P. v. Ford

Filed 1/17/07  P. v. Ford CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

            Matthew David Ford appeals the imposition of an aggravated sentence and denial of probation following his no contest plea to one count of felony vehicular manslaughter without gross negligence while driving under the influence.  (Pen. Code, § 192, subd. (c)(3).)  He contends the trial court relied upon improper factors to impose the aggravated sentence and that the court abused its discretion in denying probation.  For the reasons indicated below, we shall remand the case to the trial court for resentencing.

STATEMENT OF THE CASE

            An information filed on January 31, 2005, charged appellant with vehicular manslaughter with gross negligence while driving under the influence.  (Pen. Code, §  191.5, subd. (a).)[1]  On July 12, 2005, an amended information was filed charging appellant with one count of vehicular manslaughter without gross negligence while driving under the influence.  (Pen. Code, § 192, subd. (c)(3).)  On the same day, appellant pleaded no contest to the charge and waived his right to a jury determination of any fact in aggravation under a Blakely waiver.  (Blakely v. Washington (2004) 542 U.S. 296, 301.)

            On October 4, 2005, the trial court denied probation and sentenced appellant to an aggravated term of four years.

            Appellant filed a timely notice of appeal on October 31, 2005.

STATEMENT OF FACTS[2]

            At approximately 8:45 a.m. on May 30, 2004, California Highway Patrol (CHP) dispatched an officer to the scene of an injury accident on Patrick's Point Drive in Humboldt County.  The officer was directed to appellant who was in the bushes on the side of the road.  The officer asked appellant if he was injured but appellant did not respond; the officer then asked appellant to wave his hand if he was okay and appellant waved his hand.

            Arcata-Mad River Ambulance arrived on the scene and pronounced the victim, Bryan Skadiang, dead.  The CHP officer and an Emergency Medical Technician (EMT) approached appellant and asked again if he was injured but appellant did not respond.  Appellant appeared unconscious when evaluated by the EMT.  The CHP officer smelled alcohol on appellant while helping carry him to the side of the road for transport by the EMT. 

            David Goddard, who first discovered the accident, told the CHP officer that he had seen appellant standing over the victim apparently checking to see whether the victim was okay.  Dallas Brillhart, a second witness, also saw appellant kneeling over the victim and said that he saw appellant shaking the victim.  Goddard said he then saw appellant return to his car to retrieve a bag; Brillhart said he saw appellant take some items out of the vehicle and put them in a bag.  Appellant said that he was removing his friend's laptop from the car because he thought the car might explode.

            Goddard said he asked appellant if he was okay and appellant said he was.  Goddard said he asked appellant if the victim was okay and that appellant said, â€