Opinion
F040930.
10-8-2003
THE PEOPLE, Plaintiff and Respondent, v. PEDRO SOLORIO TORRES, Defendant and Appellant.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Carlos A. Martinez and Virna L. DePaul, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant, Pedro Solorio Torres, was convicted by a jury of second degree murder (Pen. Code, 187), gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)), driving while under the influence causing injury (Veh. Code, § 23153, subd. (a)), driving with a blood alcohol level above the legal limit causing injury (Veh. Code, § 23153, subd. (b)), leaving the scene of an accident (Veh. Code, § 20001, subd. (a)), and misdemeanor driving without a license (Veh. Code, § 12500, subd. (a)). In addition the jury found true allegations that appellant had caused great bodily injury upon one of his victims. The trial court subsequently sentenced appellant to a total term of 22 years to life.
All further references are to the Penal Code unless otherwise indicated.
The jury initially found appellant not guilty of this offense, but after the trial court questioned the jury regarding this verdict, the jury returned a guilty verdict.
On appeal, appellant contends the evidence was insufficient to support his murder conviction and the trial court (1) erred in instructing the jury to reconsider its verdict on gross vehicular manslaughter, (2) erred in imposing consecutive terms, (3) abused its discretion in sentencing him to the upper term for driving while intoxicated, and (4) failed to give appellant the correct number of presentence credits. We agree that the trial court erred in initiating the jurys reconsideration of its manslaughter verdict and we will order a judgment of acquittal on that count. Additionally, we agree the trial court erred in calculating appellants credits, and we will order the abstract and minutes amended. We find appellants remaining claims without merit.
FACTS
During the early evening hours on October 18, 2001, four teenagers approached an intersection in Dinuba. It was dark at the time. Artemio N. testified he, his sister, Kelly N., and stepbrother, Jonathan B., were walking their friend Amber A. home. The foursome entered a crosswalk at Alta Avenue. Each of the four looked both ways before crossing the street. The four then proceeded into the crosswalk with Jonathan and Kelly walking side by side three to five feet in front of Artemio and Amber. While crossing the street, Artemio noticed a van approaching the intersection without its headlights on. He yelled out to Kelly to watch out when the van struck both Kelly and Jonathan. As a result of the impact, Jonathan was thrown some distance, landing on his head in the street. Kelly was dragged underneath the van for approximately one quarter of a mile until the driver of the van pulled over.
Police and paramedics arrived minutes after the accident. Jonathan, who was unconscious and bleeding from his head, was lying with his head on the sidewalk and his body in the street. Officer Rubalcaba shook Jonathan to wake him. When he awoke, Jonathan began screaming and was in obvious pain. He was subsequently taken to the hospital by helicopter. Jonathan suffered from a concussion and was hospitalized from one to two weeks after the incident. Kelly subsequently died from her injuries. According to the pathologist, the cause of death was a basilar skull fracture from blunt force trauma.
Maria Lopez was shopping at a farmers market when she noticed a van drive up with a girl being dragged under it. The van stopped a few feet from Lopez, who observed a man exit the vehicle. Lopez immediately called for an ambulance and went to attend to the girl. The driver of the van stood near her and seemed scared. Subsequently, the man disappeared.
Officer Manuel Romero responded to the scene. He noticed the van parked and its engine running in the street with Kelly lying in front of it. No one was inside of the van, and Romero began looking for witnesses and the driver. Romero contacted Lopez who gave him a description of the man driving the van. Shortly after receiving the description, Romero scanned the crowd and spotted appellant. Romero testified that he had scanned the crowd earlier and had not seen appellant. Lopez identified appellant as the driver of the van.
Appellant admitted to Romero that he had been driving the van and stated that he drank one beer prior to driving. In addition he stated that he did not have a drivers license. Appellant stated he thought he had hit something while he was driving, but he was unsure of what it was. He explained that he did not pull over right away because he wanted to move his van out of the road. Romero testified that there were numerous places to pull over in the quarter mile between the crosswalk where the children were struck and where the van finally came to rest.
