Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F10720
RAYE, P. J.A jury found defendant Deborah Ann Matisengle guilty of vehicular manslaughter with gross negligence. (Pen. Code, § 192, subd. (c)(1).) The trial court sentenced her to the upper term of six years in state prison. On appeal, defendant contends the court erred when it denied probation and again when it imposed an upper term sentence. She contends the matter must be remanded for new proceedings to be conducted by a different judge. We will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Highway 44 is a paved two-lane state highway. Construction work on portions of the highway began on March 13, 2007, and was ongoing throughout the summer of that year. On August 13, 2007, a construction zone on a portion of the highway was controlled by flaggers. Traffic approaching either end of the zone would line up and wait for a pilot car to lead traffic in one direction in a single lane from one end of the construction zone to the other while flaggers held traffic travelling in the opposite direction at the other end of the zone. For drivers travelling eastbound, the construction zone was preceded by a straightaway approximately one-half mile long with nothing obstructing a driver’s view of the flagger’s position. The posted speed limit was 55 miles per hour. A number of signs were placed along the highway warning drivers of the impending construction zone and the need to be prepared to stop. The sign farthest from the construction zone, approximately 2.5 miles away, cycled through three different messages: “Roadwork Ahead, ” “Be Prepared to Stop, ” and “Use Caution.”
On August 13, 2007, defendant was driving her car eastbound on Highway 44. While driving toward the construction zone, she used her cellular telephone to make three calls. Just after 5:04 p.m., she dialed “#225” to check her account balance. The call lasted 25 seconds. About a minute later, she dialed “#646” to check the number of minutes available on her account. The duration of that call was 37 seconds. Within minutes, she dialed “#768” to make a payment on her cellular telephone account. Forty-two seconds into that call, defendant slammed into the back of Petra Winn’s car, which was waiting in line at the construction zone. Winn’s car burst into flames and she ultimately perished.
Opal Beasley was also waiting in line when Winn’s car hit hers from behind, forcing Beasley’s car forward. Beasley’s car was totaled as a result of the accident, and she suffered minor injuries to her elbows and knees.
Christopher Zanini had also stopped and was waiting in line ahead of Beasley. Zanini’s car was hit from behind by Beasley’s car.
John Nagle was in his vehicle waiting in line several cars ahead of Winn. Within minutes of stopping, he heard a loud boom behind him and saw Winn’s car engulfed in flames. He did not recall hearing any braking prior to the explosion. Nagle called 911.
Terry Catechi also heard a loud impact within minutes of stopping in the line of traffic waiting at the construction zone. He did not see the collision nor did he hear any braking prior to it, but when he looked in his rearview mirror, he saw flames in the air. Catechi jumped out and ran to help Beasley, who was “cut up pretty good.” He ran to Winn’s car and saw that the driver’s door and window were closed. The back of the car was crushed and flames were coming from the rear. He could see someone was inside the vehicle and the airbags had deployed. He and several others tried to open the car door, but were unable to due to smoke and flames. Someone was able to break the window with a jack, and the car filled with smoke. Catechi saw Winn lying back in her seat. He leaned in and said, “Ma’am, your vehicle is on fire. We need to get you out.” Winn, who was not alert and appeared to be semiconscious, mumbled that “she didn’t care.” Catechi did not see that Winn had any injuries. He quickly unbuckled her seatbelt and then jumped back because of the extreme heat inside the car. Someone handed Catechi a fire extinguisher, which he used to try to put out the fire while others tried to get Winn out of the burning car. Within a minute or so, the flames fully engulfed the car and Catechi and the others moved away, unable to extricate Winn.
Catechi observed that Winn was “pitched back in her chair, ” which he assumed was the result of the impact pushing the driver’s seat back into a reclining position.
