thompson 2011 unpub opinion

8/3/2019 Thompson 2011 Unpub Opinion

1/23

Filed 7/27/11 P. v. Thompson CA2/7NOT 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 forpublication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publicationor ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTOPHER THOMAS THOMPSON,

Defendant and Appellant.

B221794

(Los Angeles CountySuper. Ct. No. SA068297)

APPEAL from a judgment of the Superior Court of Los Angeles County, Scott T.Millington, Judge. Affirmed.

David M. Thompson, under appointment by the Court of Appeal, for Defendant

and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster and

Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.

____________________


2/23

2

INTRODUCTION

Defendant Christopher Thomas Thompson appeals from a judgment of conviction

entered after a jury found him guilty of two counts of assault with a deadly weapon (Pen.

Code, 245, subd. (a)(1); counts 5 & 6) causing great bodily injury ( id ., 12022.7),

battery with serious bodily injury ( id ., 243, subd. (d); count 3), mayhem ( id ., 203;

count 7), 1 and misdemeanor reckless driving (Veh. Code, 23103, subd. (a); count 4).

The trial court denied probation and sentenced defendant to state prison for five years:

two years for one assault with a deadly weapon and three years for the great bodily injury

enhancement. The court imposed concurrent sentences on the remaining counts.

On appeal, defendant claims evidentiary error and ineffective assistance of

counsel. He challenges the trial courts refusal to grant him probation and its award of

restitution. We affirm.

FACTS

A. Prosecution

1. July 4, 2008 (Counts 2, 3, 5, 6 & 7)

Ronald Peterson (Peterson) is a competitive bicyclist who coaches both college

teams and private clients. Christian Stoehr (Stoehr) is also a bicycling enthusiast, who

hired Peterson as his coach in late 2006 or early 2007.

Peterson and Stoehr often rode their bicycles on Mandeville Canyon Road, a two-

lane residential road. Mandeville Canyon Road is popular with bicyclists due to its long

sustained climb.

1 The trial court dismissed one conviction of battery with serious bodily injury(count 2) as a lesser included offense of mayhem.


3/23

3

On July 4, 2008, Peterson and Stoehr took part in a holiday bike ride from

Manhattan Beach to Mandeville Canyon Road. Peterson and Stoehr, who were near the

front of the group, continued on Mandeville Canyon Road to the dead end at the top of

the road.When the two rode back down Mandeville Canyon Road, they were riding side by

side, and Stoehrs GPS unit indicated they were riding at about 30 miles per hour, the

posted speed limit. They heard a long, sustained car honk. Stoehr looked back and saw a

car approaching from behind, so he told Peterson, car back. Peterson moved in front of

Stoehr, so the two were riding single file on the right hand side of the road.

A red or maroon car pulled alongside Peterson. The front passenger window was

open. Defendant, who was driving the car, leaned over and said angrily, ride singlefile. Peterson perceived defendant to be threatening and bullying and was annoyed by

him. He yelled back, F--- you. Defendant yelled something back, accelerated past

Peterson, and then slammed on his brakes about five feet in front of Peterson.

Peterson attempted to brake but was unable to avoid hitting the car. His bicycle

hit the trunk of the car, and he hit the rear window head first, breaking the glass. Stoehr

swerved to the left but his bicycle hit the back of the car and he was catapulted over the

car, landing in the street in the opposite lane.Stoehr felt pain in his shoulder but crawled toward the car to prevent the driver

from leaving the scene. Defendant got out of the car and yelled at him to get his bicycle

out of the road. Stoehr pulled himself up onto the hood of the car. When defendant

turned his engine off, a woman helped Stoehr to sit down on the curb.

Peterson pulled himself out of the cars rear window. As defendant approached

him, Peterson told him to get the f--- away from me and threatened to f--- you up.

Peterson sat down on the ground. He could feel that his front teeth were missing, and

blood was pouring out of his face.

Defendant called 911 and reported: Uh, three bikers in the road . . . said f--- you

to me. I slammed on the brakes, they ran into the back of me, theres two injuries. The

operator asked if the injuries were serious, and defendant said, Uh, not really . . . theyll


4/23

4

claim that. Defendant could also be heard on the tape of the 911 call telling Stoehr,

Get your bike out of the road why dont you?

Bruce Rogen, an internal medicine physician, happened upon the scene and

stopped to give Peterson first aid. According to Dr. Rogen, Peterson was bleedingprofusely from the face, and his nose had slightly separated from the face.

Paramedics arrived and took Peterson to UCLA Trauma Center. Dr. Ontario Lau

removed pieces of glass from Petersons face and sutured his facial wounds. Dr. Lau did

not treat a fracture of Petersons nose bone, hoping it would heal on its own. Peterson

was at the hospital about six hours before being released.

Peterson later saw Dr. Geoffrey Keyes, a plastic reconstruction surgeon, who

performed nasal septal reconstructive surgery. Peterson was left with some scarringaround his nose and lips and numbness in his nose.

