Opinion
F061700 Super. Ct. No. BF131280A
11-09-2011
THE PEOPLE, Plaintiff and Respondent, v. MITCHELL EDWARD GREEN, Defendant and Appellant.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Levy, Acting P.J., Cornell, J., and Detjen, J.
APPEAL from a judgment of the Superior Court of Kern County. Charles R. Brehmer, Judge.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Following the denial of his motions to suppress evidence (Pen. Code, § 1538.5)and to dismiss the charges against him on the basis of "outrageous police conduct" (unnecessary capitalization omitted), appellant, Mitchell Edward Green, pursuant to a plea agreement, pled no contest to gross vehicular manslaughter while intoxicated (§ 191.5; count 1), driving under the influence of an alcoholic beverage or drug and causing bodily injury (Veh. Code, § 23153, subd. (a); count 2), and driving while having a blood alcohol content of .08 percent or more and causing bodily injury (Veh. Code, § 23153, subd. (b); count 3), and admitted enhancement allegations that in committing each offense he personally inflicted great bodily injury on a person other than an accomplice, within the meaning of section 12022.7, subdivision (a) (section 12022.7(a)), and proximately caused bodily injury to more than one victim (Veh. Code, § 23558).
Except as otherwise indicated, all statutory references are to the Penal Code.
The plea agreement provided that a second section 12022.7(a) enhancement alleged in connection with count 1 would be dismissed. The court dismissed that enhancement allegation; imposed a prison sentence of nine years, consisting of the six-year midterm on the count 1 offense plus three years for the accompanying section 12022.7(a) enhancement; and ordered that appellant pay victim restitution in the amounts of $67,873.87, to the Pacific Gas and Electric Company (P.G. & E.), and $89,933.72, to Jerome and Michaela Maxwell. The court also imposed, and stayed pursuant to section 654, the following prison terms: one year on the count 1 Vehicle Code section 23558 enhancement; the two-year midterm on the count 2 offense; one year on the count 2 Vehicle Code section 23558 enhancement; three years on the count 2 section 12022.7(a) enhancement; the two-year midterm on the count 3 offense; one year on the count 3 Vehicle Code section 23558 enhancement; and three years on the count 3 section 12022.7(a) enhancement.
Appellant filed a timely notice of appeal. Insofar as the record reveals, appellant did not request, and the court did not issue, a certificate of probable cause (§ 1237.5).
Appellant's appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.)
Appellant himself has filed a supplemental brief in which he makes various contentions which we discuss below. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Our factual statement is taken from a portion of the report of the probation officer (RPO) which, the RPO states, is a summary of a report prepared by the California Highway Patrol.
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On February 2, 2010, police, responding to a report of a traffic accident, arrived at the scene and found two vehicles involved: a "truck" and a "4-door passenger vehicle" (car). "Michelle M.," one of the two occupants in the car, was pronounced dead at the scene. The other occupant, "Michaela M.," suffered major injuries, including a broken leg and broken arm. Appellant, who had been driving the truck, also sustained major injuries.
A witness told officers the following: He was directly behind the car, waiting to make a left turn at an intersection. The signal controlling left turns was green and the car entered the intersection to make its left turn. Appellant entered the intersection traveling approximately 70 to 90 miles per hour and collided with the car.
A police officer interviewed appellant at the hospital where appellant was taken after the accident. The officer detected the odor of an alcoholic beverage on appellant's breath, and appellant's speech was slow and slurred. Appellant consented to a blood test and submitted a blood sample; the testing of which revealed that appellant had a blood alcohol content of .13 percent.
Report of the Probation Officer
The probation officer found one circumstance in mitigation—appellant had no prior criminal record—and no circumstances in aggravation. The officer concluded: "[T]he single mitigating factor is not felt to be [of] sufficient weight to offset the seriousness of the offense in which a woman lost her life and a second victim sustained great bodily injury. Therefore, [as to each of the instant offenses] it is felt the mid term is justified."
