Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCE291308, Peter C. Deddeh, Judge.
HUFFMAN, Acting P. J.
Melvin Leroy Pearles appeals a judgment entered after he pleaded guilty to one count of gross vehicular manslaughter (Pen. Code, § 192, subd. (c)(1)). Pearles contends the court erred by (1) denying his request for probation, and (2) imposing the four-year middle term for the offense. We affirm the judgment.
FACTS
On the morning of March 29, 2009, Pamela McKeirnan drove her car south on Highway 67 from Ramona to the Fashion Valley Mall in San Diego. Her daughter, Alexandria Drake, and Drake's one-month-old son, Jayden, followed behind. At the same time, Pearles was driving northbound on Highway 67. While approaching a blind curve, Pearles attempted to pass the car in front of him by driving on the right hand shoulder at a speed between 83 and 97 miles per hour. Pearles attempted to steer the car off the shoulder but spun out of control and crossed the median of the highway into oncoming traffic, striking McKeirnan's car.
Highway 67 is a notoriously dangerous stretch of road between Ramona and Lakeside in San Diego County. It is well known in the region for its high level of fatalities, particularly in the area where the incident in this case occurred.
The speed limit on Highway 67 is 55 miles per hour. At the time of the incident, McKeirnan and Drake were driving between 50 and 55 miles per hour.
Drake, following closely behind her mother, steered her vehicle to the right to avoid a collision. Pearles's car rotated and struck the front of Drake's car, causing her to spin out and strike a tree. The front fenders, front bumper, and front hood were all pushed inward, causing a major intrusion into the driver's seat. Although Drake was wearing her seatbelt, she sustained serious injuries and died several hours later. Pearles sustained injuries to his vertebrae, clavicle, and ribs.
The accident affected two other vehicles. John Selters was driving his car immediately behind Drake with his young son in the back seat. To avoid the accident, Selters swerved off the road and into the branches of a tree, narrowly avoiding its trunk. Neither Selters nor his son sustained any injuries. Joel Cherry was driving his motorcycle behind Selters. To avoid the collision, he crashed his motorcycle into the side of the road and was thrown 83 feet onto the ground. Cherry sustained minor injuries.
While being treated for his injuries, Pearles admitted to speeding, but estimated he was driving about 75 miles per hour, and stated that he did so because he was being tailgated by another car and he had to urinate. He also admitted to regularly speeding on the highway in the past.
DISCUSSION
Pearles contends the court abused its discretion by denying probation and imposing the four-year middle term.
I
FORFEITURE OF CLAIM
Preliminarily, the People contend that Pearles forfeited this claim on appeal because he failed to object to the four-year term at the time of sentencing. Specifically, the People claim that Pearles failed to object to any alleged deficiencies in the court's reasons for denying probation and imposing the middle term when he had a meaningful opportunity to do so. (People v. Zuniga (1996) 46 Cal.App.4th 81, 84 (Zuniga).) We disagree.
The court adopted the probation report's recommended sentence of the middle term of four years. Both parties received copies of the probation report before sentencing. In fact, the court granted a continuance specifically so that Pearles and his counsel could have sufficient time to review and respond to the probation report and its recommendations. Both Pearles and the People called witnesses to testify at the hearing. Pearles submitted a statement in mitigation, and his attorney argued in favor of probation and opposed any prison term. After all witnesses testified and both Pearles's attorney and the prosecutor made their arguments, the court pronounced sentence. This concluded the hearing, and counsel made no further objections or arguments.
"In order to encourage prompt detection and correction of error... reviewing courts have required parties to raise certain issues at the time of sentencing. In such cases, lack of a timely and meaningful objection forfeits or waives the claim." (Peoplev. Scott (1994) 9 Cal.4th 331, 351 (Scott).) Defendants must be given a "meaningful opportunity to object" to the sentence. (Id. at p. 356.) "[A] meaningful opportunity to object means that the defendant be given the opportunity to address the court on the matter of sentence and to object to any sentence or condition thereof imposed by the court." (Zuniga, supra, 46 Cal.App.4th at p. 84.)
Here, Pearles did object to his sentence. Although he did not object after the court formally imposed the sentence, he objected at the hearing based on the probation report's recommendation. (Scott, supra, 9 Cal.4th 331 at p. 350.) Therefore, we will decide the issue on the merits.
II
DENIAL OF PROBATION
Pearles contends the court abused its discretion by denying his request for probation. He argues the court considered improper factors and failed to consider or properly weigh relevant factors. We disagree.
"All defendants are eligible for probation in the discretion of the sentencing court." (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) "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." (Ibid.; People v. Weaver (2007) 149 Cal.App.4th 1301, 1318.) Regarding a court's decision whether to grant or deny probation, California Rules of Court, Rule 4.414(a) provides in part:
Rule references are to the California Rules of Court.
"Criteria affecting the decision to grant or deny probation include facts relating to the crime and facts relating to the defendant. [¶] (a) Facts relating to the crime include: [¶] (1) the nature, seriousness, and circumstances of the crime as compared to other instances of the same crime [¶]... [¶] [and] (4) whether the defendant inflicted physical or emotional injury."