Romero conducted four field sobriety tests upon appellant, all of which appellant failed. Appellant was arrested and given a breathalyzer test approximately two hours after the accident. Appellant registered blood alcohol levels of .15 and .14 percent. Blood was also drawn from appellant after his arrest. The result from the blood test indicated appellant had a blood alcohol level of .13. Extrapolating backwards, the toxicologist testified that appellant had a blood alcohol level of .17 percent at the time of the accident.
After his arrest, appellant spoke with officer Robert Esquibel. Appellant admitted to drinking three 16-ounce beers prior to driving. He stated that he drank the beers at his daughters house after 5:00 p.m. Appellant stated that he had been driving home from his daughters house, traveling at about 35 miles per hour, when he hit someone. According to appellant he struck one victim near the farmers market He felt a "bang" and then heard another "bang" underneath his vehicle. Appellant then pulled over at the farmers market to see what he had struck. At that point, he noticed someone pinned under the van, so he backed the van up to free the person. Appellant denied hitting the victim near the crosswalk.
The prosecution was allowed to introduce evidence relating to appellants prior arrests for drunk driving. On January 8, 1996, appellant pulled over near a man parked on the side of the road. A highway patrol officer stopped to determine if the men needed assistance. Upon approaching, the officer noticed appellant appeared to be under the influence of alcohol. After failing several field sobriety tests, the officer arrested appellant for driving while intoxicated. The officer gave appellant a breathalyzer test, and appellant registered a blood alcohol levels of .17 and .18 percent.
On December 23, 1997, a number of sheriffs deputies were redirecting traffic near a crime scene. Two parked patrol cars, one marked and one unmarked, were blocking traffic with their light bars activated. Deputies were standing in the street redirecting traffic with flashlights. Appellant failed to reduce his speed while driving toward the deputies. The deputies shined their flashlights at appellant and shouted at him to stop, but appellant continued driving toward them. Two of the deputies were forced to jump out of the way to avoid being hit by appellant. Appellant continued driving, struck an unmarked patrol car, and stopped a short distance later. After appellants vehicle came to rest, the deputies performed three field sobriety tests upon appellant, all of which he failed. Appellant was arrested for driving while intoxicated; his blood alcohol level was later determined to be .21 percent.
On January 24, 1999, appellant was again arrested for drunk driving. A highway patrol officer observed appellant weave across the center line and stop four feet past a stop sign. The officer arrested appellant after he failed three field sobriety tests. Appellants blood alcohol level was later determined to be .27 percent.
Two days later, a citizen observed appellant driving recklessly. Appellant suddenly stopped in traffic, almost causing an accident, and then proceeded to drive off, weaving on and off the road in heavy traffic. The citizen was amazed that appellant did not hit another car. Appellant continued driving in such a manner for four to five miles. When appellant stopped his vehicle, the citizen parked blocking appellants car and notified the highway patrol of appellants conduct. An officer subsequently arrived and administered field sobriety tests which appellant failed. Appellant was arrested for drunk driving and his blood alcohol level was later determined to be .26 percent.
On June 13, 1999, a highway patrol officer stopped a car on suspicion of drunk driving. Appellant was sleeping in the backseat. The officer awoke appellant, but it took him several minutes to do so. The officer attempted to perform field sobriety tests, but appellant was not able to stand up long enough to complete the tests. The officer arrested appellant because he determined appellant was too drunk to take care of himself.
On July 25, 2001, a police officer stopped appellant after receiving a report that he was possibly driving while intoxicated. Upon stopping appellant, the officer noticed appellant had an open beer in the center console. Appellant failed four field sobriety tests and was arrested for drunk driving. Appellant had a blood alcohol level of .23 percent on that occasion.
On each occasion appellant was arrested for driving while intoxicated, he did not have a drivers license and gave the officers different names and dates of birth.
According to the report of the probation officer, appellant had failed to appear on each of his prior cases.
