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The People v. Shannon Sterrett

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)


October 17, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
SHANNON STERRETT, DEFENDANT AND APPELLANT.

(Super. Ct. No. CRF080336)

The opinion of the court was delivered by: Mauro , J.

P. v. Sterrett

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Shannon Sterrett and her boyfriend, Kevin Bair, were traveling in a pickup truck through downtown Woodland when the truck drove up on a sidewalk and hit a tree. Both had a blood alcohol content of at least .20 percent, both were ejected in the crash, and nobody saw who had been driving. Bair was killed in the accident. A jury convicted defendant of gross vehicular manslaughter while intoxicated.

Defendant contends on appeal that the trial court erred when it (1) excluded evidence that Bair previously drove defendant's car while intoxicated, (2) allowed Officer Darrell Nishimi to give expert testimony on accident reconstruction without first determining that he was qualified, and (3) denied probation based on defendant's continued assertion that she was not the driver.

We conclude (1) the trial court did not abuse its discretion in excluding evidence that Bair previously drove defendant's car while intoxicated, because Bair's prior conduct did not show a fact admissible under Evidence Code section 1101, subdivision (b),*fn1 and defendant does not challenge the trial court's exclusion of the evidence under section 352; (2) the trial court did not abuse its discretion in allowing Officer Nishimi to give expert opinion, because defendant did not timely object or move to strike the officer's testimony and did not establish that Officer Nishimi was not qualified; and (3) the trial court had other reasons for denying probation, including defendant's repeated violations arising from her alcohol use, and it is not reasonably probable that the trial court would have granted probation even if it had not considered defendant's denial that she was the driver.

We will affirm the judgment.

BACKGROUND

After defendant finished her work shift in Davis at 6:00 p.m. on November 24, 2006, she returned to her apartment in Woodland. She was driving her grandparents' gray 1991 Ford F-250 pickup truck. Bair, her boyfriend of about three months, was already at her apartment when she arrived home. Bair had been drinking beer.

Defendant convinced Bair to go out with her. She drove Bair in her grandparents' truck to Kenney's Bar and Grill in Woodland (the bar), arriving there about 8:00 p.m. Defendant parked the truck at the Olive Tree Plaza parking lot. Defendant gave the truck keys to Bair because her pants pockets were small.

Defendant said she had four drinks at the bar and Bair may have had three beers. Diana Villarreal, Sheri Mojica and Heidi Delfin were also at the bar that evening. They said defendant appeared very drunk, slurred her words, and had trouble walking and sitting on the bar stool. Mojica and Delfin saw what appeared to be vomit on defendant's shirt.

Brent Guam was walking across the Olive Tree Plaza parking lot when he saw a man and a woman sitting in a gray Ford pickup truck. The truck's engine was running and its headlights were on. The driver-side window was rolled down. Guam heard the man and woman arguing. Guam saw the woman in the driver's seat, with her arms on the steering wheel and her head resting on her forearms. The woman was crying. Guam heard the man yell, "how the fuck could you do this" and saw the man throw what could have been a cell phone at the dashboard. Guam did not see anyone drive the truck.

At about 10:45 p.m., Guam received a call on his cell phone from his roommate, reporting that there was an accident down the street. Guam and his friends walked to the accident scene about half a mile from the bar. According to Guam, the truck involved in the accident was the same one in which the couple had been arguing.

At about 10:35 p.m., Joseph Munoz, Jr., was stopped at the traffic signal at the intersection of East Street and Main Street in Woodland. Munoz saw a truck traveling north on East Street at a speed of 55 to 60 miles per hour. Munoz saw the truck pass a car, cross the intersection of East and Main, drive up on the curb and hit a tree. Munoz did not see the occupants of the truck before the truck struck the tree.

Paramedic Hope Youngblood, her partner Paul Otteson, and Youngblood's paramedic intern Marco Scachetti arrived at the collision scene at 10:40 p.m. Defendant was unconscious but came around slowly. Defendant was very confused at first and then became combative.

Defendant stated more than once that she had been driving the truck. At the accident scene, Youngblood asked defendant what happened and defendant responded, "Oh, my God. I hit a tree. Oh, my God. I wrecked the truck." In the ambulance, Youngblood again asked defendant what happened and defendant repeated the statement that she had wrecked the truck. According to Youngblood, defendant described going around a vehicle that had stopped in front of the truck, speeding up, losing control of the truck, and hitting a tree.

