P. v. Scott

 

 

 

 

 

 

 

 

Filed 11/5/13 
P. v. Scott CA1/5

 

 

 

 

NOT TO BE
PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.

 

 

IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE
DISTRICT

DIVISION FIVE

 

 

 

 

THE PEOPLE,

 

            Plaintiff and
Respondent,                                      A137653

 

            v.                                                                                 (>Solano> County

                                                                                                Super.
Ct.> No. FCR285146)

TYLER NEAL SCOTT,

 

            Defendant and
Appellant.

____________________________________/

 

            Tyler Neal
Scott (defendant) killed a man in a car accident while driving drunk.  He pled guilty to gross href="http://www.mcmillanlaw.com/">vehicular manslaughter while intoxicated
(Pen. Code, § 191.5, subd. (a) (Count 2))href="#_ftn1" name="_ftnref1" title="">[1]
and driving while intoxicated causing injury (Veh. Code, § 23153, subd. (a)
(Count 3)).  The court sentenced him to
the upper term of 10 years in state prison on Count 2 and the midterm of two
years in prison on Count 3, to run concurrently with the sentence on Count 2.  

            Defendant
appeals.  He contends the court
improperly imposed the upper term on Count 2 by relying on “improper
aggravating factors.”  He also makes an
ineffective assistance of counsel argument based on trial counsel’s failure to
object to the sentence in the trial court.  

We affirm.

FACTUAL AND
PROCEDURAL BACKGROUND

            In May
2011, the 22-year-old defendant was a member of the United States Air Force and
worked at Travis Air Force Base.  He
signed a “‘DUI contract’ with the Travis Air Force Base” outlining “the dangers
of drinking and driving and indicat[ing] . . . he could face a lengthy prison
sentence if he killed someone” while driving under the influence of alcohol.  He also “participated in alcohol counseling
as a result of a reprimand he received stemming from an underage alcohol
incident.”  

At a friend’s afternoon graduation
party, defendant drank “multiple beers, mixed drinks of Captain Morgan and coke
and shots of hard alcohol . . . while playing beer pong and sitting in the hot
tub.”href="#_ftn2" name="_ftnref2" title="">[2]
 Defendant left his friend’s house “and drove
westbound on Cement Hill Road
at a high rate of speed trying to catch up to some friends who had left just
before he did.  Passenger [ ] J.W. was
sitting in the front passenger seat of the defendant’s vehicle and asked the
defendant to slow down.  The defendant
ignored this request and continued driving at a high rate of speed.”  At the same time, another driver, G.S., was
traveling eastbound on Cement Hill Road;
another car, driven by A.L.L., followed G.S.’s car.  “The defendant was driving in excess of 50 mph
and began to ‘drift’ into the eastbound lane, crossing the double yellow lines.
 The left front of the defendant’s
vehicle struck the left front of [ ] G.S.’s vehicle.  This collision caused major damage to the
left side of G.S.’s vehicle and left tire marks going over the left portion of
the roof of G.S.’s vehicle.”

“[T]he defendant’s vehicle spun in
a counter-clockwise direction and the right rear of his vehicle struck the
front” of A.L.L.’s car, pushing it backwards and onto the curb.

The force of the first collision caused “unrestrained passenger
in [defendant’s car], J.W., to be fully ejected through the open passenger door
window onto the roadway surface.”  J.W.,
however, only “sustained minor abrasions as a result” but “G.S. was ejected
onto the roadway. . . . The collision severed [his] seatbelt and ripped the
driver door backwards.  [G.S] was found
on the roadway surface face down . . . [and] was later pronounced deceased . .
. .”  At the time of the accident, G.S. —
who was married with five children and numerous grandchildren — was “returning
home from his job as an armed security officer.”  G.S. had served in three different branches of
the United States
military and had previously worked as a police officer.

The defendant, J.W., A.L.L., and the
passenger in A.L.L.’s car sustained minor injuries.  The defendant was transported to the hospital
“due to losing consciousness as a result of the collision.”  The police questioned defendant at the
hospital.  â€œHe initially told police he
drank alcohol much earlier on the day of the incident.  When the officer noted to the defendant that
he could smell alcohol on the defendant’s person, the defendant changed his
statement.  The defendant then said he
had consumed ‘a couple of 12 oz. beers’ earlier in the day prior to attending a
graduation at Solano Community College.

“The defendant then said he had
been drinking vodka and whiskey between 10:00 a.m. and 2:00 p.m. on this date
and insisted he had not had any alcohol after that time.  As the defendant showed objective sings of
alcohol intoxication, a PAS [preliminary alcohol screening] test was
administered with a result of .15 BAC [blood alcohol concentration].  The defendant was questioned about the
collision.  The defendant then said, ‘I knew
this was going to happen.  I knew someone
was going to run into me and that I was going to get blamed for it.’”  The police arrested defendant.  A blood test showed the defendant to have a blood
alcohol level of .20. 

