IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Tehama)
March 15, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
NATHON OLNEY REEP, DEFENDANT AND APPELLANT.
(Super. Ct. Nos. NCR73325, NCR75834)
The opinion of the court was delivered by: Butz ,j.
P. v. Reep CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Nathon Olney Reep*fn1 appeals from a judgment for driving under the influence (DUI) causing injury. (Veh. Code, § 23153, subd. (a).) He contends the trial court (1) violated his constitutional and statutory right to a speedy trial (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Pen. Code,*fn2 § 1382, subd. (b)*fn3 ), and (2) erroneously gave a jury instruction on flight. We shall amend the abstract of judgment to correct a calculation error in presentence credits (a point not raised by the parties), and we shall otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On November 30, 2007, around 6:00 p.m., defendant drove his truck too fast, on the wrong side of the road, and hit the victims' vehicle, injuring the driver and both passengers. A third party witness testified defendant sped past him at a high rate of speed and continued driving on the wrong side of the road. About a mile down the road, the witness came upon the accident scene. Defendant said he was a passenger, not the driver of his truck, and another person was driving the truck at the time of the accident but fled after the accident. However, the witness recognized defendant as the driver who passed him.
A responding highway patrol officer gave defendant field sobriety tests, which he failed, and used a handheld device which recorded defendant's blood-alcohol level at 0.091 percent. A subsequent blood test showed a blood-alcohol level of 0.06 percent and the presence of marijuana.
In trial court case No. NCR73325, defendant was charged with felony DUI causing injury (and a second count of driving without evidence of insurance, which was later dismissed). The pleading also alleged one strike prior (Pen. Code, § 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and enhancements in that defendant caused bodily injury to more than one victim (Veh. Code, § 23558), caused great bodily injury (Pen. Code, § 12022.7, subd. (a)), had a prior prison term (id., § 667.5, subd. (b)), and had one prior serious felony (id., § 667, subd. (a)(1)).
Defendant was released on bail but failed to appear in court for a September 2, 2008 hearing. A bench warrant issued.
A year later, on September 27, 2009, defendant was arrested on the warrant and charged with failure to appear. (§ 1320.5.)
On September 28, 2009, the trial court ordered the DUI to be continued to October 5, 2009. Defendant was not present.
Defendant next appeared in court on September 29, 2009, on the failure to appear charge.
On September 30, 2009, the prosecution filed an information charging defendant with failure to appear in trial court case No. NCR75834.
On October 5, 2009, defendant next appeared in court for the DUI. The trial court indicated the 60 days for a speedy trial (§ 1382, subd. (b), fn. 3, ante) started to run on September 28, and the last day was November 27. Defendant did not waive time, and the trial court set trial for November 19, 2009.
On October 13, 2009, defendant pleaded not guilty in the failure to appear case and waived time.
On October 26, 2009 (inexplicably miscited as August 27, 2008, in the clerk's transcript), the trial court granted the prosecutor's request for consolidation and set both matters for jury trial on November 19, 2009.
On November 2, 2009, the prosecutor filed an amended consolidated information charging defendant with (1) DUI causing injury under Vehicle Code section 23153, subdivision (a), and (2) failure to appear under Penal Code section 1320.5 while released on bail (id., § 12022.1). The DUI count alleged bodily injury to more than one victim (Veh. Code, § 23558); two special allegations of great bodily injury (Pen. Code, § 12022.7, subd. (a)); a prior prison term allegation (id., § 667.5, subd. (b)) based on a 2000 felony assault (id., § 243, subd. (d)) and a 2003 felony possession of ammunition by a felon (id., § 12316, subd. (b)(1)); a prior serious felony (id., § 667, subd. (a)(1)) based on the 2000 assault; and a prior strike based on the 2000 assault (id., §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
On November 16, 2009, defense counsel informed the court of his own calendar conflict in that he might be in trial in an unrelated case on November 19. The defense did not request any relief at that time.