Scachetti likewise testified that defendant admitted she had been driving. Scachetti recalled that when he was putting defendant in the ambulance, defendant said "[O]h, my God. Did I kill him? Is he dead?" Defense counsel introduced evidence, through his private investigator James Peoples, that during a January 2009 interview Scachetti could not remember who told him that defendant was the driver. However, Scachetti testified that at the time of the January 2009 interview, he had not reviewed his patient care report for the November 24, 2006, incident.

Youngblood testified that defendant was completely alert and did not appear confused when defendant admitted that she drove the truck. On cross-examination, however, Youngblood testified that defendant kept repeating her statements and was "altered," "combative" and hysterical during the trip to the hospital. Scachetti similarly testified that defendant was hysterical and repeated questions over and over again. Youngblood admitted that making repetitive statements is a symptom of a concussion.

The Woodland Police Department asked the Multidisciplinary Accident Investigation Team (MAIT) to determine the identity of the driver who caused the collision. MAIT performs accident reconstruction and investigates complex vehicle collisions that require in-depth analysis or speed calculations. Officer Nishimi, a state-certified traffic accident reconstruction specialist, was assigned primary investigative duties for MAIT's investigation of the November 24 collision.

According to Officer Nishimi, the truck went up on the sidewalk on East Street, the truck's passenger-side bumper hit a speed limit sign on the sidewalk, and the front passenger side of the truck hit a large tree. When the truck hit the tree, the truck was crushed rearward. The truck then rotated in a clockwise direction as it travelled up the tree, uprooting it. The truck rolled over approximately 180 degrees and continued moving in a clockwise direction until its right tire struck the curb and the truck came to a rest on the roadway, approximately 70 feet from where the large tree originally stood. The force of the impact caused the truck's cab to separate from the frame with the exception of one of the six body-to-frame mounts. The truck cab sat upright, with the back of the cab touching the roadway. The truck bed lay upside down on the roadway.

Officer Nishimi opined that the truck was traveling at a speed of at least 50 miles per hour when it collided with the tree. The posted speed limit for the location where the collision occurred was 35 miles per hour.

The impact with the tree caused significant damage to the front, passenger side of the truck. The impact pushed the passenger side of the dashboard toward the rear of the cab. The passenger-side door suffered significant rearward crushing, causing the door to bow out from the vehicle and crumple in toward the rear of the truck. The passenger-side window was shattered. In contrast, the driver-side door suffered little damage and the driver-side window was intact.

Officer Nishimi concluded that neither the driver- nor passenger-side seatbelt was in use at the time of the collision. Bair was found on the roadway, approximately 25 feet south of the truck. Defendant was found lying right outside the driver-side door of the truck.

Officer Krause was responsible for coordinating the investigation of the accident. He found a women's "wedge-type" right shoe on the roadway at the collision scene. He found the matching left shoe in the truck, wedged between the driver-side door and the driver's seat. Officer Krause observed what appeared to be vomit on both shoes. Defendant was wearing Steve Madden "wedge" shoes on the evening of the collision. Officer Krause also observed apparent vomit in various areas in the driver's side of the truck cab.

Based on the principal direction of force at the time of the collision and the damage to the truck, Officer Nishimi opined that the passenger would have suffered more severe injuries than the driver. Officer Nishimi opined, based on the injuries sustained by Bair and defendant and the areas of occupant damage in the truck cab, that Bair's right shoulder struck the fan control vent on the dashboard, Bair's right knee and shin made contact with the glove box, and defendant's left knee struck the pillar where the headlight switch was located.

Officer Nishimi concluded that Bair was the passenger at the time of collision. His opinion was based on (1) the correlation between Bair's injuries and areas of occupant damage in the truck cab, (2) the fact that Bair suffered more serious and numerous "bleeding-type injuries," (3) blood found in the truck cab was generally localized in the passenger and center area of the cab, and (4) DNA testing determined that the blood found in the truck cab was likely Bair's.

Officer Nishimi also opined that defendant was the driver at the time of the collision. This opinion was based on the contact points he observed in the truck, the biological evidence found, defendant's injuries, the relative severity of Bair and defendant's injuries, Officer Nishimi's opinion that the passenger was not in a sitting position at the time of impact, and the fact that defendant's shoe was found wedged between the driver's seat and the driver-side door. Officer Nishimi opined that defendant's injuries were not consistent with her being the passenger at the time of impact.

The defense offered the testimony of Casey Kolb, who left the bar around the same time as Bair and defendant. Kolb heard Bair say that he was going to drive and defendant respond "fine." Kolb saw Bair walk to the driver's side of the truck and reach his arm through the window to unlock the truck door. Kolb saw defendant walk to the passenger side of the truck. Kolb did not see either of them get into the truck or drive the truck.

