Opinion
A126870
10-07-2011
THE PEOPLE, Plaintiff and Respondent, v. STANLEY PHILLIPS JACKS, JR., et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. 156646)
After a joint jury trial, defendants Stanley Phillips Jacks, Jr. and Eric Barnes were convicted of three counts of vehicular manslaughter with gross negligence (Pen. Code, § 192, subd. (c)(1)). Each defendant was sentenced to state prison for an aggregate term of eight years and eight months, consisting of the upper term of six years on count one and consecutive terms of one year and four months (one-third the middle term) on counts two and three. (§§ 193, subd. (c)(1), 669 & 1170.1, subd. (a).) On appeal, defendants challenge the sufficiency of the evidence to support their convictions, the trial court's excusal of a prospective juror for cause, and the trial court's denial of probation and the imposition of maximum prison sentences. We affirm.
All further unspecified statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On July 15, 2005, defendants and several friends and acquaintances were at a bar in Rodeo, California. At 1:30 or 2:00 a.m., the group decided to go to an after-hours club in Oakland. The group traveled in several cars, including a Camaro convertible driven by Barnes, a Taurus driven by Jacks, and a Maxima driven by Barnes's uncle. On the way to the club, several drivers saw defendants' cars, as well as the Maxima, traveling on the highway at speeds between 80 and 100 miles per hour; the cars were "[d]efinitely faster than the rest of the traffic,"and "kind of, passing cars in front of them." Just before the accident, the car in lane number one (driven by Jacks), and the car in lane number two (driven by Barnes), appeared to be racing each other and passed closely to another slower moving car on the freeway. An information systems analyst at the Institute of Traffic Studies at the University of California at Berkeley, qualified as an expert, confirmed that data from a dual loop sensor system showed that at 2:34 a.m., just before the accident, a vehicle in lane number one and a vehicle in lane number two were reportedly traveling at speeds in excess of 100 miles per hour.
Prosecution and defense witnesses described the traffic on the freeway from "light" to "moderate" to "kind of crowded" for a Friday night at 2:30 a.m. The other drivers were traveling at the speed limit, about 65 to 70 miles per hour.
The deadly accident occurred just after the Ashby Street exit on westbound Interstate 80 in Berkeley. The prosecution's accident reconstruction expert believed the accident occurred when Jacks, traveling at over 100 miles per hour in lane number one, made a right turn into lane number two and collided with Barnes's car, which was traveling at about the same speed as Jacks's car. The expert saw no evidence that Jacks's car had been previously hit by another vehicle or had collided with the median wall before colliding with Barnes's car. After colliding, defendants' cars veered across the freeway and both collided with the side of a tractor-trailer big rig truck traveling in lane number four. The collision with both cars caused the truck to "jackknife," and move left across the freeway, crashing through the highway median, and skidding across the lanes of oncoming eastbound traffic. The truck caught fire, and was struck by two eastbound cars. The defendants' accident reconstruction expert believed the accident was caused by the Maxima rear-ending Jacks's car, causing Jacks to lose control and bump his car into the center median divider. When Jacks tried to regain control, he turned right and collided with Barnes's car. Both cars then collided with the truck, which did not jackknife but was steered left across the traffic lanes and struck the median divider, launched itself over the median divider, rotated on its side, and skidded into and collided with eastbound traffic.
The three victims were traveling in an eastbound car, which ignited shortly after its impact with the blazing truck. Autopsy reports showed two victims (Benjamin Boussert and Julia Adesso) died as a result of blunt injuries consistent with a collision; the bodies were extensively burned after death. The third victim (Jason Choy) also suffered multiple blunt injuries, but the immediate cause of death was thermal burns and inhalation of combustion products.
Defendants were found guilty on three counts of vehicular manslaughter with gross negligence. The trial court denied defendants' requests for probation, and each defendant was sentenced to an upper term of six years for the vehicular manslaughter of one victim, and consecutive terms of one year and four months (one-third the middle term) for the vehicular manslaughter of the other two victims. These timely appeals ensued.
DISCUSSION
I. Sufficiency of the Evidence to Support Defendants' Convictions
Defendants contend there was insufficient evidence of gross negligence and causation to support the jury's verdict. However, we agree with the Attorney General that the jury's verdict is supported by substantial evidence.
The testimony of David Padilla and Christopher Ford amply supports a finding that both defendants were speeding and engaged in a speed contest or exhibition of speed at the time of the accident. Padilla testified he was driving one of the cars with the group that night. When the cars entered the freeway, defendants were traveling faster than other traffic and passing other cars. Padilla initially told the police that he believed defendants were probably driving at 100 miles per hour because he was driving at 80 to 90 miles per hour and defendants were going faster. At trial Padilla did not make an estimate of defendants' speeds but confirmed he was driving at 80 to 90 miles per hour and was unable to keep up with defendants. Ford, who was driving home on the freeway at 2:30
a.m., testified that in his side-view mirror he saw two cars "racing" towards him in lanes number one and two at speeds between 90 and 100 miles per hour. When he saw the cars approaching, Ford moved from lane number four to lane number five as a safety measure. Ahead of Ford was a big rig truck in lane number three and a white car in lane number two; both vehicles were driving between 50 and 60 miles per hour as was Ford. When the two speeding cars caught up to the slower white car, the speeding car in lane number two initially began to move to the right to pass but "immediately changed direction" and moved toward lane number one. The speeding car that was in lane number one moved to the left into the center divider, a "little half lane that sits between the actual physical concrete barrier and the white line on the left-hand side and basically straddled that area." The two speeding cars then maneuvered around the slower white car by "squeez[ing] to the left of the white car," and then continued down the freeway. Maybe 15 or 20 seconds later, Ford saw a spark between the two speeding cars and saw them spinning in front of the big rig truck, which was veering left and heading for the center divider. The accuracy of the estimates of defendants' speeds proffered by these two eyewitnesses is bolstered by the prosecution's expert who testified regarding the data retrieved from the dual loop sensor system.
