Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge. Super. Ct. No. 5908842-8
Nuttall & Coleman, Roger T. Nuttall and Shannon C. Harding, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Ardaiz, P.J., Vartabedian, J. and Gomes, J.
Appellant Roberto Rosales stands convicted, following his no contest plea and admissions, of driving with a blood-alcohol content of .08 percent or more and causing injury (Veh. Code, § 23153, subd. (b)), and personally inflicting great bodily injury on two victims, one of whom became comatose due to brain injury and suffered paralysis (Pen. Code, § 12022.7, subds. (a) & (b)). Sentenced to a total of six years four months in prison, he now appeals, contending the trial court abused its discretion by denying probation and bail pending appeal. Because the court and parties all proceeded under the erroneous belief the court’s ability to grant probation was limited by section 1203, subdivision (e)(3), we will vacate the sentence and remand the matter for a new sentencing hearing.
Further statutory references are to the Penal Code unless otherwise stated.
In light of the plea, the facts are taken from the preliminary hearing transcript.
It was raining in Fresno on the night of November 10, 2005. At approximately 10:30 that evening, Raymundo Rocha and his mother, Severina Rocha, were stopped for a red light at the intersection of Shaw and Golden State. Raymundo noticed headlights coming up fast and heard tires screeching, then a pickup rear-ended the Rochas’ car.
For the sake of clarity, we refer to the Rochas by their first names. No disrespect is intended.
Upon being contacted by Fresno Police Officer Long, appellant admitted being the driver of the truck. He smelled strongly of alcohol and stated he had been drinking and was drunk. He was cooperative, and very apologetic and distraught. Appellant related that he had been to the Fresno State football game, where he had had perhaps five large beers between approximately 5:50 p.m. and 7:00 p.m. He said he had stopped drinking only because they stopped selling alcohol during the third quarter of the game. He did not remember the collision clearly, but said that, as he approached the intersection, he noticed the vehicle in front of him and hit his brakes, but was unable to stop. Appellant’s blood-alcohol content was .19 percent.
Raymundo sustained a cut to the back of his head that required four staples to close. Severina suffered fractures of the skull and thoracic spine. She also sustained rib fractures and a bloody lung. She was under medication and in a coma for two months following the collision. Although initially able to move her extremities, her legs became paralyzed due to spinal cord compression. As of the May 25, 2006 preliminary hearing, she had regained some movement of her lower extremities and would hopefully regain more, but it was extremely unlikely that she would ever return to normal.
On September 17, 2007, appellant pleaded no contest to driving with a blood-alcohol content of .08 percent or more and causing injury to Severina (Veh. Code, § 23153, subd. (b)), and he admitted personally inflicting great bodily injury that caused her to become comatose due to brain injury and to suffer paralysis (§ 12022.7, subd. (b)). He further admitted personally inflicting great bodily injury upon Raymundo. (Id., subd. (a).) In return for his plea, a second count, charging him with driving under the influence and causing injury to Severina (Veh. Code, § 23153, subd. (a)) and alleging the same great bodily injury enhancements, was dismissed.
Appellant's maximum potential term of confinement was 11 years in prison, although it was expressly stated on the change of plea form that he remained eligible for probation. Prior to sentencing, he presented a report from a correctional consultant, who recommended probation. The consultant reasoned there was no evidence appellant was a chronic drinker; he was gainfully employed; after the accident, he began attending AA meetings and entered a residential treatment program; he had remained alcohol-free for the two years since the accident; and his wife was pregnant with triplets. Appellant also presented letters of support, as well as a certificate showing successful completion of the residential treatment program.
