DANIEL TORRES,

 Defendant and Appellant.

2d Crim. No. B318399

(Super. Ct. No. 2021020406)

(Ventura County)

Luis Daniel Torres appeals a grant of probation containing

a condition that he serve 180 days of confinement in county jail. 

Although the trial court misunderstood imposition of custodial 

time as a probation condition for a felony violation of Vehicle 

Code section 2800.2, subdivision (a), the court stated that it 

would not impose less custodial time in the exercise of its 

discretion. For this reason, we affirm. (Pen. Code, § 1203.1, 

subd. (a)(2); People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 

[remand for resentencing unnecessary where record clearly 

indicates trial court would have reached the same conclusion].)
2

FACTUAL AND PROCEDURAL HISTORY

In the late hours of August 3, 2021, Torres led Oxnard 

police officers on a vehicle pursuit that reached 100 miles per 

hour. During the chase, Torres failed to stop at stop signs and 

passed another motorist on the road shoulder. The officers 

eventually arrested Torres at his home. 

The Ventura County District Attorney charged Torres with 

felony evasion of an officer with willful disregard, and 

misdemeanor driving without a license. (Veh. Code, §§ 2800.2, 

subd. (a), 12500, subd. (a).) Torres later entered a guilty plea to 

the felony evading count and the court dismissed the 

misdemeanor count following the prosecutor’s motion. 

Prior to and following the entry of his guilty plea, Torres 

and the trial court discussed whether Vehicle Code section 

2800.2, subdivision (a), requires 180 days of custodial time as a 

condition of probation. Torres filed a brief asserting that Penal 

Code section 1203.1, subdivision (a) does not mandate any 

minimum confinement as a condition of probation. The court 

indicated that it would research the issue but believed that a 

grant of probation for Vehicle Code section 2800.2, subdivision (a) 

requires “a statutory minimum of 180 days.” 

In accepting Torres’s guilty plea, the trial court advised

Torres that the prosecution requested 365 days of confinement. 

The court also stated that it would make a decision after 

reviewing the probation report. 

At the later sentencing hearing, the trial court stated that 

it had reviewed the probation report which recommended 180 

days of confinement as a probation condition. The prosecutor 

requested 365 days of confinement in view of Torres’s reckless 

and dangerous evasion. Torres’s counsel responded that 120 days 
3

was appropriate but that no minimum time was required: “I do 

not believe the Court is constrained on a grant of probation on 

this charge to any minimum custody time. So the request at this 

time is 120 [days].” 

The trial court also discussed the aggravating and 

mitigating sentencing factors pertaining to Torres. A 

“concerning” aggravating factor was Torres’s prior Vehicle Code 

violations. The trial judge commented: “Whether licensed legally 

or just being able to drive, Mr. Torres seems to be persistent in 

driving whether he’s legally licensed to do so or not.” 

The trial court then suspended imposition of sentence and 

granted Torres 24 months of felony probation with a condition of 

180 days of confinement in county jail. The court again noted its 

disagreement with Torres’s argument but added that, in the 

exercise of its discretion, it would impose 180 days of confinement 

given Torres’s “driver’s license issue”: “I’m going to exercise my 

discretion with his driver’s license issue. . . . I believe that 180 

days is appropriate . . . even if I did have discretion, I choose not 

to exercise it.” 

Torres appeals and contends that the trial court 

erroneously concluded that Vehicle Code section 2800.2, 

subdivision (a) requires 180 days of minimum confinement as a 

condition of probation. The Attorney General concedes but 

asserts that remand would be an idle act given the court’s 

statement that it would not impose a lesser term in the exercise 

of its discretion.

DISCUSSION

Torres argues that the trial court did not exercise its 

informed discretion when imposing the 180 days of confinement 
4

as a probation condition because it misunderstood Vehicle Code 

section 2800.2, subdivision (a).1

Penal Code section 1203, subdivisions (b) and (d) permit 

the trial court to suspend imposition or execution of sentence and 

grant probation. As a condition of granting probation, the court 

may order the defendant imprisoned “in a county jail for a period 

not exceeding the maximum time fixed by law in the case.” (Pen. 

Code, § 1203.1, subd. (a).) Confinement is not mandated by Penal 

Code section 1203.1, however; instead, the court may “impose 

either imprisonment in a county jail or a fine, both, or neither.” 

(Id., subd. (a)(2), italics added.)

Certain penal statutes do require a jail sentence as a 

condition of probation. For example, Vehicle Code section 

14601.2, driving under the influence with a suspended license, 

requires 10 days confinement as a condition of probation. (Id., 

subd. (e).) Penal Code section 290.018, failing to register as a sex 

offender, requires 90 days confinement as a condition of 

probation. (Id., subd. (c).) Penal Code section 273.5, second 

offense domestic violence, requires 15 days confinement as a 

condition of probation. (Id., subd. (h)(1).) Vehicle Code section 

14601.2, driving with a suspended license due to driving under 

the influence, requires 10 days confinement as a condition of 

probation. (Id., subd. (e).)

Vehicle Code section 2800.2, subdivision (a) does not 

require incarceration, however, as a condition of probation. It 

provides: “If a person flees or attempts to elude a pursuing peace 

officer in violation of [Vehicle Code] Section 2800.1 and the 

pursued vehicle is driven in a willful or wanton disregard for the 

1 We grant Torres’s request for judicial notice that this 

issue has arisen in three unpublished opinions from 2010 to 2017.
5

safety of persons or property, the person driving the vehicle, upon 

conviction, shall be punished by imprisonment in the state 

prison, or by confinement in the county jail for not less than six 

months nor more than one year. The court may also impose a 

fine of not less than one thousand dollars ($1,000) nor more than 

ten thousand dollars ($10,000), or may impose both that 

imprisonment or confinement and fine.” (Ibid.)

The trial court had statutory discretion to impose jail 

confinement of up to one year as a condition of probation or to 

impose no jail sentence. (Pen. Code, § 1203.1, subd. (a)(2).) The 

court’s remarks at sentencing clearly indicate that it would 

exercise its discretion and impose 180 days of confinement as a 

probation condition. Remand therefore would be an idle act 

because the court has indicated it would reach the same 

sentencing decision. (People v. Gutierrez, supra, 58 Cal.4th 1354, 

1391.)

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J.

PERREN, J.
6

Bruce A. Young, Judge

Superior Court County of Ventura

______________________________

Ventura County Legal Services, Inc. and Christina 

Vanarelli for Defendant and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Zee Rodriguez and Michael C. Keller, Deputy 

Attorneys General, for Plaintiff and Respondent.