THE PEOPLE, Plаintiff and Respondent, v. ALPHONSO WARE, Defendant and Appellant.
E080353 (Super.Ct.No. BPR2201060)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Filed 9/29/23
NOT TO BE PUBLISHED IN OFFICIAL REPORTS.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 This opinion has not been certified for publication or ordered published for purposеs of rule 8.1115.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Roberta L. Davis and David A. Wildman, Deputy Attorneys Generаl, for Plaintiff and Respondent.
Defendant and appellant Alphonso Ware appeals from a judgment revoking his parole and remanding him to the Department of Corrections and Rehabilitation for further parole consideration pursuant to
On appeal, defendant argues (a) there is insufficient evidence he was driving while intoxicated; (b) insufficient evidence he drove without a valid license; (c) his counsel provided ineffective assistance by failing to objеct to evidence of defendant‘s blood alcohol level and the evidence of his unlicensed status; and (d) reversal of the drunk driving allegation requires remand for reconsideration of the revocation of parole. We affirm.
BACKGROUND
In 1989, defendant was convicted of second degree murder with an enhancement for usе of a firearm, for which he received a sentence 17 years to life, with possibility of parole. On October 9, 2019, defendant was released on parole subject to certain special
On August 27, 2022, at 1:53 a.m., defendant was observed driving in a black Honda Insight, eastbound on State Route 91, west оf the Tyler Street offramp by a California Highway Patrol officer. The officer observed defendant for approximately three miles and noticed defendant weaving between lanes three or four times and following another car too closely. The officer instructed defendant to exit the freeway and initiated а traffic stop; defendant, the only occupant of the vehicle, exited the freeway and pulled over to a stop.
The officer approached defendant, and, through the driver‘s door window, the officer detected a strong odor of alcohol and noticed defendant‘s eyes were red and watery. The defendant provided a California Identification Card; information provided to the officer by dispatch revealed that defendant did not have a valid driver‘s license. The officer asked defendant to exit the vehicle because he suspected defendant was under the influence of alcohol.
The defendant informed the officer he was returning home to Moreno Valley after working in Orange County. He admitted consuming two 12-ounce Michelob Ultras between 6:30 and 8:30 p.m. The officer conducted a horizontal gaze nystagmus test, and
The officer, after observing the defendant for 15 minutes, obtained defendant‘s agreement to perform a voluntary preliminary alcohol screening test (PAS), taking the first breath sample at 2:06 a.m. and the second sample at 2:08 a.m.2 The result of the first sample indicted defendant‘s blood alcohol by breath was 0.162 percent, while the second sample yielded a result of 0.176 percent.
After the second sample was obtained, the officer placed defendant under arrest for driving under the influence of alcohol. The officer then offered defendant a chemical test and defendant elected to submit to a breath test. Using the same device with the evidentiary settings, the first breath test indicated that at 2:18 a.m., defendant‘s blood alcohol level was 0.16, and a second test administered at 2:21 a.m. indicated the same blood alcohol lеvel. The officer then transported defendant to jail.
On September 28, 2022, a petition for revocation of parole was filed by the Division of Adult Parole Operations of the Department of Corrections and Rehabilitation, alleging defendant violated the special condition of parole requiring defendant to avoid engaging in conduct violating any state, federal, county or municipal law by (1) driving under the influence of alcohol or drugs, in violation of
Defendant denied the petition and an evidentiary hearing was conducted on December 8, 2022. After hearing the testimony of witnesses and hearing arguments of counsel, the court found defendant in violation of his conditions of parole, revoked his parole, and remanded defendant to the CDCR for further parole consideration pursuant to
On December 13, 2022, defendant timely appealed.
DISCUSSION
Defendant challenges the decision to revoke his parole. Along the way, he argues there is insufficient evidence to support two of the stated grounds for finding defеndant was in violation of the conditions of his parole.
In order to revoke parole, the finder of fact must determine by a preponderance of the evidence that the parolee violated the condition alleged in the petition for revocation. (Morrissey v. Brewer (1972) 408 U.S. 471, 488-490 [92 S. Ct. 2593, 33 L. Ed. 2d 484]; People v. Rodriguez (1990) 51 Cal.3d 437, 441 (Rodriquez); In re Prewitt (1972) 8 Cal.3d 470, 473-474.) Trial courts have broad discretion in determining whеther a probationer or parolee has violated any conditions of probation. (See Rodriguez, supra, at p. 443.) We review an order revoking parole for abuse of discretion. (People v. Butcher (2016) 247 Cal.App.4th 310, 318.) The facts supporting a parole revocation must be proved by a preponderance of the evidence. (Rodriguez, supra, at p. 441.)
1. Substantial Evidence to Support the Drunk Driving Allegation
Defendant argues there is insufficient evidence to support the claim he viоlated probation by driving while under the influence of alcohol because the officer who obtained his blood alcohol tests did not comply with Title 17 of the California Code of Regulations regarding the administration of PAS and chemical breath tests for blood alcohol levels. We disagree.