The probation officer also stated that "[a]ccording to the documents provided," the losses for the car, hospital bills, medicine, "co-pays" and funeral expenses totaled $89,933.72, and that Pacific Gas and Electric Company "submitted documentation of a loss of $67,873.87 for the power pole destroyed in the accident."
DISCUSSION
As best we can determine, appellant argues that the court abused its discretion in imposing midterm sentences on each of the three instant offenses, rather than the lower term, because the court gave insufficient weight to certain circumstances in mitigation. Those circumstances in mitigation are, he asserts, as follows: He did not intentionally hurt anyone; prior to committing the instant offenses, he had no alcohol or drug "problems"; he had no criminal record; as a firefighter and member of the United States military, he has "spent the majority of [his] life ... trying to help people"; he can "do way more good outside of prison than in"; the "frail condition" of the victim in the count 1 offense "was a contributing factor" to her death; and other persons who have committed crimes more serious than the instant offenses have received less severe sentences.
We note there is nothing in the record to support at least two of the foregoing factors—the physical condition of the victim and sentences imposed in other cases—and therefore we may not consider them. (People v. Barnett (1998) 17 Cal.4th 1044, 1183 ["review on a direct appeal is limited to the appellate record"].) But even assuming for the sake of argument the truth of these and the other factors appellant claims as circumstances in mitigation, and assuming further that each qualifies as a circumstance in mitigation, appellant's argument is without merit. "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.... The court shall select the term which, in the court's discretion, best serves the interests of justice." (§ 1170, subd. (b).) In exercising its discretion, "the sentencing judge may consider circumstances in aggravation or mitigation ...." (Cal. Rules of Court, rule 4.420(b).) "Sentencing courts have wide discretion in weighing aggravating and mitigating factors. [Citation.] Indeed, a trial court may 'minimize or even entirely disregard mitigating factors without stating its reasons.'" (People v. Lai (2006) 138 Cal.App.4th 1227, 1258.)
"'The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] 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.'" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
On this record, the imposition of the middle term as to each of the instant offenses was neither irrational nor arbitrary. Therefore, notwithstanding the factors which, it appears, appellant claims are mitigating circumstances, the imposition of the middle term was well within the court's discretion.
Appellant also argues that the court, in imposing the middle term rather than the lower term, improperly based its sentencing choice on the following factors: the victims were related to a retired City of Bakersfield police detective, and the court "made an example" of appellant because he was a firefighter. The record does not support appellant's claim that the court relied on these factors, and therefore appellant has not affirmatively demonstrated that the court relied on these or any other improper sentencing factors. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [appellant has burden on appeal to affirmatively demonstrate error].)
Appellant also argues that the probation officer, in arriving at her recommendations, was improperly influenced by the victims' "relationship to the police department." This claim, too, is not supported by the record.
Appellant also suggests, as best we can determine, as follows: the court erred in failing to impose a concurrent, rather than consecutive, term on the count 1 section 12022.7(a) enhancement. We disagree. Section 12022.7(a) expressly mandates that a person subject to this enhancement "shall be punished by an additional and consecutive term of imprisonment in the state prison for three years." (Italics added.)
Finally, appellant, apparently in recognition of the fact that he is subject to section 2933.1, which limits him to earning "no more than 15 percent of worktime credit" (§ 2933.1, subd. (a)) while in prison, asserts he "was told" the court "didn't have to" impose—and therefore, he suggests, the court erred in imposing—a sentence that makes him subject to section 2933.1. However, the 15 percent worktime credit limitation in section 2933.1 is mandatory for any person who, like appellant, has committed one or more felonies in the commission of which he or she inflicts great bodily injury within the meaning of section 12022.7(a). (§§ 2933.1, subd. (a), 667.5, subd. (c)(8).)
Independent Review of the Record
Based on our review of the record, we conclude no other reasonably arguable issues exist.
DISPOSITION
The judgment is affirmed.