Paramedics took Stoehr to St. Johns Hospital, where he was examined and

released. Four days later, Stoehr saw orthopedic surgeon Kevin Ehrhart, who diagnosed

a shoulder separation, which was surgically repaired. Stoehrs shoulder was immobilized

in a sling for about five weeks after surgery, and Stoehr then received physical therapy.

Although Stoehr recovered from the injury, he still has some pain and a little hump over

the clavicle.Los Angeles Police Officer Robert Rodriguez arrived at the scene of the accident

and asked defendant what happened. Defendant responded: I just live up the road. I

was driving to go to work. The bikes were in front of me three across. I honked at them

and yelled to them single file. The bicyclist flipped me off and yelled back at me. I

passed them up and I stopped in front of them to teach them a lesson. Im tired of them.

Ive lived here for years and they always ride like this.

Officer Rodriguez did not record or take notes on defendants response at the time

but wrote it down about an hour and a half later. He remembered the response because it

was so shocking that somebody would actually admit they did something like this, it just

burned into my brain.


5/23

5

2. March 11, 2008 (Count 4)

On the afternoon of March 11, 2008, Patrick Watson (Watson), a competitive

bicyclist, and Josh Crosby (Crosby), an avid bicyclist, rode their bicycles to the top of

Mandeville Canyon Road. As they rode back down, they were riding side by side.Watsons GPS indicated they were riding about 30 miles per hour.

Crosby heard the sound of a car behind them and called to Watson, car back.

Watson turned around and saw a car behind them, coming really fast. As Crosby

drifted back to get behind Watson, the car horn sounded. The car passed so close to

Crosby, he felt the air from the cars movement. Watson glanced back and saw the car

was so close that he had to jump the curb, off the road, or be hit.

Watson returned to the road next to Crosby, who threw his hands in the air andasked the driver, defendant, who was driving past them, What the hell are you doing?

Defendant slammed on his brakes right in front of Watson and Crosby. Watson swerved

to the right and again jumped the curb to avoid hitting the car. Crosby swerved to the

left into opposing traffic to avoid hitting the car.

Crosby brought his bicycle back into his lane and stopped in front of the car. He

asked defendant, What the hell are you doing? Youre trying to kill us. The car moved

forward, and Crosby moved his bicycle out of the way. He again challenged defendantand told him to get out of the car. Defendant started driving, and as he passed Crosby,

Crosby struck the car with his hand.

Defendant drove toward Watson, who was stopped at the right side of the road.

Watson clearly saw defendants face. As the car veered back toward the center of the

lane and drove off, Watson recorded its license number, TCHMDX. This was the license

number of defendants car.

Watson attempted to call 911 on his cell phone but was unable to get a signal. He

and Crosby rode to the bottom of Mandeville Canyon Road, where he was able to make

the call. Crosby had to leave, but Watson waited for the police, who arrived about one

and one half hours later. Watson reported the incident to the police officer and gave the

officer the cars license plate number.


6/23

6

On July 5, 2008, Watson heard about the incident involving Peterson and Stoehr.

He thought the same driver might be involved and contacted the police and the district

attorneys office.

Gerald Bretting examined GPS data from Stoehr and Watson. It showed that atthe relevant times, both were traveling at just under 30 miles per hour and then abruptly

came to almost a complete stop.

3. Prior Uncharged Incident

One afternoon in late December 2007 or early January 2008, Patrick Early (Early)

was riding his bicycle up Mandeville Canyon Road. He heard a car coming up the road

behind him at a high rate of speed. As the car got closer, Early heard its horn sound in asustained, loud manner. Early pulled to the right as far as he could. He looked back

and saw the car was a red Infiniti.

The car pulled up next to Early and the driver yelled out the open passenger side

window, Get the f--- off the road. The driver was raging. As he drove off, Early

yelled at him. The car stopped suddenly, and the driver yelled something at Early. As

the car drove off, Early noted that part of the license number was MDX.

Early did not report the incident to the police because he was not injured and didnot believe they would respond. After reading in the newspaper about the July 4, 2008

incident, however, Early contacted the police to report what had happened to him. He

was shown a photographic lineup, from which he identified defendant as the driver of the

red Infiniti. 2

2 Defendants motion to augment the record on appeal with the police report of theEarly incident is denied, in that the report was not before the trial court.


7/23

7

B. Defense

1. July 4, 2008 Incident

Defendant was a doctor, working in the emergency department of Beverly

Hospital. He had a house on Mandeville Canyon Road, located about 3.4 miles up fromSunset Boulevard, and about 1.5 miles down from the top of the canyon.

Beginning in 2001, the amount of bicycle traffic on Mandeville Canyon Road had

been increasing. Defendant did not like to follow bicyclists for safety reasons; a

childhood friend had been killed when he fell off his bicycle and was struck by a car.