Defendants argue that even if they were speeding, a finding of gross negligence is not supported in view of the following factors: the absence of evidence that they were driving under the influence of alcohol or marijuana at the time of the accident, the "light" traffic on the freeway at 2:30 a.m., the absence of bad weather, and Ford's observation that defendants were driving with "reasonable skill." However, as the trial court properly instructed, it was for the jury to decide whether defendants' conduct amounted to gross negligence. (See People v. Ochoa (1993) 6 Cal.4th 1199, 1207-1208; People v. Bennett (1991) 54 Cal.3d 1032, 1036-1038.) The fact that defendants were apparently not impaired by alcohol or marijuana supports the jury's finding that their driving was a deliberate choice and "not the result of inattention, mistaken [] judgment, or misadventure." Nor do the other purportedly mitigating circumstances described by defendants negate, as a matter of law, the jury's verdict that their driving under the existing conditions was "the natural and probable result of an aggravated, reckless or flagrantly negligent act."
There was evidence that earlier in the evening Barnes had a beer and Jacks had several drinks and smoked marijuana. Because of the speed at which defendants' cars and the truck are traveling, their impact was "very brief," about one-third to one-half of a second, causing Barnes's car to spin onto the center median of the freeway, and Jacks's car to spin onto the opposite shoulder of the freeway. Shortly after the incident, the police questioned defendants and neither defendant appeared to be intoxicated or under the influence of marijuana. After talking to the police, defendants were not immediately arrested. Barnes was taken to a hospital in an ambulance and Jacks left the area in a friend's car. There was no evidence that either defendant was ever tested for alcohol or drugs after the incident.
Ford testified he "thought [the cars] were going fast, but [the drivers] weren't, they weren't weaving." He "didn't get the impression that they were drunk or anything like that, just moving;" and driving with "reasonable skill." He recalled thinking at the time that defendants' "maneuver" of passing the slower moving white car was "kind of cool." He later explained, "I'm an exceptionally poor driver, but 100 miles an hour is awfully fast. I mean, I'm not sure I would want to be going 100 miles an hour with some one in the lane right next to me also doing 100 miles an hour. [¶] I'm not sure I would be doing 100 miles an hour at all; but I would be nervous, quite frankly, about whether or not I was going to hit that car or something else, which is why I say it would require skill."
Jacks also contends his "negligence was not a 'substantial factor' in causing the death of the victims; but rather [the cause] was a remote factor that broke the causal chain." He explains: "The causal chain here was interrupted by an unforeseeable and abnormal intervening cause, i.e., the crashing of the truck through the median and its subsequent catching on fire." Barnes joins in this argument and adds that his driving was not even part of the causal chain because it was Jacks's car that unexpectedly entered his lane and struck his car. These arguments are unavailing.
" 'In law, the term "superseding cause" means "an independent event [that] intervenes in the chain of causation, producing harm of a kind and degree so far beyond the risk the original [wrongdoer] should have foreseen that the law deems it unfair to hold him responsible." ' [Citation.] ' "In general, an 'independent' intervening cause will absolve a defendant of criminal liability. [Citation.] However, in order to be 'independent' the intervening cause must be 'unforeseeable . . . an extraordinary and abnormal occurrence, which rises to the level of an exonerating, superseding cause.' [Citation.] On the other hand, a 'dependent' intervening cause will not relieve the defendant of criminal liability. '. . . If an intervening cause is a normal and reasonably foreseeable result of defendant's original act the intervening act is "dependent" and not a superseding cause, and will not relieve defendant of liability.' " ' " (People v. Brady (2005) 129 Cal.App.4th 1314, 1325.) In this case, it was entirely foreseeable that two cars driving in tandem on a public highway at 100 miles per hour would collide either with another vehicle or a highway fixture, ricochet, and cause significant damage to other nearby vehicles and their occupants. While the precise sequence of events may not have been predictable, it was fully predictable that a high speed collision would result in disastrous consequences including death to any number of foreseeable victims. There is nothing about the manner in which the accident occurred that was a superseding cause of the victims' deaths. (Id. at pp. 1330-1331; People v. Schmies (1996) 44 Cal.App.4th 38, 51-52 [conduct of police officers who chased defendant was not superseding cause of death of third-party motorist].)
Defendants did not request an instruction on superseding cause and do not argue that the trial court erred in failing to so instruct the jury sua sponte.
We also see no merit to Barnes's argument that his conduct was not a substantial factor in causing the accident and he should be relieved of liability because his car was struck by Jacks's car. (See People v. Pike (1988) 197 Cal.App.3d 732, 749-750; People v. Harris (1975) 52 Cal.App.3d 419, 426-427.) By racing on the freeway, Barnes actively created a situation where a slight error by either driver could foreseeably result in a major accident. Certainly, two cars racing parallel at 100 miles per hour is considerably more dangerous than a single car traveling at the same speed. The prosecution's accident reconstruction expert explained that the truck being hit by two speeding cars, rather than one, was significant in terms of the forces applied to the truck and the manner in which the truck reacted to those forces. According to the expert, Barnes's conduct was a cause of the collision with the truck because if Barnes had not been racing with Jacks, the collision with the truck would not have happened. Accordingly, the jury could reasonably find that defendants "were not acting independently of each other, and that they were jointly engaged in a series of acts which led directly to the collision." (People v. Kemp (1957) 150 Cal.App.2d 654, 659.) "The language of section 192 of the Penal Code is broad enough to impose criminal liability in this situation and the evidence, with the reasonable inferences therefrom, is sufficient to show that the [gross vehicular manslaughters were] a proximate result of the commission of an unlawful act or acts on the part of [both defendants], within the meaning of that section." (Ibid.)
