PEOPLE v. WEAVER

Filed 4/9/07; pub. order 4/19/07 (see end of opn.)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Charles G. Rogers, Judge. Affirmed.

Megan Elizabeth Weaver appeals a judgment entered following her guilty plea to one count of gross vehicular manslaughter while intoxicated (Pen. Code,  191.5, subd. (a))^[1]and her admission of the truth of an allegation she personally inflicted great bodily injury on another person in the commission of that offense ( 12022.7, subd. (a)). On appeal, Weaver contends the trial court erred by: (1) denying her request for probation; (2) imposing the middle six-year term for her section 191.5, subdivision (a) offense; and (3) imposing a consecutive three-year enhancement under section 12022.7, subdivision (a). She also contends: (1) her conviction of only one offense precludes a court from considering it as two prior serious felony convictions within the meaning of section 1192.7, subdivision (c)(8) and the three strikes law ( 667, subds. (b)-(i)); and (2) the victim restitution fine imposed by the trial court must be offset by the amount paid by her insurance company.

FACTUAL AND PROCEDURAL BACKGROUND^[2]

On August 19, 2004, Weaver graduated from San Diego State University. Celebrating her graduation with friends (including Jaylin Ruiz), Weaver consumed several shots of alcohol (Jaegermeister).

At about 1:00 a.m. on August 20, Ed Thurston, driving his car eastbound on Highway 56 about two to four miles from its intersection with Interstate 5, saw a car approaching him from the opposite direction on the wrong side of the divided highway. The car did not have its headlights on and was traveling in the fast lane at a speed of over 70 miles per hour. After it passed him, Thurston saw that the car also did not have its rear taillights on.

Also at about 1:00 a.m., Jose Garcia, driving his car eastbound on Highway 56 about one-half mile from its intersection with Interstate 5, saw a car approaching him from the opposite direction on the wrong side of the divided highway. The car had its headlights on and was traveling in the fast lane at a speed of 80 to 90 miles per hour. Garcia swerved to the right to avoid colliding with the car and then swerved left, lost control of his car, and drove into bushes and rocks in the highway's median. The other car did not stop or slow down and merged onto the northbound lanes of Interstate 5 heading south (i.e., the opposite direction of oncoming traffic).

Also at about 1:00 a.m., Scott Tempus, driving his car eastbound on Highway 56 about one-quarter mile from its intersection with Interstate 5, saw a car approaching him from the opposite direction on the wrong side of the divided highway.^[3] The car had its headlights on and was traveling in the slow lane. After Tempus swerved to avoid the car, the other car merged onto the northbound lanes of Interstate 5 heading south (i.e., the opposite direction of oncoming traffic).

Also at about 1:00 a.m., Anatoly Sigalov (Sigalov) was driving his car northbound on Interstate 5 just south of the onramp or transition to eastbound Highway 56. His wife Mara was sitting in the front passenger seat. Sigalov was traveling about 65 miles per hour, with his car's headlights on, when he saw the reflection of his headlights on the front windshield of an oncoming car, which was only about a "yard away." The other car did not have its headlights on. Weaver was the other car's driver. Without time for Sigalov to react, the two cars collided head-on.^[4]

Both cars sustained substantial damage. Mara died from blunt force trauma suffered in the collision. Sigalov suffered cracked ribs and a dislocated right hip, requiring surgery to repair his pelvis.

While being transported to an ambulance, Weaver told an emergency medical technician that she had been drinking. He smelled alcohol on her breath. At 3:45 a.m., blood was drawn from Weaver. Testing of that blood sample showed Weaver's blood alcohol content (BAC) was 0.151 percent. Her blood sample also tested positive for the presence of cocaine, suggesting she had consumed cocaine about two to three hours before the blood was drawn.^[5]

On December 10, an information was filed, charging Weaver with five counts: (1) gross vehicular manslaughter while intoxicated ( 191.5, subd. (a)); (2) driving under the influence, causing injury (Veh. Code,  23153, subd. (a)); (3) driving with a BAC of 0.08 percent or greater and causing injury (Veh. Code,  23153, subd. (b)); (4) driving the wrong way on a divided highway and causing injury (Veh. Code,  21651, subds. (b) and (c)); and (5) hit and run driving (Veh. Code,  20002, subd. (a)). The information also alleged that: (1) in committing counts 1 through 3, Weaver caused bodily injury or death (Veh. Code,  23558); (2) in committing count 1, she personally inflicted great bodily injury on Sigalov ( 12022.7, subd. (a)); (3) in committing counts 2 through 4, she personally inflicted great bodily injury on Mara and Sigalov ( 12022.7, subd. (a)); and (4) regarding counts 1 through 4, her offenses constituted serious felonies within the meaning of section 1192.7, subd. (c)(8) because she inflicted great bodily injury on Mara and Sigalov.