Clifton Egan was also stopped in the eastbound traffic. He heard an explosion and saw Winn’s vehicle six or seven cars behind him engulfed in flames. Egan ran to Winn’s car, which was on fire, but was unable to see inside the vehicle due to smoke. He attempted to help others open Winn’s door, to no avail. He ran back to his truck and returned with a bar, which he used to break the driver’s side window. As smoke poured out of the car, Egan could see Winn inside. She appeared to be very drowsy, “[k]ind of almost like a drunken kind of sense. Just kind of, you know, really out of it.” The steering wheel airbag was deployed. He did not see that Winn had suffered any apparent physical injuries; however, she was moaning and groaning and did not appear able to talk. When she spoke, Egan characterized it as “gibberish” and “slurred, ” none of which he could understand. He reached in and tried to open the door from inside but could not. He ran back to his truck several times to retrieve fire extinguishers. By the time he returned with the third extinguisher, Winn’s car was engulfed in flames. Egan and several others continued their rescue efforts until they were turned away by the heat.
Kendall Donaldson was driving eastbound on Highway 44 on August 13, 2007. Defendant’s car was in front of his as he neared the construction zone. He rounded the bend into the straightaway before the construction zone and slowed when he saw cars lined up ahead of him. Defendant did not slow down, nor did Donaldson see her brake lights come on. As Donaldson slowed down, the distance between his car and defendant’s increased. From a distance of approximately one-quarter mile, Donaldson saw defendant’s car hit Winn’s stationary vehicle. He pulled over and ran to Winn’s car, which was on fire. There was thick, black smoke inside the car and flames coming from the rear of the car, but Donaldson could see that there was someone inside. He grabbed the driver’s door handle several times and tried unsuccessfully to open the door. He also tried unsuccessfully to break the window with his hand. Egan eventually broke open the driver’s side window, but the fire became more intense, impeding their efforts to get Winn out. Several of the men were yelling at Winn, trying to get her to help herself escape; however, Donaldson thought that although her eyes were open and she appeared to be conscious, the smoke “had overcome her.” He reached in and grabbed Winn’s arm, but she either passed out or tugged against him, causing her to slip out of his grasp. Donaldson grabbed onto Winn a second time, but had to let go and back away because of the flames. Due to the heat and the flames, Donaldson and the others had to abandon their rescue efforts.
California Highway Patrol (CHP) Officer Jack Polen was dispatched and the first emergency responder on the scene. By the time he arrived, Winn’s vehicle was fully engulfed in flames. Polen noted that the airbags were deployed in defendant’s car and observed defendant to be upset, crying, and apparently in shock. Her speech was somewhat slow and slurred, and her eyes were fixed and not very reactive. Polen did not smell alcohol on defendant’s breath but suspected that she might be under the influence of some type of drug. He did not perform a field sobriety test because defendant was complaining of back and neck pain as a result of the collision. Prior to defendant’s being taken from the scene in an ambulance, Polen placed her under arrest based on limited evidence that she might be under the influence of something. According to tests of a blood sample taken from defendant, it was later determined that she was not impaired or under the influence at the time of the collision.
Polen first interviewed defendant on August 13, 2007. She denied having used her cell phone while driving and claimed Winn’s car pulled out in front of her. She again denied having used her cell phone while driving when Polen interviewed her at her home the next day.
Two days after the collision, defendant met with Polen and signed a consent form releasing her cell phone for examination. She again denied having used her cell phone during the drive prior to the collision and denied having done so a fourth time when Polen spoke with her five days after the collision.
Officer Polen also interviewed Donaldson at the scene on the day of the collision. Donaldson told Officer Polen he did not actually see the collision; rather, he was “in a long line of cars and saw a ball of smoke and flame come up in front of him.” Officer Polen testified that none of the witnesses he interviewed saw Winn’s car stopped in the line of traffic prior to the collision.
Beasley, Zanini, and Donaldson told investigators they never saw any cars parked on the side of the road, nor did they see vehicles stopped on a side street ready to pull out.
Kenneth Reed, an engineer with Caltrans and a member of the CHP’s multidisciplinary accident investigation team, investigated the incident. According to Reed, there was an adequate sight distance (i.e., an adequate distance for the driver to see ahead to make a safe stop) on the approach to the construction zone.
