Opinion
A128651 A130259
10-25-2011
THE PEOPLE, Plaintiff and Respondent, v. JUDY EILEEN SHAFER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County Super. Ct. No. SCR-570924)
Defendant pleaded guilty to gross vehicular manslaughter while intoxicated after she crossed over the center line and drove into another car, killing its driver and severely injuring a passenger. Investigation revealed defendant's blood alcohol content was twice the legal limit, and witnesses reported her driving prior to the accident was unusually reckless. Defendant contends the trial court erred in imposing an upper term sentence. Finding no abuse of discretion, we affirm.
I. BACKGROUND
Defendant was charged in an information, filed January 19, 2010, with gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)) and two counts of causing injury while driving under the influence and committing an illegal act, pleaded separately under subdivisions (a) and (b) of Vehicle Code section 23153. As to the manslaughter count, the information alleged as enhancements that defendant had inflicted great bodily injury and had injured more than one person. (Pen. Code, §§ 667.5, subd. (c)(8), 1192.7, subd. (c)(8), 12022.7, subd. (a); Veh. Code, § 23558.) Each of the two remaining counts alleged as enhancements infliction of great bodily injury on two persons (Pen. Code, §§ 667.5, subd. (c)(8), 1192.7, subd. (c)(8), 12022.7, subd. (a)), injuring more than one person (Veh. Code, § 23558), and having a blood alcohol content in excess of .15 percent (Veh. Code, § 23578). Defendant entered an open plea of guilty to all three counts and admitted all enhancement allegations.
The probation report indicated defendant was driving in excess of 70 miles an hour in a zone with a posted limit of 50. Coming around a curve, she drove over the center line and collided with an oncoming car. The driver of that car was killed, and a passenger, the driver's teenage daughter, received serious injuries. Defendant was later found to have a blood alcohol level of at least .168 percent and traces of four different prescription medicines in her blood, including codeine.
The probation report reflected an extensive investigation of the circumstances of the accident, including interviews with defendant, several of her family members and acquaintances, and others. Witnesses noted the extraordinary recklessness of defendant's driving. The driver of a car defendant had passed on the two-lane road shortly before the collision estimated defendant was traveling 80 to 90 miles per hour and did not have complete control of her car. Others confirmed defendant was traveling at an excessive rate of speed and crossed over a double-yellow center line.
Family members reported that defendant had abused legal and illegal drugs and consumed alcohol in excess from at least 1982. They related several anecdotes reflecting defendant's long-term drug abuse and irresponsible and manipulative conduct, including entangling her two daughters in drug abuse. Defendant had four convictions between 1998 and 2003 for shoplifting and fraudulent use of medical prescriptions, and violated her probation on at least two occasions. For the five years prior to the accident, she had not held a regular job. At the time of the accident, defendant was reported to be a regular heavy drinker who commonly drove while intoxicated.
Although remorseful for causing a death, defendant maintained that, in effect, she was not at fault. She denied speeding and claimed her careless driving was the result of harassing conduct by a vehicle pursuing hers, an account not supported by witnesses, and emotional stress. She insisted she had consumed only a small amount of alcohol prior to the accident, an account belied by the high level in her blood, and refused to acknowledge the apparent role of alcohol in causing the crash. She denied having "problems" with alcohol or being an alcoholic. While defendant acknowledged taking a single pill of Valium to help her sleep the night before the accident, she denied being addicted to prescription medicine at any time in the last eight years. Again, her claim to have used only Valium in the period preceding the accident was contradicted by the presence of several different medications in her blood.
Defendant was sentenced to 13 years in prison, based on a 10-year upper term on the charge of gross vehicular manslaughter while intoxicated and a 3-year enhancement for infliction of great bodily injury. The court imposed and stayed sentences under the remaining counts and enhancements. In explaining its imposition of the upper term, the court noted, "under California Rules of Court 4.421(a)(1), the crime involved . . . great violence, great bodily harm, and other acts disclosing a high degree of cruelty, viciousness and callousness. [¶] And under [rule 4.421(a)(3)], the victims in this case were particularly vulnerable. [¶] Under [rule 4.421(b)(1)], the Court notes that the defendant has engaged in violent conduct which indicates that she's a serious danger to society. [¶] I also note that her misdemeanor convictions as an adult are numerous and that her prior performance on probation was unsatisfactory in at least two cases and the Court has taken into account the admission to a violation of Vehicle Code section 23578 and the high blood alcohol content in this particular case."
