P. v. Ward

Filed 8/22/08 P. v. Ward CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, James A. Stotler, Judge. Affirmed.

Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Jeffrey J. Koch, Deputy Attorney General, for Plaintiff and Respondent.

* * *

Sara Lyn Ward pleaded guilty to gross vehicular manslaughter while intoxicated (Pen. Code, 191.5, subd. (a)),[1] and misdemeanor possession of less than one ounce of marijuana while driving a motor vehicle (Veh. Code, 23222, subd. (b)). Defendant argues the sentencing court erred in imposing the upper term for manslaughter by relying on her 1994 involuntary manslaughter conviction and several offense-specific factors. As explained below, we affirm.

I

Facts and Procedural Background[2]

On the late afternoon of May 25, 2006, 31-year-old defendant drove her pickup truck north on Jamboree Road in the City of Orange after leaving the Irvine grocery store where she worked. Several motorists observed her drive erratically. One witness saw her speed up to a red light, slam on her breaks, and fishtail before coming to a stop. She rested her head on her hands atop the steering wheel and failed to move for about five seconds after the light turned green. She made several abrupt moves between lanes without signaling, cutting off other drivers, and forcing them to brake and move out of her way. She veered into left turn pockets and back into the number one lane. She bounced off a center median. She rested her head on her hands at a second intersection and when the driver behind her honked, defendant raised her middle finger and yelled, Fuck you! Believing defendant was impaired, the driver telephoned 911 to report defendants erratic driving and provide a description of defendants truck and the trucks license number.

Defendant turned onto westbound Santiago Canyon Road. She began to drift from the number two lane into the number one lane, and then into left turn pockets and the 12-foot wide painted center median. As she approached a left curve, defendant continued drifting to the left so that half her truck crossed into the eastbound number one lane of oncoming traffic. She then drifted farther over so that her truck fully occupied the eastbound number one lane. An oncoming minivan traveling eastbound quickly swerved to avoid defendants vehicle, but defendant failed to brake or veer from her path.

Steven Ambriz was driving a Toyota Camry directly behind the minivan. Immediately after the minivan swerved to avoid defendants truck, she collided head-on with Ambrizs vehicle. Ambriz died a short time later from the injuries he suffered in the collision. Defendant sustained moderate injuries. She appeared disoriented after the collision and would or could not explain how it occurred. A witness said she appeared intoxicated, but did not detect an odor of alcohol. Defendant expressed concern for Ambriz and asked bystanders to reassure her he would recover.

A police officer found a small quantity of marijuana in a prescription pill container in defendants name on her dashboard. Defendant denied illegal drug use but displayed symptoms of being under the influence of a central nervous system stimulant. Toxicological testing revealed defendant had ingested methamphetamine and marijuana. Methamphetamine adversely affects driving ability by initially causing overstimulation, overconfidence, risk-taking behavior, and inability to focus, followed by a withdrawal effect, including sleepiness, lethargy, motor coordination problems, and slowed reaction time.

A grand jury indicted defendant in September 2006. On May 11, 2007, she pleaded guilty to gross vehicular manslaughter while intoxicated and possession of marijuana in a vehicle.[3] On July 27, 2007, the trial court denied probation and sentenced her to the 10-year upper term for manslaughter and a concurrent term for the misdemeanor.[4] The court, based on the guidelines specified in the recent case of People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), concluded it had broad discretion to choose either the low, middle, or upper term. The court stated it imposed the upper term based on defendants 1994 involuntary manslaughter conviction, the horrific nature of defendants conduct, and the particular vulnerability of the victim. The court noted in mitigation defendant had voluntarily acknowledged wrongdoing at a relatively early stage of the proceedings, displayed some remorse, had a good employment history, had successfully completed probation in the earlier case, and apparently persuaded a fellow jail inmate to stop using drugs. The court found the aggravating circumstances outweighed any mitigation by a large margin, and imposed the aggravated term of ten years. Defendant now challenges on appeal the sentencing courts decision.

II

Discussion

A. Overview of Californias Current Determinate Sentencing Law

Under Californias Determinate Sentencing Law (DSL), statutes defining most offenses prescribe three terms of imprisonment a lower, middle, and upper term sentence. A violation of section 191.5 is punishable by imprisonment in the state prison for four, six, or 10 years. ( 191.5, subd. (c).) At the time of defendants crime, the DSL provided that the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. (Former Pen. Code, 1170, subd. (b), as amended by Stats. 2007, ch. 740,  1, p. 3.) Court rules specified that [s]election of the upper term is justified only if, after a consideration of all the relevant facts, the circumstances in aggravation outweigh the circumstances in mitigation. (Former Cal. Rules of Court, rule 4.420(b), as amended eff. May 23, 2007.)

