Filed 8/29/18 P. v. Gonzales CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge.

Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Robert Gezi and Julie A. Hokans, for Plaintiff and Respondent.

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Appellant Alyssa Renee Gonzales caused a traffic collision in which the other driver was killed. After being given an indicated sentence, she pleaded guilty and was convicted of (1) grossly negligent vehicular manslaughter while intoxicated; (2) driving under the influence and causing injury; and (3) driving without a license. When entering her guilty plea, she reserved the issue of whether count 2 is a lesser offense necessarily included in count 1.

At the sentencing hearing, the trial court erroneously found either that count 2 was not a lesser necessarily included offense, or that there was no legal obstacle to entering judgment on both convictions even if it was. The court sentenced Gonzales accordingly. The additional prison time for count 2 was stayed, but the sentence did include a 15 percent limitation on conduct credits that could not have been imposed without the improper conviction on count 2. As a result, a judgment was entered that was neither consistent with the indicated sentence (which presupposed a correct resolution of the lesser-included-offense issue) nor authorized by law. This was error.

Gonzales asserts that the proper remedy is to reverse the conviction of the lesser included offense and direct the trial court to resentence her accordingly. We agree. The only apparent alternative would be to remand with directions to allow Gonzales to withdraw her plea and to impose a lawful sentence if she does not. Appellant has not requested that as an alternative, however. Further, the record presents no reason for thinking the trial court intended to abandon the indicated sentence if the subsequent hearing on the lesser included offense issue went Gonzales’s way. We will not impute such an intention to the trial court. And, as we will explain, there would be no point in such a remand as a practical matter. The sentence the court selected was based on the middle term for count 1, and its findings on aggravation and mitigation would not be consistent with imposing the upper term on remand. Gonzales has already demonstrated that she prefers accepting the middle term over going to trial. So a remand order of this sort would lead to the same result as simply reversing count 2.

We agree with the parties that the misdemeanor sentence imposed on count 3 exceeded the statutory maximum. We reject Gonzales’s contention that the trial court abused its discretion by denying probation.

FACTS AND PROCEDURAL HISTORY

As there was no trial, we draw the facts from the probation officer’s report and the preliminary hearing transcript. On the morning of June 5, 2015, Gonzales, then 18 years old, was driving to her boyfriend’s house to pick him up and take him to court, where he was scheduled to make an appearance. Around 6:30 a.m., she was proceeding south on Blackstone Avenue in Fresno at about 60 miles per hour when her car veered to the right at the intersection of Blackstone and Shields Avenues and collided with a pickup truck waiting at the light on Shields. At the time of the impact, Gonzales’s car was travelling at 38 miles per hour. The impact pushed the pickup into a third car beside it, which was damaged. The driver of the pickup was transported to a hospital, where he died of injuries sustained in the collision. The occupants of the third car were uninjured.

An officer contacted Gonzales at the scene of the collision. She told the officer she was dizzy, but had not hit her head. She said that the night before, she had taken some Xanax pills. A subsequent analysis of her blood sample, however, indicated the presence not of Xanax but of pregabalin, a pain medication, also known by the trade name Lyrica. Side effects of pregabalin include drowsiness, dizziness, and difficulty concentrating.

About two hours after the collision, another officer administered an examination to determine whether Gonzales was intoxicated. He first had her take a preliminary alcohol screening and determined she had no blood alcohol content. He conducted several additional tests, involving eye movements, balance, vital signs and other matters, and found her to be impaired.

Gonzales told the officer she had taken three Xanax around 8:00 or 8:30 p.m. the night before. She did not have a prescription for Xanax and had gotten the pills from a friend. She also said she had been in a fight with several women that night, and had been kicked in the head, been bitten, and received a black eye. The officer observed some bruises on her body. He ruled out concussion as the cause of Gonzales’s impairment and concluded she was under the influence of a depressant drug. Xanax, as the officer knew, is a central nervous system depressant. He later learned that drug for which Gonzales’s blood tested positive was Lyrica, and considered this also to be consistent with the symptoms he observed.

Gonzales spoke to a third officer while she was in a holding cell at the jail. She told him she was still feeling the effects of what she believed to be Xanax, as she was dizzy and tired—“still high,” as she put it. She thought she should have slept longer. She said she had taken Xanax before and knew how it affected her.

According to the officer, Gonzales did not express concern for the other driver during his conversation with her at the jail. The officer also reported, however, that Gonzales said she did not remember the collision.

