Opinion
NOT TO BE PUBLISHED
Superior Court County No. 1184553 of Santa Barbara, James L. Herman, Judge
Wayne C. Tobin, 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, Scott A. Taryle, Supervising Deputy Attorney General, Nima Razfar, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Jose O. Acevedo was convicted by plea of three counts of vehicular manslaughter while intoxicated. (Pen. Code, § 191.5, subd. (a).) The trial court sentenced him to a 10 year upper term on count one and consecutive two-year terms (one third the midterm) on the other counts, for an aggregate sentence of 14 years state prison. Acevedo appeals from the judgment, contending that the upper term sentence violates Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] [Cunningham) and his Sixth Amendment right to jury trial. We affirm.
All statutory references are to the Penal Code.
Facts and Procedural History
On June 27, 2006, appellant drove a Ford Mustang into a traffic signal pole while intoxicated. The vehicle was traveling 87 miles per hour. The force of the impact split the vehicle in two, ejecting and killing three passengers. Appellant was treated for minor injuries, told the police he was not the driver, and had a blood alcohol level of 0.183 percent.
On June 4, 2007, appellant entered a guilty plea. Pursuant to an open plea agreement, appellant waived jury and agreed the trial court could consider the probation report in determining aggravating and mitigating sentence factors. The probation report listed four factors in aggravation: the crime involved great violence or great bodily injury, resulting in the death of three people; appellant's prior convictions as an adult or juvenile were numerous and of increasing seriousness; appellant was on probation when he committed the offense; and appellant's prior performance on probation was unsatisfactory.
The trial court found the aggravating factors were true and that appellant's conduct was egregious. "I cannot overlook the fact that this is not a case involving one life; this is a case involving three separate young human lives snuffed out in their prime, depriving the families of a future."
Cunningham
Citing Cunningham, supra, 549 U.S. 270 [127 S.Ct. 856], appellant argues that the upper term sentence violates his Sixth Amendment right to jury trial and that a six-year midterm is the maximum sentence that may be imposed. In Cunningham, the United States Supreme Court held that "the Federal Constitution's jury-trial guarantee prescribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [Citations.]" (Id., at p. __ [127 S.Ct. at p. 860.) The Cunningham court concluded that, under California's Determinate Sentencing Law, the prescribed statutory maximum sentence was the middle term. (Id., at p. __ [127 S.Ct. at p. 871.)])
In response to Cunningham, the California Legislature amended the determinate sentencing law on March 30, 2007 to eliminate the midterm as the presumptive sentence. (See People v. Sandoval (2007) 41 Cal.4th 825, 836, fn. 2, citing § 1170, as amended by Stats.2007, ch.3, § 2 (S.B. 40).) Appellant's argument that the midterm is the "statutory maximum sentence" was mooted by the statutory change which was implemented two months before the sentencing hearing. Our Supreme Court has determined that the section 1170 subdivision (b), as amended, does not violate ex post facto principles. (Id., at pp. 853-857.)
Prior Convictions
Appellant's reliance on Cunningham is also misplaced because he waived jury trial and stipulated that the trial court could determine whether the aggravating factors were true. The trial court found all four aggravating factors to be true beyond a reasonable doubt.
Appellant acknowledges that an upper term sentence may be imposed based on a defendant's criminal history and parole/probation status without a jury finding thereon. (People v. Black (2007) 41 Cal.4th 799, 818-819 (Black II).) Appellant argues that Black II was wrongly decided even though "[t]he United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. [Citations.]" (Id., at p. 818.) Under principles of stare decisis, we are bound to follow Black II. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Here the trial court found that appellant's crimes as a juvenile and adult were numerous and of increasing seriousness, that appellant committed the offense while on probation, and that appellant's prior performance on probation was unsatisfactory. Any one of those aggravating factors rendered appellant eligible for an upper term sentence. (Black II, supra, 41 Cal.4th at pp. 819-820; see e.g., People v. Yim (2007) 152 Cal.App.4th 366, 370-371; People v. Abercrombie (2007) 151 Cal.App.4th 585, 591.) "[S]o long as a defendant is eligible for the upper term, by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury." (Black II, supra, 41 Cal.4th atp. 813.)