In Apprendi v. New Jersey (2000) 530 U.S. 466, the United States Supreme Court held that [o]ther than the fact of 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. (Id. at p. 490.) In Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856], the court held the middle term, not the upper term, constituted the prescribed statutory maximum, and the DSL therefore violated a defendants right to a jury trial under the Sixth Amendment because it authorized the judge, not the jury, to find the facts permitting an upper term sentence. (Id. at p. 871.) Cunningham noted California had the option of complying with Sixth Amendment requirements by allowing sentencing courts to exercise broad discretion within a statutory range. (Ibid.)

In response to Cunningham, the Legislature amended the DSL effective March 30, 2007. (Stats. 2007, ch. 3,  1, pp. 2-3 [Sen. Bill No. 40].) Section 1170 now reads: (a)(3) . . . In sentencing the convicted person, the court shall apply the sentencing rules of the Judicial Council. . . . [] (b) When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. . . . In determining the appropriate term, the court may consider the record in the case, the probation officers report, other reports including reports received pursuant to Section 1203.03 and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing. The court shall select the term which, in the courts discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected and the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law. . . . [] (c) The court shall state the reasons for its sentence choice on the record at the time of sentencing. (Italics added.)

The Judicial Council revised the sentencing rules to reflect the statutory changes effective May 23, 2007. (Cal. Rules of Court, rules 4.406, 4.420, 4.421, & 4.423.) Rule 4.420(b) reads: In exercising his or her discretion in selecting one of the three authorized prison terms . . . the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision. The rules provide reasons for selecting one of the three authorized prison terms . . . be stated orally on the record in simple language. (Cal. Rules of Court, rules 4.420(e) & 4.406(a).) The Judicial Council redefined circumstances in aggravation and mitigation to include factors rather than facts relating to the crime and to the defendant. (Cal. Rules of Court, rules 4.421 & 4.423.) Thus, trial courts no longer were required to specify facts to support its decision. (Sandoval, supra, 41 Cal.4th at pp. 846-847.) Additionally, circumstances in aggravation and mitigation need not be established by a preponderance of the evidence, and the trial court need not weigh circumstances in aggravation against those in mitigation. (Cal. Rules of Court, rule 4.420(b).)

For defendants awaiting sentencing because their initial sentences ran afoul of Cunninghams mandates, the California Supreme Court in Sandoval directed trial courts to conduct sentencing in a manner consistent with the amendments to the DSL. (Sandoval, supra, 41 Cal.4that p. 846.) The court rejected ex post facto and due process arguments against application of the Legislatures newly revised sentencing scheme to crimes antedating its opinion. (Id. at pp. 853-857.) Here, the post-Cunningham DSL revision occurred after defendants crime, which occurred on May 25, 2006, but before defendants sentencing hearing on July 27, 2007. Consequently, the trial court correctly determined the revised DSL applied to defendants sentence. Accordingly, we review defendants sentence in light of its provisions.

B. The Trial Court Did Not Abuse Its Discretion in Selecting the Upper Term

Defendant argues the court abused its discretion in selecting the upper term for manslaughter. She asserts the court relied on inappropriate factors and that [o]nce the inappropriate factors are excised, there is no justifiable basis for imposing the upper term . . . .

As noted above, the choice of the appropriate term shall rest within the sound discretion of the court. ( 1170, subd. (b).) The trial courts selection of the appropriate term is reviewed for abuse of discretion. (Sandoval, supra, 41 Cal.4th at p. 847.) Judicial discretion implies absence of arbitrary determination, capricious disposition or whimsical thinking. [Citation.] [D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered. [Citations.] (People v. Giminez (1975) 14 Cal.3d 68, 72.) The burden is on the party attacking the sentence to clearly show the sentencing decision was irrational or arbitrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. (Ibid.)

Defendant faults the courts reliance on her 1994 involuntary manslaughter conviction. She states the prior is a prime example of one that does not merit consideration as an aggravating factor because it was an unforeseeable consequence of a minor altercation that would ordinarily have ended in the parking lot, where it had started.