Test results showed that defendant's blood alcohol content (BAC) was .20 percent. The Sacramento County Crime Lab determined that Bair had a .20 percent BAC. A second lab determined that Bair's BAC was .21 percent. Department of Justice Crime Laboratory senior criminalist Boyd Lasater opined that at .10 percent BAC a person cannot drive a motor vehicle safely.

A first trial ended in mistrial, but after a second trial the jury convicted defendant of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a).)*fn2 The trial court denied defendant probation and sentenced her to the lower term of four years in prison. (Pen. Code, § 191.5, subd. (c)(1).)

DISCUSSION

I

Defendant contends the trial court erred in excluding evidence that Bair had previously driven defendant's car while intoxicated (the prior incident) and that the trial court incorrectly relied on this court's decision in People v. Tackett (2006) 144 Cal.App.4th 445 (Tackett). Defendant argues that unlike the situation in Tackett, she did not offer evidence of the prior incident to prove Bair's "propensity" to drive while intoxicated, but instead to show that defendant generally allowed Bair to drive vehicles belonging to defendant or entrusted to her, and that Bair's demeanor while intoxicated did not reveal his level of intoxication. We conclude that the trial court did not abuse its discretion in excluding evidence of the prior incident.

A

We begin with the relevant background for this contention. On October 22, 2006, Bair was driving defendant's car when he struck a parked van. Defendant was asleep in the passenger seat at the time of the accident. Bair's BAC level was .16 to .18 percent, and he was arrested for driving under the influence (DUI).

That same year, this court issued its decision in Tackett, supra, 144 Cal.App.4th 445. In that case, defendant Steven Tackett and his friend Michael Cotham were the only occupants of a truck that collided with a car, killing two occupants of the car and injuring a third. (Tackett, supra, 144 Cal.App.4th at p. 450.) Both Tackett and Cotham were thrown from the truck and both had BAC levels well above the legal limit. (Ibid.) Tackett made incriminating statements at the scene of the collision. (Id. at p. 451.) The issue was who drove the truck.

Tackett sought to admit evidence of prior occasions when Cotham drove a car while under the influence. (Tackett, supra, 144 Cal.App.4th at p. 448.) In the first incident, Cotham almost struck two people as he sped down a street and fishtailed while turning. (Id. at p. 452.) Cotham was intoxicated but was convicted for resisting a peace officer. (Ibid.) In the second incident, an officer saw Cotham speeding and spinning the tires of his car after stopping at a red light. (Id. at pp. 452-453.) Cotham was convicted of DUI. (Ibid.)

Tackett argued, among other things, that Cotham's prior acts were admissible under section 1101, subdivision (b) to prove Cotham's identity as the driver who caused the fatal collision. (Tackett, supra, 144 Cal.App.4th at pp. 449, 457.) This court held that evidence of Cotham's prior acts was not admissible under section 1101, subdivision (b) because Cotham's prior acts were not sufficiently distinctive or unique to be like a "signature" so as to establish identity. (Id. at pp. 449, 457-458.) Moreover, the prior acts were not sufficiently similar to the fatal accident. (Id. at pp. 458-459.)

Citing Tackett, the trial court in this case concluded that the evidence that Bair previously drove defendant's car while intoxicated was character or propensity evidence and was not sufficiently similar to the November 26 accident to be admissible. The trial court also concluded that such evidence should be excluded under section 352 because it was substantially more prejudicial and time-consuming than probative.

Defendant subsequently asked the trial court to reconsider its ruling. Defendant proposed "sanitiz[ing]" the evidence of the prior incident by not mentioning that it resulted in a DUI arrest. The trial court denied defendant's request.

B

With the foregoing background in mind, we turn to an analysis of defendant's contention. We review a trial court's ruling under sections 1101 and 352 for abuse of discretion. (People v. Mungia (2008) 44 Cal.4th 1101, 1130.)

Evidence of a person's prior conduct is generally not admissible to prove his or her conduct on a specified occasion. (§ 1101, subd. (a).) But section 1101, subdivision (b) sets forth an exception. Evidence that a person committed a crime or other act is admissible to prove a fact, "such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident," other than the person's disposition to commit such an act. (§ 1101, subd. (b).) The admissibility of prior conduct evidence depends upon the materiality of the fact sought to be proved, the tendency of the uncharged crime to prove the fact, and the existence of any rule or policy requiring exclusion of the evidence. (People v. Kelly (2007) 42 Cal.4th 763, 783.)

