Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura, Super. Ct. No. 2007048268
Gregory T. May, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borijon, Supervising Deputy Attorney General, A. Scott Hayward and E. Carlos Dominguez, Deputy Attorneys General, for Plaintiff and Respondent.
YEGAN, Acting P.J.
Jeremy James White was sentenced to 15 years state prison after pleading guilty to gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)), sale or transportation of marijuana (Health & Saf. Code, §11360, subd. (a)), and admitting that he personally inflicted great bodily injury on a peace officer within the meaning of Penal Code section 12022.7, subdivision (b). He appeals, contending that the trial court abused its discretion in imposing a 10 year upper term for gross vehicular manslaughter while intoxicated. We affirm.
Facts and Procedural History
On December 19, 2007, appellant drove a Chevrolet Silverado truck at an excessive speed on Highway 101, tailgating other motorists. Appellant passed a motorist, veered off onto the right shoulder, and hit the rear of Andres Parra's vehicle which had been stopped by California Highway Patrol Officer Anthony Pedeferri. The force of the impact caused Parra's vehicle to burst into flames, killing Parra.
Officer Pedefferi was thrown 32 feet through the air and suffered life threatening injuries that ended his career as a peace officer. His injuries include a T3-T4 spinal injury resulting in complete paraplegia, a C3-C4 spinal injury, a crushed chest and bilateral severe pulmonary contusion, left brachial plexus injury, facial lacerations and broken teeth, and a pulmonary embolism.
Appellant admitted smoking marijuana and tested positive for THC and methylene dioxymetha mphetamine (MDMA), also known as ecstasy. Appellant had a medical marijuana prescription but the doctors who issued the prescription warned appellant not to use marijuana while in a vehicle and not to operate a vehicle while under the influence of marijuana.
Inside the Silverado truck, officers found $5,676 cash, a scale and packaging materials, three smoking pipes, a broken smoking pipe, slices of cake and cookies containing marijuana, two containers of "herb drinks," hemp ice tea, two containers of marijuana milk shakes, a "Kahurb drink," 30.3 grams of marijuana, 5.1 grams of hash, and 1,196.2 grams of marijuana in nine packages.
Following a preliminary hearing, appellant negotiated a disposition providing for a maximum sentence of 16 years state prison. The trial court sentenced appellant to 10 years for gross vehicular manslaughter while intoxicated plus five years on the great bodily injury enhancement. Appellant received a three-year concurrent sentence for sale or transportation of marijuana.
Upper Term Sentence
Appellant argues that the trial court abused its discretion in imposing the upper term rather than a six-year midterm for gross vehicular manslaughter while intoxicated. It is settled that only a single aggravating factor is required to impose the upper term. (People v. Black (2007) 41 Cal.4th 799, 815.) "An aggravating circumstance is a fact that makes the offense 'distinctively worse than the ordinary.' [Citations.]" (Id., at p. 817.)
The trial court stated "there are some who probably would feel" that the case is "almost a murder charge rather than a gross vehicular manslaughter while intoxicated charge." The trial court cited, as one of several aggravating factors, the large amount of drugs consumed by appellant before the traffic fatality. Appellant argues that there is no evidence that he was any more impaired than he would have been had he just consumed the marijuana that was medically prescribed. Appellant, however, told officers that he was "super high," had consumed marijuana all day, and had taken Vicodin, Soma, and Paxil. A motorist reported that appellant was "driving like a maniac" and tailgated for two or three miles before passing and veering off the highway. Other witnesses reported that appellant was traveling at a high rate of speed, "came from no where," and drove straight towards Parra's vehicle.
Appellant complains that the prosecution did not quantify the drugs in appellant's system to determine the level of intoxication. It is uncontroverted that appellant appeared to be under the influence, smelled of marijuana, and tested positive for THC and ecstasy. Expert testimony showed that the THC metabolite "quant" (i.e., concentration level) in appellant's blood was off the calibration chart.
Appellant claims the trial court was biased and failed to consider mitigating factors such as appellant's youth, early acceptance of responsibility, and minimal criminal record.
The trial court considered each of those factors, noting that appellant's driving privileges had been revoked or suspended six times since May 2005. The court further found that appellant's criminal record was not inconsequential. "There are two misdemeanor convictions, one of which out of San Luis Obispo involved allegations of methamphetamine by his aunt, but it apparently was a misdemeanor criminal threats case. [¶] And then a 245, a group kind of assault on someone, which in the Court's view is not reflective of somebody who is a caring, concerned individual...."
There were other aggravating factors, including the particular vulnerability of the victims, a crime that resulted in death or serious injury to multiple victims, and the damage of property of great monetary value. (Cal. Rules of Ct., rule 4.421, subds. (a)(1) & (a)(3); People v. Valenzuela (1995) 40 Cal.App.4th 358, 363; People v. Blade (1991) 229 Cal.App.3d 1541, 1544.) The large quantity of drugs consumed by appellant was significant because appellant never addressed his substance abuse problem. The probation report states that appellant (age 20) experimented with alcohol and started using marijuana at age 17, obtained a medical marijuana card at age 18, started using ecstasy at age 19, takes Vicodan, Soma, and Norco, and uses marijuana two to three times a day.
Although appellant claims that the marijuana was medically prescribed for chronic back pain, the trial court reasonably concluded that it was not a mitigating factor. The probation report states that appellant spends a lot of time riding dirt bikes with friends, bought a motorcycle hours before the traffic fatality, and was transporting two motorcycles when he hit Parra's vehicle. A witness stated that appellant was in "complete denial," did not render aid to the victim, and "walked around aimlessly. At one point, the defendant was seen trying to move his motorcycles out of the bed of his truck as he believed his truck was going to explode...."
The trial court gave sound reasons for imposing the upper term after carefully considering the offense, the offender, and public safety. There was no abuse of discretion or sentencing error. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) " ' "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." [Citations.]' [Citation.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978.)
The judgment is affirmed.
We concur: COFFEE, J., PERREN, J., Kevin G. McGee, Judge