On September 28, 2005, the date scheduled for trial, Weaver pleaded guilty to count 1 ( 191.5, subd. (a)) and admitted the truth of the allegations related to count 1, including that in committing the section 191.5, subdivision (a) offense she personally inflicted great bodily injury on Sigalov within the meaning of section 12022.7, subdivision (a) and on Sigalov and Mara within the meaning of section 1192, subdivision (c)(8). Pursuant to her plea agreement with the prosecution, the trial court dismissed the remaining charges and allegations.

On December 14, the trial court denied probation and sentenced Weaver to the middle term of six years for count 1 and a consecutive three-year term for the section 12022.7, subdivision (a) enhancement, for a total term of nine years.^[6] Pursuant to section 654, the trial court stayed imposition of the one-year enhancement under Vehicle Code section 23558. The court also imposed a restitution fine of $229,479, "subject to modification upward or downward on the application by counsel and a hearing can be held." It expressly retained jurisdiction to address the issue of restitution and to amend the judgment.

On February 6, 2006, Weaver filed a notice of appeal.

On March 20, Weaver filed a motion to recall her sentence pursuant to section 1170, subdivision (d), requesting that the trial court recall its sentence, impose the lower four-year term for count 1, and strike the enhancement for her infliction of great bodily injury.^[7] Attached to her motion were declarations of her former boyfriend (Jacob Ramsey) and Danielle Steinke, who was at the party, explaining some of the events preceding the incident and why Weaver drove her car that night while intoxicated. Based on those declarations, her motion argued in part that she intended to stay overnight at her friend Ruiz's house and had not planned to drive her car that night, but did so only after her then-boyfriend (Ramsey) called and asked her to come home to Spring Valley.

On March 21, the trial court denied Weaver's motion.^[8]

DISCUSSION

I

Denial of Probation

Weaver contends the trial court abused its discretion by denying her request that she be granted probation. She argues the trial court considered improper factors and did not consider relevant factors.

A

At Weaver's sentencing, the trial court received and considered the probation report, the prosecution's statement in aggravation, Weaver's statement in mitigation, and letters from, and testimonies of, family and friends of both Mara and Weaver.^[9] The probation report recommended probation be denied and the court impose the middle term of six years for count 1 and a consecutive three-year term for the section 12022.7, subdivision (a) enhancement. The prosecution's statement in aggravation requested probation be denied and the court impose the upper term of 10 years for count 1 and a consecutive three-year term for the section 12022.7, subdivision (a) enhancement. Weaver's statement in mitigation requested probation be granted.

After hearing arguments of counsel, the trial court found Weaver was genuinely remorseful and was not a chronic partygoer in college. It also noted the "dreadful" injuries suffered by Sigalov. The court stated that in sentencing Weaver, its job was to apply the law to this case while considering "the framework of protecting society, meting out an appropriate punishment deterring others, hopefully preventing other crimes and achieving some degree of uniformity in sentencing." The court noted that California Rules of Court, rule 4.414^[10]guided its consideration of whether to grant or deny probation. The court stated:

"There are factors that weigh on both sides [i.e., granting or denying probation]. Certainly in favor of grant of probation is this young woman's youth, her lack of significant record, just one speeding ticket and her absence of actual malice in this case[, h]er genuine remorse and her ability to comply with the conditions of probation if probation were granted.

"On the other side of the [equation] lies the horrific nature of this offense. The dreadful loss to this family, the fact that Ms. Weaver . . . did not stop her driving after the first near miss, the high blood alcohol, the presence of drugs. I find the drug was cocaine. . . .

