P. v. Colorina

Filed 4/16/07 P. v. Colorina CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
DANIEL S. COLORINA,
Defendant and Appellant.
D048735
(Super. Ct. No. SCE255860)
APPEAL from a judgment of the Superior Court of San Diego County, Charles W.
Ervin, Judge. Affirmed.
A jury convicted Daniel Steven Colorina of evading an officer with reckless
driving (Veh. Code, § 2800.2, subd. (a); count 1) and of driving without a valid driver's
license (Veh. Code, § 12500, subd. (a); count 2). Colorina subsequently admitted he had
a prior prison conviction within the meaning of Penal Code1 section 667.5, subdivision
1 All statutory references are to the Penal Code unless otherwise specified.

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(b). The trial court sentenced him to a total prison term of four years, consisting of the
three-year upper term for the count 1 evading offense and one year for the prison prior
enhancement, and imposed a sentence of credit for time served for the misdemeanor
offense.
Colorina appeals, contending the trial court prejudicially erred when it failed to
suppress all statements he made to a police officer after his arrest but before he was given
his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Colorina also
claims the court violated his constitutional rights to jury trial and due process by
imposing an upper term sentence in violation of Blakely v. Washington (2004) 542 U.S.
296 (Blakely).
As to this second issue, the United States Supreme Court in Cunningham v.
California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham) has recently determined
that California's Determinate Sentencing Law (DSL), which permits a court to impose an
upper term sentence based on aggravating facts not found true by a jury or beyond a
reasonable doubt, is unconstitutional and violates the holdings in Apprendi v. New Jersey
(2000) 530 U.S. 466 (Apprendi), Blakely, supra, 542 U.S. 296 and United States v.
Booker (2005) 543 U.S. 220 (Booker). We thus asked the parties to submit supplemental
letter briefs addressing whether Colorina had forfeited the Blakely/Cunningham issue,
and if not, to address the effect of the holding in Cunningham on his upper term sentence.
We affirm Colorina's convictions and sentence.

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FACTUAL BACKGROUND
Because Colorina does not challenge the sufficiency of the evidence to support his
convictions, we merely summarize the facts presented at trial as background for our
discussion. At about 8:30 p.m. on September 1, 2005, California Highway Patrol Officer
(CHP) Jonathan Neibert, on patrol on Interstate 8 near Campo and Boulevard, spotted a
grey Mercedes with expired registration tags driving near the Golden Acorn Casino.
When Neibert activated his patrol car's lights to stop the Mercedes, the driver slowed and
moved to the shoulder of the road, but did not stop. Neibert then used his public address
system to direct the driver to stop, but instead the driver merged back into the traffic lane
and accelerated. Neibert turned on his siren and followed the Mercedes on the interstate
and as it exited onto Ribbonwood, speeding past another car and a stop sign. At the
intersection of Ribbonwood and Old Highway 80, the driver ran another stop sign and
made a wide right turn onto Old Highway 80. Neibert followed the Mercedes for about
five miles along Old Highway 80, and then back onto Interstate 8.
As the Mercedes accelerated on the freeway, Neibert pulled up slightly behind its
left rear side in the next lane over and illuminated the interior of the car. Neibert believed
the driver to be Hispanic or Asian, with dark hair, and saw that a woman was in the
passenger seat. Although Neibert did not see the driver's full face, he saw his profile.
When the driver of the Mercedes began driving erratically, Neibert backed away, but
continued chasing after the car at up to 110 miles per hour until other CHP units deployed
a spike strip across the freeway east of Kitchen Creek.

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After the driver ran over the spike strip, he exited the freeway at Kitchen Creek,
ran through another stop sign while traveling south, and at the intersection of Kitchen
Creek and Old Highway 80, he failed to make the turn, going through the intersection and
over an embankment. When Neibert came to a stop sign at the top of the embankment,
he got out of his patrol car and illuminated the driver's side of the Mercedes which was
about 15 feet below him. Neibert saw the driver, who appeared to be over six feet tall
and wearing a black shirt, pants and hat, open the driver's door of the Mercedes, come out
and turn briefly to face him before going through a barbed-wire fence and running
through the brush. Although other officers and a Sheriff's helicopter helped search for
the driver, they were unable to locate him that night.
At about 11:30 a.m. the next day, Neibert received a call from a state investigator
to come to the U.S. Forestry Fire Station at Kitchen Creek, which was about a quarter of
a mile from where the car had gone over the embankment, regarding a potential suspect.
When Neibert arrived at the fire station, he recognized the man he saw driving the
Mercedes sitting next to one of the walls of the station. When Neibert asked the man his
name, he responded that it was "David Allen Cole." Because Neibert had been given
contrary information, he told the man to "be honest" with him, but the man would not
give Neibert his true name. Neibert was later able to confirm that the man's true name
was Colorina and that his driver's license had expired. Although Colorina was then
wearing U.S. Forestry green pants and a gray shirt, Neibert believed he was the driver of
the Mercedes, saying he was "100 percent sure" of his identification.

