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People v. Gill

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 31, 2012
F061612 (Cal. Ct. App. Jan. 31, 2012)

Opinion

F061612 Super. Ct. No. CRM008091

01-31-2012

THE PEOPLE, Plaintiff and Respondent, v. KHUSHDEEP S. GILL, Defendant and Appellant.

Linda Zachritz, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and David A. Lowe, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION


THE COURT

Before Levy, Acting P.J., Gomes, J., and Poochigian, J.

APPEAL from a judgment of the Superior Court of Merced County. Marc A. Garcia, Judge.

Linda Zachritz, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and David A. Lowe, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant, Khushdeep S. Gill, pled no contest to gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)) and was sentenced to the aggravated term of 10 years. On appeal, Gill contends the court erred in imposing the aggravated term because it relied on several aggravating factors that are not supported by the record and in finding no circumstances in mitigation. We will affirm.

FACTS

On February 11, 2010, at approximately 1:20 a.m., Gill drove a Honda Accord southbound on the northbound lanes of Highway 99 in Merced and struck a Honda Civic driven by Sandra Isbell. Just prior to the impact, Gill veered into the lane in which Isbell was traveling. Although Isbell managed to turn the wheel slightly to her right, the front end of the Accord struck the front end of the Civic, crushing the driver's compartment of Isbell's car and pushing her car backward. Isbell was transferred by helicopter to Doctors' Medical Center where she later died.

When California Highway Patrol Officer Reginaldo Mendoza arrived on the scene, he heard Gill state, '"Oh no, another DUI.'" Gill told Mendoza that prior to the accident, he was traveling from Turlock to Merced at 65-75 miles per hour but he did not remember anything else about the collision.

Gill denied consuming any alcohol prior to the crash. However, Mendoza smelled alcohol on Gill's breath and he noticed that his speech was extremely slow and slurred. Gill was only able to complete a few field sobriety tests due to his injuries. Based on those tests and the objective signs of intoxication Gill exhibited, Officer Mendoza arrested Gill for driving under the influence of alcohol. A preliminary alcohol screening test performed at 1:49 a.m. showed that Gill had a blood-alcohol content of .212 percent.

On June 18, 2010, the district attorney filed a one count information charging Gill with gross vehicular manslaughter while intoxicated.

On June 29, 2010, the court granted the defense's motion to have Dr. Richard Blak perform a psychological evaluation of Gill. In a report dated July 23, 2010, Dr. Blak concluded that for the last three years, Gill had been suffering from several disorders including depression and alcohol abuse.

On October 1, 2010, Gill entered his no contest plea to the gross vehicular manslaughter charge.

During a probation interview, Gill was remorseful but stated that he did not remember the accident. According to Gill, he suffered from depression from stress resulting from financial matters like paying for his college education, and he dealt with his depression by consuming alcohol.

The probation report indicated that Gill had a prior juvenile adjudication for driving under the influence for which he was adjudged a ward on February 20, 2008. His wardship was terminated on February 9, 2009.

The probation report cited as circumstances in aggravation that Gill had engaged in violent conduct, which indicates a serious danger to society. (Cal. Rules of Court, rule 4.421(a)(1).) The report cited as a mitigating circumstance that Gill had an insignificant record of criminal conduct, considering the recency and frequency of prior crimes. (Rule 4.423(b)(1).) The report recommended that the court sentence Gill to prison.

All further rule references are to the California Rules of Court.
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At Gill's sentencing hearing, Dr. Blak testified that Gill suffered from schizoaffective disorder, generalized anxiety disorder, and somatization disorder, which is a condition where people translate their stress into physical symptoms and depression. According to Dr. Blak, the use of alcohol exacerbates these conditions. Dr. Blak also testified that depression tends to emerge in adolescence or in the early 20's when an individual is maturing and encountering adulthood pressures, that it was common for individuals who suffer from depression to self-medicate with alcohol, which makes the depression worse, and that Gill was psychologically naïve and would not know on his own that he was suffering from depression until it was diagnosed by a professional. By reaching out to alcohol, Gill would find temporary relief from his psychological anxieties and depression. Although Gill would be able to function in school, he would be under a great deal of pressure. Dr. Blak recommended that Gill be referred to a board certified psychiatrist.