"Mr. Sigalov, I think, unknowingly touched on another factor that I think was important and that is the vulnerability of him and his wife. They're driving on a highway in a lane that they're lawfully allowed to drive on at a speed they're lawfully allowed to drive. And one does not expect this to happen under those circumstances."

Considering those factors, the trial court denied probation as "not appropriate."

B

"All defendants are eligible for probation, in the discretion of the sentencing court [citation], unless a statute provides otherwise." (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) "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.]" (Ibid.) "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." (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 825.)

"The decision to grant or deny probation requires consideration of all the facts and circumstances of the case. [Citation.]" (People v. Birmingham (1990) 217 Cal.App.3d 180, 185.) Rule 4.410 provides:

"(a) General objectives of sentencing include:

"(1) Protecting society;

"(2) Punishing the defendant;

"(3) Encouraging the defendant to lead a law-abiding life in the future and deterring him or her from future offenses;

"(4) Deterring others from criminal conduct by demonstrating its consequences;

"(5) Preventing the defendant from committing new crimes by isolating him or her for the period of incarceration;

"(6) Securing restitution for the victims of crime; and

"(7) Achieving uniformity in sentencing.

"(b) Because in some instances these objectives may suggest inconsistent dispositions, the sentencing judge must consider which objectives are of primary importance in the particular case. The sentencing judge should be guided by statutory statements of policy, the criteria in these rules, and the facts and circumstances of the case."

Regarding a trial court's decision whether to grant or deny probation, rule 4.414 provides:

"Criteria affecting the decision to grant or deny probation include facts relating to the crime and facts relating to the defendant.

"(a)Facts relating to the crime[.] [] Facts relating to the crime include:

"(1) The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime; [] . . . []

"(3) The vulnerability of the victim;

"(4) Whether the defendant inflicted physical or emotional injury;

"(5) The degree of monetary loss to the victim;

"(6) Whether the defendant was an active or a passive participant;

"(7) Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur; [] . . . []

"(b) Facts relating to the defendant[.] [] Facts relating to the defendant include:

"(1) Prior record of criminal conduct . . . ; [] . . . []

"(3) Willingness to comply with the terms of probation;

"(4) Ability to comply with reasonable terms of probation as indicated by the defendant's age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors;

"(5) The likely effect of imprisonment on the defendant and his or her dependents;

"(6) The adverse collateral consequences on the defendant's life resulting from the felony conviction;

"(7) Whether the defendant is remorseful; and

"(8) The likelihood that if not imprisoned the defendant will be a danger to others."

In deciding whether to grant or deny probation, a trial court may also consider additional criteria not listed in the rules provided those criteria are reasonably related to that decision. (Rule 4.408(a).) A trial court is generally required to state its reasons for denying probation and imposing a prison sentence, including any additional reasons considered pursuant to rule 4.408. (Rule 4.406(b)(2); rule 4.408(a).) Unless the record affirmatively shows otherwise, a trial court is deemed to have considered all relevant criteria in deciding whether to grant or deny probation or in making any other discretionary sentencing choice. (Rule 4.409.)

"The circumstances utilized by the trial court to support its sentencing choice need only be established by a preponderance of the evidence. [Citations.]" (People v. Leung (1992) 5 Cal.App.4th 482, 506.) Accordingly, in determining whether a trial court abused its discretion by denying probation, we consider, in part, whether there is sufficient, or substantial, evidence to support the court's finding that a particular factor was applicable. (Id. at pp. 506-507.)

C

Weaver argues the trial court considered improper factors in deciding whether to grant or deny probation.^[11] She asserts the trial court improperly considered "victim vulnerability." However, rule 4.414(a)(3) expressly lists "[t]he vulnerability of the victim" as a relevant fact relating to the crime that should be considered by a trial court in deciding whether to grant or deny probation. In this case, although the probation report did not list that factor, the prosecution's statement in aggravation did list the "vulnerability of the victim" as a reason supporting denial of probation, stating:

"Both Anatoly and Mara Sigalov were vulnerable victims, in the sense that they never had a chance to defend themselves against the defendant. The Sigalov's were driving on a highway in the darkness of the night. They were driving legally, and safely. They were driving the speed limit, with the headlights of their car on. The defendant was driving towards them at approximately 70 miles per hour, heading in the wrong direction, with her headlights off. The Sigalov's were completely vulnerable to the defendant's actions."