Defendant objected to the manner in which bicyclists rode on Mandeville Canyon

Road. They rode through stop signs and rode two, three or even more abreast. Other

Mandeville Canyon residents shared his objections and the matter had been discussed inresidents meetings and in the local newspaper. One of defendants neighbors, Cheryl

True, had spoken to the police about the problems. They suggested she videotape or

photograph bicyclists who rode in an unsafe manner or in violation of traffic laws so that

they could be identified.

On July 4, 2008, defendant left his house about 10:00 a.m. to go to work. He was

driving down Mandeville Canyon Road at about 30 miles per hour when he saw three

bicyclists riding side by side in his lane. He tapped his horn. The rider in the centerlooked back at him but did not move over. Defendant tapped his horn again, and the

rider on the left turned around and gave him the finger. Realizing the bicyclists were not

going to move over, he attempted to pass them to the left when it was safe to do so. As

defendant passed them to the left in the opposite lane, he lowered his passenger side

window and told them, Single file, please. They responded, F--- you, ass----.

After defendant passed the bicyclists, he decided to take a photograph of them

with his cell phone camera. After braking for a turn, he stopped his car, put it in park,

took off his seatbelt, took his cell phone out of his pocket and began to open the car door.

At that time, he heard something hit the back of his car. He saw that one of the bicyclists

had hit his rear window, which broke. The man got off the trunk of the car and sat down

on the ground. His face was bleeding, so defendant approached him to give him medical


8/23

8

assistance. The man screamed at him, Dont touch me, you m----- f-----. One of the

other riders was screaming at defendant to turn off his car. As defendant turned back

toward his car, he saw the third rider on the ground five to ten feet away, holding his arm.

Defendant called 911 and asked for an ambulance. He explained that in the call hesaid he slammed on his brakes in order to keep the call short. He said the injuries were

not serious because, from his point of view as an emergency room physician, they were

not life threatening, so they were not serious.

When the paramedics arrived, defendant showed them the injured people and

briefly described their injuries. He then spoke to Officer Rodriguez, who seemed

distracted during the interview. Defendant denied telling the officer that he wanted to

teach the bicyclists a lesson.Defendant did not deliberately stop his car in order to cause an accident or injure

the bicyclists. He did not even stop in a manner that would cause an accident. He just

stopped in order to take a picture of the riders so they could be identified and counseled

about their dangerous behavior.

Wilson Hayes, an expert in mechanical engineering, accident reconstruction,

injury biomechanics and kinematics, reviewed police reports, photographs taken at the

scene of the accident, a videotape of Petersons and Stoehrs route, their medical records,GPS data, and the preliminary hearing transcript as well as a transcript of Petersons and

Stoehrs trial testimony. Based upon these materials, Hayes concluded that the accident

could not have occurred in the manner Peterson and Stoehr claimed. Considering the

minimum stopping distances of the car and bicycles, the car must have been traveling at

15 miles per hour when the bicycles struck it. Peterson and Stoehr would have had ample

time to avoid hitting the car. 3

Roman Beck, who specialized in reconstructing accidents involving bicycles,

examined the bicycles and the scene of the accident. He concluded that a bicyclist

3 Hayes supported his testimony with CD animations showing how Peterson andStoehr could have avoided the accident.


9/23

9

traveling at 30 miles per hour under a heightened state of awareness resulting from a

verbal altercation with a motorist should have been able to stop his bicycle in about 2

seconds or 86 feet.

2. March 11, 2008 Incident

On March 11, 2008, defendant and Jody Fitts (Fitts), a contractor with Touch

Medics, spent the day at defendants house, working on touchscreen-based software for

use in emergency rooms. About 5:20 p.m., they left in defendants car to go to dinner.

As they were driving down Mandeville Canyon Road, they approached two bicyclists

who were riding side by side. Defendant honked his horn and one of the riders looked

back, but they continued riding side by side.Defendant attempted to pass the bicyclists but was unable to do so due to

oncoming traffic. When he was able to do so safely, he passed to the left of the

bicyclists. As he did so, defendant rolled down the passenger side window and told them,

Single file, ride single file. They gave him the finger and yelled, F--- you, ass----.

According to Fitts, after passing the bicyclists, defendant came to a normal

controlled stop. The bicyclists rode by, one on each side of the car, slapping the car

with their hands as they passed. They then stopped, got off their bicycles, and started toapproach the car on foot. Defendant drove away.

Defendant testified that he was pretty annoyed at the bicyclists gestures and

profanity, but he did not respond. Further down the road, he told Fitts he was going to

stop and try to get the bicyclists names. Defendant stopped the car and put it in park.

The bicyclists rode past him then stopped, got off their bicycles and walked back to the

car. One of them came up to the drivers side of the car and struck the car three times.

This frightened defendant, who put the car in gear and drove away, swerving into

oncoming traffic to avoid hitting the second bicyclist, who was still walking toward the

car. Defendant did not purposely drive toward either bicyclist or drive in a manner that

would lead them to believe he was trying to hit them.


