Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. FWV037381, Gerard S. Brown, Judge. Affirmed.
Dacia A. Burz, under appointment bye the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Bradley A. Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut, J.
Defendant Sandra Mariela Zuazo appeals from judgment entered following jury convictions for gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a) ; count 1); driving under the influence and causing injury (Veh. Code, § 23153, subd. (a); count 2); and driving with .08 percent blood alcohol or more (Veh. Code, § 23153, subd. (b); count 3). The jury also found true that defendant personally inflicted great bodily injury (§ 12022.7) and the offenses were serious and/or violent felonies (§ 1192.7, subd. (c)(8)).
Unless otherwise noted, all statutory references are to the Penal Code.
The trial court dismissed counts 2 and 3 as lesser included offenses of count 1 and struck the personal injury allegations. Defendant was sentenced to a six-year midterm prison sentence.
1. Facts
On December 18, 2005, at 1:30 a.m., Candace Newman was driving southbound on Interstate 15 (I-15) in a silver Honda Accord. Three young men were passengers in Newman’s car. Newman’s car tire blew out as she was racing two other vehicles. Newman lost control of her car and crashed into the center divider. Her car then careened into the southbound freeway lanes and came to a rest, tilted northbound toward oncoming traffic, across the No. 2 and 3 lanes. Newman and her three passengers exited the two-door Honda and hurried over to the center divider.
After Arteze Spicer, one of Newman’s passengers, reached the center divider, he stood there for about a minute and then heard “screeching” and saw a dark colored car “flying” into Newman’s Honda. Spicer testified that the dark car, driven by defendant, was traveling very fast. It hit Newman’s car extremely hard, pushing it several feet. Defendant’s car then hit Newman. Meanwhile, Spicer and the two other young men jumped over the center divider to avoid getting hit. When defendant’s car hit Newman, her body went flying into the air and landed on the ground in the No. 1 lane. Defendant’s car then continued on at a high rate of speed.
According to Spicer, the highway where the accident occurred was illuminated from buildings adjacent to the freeway.
Alex Pu testified that, as he was driving southbound on the I-15 in a white Prelude in the No. 2 lane, he saw Newman’s car hit the center divider and come to a rest in the No. 2 and 3 lanes. Pu drove past the silver Honda, parked ahead of it by the center divider area, and got out of his car. The four occupants of the Honda were standing by the center divider.
After about 30 seconds, Pu heard a screech and a boom as defendant’s car ploughed into Newman’s car, without slowing down. Defendant’s car then headed toward Pu and Newman at a high rate of speed. In a split second, Pu jumped over the center guardrail, and then heard a boom. Pu ran about 50 feet away from his parked car, turned around, and saw Newman on the ground. Defendant’s car hit Pu’s parked Honda Prelude, heavily damaging it.
Tana Atkinson testified that, as she was driving in the No. 2 lane of the southbound I-15, she saw Newman’s silver Honda hit the center divider and stop. Atkinson pulled over to the center divider about five or six car lengths behind the silver Honda and got out of her car. As she headed over to Newman and Newman’s three passengers standing by the center divider, defendant’s car struck Newman’s car, veered toward the center divider, and hit Newman, throwing her body into the air. Atkinson estimated defendant was driving 90 to 100 miles per hour.
Dominic Durden testified that, as he was driving onto the southbound I-15 from the eastbound Interstate 10, he saw Newman’s car stopped in the second and third lanes, facing toward oncoming traffic. Several people, including Newman, were rushing from Newman’s car to the center divider. Pu’s Prelude was pulled over to the center divider and parked ahead of defendant’s car. Durden pulled over to the center divider and parked adjacent to Newman’s car. Newman and her passengers were 20 feet ahead of Durden. Twenty to 30 seconds later, Durden saw defendant’s car speed past him and heard screeching tires and a loud crash. His car shook from the speed of defendant’s car passing him. Durden rushed over to assist Newman who was sitting with her head on the ground, moaning. She had tread marks across her lower back and multiple lacerations.