Gonzales also told one of the officers that she had bipolar disorder, depression and anxiety, as well as anger management problems. She further stated she was homeless and had been moving from house to house, staying with friends and family. She was concerned about her car and her belongings inside it, as that was everything she owned.

Gonzales told the probation officer, “I feel terrible. I never in my life thought I would take someone’s life.” She said she had family members who had been killed by drunk drivers or people who were texting while driving. She had been keeping company with the wrong people and the crash was a “wake up call,” but also a “total complete freak accident.” She wanted to go to college and get some of her tattoos removed.

A toxicologist testified at the preliminary hearing that it was not possible, using the available data, to say whether the level of pregabalin found in Gonzales’s blood would be enough to cause impairment. Some studies had found mild effects of pregabalin on driving responses. He would have expected to find a higher level of the drug in Gonzales’s blood had she been abusing it. Having viewed video of Gonzales taken during her drug evaluation, however, the toxicologist agreed that Gonzales appeared impaired in a manner consistent with the effects of pregabalin.

The information filed by the district attorney charged Gonzales with five counts: (1) gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a))[1]; (2) driving under the influence and proximately causing bodily injury (Veh. Code, former § 23153, subd. (e) [current § 23153, subd. (f)]); (3) driving without a license (Veh. Code, § 12500, subd. (a)); (4) driving at an unsafe speed (Veh. Code, § 22350); and (5) making an unsafe turn (Veh. Code, § 22107). Count 1 was alleged to be a serious felony within the meaning of sections 1192.8 and 1192.7, subdivision (c)(8) and (23). In connection with count 2, the information alleged under section 12022.7, subdivision (a), that Gonzales caused great bodily injury, and therefore count 2 was a violent felony within the meaning of section 667.5, subdivision (c)(8), as well as a serious felony within the meaning of section 1192.7, subdivision (c)(8). Count 3 was charged as a misdemeanor, and counts 4 and 5 as infractions.

Having pleaded not guilty at her arraignment, Gonzales came to court on January 20, 2016, the date scheduled for the beginning of her trial, prepared to enter a change of plea. The court explained that the prosecutor had declined to offer any plea agreement. Defense counsel, however, had asked the court to consider stating an indicated sentence or an intent to grant probation. The court told Gonzales it considered probation inappropriate, but would indicate a lid of six years, which was the middle term for count 1, the vehicular manslaughter charge, as it had determined that there were no factors in aggravation. The court also stated that under “the statute,” Gonzales would have to serve at least 85 percent of the six-year term regardless of credits, rather than the default rate of 50 percent. The statute in question was section 2933.1, which permits maximum worktime credit of 15 percent for a defendant convicted of a felony listed in section 667.5, subdivision (c). The only offense charged in this case that is listed there is count 2, a violation of Vehicle Code section 23153, with a great-bodily-injury finding under section 12022.7. (§ 667.5, subd. (c)(8).)

On this basis, Gonzales entered pleas of guilty to all five counts and admitted the special allegations. Before the hearing adjourned, defense counsel stated, “just so the record is clear … we’re reserving the right to make arguments regarding necessarily included convictions and any legal ramifications of one or more of the charges being necessarily included in the others.” The court replied, “All right. And I accept that.” It went on to say it understood defense counsel would “ask the court to consider a lesser sentence” than the indicated lid “at the time of sentencing.” The plea of guilty with a lid of six years at 85 percent was memorialized on the plea forms.

At the sentencing hearing, defense counsel argued that count 2 was a lesser offense necessarily included in count 1, so the conviction on count 2 should be stricken; consequently, the 15 percent limitation would not apply, because section 2933.1 applied only to count 2. Rejecting this contention, the trial court explained that it believed it was bound by In re Pope (2010) 50 Cal.4th 777 (Pope).

In Pope, the question was whether a 15 percent limitation under section 2933.1 applied even though section 654 required the court to stay the defendant’s sentence on the only conviction to which section 2933.1, subdivision (a) applied. Our Supreme Court held that the limitation did still apply, because section 2933.1, subdivision (a) requires only that the defendant be convicted of a qualifying offense. Section 654 stays punishment, but allows the underlying conviction to stand. (Pope, supra, 50 Cal.4th at pp. 784-785.)

