Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. SA059639 Robert O’Neill and Cyhthia Rayvis, Judges. Affirmed.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Laura Veronica Samayoa appeals from the judgment entered following her plea of no contest to one count of leaving the scene of an injury accident. (Veh. Code, § 20001, subd. (a).) Appellant contends that the superior court abused its discretion by denying probation and sentencing her to the upper term of four years. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On March 15, 2006, 15 middle school students were walking with their teachers, Michael Birnbryer and Carrie Phillips, on the sidewalk along National Boulevard in Culver City. Appellant was driving along National Boulevard with Reynaldo Cruz, and they were arguing while she drove. The speed limit was 40 miles per hour, but appellant was driving at 50-55 miles per hour. Cruz reached over toward the driver’s side of the car, and the car then hit the curb, spun 180 degrees, and traveled on the sidewalk, hitting Phillips and several students. The car came to a stop on the sidewalk. Phillips was killed, and her body was lodged against the driver’s door of the car.
Appellant could not open her door because Phillips’s body was leaning against her door, so she and Cruz climbed out the driver’s side window. Appellant and Cruz stepped over Phillips’s body, and appellant told Cruz that they should run away, saying, “Let’s go.” Cruz was talking on his cell phone, but he and appellant then ran away.
Tennyson Collins, a witness to the accident, saw appellant and Cruz running away, so he followed appellant and told another witness to watch Cruz. Collins caught up to appellant about a quarter of a mile away and told her she needed to return to the scene of the accident. Appellant initially denied having been in the accident, and then she stated that she was not the driver. Appellant told Collins she was scared because she had a child and could not go to jail, but Collins persuaded her to return to the scene. Collins told the police that appellant was the driver. Appellant told an officer that she and Cruz had been arguing, that Cruz was punching her while she drove, and that the car went out of control because of something Cruz did.
On December 18, 2006, appellant and Cruz were charged in a four-count amended information. Count 1 charged Cruz with criminal threats against Patricia Ines Sillas, appellant’s mother. (Pen. Code, § 422.) Count 2 charged both appellant and Cruz with leaving the scene of an accident (Veh. Code, § 20001, subd. (a)), and count 3 charged appellant and Cruz with vehicular manslaughter (Pen. Code, § 192, subd. (c)(1)). Count 4 charged Cruz with murder. (Pen. Code, § 187, subd. (a).)
Pursuant to a negotiated disposition, appellant agreed to plead no contest to one count of leaving the scene of an injury accident. (Veh. Code, § 20001, subd. (a).) The disposition provided that appellant would “receive punishment within the range of a probationary sentence with no custody time to up to four years in state prison.”
At the change of plea hearing, the parties stipulated to a factual basis for the plea based on the preliminary hearing transcript and police reports. The superior court explained appellant’s rights to her and asked if her plea was free and voluntary. After being informed of her rights, appellant pled no contest. The court accepted the plea, finding that the plea was free and voluntary and that there was a factual basis for the plea.
Several victim impact statements were presented to the court on March 6, 2009, including statements by the head of the school, students from the school, and Phillips’s family members.
Sentencing was held on April 17, 2009. At the sentencing hearing, the court expressed its concern that appellant had never accepted responsibility for the accident. Appellant spoke at the hearing, saying that she was “saddened and ashamed” of her involvement in the accident. She described her relationship with Cruz and stated that he caused the accident by hitting her and grabbing the steering wheel. She further stated that she left the scene “[o]ut of fear and panic” and because she “wanted to get away from [Cruz].”
The court noted that appellant initially denied her involvement in the accident, and that she was upset by the accident only because of its impact on her, not on the victims of the accident. The court further noted that appellant disavowed any responsibility for the accident in her interview with the probation officer, and that she and Cruz continued to blame each other for the accident. The court found that appellant’s speed while she was driving and her actions following the accident demonstrated “a callous disregard for the lives of Carrie Phillips and the eight victims who survived.” The court denied probation and sentenced appellant to the high term of four years in state prison, citing appellant’s “callous disregard for the lives of others” along with “the vulnerability of the victims and the fact that no personal responsibility has been taken other than the defendant saying she’s sorry she got in the car that day.” The court ordered appellant to pay restitution to the victims and held her jointly and severally liable for the restitution. The court gave appellant credit for three days served and dismissed the remaining count. Appellant filed a notice of appeal.