In response to a motion by defendant, the court recalled and reconsidered its sentence. (Pen. Code, § 1170, subd. (d).) After hearing extensive oral argument and statements by those involved, the court again imposed the upper term. In explanation, the court noted, "I'm more comfortable with the fact that I think this is an aggravated case than I was at the time of pronouncement of my original sentence . . . . I've heard nothing that indicates to me that there's [a] disparity in the sentencing in this case as opposed to the other cases that have occurred within this county or outside of this county. . . . [¶] It appears to the Court that the intentional actions of [defendant] resulted in a situation in which she was then so intoxicated that while she was on the roads here in Sonoma County she exercised extremely poor judgment resulting in an accident. And I think the estimates range between about sixty-five and eighty-five or ninety miles per hour of her vehicle versus the other vehicle in which the victims were riding. And it's that egregious conduct that I'm so familiar with in this case that persuades me to think that even though the count is founded on gross negligence, that the Court can take into consideration the entire situation, which I have in this case based on the record before me." The court then reiterated the grounds for sentencing listed at the original sentencing.
II. DISCUSSION
Defendant contends the trial court abused its discretion in imposing sentence by relying on great bodily harm, victim vulnerability, danger to society, and defendant's excessive blood alcohol level as aggravating factors.
Following the Supreme Court's decision in Cunningham v. California (2007) 549 U.S. 270, the Legislature modified California's determinate sentencing law by amending Penal Code section 1170, subdivision (b). (People v. Black (2007) 41 Cal.4th 799, 809, fn. 2.) Under amended section 1170, "trial courts now have the discretion . . . to select among the lower, middle, and upper terms specified by statute without stating ultimate facts deemed to be aggravating or mitigating under the circumstances and without weighing aggravating and mitigating circumstances. [Citation.] Rather, 'a trial court is free to base an upper term sentence upon any aggravating circumstance that the court deems significant, subject to specific prohibitions.' " (People v. Jones (2009) 178 Cal.App.4th 853, 866.)
While the trial court has "broad" discretion to select among the three potential sentences, we continue to review the trial court's decision for abuse of that discretion, which "must be exercised in a manner that is not arbitrary and capricious, 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.] As under the former scheme, a trial court will abuse its discretion under the amended scheme if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision." (People v. Sandoval (2007) 41 Cal.4th 825, 847.)
Trial courts are not restricted to the aggravating factors listed in the California Rules of Court, but it remains true that an aggravating circumstance must be one "that makes the offense 'distinctively worse than the ordinary' " and "makes [the defendant] deserving of punishment more severe than that merited for other offenders in the same category." (People v. Black, supra, 41 Cal.4th at p. 817.) Further, the "dual use" rule continues to apply. The trial court cannot use an element of the crime or a fact found as an enhancement as a factor in aggravation. (People v. Moberly (2009) 176 Cal.App.4th 1191, 1197.)
Defendant first contends the trial court erred in relying on "great bodily harm" as a factor in aggravation. We agree the court would have erred in relying on this factor in isolation, since the driver's death was an element of gross vehicular manslaughter and the passenger's injury was the basis for the three-year sentence enhancement. (See, e.g., People v. Piceno (1987) 195 Cal.App.3d 1353, 1357.) The court's remarks demonstrate, however, that it did not do so. During sentencing, the trial court mentioned "great bodily injury" primarily in the course of quoting rule 4.421(a)(1) of the California Rules of Court, which states: "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." Its comments show that, rather than relying exclusively or even partially on the infliction of great bodily injury in imposing sentence, it relied more generally on rule 4.421(a)(1)'s requirement that the crime "involved . . . a high degree of cruelty, viciousness, or callousness," of which the infliction of great bodily injury is only one possible indicator. As the court noted, it was "tak[ing] into consideration the entire situation."
We have no difficulty concluding this particular crime evidenced "a high degree of . . . callousness." Defendant consumed an amount of alcohol sufficient to raise her blood alcohol level to more than twice the legal limit, irresponsibly mixed with the prescription drugs she had taken at some earlier time. This level of consumption self-evidently guaranteed her judgment and physical ability to control her car would be seriously impaired. She then took the wheel, driving in a manner virtually calculated to cause a severe accident. As the court noted, defendant traveled at 65 to 90 miles per hour, a lethal speed on a road designed for two lanes of traffic and a maximum speed of 50 miles per hour. She drove in the oncoming traffic lane even before encountering the victim's car, passing a slower car at a ferocious pace. Given the presence of early evening traffic on the road, defendant's conduct created the near certainty an accident would occur and the strong likelihood the accident would cause serious injury. (See People v. Castorena (1996) 51 Cal.App.4th 558, 562-563 (Castorena) [particularly egregious drunk driving can support aggravated term for gross vehicular manslaughter].)
Defendant contends the extraordinarily reckless manner in which she drove cannot be considered a factor in aggravation because gross vehicular manslaughter requires an act of "gross negligence." (Pen. Code, § 191.5, subd. (a); e.g., People v. Bennett (1991) 54 Cal.3d 1032, 1036 [violation of section 191.5 requires negligence sufficient to create "a presumption of conscious indifference to the consequences"].) As noted in Castorena, however, when the evidence exceeds the degree of recklessness necessary to demonstrate gross negligence, edging into implied malice, imposition of the upper term is permissible. (Castorena, supra, 51 Cal.App.4th at p. 562.) To accept defendant's argument would essentially preclude imposition of the aggravated term for gross vehicular manslaughter, even in the most egregious circumstances. (Id. at p. 563.) The trial court did not abuse its discretion in finding sufficiently egregious circumstances to constitute a factor in aggravation.