CHP Officer Robert Koetting testified that, based on accident reconstruction tests, he determined defendant was traveling at a minimum speed of 66 miles per hour when she collided with Winn’s car. Officer Koetting stated defendant’s speed could have been in the range of 59 miles per hour to 72 miles per hour, but was likely at the higher end of that range based on the physical evidence. He also testified that the physical evidence did not bear out defendant’s claim that Winn had pulled out in front of her or that Winn’s car was moving from right to left immediately before the collision or at the time of impact.
CHP Officer Troy Somavia testified that, two months prior to the incident, he stopped defendant for speeding on Highway 44. Defendant had a radar detection device mounted on the dashboard of her car, and when Officer Somavia issued her a citation for speeding, she became upset and said “she did not think I could have gotten her on radar because her radar hadn’t gone off.” She “mumbled something kind of under her breath, ” and grabbed the ticket book and signed the ticket.
Dr. Susan Comfort, a forensic pathologist with the Shasta County Coroner’s Office, performed the autopsy on Winn the day after the incident. An external examination of Winn’s body revealed that she was burned beyond recognition. Dr. Comfort determined the cause of death was smoke inhalation and thermal burns. Based on the condition of Winn’s body, Dr. Comfort was unable to determine with certainty whether or not Winn suffered physical injuries from the collision prior to succumbing to the smoke and fire.
Outside the presence of the jury, Dr. Comfort testified that Winn’s toxicology test revealed the presence of 0.81 milligram of methamphetamine and amphetamine in her blood. According to Dr. Comfort, that amount of methamphetamine can be toxic in someone who never takes methamphetamine and is not used to taking it, but is not likely toxic for someone who uses it regularly. Dr. Comfort could not determine whether methamphetamine was a contributory factor in Winn’s ability to help herself get out of the car or whether it contributed to her death; however, she did not believe methamphetamine was the cause of death.
Defendant was charged with vehicular manslaughter with gross negligence. (Pen. Code, § 192, subd. (c)(1).) The jury found her guilty as charged. Defendant’s motion for new trial and motion to disqualify the trial judge were denied. The court denied probation and sentenced defendant to the upper term of six years in state prison.
Defendant filed a timely notice of appeal.
DISCUSSION
I
Imposition of Upper Term
Defendant challenges the factors relied on by the trial court to impose the upper-term sentence. In particular, defendant contends the court improperly relied on factors listed in California Rules of Court, rule 4.421(a)(1) (further references to rules are to the California Rules of Court) such as great bodily harm and callousness, despite the fact that those factors are elements of the crime of vehicular manslaughter with gross negligence, and on the vulnerable victim factor where the evidence does not support a finding that Winn was particularly vulnerable.
Defendant failed to explicitly raise these specific claims in the trial court. Where a defendant fails to challenge the court’s findings on a specific issue at the sentencing hearing, the claim of error is forfeited. (See People v. Scott (1994) 9 Cal.4th 331, 351 (Scott); People v. de Soto (1997) 54 Cal.App.4th 1, 8-9 (de Soto).) However, prior to the trial court’s pronouncement of sentence, defense counsel argued that there “are no factors in aggravation in this case.” Because the argument raises similar issues, we shall assume for the sake of argument that defendant’s claims were not forfeited for failure to object despite having had a meaningful opportunity to do so.
Background
The probation report identified a single circumstance in aggravation -- that “the crime involved great violence, great bodily harm, threat of great bodily harm or other acts disclosing a high degree of cruelty, viciousness or callousness.” (Rule 4.421(a)(1).) Similarly, it identified a single circumstance in mitigation -- that defendant has no prior criminal record. (Rule 4.423(b)(1).) The report recommended that the court deny probation and sentence defendant to the upper term of six years in state prison.
At the sentencing hearing, defendant’s friends and family members spoke and submitted letters to the court on her behalf. Family and friends of the victim did the same.
CHP investigator Nathan Parsons testified that he twice observed defendant driving and texting after the August 13, 2007, collision that killed Winn -- first on April 29, 2008, and again on May 19, 2008. On the first occasion, Parsons saw a vehicle going significantly slower than the speed limit without its hazard lights on. When Parsons passed the vehicle, he observed defendant driving with her left hand while looking down and texting on her cell phone with her right hand. Parsons did not pull defendant over because he was driving in an unmarked car and was not in uniform. On the second occasion, Parsons recognized defendant’s vehicle, which was travelling slower than the posted speed limit. When he pulled up next to the car, he saw that defendant was driving with her left hand while texting on her cell phone with her right hand. Parsons did not arrest defendant on that occasion because, at that time, driving while using a cellular telephone was not against the law.