In deciding whether to grant or deny probation, the court may also consider additional criteria listed in the rules, provided that those criteria are reasonably related to that decision. (Rule 4.408(a).) The court is generally required to state its reasons for denying probation and imposing a prison sentence, including any additional reasons considered under Rule 4.408. (Pen. Code, § 1170 subd. (c); Rule 4.408(a).) Unless the record affirmatively shows otherwise, the court is deemed to have considered all relevant criteria in deciding whether to grant or deny probation. (Rule 4.409.)
At Pearles's sentencing, the court considered the probation report, the prosecutor's statement in aggravation, Pearles's statement in mitigation, and letters from, and testimonies of, family and friends of both Drake and Pearles. The probation report recommended the court deny probation and impose the middle term of four years. The prosecutor's statement in aggravation requested the court deny probation and impose the upper term of six years. Pearles's statement in mitigation requested the court grant him probation.
After hearing arguments of counsel, the court denied probation, stating:
"The thing that's most telling is that CHP estimated that... Mr. Pearles' speed was between 83 and 97 miles per hour when he came across the yellow lines. And to me that is very telling of his recklessness, and it's very telling of his disregard for others on that particular day. [¶]... He hit Alexandria, and there were others that were injured as well. And so this is a tragedy beyond one family and beyond one community. [¶] And so based on all that, I think I cannot in good conscience give him probation."
Pearles contends the court abused its discretion in considering his estimated speed at the time of the accident and failed to properly consider or weigh appropriate factors.
The court explicitly stated that it considered and relied on the recommendations of the probation report in its sentence choice, which included six factors supporting a grant of probation and two factors supporting a denial of probation. Factors in support of a grant of probation included Pearles's lack of criminal sophistication, his lack of a prior record, his willingness and ability to comply with the terms of probation, the potential negative effects incarceration would have on Pearles, and his remorse for the crime. The probation report also noted that the nature and circumstances of the crime and the fact that Pearles caused the death of Drake weighed heavily against probation. The probation report indicated that the factors supporting a denial of probation qualitatively outweighed factors supporting a grant of probation, and the court agreed.
The court properly considered Pearles's estimated speed at the time of the accident in finding that he drove recklessly and with a disregard for the safety of others. It also found that the nature and circumstances of this crime--driving between 28 and 42 miles per hour over the speed limit along a notoriously dangerous stretch of highway--were more severe than the circumstances of other incidents of gross vehicular manslaughter. (Rule 4.414(a)(1).) Further, the court properly considered the fact that the accident caused the death of one person and injured several others. (Rule 4.414(a)(4).) Although the probation report identified six factors in support of probation and only two in opposition the court was entitled to qualitatively weigh those factors when exercising its sentencing discretion. (Rule 4.408(a).) The trial court did not abuse its discretion in denying probation.
III
IMPOSITION OF MIDDLE FOUR-YEAR TERM
Pearles also contends the court abused its discretion in imposing the middle term of four years. He argues the court impermissibly considered the nature of the crime, and failed to consider appropriate factors.
The sentencing options available for a defendant convicted of gross vehicular manslaughter (Pen. Code, § 192, subd. (c)(1)) are prison terms of six, four, or two years, or probation. (Pen. Code, § 193, subd. (c)(1).) The six, four, or two-year terms are the "triad" of sentencing options available to the court in the absence of granting probation. In pronouncing sentence, the court is required to "select the term which, in the court's discretion, best serves the interests of justice" (Pen. Code, § 1170, subd. (b)), and "shall state the reasons for its sentence choice on the record at the time of sentencing." (Pen. Code, § 1170, subd. (c).)
The court has discretion in imposing one of three available sentencing options. (See Weaver, supra, 149 Cal.App.4th at p. 1325). We review the court's decision under the deferential "abuse of discretion" standard. (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) Under this standard, we do not reweigh sentencing factors or substitute our evaluation for that of the sentencing court. (Ibid.) "In reviewing for abuse of discretion... ' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' " (Id. at pp. 376-377, quoting People v. Superior Court(Alvarez) (1997) 14 Cal.4th 968, 977-978.)
Pearles argues that, because the court indicated at the time of his guilty plea that it would impose no more than the middle term of four years, the new possible upper term was four years, the new possible middle term was two years, and the new possible lower term was probation. Thus, he claims the court improperly imposed the upper term without sufficient aggravating factors to support it. Pearles asks us to evaluate the sentence imposed as if it were the upper term, rather than the middle term. We are aware of no support in either case law or statute that states that the triad of sentencing options changes when a court gives an indicated maximum sentence that is lower than the statutory maximum sentence, and Pearles provides us with none. Further, probation is an alternative to prison, not part of the triad of available terms. We will not entertain such an unsupported claim, and instead turn our focus to whether the court abused its discretion in imposing the four-year middle term.
The probation report on which the court relied listed all circumstances in aggravation and mitigation. Noting the circumstances in mitigation balanced those in aggravation, the report recommended the middle term. At sentencing, the court stated that it had considered the parties' arguments and the probation report's recommendations. After weighing the various factors, the court stated its reason for selecting the middle term: Pearles was driving extremely fast in heavy traffic along a dangerous road, which showed his recklessness and disregard for others on that day. We cannot and will not reweigh the various factors or substitute our judgment for that of the sentencing court.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O'ROURKE, J., AARON, J.