10/23

10

3. Prior Uncharged Incident

During late December 2007 and early January 2008, defendant was traveling out

of state quite a bit and was working most weekend days. He was not involved in the

incident with Early.

DISCUSSION

A. Admission of Evidence of the Prior Uncharged Incident

Prior to trial, the prosecutor filed a motion to admit evidence of the incident with

Early under Evidence Code section 1101, subdivision (b) (section 1101(b)), to prove

motive, intent, plan, knowledge, and absence of mistake or accident. Defendant opposedthe motion on the grounds the evidence was inadmissible under section 1101(b), it was

unreliable, and it should be excluded under Evidence Code section 352 (section 352)

because any probative value it had was outweighed by the likelihood it would be

prejudicial, confuse the issues and mislead the jury.

The trial court ruled the evidence was admissible under section 1101(b) to prove

motive and absence of mistake or accident. The trial court declined to exclude the

evidence under section 352, explaining that the evidence was not very prejudicial inlight of the fact defendant was going to testify about the problems he had had with

bicyclists in the past. Additionally, defendants actions toward Early were not as

inflammatory as the present case. The prior incident was relatively close in time to

those at issue in the case, so its probative value was not substantially outweighed by any

prejudicial impact it might have.

Evidence Code section 1101, subdivision (a), prohibits, with specified exceptions,

admission of evidence of a persons character or a trait of his or her character (whether

in the form of an opinion, evidence of reputation, or evidence of specific instances of his

or her conduct) . . . when offered to prove his or her conduct on a specified occasion.

However, section 1101(b) provides: Nothing in this section prohibits the admission of

evidence that a person committed a crime, civil wrong, or other act when relevant to


11/23

11

prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake or accident . . .) other than his or her disposition to commit

such an act.

Evidence of prior crimes or bad acts by the defendant may have a highlyinflammatory and prejudicial effect on the trier of fact and its admissibility must be

scrutinized with great care. [A] closely reasoned analysis of the pertinent factors

must be undertaken before a determination can be made of its admissibility. ( People v.

Thompson (1980) 27 Cal.3d 303, 314, fns. omitted; accord, People v. Gray (2005) 37

Cal.4th 168, 202.) These factors include: (1) the materiality of the fact sought to be

proved or disproved; (2) the tendency of the [bad acts] to prove or disprove the material

fact; and (3) the existence of any rule or policy requiring the exclusion of relevantevidence. ( Thompson , supra , at p. 315; accord, People v. Kelly (2007) 42 Cal.4th 763,

783.)

Even if evidence is material and admissible under section 1101(b), section 352

may require its exclusion if the probative value of the evidence is outweighed by its

potential for prejudice. ( People v. Kelly , supra , 42 Cal.4th at p. 783.) We review the trial

courts determinations as to admissibility under section 1101(b) and exclusion under

section 352 for abuse of discretion. ( Ibid .; People v. Abilez (2007) 41 Cal.4th 472, 500.)Where the defendants mental state is at issue, evidence of a prior crime or bad act

may be admissible to show that the defendant harbored the requisite intent. [T]he

recurrence of a similar result . . . tends (increasingly with each instance) to negative

accident or inadvertence or self-defense or good faith or other innocent mental state, and

tends to establish (provisionally, at least, though not certainly) the presence of the

normal, i.e., criminal, intent accompanying such an act . . . . [Citation.] In order to be

admissible to prove intent, the uncharged misconduct must be sufficiently similar to

support the inference that the defendant probably harbor[ed] the same intent in each

instance. [Citations.] [Citation.] ( People v. Kelly , supra , 42 Cal.4th at p. 783.)


12/23

12

Defendant first claims evidence as to the incident with Early was inadmissible

because it lacked reliability. People v. Ewoldt (1994) 7 Cal.4th 380, 404, on which

defendant relies, does not support this claim.

The court in Ewoldt noted that [t]he probative value of evidence of unchargedmisconduct . . . is affected by the extent to which its source is independent of the

evidence of the charged offense. For example, if a witness to the uncharged offense

provided a detailed report of that incident without being aware of the circumstances of

the charged offense, the risk that the witnesss account may have been influenced by the

knowledge of the charged offense would be eliminated and the probative value of the

evidence would be enhanced. ( People v. Ewoldt , supra , 7 Cal.4th at p. 404.) The court

did not hold, however, that the testimony of a witness who does not come forward untilafter hearing an account of the charged offenses is inadmissible. To the contrary, the

court held that in the case before it, such evidence was admissible. ( Id . at p. 405.) Thus,

that Early did not come forward with a report of the prior incident until after learning of

the charged offenses did not render his testimony inadmissible.

Defendant also claims evidence as to the incident with Early was inadmissible to

prove motive or absence of mistake or accident, in that the incidents were too dissimilar.