II. Trial Court's Excusal of Prospective Juror for Cause
During voir dire, the prosecutor moved to excuse a prospective African-American woman juror for cause because in her written questionnaire she failed to disclose that in 1996 she had been arrested for misdemeanor vandalism. The potential juror had disclosed that her brother had been charged with a crime but she failed to mention her own criminal history. To establish the arrest, the prosecutor relied on CORPUS, the criminal history system used by the District Attorney's office, which in this case showed that the prospective juror had been arrested in 1996, had failed to appear twice, and the case had been dismissed in 1999. Barnes's counsel challenged the accuracy of the CORPUS system, and both counsel argued, among other things, that given the lack of details regarding the incident, the prospective juror should have been questioned about the arrest because it was possible her failure to mention it was inadvertent. The trial court rejected defense counsels' arguments and excused the juror.
On appeal, defendants seek reversal based on the trial court's excusal of the prospective juror for cause. However, we need not determine whether the trial court erred in excusing the prospective juror because any potential error was harmless. " '[T]he general rule [is] that an erroneous exclusion of a juror for cause provides no basis for overturning a judgment.' " (People v. Holt (1997) 15 Cal.4th 619, 656 (Holt).) "Defendant has a right to jurors who are qualified and competent, not to any particular juror." (Ibid.)In this case, as in Holt, defendants do not contend that as a result of the excusal, "a juror was seated who did not meet those criteria or that, as result of [the juror's] excusal, [they were] tried before a jury that was not fair and impartial." (Ibid.)
Relying on Thiel v. Southern Pacific Co. (1946) 328 U.S. 217 [66 S.Ct. 984, 90 L.Ed. 1181] (Thiel), defendants suggest they are entitled to a new trial without a showing of prejudice because "[t]he result of the court's failure to question [the juror] impacted on the exclusion of African American jurors from [their] trial, rendering the jury constitutionally unrepresentative." However, as explained by the high court in Frazier v. U.S. (1948) 335 U.S. 497, 504 [69 S.Ct. 201, 93 L.Ed. 187]: "Thiel [is] inapplicable, for the reasons that it requires a showing of systematic exclusion or attempt to exclude from the panel a particular occupational group or groups otherwise eligible for jury service, and the statements and conclusions of counsel here disclosed no such attempt."Defendants' belated argument of racial bias is therefore unavailing.
In discussing the matter at trial, Barnes's counsel explicitly indicated he was not making a motion pursuant to People v. Wheeler (1978) 22 Cal.3d 258, thereby implicitly acknowledging that the prosecutor's request was not based on the prospective juror's race. Additionally, the trial court noted the prospective juror's race did not "contribute" to its decision as it "would have made this exact same ruling no matter . . . the racial or ethnic background of the prospective juror . . . ." Thus, as the Attorney General correctly notes, "the ethnic background of the juror [was] of no moment here."
In the absence of any showing that the jury pool or the final jury selected did not represent a cross-section of the community, we reject defendants' conclusory argument that the trial court's excusal of one prospective juror denied them "a jury drawn from a cross-section of the community, to equal protection and to due process of law under the Sixth and Fourteenth Amendments."
III. Defendants' Sentences
Defendants contend the trial court abused its discretion by denying their requests for probation, selecting the upper term of six years on count one, and imposing consecutive sentences on counts two and three. We conclude that there is no basis to set aside the trial court's sentencing decisions.