Defense Case
Appellant did not testify on his own behalf. An accident reconstructionist testified that based upon the location of certain pieces of evidence and blood, the victims were 31 feet outside of the crosswalk at the point of impact.
DISCUSSION
I. Appellants murder conviction is supported by the evidence.
Appellant contends his murder conviction is unsupported by the evidence. He claims the evidence failed to demonstrate he knew the dangers of driving while intoxicated. We conclude the evidence supports the jurys finding.
When the sufficiency of the evidence is challenged on appeal, the court reviews the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Welch (1999) 20 Cal.4th 701, 758; People v. Johnson (1980) 26 Cal.3d 557, 578.) We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence, including reasonable inferences based on the evidence and excluding inferences based on speculation or conjecture. (People v. Tran (1996) 47 Cal.App.4th 759, 771-772.) If the jurys findings are supported by the evidence and are reasonable, the appellate court will not reverse merely because a different finding might also be reasonable. (People v. Redmond (1969) 71 Cal.2d 745, 755.) The question on appeal is whether substantial evidence supports the jurys conclusion, not whether guilt was established beyond a reasonable doubt. (People v. Hillery (1919) 62 Cal.2d 692, 702-703.)
As appellant acknowledges, a death caused by a drunk driver may be prosecuted as second degree murder on a theory of implied malice. (People v. Watson (1981) 30 Cal.3d 290, 296-299.) A second degree implied malice murder conviction is supported where the defendant deliberately commits an act, the natural consequences of which are dangerous to life, with the knowledge of dangers to life and a conscious disregard of those dangers. (Id . at p. 300.) This is a subjective standard that requires that the defendant actually appreciated the risk involved. (Id . at pp. 296-297.)
In People v. Talamantes (1992) 11 Cal.App.4th 968, 973, the court listed a number of factors courts have relied upon in upholding drunk driving murder convictions: "(1) a blood-alcohol level above the .08 percent legal limit; (2) a predrinking intent to drive; (3) knowledge of the hazards of driving while intoxicated; and (4) highly dangerous driving." Appellant concedes the first factor was met, but argues no evidence supports the remaining three factors. As to his intent to drive, appellant contends the evidence merely established that he had driven to his daughters house and was on his way home when the incident occurred. There was no evidence, he claims, that he intended to drive while inebriated. As to his knowledge of the dangerousness of driving while intoxicated, he notes that he had never been convicted of driving under the influence and therefore never attended any of the mandatory educational classes that instruct on the dangers of drunk driving. Furthermore, he claims that his prior arrests for drunk driving taught him that he was able to drive while intoxicated without causing any injury. Finally, he argues there was no evidence establishing any dangerous driving during the incident.
Initially, we note that appellant in fact drove with a blood alcohol well above the legal limit. The toxicologist testified that appellants blood alcohol level was .13 percent when tested after the accident. Based on this result, the toxicologist was able to determine that at the time of the accident, appellant had a blood alcohol level of .17 percent, more than twice the legal limit. In order to reach such a level, one would have had to consume eight to ten 12-ounce beers.
Regarding appellants predrinking intent to drive, we find sufficient evidence to satisfy this factor. Appellant consistently drank before driving on the occasions of his five prior arrests, as well as on the day of the incident. In each instance appellant drank enough to elevate his blood alcohol level well above legal limits. In Watson, the court noted that the defendant drove to a bar, drank until he was intoxicated, and must have known that he would drive later. (People v. Watson, supra, 30 Cal.3d at p. 300.) As in Watson, appellant drove his vehicle to his daughters home where he drank substantial amounts of alcohol, and he must have known he would drive later that evening. Thus, the evidence was sufficient to support a finding appellant harbored a predrinking intent to drive.
