(Super. Ct. No. NCR80871)
The opinion of the court was delivered by: Blease , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Carl Randolph Tehada was convicted of felony evading a peace officer (Veh. Code, § 2800.2, subd. (a))*fn1 and admitted he had suffered two prior strike convictions (Pen. Code, § 667, subds. (b)-(i)). Defendant was sentenced to a term of 25 years to life. On appeal he contends: (1) section 2800.2 creates an impermissible mandatory presumption; (2) the trial court abused its discretion by not dismissing his prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero); (3) the trial court erred in calculating his presentence custody credits based on the version of Penal Code section 4019 in effect at the time of his sentencing; and, (4) he is entitled to additional presentence custody credits, because prospective application of the conduct credit provisions of the Realignment Act violates equal protection principles. The People properly concede there was an error in calculating defendant's presentence custody credits based on the version of Penal Code section 4019 in effect at the time of defendant's sentence. We shall modify the award of credits and order the abstract of judgment be amended. As modified, we affirm the judgment.
RELEVANT FACTUAL BACKGROUND
Shortly before midnight, Officer Fernandez was on patrol when he saw defendant driving a black Corvette. Defendant made an abrupt stop, then accelerated to a high rate of speed heading out of town. Fernandez was in a marked police car, equipped with emergency lights and siren and was wearing his full duty uniform. He followed defendant and noticed the car's front windshield was smashed, with cracks running throughout. Driving with a cracked windshield is a violation of the Vehicle Code, so Fernandez activated his emergency lights to initiate a traffic stop. Defendant accelerated away from Fernandez, traveling between 35 to 40 miles per hour. He turned into a parking lot and sped through the exit of a fast food restaurant at approximately 30 miles per hour. Defendant continued to accelerate away from Fernandez, traveling approximately twice the speed limit. The area has both commercial businesses and residences. Most of the businesses in the area were closed and Fernandez did not see any pedestrian traffic. Defendant came to a "T" intersection across from a trailer park. He tried, unsuccessfully, to negotiate the turn, lost control of the vehicle, collided into a concrete barrier, slid off the road and stopped within 10 feet of an occupied trailer. As Fernandez parked his vehicle, defendant was exiting his car. Fernandez identified himself as a police officer and ordered defendant to stop. Defendant fled on foot. Fernandez pursued and detained defendant.
Romero Motion - Relevant Background
Defendant's criminal history began in 1973, when he sustained three misdemeanor convictions. In 1975, he sustained his first felony conviction for second degree burglary. In 1978, he sustained his first strike conviction for first degree burglary. He sustained another felony conviction in 1983 for assault with a deadly weapon. In 1986, defendant sustained his second strike conviction for attempted murder. He was sentenced to nine years in prison and paroled in 1991. In 1994, he violated parole and was returned to prison. Again in 1995 he violated parole and was returned to prison. In 1996 he was convicted of misdemeanor drunk driving and driving without a license. Less than one year into his probationary term, he violated probation. In 1997, he committed felony spousal abuse. He received a suspended sentence, but was then sent to prison in 2000. In 2003, he violated parole and was returned to prison. From 2008 to 2010, he had four misdemeanor convictions, two for drunk driving, one for possession of marijuana, and one for driving on a suspended license.
Defendant admitted he has an alcohol problem, drinking every day to the point of intoxication. He also admitted to having had an addiction to methamphetamine and that he continued to smoke marijuana daily. In the current offense, defendant admitted he was drunk and had smoked marijuana. Defendant's blood-alcohol level was 0.07 percent and he tested positive for THC. Defendant completed his education while in prison and holds an associate of arts degree in psychology. Defendant was injured on the job four years ago and earns $1,800 in worker's compensation.
Defendant was charged with evading a peace officer with willful and wanton disregard for the safety of persons or property (§ 2800.2, subd. (a)). It was also alleged defendant had suffered two prior strike convictions. (Pen. Code, § 667, subds. (b)-(i).) Defendant admitted the prior ...