The opinion of the court was delivered by: Raye, P.J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Deborah Ann Matisengle guilty of vehicular manslaughter with gross negligence. (Pen. Code, § 192, subd. (c)(1).) The trial court sentenced her to the upper term of six years in state prison. On appeal, defendant contends the court erred when it denied probation and again when it imposed an upper term sentence. She contends the matter must be remanded for new proceedings to be conducted by a different judge. We will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Highway 44 is a paved two-lane state highway. Construction work on portions of the highway began on March 13, 2007, and was ongoing throughout the summer of that year. On August 13, 2007, a construction zone on a portion of the highway was controlled by flaggers. Traffic approaching either end of the zone would line up and wait for a pilot car to lead traffic in one direction in a single lane from one end of the construction zone to the other while flaggers held traffic travelling in the opposite direction at the other end of the zone. For drivers travelling eastbound, the construction zone was preceded by a straightaway approximately one-half mile long with nothing obstructing a driver's view of the flagger's position. The posted speed limit was 55 miles per hour. A number of signs were placed along the highway warning drivers of the impending construction zone and the need to be prepared to stop. The sign farthest from the construction zone, approximately 2.5 miles away, cycled through three different messages: "Roadwork Ahead," "Be Prepared to Stop," and "Use Caution."
On August 13, 2007, defendant was driving her car eastbound on Highway 44. While driving toward the construction zone, she used her cellular telephone to make three calls. Just after 5:04 p.m., she dialed "#225" to check her account balance. The call lasted 25 seconds. About a minute later, she dialed "#646" to check the number of minutes available on her account. The duration of that call was 37 seconds. Within minutes, she dialed "#768" to make a payment on her cellular telephone account. Forty-two seconds into that call, defendant slammed into the back of Petra Winn's car, which was waiting in line at the construction zone. Winn's car burst into flames and she ultimately perished.
Opal Beasley was also waiting in line when Winn's car hit hers from behind, forcing Beasley's car forward. Beasley's car was totaled as a result of the accident, and she suffered minor injuries to her elbows and knees.
Christopher Zanini had also stopped and was waiting in line ahead of Beasley. Zanini's car was hit from behind by Beasley's car.
John Nagle was in his vehicle waiting in line several cars ahead of Winn. Within minutes of stopping, he heard a loud boom behind him and saw Winn's car engulfed in flames. He did not recall hearing any braking prior to the explosion. Nagle called 911.
Terry Catechi also heard a loud impact within minutes of stopping in the line of traffic waiting at the construction zone. He did not see the collision nor did he hear any braking prior to it, but when he looked in his rearview mirror, he saw flames in the air. Catechi jumped out and ran to help Beasley, who was "cut up pretty good." He ran to Winn's car and saw that the driver's door and window were closed. The back of the car was crushed and flames were coming from the rear. He could see someone was inside the vehicle and the airbags had deployed. He and several others tried to open the car door, but were unable to due to smoke and flames. Someone was able to break the window with a jack, and the car filled with smoke. Catechi saw Winn lying back in her seat.*fn1 He leaned in and said, "Ma'am, your vehicle is on fire. We need to get you out." Winn, who was not alert and appeared to be semiconscious, mumbled that "she didn't care." Catechi did not see that Winn had any injuries. He quickly unbuckled her seatbelt and then jumped back because of the extreme heat inside the car. Someone handed Catechi a fire extinguisher, which he used to try to put out the fire while others tried to get Winn out of the burning car. Within a minute or so, the flames fully engulfed the car and Catechi and the others moved away, unable to extricate Winn.
Clifton Egan was also stopped in the eastbound traffic. He heard an explosion and saw Winn's vehicle six or seven cars behind him engulfed in flames. Egan ran to Winn's car, which was on fire, but was unable to see inside the vehicle due to smoke. He attempted to help others open Winn's door, to no avail. He ran back to his truck and returned with a bar, which he used to break the driver's side window. As smoke poured out of the car, Egan could see Winn inside. She appeared to be very drowsy, "[k]ind of almost like a drunken kind of sense. Just kind of, you know, really out of it." The steering wheel airbag was deployed. He did not see that Winn had suffered any apparent physical injuries; however, she was moaning and groaning and did not appear able to talk. When she spoke, Egan characterized it as "gibberish" and "slurred," none of which he could understand. He reached in and tried to open the door from inside but could not. He ran back to his truck several times to retrieve fire extinguishers. By the time he returned with the third extinguisher, Winn's car was engulfed in flames. Egan and several others continued their rescue efforts until they were turned away by the heat.