The trial court expressly relied on the vulnerability of the victims as a factor in deciding to deny probation, stating:

"[A]nother factor that I think was important . . . is the vulnerability of [Sigalov] and his wife. They're driving on a highway in a lane that they're lawfully allowed to drive on at a speed they're lawfully allowed to drive. And one does not expect this to happen under those circumstances."

Victim "[v]ulnerability means defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendant's criminal act." (People v. Smith (1979) 94 Cal.App.3d 433, 436 [describing that term in the context of rule 4.421(a)(3)].)^[12] Based on our review of the record, we conclude there is sufficient evidence to support the trial court's finding that Sigalov and Mara were vulnerable victims of Weaver's crime within the meaning of rule 4.414(a)(3). Weaver's car was traveling in the opposite direction of oncoming traffic on northbound Interstate 5 at a high rate of speed.^[13] Despite the late-night darkness, its headlights were off. In contrast, the Sigalovs' 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 reasonably conclude Sigalov and Mara were vulnerable within the meaning of rule 4.414(a)(3) because they had absolutely no advance warning or ability to avoid Weaver's oncoming car.

Although Weaver argues Sigalov and Mara were not "particularly" vulnerable victims, that finding is not required under rule 4.414(a)(3) and, in any event, the record supports a finding they were, in fact, particularly vulnerable victims. Citing People v. Bloom (1983) 142 Cal.App.3d 310 and People v. Piceno (1987) 195 Cal.App.3d 1353, Weaver asserts that because all victims of gross vehicular manslaughter are vulnerable, no victim of gross vehicular manslaughter can be "particularly" vulnerable. However, in so arguing, Weaver relies solely on cases involving only rule 4.421(a)(3), which provides that one circumstance in aggravation for purposes of deciding whether to impose an upper, middle, or lower term is whether "[t]he victim was particularly vulnerable." (Italics added.) That circumstance (and its "particularly" requirement) is inapplicable here because rule 4.421 does not address circumstances to be considered in granting or denying probation. Furthermore, rule 4.414(a)(3) does not include the qualifying term "particularly" in listing the "vulnerability" of a victim as a circumstance to be considered in granting or denying probation. Therefore, we conclude that neither rule 4.421(a)(3)'s requirement that a victim be "particularly" vulnerable nor the interpretations of that term in Bloom and Piceno apply to the trial court's denial of probation in this case.^[14] To the extent the court in People v. McNiece (1986) 181 Cal.App.3d 1048 (disapproved on another ground in People v. McFarland (1989) 47 Cal.3d 798, 804-805) concluded otherwise, we disagree with its reasoning and therefore decline to apply its holding in the circumstances of this case.^[15] In any event, assuming arguendo that requirement applied, we nevertheless would conclude there is substantial evidence to support a finding that Sigalov and Mara, in the circumstances of this case, were, in fact, particularly vulnerable victims of Weaver's offense.

Story continued as Part II

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^[1] All statutory references are to the Penal Code unless otherwise specified.

^[2] Because Weaver pleaded guilty before trial, the factual summary is based on the preliminary hearing transcript and probation report filed in this case.

^[3] Tempus's roommate, John Davis, and Tempus's daughter were passengers in his car.

^[4] Based on the damage to his car, Sigalov, as an owner of an automobile body shop, estimated Weaver's car was traveling at a speed of over 100 miles per hour.

^[5] At the preliminary hearing, a prosecution expert testified that for about 15 to 20 minutes after consuming cocaine, Weaver would have felt its euphoric effects, including a sense of confidence, but would be sensitive to bright lights. Thereafter, Weaver would "crash," feel paranoid, and have blurred vision. Furthermore, her sensitivity to bright lights would become greater. Cocaine, combined with alcohol, decreases a person's reaction time and increases paranoia, depression, and blurred vision.

^[6] The probation report filed prior to Weaver's sentencing noted that during an interview she stated she could not remember much about the night of the incident. She remembered graduating from college and celebrating with friends in Del Mar by drinking several shots of Jaegermeister and thereafter only remembered waking up in the hospital.

^[7] On May 3, 2006, we granted Weaver's unopposed request to augment the appellate record with copies of her motion to recall and the trial court's minute order denying that motion.

^[8] Weaver's appeal does not challenge the trial court's denial of her motion to recall her sentence.