About a mile and a half in front of him, Arthur Marquez saw what appeared to be an accident involving a silver Honda and a Prelude. He saw the silver Honda spinning on the highway. As he slowly drove toward the accident scene, he saw Newman quickly walking toward the center divider where others were standing. Marquez pulled over to the shoulder on the right side of the highway. He then saw defendant’s car, which was traveling 70 to 80 miles per hour in the No. 1 lane, strike Newman. Her body flew up in the air 20 feet and landed 50 feet away. Defendant’s car missed the silver Honda but struck the Prelude without decreasing its speed or braking.
California Highway Patrol (CHP) Officer Curtis Dane arrived at the accident scene within about 15 minutes after the accident. He found in defendant’s car an empty beer can and a cold, partially filled bottle of beer, on the passenger side floorboard. The airbags had been deployed. There were skid marks indicating defendant’s car had braked.
Dane interviewed defendant who told him that she had been the designated driver after she and her boyfriend left a Christmas party that evening. She initially denied drinking any alcohol but later admitted she had had some beer around noon. According to defendant, she had been driving in the No. 2 lane and had been unable to avoid the collision because, at the time, her attention had been diverted to her boyfriend with whom she had been talking. She applied her brakes to avoid hitting the silver Honda. Her airbags inflated, preventing her from seeing anything. She then felt a second impact.
Dane noticed defendant’s eyes were red and watery, and defendant’s speech was slurred. After defendant failed the field sobriety tests, Dane concluded defendant was under the influence of alcohol. A blood test revealed defendant had a blood alcohol level of .16. At trial, Dane testified that he believed defendant had been driving too fast for the particular roadway conditions, thus endangering the safety of others.
Newman died from her accident-related injuries within several hours.
2. Imposition of Midterm Sentence Based on Victim Vulnerability
Defendant contends the trial court erred in imposing a midterm sentence on count 1 based on finding the victim was particularly vulnerable within the meaning of California Rules of Court, rule 4.421(a)(3).
Rules of the California Rules of Court are hereinafter cited by rule number only.
Citing People v. Piceno (1987) 195 Cal.App.3d 1353, 1358 (Piceno), defendant argues the victim was not particularly vulnerable. In Piceno, the defendant was driving at an excessive rate of speed. As he entered a curve, he skidded off the road and crushed the victim against a concrete wall. The victim was standing 20 feet from the road. (Id. at p. 1355.) The investigating officer determined that the defendant was driving recklessly, and had a 0.11 blood alcohol level. The defendant admitted he had been drinking beer and smoking marijuana before the accident. The defendant pled guilty to vehicular manslaughter without gross negligence (§ 192, subd. (c)(4)) and was sentenced to the upper prison term based on his juvenile record, the vulnerability of the victim, and because the crime involved great danger of bodily harm. (Piceno, supra, at p. 1355.)
On appeal, the Piceno court concluded the only proper aggravating factor was the defendant’s juvenile record and it standing alone was insufficient to support an upper term. (Piceno, supra, 195 Cal.App.3d at p. 1360.) In concluding the vulnerability of the victim was not a valid aggravating factor, the court stated that, although it was undisputed that the victim was vulnerable to the extent he was defenseless against the crushing power of an out-of-control, speeding car, the issue was whether the victim’s vulnerability should be “distinguished from that of all other victims killed by drunk drivers.” (Id. at p. 1357.)
In determining whether the offense was distinguishable, the Piceno court discussed People v. Bloom (1983) 142 Cal.App.3d 310 (Bloom), a case of vehicular manslaughter caused by a drunk driver. The Bloom court held it was error to apply rule 421(a)(3) (subsequently renumbered rule 4.421(a)(3)), explaining that “Rule 421(a)(3) has thus far been applied exclusively in criminal cases involving violent felonies, where the age or physical characteristics of the victim, or the circumstances under which the crime is committed, make the defendant’s act especially contemptible.” (Bloom, supra, at pp. 321-322.)
In Bloom, the defendant crashed head-on into the victim’s vehicle. The defendant was speeding and was drunk. He lost control of his car, swerved into oncoming traffic, and struck the victim’s car head-on, killing the victim. A blood test showed defendant had a blood alcohol content level of .31. (Bloom, supra, 142 Cal.App.3d at p. 315.) The defendant was convicted of vehicular manslaughter (§ 192, subd. (3)(a)) and sentenced to an upper prison term based on the aggravating factor of victim vulnerability under rule 421(a)(3). (Bloom, supra, at p. 321.) On appeal the defendant argued that there was no evidence that the victim was particularly vulnerable under rule 421(a)(3).