Kendall Donaldson was driving eastbound on Highway 44 on August 13, 2007. Defendant's car was in front of his as he neared the construction zone. He rounded the bend into the straightaway before the construction zone and slowed when he saw cars lined up ahead of him. Defendant did not slow down, nor did Donaldson see her brake lights come on. As Donaldson slowed down, the distance between his car and defendant's increased. From a distance of approximately one-quarter mile, Donaldson saw defendant's car hit Winn's stationary vehicle. He pulled over and ran to Winn's car, which was on fire. There was thick, black smoke inside the car and flames coming from the rear of the car, but Donaldson could see that there was someone inside. He grabbed the driver's door handle several times and tried unsuccessfully to open the door. He also tried unsuccessfully to break the window with his hand. Egan eventually broke open the driver's side window, but the fire became more intense, impeding their efforts to get Winn out. Several of the men were yelling at Winn, trying to get her to help herself escape; however, Donaldson thought that although her eyes were open and she appeared to be conscious, the smoke "had overcome her." He reached in and grabbed Winn's arm, but she either passed out or tugged against him, causing her to slip out of his grasp. Donaldson grabbed onto Winn a second time, but had to let go and back away because of the flames. Due to the heat and the flames, Donaldson and the others had to abandon their rescue efforts.
California Highway Patrol (CHP) Officer Jack Polen was dispatched and the first emergency responder on the scene. By the time he arrived, Winn's vehicle was fully engulfed in flames. Polen noted that the airbags were deployed in defendant's car and observed defendant to be upset, crying, and apparently in shock. Her speech was somewhat slow and slurred, and her eyes were fixed and not very reactive. Polen did not smell alcohol on defendant's breath but suspected that she might be under the influence of some type of drug. He did not perform a field sobriety test because defendant was complaining of back and neck pain as a result of the collision. Prior to defendant's being taken from the scene in an ambulance, Polen placed her under arrest based on limited evidence that she might be under the influence of something. According to tests of a blood sample taken from defendant, it was later determined that she was not impaired or under the influence at the time of the collision.
Polen first interviewed defendant on August 13, 2007. She denied having used her cell phone while driving and claimed Winn's car pulled out in front of her. She again denied having used her cell phone while driving when Polen interviewed her at her home the next day.
Two days after the collision, defendant met with Polen and signed a consent form releasing her cell phone for examination. She again denied having used her cell phone during the drive prior to the collision and denied having done so a fourth time when Polen spoke with her five days after the collision.
Officer Polen also interviewed Donaldson at the scene on the day of the collision. Donaldson told Officer Polen he did not actually see the collision; rather, he was "in a long line of cars and saw a ball of smoke and flame come up in front of him." Officer Polen testified that none of the witnesses he interviewed saw Winn's car stopped in the line of traffic prior to the collision.*fn2
Kenneth Reed, an engineer with Caltrans and a member of the CHP's multidisciplinary accident investigation team, investigated the incident. According to Reed, there was an adequate sight distance (i.e., an adequate distance for the driver to see ahead to make a safe stop) on the approach to the construction zone.
CHP Officer Robert Koetting testified that, based on accident reconstruction tests, he determined defendant was traveling at a minimum speed of 66 miles per hour when she collided with Winn's car. Officer Koetting stated defendant's speed could have been in the range of 59 miles per hour to 72 miles per hour, but was likely at the higher end of that range based on the physical evidence. He also testified that the physical evidence did not bear out defendant's claim that Winn had pulled out in front of her or that Winn's car was moving from right to left immediately before the collision or at the time of impact.
CHP Officer Troy Somavia testified that, two months prior to the incident, he stopped defendant for speeding on Highway 44. Defendant had a radar detection device mounted on the dashboard of her car, and when Officer Somavia issued her a citation for speeding, she became upset and said "she did not think I could have gotten her on radar because her radar hadn't gone off." She "mumbled something kind of under her breath," and grabbed the ticket book and signed the ticket.
Dr. Susan Comfort, a forensic pathologist with the Shasta County Coroner's Office, performed the autopsy on Winn the day after the incident. An external examination of Winn's body revealed that she was burned beyond recognition. Dr. Comfort determined the cause of death was smoke inhalation and thermal burns. Based on the condition of Winn's body, Dr. Comfort was unable to determine with certainty whether or not Winn suffered physical injuries from the collision prior to succumbing to the smoke and fire.
Outside the presence of the jury, Dr. Comfort testified that Winn's toxicology test revealed the presence of 0.81 milligram of methamphetamine and amphetamine in her blood. According to Dr. Comfort, that amount of methamphetamine can be toxic in someone who never takes methamphetamine and is not used to taking it, but is not likely toxic for someone who uses it regularly. Dr. Comfort could not determine whether methamphetamine was a contributory factor in Winn's ability to help herself ...