“We review a probatiоn or a parole revocation decision pursuant to the substantial evidence standard of review.” (People v. Urke (2011) 197 Cal.App.4th 766, 773, citing People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681 (Jones).)
“The standard is deferential: ‘When a trial court‘s factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination.’ [Citation.]” (Jones, supra, 18 Cal.4th at p. 681, italics omitted.)
In the present case, the petition to revoke defendant‘s parole did not allege he was driving with a blood alcohol level of 0.08 or above, pursuant to
In the present case, there was sufficient evidence showing defendant‘s driving was impaired: he weaved between lanes several times and followed the car ahead of him too closely. In addition, when instructed to exit the freeway and turn right, defendant turned left before coming to a stop. This alone was sufficient to establish the requisite degree of proof that defendant violated his parole conditions.
Further, defendant admitted consuming alcohol, a violation of the special condition of parоle prohibiting him from consuming alcohol and he was unable to complete the field sobriety tests.
Finally, any arguments challenging the manner in which the breath tests were conducted were forfeited by defendant‘s failure to raise the issues at the hearing. “In order to preserve an issue for appeal, a party ordinarily must raise the objection in the trial court.” (In re S.C. (2006) 138 Cal.App.4th 396, 406, citing In re S.B. (2004) 32 Cal.4th 1287, 1293.) “The rule that contentions not raised in the trial court will not be considered on appeal is founded on considerations of fairness to the court and opposing party, and on the practical need for an orderly and efficient administration of the law.” (People v. Gibson (1994) 27 Cal.App.4th 1466, 1468; see also, In re Dakota S. (2000) 85 Cal.App.4th 494, 501.)
2. Substantial Evidence to Support the Driving Without A License Allegation.
Defendant also challenges the adеquacy of proof that defendant was driving while unlicensed, complaining there was inadequate foundation for admission of the officer‘s testimony he obtained information about defendant‘s license status from dispatch. We disagree.
First, without repeating ourselves, we point out that defendant forfeited any error by failing to оbject to the officer‘s testimony on the ground it lacked foundation. Second, we find no error in the officer‘s reliance on information relayed through official channels, insofar as it was offered to establish probable cause to arrest defendant for the violation and was not proffered for a hearsay рurpose.
Officers act reasonably in relying upon information from computerized databases in making an arrest or conducting a search, provided there is no showing the records were deliberately or recklessly maintained. (See Arizona v. Evans (1995) 514 U.S. 1, 16 [115 S. Ct. 1185, 131 L. Ed. 2d 34] [officer acted objectively reasonably when he relied upon the pоlice computer record]; Herring v. United States (2009) 555 U.S. 135, 140, 143 [search and seizure violation caused by officers reliance on incorrect warrant records did not require suppression unless the officers knew the information was incorrect when they relied upon it].)
We note that defendant makes no attempt to argue the information that was relayed was unreliable or incorrect. This is no doubt due to the fact defendant admitted he drove while unlicensed. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Having failed to make an objection to admission of the evidence that the officer received from dispatch information that defendant did not have a valid license, either on the ground there was inadequate foundation or on hearsay grounds, any claim of error was forfeited. The trial court‘s finding of the parole violation was proper and there was substantial evidence to support the finding.
3. Defendant Was Not Deprived of Effective Assistance of Counsel
Defendant, recognizing the forfeiture of the above claims, argues he was deprived of effective assistance of counsel for his attorney‘s failure to object. We disagree.
In the absence of such a showing, we presume that “‘“counsel‘s performance fell within the wide range of professional competence and that counsel‘s actions and inactions can be explained as a matter of sound trial strategy.” [Citation.]‘” (People v Bell (2019) 7 Cal.5th 70, 125.) “[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance.” (People v. Maury (2003) 30 Cal.4th 342, 419, citing People v. Hillhouse (2002) 27 Cal.4th 469, 502; People v. Scott (1997) 15 Cal.4th 1188, 1223.) Thus, “[i]f the record ‘sheds no light on why counsel acted or failed to act in the manner challenged,’ an appellate claim of ineffective assistance оf counsel must be rejected ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ [Citations.]” (People v. Ledesma (2006) 39 Cal.4th 641, 746.) “[D]eciding whether to
Additionally, in the absence оf prejudice, the reviewing court may reject the claim of ineffective assistance of counsel without reaching the issue of deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 697; see In re Fields (1990) 51 Cal.3d 1063, 1079.)
Here, defendant admitted the conduct that formed the basis for the parole violation. Whether or not counsel objected to the claimed evidеntiary errors, and even if the evidence had been excluded upon a timely objection, it is not reasonably likely that a different result would have occurred.
Counsel provided constitutionally effective assistance.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
FIELDS J.
RAPHAEL J.