DISCUSSION
Appellant challenges the sentence imposed by the superior court. She contends that the court abused its discretion by denying probation and imposing the upper sentencing term. We disagree with appellant and therefore affirm.
I. Waiver
Respondent contends that appellant waived her claim of error by failing to object to the sentence in the superior court, citing People v. Scott (1994) 9 Cal.4th 331, 353-355 (Scott). Appellant responds that she did not have an opportunity to object to the court’s sentencing decision.
In Scott, the California Supreme Court explained that “[t]he parties have ample opportunity to influence the court’s sentencing choices under the determinate scheme.” (Scott, supra, 9 Cal.4th at p. 350.) For example, “both sides often know before the hearing what sentence is likely to be imposed and the reasons therefor, ” based on the probation report. (Ibid.) The court concluded that a defendant cannot raise for the first time on appeal “claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices.” (Id. at p. 353.) Here, unlike in Scott, appellant does not contend that the court failed to articulate its sentencing choices. Instead, she challenges the court’s exercise of its discretion.
At the beginning of the superior court’s comments, the court stated that the negotiated plea disposition provided a sentencing range of probation with no custody time up to four years in state prison. As appellant points out, the court then gave its reasons for the sentence, denied probation, and imposed sentence, without asking for further input from the parties.
Appellant does not appear to have waived her claim. Nonetheless, we find her arguments unmeritorious.
II. Legal Standards
“‘A denial or a grant of probation generally rests within the broad discretion of the trial court and will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary or capricious manner.’ [Citation.]” (People v. Downey (2000) 82 Cal.App.4th 899, 909.) The court does not abuse its discretion unless “the court exceeds the bounds of reason, all of the circumstances being considered.” (People v. Giminez (1975) 14 Cal.3d 68, 72.) Criteria that affect the decision to grant or deny probation include “[t]he nature, seriousness, and circumstances of the crime as compared to other instances of the same crime, ” “[t]he vulnerability of the victim, ” “[w]hether the defendant inflicted physical or emotional injury, ” and “[w]hether the defendant is remorseful.” (Cal. Rules of Court, rule 4.414(a)(1), (3), & (4)(b)(7).)
In exercising its discretion in selecting the upper term, the sentencing court “may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision. The relevant circumstances may be obtained from the case record, the probation officer’s report, other reports and statements properly received, statements in aggravation or mitigation, and any evidence introduced at the sentencing hearing.” (Cal. Rules of Court, rule 4.420(b).) Factors in aggravation include whether the crime involved acts disclosing callousness and whether the victims were particularly vulnerable. (Cal. Rules of Court, rule 4.421(a)(1), (3).) The facts relied upon by the sentencing court in choosing the upper term “need be proved only by a preponderance of the evidence. [Citations.]” (People v. Sandoval (2007) 41 Cal.4th 825, 836.) Only one valid factor cited by the sentencing court is sufficient to justify the imposition of the upper term. (People v. Holguin (1989) 213 Cal.App.3d 1308, 1319.)
III. Appellant’s Challenges to the Sentence
A. Failure to Accept Responsibility
Appellant challenges the superior court’s reliance on her failure to accept responsibility in imposing the upper term. She argues that her no contest plea did not require her to admit responsibility for the accident and that the court’s reliance on this factor violated her rights against self-incrimination and of due process.
The superior court engaged in a detailed discussion of the circumstances of the offense and appellant’s actions in imposing sentence, explaining that it had reviewed the initial and supplemental probation reports, the preliminary hearing transcript, the sentencing memoranda submitted by appellant’s and Cruz’s attorneys, and the victim impact statements. The court discussed the evidence presented at the preliminary hearing, including the evidence appellant was unable to open her car door because Phillips’s body was lodged against the door, appellant climbed over Phillips’s body to leave the scene, and appellant yelled at Cruz that they should leave. The court also discussed appellant’s denial of involvement in the accident when Collins confronted her, as well as the fact that she expressed concern only for herself rather than for the people she had injured.
