Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. 07-75888-02
Retired judge of the Superior Court of Marin County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Defendant Phoebe Jane Redfern pled guilty to two counts of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)), and one count of driving under the influence with injury (Veh. Code, § 23153, subd. (a)). She also admitted an allegation that she had proximately caused bodily injury during the commission of the offenses, within the meaning of Vehicle Code section 23558. She argues the sentencing court erred when it relied on several offense-specific factors in imposing the upper term for the principle vehicular manslaughter count. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On February 1, 2007, at approximately 11:00 a.m., defendant was driving a pickup truck on Highway 1 just south of Fort Bragg when she crossed into the opposing lane of traffic and headed toward a Toyota Tercel being driven by Ashley Vance. Ms. Vance tried to swerve out of the way, but defendant’s vehicle struck the right front side of the Tercel, causing it to spin around and roll over one and a half times, coming to rest on its roof. Sixteen-year-old Tenicia R. and 26-year-old Alexis Nilson, two of Ms. Vance’s passengers, were killed in the crash. Richard O’Coyne, Ms. Nilson’s husband, was seriously injured. Ms. Vance suffered relatively minor injuries.
Because defendant pled guilty, the facts are derived from the probation report, which the court read and considered before imposing sentence.
Defendant, an uninsured driver, was found to be at fault. Witnesses reported she had been driving in a reckless manner at a high rate of speed prior to the accident. Shortly before the collision, she had nearly side swiped another car by crossing into the opposing lane of traffic. When she was interviewed by law enforcement officers in the hospital, she appeared groggy and her speech was slow and slurred. A blood sample was obtained for analysis and she was subsequently booked into the county jail.
On February 5, 2007, a complaint was filed charging defendant with two counts of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)), one count of driving under the influence with injury (Veh. Code, § 23153, subd. (a)), and one count of driving with 0.08 percent or more blood alcohol with injury (Veh. Code, § 23153, subd. (b)). The complaint also contained three separate special allegations that defendant had proximately caused bodily injury during the commission of the offenses. (Veh. Code, § 23558.)
Penal Code section 191.5, subdivision (a), provides: “Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.”
On May 14, 2007, defendant pled guilty to both vehicular manslaughter counts, as well as to the charge of driving under the influence with injury. The “driving with high blood-alcohol level and causing injury” charge was dismissed. Defendant also admitted one of the three special allegations. Two of the special allegations were dismissed with Harvey waivers pursuant to the plea agreement. Defendant also signed a Blakely waiver.
People v. Harvey (1979) 25 Cal.3d 754.
Blakely v. Washington (2004) 542 U.S. 296.
The toxicological results of defendant’s blood sample tested negative for alcohol, but tested positive for the presence of temazepam (restoril), benzoylecgonine, lorazepam (ativan), theophylline, diazepam (valium), nordiazepam, cocaine, methamphetamine, oxazepam (serax), amphetamine, and morphine.
At the plea hearing held on May 14, 2007, defendant admitted to the following as the factual basis for the entry of her plea: “On February 1st of this year the defendant, while under the influence of a variety of substances including morphine, amphetamines, methamphetamine and cocaine, while driving in a negligent manner, crossed over State Route 1 in the area of Mendocino in her vehicle striking a vehicle in which Alexis Nilson was killed, Tenicia R. was killed, Ashley Vance was injured, and Richard O’Coyne was also injured.”
The probation officer’s report was filed on June 20, 2007. The officer noted the following aggravating factors: (1) the defendant had multiple intoxicating substances in her system when she chose to drive a motor vehicle, and (2) one of the deceased victims was a minor. As mitigating factors, the report cited: (1) that defendant had no prior criminal record, (2) that she suffers from severe polysubstance addiction, and (3) that she pled at an early stage in the criminal process. The officer recommended defendant be sentenced to the middle term of six years on the first vehicular manslaughter count, with consecutive terms for the other two counts totaling two years eight months, plus one year for the Vehicle Code section 23558 enhancement, for a total term of nine years eight months.