Defense counsel pointed out that Pope contains no discussion of the issue of whether the 15 percent limitation can still be applied when the only offense of conviction to which section 2933.1, subdivision (a) applies is a lesser offense necessarily included in another offense of conviction in the same case, despite the fact that a defendant ordinarily cannot stand convicted of both an offense and a lesser offense necessarily included in it. The court acknowledged this. Nevertheless, it concluded that Pope was controlling because the offense to which section 2933.1, subdivision (a) applied in that case was, in fact, a lesser offense included in another offense of conviction. Indeed, the two offenses were the same as the two offenses at issue here. Further, the problem arose in the context of a guilty plea, just as it did here. The trial court believed this meant it was required to assume the Supreme Court thought the lesser-included-offense problem was no obstacle to the application of the 15 percent limit, even though the Supreme Court did not mention it. The trial court ruled that the convictions on counts 1 and 2 would both stand and the 15 percent limitation would apply.

The court denied probation. Stating now that the aggravating and mitigating factors balanced, the court imposed the six-year middle term on count 1. On count 2, the court stated that the sentence was the middle term of two years, plus three years for the great-bodily-injury enhancement; that sentence was then stayed under section 654. For count 3, the court imposed a sentence of time already served in jail, which amounted to 284 days of actual custody plus 43 days of good time/work time credit calculated at the 15 percent rate, for a total of 327 days, deemed concurrent with the sentence on count 1. The court dismissed the infractions charged in counts 4 and 5 in the interest of justice. The court also dismissed two misdemeanor charges in two other cases pending against Gonzalez. The abstract of judgment indicates that the presentence custody credits were calculated in accordance with section 2933.1.

DISCUSSION

I. Lesser included offense

Gonzales argues that the court erred in declining to strike count 2 because it was a lesser offense necessarily included in count 1, and that, consequently, the 15 percent credit limitation under section 2933.1 has erroneously been applied to her. The issues involved present questions of law only, which we review de novo. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799; Topanga & Victory Partners v. Toghia (2002) 103 Cal.App.4th 775, 779-780.)

A lesser offense is necessarily included in a greater offense if it is not possible to commit the greater offense without also committing the lesser offense. In other words, the lesser offense is necessarily included in the greater if the elements of the lesser are a subset of the elements of the greater. (People v. Miranda (1994) 21 Cal.App.4th 1464, 1467.)

It is well settled that driving under the influence and proximately causing bodily injury (count 2 in this case) is a lesser offense necessarily included in gross vehicular manslaughter while intoxicated (count 1). (People v. Givan (2015) 233 Cal.App.4th 335, 351; People v. Binkerd (2007) 155 Cal.App.4th 1143, 1147-1150; People v. Miranda, supra, 21 Cal.App.4th at pp. 1466-1468.) The People concede this point.

It has long been held in California that if a defendant is convicted of both a greater offense and a lesser offense necessarily included in it, the conviction of the lesser offense is unlawful and must be reversed. (People v. Pearson (1986) 42 Cal.3d 351, 355, overruled on other grounds by People v. Vidana (2016) 1 Cal.5th 632, 650; People v. Cole (1982) 31 Cal.3d 568, 582; People v. Moran (1970) 1 Cal.3d 755, 763; People v. Bauer (1969) 1 Cal.3d 368, 375; People v. Greer (1947) 30 Cal.2d 589, 604.) The People do not dispute that this is the rule, at least in general.

We see no grounds in this case for departing from this general rule. It follows that the conviction and sentence on count 2, and the application of the credit limitation set forth in section 2933.1, are erroneous.

In arguing against this position, the People do not rely on Pope, supra, 50 Cal.4th 777, the case cited by the trial court. The People concede that Pope has no bearing on the lesser included offense issue because this issue is never even mentioned in that case. It is axiomatic that a case is not authority for a proposition it did not consider. (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn.2.) It makes no difference that the court could not have reached the result it did unless it would have accepted the unconsidered proposition, had it considered it.

The People instead rely on People v. Hester (2000) 22 Cal.4th 290 (Hester) and In re Giovani (2000) 81 Cal.App.4th 1061 (Giovani). In Hester, the defendant pleaded no contest to several charges in return for an agreed sentence of four years. The charges included a burglary and an assault arising from a single incident. At sentencing, the trial court imposed a four-year sentence for the burglary and a three-year concurrent sentence for the assault. On appeal, the defendant argued that the three-year concurrent sentence was unauthorized because section 654 required it to be stayed. (Hester, supra, 22 Cal.4th at pp. 293-294.) A divided California Supreme Court rejected this contention, reasoning that the defendant sacrificed his right to a sentence consistent with section 654 by agreeing to one that was inconsistent with it. “[D]efendants are estopped from complaining of sentences to which they agreed,” the court held. (Id. at p. 295.)