The court further discussed appellant’s probation report, which indicated that she “disavowed any responsibility for the crime that occurred....” The court questioned appellant’s explanation that the crash was caused by Cruz, stating that even if this were true, appellant should not have kept driving, especially in such a populated area on a busy street. In addition, the court noted that the evidence established that appellant was speeding before the accident, indicating appellant’s personal culpability for the accident. The court summarized by stating that appellant’s actions before and after the accident indicated “a callous disregard for the lives of Carrie Phillips and the eight victims who survived.” After stating that probation was denied, the court cited the vulnerability of the victims and appellant’s failure to accept responsibility as factors supporting its decision.
The sentencing court’s detailed discussion of the circumstances of the offense indicates that its decision to deny probation was not an abuse of discretion. When the court cited appellant’s failure to accept responsibility, it is clear that the court was not requiring appellant to incriminate herself in violation of her constitutional rights. Rather, the court was concerned that, despite the evidence that appellant bore some personal responsibility for the accident, she persisted in her contention that the accident was caused solely by Cruz. The court’s reliance on this factor does not “exceed[] the bounds of reason, all of the circumstances being considered.” (People v. Giminez, supra, 14 Cal.3d at p. 72.)
B. Callous Disregard for the Lives of Others
Appellant further contends that the court abused its discretion by relying on appellant’s callous disregard for others in imposing sentence because this factor is an element of the offense. We reject appellant’s contention.
Vehicle Code section 20001 prohibits leaving the scene of an injury accident without presenting identification or rendering aid. It requires the driver of a vehicle involved in an injury accident to “immediately stop” and to fulfill the requirements of Vehicle Code sections 20003 and 20004 to give identifying information and render reasonable assistance, such as by making arrangements to transport any injured person to the hospital. (See Veh. Code, §§ 20001, 20003, 20004 (2006 ed.).) The purpose of the statute is to prevent a driver involved in an injury accident from attempting to avoid civil or criminal liability. (People v. Powell (2010) 181 Cal.App.4th 304, 316; People v. Newton (2007) 155 Cal.App.4th 1000, 1004.)
Callous disregard for the lives of others is not an element of the offense. A violation of the statute required only the failure to give identifying information and render reasonable assistance. The transcript of the sentencing hearing indicates that the trial court’s reliance on this factor was based on appellant’s stepping over the body of Phillips, telling Cruz to run away, her denial of involvement in the accident, and her concern only for herself rather than the victims she had injured. The sentencing court’s reliance on a finding that appellant showed a callous disregard for the lives of others did not constitute an abuse of discretion.
C. Victim Vulnerability
Appellant contends that the superior court’s finding that the victims were particularly vulnerable is not supported by a preponderance of the evidence. We disagree.
Appellant’s reliance on People v. Piceno (1987) 195 Cal.App.3d 1353 (Piceno) is unavailing. In Piceno, the appellant was driving recklessly, at an excessive speed, and under the influence of drugs and alcohol when he crashed his car and killed a pedestrian. In exchange for his guilty plea to vehicular manslaughter without gross negligence, the charges of reckless driving and excessive speed were dropped. At sentencing, the trial court rejected the probation officer’s recommendation to transfer the appellant to the custody of the California Youth Authority and instead sentenced him to the upper term of four years. The court cited the vulnerability of the victim as an aggravating factor, describing the victim as a pedestrian whose life was taken by someone driving negligently, under the influence of drugs and alcohol.
As pertinent here, the appellate court held that the trial court erred in finding that the victim was particularly vulnerable within the meaning of California Rules of Court, former rule 421(a)(1) (now rule 4.421(a)(3)). (Piceno, supra, 195 Cal.App.3d at p. 1357.) The court reasoned that all victims of drunk drivers are vulnerable, but that there was nothing that distinguished this victim’s vulnerability from that of all victims killed by drunk drivers. (Id. at p. 1357.)
Here, there is no dispute that in addition to killing Phillips, appellant struck and injured numerous middle school students. Although the court did not explicitly state that this was the basis for its finding that the victims were particularly vulnerable, the fact that a number of school children were injured is established by the record. The court’s finding that the victims were particularly vulnerable does not constitute an abuse of discretion. Even if it did, the other two factors relied upon by the court in imposing sentence are sufficient to justify the court’s decision to deny probation and impose the upper term. (See People v. Holguin, supra, 213 Cal.App.3d at p. 1319.)
For the foregoing reasons, we conclude the superior court did not abuse its discretion in denying appellant probation and in choosing the upper term of four years.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P.J., MANELLA, J.