Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Humboldt County Super. Ct. No. CR042824
Haerle, J.
I. INTRODUCTION
This is the second appeal in this case. In a previous decision, filed January 17, 2007, we remanded the case to the trial court for resentencing of appellant after he had pled no contest to one count of felony vehicular manslaughter without gross negligence while driving under the influence. (Pen. Code, § 192, subd. (c)(3).) (People v. Ford (Jan. 17, 2007, A111882 [nonpub. opn.].) After the trial court resentenced appellant to the midterm of two years (it had previously imposed an aggravated sentence and denied probation, a sentence which we vacated in our earlier decision), he filed a notice of appeal from the sentence and, thereafter, a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, in which he asks this court to examine the record and determine if there are any issues deserving of further briefing. We have done so, find none, and hence affirm the judgment and sentence of the trial court.
II. FACTUAL AND PROCEDURAL BACKGROUND
We shall set forth the underlying facts as stated in our prior opinion:
“At approximately 8:45 a.m. on May 30, 2004, California Highway Patrol (CHP) dispatched an officer to the scene of an injury accident on Patrick’s Point Drive in Humboldt County. The officer was directed to appellant who was in the bushes on the side of the road. The officer asked appellant if he was injured but appellant did not respond; the officer then asked appellant to wave his hand if he was okay and appellant waved his hand.
“Arcata-Mad River Ambulance arrived on the scene and pronounced the victim, Bryan Skadiang, dead. The CHP officer and an Emergency Medical Technician (EMT) approached appellant and asked again if he was injured but appellant did not respond. Appellant appeared unconscious when evaluated by the EMT. The CHP officer smelled alcohol on appellant while helping carry him to the side of the road for transport by the EMT.
“David Goddard, who first discovered the accident, told the CHP officer that he had seen appellant standing over the victim apparently checking to see whether the victim was okay. Dallas Brillhart, a second witness, also saw appellant kneeling over the victim and said that he saw appellant shaking the victim. Goddard said he then saw appellant return to his car to retrieve a bag; Brillhart said he saw appellant take some items out of the vehicle and put them in a bag. Appellant said that he was removing his friend’s laptop from the car because he thought the car might explode.
“Goddard said he asked appellant if he was okay and appellant said he was. Goddard said he asked appellant if the victim was okay and that appellant said, ‘He’s my buddy and he’s okay.’ Brillhart said he asked appellant who was driving and appellant said the victim was driving. Appellant said he did not remember saying this. Appellant said he was in a state of shock and panic and feared that the witnesses might hurt him.
“Meanwhile, Terrell Ramos, a state park ranger had arrived on the scene after hearing scanner traffic dispatch an ambulance to the site of the accident. Ramos also saw appellant gathering items from the vehicle. After appellant began moving away from his car, Ramos told appellant ‘not to move.’ Appellant looked at Ramos and continued to move; Ramos again told appellant not to move and appellant stood still. One of the witnesses at the scene said that appellant was packing up his belongings and trying to get away. The CHP officer arrived shortly thereafter.
“At the hospital, the investigating officer also smelled alcohol on appellant’s breath and, believing that appellant had been under the influence at the time of the accident, placed appellant under arrest. A blood test was performed at approximately 11:45 a.m., which measured appellant’s blood alcohol content to be 0.16 percent.
“The investigating officer determined that appellant had traveled to Humboldt County to attend a wedding reception held the previous night at the Lost Whale Inn where appellant was staying. Numerous witnesses reported that appellant was very drunk at the wedding reception the night before. The bride stated that she recalled appellant going to bed around 1:00 a.m. She said she saw appellant around 6:30 or 7:00 a.m. the following morning and that he looked very tired but not drunk. Another witness said that he had seen appellant drunk at approximately 2:00 a.m. Appellant’s roommate said that he did not see appellant in the room until approximately 7:00 a.m., when appellant came into the room to shower.
“Appellant admitted that he had been drunk at the wedding reception. Appellant said the bar had closed at 9:00 p.m. but people continued to consume alcohol and he did not know if he drank after that. Appellant stated that his roommate said he did not see appellant drink anything after midnight. Appellant awoke around 7:00 a.m. and felt hung over. Embarrassed by his obnoxious behavior the night before, he decided he would not join his friends for breakfast and instead left to go look for a beach where he could hang out and take photos.
“Appellant said he lost control of his car when he was traveling too fast and came upon a turn in the road. According to both the investigating officer and appellant, appellant’s car slid onto the gravel shoulder where the victim was jogging and struck the victim from behind. After appellant’s car hit the victim, the car went off the road and landed on an embankment down the hill.
“The wife of the victim spoke at the sentencing hearing, describing her anguish and extreme grief at her loss. She and the victim had been married for five months and she discovered she was pregnant after the victim’s death. She subsequently suffered a miscarriage which she attributed to the stress and grief she suffered after learning of defendant’s behavior at the scene. The court told the widow at the sentencing hearing, ‘If you think that Bryan doesn’t survive, then you are wrong. He survives in your heart, and I can see that. It is beautiful. It is extremely touching to me.’
“Acknowledging appellant was ‘very remorseful for what happened,’ and that his conduct at the scene was influenced by the fact that he was ‘terribly frightened at the time,’ the trial court nevertheless denied probation and sentenced appellant to the aggravated term. Overall, the trial court felt that ‘what you said at the scene, and the actions you took at the scene[,] were in my estimation evidence of callousness.’