During argument, defense counsel argued for a grant of probation with a lengthy period of confinement or, alternatively, the low term in prison. He also argued as mitigating circumstances that Gill had an insignificant criminal record and that he was suffering from a mental condition that was a factor in contributing to the commission of Gill's current offense. The prosecutor argued as additional circumstances in aggravation to those cited in the probation report that: 1) Gill's offense involved a high degree of callousness (rule 4.421(a)(1)) because Gill drove down the wrong way of Highway 99 at "freeway speeds" with an alcohol content of ".23" percent; and 2) Gill's offenses were increasing in seriousness (rule 4.421(b)(2)) because even though he had a .24 percent blood-alcohol content when he committed his prior driving under the influence of alcohol offense, no one was hurt in that incident.

The court responded that it found Dr. Blak's testimony unconvincing and that leniency had already been provided by the district attorney's office by not charging Gill with murder. The court then denied Gill probation and sentenced him to the aggravated term of 10 years. In imposing the aggravated term, the court stated:

"This court has the choice of whether or not to sentence you, Mr. Gill, either to four years, six years or ten years; low, middle or upper term. The probation department has indicated what it believes to be factors in aggravation and in mitigation. The factors in aggravation that I find to be the case are Rules of Court [4.421(a)(1)], that this crime involved great violence, great bodily harm, and a high degree of cruelty, viciousness and
callousness, the reasons I previously described. I further find that the victim was particularly vulnerable considering you drove the wrong way on a state highway with little or no reaction time for the victim to be able to take any evasive action whatsoever. I find that the conduct indicates you pose a serious danger to society for all the reasons I indicated.
"And, that the petitions and/or convictions are certainly of increasing seriousness. Having a first time DUI and committing an act that killed someone is certainly increasing in seriousness. The Court finds that there are no factors in mitigation. I find that the defendant -- as proposed by probation. Considering the recency of the crimes in relation to this is overwhelmingly important to the Court in its decision. I find, as I've indicated before, that Dr. Blak's testimony was unconvincing to this court, and, therefore, I find no factors in mitigation.
"After considering all the factors to this court, Mr. Gill, I sentence you to the upper term of ten years in the California Department of Corrections and find that the circumstances in aggravation outweigh, by a long ways, any factors in mitigation. The seriousness of this offense, the callousness with which you acted, the consequences of your act, is something that will be felt by [Isbell's] family certainly for the rest of their lives and warrants from this court the justice that they deserve, which is the upper term of ten years in the California Department of Corrections."

After sentencing Gill, the court asked counsel if there was anything further. The court then addressed an issue raised by the prosecutor after which the following colloquy occurred:

"THE COURT: Anything else, Mr. Garci[a] [defense counsel]?
"MR. GARCIA: No, your Honor. I note that the Court disagreed with the probation factor in mitigation on the lack of a significant record?
"THE COURT: I am.
"MR. GARCIA: Okay. I have nothing further."

DISCUSSION

Gill contends the court erred with respect to the circumstances it relied upon to impose the aggravated term because it failed to find a mitigating circumstance based on Gill suffering from alcoholism and one based on Gill's successful completion of his juvenile probation, and it relied on the following aggravating circumstances that are not supported by the record: 1) Gill's crime involved great violence, bodily harm, callousness, etc.; 2) the victim was particularly vulnerable; and 3) Gill engaged in violent conduct indicating he was a danger to society. Gill acknowledges that he did not object to the three aggravating circumstances noted above, but contends that he is not precluded from challenging these circumstances on appeal because he did not have a meaningful opportunity to object to them. Thus, according to Gill, the matter should be remanded to the trial court for resentencing. We will reject these contentions.