In refusing to place defendants on probation, the trial court explained in pertinent part: "The factors that I am most impressed by in determining whether or not to grant probation are set out in the sterile language of the [California] [R]ules of [C]ourt, [rule] 4.414(a)(1), (3) and [(6)]. [¶] Subdivision (a)(1) is the Court should consider the nature, seriousness and circumstances of the crime as compared to other instances of the same crime; [¶] Subdivision (a)(3) is the vulnerability of the victim; [¶] Subdivision (a)(6) . . . is whether the defendant was an active or passive participant. [¶] As I indicated, that language is very sterile. Applying it to the facts of this case brings it more, presents it in a much more meaningful way. Considering the nature and seriousness and the circumstances of this crime, it is hard to imagine more serious conduct in terms of the manner in which they drove their automobiles than that exhibited by these defendants. They were racing each other down a freeway at speeds over one hundred miles an hour, putting everyone around them in terrible danger. It is also hard to imagine more hideous deaths than that suffered by the victims in this case. [¶] It is perhaps every driver's worst nightmare; it certainly is every parent's worst nightmare, every relative, friends, loved one's who might get that phone call that relates to them the awful facts of this case. [¶] I am not going to focus at this point on the fact that three victims died. I will address that point later. But I am going to turn to the circumstances of the death of just one of the three victims. [¶] And the single victim I'd like to focus on at this point is Mr. Jason Choy. Unlike the other two individuals who lost their lives due to blunt force trauma, who died nearly immediately, Mr. Choy's cause of death was twofold: One was blunt force trauma, multiple blunt injuries, but the other was that he burned to death. [¶] The autopsy surgeon testified, and his testimony was uncontroverted, that Mr. Choy was alive when he ingested a great deal of cyanide gas, which is a by-product of the combustion of the car in which he was riding. He ingested a great deal of carbon monoxide, also a side effect or by-product of the combustion. [¶] Because these gasses were deep in his lungs and in his bloodstream, the indications and the reasonable inferences that were drawn by the autopsy surgeon is that he was alive when this was happening to him. I cannot imagine a more unbearable situation than this. [¶] So when I am asked to consider the nature, seriousness and circumstances of the crime, I can't imagine a more serious or more hideous circumstance than this. And this circumstance in my judgment dwarfs all others, whether they are circumstances in aggravation or mitigation, it simply dwarfs everything else. [¶] Were the victims vulnerable? Of course, they were. They were driving on a highway, they had no way of escaping their impending death, they had no way of turning away or of stopping that truck as it slid towards them blocking all lanes of traffic, they had no way of preventing the collision or the resulting conflagration. They were totally helpless. There are no circumstances wherein a victim can be more vulnerable than this. [¶] Were the defendants active or passive participants? Well of course they were active participants and the jury so found." The court further explained that probation was inappropriate, "notwithstanding the factors in mitigation which are present, notwithstanding the lack of criminal history which is certainly the case in Mr. Barnes'[s] case and in Mr. Jacks'[s] case, notwithstanding all of the other circumstances urged by the probation officer and appropriately urged by the people who have addressed the Court today, the simply hideous nature of the crime itself and the resultant death -and I'm focusing again on only one of these three individuals - the seriousness of the defendants' conduct, the vulnerability of the victims and the active involvement in the crime which led to the injuries and the death, as I have said, dwarfs everything else, they simply dwarf everything else."
In explaining its reasons for selecting the upper term on count one, the trial court stated in pertinent part: "[T]he rule is I may use the fact multiple victims have lost their lives as a ground[ ] to . . . either . . . impose the [upper] term . . . or to impose consecutive sentences but not to do both. However, the rules of court allow the Court to consider other reasons independent of the number of victims in determining whether or not to select a term of imprisonment. [¶] Rule of Court 4.420 sets outs the various criteria in subdivision (b). It says in very general terms 'In exercising his or her discretion in selecting one of the three authorized prison terms the sentencing judgment may consider circumstances in aggravation or mitigation and any other factor reasonably related to the sentencing decision. [¶] The relevant circumstances may be impending from a number of sources, including the case record. The case record of course is the evidence that was presented to the jury in this case. [¶] So in determining what is the appropriate sentence to be imposed as to each defendant, I am considering the following: I am not considering the fact that multiple victims lost their lives, I will not consider that in determining what is the appropriate term. [¶] I will consider the fact that the victims were extraordinarily vulnerable, that's appropriate under Rule of Court 4.421, and I will consider the degree, the hideous degree of violence that was involved. I will consider the circumstances involving the death of Mr. Choy. [¶] Again I am not considering the fact that multiple victims died. I am considering the manner in which Mr. Choy met his death that I previously articulated. Those factors, I feel, are factors in aggravation which dwarf any other factors." After indicating the proposed imposition of the upper term on count one, the court stated it would impose consecutive terms on counts two and three based on the fact that multiple victims had died as a consequence of defendants' criminal conduct. The court concluded by remarking: "I realize the decision I have made is not one that meets with the approval or understanding of some of the people in the courtroom. [¶] But I will assure you this: I have thought very seriously about this and I feel a sentence of eight years and eight months is entirely commensurate with the gravity and the seriousness of the offenses which ha[ve] resulted in the death of three human beings."
Jacks challenges the denial of probation, arguing that the trial court "completely ignored" "extremely compelling mitigating factors" when it stated its reasons for rejecting probation. He similarly challenges the selection of the upper term on count one because the trial court "incorrectly stated the aggravating factors 'dwarfed any other factors,' " and, "[to] the contrary, the numerous mitigating factors dwarfed the limited aggravating factors." He also contends the imposition of consecutive terms "clearly contradicted" the criteria enumerated in California Rules of Court rule 4.425.
All further unspecified references to rules are to the California Rules of Court.
Barnes challenges the denial of probation and the selection of the upper term on count one on the grounds that the trial court made improper use of the criteria enumerated in rules 4.414 and 4.421, and failed to rely on any of the criteria enumerated in rules 4.414 and 4.423 that would support either a grant of probation or a lower or middle term on count one. He also challenges the imposition of consecutive terms on the grounds that the trial court failed to consider the criteria enumerated in rule 4.425, and the myriad mitigating circumstances in his favor.
Initially, we agree with the Attorney General that during the sentencing hearing defendants did not object to the trial court's failure to consider any mitigating factors or its reliance on certain criteria affecting probation and circumstances in aggravation as enumerated in rules 4.414 and 4.421. Consequently, these appellate contentions are not properly before us. (People v. Gonzalez (2003) 31 Cal.4th 745, 751-756 (Gonzalez); People v. Scott (1994) 9 Cal.4th 331, 353-354 (Scott).)Barnes's contention in his reply brief that he was never given a meaningful opportunity to object to the trial court's sentencing decisions is not supported by the record. If Barnes was surprised by the trial court's sentencing decisions, he could have asked "for a brief continuance to research whether an objection [was] warranted, or for permission to submit written objections within a specified number of days after the sentencing hearing." (Gonzalez, supra, 31 Cal.4th at p. 754.) Nevertheless, "a defense attorney who fails to adequately understand the available sentencing alternatives, promote their proper application, or pursue the most advantageous disposition for his client may be found incompetent." (Scott, supra, 9 Cal.4th at p. 351.) Consequently, we will address defendants' unpreserved contentions to forestall any claim of ineffective assistance of counsel.