            The People
charged defendant with murder (§ 187, subd. (a) (Count 1)), gross vehicular
manslaughter while intoxicated (§ 191.5, subd. (a) (Count 2)), driving while
intoxicated causing injury (Veh. Code, § 23153, subd. (a) (Count 3)), and
driving with .08% blood alcohol causing injury (Veh. Code, § 23153, subd. (b)
(Count 4)).  As to

Counts 3 and 4, the People alleged defendant caused bodily injury
and death, and that appellant had a blood alcohol level of .15 percent and
higher (Veh. Code, §§ 23558, 23578).  On
the second day of trial, defendant pled guilty to gross vehicular manslaughter
while intoxicated (§ 191.5 (Count 2)) and driving while intoxicated causing
injury (Veh. Code, § 23153, subd. (a) (Count 3)).  Pursuant to the href="http://www.fearnotlaw.com/">plea agreement, defendant’s maximum
punishment was 11 years. 

The probation report recommended
denying probation and sentencing defendant to the six-year middle term.  In his statement of mitigation and statement
in support of probation, defendant argued: (1) he was eligible for probation;
(2) there were no aggravating factors as set forth in California Rules of
Court, rule 4.421(a) and (b);href="#_ftn3"
name="_ftnref3" title="">[3]
and (3) various mitigating factors — such as his alcoholism “compounded by his
experience in Iraq” and his offer to “plead guilty to involuntary manslaughter
at an early stage of the proceedings” — applied.  (Rule 4.423.)  Defendant urged the trial court to impose the middle
term if it declined to grant probation.  

            The People urged
the court to impose a 10-year, 8-month prison sentence.  They argued the crime involved “‘a high degree
of cruelty, viciousness, or callousness’”
pursuant to Rule 4.421(a)(1) because defendant was aware of the dangers of
driving while intoxicated “and yet he still chose to consume a high amount of
alcohol and drive.  Unlike most other
employers, the Air Force went to great lengths to prevent Defendant from
committing this offense.  He chose to
disregard completely the training and counseling and the contract he signed,
knowing full well the risks associated with his action.  Defendant’s indifferent demeanor towards others
he would share the road with is a high degree of callousness and thus the
imposition of the upper term is appropriate.” 


At the sentencing hearing, the
court indicated it had read the probation report and attached documents,
defendant’s statement in mitigation and his statement in support of probation
and the supporting documents, and the People’s sentencing brief.  The court struck one of the letters attached
to the probation report.  After hearing statements
from the victims and argument from counsel, the court denied probation and imposed
the upper term of 10 years on Count 2. 
It explained, “I’ve reviewed both the mitigation—and there’s a lot of mitigation
in this case.  There’s also a lot of
aggravation in this case.  And the Court
finds that the aggravating factors outweigh the mitigating factors.

“Taking a look at Rule 4.421, the
Court notes that—I realize now, as he sits here today in a clear frame of mind,
he appears to be remorseful, and I think he is remorseful. However, one of the rules
is whether or not there was an attempt to mislead law enforcement.  And early on, he made the following comment—it
was contained in the probation report, and I heard it at the preliminary
hearing, quote, I knew this was going to happen.  I knew someone was going to run into me, and I
was going to get blamed for it. I think that tells you a lot about what was
going on in his mind when this was occurring, and it causes the Court great
concern about the other important issue that a judge looks

at in sentencing, and that is, protecting the public.” 

“Pursuant to Rule . . . 4.421
subparagraph (7), Count 2 the Court is going to run concurrent and, therefore,
the sentence for the violation of . . . section 191.5 is ten years as the aggravated
sentence. [¶] The Court—one reason the Court chooses that aggravated

term is not only to protect the public, but also to give Mr.
Scott enough time in state prison to fully understand what he’s done, fully
understand how he needs to change his life, and to assume his responsibilities
once again when he’s on parole, and to do things in society that he knew he
should have done then. . . .  [¶] The
military, the United States Air Force — [ ] have gone out of their way to
dissuade and to educate their members not to commit these types of acts.  He was well-aware of that, and he chose to
ignore that. [¶] So for the violation of Vehicle Code section 23153,
subdivision (a), the Court will run a concurrent sentence of two years.”

DISCUSSION

            To forestall an ineffective assistance of counsel claim,
we address the merits of appellant’s claim notwithstanding trial counsel’s
failure to object to the sentence in the trial court.  (People
v. Scaffidi (1992) 11 Cal.App.4th 145, 151; People v. Scott (1994) 9 Cal.4th 331, 354-355 [challenges to discretionary
sentencing choices forfeited on appeal if not raised in the trial court].) 