Great Injury/Great Violence as an Aggravating Factor
Appellant asserts that the evidence does not support the finding that the offense involved great violence or intent to harm. (Cal. Rules of Ct., rule 4.421(a)(1).) The trial court found that "the crime, simply by the admission in terms of the plea, involved great violence, great bodily harm, and resulted in the death of three people."
California Rules of Court, rule 4.421(a)(1) provides that a trial court may impose an upper term sentence where: "The crime involved great violence, great bodily harm, threat of bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness." (Emphasis added.)
Appellant argues that criminal negligence does not support a finding of intent to harm and that the deaths were merely an element of the offense. (See Cal. Rules of Ct., rule 4.420(d) ["A fact that is an element of the crime may not be used to impose a great term."] Appellant, however, waived the issue by not objecting at the sentencing hearing. (People v. Scott (1994) 9 Cal.4th 331, 356.) Waiver aside, gross vehicular manslaughter while intoxicated may be a crime of great violence. (People v. Castorena (1996) 51 Cal.App.4th 558, 562-563.)"[W]here the facts surrounding the charged offense exceed the minimum necessary to establish the elements of the crime, the trial court can use such evidence to aggravate the sentence. [Citation.]" (Id., at p. 562.)
Appellant's conduct was egregious and, in the words of the trial court, "cries out for justice. . ." We agree. Appellant chose to drive while intoxicated with the knowledge that his conduct was imminently dangerous to human life. His behavior demonstrated callousness beyond what was necessary to commit the offense. (Cal. Rules of Ct., rule 4.421(a)(1); People v. Castorena, supra, 51 Cal.App.4th at p. 562.) It was uncontroverted that appellant consumed a large amount of alcohol, drove with a suspended license, allowed the passengers to ride in the Mustang without seatbelts, and exited the highway at 100 miles per hour. As appellant approached an intersection in Santa Maria, he lost control of the vehicle, skidded 300 feet, and struck the traffic signal pole. The force of the impact split the Mustang in half, causing the passengers to suffer horrific and violent deaths.
At the hospital emergency room, appellant told the police that his cousin was driving and that another passenger grabbed the steering wheel. Appellant was treated for a fractured left scapula and an abrasion across the left shoulder, apparently caused by the seatbelt shoulder harness. Appellant also had a 18 percent blood alcohol level, more than twice the legal limit, even though he was on probation with alcohol terms.
Before the sentencing hearing, appellant told the probation officer that he consumed two large beers over the course of the day, that the Mustang breaks were faulty, and that one of the passengers grabbed the steering wheel. When asked about previous grants of probation, appellant minimized his responsibility and said that he was merely at the wrong place, at the wrong time.
Assuming, arguendo, that the trial court erred in concluding that great violence/great bodily harm was an aggravating factor, the error was harmless beyond a reasonable doubt. (People v. Sandoval, supra, 41 Cal.4th at p. 839.) Appellant's recidivism is a factor in aggravation which by itself suffices to support the upper term. (Ibid.) Where the trier of fact finds true at least one aggravating circumstance beyond a reasonable doubt, "the Sixth Amendment error properly may be found harmless." (Ibid.)
The record clearly shows that the trial court would have imposed the same sentence had it not considered great violence/great bodily injury to be an aggravating factor. We accordingly reject the argument that the upper term sentence violates Cunningham or appellant's due process. (Black II, 41 Cal.4th at pp. 813-816; People v. Yim, supra, 152 Cal.App.4th at p. 371.)
The trial court rejected the argument that appellant's substance abuse was a mitigating factor, noting that appellant received drug counseling and Proposition 36 diversion in prior cases. The court found no mitigating factors and found that driving 87 miles per hour on a surface street with a blood alcohol level more than twice the legal limit is "just incredibly dangerous behavior." Appellant "has been in legal trouble previously because of marijuana use, setting fires on the Santa Maria High School campus. As an adult, he's been convicted and was on formal probation for being under the influence of a controlled substance. It's clear to me from the record, that he's had substance problems while on probation. He also picked up another conviction for giving false information to a police, officer; two previous convictions for possession of marijuana."
The judgment is affirmed.
We concur: GILBERT, P.J., PERREN, J.