Appellant spends the bulk of his argument contending that the evidence failed to establish he had knowledge of the hazards of driving while intoxicated. Appellant distinguishes other drunk driving murder cases by noting that the defendants in those cases had previously been convicted of driving while intoxicated and therefore had knowledge of the danger of drunk driving. Unlike drivers who have previously been convicted of driving under the influence, appellant had never been required to attend any educational classes outlining the dangers of drunk driving. In addition, he argues that there was no evidence he "knew from prior mishaps the deadly danger of drunk driving." A review of the evidence establishes sufficient evidence was presented demonstrating appellant knew of the dangers of driving while intoxicated.
Appellant is correct in his assertion that many drunk driving murder cases place emphasis on the fact that the defendant had previously been convicted of drunk driving. (See, e.g., People v. Autry (1995) 37 Cal.App.4th 351, 359 [appellate court explained the jury could infer the defendant knew of the dangers of driving while intoxicated from the fact he had previously been convicted for the offense, even if he had not attended any educational classes]; People v. David (1991) 230 Cal.App.3d 1109, 1115 ["Prior convictions and exposure to mandatory educational programs are admissible to show the accuseds awareness of the life threatening risks of driving under the influence"]; People v. McCarnes (1986) 179 Cal.App.3d 525, 533-534 [evidence sufficient to demonstrate appellant knew of dangers of driving while intoxicated where defendant had four previous convictions for drunk driving had had repeatedly been exposed to educational courses].) Although appellant had not attended any classes informing him of the dangers of driving while intoxicated, other evidence was introduced allowing the jury to infer appellant knew of the dangerousness of his actions.
The prosecution introduced evidence that established appellant had been arrested five times for driving under the influence. Although appellant had never suffered a conviction, and therefore never attended any educational classes regarding the dangers of drunk driving, his prior driving was sufficient to alert him to the dangers of driving while intoxicated. During one incident, appellant was observed by a citizen to be driving recklessly. Appellant suddenly stopped in traffic almost causing a collision. He drove away and proceeded to weave from the road and into a dirt shoulder for four or five miles. The citizen followed appellant, amazed that he did not cause a collision. When appellant stopped, the citizen parked, blocking appellants vehicle. Appellant was arrested for driving while intoxicated and was found to have a blood alcohol level of . 26 percent.
On another occasion, appellant struck a parked car and narrowly avoided hitting two sheriffs deputies. Appellant approached a street that had been closed by police conducting an investigation. An unmarked police car was parked, blocking the street with its rear amber lights activated. In addition, a marked police car was parked nearby with its red and blue lights flashing. Two sheriffs deputies stood in the street redirecting traffic with flashlights. Appellant drove toward the deputies, without slowing, and ignored the officers shouts. The deputies had to jump out of the way to avoid being struck by appellant. Appellant proceeded to hit the parked patrol car and continued driving a short distance. When appellant stopped, officers conducted field sobriety tests, which appellant failed. He was arrested for driving while intoxicated. Subsequent testing revealed appellant had a blood alcohol level of .21 percent.
These incidents were certainly sufficient to alert appellant to the dangers of driving while intoxicated. Appellant had previously struck a parked vehicle, narrowly avoided hitting two deputies, and driven recklessly while intoxicated. Courts have concluded that such behavior is sufficient to inform a driver of the dangers of driving while intoxicated. (People v. Murray (1991) 225 Cal.App.3d 734, 745, 747 [defendants prior blackout while driving, and his reckless driving leading to the accident, including driving the wrong way on the freeway, and numerous near collisions, was sufficient to inform him of the risk of driving while intoxicated]; People v. Garcia (1995) 41 Cal.App.4th 1832, 1849-1850, disapproved on other grounds by People v. Sanchez (2001) 24 Cal.4th 983 [facts of the defendants prior driving while intoxicated arrests, including driving into oncoming traffic, demonstrated the dangers of driving while intoxicated to the defendant].)