Defendants' argument that the trial court ignored mitigating factors is not supported by the record and is without merit. Before imposing sentence, the trial court considered, among other things, the probation department reports and various documents submitted by defense counsel, and heard defense counsel's arguments, and statements from defendants and their relatives. Albeit unsuccessfully, both defense counsel strongly and explicitly articulated several mitigating factors in defendants' favor, and argued that despite the seriousness of defendants' conduct and the loss of life, the trial court should either grant probation or impose a mitigated term of imprisonment. During its lengthy sentencing decision covering 16 pages of the reporter's transcript, the trial court mentioned it had considered the mitigating factors, but concluded those factors did not outweigh the manner in which the crime was committed leading to the almost inevitable horrendous consequences of the offense. We see no evidence that the trial court ignored or overlooked mitigating evidence. Pursuant to section 1170, subdivisions (b) and (c), as amended in 2007, a trial court is required to specify reasons for its sentencing decisions, but it is no longer required "to weigh aggravating or mitigating circumstances." (People v. Sandoval (2007) 41 Cal.4th 825, 847 (Sandoval); id. at p. 857 [amended section 1170(b) applicable even though offense committed before enactment of 2007 amendment].) Defendants' reliance on the probation officer's favorable recommendations is similarly misplaced. The probation officer's recommendation "is advisory only, provided in order to aid the sentencing court in determining an appropriate disposition, and may be rejected in its entirety. [Citations.]" (People v. Delson (1984) 161 Cal.App.3d 56, 63 (Delson))
In March 2007, section 1170 was amended to read, in pertinent part: "(b) When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. At least four days prior to the time set for imposition of judgment, either party or the victim, or the family of the victim if the victim is deceased, may submit a statement in aggravation or mitigation. In determining the appropriate term, the court may consider the record in the case, the probation officer's report, other reports, including reports received pursuant to Section 1203.03, and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing. The court shall select the term which, in the court's discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected and the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law. . . . [¶] (c) The court shall state the reasons for its sentence choice on the record at the time of sentencing."
" 'The grant or denial of probation is within the trial court's discretion and the defendant bears a heavy burden when attempting to show an abuse of that discretion. [Citation.]' [Citation.] 'In reviewing [a trial court's determination whether to grant or deny probation,] it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial court's order granting [or denying] probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances.' [Citation.]" (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311 (Weaver))
Contrary to defendants' contentions, no abuse of discretion in the trial court's denial of probation is evident. Among the enumerated "criteria affecting probation" is "[t]he nature, seriousness, and circumstances of the crime as compared to the other instances of the same crime." (Rule 4.414(a)(1).) In denying probation, the trial court appropriately focused on both the manner in which both defendants were driving and the nature of Mr. Choy's death in deciding that the seriousness and circumstances of the offense was considerably more serious than other instances of vehicular manslaughter with gross negligence. Barnes's attempt to minimize his conduct is not persuasive. The evidence established that both defendants were driving in a parallel formation at about 100 miles per hour on the freeway. Shortly before the accident they both used unsafe passing maneuvers to get around slower moving traffic, as witnessed by Ford. Thus, the trial court's characterization of both defendants' conduct as "racing" is not an unreasonable inference to be drawn from the evidence. Additionally, defendants' conduct of driving at speeds of about 100 miles per hour caused a massive multi-car accident in which the victims' car crashed into a burning truck. The trial court's observation that the conduct of both defendants put "everyone around them in terrible danger" is supported by the evidence that in addition to the three deaths, the tractor-trailer truck driver was injured and an eastbound driver sustained some injury from his collision with the victims' car immediately after its collision with the truck.
Because the trial court reasonably found the seriousness and circumstances of the offense outweighed all other factors both in aggravation and mitigation, we do not need to address defendants' arguments regarding the trial court's reliance on additional factors in denying their requests for probation.
Nor do we see any abuse of discretion in the trial court's imposition of the upper term on count one. "[A] trial court is free to base an upper term sentence upon any aggravating circumstance that the court deems significant, subject to specific prohibitions. (See, e.g., Cal. Rules of Court, rule 4.420(c) [fact underlying an enhancement may not be used to impose the upper term unless the court strikes the enhancement]; id., rule 4.420(d) [fact that is an element of the crime may not be used to impose the upper term].) The [trial] court's discretion to identify aggravating circumstances is otherwise limited only by the requirement that they be 'reasonably related to the decision being made.' (Cal. Rules of Court, rule 4.408(a).)" (Sandoval, supra, 41 Cal.4th at p. 848.)