The probation report, which summarized the circumstances of the prior conviction based on the police reports, reflects that in September 1993, Tina Rodriguez, a 27‑year‑old mother of four, was a passenger in a car traveling through a La Habra parking lot. A friend drove the car and Rodriguezs two children rode in the back seat. Defendant and another female companion were passengers in a stolen car driven by John Collins and traveling through the same La Habra parking lot. Collins sped past Rodriguezs car and subsequently blocked its path. Defendant, her female companion, and the victim exited their respective vehicles and began arguing. As the confrontation escalated, defendant and her companion hit and kicked the victim, knocking her to the ground. Rodriguez hit her head on a concrete planter and subsequently died. The victim suffered from a thyroid condition that made her susceptible to heart failure, and the stress of the event caused her to suffer a fatal heart attack. Charged with murder, defendant pleaded guilty to involuntary manslaughter in February 1994 and served 265 days in jail as part of sentence placing her on felony probation for 36 months.

Recidivism has furnished a traditional basis for enhancing an offenders sentence. (Almendarez-Torres v. U.S. (1998) 523 U.S. 224, 243.) Repeat offenders demonstrate that previous criminal sanctions proved inadequate to check their criminal endeavors and therefore warrant harsher treatment. Just as offenders who have no prior record, or an insignificant record of criminal conduct, are entitled to have a sentencing court weigh this factor in mitigation (Cal. Rules of Court, rule 4.423(b)), it logically follows a sentencing court may consider an offenders prior offense as an aggravating circumstance. Doing so may further several sentencing objectives, including the protection of society, punishing the defendant, deterrence, and preventing a defendant from committing new crimes during the period of confinement (Cal. Rules of Court, rule 4.423(b)).

In fashioning an appropriate sentence for defendant, the trial court could compare the circumstances of the prior offense to the present case and reasonably conclude defendants actions demonstrated a proclivity to engage in dangerous conduct that posed a risk of harm to others. True, the crime of battery is not an inherently dangerous crime in the abstract (People v. Cox (2000) 23 Cal.4th 665, 674), and defendant correctly characterizes the victims death as an unforeseeable consequence. But defendants guilty plea to the involuntary manslaughter charge implicitly acknowledged that her unprovoked battery of the victim constituted an act dangerous to human life under the circumstances of the offense. (Id. at p. 675.) Consequently, the trial court could reasonably conclude defendants actions in the present case warranted an aggravated sentence because she failed to heed the lesson that fatal and tragic consequences result when disregarding the risk that dangerous acts pose to others. As the court stated, the defendant is the only one that is going to remedy her life. [S]he needs to . . . walk into an arctic wind and get an icy chill that brings her back to reality, that gets her to say, You know, Ive got to stop this.. . . We have a prior death, and now this is the second time around. In sum, the sentencing court did not act arbitrarily or capriciously by relying on defendants prior conviction to impose the upper term.

Defendant also argues the court improperly relied on several offense-specific factors.[5] She contends no evidence supported the courts reliance on the aggravating factor for a victims particular vulnerability under California Rules of Court, rule 4.421(a)(3). The court explained, The victim was particularly vulnerable in that he was driving a smaller car while the defendant was driving a pickup truck. Additionally the defendants vehicle struck his without warning giving him no time to take evasive action.

As used in the context of rule 4.421(a)(3), a particularly vulnerable victim is one who is vulnerable in a special or unusual degree, to an extent greater than in other cases . . . . (People v. Bloom (1983) 142 Cal.App.3d 310, 321 (Bloom).) Expressed colloquially, it is a cheap shot. (People v. Smith (1976) 94 Cal.App.3d 433, 436.) Until recently, the rule had been applied only to intentional crimes, such as violent felonies, where the defendant commits an especially contemptible act by exploiting the age or physical infirmities of the victim, or takes advantage of the victims particular circumstances. (People v. Piceno (1987) 195 Cal.App.3d 1353, 1357-1358 (Piceno).) Because felony drunk driving presupposes an entirely innocent and unsuspecting victim, [t]he element of vulnerability is inherent in the very crime of vehicular manslaughter caused by a driver under the influence of alcohol, and to use that factor to aggravate the term is improper, absent extraordinary circumstances. (Id. at p. 1358.) As Bloom explains, [t]here are few individuals as defenseless, unguarded, unprotected, accessible, assailable and susceptible as those who have the misfortune of being in the wrong place at the wrong time when a drunk driver takes to the road. All victims of drunk drivers are vulnerable victims, but it is precisely because they are all vulnerable that [the victim] cannot be considered to be vulnerable in a special or unusual degree, to an extent greater than in other cases. (Bloom, at pp. 321-322.)