We need not decide whether, as in Castorena, this factor alone was sufficient to support imposition of the upper term sentence, since, as discussed below, the court cited additional valid aggravating factors.
Defendant also contends the trial court erred in citing the high level of alcohol in her blood. Because having an exceedingly high level of alcohol is an element of the gross negligence necessary for a violation of Penal Code section 191.5, defendant argues, it cannot also be considered as a factor in aggravation. We find no legal basis for the argument. Penal Code section 191.5 itself requires only a violation of Vehicle Code sections 23152 or 23153, which establish the legal minimum of .08 percent blood alcohol level. A blood alcohol level well in excess of this amount can therefore be considered a factor in aggravation. While it is true, as defendant contends, an excessive level of alcohol can contribute to a defendant's commission of an act of gross negligence, it is neither necessary nor sufficient to create gross negligence. As the statutory requirement of .08 percent blood alcohol suggests, persons who merely meet the statutory minimum for intoxication can and do commit acts of gross negligence. To consider an excessive level of alcohol as an aggravating factor therefore does not violate the dual use rule.
We also reject defendant's argument the trial court could not rely on the danger she presents to society as an aggravating factor. It is defendant's steadfast refusal to accept responsibility for her conduct that persuades us. Even months after the accident, she denied having consumed excess alcohol, denied her consumption of alcohol had affected her driving or her judgment, denied having a problem with either drugs or alcohol, and blamed her reckless conduct on a phantom following driver. Because defendant refused to recognize the connection between her conduct and its consequences, there was no reason to believe the same or similar conduct would not be repeated the next time she had an opportunity to drink and drive. Unquestionably defendant represented a danger to society when she stepped into her car the day of the accident. Given her refusal to acknowledge the nature of her conduct, she presented precisely the same danger at the time of sentencing. The trial court did not abuse its discretion in treating this threat as a factor in aggravation.
Despite consistently denying consuming excess alcohol in her interviews with police and the probation department, defendant admitted a sentencing enhancement under Vehicle Code section 23578, which requires a blood alcohol level of .15 percent or more. Blood tests at the time of the accident supported her admission.
This is particularly true because defendant's conduct that day was not an anomaly. She was reported to drive drunk with some regularity.
Defendant's contrary argument is based on her contention "[c]ases discussing the proper use of this factor to aggravate a sentence involve defendants with a history of violent conduct." Assuming this is true, those cases do not purport to be exclusive or all-encompassing. California Rules of Court, rule 4.421(b)(1), which is suggestive but not limiting, states: "The defendant has engaged in violent conduct that indicates a serious danger to society." While most criminal violence of this nature is undoubtedly intentional, there is neither case, statute, nor rule restricting the application of this aggravating factor to persons found intentionally to have committed violence. As this case illustrates, persons with a proclivity to unintentional violence can be equally dangerous to their fellow citizens.
We conclude these three aggravating factors, in addition to defendant's prior poor performance on probation, justify the trial court's imposition of the upper term sentence. The trial court did not abuse its discretion in reaching the implicit conclusion defendant's offense was " 'distinctively worse than the ordinary' " and made defendant "deserving of punishment more severe than that merited for other offenders in the same category." (People v. Black, supra, 41 Cal.4th at p. 817.) Defendant argues her sentence was "disproportionately more severe" than the sentences of other Sonoma County residents who have committed the same crime, citing a survey performed by a private investigator, adverse public reaction to a 12-year sentence rendered in another gross vehicular manslaughter case in the county, and average sentences for this crime in California. The trial court expressly disagreed. In any event, a defendant's sentence must be based on the particular circumstances of that defendant and his or her crime. (People v. Sandoval, supra, 41 Cal.4th at p. 847.) Accordingly, it is unhelpful to compare defendant's sentence to those of other defendants whose full circumstances are not before the court or to statewide statistics. Reviewing the trial court's exercise of discretion with respect to this particular defendant, there was no abuse.
We find it unnecessary to address the propriety of the court's inclusion of the victims' vulnerability as a further factor in aggravation. (Compare People v. Piceno, supra, 195 Cal.App.3d at pp. 1357-1358 [because all victims of drunk drivers are vulnerable, none are " 'particularly vulnerable' " for sentencing purposes]; People v. Weaver (2007) 149 Cal.App.4th 1301, 1314 [drunk driver victim vulnerability can be considered in denying probation, which does not require "particular" vulnerability].) Even if reliance on this factor was inappropriate, it represents only one of several factors cited by the trial court. We are not persuaded it is reasonably probable the trial court would reach a more favorable result upon remand if instructed to disregard this factor. (E.g., People v. Sanchez (1994) 23 Cal.App.4th 1680, 1684.)
III. DISPOSITION
The judgment of the trial court is affirmed.
Margulies, J. We concur: Marchiano, P.J. Dondero, J.