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The parties stipulated that Colorina had been under arrest at the time he was seated
against the wall of the fire station and that he did not have a valid driver's license.
DISCUSSION
I
ALLEGED MIRANDA VIOLATION
In limine, the prosecutor advised the court that at the preliminary hearing, the
judge had ruled that certain statements made by Colorina would be excluded as violative
of Miranda, supra, 384 U.S. 436, and that he did not intend to mention those. The
prosecutor noted, however, that there were also statements from Colorina before that
point "when he misidentifies himself, and I don't believe . . . the court [ruled on those] or
against those statements coming in . . . and I believe that those would come in as far
as . . . giving the false information, consciousness of guilt." Defense counsel asked to
have time to review the transcript of the preliminary hearing before the matter was
addressed, explaining that the identification the prosecutor was talking about was when
Colorina gave his name as "David Allen Cole."
Two days later, before jury selection, defense counsel argued that based upon a
reading of the preliminary hearing transcript, the question, "[w]hat's your name?" asked
Colorina by CHP Officer Neibert when Colorina was already under arrest but without
Miranda advisements constituted custodial interrogation because identity of the driver
was at issue and Neibert knew from an interview with the passenger of the Mercedes that
the driver was a Filipino man named "Danny." Counsel asserted the booking exception

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to Miranda for demographic information was inapplicable because Neibert was seeking
to elicit information as to Colorina's identity which was inculpatory.
The prosecutor disagreed, noting that although Colorina had been arrested by a
Sheriff's deputy, Neibert arrived at the fire station where Colorina was in custody before
being transported to the Alpine substation where his parole agent later came to positively
identify him so that Colorina's identity was not yet "set." Even though the female
passenger had told Neibert that the driver in the high-speed chase the night before was
named "Danny," Neibert independently recognized the man sitting at the fire station as
the driver he had followed during the chase. At that point, Neibert asked the man what
his name was to try to verify his identity for prebooking purposes so the police could start
the process by running his report and record while he was being transported from the fire
station to the Alpine substation where booking could then be completed.
Without stating any reasons, the court ruled that "the statement, [Colorina's]
statement as to the name, what his name was, over defense counsel's objection" would be
allowed in evidence.
On appeal, Colorina contends the trial court prejudicially erred in allowing his
response to Neibert's question as to his name, arguing, as he did below, that the question
was not a neutral booking question but rather a custodial interrogation intended to elicit
incriminating evidence. We disagree. Having independently reviewed the undisputed
underlying facts presented below for the motion in light of the controlling law (People v.
Ochoa (1998) 19 Cal.4th 353, 401-402), we conclude the trial court properly ruled the
response to Neibert's "[w]hat's your name?" question was admissible under the booking

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exception to Miranda. (Pennsylvania v. Muniz (1990) 496 U.S. 582, 600-602, 606-607
(conc. & dis. opn of Renquist, C.J.) (Muniz).)
The United States Supreme Court in Muniz held that questions during the booking
process of a person who has been arrested which elicit the name, address, height, weight,
eye color, date of birth and current age of the person fall within the "routine booking
question" exception to the requirement for Miranda warnings and waivers. (Muniz,
supra, 496 U.S. at pp. 600-602, 606-607 (conc. & dis. opn of Renquist, C.J.).) In other
words, the right to remain silent generally does not apply to "questions seeking
biographical information for booking purposes" (Gladden v. Roach (5th Cir. 1989) 864
F.2d 1196, 1198; cf., People v. Powell (1986) 178 Cal.App.3d 36, 40), and such
"biographical data" derived from un-Mirandized routine booking queries is admissible
evidence even if incriminating. (Muniz, supra, 496 U.S. at pp. 600-602, 606-607 (conc.
& dis. opn of Renquist, C.J.); People v. Hall (1988) 199 Cal.App.3d 914, 921.) The court
in Muniz, however, noted that the "booking exception" would not apply where there was
proof the "question was designed to elicit incriminating admissions." (Muniz, supra, at p.
602, fn. 14.) The record here contains no such proof.
Contrary to Colorina's assertion that such proof is shown by Neibert's comments to
him to tell the truth after he had given his response of a false name because Neibert had
already learned from the passenger of the Mercedes that the driver's name was "Danny,"
such additional comments after the "biographical" question merely demonstrate that the
officer was attempting to obtain the correct and full name of the person he had already

