Opinion
G037339
5-17-2007
THE PEOPLE, Plaintiff and Respondent, v. NELSON ADAN RIVAS, Defendant and Appellant.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Charles Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
INTRODUCTION
While intoxicated, Nelson Adan Rivas drove his pickup truck through a red light and slammed into a motorcycle ridden by Scott Morehouse. Leaving Morehouse injured on the pavement, Rivas fled the accident scene in his truck at speeds approaching 100 miles per hour. Two witnesses pursued Rivas and managed to catch and detain him until the police arrived. Morehouse suffered severe physical and emotional injuries and incurred half a million dollars in medical bills.
A jury convicted Rivas of one count of felony driving under the influence and causing bodily injury (count 1) (Veh. Code, § 23153, subd. (a)), one count of felony driving with a blood alcohol content of 0.08 percent or more and causing bodily injury (count 2) (id., § 23153, subd. (b)), one count of felony hit and run with injury (count 3) (id., § 20001, subd. (a) & (b)(2)), and one count of misdemeanor driving without a valid license (count 4) (id., § 12500, subd. (a)). The jury found true the great bodily injury enhancements (Pen. Code, § 12022.7, subd. (a)) alleged as to the first two counts.
The trial court denied probation and sentenced Rivas to a total of three years eight months in prison. The court sentenced Rivas to the middle term of three years under count 3 and imposed an eight-month consecutive term under count 2. The court stayed imposition of sentence under count 1 pursuant to Penal Code section 654 and suspended sentence on count 4.
Rivas contends the trial court erred by relying on elements of the offenses to deny him probation. We strongly disagree. The trial courts reasons, stated at length on the record, were permissible and fully supported the decision to deny probation. We therefore affirm.
FACTS
On September 10, 2005 about 7:20 p.m., Rivas drove his truck through a red light at the intersection of Fairview and First Streets in Santa Ana and slammed into a motorcycle ridden by Morehouse. The light for the motorcycle had been green for two seconds before Rivas drove through the intersection.
After hitting the motorcycle, Rivas backed up the truck, then drove forward around the motorcycle and fled. Morehouse was left on the pavement severely injured.
Aaron Brown and Cory Donahue were driving their respective cars northbound on Fairview Street and stopped at a red light at the First Street intersection. As they waited for the light to turn green, they saw Rivas drive through the red light, hit Morehouse, and flee. Brown and Donahue pursued Rivas as he sped down First Street at speeds reaching 100 miles per hour. At the corner of North Raitt and Fifth Streets, Brown and Donahue were able to box in Rivass truck with their cars. As Brown walked to the front door of Rivass truck, Rivas got out and started to walk away. Brown restrained Rivas, but he struggled to get free. Rivas behaved as though he were drunk, and Brown could smell alcohol on his breath.
Police officers arrived about five minutes later. The officers noticed that Rivass eyes were watery and bloodshot and he smelled of alcohol. Rivas waived his rights under Miranda v. Arizona (1966) 384 U.S. 436 and admitted he was involved in the accident at Fairview and First Streets. He had no explanation for leaving the accident scene but claimed he intended to stop elsewhere. He told the officers he had drunk two 12-ounce beers earlier that evening. A license check disclosed Rivas was carrying a suspended Massachusetts drivers license. Field sobriety tests showed that Rivas had been driving under the influence of alcohol.
The officers arrested Rivas and transported him to the county jail. A blood sample was taken from him, and a blood alcohol test showed a 0.108 percent blood alcohol level. The forensic scientist who performed the test estimated that Rivas had a blood alcohol level of between 0.09 percent and 0.13 percent at the time of the accident. Based on the time that transpired between the beer consumption and the accident, the forensic scientist calculated that a man of Rivass height and weight would have had to drink about seven 12-ounce beers to have a blood alcohol level of 0.108 percent.
Electronic strips in the roadway at the intersection of Fairview and First Streets trigger cameras to take digital still photographs or video when a vehicle enters the intersection at 15 miles per hour or more when the light is red. On the evening of the accident, still photographs triggered by the electronic strips showed a black pickup truck crossed the intersection limit line at 26 miles per hour 1.96 seconds after the light had turned red. The pickup truck was therefore about 75 feet from the limit line when the light turned red.
Morehouse suffered multiple severe fractures to his left leg, thigh, and hip, all requiring extensive surgery. He also suffered a torn aorta, a life-threatening condition requiring more surgery. His prognosis is poor, and he has "next to no percent chance of a full recovery." Morehouse will always walk with a limp and most likely will require full knee replacement and hip replacement. He no longer can surf, ski, or play racquetball, activities he once enjoyed. While Morehouse still can work as a teachers aide for autistic children, a job he has held for over 23 years, he no longer can participate in physical activities with his students.
The probation officer reported that Rivas "inflicted serious physical and emotional injury on the victim," for whose well-being Rivas "displayed no concern," and that Rivas "attempted to blame the victim for proceeding without caution" through the intersection. The probation officer nevertheless concluded Rivass actions "appear to be an isolated incident as a result of his immaturity and level of intoxication," and recommended jail time and probation due to Rivass age, lack of a prior record, and what the probation officer perceived to be remorse.
At the sentencing hearing, the trial court expressed surprise that the probation officer recommended probation "on a case of this magnitude." The court described the probation report as "way out of bounds" and "not even close to reality."
