Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF 09-41
BUTZ, J.
Defendant Lorenzo Flores Aguilar entered a plea of guilty to gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)), in exchange for which the trial court granted the prosecutor’s motion to dismiss the remaining counts. The trial court then sentenced defendant to state prison for the upper term of 10 years.
On appeal, defendant contends that trial counsel was ineffective for failing to object to the factors on which the trial court relied in imposing the upper term. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The parties stipulated to the following factual basis for the plea. Defendant was driving a 1993 Mercury Cougar with a blood-alcohol level of 0.15 percent on Highway 20 at 6:00 p.m. He veered into oncoming traffic (causing two vehicles to swerve onto the shoulder to avoid him) before crashing head-on into a 1990 Ford Escort. The Escort driver died that evening as a result of her injuries, a week short of her 18th birthday.
According to the probation report, defendant admitted drinking five 12-ounce beers between noon and 4:30 p.m. at his place of work (a Marysville farm). He did not feel inebriated. Defendant’s son, however, had observed his father sitting in the car drinking a beer with six to seven empty cans on the ground outside the car. Defendant admitted driving on previous occasions after drinking, despite his son telling him not to drink and drive. Defendant told the probation officer that he drinks up to twelve 12-ounce cans of beer on the weekend and enjoys alcohol; while he believes he drinks more than he should, he did not perceive himself to be an alcoholic.
The probation report did not note any aggravating factors. It noted the mitigating factors of an insignificant criminal record and an early acknowledgment of wrongdoing (presumably because defendant entered his plea nine days after his arraignment and little more than two weeks after the crash). The probation officer recommended the lower term.
The prosecutor filed a sentencing statement in which he asserted that the court should consider defendant’s high blood-alcohol level as an aggravating factor balancing out the mitigating factors and supporting a sentence for the middle term of six years.
In announcing its tentative decision to impose the upper term, the trial court found that the crime “involved great violence and great bodily harm. This was a horrific head-on collision.... Since death is an element of the charged offense, the Court does not consider the victim’s demise in relying on this factor.” It also found that the victim was particularly vulnerable: “Defendant did not take any steps to avoid a collision with the victim’s vehicle. He was driving on the wrong side of the road.” The court considered defendant’s admission to driving repeatedly under the influence of alcohol to be “violent conduct that indicates a serious danger to society. This factor is of considerable and paramount significance to the Court.” Finally, the court noted as a separate consideration that the degree of defendant’s inebriation was almost twice the legal limit. On the subject of the mitigating factors, the court stated with respect to the absence of a criminal record that defendant had illegally entered the country twice, returning in 2002 after a 1999 deportation. It acknowledged his early admission of wrongdoing, but reiterated that its paramount concern was protecting society from the serious danger that he presented and to deter similar criminal conduct in others through demonstrating the severe consequences. Neither party offered any argument in response.
DISCUSSION
In order to establish the ineffective assistance of trial counsel, a defendant must demonstrate a breach of prevailing professional norms and the reasonable probability of a more favorable outcome in the absence of the lapse. (People v. Ledesma (1987) 43 Cal.3d 171, 215, 217.) Defendant fails in both regards.
Defendant argues that nothing about the nature of the accident was outside the ambit of conduct inherent in the offense itself (but cf. People v. Weaver (2007) 149 Cal.App.4th 1301, 1322 [continuing to drive under the influence after a “near-miss” with another vehicle exceeds conduct inherent in offense of vehicular manslaughter]), and that the victim was not any more vulnerable than a typical victim of the offense (but cf. id. at p. 1321 [victim vulnerable where no advance warning of head-on collision or ability to avoid the oncoming car]). However, the trial court’s primary concern was the danger that defendant represented to society as a result of his utter indifference to the effect his excessive fondness for alcohol had on his driving ability (even in the face of his son’s warnings on previous occasions), and the high level of blood alcohol at the time of the offense (a factor defendant admits is an adequate aggravating circumstance [e.g., id. at p. 1322]).
Defendant asserts the court might have found that the mitigating factors outweighed this latter factor had trial counsel objected to the remainder. Even if we consider it in isolation, a single aggravating factor can support the imposition of the upper term (People v. Black (2007) 41 Cal.4th 799, 813), and the trial court expressly denigrated defendant’s lack of a criminal record, and further expressly found that his acknowledgement of wrongdoing at an early stage paled in light of the threat that his drunken driving presented.
In short, there would not have been any point in trial counsel objecting to the factors that defendant challenges on appeal, because it would not have changed the outcome. It does not breach professional norms to refrain from undertaking a frivolous act (People v. Riel (2000) 22 Cal.4th 1153, 1202-1203), nor can defendant establish any possible prejudice.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J., SIMS, J.