In Giovani, the defendant was a minor who admitted to one count of unlawful discharge of a firearm with gross negligence and one count of unlawful possession by a minor of a firearm capable of being concealed on the person. In return, the juvenile court agreed to dismiss other charges and to impose a commitment to the Youth Authority of five years two months, which would cover the admitted offenses plus some previously sustained juvenile delinquency petitions. (Giovani, supra, 81 Cal.App.4th at pp. 1063-1064.) On appeal, the minor argued that his admission to the unlawful possession count should be set aside and a new dispositional hearing ordered because that count was a lesser offense necessarily included in the unlawful discharge count. Citing Hester, the Court of Appeal held that even if one of the counts was a lesser offense necessarily included in the other, there was no error because the minor agreed to the disposition, which resulted in a shorter maximum confinement time than he would otherwise have been exposed to, and he received the benefit of his bargain. (Giovani, supra, at pp. 1064-1065.) (The court went on to hold that, in any event, unlawful possession by a minor of a firearm capable of being concealed on the person was not necessarily included in unlawful discharge of a firearm with gross negligence. (Id. at pp. 1065-1066.))

In the People’s view, the reasoning of Hester and Giovani applies equally well in this case. The People say Gonzales bargained for the sentence imposed, and she received the benefit of her bargain.

For two reasons, Hester and Giovani are not on point. First, Hester and Giovani are plea bargain cases. (Hester, supra, 22 Cal.4th at p. 293; Giovani, supra, 81 Cal.App.4th at pp. 1063-1064.) This case, by contrast, involves an indicated sentence. An indicated sentence is not a plea bargain. (People v. Clancey (2013) 56 Cal.4th 562, 572-577.) No binding deal is formed between the defendant and the People in an indicated sentence, as the People are not a party to an indicated sentence. (Here, for example, the prosecutor stated that she was not interested in offering Gonzales a deal.) Further, there can be no binding deal between the defendant and the trial court in an indicated sentence. The trial court cannot bargain with the defendant by offering leniency in exchange for a plea, as this would constitute a usurpation of an executive branch role. (Id. at pp. 574, 575.) Similarly, the court cannot make any promise to the defendant that it ultimately will impose the sentence it indicates. (Id. at p. 575.) A defendant can enforce a plea bargain against the People, but he or she cannot enforce an indicated sentence against the trial court, for an indicated sentence does not “divest a trial court of its ability to exercise its discretion at the sentencing hearing, whether based on the evidence and argument presented by the parties or on a more careful and refined judgment as to the appropriate sentence.” (Id. at p 576.) The court always has the power, before imposing sentence, to withdraw the indicated sentence and allow the defendant to withdraw the plea. For these reasons, Gonzales never received any kind of binding commitment from anyone regarding the sentence, and thus cannot be said to have made a bargain or to have received the benefit of a bargain.

Second, even if this were a plea bargain case, it would not be possible to say Gonzales got the benefit of her bargain. The reservation of the lesser-included-offense issue would have been part of the deal and should have led to the dismissal of count 2. No such reservation was at issue in Hester or Giovani. Those cases are based on the proposition that an otherwise unlawful sentence is not reversible where the defendant got the benefit or his or her bargain. If Gonzales had obtained a plea bargain on the same terms as those indicated by the indicated sentence, the ultimate result the trial court reached would have been a denial of the benefit of her bargain, for the reservation of the lesser-included-offense issue and all its “ramifications” would have meant Gonzales was entitled to a correct resolution of the question of whether count 2 was necessarily included in count 1 and a correct application of the consequences of that resolution. In sum, when this case is viewed (correctly) as an indicated sentence case, the judgment is simply unlawful, requiring reversal, as it includes convictions and sentences for a greater and a necessarily included lesser offense. When it is viewed (for the sake of argument) as a plea bargain case, reversal is still required: The unlawfulness cannot be disregarded on the ground that Gonzales agreed to the result, because her plea was expressly premised on the lesser-included-offense issue being resolved correctly.

