P. v. Delgado
Filed 8/19/08 P. v. Delgado CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, Plaintiff and Respondent, v. EDITH DELGADO, Defendant and Appellant. | A119041 (San Mateo County Super. Ct. No. SC062142A) |
Defendant Edith Delgado appeals from a judgment convicting her of three misdemeanor counts of vehicular manslaughter (Pen. Code,[1] 192, subd. (c)(2)). Her appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potentially arguable issues, and requesting this court to undertake a review of the entire record. Defendant was advised that she could file a supplemental brief, which she has not done. Having conducted an independent review of the record, we find no issue of colorable merit and shall affirm.
FACTUAL AND PROCEDURAL HISTORY
On July 5, 2006, defendant was involved in an automobile accident that resulted in the death of three people. Defendant was charged by information with three counts of felony vehicular manslaughter. ( 192, subd. (c)(1).)[2] At trial, four witnesses testified that defendants car was speeding and weaving through traffic just prior to the accident. Both the defense and prosecution expert witnesses agreed that as defendant was changing lanes her car sideswiped the victims car, which was traveling at a slower rate of speed. The other car flipped over numerous times and the three victims were pronounced dead at the scene. Three staff members from defendants high school testified that in the six months prior to the accident defendant was warned about the dangers of unsafe driving and that she was suspended on one occasion for unsafe driving in the school parking lot. The prosecution also introduced statements that defendant made to the police on three occasions following the accident. Defendant acknowledged that she had been driving between 70 and 75 miles per hour and changed lanes several times just prior to the accident.
During deliberations the jury requested additional copies of the jury instructions, as well as certain transcripts and exhibits. Although the court ordered the items delivered to the jury before conferring with counsel, both subsequently agreed that the court properly provided the requested materials to the jury.
The jury found defendant not guilty of the felony charges, but guilty of the lesser included offenses of misdemeanor vehicular manslaughter. The court suspended imposition of sentence and placed defendant on probation for three years. As a condition of probation, the court ordered defendant to serve one year in county jail on count one, a consecutive six months in county jail on count 2 and an additional consecutive six month county jail term on count 3. Defendant was awarded 516 days credit for time served and good behavior. Defendant filed a timely notice of appeal.
DISCUSSION
The trial court did not abuse its discretion in admitting the testimony that defendant previously had been warned about and disciplined for unsafe driving. As the trial court explained, this evidence was admissible under Evidence Code section 1101, subdivision (b) to show a lack of mistake or accident as to defendants driving. The court also noted correctly that defendants previous admonition regarding unsafe driving was relevant to the required mental state for vehicular manslaughter with gross negligence, tending to show that she acted with conscious indifference to the risks associated with her behavior.
Likewise, the trial court did not err in admitting defendants statements made to the police following the accident. Following a hearing pursuant to Evidence Code section 402, the court found that defendants statements made in the hours following the accident were not the product of a custodial interrogation so that no advisement of rights was needed. We agree. We also agree with the courts determination that defendant was properly advised of her rights prior to the final interrogation, which occurred at the county jail.
To the extent that the court failed to follow the procedures set forth in section 1138 for responding to jury requests,[3] the error clearly was harmless since, as both attorneys acknowledged, the requested materials were properly delivered to the jury. Defendant was adequately and effectively represented by counsel throughout the proceedings.
We find no error with regard to defendants grant of probation. The trial court suspended imposition of a sentence and ordered a consecutive jail term on each count as a condition of probation. Probation is an act of grace and clemency to permit rehabilitation. It is not within the ambit of the double punishment proscription of section 654. (People v. Stender (1975) 47 Cal.App.3d 413, 425, overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 240.) A statement of reasons under California Rules of Court, rule 4.406(b) is not required when the court imposes consecutive jail terms as a condition of probation.
DISPOSITION
The judgment is affirmed.
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Pollak, J.
We concur:
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McGuiness, P. J.
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Siggins, J.
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[1] All statutory references are to the Penal Code.
[2] Section 192 provides in relevant part Manslaughter is the unlawful killing of a human being without malice. It is of three kinds: [] . . . [] (c) Vehicular[] (1) Except as provided in subdivision (a) of Section 191.5, driving a vehicle in the commission of an unlawful act, not amounting to felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence. [] (2) Driving a vehicle in the commission of an unlawful act, not amounting to felony, but without gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence.
[3] Section 1138 provides, After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.