Defendant’s counsel insisted that defendant’s acts were accidental and unintentional, arguing as follows:
“There has certainly been evidence of certain behaviors that are clearly, at best, insensitive. That are, at worst, inexplicable. But they are not proof of callousness. They are not proof -- if you look at the totality of the picture of this human being -- this human being whose entire life of 50 years is being encapsulated into what happened in an instant in August of last year. That’s not the picture of this human being. [¶]... [¶] My client doesn’t blame and never did blame Petra Winn. Is it human nature to try to reduce your responsibility for a terrible truth -- a terrible responsibility that is more than one can bear? Is it not human nature to -- what are the descriptions that [defendant] gave from the beginning and throughout the end? All that she remembers and honestly remembers is this white car appearing out of nowhere. [¶] She doesn’t blame and she never, never tried to take away her own responsibility for this. She is not a person who displays emotion. She did not display emotion throughout the trial. [¶]... [¶] There are specific factors involving aggravation or mitigation. There are no factors in aggravation in this case, Judge. The only one found by Probation is under Rule 4.421(a)(1) that this crime involved great violence, great bodily harm, a threat of great bodily harm or otherwise disclosing a high degree of cruelty, viciousness or callousness. [¶] This is a standard example of the statute, Judge. It is horrific. It is horrible. There is a death. It’s manslaughter. If there was not a death, this would not be a manslaughter case. It is not a horrific version of this case -- of this type of act. [¶] There is a significant factor in mitigation that my client has no prior record. Likewise, the collateral consequences both to persons close to [defendant] and persons who simply are members of the community, the children that truly benefit from her kindness, from her generosity.”
The trial court made the following findings in support of imposition of the upper term:
“In terms of circumstances in aggravation and mitigation, the circumstances in mitigation are as follows. [¶] The defendant has no prior record, period. So that is the circumstance in mitigation relating to the offense. [¶] In juxtaposing that circumstance with the circumstances in aggravation, we have again, Rule 4.421(a)(1), the fact that the crime did involve great bodily harm or threat of great bodily harm. And in terms of the fact that it was a threat of great bodily harm to others -- to the Mr. Zaninis, to the Miss Beasleys, that were right in front of Petra Winn’s vehicle. We heard evidence from one of the good Samaritans as to the damages, the injuries on little old Mrs. Beasley to the point where she didn’t know what was happening. Her car moved forward a great distance. She could have easily been a secondary victim in this case. [¶] Again, the victims were particularly vulnerable. The crime involved a great deal of monetary damages. And in addition, as I mentioned, there’s all sorts of categories of victims here. There was not just one victim to this offense. There were the victims of the folks in the accident itself, the people standing around the accident, the good Samaritans, Ms. Winn’s family members. [¶] And [defendant] and her family that are going to miss her because she made conscious choices and the conscious choices that she made were completely irresponsible. I don’t care that I’ve got this radar device out there. I’m going to sit in my car and I’m going to do my little fiddling on my phone. And I don’t care that we’re in a construction zone because I just don’t. [¶] And that’s where it was to her that day. That is a conscious disregard for the safety [of] others. In my mind, it displays callousness. And even though it’s something that should have been prevented, it wasn’t. There was no effort -- I saw no effort to stop, to brake which means in my mind that she had it on cruise control. A circumstantial element that could be gleaned from all of the evidence that she chose to simply drive that fast because she thought she could. And she had her little radar device there to tell her, just in case there was a cop around. [¶] So in balancing the circumstances in aggravation and the circumstances in mitigation, I find that the circumstances in aggravation far outweigh the circumstances in mitigation. [¶] So as to the actual sentence, I am going to order that probation be denied and that [defendant] be committed to state prison for six years.”