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recognized as the driver, which is reasonably related to police administrative concerns.
(Muniz, supra, 496 U.S. at pp. 601-602.)
Moreover, the record reflects that Colorina remained silent in the face of those
additional comments and that Neibert only subsequently learned from another source that
the man in custody was really named "Daniel Colorina." To the extent Colorina suggests
Neibert's comments were improper statements or commentary on his postarrest silence in
response to being confronted with the giving of a false name, no objection was made
below regarding them. Nor could his counsel be faulted for not so objecting because
questions or commentary regarding a defendant's postarrest silence where Miranda
warnings have not yet been given do not violate federal law. (See People v. Delgado
(1992) 10 Cal.App.4th 1837, 1841-1842.)
Therefore, based on the totality of the record, we conclude the trial court properly
ruled Colorina's response to Neibert's "biographical" question while Colorina was under
arrest and awaiting transportation for booking did not violate Miranda, the Sixth
Amendment or due process.
II
BLAKELY/CUNNINGHAM
In imposing an upper term for Colorina's count 1 conviction of evading an officer
with reckless driving, the trial judge stated:
"In looking at those possible circumstances in aggravation and those
in mitigation, I note that the probation report . . . accurately
identifies those circumstances in aggravation. [H]is prior
convictions as an adult and sustained petition[s] in juvenile
delinquency proceedings are numerous and many. [H]e has served a

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prior federal prison term. [H]is performance on parole is
unsatisfactory. He was on parole when the crime was committed.
[H]is prior performance on probation and parole [was] unsatisfactory
because he failed to remain law abiding. Not only that but he was a
parolee at large at the time this event occurred. [H]is girlfriend was
a passenger in the vehicle at the time of this pursuit, at one point of
time. . . reaching 110 miles per hour. [¶] I cannot find or I cannot
see that there exists any possible circumstances in mitigation."
On appeal, Colorina contended that the trial court's imposition of an upper term
based on facts not found true by the jury violated his federal constitutional rights to proof
beyond a reasonable doubt, a jury trial, and due process under Blakely, supra, 542 U.S.
296 and Apprendi, supra, 530 U.S. 466, even though he recognized we were bound to
follow our Supreme Court's holding in People v. Black (2005) 35 Cal.4th 1238 (Black)
that Blakely did not invalidate the California DSL sentencing scheme as to the choice of
an upper term. (Id. at p. 1244.) He further argued that the issue was not waived even
though his counsel did not object below based on Blakely, because such objection would
have been futile after the decision in Black. Alternatively, Colorina claimed that if this
court found the issue was forfeited, he was denied effective assistance of counsel for the
failure of his counsel to preserve the issue when the law was unsettled by the United
States Supreme Court having granted certiorari in Cunningham.
While Colorina's appeal was pending, the high court issued its decision in
Cunningham, which overruled Black, supra, 35 Cal.4th 1238, and struck down the DSL
on precisely the grounds urged by Colorina in this appeal. (Cunningham, supra, 127
S.Ct. 856.) As that court stated, "Contrary to the Black court's holding, our decisions
from Apprendi to Booker point to the middle term specified in California's statutes, not

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the upper term, as the relevant statutory maximum. Because the DSL authorizes the
judge, not the jury, to find the facts permitting an upper term sentence, the system cannot
withstand measurement against our Sixth Amendment precedent." (Cunningham, supra,
127 S.Ct. at p. 871, fn. omitted.) In so holding, the high court again reaffirmed
Apprendi's bright-line rule, that had been reiterated in both Blakely, supra, 542 U.S. 296
and Booker, supra, 543 U.S. 220, that "[e]xcept for a prior conviction, 'any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.' [Citation.]" (Cunningham,
supra, at p. 868.)
As noted earlier, we requested supplemental briefing regarding the effect of
Cunningham, supra, 127 S.Ct. 856, on the upper term imposed in this case and whether
the issue in the first instance had been waived. In his supplemental brief, Colorina
reiterates his arguments regarding waiver and ineffective assistance of counsel, as well as
asserting he suffered prejudice by the court's imposition of the aggravated term under the
Chapman v. California (1967) 386 U.S. 18 harmless error test which applies when the
court fails to submit a sentencing factor to the jury. (Washington v. Recuenco (2006) ___
U.S. ___, 126 S.Ct. 2546, 2549.)
Although conceding that Cunningham, supra, 127 S.Ct. 856, generally precludes a
trial court from finding facts to impose an upper term sentence and that the middle-term
is the statutory maximum for a valid sentence in California in the absence of jury-found
aggravating facts., the People contend Colorina forfeited his Cunningham/Blakely claim
because he failed to object under Apprendi, Blakely or the right to a jury trial at the time