The question of remedy remains. It might be thought that the proper remedy is to remand with instructions to allow Gonzales to withdraw her plea, and if she does not, to impose a lawful sentence. After all, as noted above, the trial court always retains discretion to withdraw an indicated sentence before imposing it. It might be argued (although no one actually has argued) that if the trial court had understood it could not properly enter a judgment of conviction on both counts 1 and 2, then it would have withdrawn the indicated sentence at the sentencing hearing and permitted Gonzales to withdraw her plea, so we should order a remedy that creates a comparable situation on remand.

One problem with this argument is that there is absolutely no indication in the record that the trial court was bluffing when it agreed that defense counsel could reserve the lesser included offense issue for resolution at the sentencing hearing, and really never intended to go through with the indicated sentence if the resolution was in Gonzales’s favor.

Beyond this, the reality is that the only lawful sentences now available upon Gonzales’s plea of guilty are (a) that which would result from our reversal of count 2, namely, six years at 50 percent, and (b) sentences lower than that. This is because the trial court found the upper term on count 1 was unwarranted, as the aggravating and mitigating factors balanced (as the court said at the sentencing hearing) or there were no aggravating factors (as it said at the change of plea hearing). Given the guilty plea on counts 1 and 2, count 2 had to be dismissed as a lesser included offense. The lower and middle terms under section 191.5, subdivision (a), are four years and six years. The 15 percent limitation was inapplicable to count 1. Six years at 50 percent was thus the highest term the court could have imposed given its findings about aggravation and mitigation.[2]

Further, there is no reason to suppose Gonzales might withdraw her plea if given the chance. She has already demonstrated her willingness to accept a sentence based on the middle term for count 1.

In light of the foregoing, the appropriate disposition is the one that will achieve the intent of the indicated sentence in light of the correct answer to the lesser-included-offense question. Reversal of count 2 will achieve this.

II. Custody credit limitation

The reversal of count 2 means the 15 percent credit limitation of section 2933.1 is inapplicable. Neither pre-sentence nor post-sentence credits should be calculated in accordance with it. We will direct the trial court on remand, at the resentencing hearing, to calculate all Gonzales’s credits in accordance with the 50 percent formula set forth in section 4019 instead. Since it has now been more than three years since Gonzales’s arrest, this calculation could show she is entitled to be released, if she has earned all available credits.

III. Sentence for driving without a license

On count 3, misdemeanor driving without a license, the court imposed a sentence of 327 days in county jail, concurrent with the sentence on count 1, and deemed to have been served while Gonzales was in jail before sentencing. The parties agree that the maximum sentence for this offense is 180 days. (§ 19; Veh. Code, § 12500.) We will order the error corrected.

IV. Denial of probation

Gonzales asks us to reverse the trial court’s denial of probation. We review the decision for abuse of discretion. The trial court abuses its discretion only if, in light of all the facts and circumstances of the case, its decision exceeds the bounds of reason. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 825; People v. Aubrey (1998) 65 Cal.App.4th 279, 282.)

The Rules of Court list factors regarding the crime and the defendant that the trial court should consider in deciding whether to grant probation; the rules further state that any other relevant factors should be considered as well. (Cal. Rules of Court, rules 4.408, 4.414.) The trial court is required to state its reasons when it denies probation to an eligible defendant, but we assume it has considered the relevant enumerated factors unless the record affirmatively shows otherwise. (Id., rules 4.406, 4.409.) To the extent the decision depends on disputed facts, the record must contain substantial evidence to support it under the preponderance standard. (People v. Leung (1992) 5 Cal.App.4th 482, 506-507.)

In her report, Gonzales’s probation officer found Gonzales statutorily eligible for probation. The officer wrote that there was one circumstance in mitigation: Gonzales had no prior record, or an insignificant prior record, of criminal conduct. (The only record was the two pending misdemeanors that the trial court dismissed.) The officer also found one factor in aggravation: “The defendant has engaged in violent conduct which indicates a serious danger to society.” As there was never any allegation that Gonzales intentionally committed a violent act, this finding presumably refers to the Penal Code’s designation of a violation of Vehicle Code section 23153, with an enhancement under Penal Code section 12022.7, subdivision (a), as a violent felony. (§ 667.5, subd. (c)(8).) The probation officer also felt Gonzales’s remark about a “freak accident” showed a failure to take responsibility, and demonstrated a danger to society.

