Filed 7/11/17 P. v. Gray CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE


THE PEOPLE,
Plaintiff and Respondent,
v.
GAYLE DIANE GRAY,
Defendant and Appellant.

A148982

(Sonoma County
Super. Ct. No. SCR-676255)

INTRODUCTION
In this appeal, counsel for defendant has filed a declaration stating he has reviewed the record in this case and decided to file a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. He has written defendant and advised her of this conclusion. Counsel told defendant she may file a supplemental brief with this court raising any issues Gray believes should be addressed. More than 30 days have passed and no supplemental brief has been received. We have reviewed the record and conclude the judgment should be affirmed. This is a timely appeal.
STATEMENT OF THE CASE
On January 26, 2016, the District Attorney of Sonoma County filed a felony complaint alleging the following offenses committed by defendant: Count 1, vehicular manslaughter without gross negligence in violation of Penal Code section 191.5, subdivision (b); and count 2, driving a vehicle under the influence of alcohol (DUI) and causing bodily injury in violation of Vehicle Code section 23153, subdivision (f). The complaint further alleged that in the commission of counts 1 and 2, defendant injured more than one person within the meaning of Vehicle Code section 23558. Count 2 also alleged defendant inflicted great bodily injury to an elderly victim within the meaning of section 12022.7, subdivision (c).
On May 4, 2016, defendant entered a plea of no contest to both felony counts alleged in the complaint and also admitted the enhancement allegations. The parties agreed the police reports would provide the factual basis for the defendant’s plea. The court stated it found defendant did not willfully intend to cause injury to either of the victims in this matter. On June 21, 2016, after a full sentencing hearing in which representatives of each of the victims’ families spoke, the court sentenced defendant to state prison for the term of 16 months on count 2, along with a consecutive five-year term for the great bodily injury enhancement in count 2. The court additionally imposed a consecutive one-year term for the enhancement for multiple victim injury. The trial court stayed the sentence on count 1 pursuant to section 654. In sum, defendant was sentenced to state prison for a full term of seven years four months. Her counsel had requested probation.
Defendant filed her timely appeal on August 1, 2016.
STATEMENT OF FACTS
The prosecution sentencing statement contains a summary of the reports by law enforcement. We have used the probation report, which is part of the record, to detail the relevant facts for this matter. At the time of the criminal incident in this case, defendant was 77 years of age. On January 20, 2016, she was driving her personal vehicle away from the Oakmont Village parking lot. As defendant drove her car, her pet dog, who was in the car, jumped on her lap, causing Gray to accelerate her car instead of braking. The car drove into two women walking on the sidewalk, Jackie Simon, age 85, and Josephine Ross, age 91. The incident took place around 1:15 p.m. As a result of the accident, Simon died from the impact. Ross sustained substantial physical injuries and has incurred expenses in the approximate sum of $291,290.15. On the morning of the accident, defendant consumed her daily medication of Citalopram and drank two glasses of wine before going to the market. Her blood-alcohol level three hours after the accident was .052 percent. Officer Meiger, who responded to the scene, observed the odor of alcohol on Gray’s breath. She was unsteady on her feet and slow of speech.
Victim Simon sustained a depressed skull fracture and subdural hematoma as a result of the accident. As a result of her injuries, she never regained consciousness and was in the hospital until her death on January 25, 2016. Victim Ross sustained a right ankle fracture that needed surgery to repair, two spinal compression fractures at the T2 and T12 vertebrae, a concussion, and contusions to her right hand and sternum. When she was released from the hospital, she was taken to Park View Post Acute for further treatment and rehabilitation.
A review of defendant’s prior criminal history shows she has had two prior DUI convictions, one in 1994 and one in 2003. When the police searched defendant’s car, they found items she had just purchased at the market: a jar of pasta sauce, bottle of mayonnaise, and an unopened bottle of red wine. The clerk at the market indicated defendant shopped there almost daily, with regular purchases of wine and other food products.
At sentencing, defense counsel argued for probation due to defendant’s remorse; her ingestion of prescriptive drugs, which affected her ability to operate the car; her age; and the contention defendant would never drive again. The district attorney objected to probation. The trial court concurred. The sentencing judge noted this was defendant’s third DUI conviction; one victim died and one was substantially impaired as a result of incident; the blood-alcohol level of defendant three hours after the offense was still .052 percent; and the victims were on the sidewalk when struck by defendant.
DISCUSSION
This is an unfortunate case. It is difficult to commit a 77-year-old woman to state prison when she has a minimal criminal record. Nevertheless, the two victims in this case were described by family as alert, active, and extremely close friends before this incident. Now Simon is dead and Ross needs 24-hour care. A simple review of the testimony by family at the sentencing illustrates the tragedy of this to all parties.
There is no finding of probable cause by the trial court, so the plea process is not challenged. (§ 1237.5, subdivision (b); People v. Marsh (1984) 36 Cal.3d 134, 140.) The defendant at all times was represented by private counsel and the record reflects proper legal representation by him here. The trial court carefully and fully answered the defense request for probation by articulating the details of the crime and the fact that two grandmothers can no longer fully enjoy life and family. The sentence was clearly difficult but in no way an abuse of discretion.
DISPOSITION
We affirm the judgment.



_________________________
Dondero, J.


We concur:


_________________________
Humes, P. J.


_________________________
Banke, J.