We conclude that the trial court appropriately considered as an aggravating factor that defendants' criminal conduct involved a "hideous degree of violence" that led to the horrendous death of Mr. Choy. "The essence of 'aggravation' relates to the effect of a particular fact in making the offense distinctively worse than the ordinary." (People v. Moreno (1982) 128 Cal.App.3d 103, 110.) Among the circumstances that a trial court may consider in aggravation is that the "crime involved great violence, great bodily harm, threat of bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness." (Rule 4.421(a)(1).) The trial court's reliance on the circumstances and consequences of defendants' criminal conduct appears to fall within rule 4.421(a)(1). (Weaver, supra, 149 Cal.App.4th at p. 1322 [trial court's description of vehicular manslaughter "offense as 'horrific' may fall within" rule 4.421(a)(1)].) Defendants' assertion that the trial court's reliance on rule 4.421(a)(1) was improper is not persuasive. "In imposing the upper term, the trial court certainly has the obligation to go beyond a casual reading of terms which define the factors in aggravation." (People v. Harvey (1984) 163 Cal.App.3d 90, 116-117 (Harvey).)As applied to rule 4.421(a)(1), "this means the [trial] court must convince itself that, when compared to other ways in which such a crime could be committed, the manner of this crime's commission" (Harvey, supra, at p. 117), involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness, than other instances of vehicular manslaughter with gross negligence. We presume "the hideous degree of violence" surrounding the offense that was considered by the trial court was not an element of the vehicular manslaughter offense and therefore could be considered in imposing an upper term on count one. (See Weaver, supra, 149 Cal.App.4th at p. 1322, fn. 22; People v. Castorena (1996) 51 Cal.App.4th 558, 562 ["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"].)
Because the trial court may rely on a single aggravating factor to impose an upper term (People v. Osband (1996) 13 Cal.4th 622, 728), we do not need to address defendants' arguments regarding the trial court's reliance on the victims' particular vulnerability.
Even if the trial court's reasons for its sentencing decisions do not fall explicitly within the enumerated "[c]riteria affecting probation" (rule 4.414), and "[c]ircumstances in aggravation" (rule 4.421), as defendants suggest, a remand for resentencing would "be an idle and unnecessary, if not pointless, judicial exercise" on this record. (People v. Coelho (2001) 89 Cal.App.4th 861, 889.) "The enumeration in these rules of some criteria for the making of discretionary sentencing decisions does not prohibit the application of additional criteria reasonably related to the decision being made." (Rule 4.408(a).) Despite defendants' arguments to the contrary, there is substantial evidence to support the trial court's finding that the criminal conduct of both defendants warranted a denial of probation and a sentence of the upper term on count one. By driving at speeds of over 100 miles per hour and making unsafe maneuvers as they both closely passed slower moving traffic, defendants' conduct made it almost certain that any minor error on either driver's part or any interference with their cars by another driver would lead to the horrendous multi-vehicle collision that actually occurred in this case. If we remanded the matter, the trial court could merely eliminate all references to the specific criteria enumerated in the rules, and properly reach the same sentencing decisions. (See also Weaver, supra, 149 Cal.App.4th at p. 1325 [" '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. [Citation.]' "].)
"The Advisory Committee Comment to California Rules of Court, rule 4.408 notes: 'The variety of circumstances presented in felony cases is so great that no listing of criteria could claim to be all-inclusive. [Citation.] [¶] The relative significance of various criteria will vary from case to case. This, like the question of applicability of various criteria, will be decided by the sentencing judge.' " (Sandoval, supra, 41 Cal.4th at p. 825, fn. 10.)
Finally, we see no merit to defendants' arguments challenging the trial court's imposition of consecutive terms. A trial court is permitted to impose consecutive sentences when two or more crimes are transactionally related and each involves a different victim. (People v. Calhoun (2007) 40 Cal.4th 398, 407-408 (Calhoun); see People v. Valenzuela (1995) 40 Cal.App.4th 358, 363-365 [court upheld consecutive sentences where death of two victims was caused by defendant driving drunk in excess of 70 miles per hour and colliding with victims' car, rejecting defendant's argument that consecutive sentences were prohibited by former rule 425 [now 4.425].) Because the trial court did not impose the upper term on count one based on the fact of multiple victims, that fact was properly relied on to impose consecutive terms. (Calhoun, supra, 40 Cal.4th at p. 408.)
At one point when discussing its reasons for imposing consecutive sentences, the trial court said: "I have indicated that I am imposing the upper term for reasons totally apart from the fact that three victims met their death. I am not considering the fact that three victims died in this case to determine whether or not consecutive sentences should be imposed and in my judgment consecutive sentences should be imposed." (Emphasis added.) We agree with the Attorney General that the trial court apparently misspoke when it reportedly said it was not considering the fact of multiple victims in its determination to impose consecutive terms. When the trial court's comments are read in context, we can be reasonably certain it meant to impose consecutive terms based on the fact of multiple victims, which fact was admittedly not used to impose the upper term on count one.
We conclude by noting that on matters of sentencing, the trial court is to be "guided by statutory statements of policy, the criteria of [the rules of court], and the facts and circumstances of the case." (Rule 4.410(b).) 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 objections, 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.]' [Citation.]" (People v. Superior Court (Alvarez)(1997) 14 Cal.4th 968, 977-978.) "Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 377.) Thus, even if different sentences for these defendants might appear to be more appropriate, and "reasonable minds, even the individuals on this court, might come to that conclusion," we may not "interfere[] with the discretion exercised by the [trial] court where, as here, it has properly considered the facts bearing on the offense and defendant[s] and has adequately stated reasons for its sentence choice[s]." (Delson, supra, 161 Cal.App.3d at p. 63.) Because the record here "demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law," we must affirm its sentencing decisions. (People v. Myers (1999) 69 Cal.App.4th 305, 310.)
DISPOSITION
The judgment is affirmed.
McGuiness, P.J.
I concur:
Jenkins, J. POLLAK, J., Concurring and Dissenting.
I concur in the majority decision, except in one respect. I agree that the evidence fully supports the conviction of both defendants and that for the reasons discussed by the majority, the trial court acted well within its discretion in denying probation. However, I do not believe that either of the two factors on which the court relied in selecting the upper term sentence are permissible under the governing rule of court, California Rules of Court, rule 4.421.