On November 19, 2009, defense counsel was occupied with his other trial. The trial court in this case said the 60 days for speedy trial ran from October 5. Defense counsel agreed. No one mentioned the court's previous statement that the trigger date was September 28. All of the parties agreed to reschedule trial in this case to December 3, 2009. Had the trial court continued to consider September 28 the trigger date, the court still could have set the trial within 60 days of that date, because the trial court stated it could start the trial on November 25.
On December 3, 2009, defendant moved to dismiss the DUI case (No. NCR73325) for violation of his right to a speedy trial. The trial court denied the motion, stating defendant's September 28 appearance in court was on the failure to appear charge, not the DUI. His first appearance on the DUI was October 5, and so the December 3, 2009 trial date was within the time limit. The court also observed the trial was scheduled for an earlier date but continued at the request of the defense.
Trial began on December 3, 2009. Defendant changed his plea to guilty on the failure to appear (count II), admitted he committed it while released on bail (§ 12022.1) and admitted, as to both counts, the two prior felonies for enhancement and strike purposes (§§ 667, 667.5, 1170.12).
On December 9, 2009, the jury found defendant guilty on the DUI charge and found true the special allegations of great bodily injury. On January 26, 2010, the trial court sentenced defendant to 20 years four months in state prison--four years for the DUI, one year four months for the failure to appear, a one-year enhancement under Vehicle Code section 23558, six years for two Penal Code section 12022.7 enhancements, two years under Penal Code section 12022.1 (enhancement for offense committed while released on bail), one year for the prior prison term (id., § 667.5), and five years under Penal Code section 667, subdivision (a)(1). The trial court gave defendant total presentence credits of 273 days (183 days of actual custody plus 90 days of conduct credits), despite recognizing that defendant's conduct credits were limited to 15 percent pursuant to Penal Code section 2933.1.
I. Right to a Speedy Trial
Defendant contends the trial court erred in denying his motion to dismiss the DUI for violation of the constitutional and statutory right to a speedy trial. We disagree.
Under section 1382, subdivision (b), footnote 3, ante, the trial had to start within 60 days after defendant "next appear[ed]" in court following his September 2008 failure to appear.
Here, defendant "next appear[ed]" on the DUI charge on October 5, 2009, and therefore October 5, 2009, was the trigger date, and the December 3, 2009, trial date was within the 60-day time limit.
Defendant argues that the trial court was correct in its initial statement that the trigger date was September 28, 2009. However, September 28 cannot be the trigger date, because defendant did not appear in court on that date. The record shows that, on September 28, 2009, the trial court continued the DUI case, but "Defendant was neither present nor represented by counsel."
Defendant suggests the trial court may have meant September 29, 2009. However, that appearance was on the failure to appear charge, not the DUI. Defendant offers no analysis or authority that "next appear[ed]" in section 1382 (fn. 3, ante) can be on any matter.
We conclude defendant fails to demonstrate a statutory violation.
Even assuming a statutory violation, defendant fails to prove prejudice. A defendant claiming a statutory speedy trial violation after conviction must prove not only unjustified delay but also prejudice flowing from that delay. (People v. Sutton (2010) 48 Cal.4th 533, 545-562; People v. Johnson (1980) 26 Cal.3d 557, 574 (Johnson).) Defendant argues a defendant who seeks pretrial relief for a section 1382 violation need not show prejudice. However, defendant is not seeking pretrial relief but rather reversal after conviction.
In any event, the original November 19 trial date was timely under either trigger date, and the trial was continued to December 3 only due to defense counsel's calendar conflict. Defense counsel asked for and agreed to the continuance for trial to December 3. Defendant was present in court but made no objection.
Defendant acknowledges defense counsel generally has authority to waive statutory speedy trial rights of his or her client, even over the client's objection, as long as counsel is acting competently in the client's best interest. (People v. Harrison (2005) 35 Cal.4th 208, 225 (Harrison).)
Defendant cites authority that appointed defense counsel lacks authority to consent to a continuance for the sole purpose of accommodating his or her own calendar conflict, when the defendant objects. (Johnson, supra, 26 Cal.3d at pp. 566-569.) Here, however, defendant did not object. Defendant acknowledges he did not object, but he blames the trial court for "misleading" him into thinking the December 3 trial date was timely. However, defendant fails to establish the trial court misled him or was wrong about the trigger date being October 5.