^[9] In previously finding an evidentiary basis to support Weaver's guilty plea, the trial court considered the preliminary hearing transcript.

^[10] All rule references are to the California Rules of Court.

^[11] For purposes of this opinion, we assume, without deciding, that Weaver did not forfeit or waive this contention by not timely objecting to the trial court's consideration of all or some of the purported improper factors.

^[12] We presume that Smith's description of victim "vulnerability" also applies in the instant rule 4.414(a)(3) context.

^[13] Sigalov estimated Weaver's car was traveling at a speed of over 100 miles per hour. Based on the testimonies of other percipient witnesses, her car was traveling at least 70 miles per hour.

^[14] Interpreting the term "particularly vulnerable" for purposes of rule 4.421(a)(3), Bloom stated: "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. All victims of drunk drivers are 'vulnerable victims,' but it is precisely because they are all vulnerable that Carrie Lee cannot be considered to be vulnerable 'in a special or unusual degree, to an extent greater than in other cases.' [Citation.] While we can visualize extraordinary situations in which a drunk driving victim might be considered to be 'particularly vulnerable,' such a situation is not present here, and therefore the court erred in applying rule 421(a)(3) to this case." (People v. Bloom, supra, 142 Cal.App.3d at p. 322.) Unlike our case, in Bloom the defendant was driving his car at about 50 miles per hour while other cars were traveling about 35 miles per hour and his car was, immediately before the head-on accident, traveling in the proper lane of an (apparently) undivided street. (Id. at p. 314.) Furthermore, testimony showed the victim in Bloom had sufficient time to, and did, attempt to avoid the head-on collision, with her car leaving 20 feet of skid marks on the road. (Ibid.) Interpreting the term "particularly vulnerable" for purposes of rule 4.421(a)(3), in Piceno we stated: "No one could possibly deny the [pedestrian] victim here was vulnerable. But, regrettably all victims of vehicular manslaughter--be they pedestrians, fellow drivers or passengers--were vulnerable. They unfortunately were in the wrong place at the wrong time." (People v. Piceno, supra, 195 Cal.App.3d at p. 1358.) In our case, the trial court could reasonably conclude that Sigalov and Mara were not just "in the wrong place at the wrong time," but rather were particularly vulnerable because of the late-night darkness and Weaver's failure to have her car's headlights on, thereby giving the Sigalovs absolutely no advance warning of, or ability to attempt to avoid, the collision. Therefore, Bloom and Piceno do not persuade us to conclude otherwise.

^[15] In what apparently is dicta because the court reversed the defendant's gross vehicular manslaughter conviction on which the challenged sentence was based, McNiece stated the trial court erred by denying probation based on the victim's vulnerability. (People v. McNiece, supra, 181 Cal.App.3d at pp. 1053, 1058-1059.) In so doing, McNiece relied on Bloom and its requirement that a victim be "particularly" vulnerable for that factor to be considered aggravating and supportive of sentencing a defendant to an upper term. (McNiece, at pp. 1058-1059.) However, rule 4.414(a)(3) does not include a requirement that a victim be "particularly" vulnerable for that factor to be considered in granting or denying probation. Because we believe McNiece erred by relying on Bloom and rule 4.421(a)(3)'s language for aggravating circumstances for imposing an upper term, rather than the express language of rule 4.414(a)(3) for circumstances to be considered in granting or denying probation, we disagree with its reasoning and conclusion and therefore decline to apply it to the circumstances in this case. In so doing, we note there is a substantial difference between merely selecting an upper, middle, or lower term (as in Bloom) and deciding to effectively excuse a defendant from serving any prison term by granting probation. Therefore, the omission in rule 4.414(a)(3) of any requirement that a victim be "particularly" vulnerable effectively (and, in our opinion, appropriately) makes a victim's vulnerability more frequently applicable in a trial court's weighing whether to grant or deny probation than when a trial court, having denied probation, considers whether to impose a lower, middle, or upper term. Accordingly, the practical effect of that difference appears to be that a trial court, in any given case, may be somewhat more inclined to deny probation if it applies rule 4.414(a)(3) as we interpret it than if it applies the rule 4.421(a)(3) standard (per Bloom and McNiece) in deciding whether to grant or deny probation.