The facts of this case are not unlike those present in People v. David, supra, 230 Cal.App.3d at page 1109. In that case, while driving under the influence of PCP, the defendant ran a red light and struck another vehicle, killing both occupants. (Id. at p. 1112.) The trial court admitted evidence establishing the defendant had two prior convictions for driving under the influence of PCP. During one incident, the defendant drove through an intersection that had been closed by police. The intersection was marked with flares and police cars with activated lights. The defendant traveled through the intersection at a high rate of speed, almost striking an officer. Officers gave chase and the defendant drove the wrong way down the street, pursued by officers until he struck a tree. (Ibid.) In another incident, the defendant collided with a parked car while under the influence of PCP. (Id. at pp. 1112-1113.) In discussing whether the defendant knew of the dangers of driving while under the influence, the court explained that the dangers were made clear to the defendant from his prior experience of driving while under the influence. (Id. at p. 1115.)
Likewise here, appellants prior actions while driving under the influence of alcohol were sufficient to alert him to the dangers drunk driving. Appellant had been arrested five times for drunk driving, and in one instance he almost struck two deputies and collided with a parked vehicle. The jury was entitled to infer that such actions informed appellant that driving while intoxicated presented a danger to life.
Regarding the fourth Talamantes factor, highly dangerous driving, appellant argues that he did not execute any dangerous driving maneuvers prior to striking Jonathan and Kelly. The evidence established appellant was driving without headlights, although it was dark outside, and was traveling at 35 miles per hour at the time of the incident. Appellant argues that such evidence failed to demonstrate appellant was engaged in any dangerous driving on the night of the incident. Initially we note that Artemio testified that he heard the sound of squealing tires just before entering the crosswalk, indicating that appellant was driving in a reckless manner. However, even if we were to agree there was no evidence presented at trial regarding dangerous driving on the night of the incident, we note that not all of the Talamantes factors need to be present to sustain a conviction of second degree murder. (People v. Olivas (1985) 172 Cal.App.3d 984, 989.) Here, the first three factors set forth in Talamantes were strongly supported by the evidence. Accordingly, we find sufficient evidence supported the jurys verdict.
II. Appellants conviction for gross vehicular manslaughter must be reversed.
After deliberations, the jury returned to court with its verdicts that the clerk read into the record. As relevant here, the jury found appellant guilty on count one, second degree murder, but found him not guilty on count two, gross vehicular manslaughter. After the verdicts were read, the trial court held a sidebar conference with counsel and proceeded to ask the jury whether it was under the impression that it "must find one of those counts not guilty if the other count is found guilty." The foreman responded that jury was under such an impression. The court then asked the foreman if that was what the jury was referring to in its last question to the court. The foreman responded affirmatively. The court explained that the jury was not required to acquit of one offense simply because it found appellant guilty of a related offense. After holding a discussion with counsel, the trial court asked the jury if it wished to reconsider its verdicts and the jury responded affirmatively. The trial court gave all verdicts back to the jury and the jury returned to deliberations. When the jury returned, it provided the court with the verdict forms that then reflected a finding of guilty on count two, gross vehicular manslaughter. The verdict was read into the record, the jury was polled, and the verdicts were recorded.
The jury had previously asked the court: "If we have made a decision on either count 1 or 2 do we have to decide on the other count also?" The court responded: "You must make a finding of guilty/not guilty on each of the charged counts if you can do so."
Appellant contends, correctly, that the trial court erred in initiating the jurys reconsideration of its verdict on count two. Section 1161 governs the trial courts authority to initiate a reconsideration of a jury verdict. That section provides in pertinent part:
"When there is a verdict of conviction, in which it appears to the Court that the jury have mistaken the law, the Court may explain the reason for that opinion and direct the jury to reconsider their verdict, and if, after the reconsideration, they return the same verdict, it must be entered; but when there is a verdict of acquittal, the Court cannot require the jury to reconsider it." (Italics added.)
This section makes clear that a court may not initiate a jurys reconsideration of an acquittal. (People v. Hernandez (1985) 163 Cal.App.3d 645, 658.) However, that is what the trial court did in this case. In discussing the issue with counsel, the trial court noted that that the "jurys first verdict is noted and is clear in the record, and so the not guilty given under a wrong assumption of law under law must stand, then of course it would stand . . ." Despite this acknowledgement, the trial court informed the jury that it appeared that its verdict on count two was based upon a mistaken interpretation of law and, after informing them of correct law, allowed the jury to "correct" its verdict. The court took such actions because it felt the verdicts returned by the jury were inconsistent.