The report indicates that defendant has suffered from severe polysubstance abuse since the age of 15. Several months prior to the collision, she voluntarily entered a 28-day inpatient drug treatment program, but quickly relapsed upon her release. She described herself as having been “self-absorbed” and “suicidal” on the day of the accident. When asked by the probation officer why she didn’t pull over after almost colliding head-on with another vehicle a few moments prior to hitting the Tercel, she stated that she was so “out of it” that her brain “could not even understand the danger” she was causing. She admitted to daily abuse of vicodin, codeine, percocet, valium, and morphine, and stated that she had taken “pills” on the morning of the accident. She had also used cocaine the night before, and had used heroin 48 hours before the incident.
At the sentencing hearing held on June 20, 2007, the victims’ friends and relatives made unsworn statements to the court concerning the victims’ character and the impact the incident has had on them. Others submitted letters to the court concerning defendant’s good character. In a written statement, defendant took responsibility for her actions and pledged to complete her substance abuse program and perform community service if granted probation.
The trial court denied probation and sentenced defendant to twelve years eight months in state prison. The court imposed the upper term of ten years on the first vehicular manslaughter count, a consecutive two-year term on the second vehicular manslaughter count, and a consecutive term of eight months on the remaining count. The court struck the one admitted special allegation. This appeal followed.
DISCUSSION
A. Standard of Review
It is well established that sentencing courts have wide discretion in weighing aggravating and mitigating factors, and the court’s decision must be affirmed on appeal unless there is a clear showing that the sentence choice was arbitrary or irrational. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) Although a trial court’s discretion is broad, it must exercise its sentencing discretion in a manner 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.’ [Citation.]” (People v. Sandoval (2007) 41 Cal.4th 825, 847.) “The 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 legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.” (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.)
B. Overview of California’s Current Determinate Sentencing Law
Under California’s Determinate Sentencing Law (DSL), statutes defining most felony offenses prescribe three terms of imprisonment — a lower, middle, and upper term sentence. A violation of Penal Code section 191.5 is punishable by imprisonment in the state prison for four, six, or ten years. (Pen. Code, § 191.5, subd. (c).)
Although at the time of defendant’s crime, the DSL provided that “the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime,” (Stats. 2004, ch. 747, § 1) Senate Bill No. 40 amended Penal Code section 1170 so that (1) the middle term is no longer the presumptive term absent aggravating or mitigating facts found by the trial judge; and (2) a trial judge has the discretion to impose an upper, middle or lower term based on reasons he or she states. As amended, section 1170 now provides as pertinent: “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. . . . The court shall select the term which, in the court’s discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected . . . .” (§ 1170, subd. (b).) This amended version of section 1170 became effective on March 30, 2007. (Stats. 2007, ch. 3, § 2.) The trial court’s sentence, which was imposed on June 20, 2007, followed these directives.
In People v. Sandoval, supra, 41 Cal.4th 825, the Supreme Court stated that it was “arguable” whether the amendments to the DSL are procedural in nature and therefore applicable to any sentencing proceedings conducted after the effective date of the amendments. (Id. at p. 845.) However, instead of deciding this question, the court invoked its own discretionary power to modify procedural laws to conform to constitutional principles and did so consistent with the terms enacted by Senate Bill No. 40. (Sandoval, supra, at pp. 845–846.) In so doing, the court found application of the procedural terms of Senate Bill No. 40 to resentencing procedures for crimes committed before its passage violates no principle of ex post facto protection. (Sandoval, supra, at p. 855.) It further found that application of those modified procedures to the defendant’s crimes does not violate due process. (Id. at pp. 856–857.)
C. Waiver
The Attorney General claims that defendant failed to preserve the sentencing issue for appeal by not raising any objection to the trial court’s articulated reasons for selecting the upper term. To encourage the “careful exercise of discretion” and to decrease “the risk of error,” trial courts are required to articulate their reasons for discretionary sentencing choices on the record. (People v. Scott (1994) 9 Cal.4th 331, 351.) “In order to encourage prompt detection and correction of error, and to reduce the number of unnecessary appellate claims, 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.” (Ibid.) This forfeiture rule applies to claims involving a trial court’s failure to state or give sufficient reasons for discretionary sentencing choices. (Id. at p. 353.)
