Opinion
H047188
05-19-2020
THE PEOPLE, Plaintiff and Respondent, v. EUGENIA OLIVAREZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. 17CR07415 )
Defendant Eugenia Olivarez and her longtime partner, Jaime R., fought at a family party after drinking. Defendant decided to drive home. Jaime tried to stop her by chasing after her vehicle and grabbing onto the driver's side door. Defendant sped away with Jaime holding on. He fell, was run over by the vehicle's rear wheel, and suffered fatal injuries. Defendant did not stop.
Defendant pleaded no contest to gross vehicular manslaughter while intoxicated and hit and run resulting in death or serious injury to another. The trial court denied probation and imposed a low term prison sentence of four years. On appeal, defendant challenges the denial of probation. In a separate petition for writ of habeas corpus (In re EUGENIA OLIVAREZ on Habeas Corpus (H047766)), which we ordered considered with the appeal, defendant raises a claim of ineffective assistance of counsel based on counsel's failure to seek pretrial mental health diversion. We affirm and resolve the habeas corpus petition by separate order.
I. BACKGROUND
The facts are taken from the probation report and the preliminary hearing transcript.
On November 18, 2017, defendant, Jaime, and their teenage daughters attended a family party in Watsonville. Defendant and the girls arrived at the party around 4:30 p.m. According to defendant's nephew, who was hosting the party, defendant appeared to have been drinking when she arrived. She drank whiskey at the party. Jaime arrived in the early evening; he drank as well. Defendant's nephew told police that defendant and Jaime became intoxicated and belligerent; they began to bicker. Eventually, defendant wanted to leave with Jaime and the girls. Family members tried to convince her to stay, telling her she was too intoxicated to drive home.
At some point, the nephew heard a car honking. He and Jaime went outside and found defendant sitting in the driver's seat of her Lexus SUV. Defendant yelled at Jaime to get the girls so that they could all leave. Jaime and the nephew told defendant that she was too drunk to drive. Defendant pulled her vehicle out of the driveway. Jaime chased after her and grabbed onto the driver's side door (possibly by way of an open driver's side window). Defendant accelerated down the street at a high rate of speed while Jaime held onto the door. Down the street, Jaime fell off the vehicle and was run over by the SUV's rear tire. Defendant did not stop the vehicle or return.
Police and paramedics responded. Jaime was pronounced dead at the scene.
After learning about defendant's involvement from witnesses, officers went to defendant's residence to locate her. Shortly before 9:00 p.m., they found her sitting in the driver's seat of her Lexus SUV parked in the driveway of her residence. Officers told defendant they were investigating an accident. Shortly thereafter, she offered: "I was driving normal. If there was—if there was an accident, there was someone that was hanging onto the car. Someone wanted to do damage to me. I was driving normal."
At approximately 9:50 p.m., a breathalyzer recorded defendant's blood alcohol content to be 0.20 percent.
B. Procedural History
The Santa Cruz County District Attorney charged defendant with gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a), count 1); driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a), count 2); driving with a blood alcohol content of 0.08 percent or more causing injury (id., § 23153, subd. (b), count 3); and hit and run resulting in death or serious injury to another (id., § 20001, subd. (b)(2), count 4). The information alleged, as to count 1, that defendant fled the scene of the crime (id., § 20001, subd. (c)) and, as to counts 2 and 3, that she inflicted great bodily injury (§ 12022.7, subd. (a)).
All further statutory references are to the Penal Code unless otherwise noted.
On March 13, 2019, defendant pleaded no contest to counts 1 and 4 in exchange for the dismissal of counts 2 and 3 as well as dismissal of the special allegation of fleeing the scene of the crime.
