Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Santa Barbara, No. 1125626, James Iwasko, Judge.
Greg May, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Sarah J. Farhat, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, Acting P.J.
Jason Charles Tosti appeals from the judgment revoking probation and ordering him to serve a six-year prison sentence for gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)) and driving with a .08 percent blood alcohol level causing injury (Veh. Code § 23153, subd. (b)). Appellant asserts that the trial court abused its discretion. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
Facts
The conviction stems from a single car fatality in which 19-year-old appellant was drinking and driving. On November 15, 2003, appellant called his girlfriend, Melissa Holladay, from a party and said he would stop by. Appellant showed up at 1:00 a.m. and drank shots of Southern Comfort with Holladay and Christina Roth. Holladay believed appellant had been smoking marijuana.
Appellant took the girls to a family ranch, driving an uninsured Toyota pickup. While there, he drove through a field, accelerating and sharply turning the steering wheel. On the way back, he rolled the pickup on a private road. Holladay said that appellant "punched the accelerator," attempting to negotiate a curve at 60 miles per hour. Appellant lost control, rolling the pickup over three times.
Roth sustained fatal injuries and Holladay was injured, briefly losing consciousness. She kicked out the windshield and crawled out of the truck.
Appellant told Holladay "We've got to get our stories straight." He told the investigating officer that two deer jumped out and hit the pickup. Appellant also said that he had "a couple of beers" earlier that evening at a party.
Appellant provided, four hours after the accident, a breath sample which indicated a blood alcohol content of .104 percent. He also tested positive for marijuana.
On January 29, 2004, pursuant to a negotiated plea, appellant pled no contest to gross vehicular manslaughter of Roth while intoxicated and driving while intoxicated, causing injury to Holladay. The trial court sentenced him to six years state prison, suspended execution of sentence, and granted five years formal probation with one year county jail. Appellant was warned that if he violated probation in any way, including driving on a suspended license or failing a drug test, he would go to state prison. Appellant was ordered not to associate with known drug users, submit to drug testing, and not use of or possess drugs or narcotics. The trial court warned, "If I so much as hear that you have a beer or smoke a joint you are going to prison . . . ."
Probation Violation
On November 27, 2006, appellant reported to his probation officer for a routine visit and tested positive for THC. Appellant said that he was in a car with friends who had medical marijuana prescriptions and were smoking marijuana over the weekend. Appellant denied using marijuana but claimed he may have gotten "a contact high" from the second hand smoke.
The toxicologist who tested appellant's urine sample reported that the THC levels were too high to be passive inhalation.
When told about the test results, appellant adamantly denied using marijuana. Appellant said that he drove with friends two days in a row and went dirt biking in a remote area. The other passengers smoked marijuana. Appellant did not ask the driver to let him out because they were in a remote area and he had no cell phone reception. Appellant also claimed that he may have unknowingly eaten something containing marijuana.
On December 4, 2006, appellant admitted two probation violations: associating with known drug users on November 25 and 26, 2006, and testing positive for THC. The prosecutor requested that the trial court terminate probation and order appellant to serve the six year sentence. The prosecutor argued that appellant had engaged in "activity frighteningly similar to that which led to the death of young Christina Roth, " i.e., "riding in a vehicle with individuals in an off-road area and participating in smoking . . . marijuana."
Appellant acknowledged that he was on a zero tolerance probation and apologized.
The trial court revoked probation and ordered appellant to serve the six year sentence previously imposed. It found that appellant "was put on probation, given a break, warned, goes out, does -- involved in exactly the same type of activity that resulted in Christina Roth's death. Young girls in the car smoking dope. [¶] And I didn't believe for a minute that you were not smoking dope, so if you think you pulled that one over on me, that was really something."
Discussion
It is well settled that probation is a matter of clemency, not a right. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) This is especially so where the defendant is granted probation and violates it. Only in a "very extreme case" should an appellate court interfere with the trial court's decision to revoke probation. (People v. Rodriguez (1990) 51 Cal.3d 437, 443.)
Appellant was on formal probation with drug testing and warned that consumption of alcohol or drugs would be grounds for reinstating the six year prison sentence. Despite these warnings, appellant consumed marijuana, lied to his probation officer and the trial court, and engaged in off road activities similar to the 2004 fatality.
The trial court reasonably concluded that appellant was not amenable to probation and posed a danger to others. (Cal. Rules of Ct., rule 4.414, subds. (b)(3) & (b)(8)); People v. Johnson (1993) 20 Cal.App.4th 106, 110-111.) Appellant's juvenile record included arrests or citations for public intoxication, violating curfew, traffic infractions, vandalism, and reckless driving. As an adult, he received traffic citations for not wearing a seat belt, exhibition of speed, and speeding. Appellant started abusing alcohol and marijuana at age 16 and smoked marijuana on a daily basis during the 12 months preceding the traffic fatality. Before he was sentenced, he consumed marijuana two or three more times.
Appellant was granted probation and was clearly aware that he was subject to a zero-tolerance probation. Despite a lengthy jail sentence and supervised probation with drug testing, appellant violated probation two days in a row and lied about it.
At the probation revocation hearing, appellant testified that he and the driver, Chris Larsen, were not smoking marijuana. Larsen, however, told an investigator that he and appellant were "smoking dope" as they drove out to a remote area to ride motorcycles. The prosecution offered to subpoena Larsen, but the trial court concluded that the evidence was not necessary.
A grant of probation is an act of clemency designed to allow rehabilitation. (People v. Johnson, supra, 20 Cal.App.4th at p. 109.) Appellant was granted an extraordinary opportunity to reform his ways and wasted it. The trial court did not abuse its discretion in terminating probation and ordering appellant to serve the sentence previously imposed. (People v. Warner (1978) 20 Cal.3d 678, 683; People v. Angus (1980) 114 Cal.App.3d 973, 988.)
The judgment is affirmed.
We concur: COFFEE, J., PERREN, J.