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he was sentenced on May 9, 2006, long after Blakely had been decided. The People
assert that even if the issue is reached, there was no Cunningham violation in this case
because of the recidivism exception under Almendarez-Torres v. United States (1998)
523 U.S. 224 (Almendarez-Torres).
We agree with the People that Colorina has forfeited his Cunningham/Blakely
issue on appeal. Blakely, supra, 542 U.S. 296, was filed on June 24, 2004, almost two
years before Colorina's sentencing, which occurred about three months after Cunningham
had been granted certiorari. (People v. Cunningham (2005, A103501) [nonpub. opn.],
cert. granted sub nom. Cunningham v. California (Feb. 21, 2006, No. 05-6551) ___U.S.
___ [2006 U.S. Lexis 1136].) Colorina's counsel did not object on Blakely grounds at
sentencing. Generally, issues not raised in the trial court are waived on appeal. (People
v. Saunders (1993) 5 Cal.4th 580, 590 & fn. 6; People v. Hill (2005) 131 Cal.App.4th
1089, 1103.)
Nor do we believe Colorina can show that his counsel was ineffective for failing to
object on Blakely grounds in this case. Essentially, each of the factors the court used to
impose the upper term, except for the fact that Colorina's girlfriend was a passenger in
the Mercedes, concerned recidivist factors, several of which Colorina had admitted
throughout his trial. Specifically, Colorina conceded he was currently on parole for the
prior conviction for auto theft which he admitted he had served a prior prison term under
section 667.5, subdivision (b). He also conceded that at the time of the criminal conduct
in this case he was "in absconder status," or a "parolee at large," and had been returned to
prison, released and returned to parole supervision shortly before trial. Under these

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circumstances, regardless of whether the "Almendarez-Torres exception" will be more
narrowly construed in California after the decision in Cunningham, supra, 127 S.Ct. 856,
because Colorina admitted several of the factors the court used to impose the upper term
and a single aggravating circumstance is sufficient for imposing such a term (People v.
Osband (1996) 13 Cal.4th 622, 728-729), it would have been futile for counsel to have
objected under Blakely, supra, 542 U.S. 296. No prejudicial Cunningham/Blakely error
is shown.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
I CONCUR:
NARES, J.

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Aaron, J., Concurring and Dissenting
I agree with the majority that the trial court did not err in denying Colorina's
motion to suppress Colorina's pre-Miranda1 statements. However, I disagree with the
majority's conclusion that Colorina has forfeited his right to challenge on appeal the trial
court's imposition of an upper term sentence.
The essence of an allegation of Blakely2 error is that the defendant was deprived
of his constitutional right to a jury trial on the factors on which the trial court relied in
imposing an upper term sentence. A defendant is not precluded from asserting on appeal
that he was denied his constitutional right to a jury trial, despite a failure to raise the issue
in the trial court. (People v. Saunders (1993) 5 Cal.4th 580, 589, fn. 5; see also Cal.
Const. art. I, § 16; People v. Holmes (1960) 54 Cal.2d 442, 443-444 [waiver of the right
to a jury trial must be expressed].) While a claim of Blakely error involves a claim of
only a partial deprivation of the right to a jury trial, I see no reasonable basis for
distinguishing the right to a jury trial on aggravating factors from the right to a jury trial
in general, for purposes of forfeiture. I would conclude that Colorina's challenge to his
upper term sentences is cognizable on appeal despite his failure to raise the issue in the
trial court.
1 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
2 Blakely v. Washington (2004) 542 U.S. 296 (Blakely).

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Further, prior to Colorina's sentencing, the California Supreme Court concluded in
People v. Black (2005) 35 Cal.4th 1238, 1244, 1254, 1261 (Black) that the imposition of
an upper term sentence under California law was constitutional. In light of Black, any
objection Colorina might have made at sentencing based on Blakely, Apprendi, or the
United States Constitution would have been futile, even in view of the fact that the
United States Supreme Court granted certiorari in Cunningham prior to Colorina's
sentencing.
I would remand the case for resentencing. The majority is correct that Colorina
admitted several aggravating factors at trial. However, most of the factors the trial court
mentioned as constituting circumstances in aggravation were neither found true by the
jury nor admitted by Colorina. While the trial court did observe that it did not find any
circumstances in mitigation, it is possible that if the court had not relied on impermissible
factors in imposing the upper term, the court might have sentenced Colorina to the
midterm. For this reason, I believe the trial court should be provided the opportunity to
reconsider the sentence in this case.
AARON, J.

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