The court considered Rivass lack of a prior record, but denied probation, stating: "Here are some factors that I also looked at in my assessment of why I should deny him probation. One, he chose to drive a vehicle while legally intoxicated. No one put a gun to his head, no one forced him to drive. He went out drinking. He was out with his buddies and then . . . he got into the vehicle and started to drive. [¶] Factor two, when he approaches that intersection . . . . [H]e went through the intersection and turned when he did not have the right of way, the motorcyclist did. . . . [¶] The bottom line is he was intoxicated. And . . . you dont have to be a rocket scientist to figure out that if youre intoxicated, your judgment level goes down. . . . So he went through a signal in an improper manner. [¶] Factor three, which certainly doesnt help him, he didnt display too much concern for Mr. Morehouse after the collision. The D.A. is right, after the collision, there was a momentary pause and then the defendant took off. He never got out of his car, he never sought help. And he left the victim lying in the street, not a good thing when we assess whether he should get probation. [¶] And again, probably the most significant thing which removes this case from local time treatment are the injuries, okay? Theres no way to sugarcoat the injuries, the injuries are bad. The injuries are bad. And its surprising to me that Mr. Morehouse survived. I mean, he is one lucky person. Physical injury, emotional injury, and more importantly, permanent injury."
DISCUSSION
Granting probation is "`an act of clemency which rests within the discretion of the trial court, whose order granting or denying probation will not be disturbed on appeal unless there has been an abuse of discretion." (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) The trial court has broad discretion in evaluating the factors in aggravation and mitigation in determining whether a defendant is suitable for probation. (People v. Lai (2006) 138 Cal.App.4th 1227, 1256.) To establish abuse of discretion, the defendant must show the denial of probation was arbitrary or capricious under the circumstances. (Id. at p. 1257.)
Citing People v. Bowen (1992) 11 Cal.App.4th 102, Rivas argues the trial court abused its discretion by denying him probation based on facts that were elements of the offenses of which he was convicted. The defendant in Bowen pleaded guilty to driving while under the influence and admitted three prior convictions for alcohol-related driving offenses, making him subject to imprisonment. (Id. at p. 103.) The trial court denied him probation for several reasons, including the prior convictions. (Id. at pp. 104-105.) The Court of Appeal rejected the defendants assertion the prohibition against dual use of facts precluded the trial court from relying on prior convictions to deny probation. The court concluded, "the prior convictions were not an element of the offense and it was therefore permissible to rely on them in denying probation." (Id. at p. 106.)
Here, Rivas argues, the factors relied on by the trial court (e.g., driving while intoxicated, great bodily injury) were elements of the offenses and therefore it was impermissible to rely on them in denying probation. We question the validity of this arguments legal premise. Dual use of facts is expressly prohibited in some circumstances; for example, the court may not impose an upper term by using a fact that either is an element of the offense (Cal. Rules of Court, rule 4.420(d)) or is the basis for any enhancement (Pen. Code, § 1170, subd. (b)). There is no express prohibition, however, on using a fact that is an element of the offense to deny probation. Since granting probation is an act of clemency, not a matter of right, using a fact constituting an element to deny probation is not a "dual use," as is using the fact to impose an upper sentence. Further, if Rivass argument were correct, then probation would be a right, rather than a matter of discretion, in those cases where there are no circumstances in aggravation that are not part of an element of the offense.
We need not resolve the issue. In deciding whether to grant probation, the trial court may consider "[t]he nature, seriousness, and circumstances of the crime as compared to other instances of the same crime" (Cal. Rules of Court, rule 4.414(a)(1)), "[w]hether the defendant inflicted physical or emotional injury" (id., rule 4.414(a)(4), italics added), and "[w]hether the defendant is remorseful" (id., rule 4.414(b)(7)). The trial court found the nature and seriousness of the crimes were worse then other instances of the same crime because Morehouse suffered severe, debilitating, and permanent injuries. The court also found that Rivas inflicted emotional injury and showed no remorse.
While infliction of bodily injury is an element of a violation of Vehicle Code section 23153, infliction of great bodily injury and infliction of emotional injury are not. Thus, the trial court did not engage in dual use of facts by denying probation based on the emotional injury Morehouse suffered and on the severity of Morehouses physical injuries.
Although the act of fleeing from an accident is an element of a Vehicle Code section 20001 violation, Rivas showed no remorse at any point. He was not remorseful when taken into custody. The only vaguely remorseful statement he made to the probation officer was "`I wouldnt have gone through it if Id known it would have caused an accident." In fact, Rivas tried to pin the blame for the accident on Morehouse. Rivas told the probation officer that Morehouse saw him enter the intersection, "but `just took off." Rivas complained, "`[y]ou know how motorcycle drivers are. They want to get ahead of everyone else." Even on appeal, Rivas fails to show remorse, and asserts his blood alcohol level at the time (about 0.10 percent) was "borderline." The probation officer inexplicably concluded, "[t]he defendant expressed remorse for his actions." The record shows, to the contrary, that Rivas showed no remorse whatsoever.
Any one of the circumstances identified by the trial court justified denying Rivas probation. In addition, the trial court could consider "[t]he degree of monetary loss to the victim." (Cal. Rules of Court, rule 4.414(a)(5).) The probation officer reported Morehouse suffered lost wages and incurred medical expenses estimated to exceed $500,000, only part of which is covered by insurance.
Rivas emphasizes the probation officers recommendation to grant probation. The trial court read and considered the probation report, and had discretion to reject all or part of it. (People v. Llamas (1998) 67 Cal.App.4th 35, 40.) There were factors in mitigation, such as Rivass lack of a criminal record. "However, even if there were several mitigating factors that might weigh in favor of probation, this does not necessarily mean that the trial court abused its discretion in deciding against granting probation." (People v. Ramirez (2006) 143 Cal.App.4th 1512, 1530-1531.)
The trial court did not act arbitrarily or capriciously in denying Rivas probation. Rather, we conclude, the trial court made the only rational decision possible by denying probation and sentencing Rivas to prison.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
IKOLA, J.