Defense counsel filed a statement in mitigation. Counsel contended there were no aggravating factors, and the probation officer’s assertion that the offense was “violent” was hypertechnical. Counsel maintained that although a Vehicle Code section 23153 violation with a Penal Code section 12022.7, subdivision (a) enhancement is classified as a violent felony, the act of driving while intoxicated is not a violent act according to the ordinary meaning of the word. He disagreed with the probation officer’s opinion that the “freak accident” remark showed a failure to take responsibility. Gonzales said she felt terrible, compared the harm caused with that she had experienced when members of her own family had been killed, told the police the truth immediately, and never claimed the collision was not her fault. Counsel also wrote that Gonzales had no prior convictions and had taken the pills under the mistaken impression that they were a drug she had used before and knew the effects of. Further, she was young, and had no apparent significant history of substance abuse.

With the statement in mitigation, Gonzales submitted a letter written by her to the court. She stated that she accepted responsibility for her actions. She hoped to use the experience to tell others about the harm of driving under the influence, and to better herself by completing her education. Gonzales also submitted a letter to the victim’s family, in which she expressed regret.

At the sentencing hearing, defense counsel argued that Gonzales’s culpability was less than in typical section 191.5 violations. Such cases frequently involve defendants who go out drinking and then drive home, he argued, while Gonzales took a prescription drug under mistaken belief about what drug it was, and then slept through the night before driving. Counsel again challenged the view that Gonzales was unremorseful, characterizing as false a police officer’s statement in the probation report that Gonzales never expressed concern for the victim. According to counsel, Gonzales said she repeatedly asked the officer how the victim was doing, but the officer ignored this. Counsel also stated that although Gonzales made a terrible decision when she got up in the morning still feeling the effects of the drug and drove anyway, it was important that she acknowledged this and never tried to evade responsibility.

The prosecutor argued at the hearing that Gonzales bore responsibility not only for driving despite her awareness that the drug’s effects had not worn off, but also for taking illicitly obtained prescription medications in the first place and for driving without the training necessary to obtain a license. The prosecutor agreed with the probation officer that Gonzales’s “freak accident” remark showed she did not grasp her responsibility for the victim’s death. The prosecutor also characterized Gonzales’s own experience with relatives being killed by drunk drivers as an aggravating factor. This was aggravating, in the prosecutor’s opinion, because it meant she drove while intoxicated despite her intimate knowledge of the possible consequences. Finally, the prosecutor averred that Gonzales had an extensive history of drug use because she admitted to the probation officer that she had used alcohol and a number of street and prescription drugs at certain points earlier in her adolescence.

Members of the victim’s family and Gonzales’s family made statements at the hearing.

After hearing all the arguments and statements, the court denied probation. It acknowledged that Gonzales was very young and had no prior record, and it found that she did not have a “lifestyle of addiction” and did not commit an act of violence in the ordinary sense of the word. It described Gonzales as “a very good person.” On the other hand, the court found that Gonzales knew she was in no condition to drive when she got up in the morning, and chose to drive despite being well acquainted with the type of danger involved. The court also mentioned the excessive speed and the involvement of the third car, the occupants of which also could have been injured. In light of all these factors, the court believed Gonzales presented a danger to society.

In our view, this is a case in which the record could have supported either a grant or a denial of probation. It was a first offense by a young defendant, and it involved a mistake about the nature of the intoxicating substance as well as the passage of many hours between the taking of the substance and the driving. At the same time, the record supported findings that Gonzales took the drug with an expectation of an intoxicating effect, and knew she was still intoxicated when she decided to drive. The court was entitled to give substantial weight to those factors. Its conclusion did not exceed the bounds of reason, so we find no abuse of discretion.

DISPOSITION

The conviction on count 2 is reversed along with all associated enhancements. The case is remanded to the trial court for resentencing consistent with the indicated sentence and this opinion. Specifically, the middle term of six years is to be imposed on count 1, and a term of 180 days, concurrent with the sentence on count 1 and deemed served during defendant’s presentence detention, is to be imposed on count 3. At the resentencing hearing, the trial court shall calculate defendant’s total presentence and post-sentence credits in accordance with section 4019, and shall determine whether defendant is entitled to be released. The balance of the judgment is affirmed.

The court shall prepare an amended abstract of judgment and forward it as appropriate.

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SMITH, J.

WE CONCUR:

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DETJEN, Acting P.J.

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PEÑA, J.