As to violation of the constitutional right to a speedy trial, we evaluate the length of the delay, the reason for the delay, the defendant's assertion of his right, and the prejudice to the defendant. (Harrison, supra, 35 Cal.4th at p. 227.) Here, most of the delay in bringing defendant to trial after he was charged with the DUI was attributable to his being a fugitive from justice. After his arrest on September 27, 2009, his trial began on December 3, 2009. There was no constitutional violation of the right to a speedy trial.
We conclude defendant's speedy trial argument lacks merit.
II. Jury Instruction on Flight
Defendant next argues the trial court erred in instructing the jury on flight, because there was no evidence of flight. We disagree, because defendant's failure to appear for a court hearing on the DUI charge constituted evidence of flight.
The trial court instructed the jury: "The flight after [defendant] is accused of a crime is not sufficient in itself to establish defendant's guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide."
The instruction is proper where there is evidence that the defendant departed under circumstances suggesting his movement was motivated by a consciousness of guilt. (§ 1127c; People v. Bradford (1997) 14 Cal.4th 1005, 1055.)
The evidence of flight was defendant's failure to appear in court for the September 2008 DUI hearing.
On appeal, defendant claims the jury knew nothing about the failure to appear (to which he pleaded guilty) and received no evidence about it. Defendant is wrong.
The jury knew defendant was being charged with failure to appear in addition to the DUI. The day after trial began, defendant changed his plea to guilty on the charge of failure to appear. The trial court told the jury that defendant "has entered a plea of guilty to the second charge against him [failure to appear]." The court added the failure to appear charge "has been removed from your consideration." In closing argument, the prosecutor told the jurors (without defense objection) that, although the charge was removed from their consideration, they could consider defendant's conduct in failing to appear as flight bearing on guilt of the DUI.
Defendant says there is no evidence of flight, because there is no evidence he fled the crime scene. However, flight may come later. (People v. Carter (2005) 36 Cal.4th 1114, 1182 [flight instruction proper where the defendant left California a few days after the crimes].) The instruction does not require a defined temporal period within which the flight must be commenced. (Ibid.)
The flight instruction was proper.
III. Presentence Conduct Credits
Though not mentioned by the parties, we observe and correct an error in calculation of presentence conduct credits. The abstract of judgment indicates defendant has 273 total days of credit--183 days of actual custody plus 90 days of local conduct credits under section 2933.1. Section 2933.1, subdivision (c), limits presentence conduct credits to 15 percent of custody credits for a defendant convicted of a felony offense listed in section 667.5, subdivision (c). Section 667.5, subdivision (c)'s list includes any felony in which the defendant inflicts great bodily injury as provided in section 12022.7 (which is the case here). (§ 667.5, subd. (c)(8).) At the sentencing hearing, the trial court stated, and both sides agreed, that defendant's conduct credits were limited to 15 percent of the 183 days in actual custody. The trial court came up with 41 days. By our own calculation, 15 percent of 183 is 27.45, which we round up to 28 days. We accordingly modify the judgment to reduce the conduct credits from 90 to 28. Adding 28 to the 183 days of actual custody yields total credits of 211 days.
Since defendant has a violent felony as defined by section 667.5, subdivision (c), he is not entitled to (nor does he claim) any increase in credits conferred by recent amendments to sections 4019 and 2933. (Stats. 2010, ch. 426, § 2 [Sen. Bill No. 76]; Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50 [Sen. Bill No. 18].)
The trial court is directed to determine the correct spelling of defendant's first name and correct the abstract of judgment if necessary.
The judgment is modified to correct the calculation of custody credits. The trial court is directed to prepare an amended abstract of judgment, showing 28 days of presentence conduct credits under section 2933.1, and send a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
I concur: NICHOLSON ,J. I concur in the result. I am not persuaded that defendant's plea of guilty to failure to appear, absent any evidence of the underlying circumstances, is sufficient to prove flight. However, I am also persuaded that the error is harmless by any measure and thus concur in the judgment as modified. RAYE , P.J.