The probation officer recommended imposition of a nine-year four-month term. Because of the great bodily injury enhancement, the probation officer analyzed the case as one in which the trial court was prohibited from granting probation unless it found an “unusual case[] where the interests of justice would best be served if” appellant were granted probation. (§ 1203, subd. (e)(3).) Application of this statutory limitation went unchallenged at sentencing. Instead, appellant argued his was such a case, and urged the court to consider a stayed commitment with felony probation. In a letter to the victims, appellant expressed remorse, saying he never planned to hurt anyone, but had had “a little too much to drink” and did not realize it. He apologized for the pain and suffering he caused, and noted that he had taken actions to ensure he never drank again. Defense counsel pointed, in part, to appellant’s lack of any criminal record; the fact he had expressed remorse from the outset, as confirmed by the manager of the rehabilitation unit at which he was employed; his employment history, marriage, and strong family ties and support; his voluntary entrance into, and completion of, a residential treatment program; his regular attendance of AA meetings; and the absence of any history of chronic abuse of drugs or alcohol. The prosecutor responded that appellant did not take responsibility for what he did until the day before trial, which was almost two years after the incident. The prosecutor also argued that this case was not about “a little too much to drink,” but instead a blood-alcohol content of .19, and “every citizen’s nightmare” of driving along and having life changed forever by a drunk driver. After Raymundo made a plea that something be done about those who drink and drive, the prosecutor asked the court to impose the sentence recommended by the probation officer.
The trial court acknowledged appellant’s “outstanding” life before and after the collision. In the court’s view, however, appellant’s blood-alcohol content demonstrated more than inadvertent drinking or having a little too much to drink, but instead was “indicative of somebody who is no[t] an inexperienced drinker to get to a .19 and still be able to actually move, [and] establishes [to] this Court this person has had a significant experience with alcohol consumption.” The court observed that an important factor under the sentencing rules was deterring others from criminal conduct, and stated:
“I don’t pretend to be able to ever alter driving under the influence. I don’t pretend that this sentence in this case is going [to have] one iota of a realistic impact, but that should not prevent this Court from at least following the Rules of Court and hoping that it may have an impact.
“It may have an impact on individuals in Mr. Rosales’[s] position who are otherwise outstanding, who have a little too much to drink, and realize that by doing that, they may go to prison. But more significantly than that, the impact on the people’s lives as they did in this case.
“I am struck by the last paragraph of the victim’s letter where she states in closing, ‘My life has changed, because I can no longer go to work. I can [n]o longer earn a living. I can no longer go to church, to the grocery store, or just shopping by myself,’ which are things everybody in society takes for granted, and this victim will never, unless there is some medical breakthrough will never be able to do it again. This Court has to consider the impact on the victim in imposing [an] appropriate sentence.
“For those reasons, this [Court] finds that there are not sufficient circumstances pursuant to 1203(a)(3) to overcome a presumption of no probation in this case, and, therefore, probation is denied.”
The court proceeded to impose the lower term of 16 months on count 1, plus three years pursuant to section 12022.7, subdivision (a) and five years pursuant to section 12022.7, subdivision (b), with the three-year term ordered to run concurrently. The court subsequently refused to admit appellant to bail pending appeal.
DISCUSSION
On appeal, appellant initially contended the trial court abused its discretion by refusing to grant probation. He argued that his case presented the statutorily required unusual circumstances, and claimed the court failed to consider, or give proper weight to, various relevant criteria and factors. Respondent replied that there was no abuse of discretion. We subsequently directed the parties to file supplemental briefs, addressing whether the limitation on probation contained in section 1203, subdivision (e)(3) applies in the instant case and, if not, whether a remand for resentencing is required. Both parties now agree that the statute does not apply and that, therefore, resentencing is required.
Section 1203, subdivision (e) provides, in pertinent part: “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.” (Italics added.) A defendant falling within the statute’s provisions is presumptively ineligible for probation. (People v. Stuart (2007) 156 Cal.App.4th 165, 177; see People v. Tang (1997) 54 Cal.App.4th 669, 678-679.)
Under subdivision 1 of section 7, “[t]he word ‘willfully,’ when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.” (§ 7, subd. 1.) Thus, “[c]ourts have concluded the word ‘willfully’ implies no evil intent but means the person knows what he or she is doing, intends to do it and is a free agent. Usually the word ‘willfully’ defines a general intent crime unless the statutory language requires an intent to do some further act or achieve some future consequence. [Citation.]” (People v. Lewis (2004) 120 Cal.App.4th 837, 852 (Lewis).) As the California Supreme Court has recognized, however, the meaning of the term varies, depending on the statutory context. (People v. Garcia (2001) 25 Cal.4th 744, 753.)