Defendant argues that her trial attorney’s failure to challenge her sentence amounted to ineffective assistance of counsel, thereby excusing any waiver of her rights. The Attorney General counters that a claim of ineffective assistance does not revive a claim of error; rather “it states an independent ground for relief.” We are not persuaded that counsel rendered ineffective assistance.
“To establish constitutionally inadequate representation, a defendant must show that (1) counsel’s representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel’s representation subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant.” (People v. Mitcham (1992) 1 Cal.4th 1027, 1057–1058; Strickland v. Washington (1984) 466 U.S. 668, 687–696.) Our Supreme Court has stated “An attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffective assistance of counsel.” (People v. Kelly (1992) 1 Cal.4th 495, 540, citing People v. Frierson (1991) 53 Cal.3d 730, 747.) Moreover, “the reasonable assumption that such objections would be overruled” constitutes a rational tactical basis for failing to object. (People v. Samayoa (1997) 15 Cal.4th 795, 848.)
Defendant’s trial attorney submitted a statement in mitigation and argued for a grant of five years of formal probation. He cited as a mitigating factor that she had no prior criminal record or history of accidents, and he noted her recent progress in drug treatment programs. Defendant does not contend that her attorney’s presentation was deficient. The court indicated it had read both the probation report and defendant’s statement in mitigation, observing “there was a lot of consideration that went into the recommendation [in the probation report] and I thought it was well-reasoned.” As noted above, the probation officer recommended that defendant be sentenced to the middle term, not the upper term. Because the court had fully considered all of the relevant facts, it would have been reasonable for defendant’s attorney to assume that any objection to the imposition of the upper term would be futile. Thus, we conclude defendant’s attorney did not render ineffective assistance.
After the court stated its reasoning and pronounced the sentence, it asked, “Is there anything further in this matter at this time?” We conclude that, having raised no specific objection, defendant forfeited her right to contest the adequacy of the reasons stated by the court for its selection of the upper term. Notwithstanding the foregoing, we elect to exercise our discretion and proceed to evaluate the merits of defendant’s claim. (See People v. Williams (1998) 17 Cal.4th 148, 161–162, fn. 6.)
D. Imposition of the Upper Term
Under California Rules of Court, rule 4.408(a), when sentencing a defendant a trial court may consider “additional criteria reasonably related to the decision being made” along with the specific aggravating circumstances set forth in rule 4.421. In sentencing defendant to the upper term on the principle vehicular manslaughter count, the court stated: “Considering the circumstances in aggravation and mitigation, the probation report points out there were multiple intoxicating substances found in her system and, as I stated, she made a choice to drive. It’s also pointed out that one of the victims that was killed in this particular matter was 16 years of age. [¶] In mitigation, it’s noted that the defendant has no prior history and there was an early plea in this particular case. It’s suggested that the defendant suffers from severe polysubstance addiction, and I do not disagree, but I do not consider that a mitigating factor under the circumstances of this particular case.” Defendant raises several challenges to the court’s reasoning.
1. Multiple Substance Abuse
Before imposing the upper term on the vehicular manslaughter count, the trial court stated: “On the date in question, some [sic] of the circumstances that stand out is that [defendant] was driving under the influence of multiple illegal and legal substances.” Defendant claims the court accorded improper significance to the presence of multiple intoxicating substances in her system. We disagree.
We first observe that the crime of gross vehicular manslaughter while intoxicated can be committed by a person who is under the influence of a single substance only. It can also be committed in the absence of any illegal substances. The fact that many of the substances detected in defendant’s body, such as heroin, cocaine, and methamphetamine, are illegal does, in our view, add a further degree of reprehensibility to the crime. While defendant had no documented criminal history, she admitted to having engaged in unlawful activity with respect to her possession and ingestion of these illegal substances. Further, the consumption of a variety of substances, including drugs designed to enhance the intoxicating effects of other drugs, demonstrates that defendant had made a deliberate effort to achieve a state of intoxication.
Vehicle Code section 23153, subdivision (a), provides: “It is unlawful for any person, while under the influence of any . . . drug . . . to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person another than the driver.”
Defendant next claims the probation report misstates the facts with regard to her intoxication, claiming the report suggests that she had ingested nine different substances when, in fact, some of the substances in her system were merely metabolites (by-products) of other substances. Defendant’s objection is not well taken.
