Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA068297, Scott T. Millington, Judge.
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.
JACKSON, J.
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), 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.
The trial court dismissed one conviction of battery with serious bodily injury (count 2) as a lesser included offense of mayhem.
On appeal, defendant claims evidentiary error and ineffective assistance of counsel. He challenges the trial court’s 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.”
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 Stoehr’s 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 single file.” 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 car’s 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, there’s two injuries.” The operator asked if the injuries were serious, and defendant said, “Uh, not really... they’ll claim that.” Defendant could also be heard on the tape of the 911 call telling Stoehr, “Get your bike out of the road why don’t you?”
Bruce Rogen, an internal medicine physician, happened upon the scene and stopped to give Peterson first aid. According to Dr. Rogen, Peterson was “bleeding profusely 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 Peterson’s face and sutured his facial wounds. Dr. Lau did not treat a fracture of Peterson’s 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 scarring around his nose and lips and numbness in his nose.
Paramedics took Stoehr to St. John’s 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. Stoehr’s 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. I’m tired of them. I’ve lived here for years and they always ride like this.”
Officer Rodriguez did not record or take notes on defendant’s 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.”
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. Watson’s 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 car’s 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 and asked 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? You’re trying to kill us.” The car moved forward, and Crosby moved his bicycle out of the way. He again challenged defendant and 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 defendant’s 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 defendant’s 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 car’s license plate number.
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 attorney’s office.
Gerald Bretting examined GPS data from Stoehr and Watson. It showed that at the 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 a “sustained, 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 did not 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.
Defendant’s motion to augment the record on appeal with the police report of the Early incident is denied, in that the report was not before the trial court.
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 from Sunset 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 in residents’ meetings and in the local newspaper. One of defendant’s 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 center looked 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 assistance. The man screamed at him, “Don’t 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 he said 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 Peterson’s and Stoehr’s route, their medical records, GPS data, and the preliminary hearing transcript as well as a transcript of Peterson’s and Stoehr’s 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.
Hayes supported his testimony with CD animations showing how Peterson and Stoehr could have avoided the accident.
Roman Beck, who specialized in reconstructing accidents involving bicycles, examined the bicycles and the scene of the accident. He concluded that a bicyclist 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 defendant’s house, working on touchscreen-based software for use in emergency rooms. About 5:20 p.m., they left in defendant’s 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 to approach 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 driver’s 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.
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 opposed the 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” in light of the fact defendant was going to testify about the problems he had had with bicyclists in the past. Additionally, defendant’s 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 person’s 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 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 “‘highly inflammatory 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 relevant evidence.” (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 court’s 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 defendant’s 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.)
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 uncharged misconduct... 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 witness’s 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 until after 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 defendant’s 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 defendant’s testimony that he was gently trying to get bicyclists to obey traffic laws and did not drive in an aggressive manner toward them.
We also disagree with defendant’s 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 comparison with 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 defendant’s 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 and Crosby 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 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 which it 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 section requires 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 defendant’s 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 defendant’s claim that section 1203(e)(3) required a jury finding that he willfully inflicted great bodily injury. The court pointed 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 was presumptively 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, defendant’s 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 defendant’s eligibility for probation and made a decision on the issue. Thus, unlike Lewis, it is 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 defendant willfully 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 is not 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 evidence of willfulness would not invalidate the trial court’s denial of probation.
C. Ineffective Assistance of Counsel
Defendant contends he was denied the effective assistance of counsel by his counsel’s failure to object to the trial court’s 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 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.) The trial 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 counsel’s sentencing memorandum, and supplemental exhibit. Court has also considered the statements of the victims as well as statements of defense witnesses 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 didn’t buy that story.
“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 is aware 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 court’s 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.)
It is clear that the trial court did take into account the mitigating factors. While it denied probation, it did impose the lower term sentence as to each count.
E. Award of Attorney’s 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 attorney’s 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 Peterson’s 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 could not be separated from the noneconomic damages.
A restitution order may include “[a]ctual and reasonable attorney’s 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 fees cannot 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... victim’s economic loss. To facilitate appellate review of the trial court’s restitution order, the trial court must take care to make a record of the restitution hearing, analyze the evidence presented, and make a clear statement of the calculation method used and how that method justifies the amount ordered.” (Id. at pp. 663-664.)
In determining reasonable attorney’s fees, the court “ordinarily begins with the ‘lodestar, ’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly 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 the work he’s done, what that entailed doing, the efforts made on behalf of each victim. I don’t think it’s 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. Panish’s 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 legal services in this case per the victim. [¶] I further find that you can’t reasonably divide the attorney fees of Mr. Panish between his [pursuit] of economic losses and non-economic losses....”
The gravamen of defendant’s claim that the trial court misapplied the lodestar calculation 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 plaintiff’s 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 defendant’s 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. He testified 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 I’ve 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. Panish’s 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. Panish’s 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 defendant’s insurance policy limits but ultimately 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, Peterson’s 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 man’s economic losses.
The question is not whether losses can be divided between economic and noneconomic losses but whether attorney’s 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 attorney’s 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. Panish’s 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 court’s award of attorney’s fees as 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 presentence custody credits, and to forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: PERLUSS, P. J.ZELON, J.