We disagree.Yes, there were some dissimilarities between the incident with Early and those

involving the other victims. Early was not riding side by side with another bicyclist.

Defendant did not brake suddenly in front of Early, causing or nearly causing Early to hit

defendants car.

There were enough similarities, however, to give the Early incident probative

value. As in the other two incidents, defendant drove up behind a bicyclist at a high rate

of speed, honked and yelled at the bicyclist through the passenger side window. The

evidence tended to show that defendant was angry at bicyclists riding on Mandeville

Canyon Road and drove aggressively toward them. It tended to negate defendants

testimony that he was gently trying to get bicyclists to obey traffic laws and did not drive

in an aggressive manner toward them.


13/23

13

We also disagree with defendants claim that the trial court abused its discretion in

refusing to exclude evidence of the Early incident under section 352, in that it was more

prejudicial than probative. As defendant himself notes, he took no actions to injure

Early, and Early was not injured. Early did not even report the incident. In comparisonwith the other two incidents, the Early incident was not so inflammatory as to prejudice

the jury against defendant. ( People v. Ramirez (2006) 39 Cal.4th 398, 454.)

Contrary to defendants arguments, we do not believe that the testimony regarding

the Early incident was so time consuming and confusing that the jury was unable to

separate it from the evidence as to the charged offenses. Neither do we believe that the

jury would have been so incensed that defendant was not charged with the Early incident

that it convicted him of the more serious offenses against Peterson, Stoehr, Watson andCrosby in order to punish him for the less serious incident with Early. ( People v. Ewoldt ,

supra , 7 Cal.4th at p. 405.)

In sum, the trial court did not abuse its discretion in admitting the evidence of the

Early incident under section 1101(b) or in declining to exclude the evidence under

section 352. ( People v. Kelly , supra , 42 Cal.4th at p. 783; People v. Abilez , supra , 41

Cal.4th at p. 500.)

B. Eligibility for Probation

Defendant contends the trial court erred in finding him presumptively ineligible

for probation under Penal Code section 1203, subdivision (e)(3) (section 1203(e)(3)).

That section provides: Except in unusual cases where the interests of justice would best

be served if the person is granted probation, probation shall not be granted to . . . [a]ny

person who willfully inflicted great bodily injury or torture in the perpetration of the

crime of which he or she has been convicted. Defendant argues that the trial court made

no factual findings to support application of section 1203(e)(3), and the section is in any

event inapplicable to him.

Penal Code section 7, subdivision 1, provides that, unless otherwise apparent

from the context, [t]he word willfully, when applied to the intent with which an act is


14/23

14

done or omitted, implies simply a purpose or willingness to commit the act, or make the

omission referred to. It does not require any intent to violate the law, or to injure another,

or to acquire any advantage.

In People v. Lewis (2004) 120 Cal.App.4th 837, review denied October 13, 2004,the court examined the meaning of willfully as used in section 1203(e)(3). The court

observed that based on the definition given in the Penal Code, [c]ourts have concluded

the word willfully implies no evil intent but means the person knows what he or she is

doing, intends to do it and is a free agent. Usually the word willfully defines a general

intent crime unless the statutory language requires an intent to do some further act or

achieve some future consequence. [Citation.] In the final analysis, however, the

meaning of the word willfully in any given statute is dependent on the context in whichit is used. [Citations.]

The word willfully as generally used in the law is a synonym for intentionally,

i.e., the defendant intended to do the act proscribed by the penal statute. Section 1203,

subdivision (e)(3), so read requires the defendant intentionally inflicted great bodily

injury or torture in the commission of the crime. The section describes no initial act, e.g.,

willfully strikes, or willfully burns, resulting in some particular result, e.g., great bodily

injury, the burning of some particular type of property. When the structure of a sectionrequires a willful act followed by some particular result, then it is reasonable to read the

willful, i.e., intentional, element as referring only to the initial act and not to the ultimate

result. . . .

The word willfully in section 1203, subdivision (e)(3), does not follow the

act/result form. It refers merely to a result, i.e., the infliction of great bodily injury.

Given this structure of the section, [the court concluded] the only reasonable reading of it

is the word willful requires the defendants intent to cause great bodily injury or torture,

not merely that the crime resulted in great bodily injury or torture. [Citation.] ( People

v. Lewis , supra , 120 Cal.App.4th at pp. 852-853.)

The Lewis court thereafter addressed the defendants claim that section 1203(e)(3)

required a jury finding that he willfully inflicted great bodily injury. The court pointed


15/23

15

out that unlike other sections making a defendant ineligible for probation, section

1203(e)(3) contains no requirement the circumstances causing a restriction on probation

be pleaded or decided by the trier of fact. [Therefore, the court concluded, w]hen the

issue is whether a defendant is presumptively ineligible for probation under section 1203,the trial court may make the factual determination necessary for application of the

restriction. [Citations.] ( People v. Lewis , supra , 120 Cal.App.4th at pp. 853-854.)