Defendant submitted mitigation evidence in advance of sentencing. That evidence showed that during the year and a half defendant had been out on bail, she had completed an outpatient addiction treatment program; joined Alcoholics Anonymous and regularly attended meetings; participated in domestic violence counseling, psychiatric counseling, and psychotherapy; and obtained a job as a real estate sales professional. Defendant submitted a letter from her psychiatrist, in which the psychiatrist stated that "[o]ver the 32 therapy sessions that I have spent with Ms. Olivarez, I have come to appreciate that she is a victim of repeated and severe traumas and physical abuse" by her mother, her first husband, and Jaime. The letter described some of the abuse defendant had recounted to her psychiatrist, including an incident in which Jaime beat her while she was pregnant, causing her to suffer a miscarriage.
Defendant also submitted a report from John M. Greene, M.D., a board certified psychiatrist who conducted psychological testing on her and evaluated her to determine whether she suffered from any mental illness and whether she posed a future risk of violence. His report stated that defendant recounted longtime physical abuse by Jaime, including punching her and pulling her by her hair, causing permanent hair loss. With respect to the underlying hit and run accident, defendant told Dr. Greene that she had feared Jaime was going to pull her out of the vehicle and beat her. Dr. Greene reported that the psychological testing he administered showed defendant presented a low risk of reoffending. He diagnosed her with Posttraumatic Stress Disorder and Alcohol Use Disorder, moderate, in early remission. Dr. Greene opined that defendant's "actions leading to her arrest were influenced by her symptoms of Posttraumatic Stress Disorder."
As part of her mitigation evidence, defendant also submitted to the court police reports evidencing the physical abuse she suffered at the hands of her first husband in 1995 and abuse by Jaime in 1998 and 2000.
At an August 7, 2019 sentencing hearing, the trial court denied defendant probation and sentenced her to four years in state prison—the low term of four years on count 1 and the low term of two years on count 4, to run concurrently with the sentence on count 1. The trial court explained that "the main reason" it was denying probation was "that Ms. Olivarez was drunk, drove her children while she was drunk, and wanted to drive her children again while she was drunk, and people were telling her not to do that. . . . That was very, very concerning. That doesn't make it appear that she is—poses a danger to the community." The court went on to state that it was imposing the low term because the "aggravating and mitigating circumstances . . . are fairly equal except for" the fact that "defendant suffered from repeated or continuous physical, sexual, or psychological abuse inflicted by the victim of the crime, and the victim of the crime who inflicted the abuse was the defendant's spouse, intimate cohabitant, or parent the defendant's child . . . ," a mitigating factor under rule 4.423(a)(9) of the California Rules of Court.
The court orally stated that it was imposing the midterm of two years on count 4, but two years is the low term sentence for a violation of Vehicle Code section 20001 where the accident results in death. (Veh. Code, § 20001, subd. (b)(2).) --------
Defendant timely appealed.
II. DISCUSSION
Defendant argues that the trial court erred in denying probation because it relied on an improper factor of which there was insufficient evidence. We find no abuse of discretion.
A. Governing Legal Principles and Standard of Review
Rule 4.414 of the California Rules of Court sets forth the criteria affecting the decision to grant or deny probation, including facts related to the crime and facts related to the defendant. Facts to be considered that relate to the crime include: (1) the nature, seriousness, and circumstances of the crime as compared to other instances of the same crime; (2) whether the defendant was armed with or used a weapon; (3) the vulnerability of the victim; (4) whether the defendant inflicted physical or emotional injury; (5) the degree of monetary loss to the victim; (6) whether the defendant was an active or a passive participant; (7) whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur; (8) whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on the part of the defendant; and (9) whether the defendant took advantage of a position of trust or confidence to commit the crime. (Cal. Rules of Court, rule 4.414(a).) Facts to be considered that relate to the defendant include: (1) the defendant's prior criminal record; (2) the defendant's prior performance and present status on probation, mandatory supervision, postrelease community supervision, or parole; (3) the defendant's willingness to comply with the terms of probation; (4) the defendant's ability to comply with reasonable terms of probation as indicated by the defendant's age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors; (5) the likely effect of imprisonment on the defendant and his or her dependents; (6) the adverse collateral consequences on the defendant's life resulting from the felony conviction; (7) whether the defendant is remorseful; and (8) the likelihood that if not imprisoned the defendant will be a danger to others. (Cal. Rules of Court, rule 4.414(b).) These criteria are not exclusive and the court may apply "additional criteria reasonably related to the decision being made." (Id., rule 4.408(a).)