Bigelow v. Superior Court (1989) 208 Cal.App.3d 1127 is instructive. There the jury returned a verdict of not guilty on a murder charge, but found the defendant guilty of a charged special circumstance. (Id. at p. 1130.) The trial court dismissed the jury for the night and the following day returned the jury to deliberations with new verdict forms. (Id . at p. 1132.) The following day, the jury asked the court if it could "`go with our original not guilty verdict?" (Ibid .) The court replied that the jury had all of the verdict forms in its possession as well as the instructions. The jury then informed the court that it was deadlocked, and the court ultimately declared a mistrial. (Id. at pp. 1132-1133.)
The appellate court ultimately issued a writ of mandate ordering the trial court to enter a verdict of acquittal on the murder charge. In reaching that decision, the court explained that pursuant to section 1161 a trial court is forbidden from ordering a jury to reconsider a verdict of acquittal. (Bigelow v. Superior Court, supra, 208 Cal.App.3d at p. 1134.) Although the jury in that case had issued an inconsistent verdict, there is no requirement that a verdict be legally consistent in order to be received. (Ibid.) "Once it is clear that the jurys intent is to acquit, the form of the verdict is not important; it is the intention to acquit that triggers the mandatory duty to receive and record the verdict and acquit the prisoner." (Ibid.)
Bigelow explained that upon receiving the inconsistent verdicts, the trial court could have justifiably viewed the verdicts as ambiguous. The jury could have intended to find the defendant not guilty of murder followed by a superfluous finding on the special circumstance, or the verdict could have reflected confusion by the jury. (Bigelow v. Superior Court, supra, 208 Cal.App.3d at p. 1136.) Faced with this situation, the trial courts options were limited, it could have "either 1) granted the motion to record the verdict of acquittal, 2) polled the jury to determine if there were 12 votes for acquittal, or 3) informed the jury that the acquittal was not consistent with findings of special circumstances and asked it to clarify its verdict to show its true intent." (Ibid .) Bigelow determined that the trial court erred in simply ordering the jury to continue deliberations without informing it why its verdicts were unacceptable. Such action "amounted to mandating reconsideration of a verdict of acquittal and is forbidden by statute and by precedent." (Ibid .)
Respondent argues the trial court acted in conformance with Bigelow because it merely asked the jury to clarify its true intent. We disagree. Here the trial court did not seek to clarify the jurys intent, but rather told the jury that its verdict was based upon a mistaken interpretation of the law and asked the jury if they wished to reconsider in light of the information they were given. Bigelow suggests only that a trial court may inform the jury that its findings were inconsistent and asked it to clarify its verdict to show its true intent. (Bigelow v. Superior Court, supra, 208 Cal.App.3d at p. 1136.)
Likewise, respondents reliance upon People v. Caird (1998) 63 Cal.App.4th 578 is misplaced. There the jury returned a guilty verdict on a forcible lewd act on a minor charge but a not guilty verdict on the lesser included offense of nonforcible lewd act on a minor charge. (Id. at pp. 585-586.) The trial court informed the jury that the verdicts were inconsistent and sent them for further deliberations. (Id . at p. 586.) The jury twice returned with unchanged verdicts and the trial court subsequently asked the jury if their verdict meant that they had found the defendant guilty of the greater offense so that it never reached a decision on the lesser included offense. (Ibid.) The jury responded in the affirmative and the court accepted the guilty verdict on the greater offense and struck the verdict on the lesser offense. The appellate court held the trial court did not violate section 1161. (Id. at pp. 587-590.) Rather, the trial court properly had the jury clarify its verdict. (Id . at p. 590.)
