Opinion
A157317
06-25-2020
THE PEOPLE, Plaintiff and Respondent, v. MARC DELANEY CRAWLEY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR323242)
In March of 2016, defendant Marc Crawley drank beer and then crashed his car on the I-80 freeway, killing one victim and injuring two others. He subsequently pleaded no contest to three charges, including gross vehicular manslaughter while intoxicated, and was sentenced to a total term of 11 years. Crawley appeals his sentence, arguing that the trial court erred in imposing the upper term on the gross vehicular manslaughter charge on the ground that the victim was particularly vulnerable. He has also filed a petition for a writ of habeas corpus arguing that his trial counsel was ineffective in failing to object to the upper term on this basis. We affirm the judgment and deny the petition.
BACKGROUND
The factual background is drawn from testimony at the preliminary hearing as well as the probation report.
On the evening of March 26, 2016, 18-year-old B.M. and her younger sister C.M. were driving eastbound on I-80 near the Cordelia truck scales when they got a flat tire. A passing motorist, DuJuan Pines, stopped and helped them change the tire, but after doing so discovered that B.M.'s car battery had died. Pines moved his own car so that he could give the two sisters a jump and connected the jumper cables. B.M. and Pines then stood in front of the car while C.M. sat in the driver's seat.
At that moment, Crawley, who had been drinking beer at a friend's house in Vallejo, crashed his vehicle into the parked cars. Both Pines and B.M. were thrown into the air. B.M. died shortly thereafter from her injuries. C.M. suffered a fractured patella, was in a cast and a brace for approximately five months, and had to do physical therapy for several months to " 'learn how to walk again.' " Pines received a gash on his head and his left knee, and required stitches.
Crawley was also injured and was taken to the hospital, where he was found to have a blood alcohol content of 0.20 percent.
In 2017, the Solano County District Attorney filed an amended information charging Crawley with gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)) (count 1), driving under the influence causing injury (Veh. Code, § 23153, subd. (a)) (count 2), and driving with at least a 0.08 percent blood alcohol content causing injury (Veh. Code, § 23153, subd. (b)) (count 3). The information further alleged with respect to counts 2 and 3 that Crawley personally inflicted great bodily injury on B.M. (§ 12022.7, subd. (a)) and with respect to all three counts that Crawley caused great bodily injury or death to C.M. and Pines (Veh. Code, § 23558).
Further undesignated statutory references are to the Penal Code.
On March 21, 2019, Crawley pleaded no contest to all the charges, in exchange for a promise that he would be considered for probation.
Sentencing took place on May 10. The trial court heard testimony from Crawley and numerous members of B.M.'s family. After denying Crawley a grant of probation, the trial court explained its decision to impose the upper term of ten years on the gross vehicular manslaughter count:
As relevant here, gross vehicular manslaughter while intoxicated "is punishable by imprisonment in the state prison for 4, 6, or 10 years." (§ 191.5, subd. (c)(1).)
"I'm going to impose the high term of ten years. I've selected the high term principally because there were multiple victims and because—actually, forget the multiple victims. It's really because of how vulnerable [B.M.] was being outside of the car. It just—I don't know. It just—let me find some of the notes I made while people were talking: 18-year-old high school senior, inexperienced motorist, side of the road, outside her car, trying to get it started after somebody had helped her with her flat.
"I just think on balance, considering everything, including all the mitigating stuff that's presented by Mr. Crawley and his family, still the high term sentencing of ten years is warranted.
"I considered striking the punishment on the [Vehicle Code section] 23558 enhancements. I think what I'm going to do, I'm not going to do that as to C.M., who was the younger sister. So I'm going to add an additional consecutive term—it's not really a consecutive term, it's an additional term of one year for the [Vehicle Code section] 23558 enhancement as to her. So that's eleven years.
"As to Mr. Pines, I'm going to strike the punishment for that in order to further justify the imposition of the high term of ten years, because there is a rule that I cannot use a conduct enhancement to impose an upper term, unless the punishment for that enhancement is stricken. And this particular statute does authorize the Court to strike the punishment. So I'll strike one, but not both.
"So the total term is eleven years."
The trial court then imposed the upper terms of three years for each of counts 2 and 3 and stayed imposition of sentence pursuant to section 654. The trial court likewise imposed and stayed the section 12022.7, subdivision (a) enhancements on counts 2 and 3.
Crawley's notice of appeal indicates that his appeal "is based on the sentence or other matters occurring after the plea that do not affect the validity of the plea. (Cal. Rules of Court, rule 8.304(b).)"
DISCUSSION
Crawley's sole argument on appeal is that the trial court abused its discretion in imposing the upper term for gross vehicular manslaughter while intoxicated based on the aggravating factor that "the victim was particularly vulnerable." (Cal. Rules of Court, rule 4.421(a)(3).) Crawley relies on several cases holding that "[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. [Citation.] Precisely because of their inherent vulnerability, drunk driving victims should not be considered more vulnerable than victims in other cases." (People v. Piceno (1987) 195 Cal.App.3d 1353, 1358; see People v. McNiece (1986) 181 Cal.App.3d 1048, 1058-1060 [similar]; People v. Bloom (1983) 142 Cal.App.3d 310, 321-322 [similar]; but see People v. Weaver (2007) 149 Cal.App.4th 1301, 1321 [finding particularly vulnerable victim factor applied in gross vehicular manslaughter while intoxicated case where victims "had absolutely no advance warning or ability to attempt to avoid the [defendant's] oncoming car"].)