"In [People v. Scott (1994) 9 Cal.4th 331 (Scott)],this court prospectively announced a new rule: A party in a criminal case may not, on appeal, raise 'claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices' if the party did not object to the sentence at trial. [Citation.] The rule applies to 'cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons' [citation], but the rule does not apply when the sentence is legally unauthorized [citation]." (People v. Gonzalez (2003) 31 Cal.4th 745, 751 (Gonzalez).)
"But Scott went on to say: '[T]here must be a meaningful opportunity to object to the kinds of claims otherwise deemed waived by today's decision.' [Citation.] 'This opportunity can occur,' Scott observed, 'only if, during the course of the sentencing hearing itself and before objections are made, the parties are clearly apprised of the sentence the court intends to impose and the reasons that support any discretionary choices.' [Citation.]" (Gonzalez, supra, 31 Cal.4th at p. 751.)
"As previously explained, the Scott rule applies when the trial court 'clearly apprise[s]' the parties 'of the sentence the court intends to impose and the reasons that support any discretionary choices' [citation], and gives the parties a chance to seek 'clarification or change' [citation] by objecting to errors in the sentence. The parties are given an adequate opportunity to seek such clarifications or changes if, at any time during the sentencing hearing, the trial court describes the sentence it intends to impose and the reasons for the sentence, and the court thereafter considers the objections of the parties before the actual sentencing. The court need not expressly
describe its proposed sentence as 'tentative' so long as it demonstrates a willingness to consider such objections. If the court, after listening to the parties' objections, concludes that its proposed sentence is legally sound, it may simply state that it is imposing the sentence it has just described, without reiterating the particulars of that sentence. By contrast, if the trial court finds that one of the parties has raised a meritorious objection to the proposed sentence, it should alter its sentence accordingly. [¶] It is only if the trial court fails to give the parties any meaningful opportunity to object that the Scott rule becomes inapplicable." (Gonzalez, supra, 31 Cal.4th at p. 752, italics added.)

Here, after the trial court announced it was imposing the aggravated term and the reasons for its decision to do so, the court asked defense counsel whether he had anything else. Defense counsel then noted that the court did not agree with the probation report that Gill's lack of a significant prior record was a mitigating circumstance and the court acknowledged that it did not. However, instead of objecting to the court considering the three aggravating circumstances he now challenges on appeal or to the court's failure to consider Gill's successful completion of probation or his alcoholism as mitigating circumstances, defense counsel simply stated that he had nothing further. Accordingly, we conclude that Gill had a meaningful opportunity to object. (Cf. People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1223-1224 [prosecutor did not have a meaningful opportunity to object where, after trial court asked defendant who was presumptively ineligible for probation if he accepted probation terms, the court immediately took recess without hearing from either party].)

However, even if Gill's claim that the court abused its discretion in imposing the aggravated term were properly before us, we would reject it. A trial court's sentencing decision is reviewed for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847 (Sandoval).) "[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered." (People v. Giminez (1975) 14 Cal.3d 68, 72.) "The trial court's sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an 'individualized consideration of the offense, the offender, and the public interest.'" (Sandoval, supra, at p. 847.) Thus, a trial court will abuse its discretion if it relies upon circumstances that are not relevant to the sentencing decision or that otherwise constitute an improper basis for decision. (Ibid.)

A trial court is "required to specify reasons for its sentencing decision, but [is not] required to cite 'facts' that support its decision or to weigh aggravating and mitigating circumstances." (Sandoval, supra, 41 Cal.4th at pp. 846-847.) Under California's determinate sentencing law, "a trial court is free to base an upper term sentence upon any aggravating circumstance that the court deems significant, subject to specific prohibitions." (Id. at p. 848.) "[T]he existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term." (People v. Black (2007) 41 Cal.4th 799, 813.) "The court's discretion to identify aggravating circumstances is otherwise limited only by the requirement that they be 'reasonably related to the decision being made.'" (Sandoval, supra, at p. 848.)

Here, the court found as an aggravating circumstance that Gill's convictions were increasing in seriousness. Further, this circumstance was reasonably related to the court's sentencing decision and the court's reliance on it is clearly supported by the record. Accordingly, we reject Gill's contention that the court abused its discretion when it imposed the aggravated term.

DISPOSITION

The judgment is affirmed.


Summaries of

People v. Gill

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 31, 2012
F061612 (Cal. Ct. App. Jan. 31, 2012)
Case details for

People v. Gill

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. KHUSHDEEP S. GILL, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Jan 31, 2012

Citations

F061612 (Cal. Ct. App. Jan. 31, 2012)