The probation report states that nine substances were “in her system” when she decided to drive, not that she had taken nine different substances. Moreover, the toxicology report, which was included as an exhibit, clearly identifies which of the substances were metabolites. Further, defendant admits that even after accounting for the metabolites, the report establishes she had purposefully ingested at least four different substances before she drove, including methamphetamine, diazepam, cocaine, and lorazepam. While she claims that “the mere presence of a number [of] compounds in [her] system did not necessarily contribute to the accident she caused,” we note that as a factual basis for her plea she admitted to being “under the influence of a variety of substances including morphine, amphetamines, methamphetamine, and cocaine.”
According to the toxicology report, there were actually 11 drugs and metabolites in defendant’s system.
Finally, defendant refers us to several Internet references for the proposition that the effects of many of these drugs would have worn off by the time of the accident. We note defendant has not asked us to take judicial notice of these sources and, in any event, we decline to consider these materials as they were not placed before the trial court. The finding that defendant was under the influence of multiple substances is supported by her own statements, and is corroborated by the toxicology report. In sum, we find the trial court did not abuse its discretion in deeming the presence of multiple intoxicating substances to be an aggravating factor.
2. Decision to Continue Driving After Near Miss
Defendant argues that the trial court erred in relying on the fact that she “made a choice to drive” as a factor in aggravation. She claims that in doing so the court improperly used an element of the offense to aggravate her sentence. We disagree.
It is established law that a court may not “use a fact constituting an element of the offense either to aggravate or to enhance a sentence.” (People v. Scott, supra, 9 Cal.4th 331, 350.) While it is true that the crime could not have been committed without defendant having first made a decision to operate a motor vehicle, we do not believe the trial court was referring solely to defendant’s initial decision to drive. Rather, the court was referring to the fact that she chose not to stop driving even after she had veered into the opposing lane of traffic and nearly side swiped another vehicle just before the fatal accident occurred. The court stated: “It was also noted in the body of the probation report that while she was driving, she apparently was not only driving reckless, but she had a near accident prior to the fatal accident that was involved in this case.” The court further stated that the finding of gross negligence was “somewhat enhanced” in that defendant had experienced a “near collision caused because of [her] driving recklessly and [her] decision to continue to proceed down the roadway.”
Defendant claims that her failure to pull over after the “near miss” may not properly be used as an aggravating factor because her failure to stop “was the result of the same intoxication that gave rise to the accident at issue here” as “the law envisions that to be guilty of driving under the influence of drugs, the defendant must [sic] suffering from impairment of [her] faculties.” She thus characterizes her failure to cease driving as a mere “artifact of her intoxication.” While clearly defendant’s ability to drive was impaired insofar as she was unable to avoid drifting into the opposing lane of traffic, her decision to refrain from pulling over after the near miss did not implicate her capacity, or lack thereof, to operate the vehicle itself. Thus, her failure to stop after the near miss does not constitute an element of the offense.
Defendant also contends there was no evidence that she had enough time to pull over after her near miss. However, when asked by the probation officer why she did not pull over, she did not claim that she did not have enough time to do so. Instead, she reportedly stated: “ ‘I don’t know why I didn’t (pull over). I was so out of it, I don’t think my brain could even understand the danger I was causing.’ ” The officer’s report notes: “It is unfortunate that [defendant] did not pull over and stop driving after barely avoiding a head-on collision just moments prior to this offense; if she had, this tragedy could have been avoided.” This statement clearly implies that defendant had enough time to pull over. We find the court did not err in relying on this factor to enhance defendant’s sentence.
