Opinion
H035978
08-11-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH ANTHONY INNOCENCIO et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CC961226)
Late one evening in October of 2009, defendants Emanuel Pourmand and Joseph Anthony Innocencio, who did not know each other, engaged in a high speed race down Branham Lane in San Jose. They were both estimated to be traveling at speeds of somewhere between 74 and 92 miles per hour, well above the posted speed limit of 40 miles per hour. Pourmand, distracted by Innocencio's car, failed to see a car ahead of him driven by the victim, Alyson Snow. Snow and a passenger, Daniel Hendricks, were going to the store to buy milk and cookies. Pourmand sharply turned right to avoid Snow's car, but his driver's door hit the right rear corner of her car, sending her car spinning into a large tree in the median. Pourmand hit some curbs and crashed into a tree. Innocencio approached the area of the accident going between 85 and 92 miles per hour, lost control of his car and crashed into some trees in the median without touching either Snow's or Pourmand's cars. Snow suffered a fracture at the base of the skull and was later pronounced dead at the hospital. Hendricks suffered injuries which were not life threatening. Neither defendant was under the influence of alcohol or drugs.
Both Pourmand and Innocencio appeal from a judgment entered after they pleaded no contest to all charges filed against them by way of information. Pourmand pled no contest at his arraignment to one count of vehicular manslaughter with gross negligence (Pen. Code, § 192, subd. (c)(1)), one count of reckless driving causing injury to a person other than driver (Veh. Code, § 23105), and one great bodily injury enhancement in connection with the count as to Hendricks, the passenger. (Pen. Code, § 12022.7.) Inocencio pled no contest one week later to one count of vehicular manslaughter with gross negligence (Pen. Code, § 192, subd. (c)(1)) and one count of reckless driving causing injury to a person other than driver. (Veh. Code § 23105.) Neither defendant received a plea agreement in exchange for his plea. The trial court sentenced Pourmand to the maximum possible sentence, the upper term of six years for the vehicular manslaughter plus three years for the great bodily injury enhancement for a total of nine years in state prison. The court stayed punishment for the reckless driving pursuant to Penal Code section 654. The court also sentenced Inocencio to the maximum possible sentence of six years for the vehicular manslaughter plus eight months for the reckless driving, for a total of six years and eight months. This timely appeal ensued.
On appeal, appointed counsel filed an opening brief which states the case and the facts but raises no specific issues. We notified defendants of their right to submit written argument in their own behalf within 30 days. Thirty days has elapsed and we have received nothing from defendant Inocencio.
On March 30, 2011, defendant Pourmand submitted a supplemental letter brief on his own behalf. In his letter, he asks this court to reconsider his maximum sentence. Pourmand contends that the trial court abused its discretion in giving him the maximum sentence because of all the factors in mitigation. Specifically, defendant argues that he admitted his guilt, has no criminal history, was not under the influence of any drugs or alcohol at the time of the accident, was in school and was a working member of society.
Sentencing in this case was hotly contested and subject to an extended hearing where many members of the community as well as the victims and defendant's families spoke and submitted letters for the court's review. The probation department recommended much lower sentences for both defendants. However, the trial court, in a lengthy statement, considered all the factors in aggravation and in mitigation but concluded that the maximum sentence was warranted in this case. The court was particularly troubled by the fact that the defendants were racing when the accident occurred. The court stated, "I have no question that . . . life is precious. It's extremely fleeting. And I think the member of this community have a right to expect they can go to a quick stop market, pick up some milk and cookies, and not get killed by a person who was racing for whatever jolt of excitement that the 20 seconds provided." The court was also troubled that the defendants were attempting to deny the notion that they were racing and attempted to pass off responsibility to the primary victim in this case, showing a "lack of empathy." The court stated that "this particular set of circumstances was not an electronic game that you can just reset, . . . and make all the pain go away."
Defendant also describes personal and family history of religious persecution and asylum in this country. While this history adds to the tragedy of this case, it does not mitigate the gravity of the crimes. Under these circumstances, we are unable to say that there is an arguable issue on appeal that the court abused its discretion in imposing the maximum sentence available under the law.
Pursuant to our obligation as set forth in People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record on appeal. We conclude that there are no arguable issues. Therefore, we will affirm the judgment.
DISPOSITION
The judgments as to defendants Pourmand and Innocencio are affirmed.
RUSHING, P.J. WE CONCUR: PREMO, J. ELIA, J.