The Bloom court acknowledged that “[t]here 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 Carrie Lee cannot be considered to be vulnerable ‘in a special or unusual degree, to an extent greater than in other cases.’ [Citation.] While we can visualize extraordinary situations in which a drunk driving victim might be considered to be ‘particularly vulnerable,’ such a situation is not present here, and therefore the court erred in applying rule 421(a)(3) to this case.” (Bloom, supra, 142 Cal.App.3d at p. 322.)
Relying on this reasoning, the Piceno court concluded Piceno did not constitute an extraordinary situation in which the victim was particularly vulnerable. The Piceno court noted that “‘Felony drunk driving presupposes an entirely innocent and unsuspecting victim . . . .’ [Citation.] The element of vulnerability is inherent in the very crime of vehicular manslaughter caused by a driver under the influence of alcohol, and to use that factor to aggravate the term is improper, absent ‘extraordinary’ circumstances. [Citation.] Precisely because of their inherent vulnerability, drunk driving victims should not be considered more vulnerable than victims in other cases.” (Piceno, supra, 195 Cal.App.3d at p. 1358.)
The Piceno court further reasoned that “the drunk driver does not seek to take deliberate advantage of the vulnerability of victims, unlike the situation in other criminal cases. Rule 421(a)(3) has been upheld in criminal cases involving violent felonies where the circumstances of the crime make the defendant’s act ‘especially contemptible.’ [Citation.]” (Piceno, supra, 195 Cal.App.3d at p. 1358.) The Piceno court noted that the fact that the victim in Piceno was pedestrian rather than a driver or passenger was not significant since the defendant did not seek out a pedestrian to collide with or take advantage of the victim based on this fact. (Id. at p. 1359.)
Here, like Piceno, Newman was a pedestrian. The circumstances, however, in the instant case support a finding that this case was an extraordinary situation in which the victim was particularly vulnerable since she was at a preexisting accident site in which it was apparent that cautionary, evasive driving measures were necessary, including slowing down, driving around Newman’s vehicle, and avoiding pedestrians at the scene. When defendant approached the site, it was obvious there had recently been a car accident. There were numerous people standing by the highway center divider and several cars were parked along the center divider, as well as on the outer shoulder of the highway.
Despite the obvious need to slow down and proceed with caution upon approaching the accident scene, there was evidence that defendant made absolutely no attempt to do so. There is evidence defendant may have applied her brakes at some point. However, several witnesses testified she sped into the area and did not apply her brakes when she slammed into Newman’s car.
The circumstances in the instant case are more akin to those in People v. Weaver (2007) 149 Cal.App.4th 1301 (Weaver) than Piceno and Bloom. Piceno and Bloom both involved intoxicated drivers who lost control of their cars and collided with the victim or the victim’s car. Weaver and the instant case, on the other hand, involve circumstances of outrageous callousness and recklessness which resulted in extremely dangerous circumstances beyond those common in drunk driving accidents, in which the driver simply loses control of his or her vehicle and strikes whatever happens to be in the path of the vehicle.
In Weaver, supra, 149 Cal.App.4th 1301, the court held there was sufficient evidence supporting the trial court’s finding that the victims were vulnerable and thus the trial court did not abuse its discretion in denying probation based on the vulnerability factor. (Id. at p. 1316.) In concluding the victims were vulnerable, the Weaver court relied on the meaning of vulnerability applied within the meaning of rule 4.421(a)(3), the provision applicable in the instant case. The Weaver court stated that, within the meaning of rule 4.421(a)(3), “Victim ‘[v]ulnerability means defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendant’s criminal act.’ (People v. Smith (1979) 94 Cal.App.3d 433, 436 [describing that term in the context of rule 4.421(a)(3)].)” (Weaver, supra, at p. 1314.)
The Weaver court further concluded that, although a finding of “particularity” was not required in determining whether the defendant was entitled to probation, even if it were required, as in rule 4.421(a)(3), there was sufficient evidence to support such a finding. (Weaver, supra, 149 Cal.App.4th at p. 1316.) The court noted that “There is no empirical evidence in the appellate record showing that the ‘usual’ victim of gross vehicular manslaughter has absolutely no advance warning or ability to attempt to avoid the defendant’s car. On the contrary, 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, thereby allowing him or her at least some opportunity to attempt to avoid the collision. Those victims presumably should be considered less vulnerable” than the Weaver victims. (Ibid.)
