Opinion
NOT TO BE PUBLISHED
Super. Ct. No. PO5CRF0638
CANTIL-SAKAUYE, J.
Twenty-two-year-old defendant Jeffrey Weber Duke pled no contest to driving with a blood-alcohol level of .08 percent or greater and causing injury (Veh. Code, § 23153, subd. (b)) and admitted the allegation that he personally inflicted great bodily injury on Jennifer C. in the commission of that felony (Pen. Code, § 12022.7, subd. (a)). The court denied probation and sentenced defendant to four years and four months in prison: the lower term of one year and four months for the Vehicle Code violation, and an additional three years for the great bodily injury enhancement. The court dismissed the remaining charges and special allegations at sentencing.
The sole issue on appeal is whether the court abused its discretion in denying defendant probation. Concluding that there was no abuse of discretion, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On October 28, 2005, at approximately 10:45 p.m., California Highway Patrol Officer Tom Flahavan was dispatched to the scene of a motor vehicle accident in the vicinity of Highway 193 and Penobscot Road in El Dorado County. Flahavan’s investigation revealed that defendant’s Toyota pickup truck crossed the center line and sideswiped the victims’ Ford Taurus which was approaching from the opposite direction. The collision caused the Taurus to hit an embankment and roll over.
There were five occupants in the Taurus at the time of the collision. Four of the five occupants sustained mild to moderate injuries. The fifth occupant, Jennifer C., suffered a broken neck and injuries to her skull, face and shoulder. She is unable to close her left eye. Jennifer C. has undergone multiple surgeries since the accident.
Officer Flahavan spoke with defendant at the scene. He acknowledged that he was involved in the collision and was cooperative in responding to Flahavan’s questions. Defendant stated that he had fallen asleep and suddenly found himself in the left lane. Flahavan observed that defendant had symptoms of intoxication, including alcohol on his breath, slurred speech, and red, watery eyes. Field sobriety tests confirmed signs of impairment and Flahavan arrested defendant. At that juncture, defendant agreed to take a chemical test at the scene which showed that he had a blood-alcohol level of .14 and .15 percent.
Defendant explained in his interview with the probation officer, and in a statement attached to the probation report, that he and a friend had consumed a “‘couple pitchers of beer’” over a three-hour period the night of the accident. After hanging out with his friend for another hour, defendant decided to drive home from Rocklin. He repeatedly expressed remorse for the injuries he caused the victim.
At sentencing, the court acknowledged that it had read the probation report, the report of defendant’s correctional consultant, and defendant’s mitigation statement -- all of which recommended probation. In addition to argument by counsel, the court heard a statement by Jennifer C., which consisted of a poem, and a lengthy statement by her father, which described Jennifer’s injuries, treatment and prognosis. Jennifer sustained a broken neck and lacerated spleen; her scalp was ripped away from her skull and one of her eyelids was torn off.
At the time of sentencing, Jennifer had undergone six surgeries on her eye and two surgeries on her neck. Due to the seriousness of her injuries, her rehabilitation included having to learn to walk and talk again.
During the sentencing hearing, defendant clarified that in addition to the prior conviction for trespassing included in the probation report, for which he received probation, he was cited in February 2005 for possessing more than an ounce of marijuana while driving a motor vehicle. (Veh. Code, § 23222, subd. (b).) Defendant explained that one of his passengers had the marijuana.
The court stated that it had agonized over the case, but “certainly not anything to the degree that the [victim’s] family have, but these are very difficult decisions, and believe me, I see both sides here.” The court addressed the defendant: “You have a lot in your background that shows you are a good person and a good citizen, and I know any sentence I impose here is going to have an adverse effect on your life, but compared to those adverse effects against what Jennifer [C.] has suffered, is suffering, and probably will suffer for the rest of her life, those don’t balance up, in any degree, sense or meaning. [¶] She’s going to have to live with your irresponsibility her whole life, and it’s a shame. . . .” Before denying probation, the court indicated that it had considered the factors set forth in California Rules of Court, rules 4.414 and 4.413, and found rule 4.414(a)(4) to be “the controlling factor here, that you inflicted the severest kind of physical and emotional injury on Jennifer [C.], and none of the factors that favor probation here outweigh that one factor on probation, in my view.” The court also stated: “I believe that you are sincerely remorseful for all that happened here, but that’s remorse too little, too late when it changes another person’s life, Mr. Duke. You can’t compensate with remorse for the horrible physical tragedy that you inflict on another person. I’m sure you realize that.” Based on the mitigating factors, the court selected the low term of 16 months for defendant’s violation of Vehicle section 23153, subdivision (b), then added the three-year enhancement.
Following sentencing, the court wrote the California Department of Corrections and Rehabilitation (CDCR), urging the correctional authorities to place defendant in a conservation camp or other minimal security prison. The Court wrote: “Defendant is only 20 years old, has no significant prior criminal record, is completely remorseful, and has construction skills that could be put to good use in prison. He also is slight of build and young looking which could put him at risk of physical harm if placed with hardened criminals.”
DISCUSSION
The parties agree that the trial court has broad discretion to grant or deny probation, and we as the reviewing court will not set aside a decision to deny probation absent a clear showing that the trial court abused its discretion. (People v. Warner (1978) 20 Cal.3d 678, 683 (Warner).) A court abuses its discretion when its order “‘exceeds the bounds of reason, all of the circumstances being considered.’” (Ibid.) The burden is on the defendant to clearly show that the denial of probation was irrational or arbitrary. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.)
Defendant argues that the court’s ruling “exceeds the bounds of reason, all . . . circumstances being considered.” (Warner, supra, 20 Cal.3d at p. 683.) He maintains that it was unreasonable for the court to conclude that defendant posed a danger to others “when there is no indication in the record that [defendant] had continued to engage in such conduct or had driven a car after drinking alcohol.” Defendant also contends that the court ignored the fact that incarceration would hamper defendant’s ability to compensate Jennifer C. for her injuries. We conclude there was no abuse of discretion.
Defendant argues on appeal that the court based its decision to deny probation “solely on the extent of injuries inflicted” on Jennifer C. (Italics added.) Contrary to defendant’s argument, the record shows that the court carefully considered -- in the court’s words, “agonized over” -- all the relevant factors before making its ruling. This is how a court properly exercises its discretion.
Defendant maintains that the court minimized or ignored two factors -- whether defendant was a danger to others and whether he could pay restitution if sentenced to prison. However, neither the parties, probation, nor the correctional consultant considered those factors important enough to raise expressly in their written recommendations or oral argument at the sentencing hearing. In any event, the court is not required to explain its reasons for rejecting mitigating factors. (People v. Thompson (1982) 138 Cal.App.3d 123, 127.) Other mitigating factors were clearly raised, and the court responded to them by sentencing defendant to the low term and urging the CDCR to place defendant in a conservation camp or other minimal security prison.
“[T]he physical and/or emotional injuries and the monetary losses inflicted on the victim and/or the victim’s family should be considered by a trial court in all cases in deciding whether to grant or deny probation.” (People v. Weaver (2007) 149 Cal.App.4th 1301, 1317.) Here, in the exercise of its discretion, the court found this to be the most important factor -- that defendant inflicted “the severest kind of physical and emotional injury on Jennifer [C.]” (Cal. Rules of Court, rule 4.414(a)(4).) Given the court’s balancing of this factor against the other factors, we cannot say that its denial of probation was “irrational or arbitrary” in the circumstances of this case. (People v. Superior Court (Du), supra, 5 Cal.App.4th at p. 831.)
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, Acting P.J., MORRISON, J.