In the present case, the trial court inquired into the reason it reached the verdicts it did and after receiving this information, determined that the jurys verdict was based upon a misapprehension of the law. The court then asked the jury if it wished to reconsider its verdict in light of the correct law. However, section 1161 plainly states that only a verdict of conviction may be reconsidered when it is based upon a misunderstanding of the law. Although Bigelow makes clear that a trial court may ask a jury to clarify its true intent when it appears the verdicts are ambiguous, the trial court failed to do so here. Instead, the court determined that the jury reached its verdict based upon its understanding of the law and told it that its understanding was incorrect. Therefore, we find the trial court violated section 1161 in asking the jury to reconsider its verdict, and we will order a judgment of acquittal entered on that count.
III. The trial court properly imposed consecutive sentences.
Appellant contends the trial court erred by imposing consecutive sentences on count three. This claim is meritless.
California Rules of Court, rule 4.425(b), which governs when a trial court may impose consecutive sentence, specifically provides that "[a]ny circumstances in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences ...."
Prior to their amendment in 1991, California Rules of Court, rules 421(a)(4) and 425(a)(4) expressly provided a multiple victim factor to be used as an aggravating circumstance and a criterion for deciding between concurrent and consecutive terms. (People v. Valenzuela (1995) 40 Cal.App.4th 358, 363.) Rule 4.408 allows "the application of additional criteria reasonably related to the decision being made." The deletion of the multiple victim factor from former rules 421 and 425 "does not prevent the sentencing court from using the factor where it is appropriate." (People v. Valenzuela, supra, 40 Cal.App.4th at p. 365 [consecutive terms for killing two in drunk driving accident was appropriate]; see also People v. Leung (1992) 5 Cal.App.4th 482, 505 [affirming imposition of consecutive terms for simultaneous robbery of several restaurant employees on "multiple victim" theory: "the existence of multiple victims of a group of crimes against individual persons is a factor which makes the group of offenses distinctively worse and therefore justifies the imposition of consecutive terms"].) The use of multiple victims is a proper factor in situations where there is one victim per count but multiple counts that are "transactionally related." (See People v. Valenzuela, supra, 40 Cal.App.4th at p. 365.) We believe its use was appropriate here.
The California Rules of Court were renumbered effective January 2001, and rules 421 and 425 became rules 4.421 and 4.425.
IV. Appellant was properly sentenced.
At sentencing, the trial court imposed the aggravated term on count three. In imposing that term, the trial court relied upon the facts that "the crime involved great violence, great bodily harm, and a high degree [of] cruelty, viciousness, or callousness. Also, I find victims were vulnerable, and defendant has inflicted emotional trauma upon the family." Appellant argues that none of the aggravating factors enunciated by the court were appropriate in this case, and thus his sentence must be reduced. We disagree.
Initially we note that the trial court erred in relying upon the fact that the crime involved great bodily harm to the victim because this fact was also used to impose a great bodily injury enhancement. (People v. Gutierrez (1992) 10 Cal.App.4th 1729, 1735; Pen. Code § 1170, subd. (b); Cal. Rules of Court, rule 4.420(c).) The court likewise erred in using the fact that the victims were vulnerable (People v. Piceno (1987) 195 Cal.App.3d 1353, 1358 [prohibiting the use of victim vulnerability as an aggravating factor in drunk-driving cases]), and that the crime caused trauma to the victims family (People v. Levitt (1984) 156 Cal.App.3d 500, 516-517 [emotional trauma to victims family not a proper aggravating factor because it is not reasonably related to the defendants culpability]). Thus, the only remaining aggravating factor relied upon by the trial court was that the crime was committed in a cruel or callous manner.
