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Vehicle Code section 2800.2 subdivision (a) does not require jail time when probation is granted

People v. Torres (Cal. Ct. App., June 16, 2022, No. 2D CRIM. B318399) 2022 WL 2712232, at *1, as modified (July 13, 2022)

Summary: VC 2800.2 is a wobbler; as a misdemeanor the punishment is “confinement in the county jail for not less than six months nor more than one year.” The trial court may exercise its discretion to grant probation for a violation of the section.

Here the court granted probation and imposed 180 days in jail, saying that was required as a minimum sentence. The Court of Appeal cites PC 1203.1(a), the section authorizing probation, which says that as a condition of probation the court may “impose either imprisonment in a county jail or a fine, both, or neither.” The Court of Appeal ruled that 6 months in jail is not required when probation is granted in this context, saying, “Here we put to rest any doubt concerning whether Vehicle Code section 2800.2 subdivision (a), mandates jail time. It does not.”

Facts: Torres appealed a grant of probation with the condition that he serve 180 days of confinement in county jail. The trial court misunderstood imposition of custodial time as a probation condition for a felony violation of Vehicle Code section 2800.2, subdivision (a), but said it would not impose less custodial time if it did have the discretion. For this reason, the Court of Appeal  (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].)

Torres was charged with felony evasion of an officer with willful disregard. (Veh. Code, §§ 2800.2, subd. (a)). Torres later entered a guilty plea to the felony evading count.

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 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 its decision after reviewing the probation report.

At the sentencing hearing, the trial court stated that it had reviewed the probation report which recommended 180 days of confinement as a probation condition. The trial court also discussed the aggravating and mitigating sentencing factors pertaining to Torres. 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.”

Does Vehicle Code section 2800.2, subdivision (a) requires 180 days of minimum confinement as a condition of probation?

Torres appealed 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.

Issue:  Torres argued that the trial court did not exercise its informed discretion when imposing the 180 days of confinement as a probation condition because it misunderstood Vehicle Code section 2800.2, subdivision (a).

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).) Penal Code section 1203.1 does not require confinement. However, the court may “impose either imprisonment in a county jail or a fine, both, or neither.” (Id. subd. (a)(2).)

Jail sentence required as a condition of probation by certain statutes

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. Penal Code section 290.018, failing to register as a sex offender, requires 90 days confinement as a condition of probation. Penal Code section 273.5, second offense domestic violence, requires 15 days confinement as a condition of probation. 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 as a condition of probation.

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 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.”

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 clearly indicated 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.)

The Court of Appeal affirmed the trial court order.

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