In Lewis , it was assumed that the defendant was presumptively ineligible for

probation. The trial court was not asked to make a finding on the issue, and it did not

state on the record that the defendant intended to inflict great bodily injury on his victim.

The appellate court therefore remanded the matter for a new probation and sentencing

hearing to allow the trial court to make a finding as to whether the defendant waspresumptively ineligible for probation under section 1203(e)(3). ( People v. Lewis , supra ,

120 Cal.App.4th at p. 854.)

Here, the trial court reviewed the crimes, and the circumstances in aggravation and

mitigation. In imposing the principal term as to count 5, assault with a deadly weapon on

Peterson, the court stated that pursuant to Penal Code section 1203(e)(3) the defendant is

ineligible for probation, except in an unusual case. The court does not find such

circumstances. In any event, the court finds the defendant is not suitable for probation.Therefore, probation is denied.

Defendant first complains that, as in Lewis , the prosecution never asked the trial

court to find that defendant willfully inflicted great bodily injury within the meaning of

section 1203(e)(3) on Peterson and Stoehr, adding that the information did not contain

any allegations under section 1203. Here, however, defendants eligibility for probation

was at issue and was argued to the court. At the sentencing hearing, his counsel argued

there was nothing in the charges [about] an intent to injure, and [defendant] did not

intend to injure. She argued that this is an unusual case . . . that makes [defendant]

eligible for probation and that warrants probation.

The trial court clearly indicated that it had considered the question of defendants

eligibility for probation and made a decision on the issue. Thus, unlike Lewis , it is


16/23

16

unnecessary here to remand the case for a new probation and sentencing hearing to allow

the trial court to make a finding as to whether defendant was presumptively ineligible for

probation under section 1203(e)(3). ( People v. Lewis , supra , 120 Cal.App.4th at p. 854.)

Defendant adds that the jury was never asked to, and did not, find that defendantwillfully inflicted great bodily injury on Peterson and Stoehr. As Lewis pointed out,

however, section 1203(e)(3) does not require the trier of fact to make the determination

whether the defendant willfully caused great bodily injury. Rather, the trial court may

make the factual determination necessary for application of the restriction [on

probation]. ( People v. Lewis , supra , 120 Cal.App.4th at p. 854.)

We note in addition that the trial court was not required to make specific findings

on the record to support the section 1203(e)(3) determination. The denial of probation isnot a sentence choice for which a statement of reasons must be given. ( People v. Gopal

(1985) 171 Cal.App.3d 524, 548; see Pen. Code, 1170, subd. (c); Cal. Rules of Court,

rules 4.405(6), 4.406.)

Finally, defendant contends there is no evidence to support a finding he willfully

inflicted great bodily injury on Peterson and Stoehr. Assuming arguendo that the

evidence does not support such a finding, the trial court found that, section 1203(e)(3)

aside, defendant in any event was not suitable for probation. Thus, the lack of evidenceof willfulness would not invalidate the trial courts denial of probation.

C. Ineffective Assistance of Counsel

Defendant contends he was denied the effective assistance of counsel by his

counsels failure to object to the trial courts failure to make a factual finding on the

question whether he willfully inflicted great bodily injury on Peterson and Stoehr or to

object to the jury verdict forms which did not require a finding on that issue. As

discussed above, the jury was not required to make a finding on that issue. The trial

court made an implied finding on that issue but was not required to give an explicit

statement of reasons for its decision on the record. Since objection by counsel would


17/23

17

not have yielded a different result, there was no ineffective assistance of counsel. ( In re

Avena (1996) 12 Cal.4th 694, 721.)

D. Failure to Grant Probation Defendant contends the trial court abused its discretion in failing to grant him

probation. Specifically, he claims that this was an unusual case in which probation

should be granted, and he was a good candidate for probation.

A grant of [p]robation is an act of clemency which rests within the discretion of

the trial court, whose order granting or denying probation will not be disturbed on appeal

unless there has been an abuse of discretion. ( People v. Superior Court (Du) (1992) 5

Cal.App.4th 822, 831; People v. Kronemyer (1987) 189 Cal.App.3d 314, 364-365.) Thetrial court abuses its discretion when its decision is arbitrary or capricious, or it exceeds

the bounds of reason under the circumstances. ( Du , supra , at p. 831; Kronemyer , supra ,

at p. 365.)

In denying defendant probation, the court indicated that it had read and

considered the post-conviction probation report as well as the sentencing memorandum

of the People, defense counsels sentencing memorandum, and supplemental exhibit.

Court has also considered the statements of the victims as well as statements of defensewitnesses and the defendant, as well as the arguments of both counsel.

The court further acknowledged the incredible tension between cyclists and

motorists on Los Angeles streets. It stated that [t]he government must become aware

of the dangerous conditions existing on our city streets and the threat of injury to cyclists,

and should provide safe and accessible bike lanes to cyclists.