The Weaver court explained that the victims in Weaver were particularly vulnerable because the defendant’s car “was traveling in the opposite direction of oncoming traffic on northbound Interstate 5 at a high rate of speed. Despite the late-night darkness, its headlights were off. In contrast, the [Weaver victims’] car was traveling in the proper direction at a normal rate of speed and had its headlights on. Based on those circumstances, the trial court could have reasonably concluded [the Weaver victims] were particularly vulnerable because they, apparently unlike ‘usual’ victims of gross vehicular manslaughter, had absolutely no advance warning or ability to attempt to avoid the oncoming car.” (Weaver, supra, 149 Cal.App.4th at p. 1316.)
Here, Newman was not only vulnerable, but particularly vulnerable because she was a pedestrian on the I-15, at an accident scene. Newman had little if any opportunity to avoid being hit by defendant’s speeding car. Her survival was dependent upon oncoming drivers taking evasive action, including slowing down and changing lanes to avoid hitting her and her car. Due to defendant’s failure to take precautionary measures upon entering the accident site, defendant’s car collided at 70 to 100 miles per hour with Newman’s car and then hit Newman, killing her.
Because Newman was a pedestrian on a highway, at a preexisting accident scene, in which there were numerous parked cars and pedestrians standing by the center divider, the court reasonably found this was an extraordinary situation in which the offense was more reprehensible than most other incidents of gross vehicular manslaughter committed while intoxicated. Newman thus was a “particularly vulnerable” victim within the meaning of rule 4.421(a)(3).
Although Newman likely was at fault for causing the initial accident, this has no bearing on the determination of her vulnerability as a victim when defendant came barreling through the preexisting accident scene.
3. Denial of Probation
Defendant contends the trial court erred in finding her ineligible for probation without finding that she intentionally inflicted great bodily injury.
In the People’s sentencing brief, the People asserted that defendant was presumptively ineligible for probation under section 1203, subdivision (e)(3). Section 1203, subdivision (e)(3) provides: “(e) Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any of the following persons: [¶] . . . [¶] (3) Any person who willfully inflicted great bodily injury or torture in the perpetration of the crime of which he or she has been convicted.”
Defendant argued in her sentencing brief that defendant did not intend to harm anyone, there were unusual circumstances warranting probation, and Newman was not more vulnerable than any other vehicular manslaughter victim.
At the sentencing hearing, the trial court, relying on section 1203, subdivision (e)(3), concluded defendant was presumptively ineligible for probation absent unusual circumstances. The court denied probation, finding that the victim was “incredibly” vulnerable and thus the unusual circumstances exception to probation did not apply.
In reviewing defendant’s objection to denial of probation, “we generally apply the ‘abuse of discretion’ standard. [Citations.]” (People v. Superior Court (Dorsey) (1996)50 Cal.App.4th 1216, 1225.) Abuse of discretion depends on whether the trial court’s order “‘“exceeds the bounds of reason.”’ [Citation.]” (Ibid.) The trial court’s discretion should be controlled by sound principles of law, free from partiality, not swayed by sympathy or warped by prejudice. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) On appeal “‘[t]he 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.’ [Citation.] Concomitantly, ‘[a] decision will not be reversed merely because reasonable people might disagree. “An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.” [Citations.]’” (Id. at pp. 977-978.)
Defendant argues that this court must remand the matter to the trial court for a determination as to whether defendant was presumptively ineligible for probation since there was no finding that defendant intended to inflict great bodily injury. Defendant asserts that upon remand, it is reasonably probable the trial court will find that defendant did not intend to inflict great bodily injury on Newman. In turn, defendant would be eligible for probation since the trial court erred in relying on the victim’s particular vulnerability in denying probation.
The People respond that regardless of whether the trial court erred in relying on the section 1203, subdivision (e)(3) presumption of probation ineligibility, any such error was harmless since it is not reasonably probable that on remand the trial court would grant probation. (People v. Price (1991) 1 Cal.4th 324, 492.) We agree. Even if the court did not assume defendant was presumptively ineligible for probation under section 1203, subdivision (e)(3), it is highly unlikely the court would grant probation upon remand. During the sentencing hearing the court stated: “I don’t believe that there are any unusual facts that would justify probation.”