Further references to the rules are to the California Rules of Court.
Crawley has also filed a petition for a writ of habeas corpus (A160172), which we ordered considered with this direct appeal. The petition asserts that his trial counsel rendered ineffective assistance by failing to object to the trial court's use of the victim's particular vulnerability as an aggravating factor. In a declaration attached to the petition, Crawley's trial counsel states that he was unaware of the above case authority holding the particularly vulnerable victim factor not applicable in gross vehicular manslaughter cases, that had he been aware he would have objected to the sentence on that basis, and that he had no tactical reason for failing to do so.
At sentencing, Crawley's counsel did state: "I think the decision can't be made on what a beautiful person the victim was. The law has to show some neutrality. [¶] And so, whether the victim is like this young woman who just almost sounds saintly or just some homeless person on the street, I don't think that comes into the calculation of aggravated term." The parties disagree as to whether this was sufficient to preserve the argument Crawley now makes on appeal. Because we conclude there was no prejudice, we need not resolve this issue.
Sentencing decisions are reviewed for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) "The trial court's sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an 'individualized consideration of the offense, the offender, and the public interest.' ([People v. Superior Court (Alvarez) (1997)] 14 Cal.4th [968,] 978.)" (Sandoval, at p. 847.) A trial court abuses its discretion "if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision." (Ibid.)
"A single factor in aggravation will support imposition of an upper term. (People v. Castellano (1983) 140 Cal.App.3d 608, 615.) 'When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.' (People v. Price (1991) 1 Cal.4th 324, 492.)" (People v. Cruz (1995) 38 Cal.App.4th 427, 433-434.) And similarly, to prevail on his ineffective assistance of counsel claim, Crawley must "show prejudice flowing from counsel's performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (People v. Williams (1997) 16 Cal.4th 153, 215; see In re Cox (2003) 30 Cal.4th 974, 1019-1020 [court deciding ineffective assistance of counsel claim need not address whether performance was deficient if defendant does not establish prejudice].)
Even assuming the cases Crawley relies on are clearly the law, we conclude that resentencing is not necessary because it is not reasonably probable that the trial court would choose a lesser sentence on remand. And for the same reason, Crawley's ineffective assistance of counsel claim fails for failure to demonstrate a reasonable probability of a different result. This is because the trial court expressly relied on a second aggravating factor in imposing the upper term—the fact that the crime injured multiple victims.
Rule 4.408(a) states: "The listing of factors in these rules for making discretionary sentencing decisions is not exhaustive and does not prohibit a trial judge from using additional criteria reasonably related to the decision being made." (See also rule 4.421(c) [trial court can consider any other aggravating factors "that reasonably relate to the defendant or the circumstances under which the crime was committed"].) In People v. Calhoun (2007) 40 Cal.4th 398 (Calhoun), our Supreme Court held that "[t]here is no persuasive reason why the trial court should not be allowed to consider the fact of multiple victims as a basis for imposing either the upper term or a consecutive sentence, although it cannot do both." (Id. at p. 408; see ibid. ["[Defendant's] single act of violence caused either the death or serious injury of four people. The gravity of and his culpability for this offense is increased by the number of those he harmed"].)
As noted, the information here alleged that Crawley caused injury or death to three victims—B.M., C.M., and Pines. Based on those two additional victims, the information charged Crawley with two one-year enhancements pursuant to Vehicle Code section 23558. And as quoted, the trial court initially said it "selected the high term principally because there were multiple victims" but then, after quizzically saying "forget the multiple victims," went on to discuss the particularly vulnerable victim factor. However, with respect to the Vehicle Code section 23558 enhancements, the trial court imposed one enhancement with respect to C.M., but struck the punishment for the second enhancement with respect to Pines "in order to further justify the imposition of the high term of ten years," and because of the "rule that I cannot use a conduct enhancement to impose an upper term, unless the punishment for that enhancement is stricken." (See rule 4.420(c); Advisory Committee Comment to rule 4.420 ["The rule makes it clear that a fact charged and found as an enhancement may, in the alternative, be used as a factor in aggravation"].) Thus, the fact that the crime had an additional injured victim in Pines could be—and expressly was—used by the trial court as a second aggravating factor to justify imposition of the upper term. (See Calhoun, supra, 40 Cal.4th at p. 408.) Under these circumstances, it is not reasonably probable that the trial court would have imposed a lesser sentence had it known that reliance on the particularly vulnerable victim factor was improper, or had trial counsel objected on that basis.
"A person who proximately causes bodily injury or death to more than one victim in any one instance of driving in violation of . . . Section 191.5 . . . shall, upon a felony conviction, and notwithstanding subdivision (g) of Section 1170.1 of the Penal Code, receive an enhancement of one year in the state prison for each additional injured victim."
DISPOSITION
The judgment is affirmed. By separate order of today's date, Crawley's petition for a writ of habeas corpus (A160172) is denied.
/s/_________
Richman, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.