California Rules of court, rule 4.421(a)(1), provides that a crime which involves a "high degree of cruelty, viciousness, or callousness" constitutes a circumstance in aggravation. However, a factor may not be used to impose the upper term where that factor is inherent in the charged offense. (People v. Harvey (1984) 163 Cal.App.3d 90, 116; Cal. Rules of Court, rule 4.420(d).) "However, where the facts surrounding the charged offense exceed the minimum necessary to establish the elements of the crime, the trial court can use such evidence to aggravate the sentence." (People v. Castorena (1996) 51 Cal.App.4th 558, 562.) Appellant argues that there was no evidence that he committed the crime of driving while drunk in a manner that was any more callous than the commission of the crime itself. We disagree. As we have previously explained, substantial evidence was presented at trial demonstrating that appellant chose to drive while intoxicated on the night of the incident despite having knowledge that his actions were dangerous to human life and with a conscious disregard for that dangerousness. Such behavior demonstrated callousness beyond what was required to commit the crime itself.
Appellant further argues that it was improper for the trial court to treat his conscious disregard of the consequences of his actions as a factor in aggravation because that factor was taken into account in the crime of second degree murder. While we agree that conscious disregard of the risk is an element of second degree murder, we note that it is not an element of driving while intoxicated. Appellant was charged with two distinct crimes against two victims. Appellant was convicted of the murder of Kelly in count one and was also convicted of the crime of driving while intoxicated and causing great bodily injury to Jonathan. As to the crime of driving while intoxicated, callousness was not an element of the offense. Therefore, the trial court did not improperly double count that fact in imposing the upper term for that offense. Likewise, no impermissible double counting exists from the fact that appellant was consecutively sentenced on the murder and driving while intoxicated offenses. The consecutive sentences arose from the fact that appellants crimes involved multiple victims, not from the fact that his crimes were callous. Therefore, we find the trial court properly used appellants callousness in committing the crime as an aggravating factor.
Although the trial court relied upon some improper factors in imposing the upper term, we find a remand for resentencing in this case unnecessary. It is well settled that 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." (People v. Price (1991) 1 Cal.4th 324, 492.) As we have already explained, the trial court relied upon one proper aggravating factor. A single factor in aggravation will support imposition of an upper term. (People v. Cruz (1995) 38 Cal.App.4th 427, 433.)
Prior to sentencing appellant, the trial court explained this was "one of the most tragic criminal cases that has ever come before the Court." In addition, the court noted that appellants "conscious disregard for the safety of the community is most reprehensible." In sentencing appellant to the upper term on count three, the trial stated it recognized appellants counsels "position concerning defendants remorse; however, I find that allegation or assertion by defendant and his attorney to be of little weight." Furthermore, we note that neither the probation report nor the trial court noted any applicable factors in mitigation in this case. Considering the trial courts comments, and the lack of mitigating factors, we find no reasonable probability that the trial court would have imposed a lesser sentence had it known some of its enumerated aggravating factors were improper. Thus, remand for resentencing is not necessary.
V. Appellant is entitled to an additional day of presentence credit.
Appellant argues, and respondent concedes, that he is entitled to one additional day of presentence credit because his credits were erroneously calculated. The evidence is undisputed that appellant was arrested on October 18, 2001, and was sentenced on June 13, 2002, and was therefore entitled to 239 days of actual credit. However, the trial court awarded appellant only 238 days of credit. Thus, appellant is entitled to one additional day of credit.
The trial courts error was apparently based upon the fact that the probation officers report erroneously stated that appellant was arrested on October 19, not October 18.
In addition, appellant points out that the abstract of judgment failed to reflect any of appellants presentence credits. We thus will order the abstract amended to reflect appellants actual number of credits. Likewise, the minute order, which reflects only 238 days of actual credits, must be amended to reflect the correct number of credits. (People v. Franscisco (1994) 22 Cal.App.4th 1180, 1193.)
DISPOSITION
The judgment of conviction on count two, gross vehicular manslaughter while intoxicated, is reversed, and the trial court is ordered to enter a verdict of not guilty on that charge. The abstract of judgment is ordered amended to reflect an acquittal on count two and to reflect the proper amount of presentence credits. In all other respects, the judgment is affirmed.
WE CONCUR Wiseman, Acting P.J. and Cornell, J.