Analysis
Rule 4.421(a)(1) states that a sentence may be aggravated where the “crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness.”
Here, the court found that, in addition to the death of Winn, others such as Beasley and Zanini were placed in harm’s way as a result of defendant’s acts. Defendant claims the threat of great bodily harm factor does not apply to those victims because the threat was not intentional. As support for this, she points to cases where the defendant’s intent to threaten harm was clear and argues that the second part of the statute’s sentence -- “or other acts disclosing a high degree of cruelty, viciousness, or callousness” -- suggests that “actual malicious intent” is required to find defendant threatened to do great bodily harm. She argues, alternatively, that Beasley and Zanini received nothing more than minor injuries. We reject the first argument, as defendant has not provided any authority, nor are we aware of any, to support it. We reject her second argument as well because it misses the mark. The court found there was a threat of great bodily harm to those individuals, not that there was actual bodily harm. Indeed, it was merely fortuitous that those in close proximity to Winn’s car (or, for that matter, defendant’s) were not themselves seriously injured or killed as a result of defendant’s acts. While defendant argues her crime, by definition, requires driving in a grossly negligent manner and therefore her conduct of driving recklessly “must create a high risk of death or serious injury, ” the trial court was clearly of the opinion that the facts surrounding the charged offense (i.e., defendant’s excessive speed, her use of a cell phone while driving, and her prior knowledge of and familiarity with the construction zone) exceeded the minimum necessary to establish the elements of the crime. As such, that evidence was properly used to aggravate the sentence. (People v. Castorena (1996) 51 Cal.App.4th 558, 562 [“[R]ule 420(d) does not preclude a court from using facts to aggravate a sentence when those facts establish elements not required for the underlying crime” (italics omitted)].)
Defendant argues that neither Winn nor any other person identified by the trial court as a victim was “particularly vulnerable” under rule 4.421(a)(3). “As used in the context of rule 421(a)(3), a ‘particularly vulnerable’ victim is one who is vulnerable ‘in a special or unusual degree, to an extent greater than in other cases. Vulnerability means defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendant’s criminal act. An attack upon a vulnerable victim takes something less than intestinal fortitude. In the jargon of football players, it is a cheap shot.’ [Citation.] Rule 421(a)(3) has thus far been applied exclusively in criminal cases involving violent felonies, where the age or physical characteristics of the victim, or the circumstances under which the crime is committed, make the defendant’s act especially contemptible.” (People v. Bloom (1983) 142 Cal.App.3d 310, 321-322.)
The People concede, and we agree, that neither bereaved family members nor rescuers nor bystanders are victims for purposes of rule 4.421(a)(3). However, we need not determine whether the court correctly determined that the factors in aggravation included the fact that Winn was particularly vulnerable because the court found at least two other factors that are supported by the record: the threat of great bodily harm and that the crime involved a great deal of monetary damages (as evidenced by the probation report and witness testimony). “A single factor in aggravation will support imposition of an upper term.... ‘[Indeed, in circumstances where] a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.’” (People v. Cruz (1995) 38 Cal.App.4th 427, 433-434.) A lesser sentence is not only not reasonably probable but highly unlikely here given the trial court’s strong statements in favor of aggravation and its finding that there was only one mitigating circumstance.
According to the probation report, Beasley indicated her vehicle was “totaled by the collision, ” but “the insurance companies did not reimburse her enough money to purchase another four-wheel drive vehicle, making it very difficult for her to get around during the winter months.” The damage to Zanini’s vehicle cost “$5,000 to $6,000 to repair and was handled through the defendant’s and Mr. Zanini’s insurance companies.”
The trial court did not err in imposing an upper term sentence.
II
Denial of Probation
Defendant contends the trial court’s denial of probation was error because the court relied upon “improper” aggravating factors, and gave inadequate weight to or failed to consider mitigating factors.
Defendant failed to object on these specific grounds at sentencing, thus forfeiting her claims. (See Scott, supra, 9 Cal.4th at p. 351; de Soto, supra, 54 Cal.App.4th at pp. 8-9.) However, given defense counsel’s arguments regarding factors affecting probation prior to the court’s denial of probation, we shall again assume for the sake of argument that defendant’s claims were not forfeited for failure to object despite having had a meaningful opportunity to do so.
