DISCUSSION

Torres argues that the trial court did not exercise its informed discretion when imposing the 180 days of confinement

3 as a probation condition because it misunderstood Vehicle Code section 2800.2, subdivision (a).1 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).) Confinement is not mandated by Penal Code section 1203.1, however; instead, the court may “impose either imprisonment in a county jail or a fine, both, or neither.” (Id., subd. (a)(2), italics added.) 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. (Id., subd. (e).) Penal Code section 290.018, failing to register as a sex offender, requires 90 days confinement as a condition of probation. (Id., subd. (c).) Penal Code section 273.5, second offense domestic violence, requires 15 days confinement as a condition of probation. (Id., subd. (h)(1).) 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, 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

1We grant Torres’s request for judicial notice that this issue has arisen in three unpublished opinions from 2010 to 2017.

4 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.” (Ibid.) 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’s remarks at sentencing clearly indicate 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.)

DISPOSITION

The order is affirmed.

GILBERT, P. J.

We concur:

YEGAN, J.

PERREN, J.

5 Bruce A. Young, Judge

Superior Court County of Ventura

______________________________

Ventura County Legal Services, Inc. and Christina Vanarelli for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Zee Rodriguez and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.

6 Filed 7/13/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B318399 (Super. Ct. No. 2021020406) Plaintiff and Respondent, (Ventura County)

v. ORDER MODIFYING AND

CERTIFYING OPINION FOR

LUIS DANIEL TORRES,

PUBLICATION

Defendant and Appellant. [NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on June 16, 2022, be modified as follows: 1. On page 1, the first paragraph is changed to read: “Here we put to rest any doubt concerning whether Vehicle Code section 2800.2 subdivision (a), mandates jail time. It does not. The trial court may exercise its discretion to grant probation for a violation of the section. “Luis Daniel Torres appeals a grant of probation with the condition that he serve 180 days of confinement in county jail. Although the trial court misunderstood imposition of custodial time as a probation condition for a felony violation of Vehicle

1 Code section 2800.2, subdivision (a), the court said it would not impose less custodial time if it did have the discretion. For this reason, we affirm. (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].)” 2. On page 2, the word “its” is substituted for the word “a” in the second sentence of the fourth full paragraph is so that the sentence reads: “The court also stated that it would make its decision after reviewing the probation report.” There is no change in judgment. The opinion in the above-entitled matter filed June 16, 2022, was not certified for publication in the Official Reports. For good cause it now appears that the opinion should be published in the Official Reports and it is so ordered.

2