In addition, the court stated various valid reasons for concluding probation should not be granted. The trial court noted that, even though defendant did not have a criminal record and incarceration would seriously affect defendant and her dependents, these mitigating factors were outweighed by aggravating factors, which included victim vulnerability, defendant’s minimal remorsefulness, infliction of great bodily injury, active participation in the crime, and the likelihood defendant would be a danger to others if released.
These factors provide a valid basis for rejecting probation, even if the section 1203, subdivision (e)(3) presumption does not apply. (Rule 4.414(e).) As discussed above, there was sufficient evidence supporting the trial court’s finding that Newman was particularly vulnerable. Furthermore, in Weaver, supra, 149 Cal.App.4th at page 1315, the court held “particular” vulnerability is not required within the meaning of rule 4.414(a)(3). A finding of “vulnerability” is sufficient.
In addition to vulnerability, the other additional factors relied on by the trial court also supported denial of probation. We thus conclude that, even if the trial court erred in presuming defendant was not entitled to probation absent unusual circumstances, it is not reasonably probable the trial court would grant probation upon remand. (People v. Price, supra, 1 Cal.4th at p. 492.)
4. Sufficiency of Evidence of Gross Negligence
Defendant argues there was insufficient evidence of gross negligence to support her conviction for gross vehicular manslaughter. (§ 191.5, subd. (a).)
In reviewing a claim challenging the sufficiency of the evidence, we consider the entire record in the light most favorable to the judgment and determine whether there is substantial evidence i.e., evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact would find defendant guilty beyond a reasonable doubt. (People v. Maury (2003) 30 Cal.4th 342, 396.)
A finding of gross negligence requires evidence that the defendant’s acts are such a departure from what would be the conduct of “‘“‘an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life, or, in other words, a disregard of human life or an indifference to consequences.’”’ [Citation.] ‘The facts must be such that the fatal consequence of the negligent act could reasonably have been foreseen.’ [Citations.]” (People v. Clem (2000) 78 Cal.App.4th 346, 352; People v. Odom (1991) 226 Cal.App.3d 1028, 1032.) Something more than ordinary negligence is required. “A finding of gross negligence is made by applying an objective test: if a reasonable person in defendant’s position would have been aware of the risk involved, then defendant is presumed to have had such an awareness. [Citation.]” (People v. Watson (1981) 30 Cal.3d 290, 296.)
Defendant argues that evidence establishing that she was not grossly negligent included testimony by several witnesses, including defendant, that she applied her brakes before she hit the silver Honda. Officer Dane testified he observed skid marks indicating defendant applied her brakes before hitting the silver Honda. As to her speed, Dane testified it was possible she was driving 70 miles per hour and that the average speed on the highway was between 65 and 70 miles per hour. Defendant further notes that, although her blood alcohol level was .16 percent, she attempted to avoid striking Newman’s car and thus was not totally ignoring the road.
We conclude that despite this evidence there was ample evidence supporting the jury’s finding that defendant was grossly negligent. There was evidence defendant was traveling up to 100 miles an hour, far in excess of the speed limit; that she failed to slow down upon approaching the preexisting accident scene, unlike those who slowed down to assist Newman; and defendant slammed into the silver Honda without applying her brakes, and then hit Newman, throwing her body 20 feet into the air. Defendant conceded she was distracted by her boyfriend and was not paying attention to the road at the time. In addition, defendant was driving while intoxicated.
Such circumstances indicate a complete failure on the part of defendant to exercise caution upon approaching and entering the accident scene, even though there were numerous people standing along the center divider, several cars were parked next to the center divider and on the shoulder, cars were slowing down and pulling over, and Newman’s car was stopped in the center lanes of the southbound I-15 highway.
Such evidence, which included defendant’s reckless manner of driving, her level of intoxication, her inattentiveness to the road, and the overall circumstances of the offense, was sufficient to support findings that defendant acted with conscious indifference to the consequences and thus with gross negligence.
5. Disposition
The judgment is affirmed.
We concur: McKinster, Acting P. J., King, J.