Background
The probation report recommended that probation be denied and identified the following relevant criteria for the court to take into account: (1) the crime was a “standard example of the statute” as compared to other instances of vehicular manslaughter with gross negligence; (2) the victim died due to defendant’s actions; (3) defendant was an active participant in the crime; (4) defendant has no prior criminal record; (5) defendant stated a willingness to comply with the terms of probation; (6) defendant appears capable of compliance, as “she is educated, employed, has stable residence, and no substance abuse issues”; (7) the felony conviction may affect defendant’s future employment opportunities; and (8) “defendant stated she was sorry. However, the sincerity was quite questionable. She attempted to act as though she was upset and ‘crying, ’ yet not a single tear fell from her eye.”
Arguing in favor of a grant of probation, defendant’s counsel stated: “Probation is correct. This is a standard example of the statute. Manslaughter is manslaughter. It involves a death. [¶] Whether the defendant inflicted physical pain or emotional injury. Well, again, it’s manslaughter, Judge. It’s not a factor involving probation and as to Factor (a)(6), whether the defendant was an active or passive participant. Yes, she was active, Judge, but this is a negligent criminal action. She did not intend -- we impute intent to a certain degree. Criminal intent from the degree of her negligence. That’s the statute she’s convicted under. But clearly, it is an implied intent and she did not -- is not the type of person that would have intended to harm anyone. [¶] I guess we can consider a world wherein if one is convicted of driving with a cell phone, as is now criminal, and is then convicted of vehicular -- and then is in an accident involving the use of a cell phone under the Watson rule, that would be second-degree murder. Maybe that is where we’re progressing. [¶] This is an act that the jury found to be grossly negligent and the negligent acts were intentional, but the result was not. She has no prior record under [f]actor (b)(1). She does state a willingness to comply -- and to get to this cell phone use after the accident, Judge. As I said, at best, insensitive. At worst, remarkable. [¶] But, Judge, we all deal with things and make connections differently. It is not an illegal activity.... [¶] The defendant is sincerely remorseful....”
The court denied probation after making the following findings: “Yes, this might be a standard example of the statute, but when you talk about the vulnerability of the victim, you deal first with the various victims of this case. We have Petra Winn who was essentially a sitting duck in a vehicle in a long line of cars where there was no escape. [¶] In addition, following Petra Winn, we have the victims, Opal Beasley, an 80-year old-plus woman who was right in front of her. We have Terry -- or Christopher Zanini and his elderly mother in another vehicle right in front of Opal Beasley. Every single one of these folks were victims of this offense. [¶] One of the victims, Ms. Winn, passed away in a most egregious manner when she was unable to maneuver out of that way. In terms of the vulnerability of the victims, you can’t envision a more vulnerable person than Petra Winn was at the time that she was behind the vehicles. [¶] As to whether or not [rule] 414 -- excuse me -- 4.414(a)(3) applies, it does to a very great extent. [¶] I want to go into the other tiers of victims here because I think that one of the things that we neglect to think about -- we think about the person that passed [a]way. But we also have the folks that were in their vehicles that were able to survive this accident, yet observed this accident. [¶] And then we have the folks, the good Samaritans, the John Nagles, the Terry Catechis, the Kendall Donaldsons and the Clifton Egans, all of whom will have for the rest of their lives a memory of trying [to] save a woman from a burning vehicle while this vehicle was there and they raced to try to help this woman. They are victims in my mind, as well. You can’t forget the imagine [sic] of a helpless woman in a car burning up, all as a result of the thoughtless inattention of your client [the defendant]. [¶] And then you have as was indicated by Petra’s friend, a man that she has apparently loved for many years, the imagine [sic] of the death of Petra Winn to her family is the kind of death one cannot ever forget. I can’t imagine a more difficult way of thinking of the loss of a loved one. [¶] So in terms of whether the victim[]s were vulnerable, we have tiers of victims here. We have people that are along the road that day and they will never forget this incident. We have, unfortunately, the victim, Petra Winn, who was burned to a state of unrecognition. Absolute unrecognition. And the people that were there observed that and your client’s conduct was the result of that particular method of death. [¶] As to Rule 4.414, there is no doubt that not only did the victim die due to the defendant’s actions, but there was physical and emotional pain and suffering as to not only Petra Winn, but these other victims that I’ve