In Lewis, the defendant was convicted of assaulting a child with force likely to produce great bodily injury, resulting in death. (§ 273ab.) On appeal, he argued that the trial court erred by finding him presumptively ineligible for probation under section 1203, subdivision (e)(3), as that statute’s restriction on the granting of probation applied only to those who intended to inflict great bodily injury and not to those whose criminal acts merely resulted in great bodily injury. (Lewis, supra, 120 Cal.App.4th at pp. 842, 850-851.) The Court of Appeal agreed, reasoning:
“The word ‘willfully’ as generally used in the law is a synonym for ‘intentionally,’ i.e., the defendant intended to do the act proscribed by the penal statute. Section 1203, subdivision (e)(3), so read requires the defendant intentionally inflicted great bodily injury or torture in the commission of the crime. The section describes no initial act, e.g., willfully strikes, or willfully burns, resulting in some required particular result, e.g., great bodily injury, the burning of some particular type of property. When the structure of a section requires a willful act followed by some particular result, then it is reasonable to read the willful, i.e., intentional, element as referring only to the initial act and not to the ultimate result. In such sections the word ‘willfully’ does not require the defendant intend the ultimate result, only that he or she intended the initial act. [Citation.]
“The word ‘willfully’ in section 1203, subdivision (e)(3), does not follow this act/result form. It refers merely to a result, i.e., the infliction of great bodily injury. Given this structure of the section, we conclude the only reasonable reading of it is the word ‘willful’ requires the defendant’s intent to cause great bodily injury or torture, not merely that the crime resulted in great bodily injury or torture. [Citation.]
“This interpretation of section 1203, subdivision (e)(3), is supported by a comparison of its language with that of the enhancement for the infliction of great bodily injury contained in section 12022.7, subdivision (a). Section 12022.7 requires a person ‘personally inflict great bodily injury’ on another in the commission or attempted commission of a felony. Unlike section 1203, subdivision (e)(3), it does not require that the infliction be willful. The section has been interpreted to require only a general criminal intent, i.e., the defendant need not intend great bodily injury result, the only intent required is that for the underlying felony. [Citation.]
“The inclusion of the word ‘willfully’ in section 1203, subdivision (e)(3), suggests that the Legislature meant the section to be applicable not merely when great bodily injury is the result of a crime but, rather, when the defendant intended to cause great bodily injury.” (Lewis, supra, 120 Cal.App.4th at pp. 852-853, fn. omitted.)
“Until 1949 section 1203 denied probation to defendants who, in the perpetration of the crime for which they were convicted ‘inflicted a great bodily injury or torture.’ [Citation.] In that year the Legislature modified the section to require the infliction of great bodily injury be willful. [Citation.] In 1957 the Legislature amended section 1203 to allow probation to such defendants in unusual cases. [Citation.]”
Respondent concedes that Lewis’s reasoning is applicable to the present case and that, accordingly, appellant was not presumptively ineligible for probation. Although, by pleading no contest and admitting the enhancement allegations, appellant admitted that his act of driving drunk proximately caused great bodily injury to the victims, there was no suggestion in the evidence or finding by the court that he intentionally rear-ended their vehicle or intentionally inflicted such injury on either of them. Appellant presented strong arguments in favor of probation, and we cannot tell from the court’s comments what sentence it might have imposed had it known section 1203, subdivision (e)(3) did not apply. Accordingly, as respondent further concedes, a new sentencing hearing is required to permit the court to address appellant’s application for probation “under a proper understanding of the rules governing its sentencing discretion” (People v. Garrett (1991) 231 Cal.App.3d 1524, 1529) and taking into account the pertinent facts and circumstances in light of appellant’s “true legal status” (People v. Ruiz (1975) 14 Cal.3d 163, 168, fn. 5; People v. Manriquez (1991) 235 Cal.App.3d 1614, 1620).
Given the nature of the error, appellant need not have objected below or obtained a certificate of probable cause in order to raise the issue on appeal, and respondent does not contend otherwise. (See People v. Corban (2006) 138 Cal.App.4th 1111, 1117.) In light of our conclusion that appellant is entitled to a new sentencing hearing, we need not address his claim that the trial court abused its discretion by denying his motion for bail pending appeal. Appellant is free to make a new application for bail upon resentencing.
DISPOSITION
The judgment of conviction is affirmed. Sentence is vacated and the matter is remanded for resentencing in accordance with the views expressed in this opinion.