The court then found that the victims were particularly vulnerable, in that they

were on bicycles while defendant was in a car. In addition, the court was concerned

with the lack of remorse. I did hear the statements of the defendant today, but throughout

the probation report and other statements he continues to maintain he was going to take

pictures of the cyclists in this matter, and the jury obviously didnt buy that story.


18/23

18

The court also recalls the testimony of the 911 call that the defendant specifically

told Mr. Stoehr after he was thrown over the vehicle to get his bike off the road. The

defendant also stated on that same call when Mr. Peterson was seriously injured, bleeding

profusely, the defendant said that they will claim they were really hurt. The court isaware of the statement to the officer that he did this to teach the cyclists a lesson.

The court further acknowledged in mitigation that defendant called 911 and

remained at the scene. Defendant was 60 years old and had a minimal prior record,

namely a 1977 conviction for reckless driving.

Defendant recites many factors which would support a grant of probation. We

agree that on this record the trial court easily could have found this to be an unusual case

and defendant a good candidate, justifying a grant of probation. That is not the test,however.

The test is whether the trial court abused its discretion in denying probation

(People v. Superior Court (Du) , supra , 5 Cal.App.4th at p. 831; People v. Kronemyer ,

supra , 189 Cal.App.3d at pp. 364-365), and in applying this test we cannot substitute our

judgment for that of the trial court ( People v. Carmony (2004) 33 Cal.4th 367, 377).

Unless the trial courts action was so irrational or arbitrary that no reasonable person

could agree with it, we must uphold it. ( Ibid .)The record here demonstrates that the trial court considered both aggravating and

mitigating factors in deciding to deny probation to defendant. Its goal was to follow the

law in sentencing defendant. Its decision thus was not irrational or arbitrary. We thus

find no abuse of discretion in the decision. ( People v. Carmony , supra , 33 Cal.4th at

p. 377; People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) 4

4 It is clear that the trial court did take into account the mitigating factors. While itdenied probation, it did impose the lower term sentence as to each count.


19/23

19

E. Award of Attorneys Fees as Restitution

The prosecutor filed a motion requesting restitution on behalf of Peterson and

Stoehr. The amount requested was that which Peterson and Stoehr paid in attorneys

fees in connection with their lawsuit against defendant, which they ultimately settled,$20,000 each. This amount was 20 percent of the settlement amount of $100,000

pursuant to contingency fee agreements with their attorney, Brian Panish. The trial

court granted the motion.

Defendant challenges the amount of the restitution order, claiming the trial court

(1) misapplied the lodestar calculation method; (2) failed to consider Petersons initial

refusal of the $100,000 policy limits offer, unnecessarily increasing the amount of time

his attorney spent on the case; and (3) incorrectly found the economic damages couldnot be separated from the noneconomic damages.

A restitution order may include [a]ctual and reasonable attorneys fees and other

costs of collection accrued by a private entity on behalf of the victim. (Pen. Code,

1202.4, subd. (f)(3)(H).) While such an order is intended to compensate the victim for

economic losses, this does not mean that a victim is prohibited from recovering

attorney fees if those fees are incurred to recover both economic and noneconomic

losses. ( People v. Fulton (2003) 109 Cal.App.4th 876, 885.) Rather, when feescannot be reasonably divided between pursuit of economic losses as opposed to

noneconomic losses, the victim is entitled to be fully reimbursed for all actual and

reasonable attorney fees. ( Ibid .)

Our review of the restitution order is under the deferential abuse of discretion

standard. ( People v. Giordano (2007) 42 Cal.4th 644, 663.) Discretion is abused where

the order falls outside the bounds of reason under the applicable law and the

relevant facts [citations] ( Ibid .) [W]hile a trial court has broad discretion to choose a

method for calculating the amount of restitution, it must employ a method that is

rationally designed to determine the . . . victims economic loss. To facilitate appellate

review of the trial courts restitution order, the trial court must take care to make a

record of the restitution hearing, analyze the evidence presented, and make a clear


20/23

20

statement of the calculation method used and how that method justifies the amount

ordered. ( Id . at pp. 663-664.)

In determining reasonable attorneys fees, the court ordinarily begins with the

lodestar, i.e., the number of hours reasonably expended multiplied by the reasonablehourly rate. California courts have consistently held that a computation of time spent

on a case and the reasonable value of that time is fundamental to a determination of an

appropriate attorneys fee award. ( PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th

1084, 1095.) The court may then adjust the lodestar figure based upon factors specific

to the case before it, including the nature of the litigation, its difficulty, the amount

involved, the skill required in its handling, the skill employed, the attention given, the

success or failure, and other circumstances in the case. ( Id . at p. 1096.)The lodestar figure may also be adjusted in a case involving a contingency fee, as

was the case here, to provide a fee enhancement reflecting the risk that the attorney

will not receive payment if the suit does not succeed. ( Ketchum v. Moses (2001) 24

Cal.4th 1122, 1138.) After considering all relevant factors, a court may ultimately, but

is not compelled to, award as reasonable those fees set forth in a contingency fee

agreement. ( People v. Millard (2009) 175 Cal.App.4th 7, 33.)