mentioned. Watching those witness[es] who were trying to get her out of that car testify, you could sense their human sadness at being unable to be there for a poor woman trapped in a car. The whole courtroom was full of that aura of sadness and pain and suffering that the good Samaritans had in trying to take her from that car. [¶] An additional factor relating to the criteria affecting probation was Rule 4.414[(a)](6), whether the defendant was an active or passive participant. The comments that I’ve heard from [defendant]’s family and friends are that she is a remarkably kind woman, she loves children, she helps others. That is a completely different picture than what I see of her when she gets behind the wheel of a car. [¶] I don’t know too many people that have radar devices that activate those radar devices simply to get away with speeding whenever possible. Several weeks before this incident occurred, she argued with a policeman -- I don’t know how many soft, easy going, sweet people argue with a police officer about whether or not she was, in fact, speeding. I think she takes on a completely different manner when she gets behind the wheel of that vehicle and that’s what happens to some people. And that’s her way of maybe venting. I don’t know. [¶] But she’s got her radar device. In my opinion, it’s quite likely she set her vehicle to cruise control. She had knowledge of that area. She’d been driving through it perfectly every day. She knew perfectly very well that there was construction going on. She knew that there were construction workers, that there were people standing around on the road. And yet she drove without any concept that other folks might have been in her path. [¶] So as to her participation in this crime and whether or not she was an active participant, she was very active. And what this crime represents to society -- to us, to folks that listened to the actual trial, is the worst kind of self-interest that we see in society today. The attitude of I can speed all I want to, so long as I have my trusty little radar device going that will alert me to those pesky cops out there who would otherwise prevent me from going any speed that I choose to go. [¶] I can set my car at speeds of 72-plus miles per hour -- whatever that amount was. Way over the speed limit of 55 miles per hour. Driving a route that I know has been filled with construction workers. I can do that because I can. [¶] And don’t try to tell me that I can’t telephone anyone I want to or pay bills that I want to. I get to decide what I want to do and when I want to do it and whenever I want to do it. But we live in a society where we must care about others around us. [¶] In terms of the criteria affecting probation, the events of this case showed a total lack of the attribute of caring about those around us. [¶] I know that you categorize this as an accident. But in my mind, the defendant’s conduct was callous to Petra Winn, to Opal Beasley, to Christopher Zanini. They were simply victims in front of a loaded firearm and that’s what that car was at that time. [¶] So as to the criteria affecting probation, I’m going to deny probation to [defendant], finding that the criteria relating to a state prison commitment are substantial and that her actions have demonstrated that she poses a threat to public safety, if she were to be granted probation.”
Law
“‘All defendants are eligible for probation, in the discretion of the sentencing court [citation], unless a statute provides otherwise.’ [Citation.] ‘The grant or denial of probation is within the trial court’s discretion and the defendant bears a heavy burden when attempting to show an abuse of that discretion. [Citation.]’ [Citation.] ‘In reviewing [a trial court’s determination whether to grant or deny probation, ] it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial court’s order granting [or denying] probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances.’” (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311 (Weaver), quoting People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 825; see also People v. Read (1990) 221 Cal.App.3d 685, 689 [“Probation is an act of clemency that is granted only in the discretion of the judge.”].)
Regarding a trial court’s decision whether to grant or deny probation, rule 4.414 provides, in relevant part:
“(a) Facts relating to the crime
“Facts relating to the crime include:
“[¶]... [¶]
“(3) The vulnerability of the victim;
“(4) Whether the defendant inflicted physical or emotional injury;
“(5) The degree of monetary loss to the victim; [and]
“(6) Whether the defendant was an active or a passive participant; [¶]... [¶]
“(b) Facts relating to the defendant
“Facts relating to the defendant include:
“(1) Prior record of criminal conduct...; [¶]... [¶]
“(3) Willingness to comply with the terms of probation;
“(4) Ability to comply with reasonable terms of probation...;
“(5) The likely effect of imprisonment on the defendant and his or her dependents;
“(6) The adverse collateral consequences on the defendant’s life resulting from the felony conviction;
“(7) Whether the defendant is remorseful; and
“(8) The likelihood that if not imprisoned the defendant will be a danger to others.”