"The circumstances utilized by the trial court to support its sentencing choice need only be established by a preponderance of the evidence. [Citations]." (People v. Leung (1992) 5 Cal.App.4th 482, 506.)
"The decision whether to grant or deny probation is reviewed under the abuse of discretion standard. [Citations.]" (People v. Ferguson (2011) 194 Cal.App.4th 1070, 1091.) "In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ' "[t]he 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." ' [Citations.] Second, a ' "decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' " ' [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
B. The Trial Court Did Not Abuse Its Discretion
Defendant's challenge is two fold. First, she says the factor on which the court relied to deny her probation—that she drove drunk with her children in the car and wanted to do so again—was an improper factor. Second, she says there was insufficient evidence supporting that factor. We address each argument in turn.
The trial court explicitly reasoned that defendant's decisions to drive while intoxicated, including with her children in the car, compelled the conclusion that she "poses a danger to the community." The likelihood that the defendant will be a danger to others if not imprisoned is one of the factors relevant to the decision to grant or deny probation. (Cal. Rules of Court, rule 4.408(b)(8).) Accordingly, we disagree with defendant's view that the court relied on an improper factor.
Defendant also argues that there was insufficient evidence (1) that she was drunk when she drove her children to the party, (2) that she intended to drive them home from the party, or (3) that she poses a current danger to the community. For the following reasons, we disagree.
There was sufficient evidence to support the trial court's finding that defendant drove while intoxicated with her children in the vehicle. Specifically, her nephew told police that defendant appeared to have been drinking when she arrived at the party. And it is undisputed that defendant drove her daughters to the party. Defendant says the trial court should not have credited her nephew's testimony because his own intoxication impaired his ability to perceive and because she contradicted him in statements to police. There is nothing inherently implausible about the nephew's statement to police. (People v. Jackson (1992) 10 Cal.App.4th 13, 21 ["an appellate court may reject the testimony of a witness who was apparently believed by the trier of fact if that testimony is inherently improbable or impossible of belief"].) And there is no evidence that, at 4:30 p.m., the nephew was too intoxicated to accurately observe whether defendant had been drinking. The evidence shows only that the nephew drank beer sometime before 10:00 p.m. that night. And while defendant told police that the only thing she had to drink that day was a single shot of tequila at 1:30 p.m., that assertion was discredited by the results of her breathalyzer test. More fundamentally, it is not the role of the appellate court to reweigh the evidence. (See 6 Witkin, Cal. Criminal Law (4th ed. 2020) Criminal Appeal, § 171.) We decline to do so here.
Substantial evidence likewise supports the trial court's finding that defendant wanted to drive her children home despite her intoxication. Defendant's nephew told police that defendant told Jaime to get their daughters so that she could drive the family home. For the reasons set forth above, we decline to reject the nephew's account or to reweigh his statement against defendant's contrary, self-serving statement to police.
The trial court's findings regarding defendant's decisions to drive with her children while under the influence support its further finding that she presented a current danger to the community. The court reasonably could have inferred that defendant's poor judgment could again put her children or others at risk. Certainly, as defendant points out, there was considerable evidence supporting the contrary conclusion. And defendant should be commended for her sobriety and exemplary performance while out on bail. However, the fact that reasonable minds could differ does not compel the conclusion that the trial court abused its discretion.
III. DISPOSITION
The judgment is affirmed.
/s/_________
ELIA, J. WE CONCUR: /s/_________
PREMO, Acting P.J. /s/_________
DANNER, J.