All rule references are to the California Rules of Court.
The trial court explained its selection of the upper term sentence as follows: "I am not considering the fact that multiple victims lost their lives, I will not consider that in determining what is the appropriate term. [¶] I will consider the fact that the victims were extraordinarily vulnerable, that's appropriate under Rule of Court 4.421, and I will consider the degree, the hideous degree of violence that was involved. I will consider the circumstances involving the death of Mr. Choy." Neither factor could properly be used to impose the aggravated term in this case.
Rule 4.421(a)(3) includes as a circumstance in aggravation that "[t]he victim was particularly vulnerable." "[A] 'particularly vulnerable' victim is one who is vulnerable 'in a special or unusual degree, to an extent greater than in other cases. Vulnerability means defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendant's criminal act. An attack upon a vulnerable victim takes something less than intestinal fortitude. In the jargon of football players, it is a cheap shot.' " (People v. Bloom (1983) 142 Cal.App.3d 310, 321.) This factor is typically applied "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." (Id. at pp. 321-322.)
In Bloom, the court held that the trial court erred in using the vulnerability of the victim to impose the upper term sentence for defendants' conviction for gross vehicular manslaughter. (People v. Bloom, supra, 142 Cal.App.3d at p. 322.) In that case, the accident occurred when defendant, who was intoxicated, swerved to avoid a rear-end collision, lost control, crossed over the center line and collided head-on with the victim's car. The court observed that all victims of vehicular manslaughter were necessarily vulnerable victims. "There 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." (Ibid.) The court concluded however, that "it is precisely because they are all vulnerable that [this victim] 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 [this circumstance in aggravation] to this case." (Ibid.)
In People v. Piceno (1987) 195 Cal.App.3d 1353, 1358-1359, the defendant, who had been drinking and smoking marijuana before causing a fatal accident, was convicted of vehicular manslaughter without gross negligence. The Court of Appeal here also held that the trial court erred in using the victim's vulnerability as a circumstance in aggravation to select the upper term sentence. The court explained, " '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." (Id. at p. 1358, citing People v. Bloom, supra, 142 Cal.App.3d at p. 322.) The court in Piceno added that the factor was also not applicable because "the drunk driver does not seek to take deliberate advantage of the vulnerability of victims, unlike the situation in other criminal cases." (Ibid.) The court observed that there was no evidence that "the circumstances of the crime make the defendant's act 'especially contemptible.' " (Ibid.; see also, e.g., People v. Levitt (1984) 156 Cal.App.3d 500, 515, superseded by statute on another ground as stated in People v. Browning (1991) 233 Cal.App.3d 1410, 1413.)
In People v. Weaver (2007) 149 Cal.App.4th 1301, 1321, however, the court rejected defendant's argument that the trial court erred by relying on victim vulnerability as an aggravating circumstance under rule 4.421(a)(3). The Weaver court distinguished Bloom and Piceno as follows: "[T]here is substantial evidence to support a finding that [the victims], in the circumstances of this case, were in fact particularly vulnerable victims of Weaver's crime. 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 (whether a [Pen. Code,] § 191.5, subd. (a) offense or otherwise) in which the victim has at least some advance notice or warning of the imminent risk posed by the defendant's car that allows him or her at least some opportunity to attempt to avoid the collision. Those victims presumably should be considered less vulnerable than [the victims] in this case. Weaver'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 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 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, at p. 1321.)
In this case, the court found that the victims were vulnerable because "[t]hey were driving on a highway, they had no way of escaping their impending death, they had no way of turning away or of stopping that truck as it slid towards them blocking all lanes of traffic. They had no way of preventing the collision or the resulting conflagration." These facts do not establish the particular vulnerability of the victims; the distinction drawn in Weaver is not persuasive and certainly is not applicable here.
As pointed out by the Ninth Circuit Court of Appeals following an exhaustive review of California cases interpreting the particular vulnerability factor, "Weaver, like all of the cases we have cited, is a California Court of Appeal case, and cannot overrule the many cases that have reached a different result on this issue." (Butler v. Curry (9th Cir. 2008) 528 F.3d 624, 650, fn. 18.) In the course of its opinion the Ninth Circuit observed, "In the overwhelming majority of cases, 'particularly vulnerable victims' have had inherent personal characteristics that, sometimes in combination with the manner in which the crime was committed, render them more vulnerable than other victims. [Citations.] [¶] The California courts have in a few cases relied on aspects of the status of the victim that are more changeable than age or physical frailty, but have done so only when the victim was seriously, if only temporarily, incapacitated." (Id. at p. 649.) "Moreover, as we have already discussed, a victim must be not only vulnerable, but 'particularly' vulnerable in relation to other victims of the same crime." (Id. at p. 650.)
Differentiating between victims of a collision on the basis of whether they had the opportunity to attempt to avoid the accident has no connection to the culpability of a defendant's conduct. A defendant's conduct is not less objectionable because the unfortunate victim tried to avoid the accident but was unable to do so. As the court observed in Piceno, the victim's inability to anticipate and respond to the danger caused by the defendant's conduct is no indication that the defendant was attempting "to take advantage" of the victim's vulnerability. The absence of an attempt to avert the collision by the victim does not increase the culpability of the negligent driver and provides no rational basis for increasing the sentence for the offense. The facts cited by the trial court are not sufficient to render these victims "particularly vulnerable" within the meaning of rule 4.21(a)(3).