The court in People v. Weaver (2007) 149 Cal.App.4th 1301 (Weaver), deviated from the reasoning of the above cases and concluded substantial evidence supported a finding the victims in a gross vehicular manslaughter by an intoxicated driver were particularly vulnerable. (Id. at p. 1315.) The court rejected the notion that the usual victim of gross vehicular manslaughter has no advance warning or ability to avoid a collision with the defendants car, explaining one can envision many situations involving gross vehicular manslaughter (whether a  191.5, subdivision (a), offense or otherwise) in which the victim has at least some advance notice or warning of the imminent risk posed by the defendants car that allows him or her at least some opportunity to attempt to avoid the collision. Those victims presumably should be considered less vulnerable . . . . (Id. at p. 1321.)

Because all motorists are peculiarly vulnerable to intoxicated drivers who recklessly violate the rules of the road, we question Weavers claim courts may make meaningful distinctions in trying to parse the degree of vulnerability among the victims of gross vehicular manslaughter. But we need not resolve the issue here because any conceivable error was harmless.

As discussed above, the trial courts reliance on defendants prior conviction alone supports imposition of the aggravated term. (Piceno, supra, 195 Cal.App.3d at p. 1353 [a single aggravating factor may support an aggravated term].) The trial courts reliance on the horrific nature of the crime provides further justification for the upper term, and defendant does not challenge this factor. As Weaver explained, rule 4.421(a)(1) permits a trial court to consider as an aggravating circumstance whether the offense involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness. The trial courts description of the offense as horrific may fall within that rule. In any event, rule 4.408(a) authorizes a trial court to consider additional criteria reasonably related to the decision being made. The trial court could reasonably conclude the horrific nature of Weavers offense was reasonably related to its sentencing choice. Therefore, it properly considered that factor as an aggravating circumstance. (Weaver, supra, 149 Cal.App.4th at p. 1322.)

At the sentencing hearing, the trial court specifically noted it considered each reason it cited for imposing the aggravated term as independent of one another. In other words, the trial court would have imposed the aggravated term based on any one of the cited reasons. Because the court independently relied on defendants prior conviction and the horrific nature of defendants crime to impose the upper term, it is not reasonably probable the trial court would have imposed a lesser sentence in the absence of any potential error. (People v. Watson (1956) 46 Cal.2d 818, 836.)

Finally, defendant complains the trial court violated the prohibition against dual use of facts when it aggravated defendants sentence based on facts that constituted the elements of the offense. As explained above, any potential error was harmless.

III

Disposition

The judgment is affirmed.

ARONSON, J.

WE CONCUR:

SILLS, P. J.

IKOLA, J.

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[1] All further statutory references are to the Penal Code unless specified.

[2] Because defendant pleaded guilty, the facts are derived from the probation report and grand jury transcript, which the court read and considered before imposing sentence.

[3] The grand jury also charged defendant with driving under the influence causing injury. (Veh. Code,  23153, subd. (a).) The court dismissed this charge as a lesser included offense of gross vehicular manslaughter while intoxicated. (See People v. Miranda (1994) 21 Cal.App.4th 1464.)

[4] The incident in this case led to the passage of the Steve Ambriz Act, which added section 13385 to the Vehicle Code. Section 13385 provides that effective July 1, 2008, all application forms for drivers licenses or renewals must require the applicant to sign a declaration he or she has been advised that being under the influence of alcohol or drugs, or both, impairs the ability to safely operate a motor vehicle. Therefore, it is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both. If I drive while under the influence of alcohol or drugs, or both, and as a result, a person is killed, I can be charged with murder.

[5] Defendant argues reliance on any offense-based factor violated her rights under the Apprendi/Cunningham line of cases. We disagree. Even under the old DSL regime, the courts finding defendant had suffered a prior conviction rendered defendant eligible for an upper term sentence and eliminated any constitutional impediment. (People v. Black (2007) 41 Cal.4th 799.) Also, once that aggravating factor was established, the trial court could rely on other aggravating circumstances in exercising its discretion to select the appropriate term regardless whether a jury found the facts underlying those circumstances to be true. (Id. at pp. 815-816.)