In deciding whether to grant or deny probation, a trial court may also consider additional criteria not listed in the rules, provided those criteria are reasonably related to that decision. (Rule 4.408(a).) A trial court is required to state its reasons for denying probation and imposing a prison sentence, including any additional reasons considered pursuant to rule 4.408. (Rules 4.406(b)(2) & 4.408(a).) Unless the record affirmatively shows otherwise, a trial court is deemed to have considered all relevant criteria in deciding whether to grant or deny probation or in making any other discretionary sentencing choice. (Rule 4.409.)
“‘The circumstances utilized by the trial court to support its sentencing choice need only be established by a preponderance of the evidence. [Citations.]’ [Citation.] Accordingly, in determining whether a trial court abused its discretion by denying probation, we consider, in part, whether there is sufficient, or substantial, evidence to support the court’s finding that a particular factor was applicable.” (Weaver, supra, 149 Cal.App.4th at p. 1313.) However, a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it, and this court is neither authorized nor warranted in substituting our judgment for that of the trial judge. (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
Analysis
Here, the trial court found that Winn was vulnerable under rule 4.414(a)(3). Acknowledging the holding in Weaver, supra, 149 Cal.App.4th 1301 that a finding of particular vulnerability is not required under rule 4.414(a)(3), defendant nevertheless argues that Weaver was wrongly decided and urges us to follow other vehicular manslaughter cases that have held otherwise, such as People v. McNiece (1986) 181 Cal.App.3d 1048, overruled on other grounds in People v. McFarland (1989) 47 Cal.3d 798. While we are not inclined to do so, we need not reach that issue because, even if we were to assume that the court’s reliance on the vulnerability of Winn or any other person as a factor weighing against probation was improper, the court properly relied on other factors, including that defendant inflicted physical injury on Winn (who was alive for a brief period before succumbing to the heat, smoke, and flames), that defendant inflicted physical and emotional injury on other victims and bystanders (rule 4.414(a)(4)), and that defendant posed a threat to public safety if she were granted probation based on evidence that she was seen texting and driving on two separate occasions after the collision that resulted in Winn’s death (Rule 4.414(b)(8)). The evidence supports those findings.
The court also found that victims such as Beasley and Zanini who suffered damage or injury, and “other tiers of victims” such as the good Samaritans who tried to extricate Winn from the burning car and the bystanders who witnessed the collision, were vulnerable for purposes of rule 4.414(a)(3).
Similarly, we need not reach defendant’s argument that the trial court improperly relied on her being an active participant. (Rule 4.414(a)(6).)
Defendant contends that, in addition to relying on improper factors, the trial court also failed to consider factors favoring probation, such as the absence of a prior record or defendant’s willingness and ability to comply with reasonable terms of probation. She argues the court demonstrated that it was either misinformed about or misunderstood its discretionary powers, or it abused its discretion in denying probation. We are not persuaded.
The record indicates the court considered all of the relevant facts, having reviewed and considered the probation report, the prosecution’s sentencing brief and statement in aggravation, sentencing materials submitted by defendant (including letters written by defendant’s friends and family), a statement in mitigation, and letters written by the victim’s family members. The court demonstrated that it understood its discretionary power when, after stating its tentative decision to deny probation, it heard and considered testimony and arguments from counsel prior to issuing a final ruling. Thereafter, the court denied probation, giving a well-reasoned and considered explanation for its decision in that regard. There was no abuse of discretion.
III
Judge on Remand
Having rejected defendant’s two prior claims, we need not reach her final claim that, in the event of remand, the matter must be heard by a different trial judge.
DISPOSITION
The judgment is affirmed.
We concur: ROBIE, J. BUTZ, J.