In making the order, the trial court explained: Mr. Panish has indicated that thework hes done, what that entailed doing, the efforts made on behalf of each victim. I

dont think its unreasonable for Mr. Panish to charge whatever fee that he charges,

$750 an hour, even if at 25 hours, which was the amount of work that [defense witness]

Mr. Brugge indicated he would expect this would take, that would result [in] almost

$20,000 in attorneys [ sic ] fees [].

Also, in analyzing what is a fair market rate under the [lodestar] system and

considering any adjustments included in that determination is the contingent fee

arrangement and any risks involved in such an arrangement. Here the contingency fee

arrangement was for 25 percent. Mr. Panishs firm obviously incurred the risk of not

collecting anything. I find that under the [lodestar] adjustment method, considering all

the factors required under that consideration that $20,000 is a fair market rate for the


21/23

21

legal services in this case per the victim. [] I further find that you cant reasonably

divide the attorney fees of Mr. Panish between his [pursuit] of economic losses and non-

economic losses . . . .

The gravamen of defendants claim that the trial court misapplied the lodestarcalculation method is that, had the court properly applied it, it could not have concluded

that $750 per hour was a reasonable fee. Rather, defendant contends that while some

attorneys in particularly skilled areas working for large companies may charge $750 per

hour, an attorney in a small plaintiffs personal injury firm working on a routine traffic

accident matter is worth nowhere near $750. Rather, a more reasonable rate would be

that charged by defendants expert, $375, and defendant claims, even that rate seems

excessive.Defendant relies on People v. Fulton , supra , 109 Cal.App.4th 876, in which the

attorney handling the personal injury action billed her time at $175 per hour. ( Id . at

p. 881.) Ironically, that case involved a contingency fee agreement in which the

attorney received 25 percent of the settlement. The case settled for $100,000, and the

trial court in the criminal action ordered restitution of the full 25 percent, $25,000.

( Ibid .) The appellate court upheld the order as reasonable. ( Id . at pp. 889-890.)

Moreover, Mr. Panish did not charge Peterson and Stoehr $750 per hour. Hetestified that he spent [i]n excess of 150 hours on this case. He worked on a

contingency bases, but he had made applications to the court in the past where attorney

fees are allowed, and Ive been awarded in excess of $750 an hour.

Here, the trial court stated that it applied the lodestar method. It considered the

fair market rate for Mr. Panishs services and also the contingent fee arrangement Mr.

Panish had in this case. We cannot say that the trial court misapplied the lodestar

method merely because it found reasonable Mr. Panishs rate of $750 per hour. This is

especially true in light of the fact Mr. Panish charged a contingency fee of 25 percent

which was reduced to 20 percent by the court in the civil action.

Defendant also contends the trial court erroneously refused to consider that

Peterson first refused to settle for defendants insurance policy limits but ultimately


22/23

22

settled for that amount. The trial court simply found it was reasonable work, trying to

get the most they can for the client. Again, since Mr. Panish charged a contingency fee

rather than an hourly rate, Petersons initial refusal to settle was not particularly relevant

to the determination whether the fee was reasonable.Finally, defendant contends the finding by the trial court that the attorney fees

for the economic and non-economic losses could not be reasonably divided was

erroneous, in that accountings for Peterson and Stoehr showed the amounts of each

mans economic losses.

The question is not whether losses can be divided between economic and

noneconomic losses but whether attorneys fees can be reasonably divided between

pursuit of economic losses as opposed to noneconomic losses. ( People v. Fulton ,supra , 109 Cal.App.4th at p. 885, italics added.) Defendant suggests that the attorneys

fees can be divided based on the percentages of the victims total recovery constituting

economic and noneconomic damages. There is no evidence that the percentage of Mr.

Panishs efforts on behalf of his clients in pursuit of economic damages is equivalent to

the percentage of the total recovery that constitutes economic damages. This is

especially true where, as here, there is a contingent fee based on the total recovery.

In sum, we find no abuse of discretion in the trial courts award of attorneys feesas restitution. ( People v. Giordano , supra , 42 Cal.4th at p. 663.)

F. Presentence Custody Credit

Defendant contends, and the People agree, that the trial court erroneously

awarded defendant 67 days of actual custody credit instead of the 68 days to which he

was entitled. The abstract of judgment must be corrected accordingly.

DISPOSITION

The judgment is affirmed. The trial court is directed to correct the abstract of

judgment to award defendant 68 days of actual custody credit, for a total of 78 days of


23/23

presentence custody credits, and to forward a copy of the corrected abstract of judgment

to the Department of Corrections and Rehabilitation.

JACKSON, J.

We concur:

PERLUSS, P. J.

ZELON, J.

thompson 2011 unpub opinion

Documents