“In denying probation, the trial court relied on four of the unfavorable factors identified in rule 4.414 of the California Rules of Court: ‘The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime’ (rule 4.414(a)(1)); ‘[t]he vulnerability of the victim’ (rule 4.414(a)(3)); ‘[w]hether the defendant inflicted physical or emotional injury’ (rule 4.414(a)(4)); and ‘[w]hether the defendant was an active or passive participant’ (rule 4.414(a)(6)).
“Defendant had a 1998 alcohol-related infraction in New York. However, the court did not ‘give credit either favorably or unfavorably relative to your prior history’; the court also refused to find appellant’s lack of a prior record as a factor supporting grant of probation because he was ‘on notice’ of his “proclivities relative to alcohol’ and ‘needed to deal with that.’
“The court cited three factors in favor of granting probation under rule 4.414: ‘[w]illingness to comply with the terms of probation’ (rule 4.414(b)(3)); ‘[a]bility to comply with reasonable terms of probation as indicated by the defendant’s age, education, health, mental faculties’ (rule 4.414(b)(4)); and ‘[w]hether the defendant is remorseful’ (rule 4.414(b)(7)).
“In imposing the aggravated sentence, the trial court relied on three of the factors set forth in rule 4.421: ‘The crime involved . . . great bodily harm . . . or other acts disclosing a high degree of cruelty, viciousness, or callousness’ (rule 4.421(a)(1)); ‘[t]he victim was particularly vulnerable’ (rule 4.421(a)(3)); and ‘[t]he defendant has engaged in violent conduct which indicates a serious danger to society’ (rule 4.421(b)(1)). The court did not find an insignificant prior record as a mitigating factor under rule 4.423(b)(1) because of appellant’s 1998 alcohol-related infraction. The court did consider non-statutory mitigating factors: ‘I think you are a capable young man. I think you are remorseful. I think that you truly regret the events that brought you to this place today, and that you have the capacity [f]or success and compassion to make something of yourself. All of those things are non-statutory . . . but I will consider them.’
“Appellant is 33 years old with a college degree in computer science and philosophy. At the time of the sentencing hearing, appellant was attending San Francisco State University in pursuit of a master’s degree in bioinformatics. Appellant has no prior criminal record.” (People v. Ford (Jan. 17, 2007, A111882) [nonpub. opn.], fn. omitted.)
In our earlier opinion, just cited, we held that the trial court had erred in relying on the three factors of vulnerability of the victim, a serious danger to society in appellant’s actions, and the involvement of great bodily injury, in sentencing appellant to the aggravated term of four years, and remanded the case to the trial court to reconsider the sentence imposed. We also suggested the trial court “may––but need not” re-examine its denial of probation because, again, of the misapplication of three of the factors set forth in California Rules of Court, rule 4.414. However, we also specifically noted that another factor, “the nature, seriousness, and circumstances of the crime as compared to other instances of the same crime” (rule 4.414 (a)(1)), was applicable if the trial court wished to rely on it.
After remand to the trial court, on April 30 and May 4, 2007, a hearing was held regarding the sentence to be imposed and also regarding whether appellant would be granted probation. At that hearing, the court heard extensive argument on both issues from the prosecution and appellant’s counsel, as well as a brief statement from appellant himself. The court denied probation, finding appellant’s offense was of a more serious nature than other instances of the same crime. First, the court found appellant’s out-of-state, non-criminal, alcohol-related infraction made this offense more serious. The infraction put appellant on notice of the dangers of driving under the influence of alcohol. Second, the court found that the evidence of the extent of appellant’s intoxication at the prior night’s social function was adequate to demonstrate that he should not have driven the following morning. Third, the court characterized appellant’s blood alcohol level at the time of the collision as “extremely high” (.16), and thus distinguished appellant’s offense from other similarly-related offenses.
After denying probation and when considering which state prison sentence to impose, the court considered factors both in aggravation and in mitigation. In aggravation, the court found evidence of callousness in appellant’s high blood alcohol level at the time of the accident and in his prior out-of-state alcohol-related infraction. The court also found evidence of callousness in appellant’s post-accident conduct, when he attempted to remove the license plate and took a computer from the car instead of attending to the dead victim.
The court found appellant’s insignificant criminal record was a factor in mitigation. The court also found appellant’s willingness to waive 654 days of credit for the prison term he had already served spoke “well” of him.
After these considerations, the court imposed the two-year midterm. The court advised appellant that he would be subject to parole on his release from state prison, and that the maximum parole term was three years. The court awarded appellant 117 custody credits. The court then advised appellant that the Department of Justice would calculate further good time-work time credits based on its records.
Appellant filed a timely notice of appeal from the new sentence imposed.
III. DISCUSSION
In resentencing appellant to the midterm, rather than the upper term it had previously imposed, and in reconsidering whether to grant appellant probation, the court clearly had in mind this court’s prior rulings on both of these issues. Further, it clearly took those rulings into account and, from our review of the record, did so properly. It reduced appellant’s sentence from the upper term to the midterm, but still denied him probation on the basis of the seriousness of the offense, a factor which this court had, in its prior opinion, specifically identified as an appropriate factor for the denial of probation.
In short, we find no issues in appellant’s resentencing deserving of further briefing
IV. DISPOSITION
The judgment and sentence imposed are both affirmed.
We concur: Kline, P.J., Richman, J.