            Pursuant to
section 1170, a trial court is “required to specify reasons for its sentencing
decision[.]”  (People v. Sandoval (2007) 41 Cal.4th 825, 846-847 (>Sandoval); § 1170, subds. (b), (c).)  The court, however, is not required to “cite
‘facts’ that support its decision or to weigh aggravating and mitigating
circumstances.”  (Sandoval, supra, 41 Cal.4th at p. 847.)  “The trial court has broad discretion with
regard to sentencing, and its decision will be affirmed on appeal, so long as
it is not arbitrary or irrational and is supported by any reasonable inferences
from the record.  [Citation.]  The party attacking the sentence must show
the sentencing decision was irrational or arbitrary and if it fails to do so, “‘the
trial court is presumed to have acted to achieve legitimate sentencing
objectives. . . .’”  [Citation.]”  (People
v. King (2010) 183 Cal.App.4th 1281, 1323; Sandoval, supra, 41 Cal.4th at p. 847.)  While a “trial court is required to state its
reasons for any sentencing choice (e.g., imposition of an upper term) on the
record at the time of sentencing” (People
v. Ortiz (2012) 208 Cal.App.4th 1354, 1371 (Ortiz)), a “trial court may ‘minimize or even entirely disregard
mitigating factors without stating its reasons.’”  (People
v. Lai (2006) 138 Cal.App.4th 1227, 1258, quoting People v. Salazar (1983) 144 Cal.App.3d 799, 813.)  A single “aggravating factor is sufficient to
support the imposition of an upper term.” 
(Ortiz, supra, 208 Cal.App.4th
at p. 1371.)

Here, the court relied on several
aggravating factors, including that defendant knew of the dangers of drinking and
driving and decided to engage in a dangerous and violent activity.  There is substantial evidence to support the
court’s decision to impose the upper term based on Rule 4.421(a)(1), which
identifies a circumstance in aggravation as when “[t]he crime involved great
violence, great bodily harm, threat of great bodily harm, or other acts
disclosing a high degree of cruelty, viciousness, or callousness.”  We conclude these particular crimes evidenced
“a high degree of . . . . callousness.” 
(Rule 4.421(a)(1).)  First, defendant
was well aware of the dangers of driving while intoxicated because he signed a
DUI contract with his employer, the United States Air Force, outlining “the
dangers of drinking and driving and indicat[ing] . . . he could face a lengthy
prison sentence if he killed someone” while driving under the influence.  He also “participated in alcohol counseling
as a result of a reprimand he received stemming from an underage alcohol
incident.”  Moreover, defendant’s
statement to police after the accident that he “knew this was going to
happen[,]” suggests he was aware of the dangers of drunk driving and still
chose to drive after consuming a large amount of alcohol.   

Second — and in apparent disregard
of his knowledge of the disastrous consequences of driving while intoxicated — defendant
consumed a significant amount of alcohol sufficient to raise his blood alcohol
level to more than twice the legal limit.

He then took the wheel, driving at a high rate of speed in a
manner virtually calculated to cause a severe accident.  He declined his passenger’s request to slow
down.  He drove in the oncoming traffic
lane during a time when early evening traffic was on the road, creating a strong
likelihood the accident would cause serious injury.  (See People
v. Castorena (1996) 51 Cal.App.4th 558, 562-563 [particularly egregious
drunk driving can support aggravated term for gross vehicular manslaughter].)  Here, the trial court did not abuse its
discretion in concluding sufficiently egregious circumstances were present to
constitute a factor in aggravation. 
Defendant’s conduct was distinctly more egregious than the “ordinary” offense
of vehicular manslaughter with gross negligence while intoxicated and was “deserving
of punishment more severe than that merited for other offenders in the same
category[.]”  (People v. Black (2007) 41 Cal.4th 799, 817.)

We reject defendant’s argument that
the trial court could not rely on the danger he presents to society as an
aggravating factor.  (Rule 4.408 [court
may rely on “additional criteria reasonably related to the decision being made”
to impose the upper term].)  A September
2012 “psychological report” offered in support of defendant’s mitigation
statement notes defendant “was not aware that he was alcohol dependent at the
time of the instant offense, and only recently realized the severity of his alcohol
problem.”  The December 2012 probation
report, however, notes defendant “admits to having an alcohol abuse problem and
also reports that, despite the severity of the instant offenses, he consumed
alcohol after committing the [ ] offenses[.]” 
From this evidence, it was reasonable to infer there was a significant
risk the same or similar conduct would be repeated the next time defendant had
an opportunity to drink and drive, presenting a serious danger to society.  Defendant represented a danger to society
when he stepped into his car the day of the accident.  Given his alcohol dependence and his continued
drinking, he presented precisely the same danger at the time of sentencing.  The trial court did not abuse its discretion
in treating this threat as a factor in aggravation.  (Rule 4.408(a).)

We are not persuaded by defendant’s
claim that the factors relied upon by the court were “too vague and editorial[.]”
 Rule 4.408(a) allows the sentencing
court to use as aggravating factors “additional criteria reasonably related to
the decision being made.”  That defendant
disagrees with the applicability of the aggravating factors does not
demonstrate they were improper or that they were unrelated to the sentencing
decision.  Moreover, even if the trial
court erred in considering one or more particular circumstances at sentencing,
we would not reverse.  “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.”  (>People v. Price (1991) 1 Cal.4th 324,
492.)  We are confident that given the
seriousness of the crimes, the trial court would not have selected a lesser
sentence even if we declared improper some of the aggravating circumstances defendant
has contested.

DISPOSITION

The judgment is affirmed.

 

 

 

 

                                                                                                _________________________

                                                                                                Jones,
P.J.

 

 

We concur:

 

_________________________

Simons, J.

 

_________________________

Bruiniers, J.