I do not suggest that particular vulnerability of the victim of a vehicular manslaughter could never, as a matter of law, be a proper circumstance in aggravation. However, the extraordinary circumstance necessary to invoke this factor in a vehicular manslaughter case requires some showing that the risk created by the defendant's conduct targeted peculiarly vulnerable individuals, or that the defendant was aware that he (or she) was driving in an area where there was a particular risk of injuring vulnerable persons. For example, a driver of a school bus whose gross negligence caused the death of children who were passengers in the bus might well justify a finding that the victims were particularly vulnerable. Similarly, driving recklessly through a marked school zone might well justify such a finding. But there was nothing about the unfortunate victims in this case travelling upon the public highway that made them more vulnerable or likely to be injured by a reckless driver than any other traveler on the highway.
The court's reliance on the degree of violence involved in this case was similarly misplaced. As discussed in the majority opinion, the extreme degree of defendants' recklessness and the horrible consequences of their gross negligence were properly considered in denying them probation. However, there is a significant difference between the relevant criterion affecting the decision to grant or deny probation and the criterion for selecting the aggravated prison term. "The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime" are specified in the rules of court as relevant factors in determining whether to grant or deny probation. (Rule 4.414(a)(1).) However, the corresponding factor affecting selection of the aggravated term includes an additional consideration. Rule 4.421(a)(1) specifies the following as a circumstance in aggravation: "The crime involved great violence, great bodily harm . . . or other acts disclosing a high degree of cruelty, viciousness, or callousness." In People v. McNiece (1986) 181 Cal.App.3d 1048, 1061, overruled on other grounds in People v. McFarland (1989) 47 Cal.3d 798, 805, the court held that because bodily harm resulting in death is an element of felony vehicular manslaughter, reliance upon that fact to aggravate the term of imprisonment is improper. The court explained, "This aggravating factor requires more than the basic fact of bodily harm. [Citation.] To be an aggravating factor, appellant must have committed cruel, vicious, and callous acts beyond the basic crime of vehicular manslaughter. [Citation.] 'The essence of "aggravation" relates to the effect of a particular fact in making the offense distinctively worse than the ordinary.' " (Ibid.) The aggravating factor "cannot be applied in a case where there are no facts in the case upon which such criteria could be found to be applicable other than facts which are inseparable from the commission of the crime itself." (People v. Golliver (1990) 219 Cal.App.3d 1612, 1619.)
"In considering 'viciousness or callousness' under the sentencing rule, the court has an obligation to convince itself that, when compared to other ways in which such a crime could be committed, the manner of the instant crime's commission indicated viciousness and callousness." (22A Cal.Jur.3d (2011) Criminal Law: Post-Trial Proceedings-Trial Court, § 389.) As stated in People v. Nevill (1985) 167 Cal.App.3d 198, 206, the rule of court "talks about crimes involving great violence such that they disclose a high degree of cruelty, viciousness or callousness on the part of the perpetrator. . . . Nevill tells us that Webster's New World Dictionary defines 'callousness' as a character trait implying cold bloodedness or unfeeling. We accept that definition . . . ." (Italics in original; see also, e.g., People v. Duran (1982) 130 Cal.App.3d 987, 991 ["cruel, vicious, callous acts which transcend the basic fact of great bodily harm" necessary to support application of aggravating factor].)
Here, the court relied on the fact that Mr. Choy's death involved a "hideous degree of violence." Although the circumstances of Choy's death undoubtedly were horrific, the painful manner of his death was not caused by conduct reflecting cruelty, viciousness, or callousness beyond the necessary elements of the offense. Substantial evidence supports the jury's finding that defendants' conduct was "such a departure from the conduct of an ordinarily prudent, careful person under the same circumstances as to be contrary to a proper regard for human life or danger to human life or to constitute indifference to the consequences of those acts." Defendants therefore were properly convicted of vehicular manslaughter and they were properly denied probation. However, there is no evidence of "cold bloodedness" or indifference to the suffering of the victims of the collision that defendants caused. There was no "cruelty, viciousness or callousness" beyond that required to establish their gross negligence. Nothing in the majority opinion suggests otherwise.
I do not question that the trial court has wide latitude in the interpretation and application of aggravating and mitigating factors, and may balance them against each other qualitatively as well as quantitatively. (People v. Lamb (1988) 206 Cal.App.3d 397, 401.) Nor do I question the authority of the trial judge to rely on "additional criteria reasonably related to the decision being made" (rule 4.408(a)), other than those enumerated in rule 4.421, to select the aggravated term. However, rule 4.408(a) also provides that "[a]ny such additional criteria must be stated on the record by the sentencing judge." Here, the trial judge did not purport to rely on any criteria other than the two that he explicitly cited, and for the reasons discussed above neither justifies the sentence that was chosen. While deference must be accorded to the trial court's application of factors within its discretion, here the trial judge's thoughtful explanation of his reasons for selecting the upper term nonetheless discloses that he relied solely on facts that are inherent in the crime of vehicular manslaughter. This he may not do. (Rule 4.420(d).) Nothing in the trial judge's explanation or in the majority opinion refers to anything other than defendants' extreme recklessness and the horrible deaths that resulted. No matter how many times those facts are repeated, they do not identify an additional factor that permits selection of the aggravated term of imprisonment.
The trial court expressly noted that it was not relying on the fact that three people were killed in the accident, on which it could have relied to select the upper term under rule 4.421(a)(7). The court opted to save that factor to impose consecutive rather than concurrent terms. Since that fact may not be used for both purposes, in my view the sentence imposed should be vacated and the matter remanded to permit the trial court to exercise its discretion to use that factor either for the purpose of imposing the aggravated term or for imposing consecutive sentences.
Pollak, J.