3. Age of Victim Tenicia R.
Defendant contends that the trial court improperly considered Tenicia R.’s age as an aggravating factor. In the context of sentencing, “a ‘particularly vulnerable’ victim is one who is vulnerable ‘in a special or unusual degree, to an extent greater than in other cases. . . .’ [Citation.]” (People v. Bloom (1983) 142 Cal.App.3d 310, 321.) Historically, the rule has been applied only to intentional crimes, such as violent felonies, where the defendant commits an “especially contemptible” act by exploiting the age or physical infirmities of the victim, or takes advantage of the victim’s particular circumstances. (People v. Piceno (1987) 195 Cal.App.3d 1353, 1357–1358.) Because felony driving under the influence presupposes an entirely innocent and unsuspecting victim, “The element of vulnerability is inherent in the very crime of vehicular manslaughter caused by a driver under the influence . . ., and to use that factor to aggravate the term is improper, absent ‘extraordinary’ circumstances.” (Id. at p. 1358.) As Bloom explains, “There are few individuals as ‘defenseless, unguarded, unprotected, accessible, assailable and susceptible’ as those who have the misfortune of being in the wrong place at the wrong time when a drunk driver takes to the road. All victims of drunk drivers are ‘vulnerable victims,’ but it is precisely because they are all vulnerable that [the victim] cannot be considered to be vulnerable ‘in a special or unusual degree, to an extent greater than in other cases.’ [Citation.]” (Bloom, supra, at p. 322.)
The court in People v. Weaver (2007) 149 Cal.App.4th 1301 (Weaver), deviated from the reasoning of the above cases and concluded substantial evidence supported a finding the victims in a gross vehicular manslaughter by an intoxicated driver were particularly vulnerable. (Id. at pp. 1315–1316.) The court rejected the notion that the usual victim of gross vehicular manslaughter has no advance warning or ability to avoid a collision with the defendant’s car, explaining “one can envision many situations involving gross vehicular manslaughter . . . in which the victim has at least some advance notice or warning of the imminent risk posed by the defendant’s car that allows him or her at least some opportunity to attempt to avoid the collision. Those victims presumably should be considered less vulnerable . . . .” (Id. at p. 1321.)
Because all motorists are peculiarly vulnerable to intoxicated drivers who recklessly violate the rules of the road, we question the claim that courts may make meaningful distinctions in trying to parse the degree of vulnerability among the victims of gross vehicular manslaughter. In any event, Weaver, unlike our case, did not involve a victim who happened to be a minor. Regardless, we need not resolve the issue here because any such conceivable error was harmless. “ ‘When 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. [Citation.]’ ” (Weaver, supra, 149 Cal.App.4th 1301, 1325, quoting People v. Price (1991) 1 Cal.4th 324, 492.) As discussed above, the trial court’s reliance on defendant’s consumption of multiple intoxicating substances as well as her failure to pull over after the near miss both support the imposition of the aggravated term. (People v. Osband (1996) 13 Cal.4th 622, 728 [“Only a single aggravating factor is required to impose the upper term . . . .”].)
While we are inclined to agree with defendant’s argument, we are troubled by the inclusion of a footnote in her brief citing us to a newspaper article allegedly reporting that two of the victims in this case (neither of them the driver), including one who died, had been arrested on multiple charges two months before the crash. She has not asked that we take judicial notice of this article, the content of which appears to us to be inflammatory and inappropriate under the circumstances of this case.
4. Defendant’s Substance Abuse Was Not A Mitigating Factor
We also conclude that under the facts presented here the court was not required to find that defendant’s substance addiction was a mitigating factor. California Rules of Court, rule 4.423(a)(4) specifies as a mitigating factor that, “The defendant participated in the crime under circumstances of coercion or duress, or the criminal conduct was partially excusable for some other reason not amounting to a defense . . . .” Rule 4.423(b)(2) recognizes the additional mitigating factor that the “defendant was suffering from a mental or physical condition that significantly reduced culpability for the crime . . . .”
Sentencing error may be found where the record affirmatively shows the court failed to contemplate addiction as a mitigating factor under circumstances that clearly demonstrated excuse or reduced culpability, or improperly referred to addiction as an aggravating factor. (See People v. Reid (1982) 133 Cal.App.3d 354, 370; People v. Simpson (1979) 90 Cal.App.3d 919, 926–927.) In the present case, the court was familiar with the reference in the probation report to defendant’s addiction. The condition was apparently a long-standing one that she did not deal with effectively before the offenses were committed. This circumstance, combined with the facts of the case, particularly the amount of legal as well as illegal substances in her system, support the court’s conclusion that defendant’s addiction did not excuse the crimes.
DISPOSITION
The judgment is affirmed.
We concur: Marchiano, P. J., Margulies, J.