Defendant clearly offered the prior-incident evidence to establish that Bair could have been the driver on November 24. To the extent defendant was trying to show that Bair had a tendency to drive her vehicles while intoxicated, the evidence was properly excluded as propensity evidence. Moreover, the evidence did not show a fact falling within the exception articulated in section 1101, subdivision (b). The prior incident did not show a pattern or plan and it was not sufficiently distinctive to show a "signature" for purposes of identity. (Tackett, supra, 144 Cal.App.4th at pp. 449, 457-448.)

Nonetheless, defendant argues that the prior-incident evidence should have been admitted to counter the prosecution's argument to the first jury that defendant would be more likely to drive a truck owned by her grandparents. We disagree. The first trial resulted in a mistrial, and the prosecution did not make this argument to the second jury.

We also reject defendant's contention that the prior incident should have been admitted to show that Bair was extremely intoxicated on November 24 even if he did not show it. The level of Bair's intoxication on November 24 was not in dispute. The prosecution never suggested to the jury that Bair was not intoxicated on November 24 or that defendant was the driver because she was more impaired than Bair. Instead, the evidence showed that Bair had been drinking, that he was intoxicated and that he had the same or almost the same BAC level as defendant.

But even if defendant could have shown that the prior incident fell within an exception under section 1101, subdivision (b), the trial court also excluded the prior-incident evidence under section 352. (See People v. Ewoldt (1994) 7 Cal.4th 380, 404.) The trial court determined that the probative value of the prior incident was substantially outweighed by the probability of undue prejudice and delay. Defendant does not challenge the trial court's section 352 ruling, and that ruling supports the exclusion of the prior-incident evidence. (§ 352; Ewoldt, supra, 7 Cal.4th at p. 404.)

In any event, there was no prejudice to defendant, because the jury received other evidence that Bair previously drove defendant's car. The trial court did not abuse its discretion in excluding evidence of the prior incident.

II

Defendant next contends that the trial court erred by allowing Officer Nishimi to testify as an expert in accident reconstruction without first determining that he was qualified to offer an expert opinion on that subject. The Attorney General responds that defendant forfeited her challenge to Officer Nishimi's expert qualification by failing to timely object and by failing to move to strike Officer Nishimi's testimony. We agree with the Attorney General.

Although defendant suggests there was not "much" information about Officer Nishimi's training, qualifications or experience, Officer Nishimi began his direct testimony by explaining that he had been an officer with the California Highway Patrol for 14 years, that he received over 500 hours of education and training in accident investigation, and that he was certified as a traffic accident reconstruction specialist by the state in 2006. Officer Nishimi participated in over 1,000 traffic accident investigations and ten MAIT investigations. He received eight to ten hours of training on occupant kinematics as part of his training on accident reconstruction and an additional six to eight hours of subsequent training on occupant kinematics.

Officer Nishimi then went on to explain occupant kinematics, the study of occupants in motion within a vehicle. He described his inspection and reconstruction of the accident, how the concept of principal direction of force and occupant kinematics is applied in accident reconstruction, the diagrams he prepared for the accident and the motion of the truck and its occupants prior to and at the time of impact. He gave his opinions regarding the motion of the truck and its occupants.

Officer Nishimi gave all of this testimony without any objection from defense counsel. But as Officer Nishimi was testifying that the principal direction of force and the severity of Bair and defendant's injuries helped him determine where Bair and defendant were seated at the time of impact, defense counsel said that he wanted to voir dire Officer Nishimi on his expertise regarding occupant kinematics. The trial court responded, "Counsel, that train has left the station. You'll have a chance to cross-examine on every subject." Defense counsel did not say anything further at that time.

Officer Nishimi went on to opine that the passenger would have sustained more severe injuries than the driver and that the driver was sitting upright at the time of the accident, but the passenger was not. When the prosecutor asked Officer Nishimi his opinion about the correlation between the contact points and the injuries sustained, defense counsel objected for the first time:

"MR. RAVEN: Your Honor, I'm going to object to this subfield of expert opinion and request voir dire with respect to occupant motion and correlation of injury.

"THE COURT: Counsel, you'll get a full opportunity to question the witness about that, but the witness has already given a number of opinions on that subject.

"MR. RAVEN: I just would disagree respectfully."

Officer Nishimi's direct examination proceeded without further objection. Then defense counsel cross-examined Officer Nishimi. During cross-examination, Officer Nishimi gave further opinions about the motion of the truck and the occupants and how the truck damage correlated with the injuries. Defense counsel never moved to strike Officer Nishimi's testimony.

"The trial court enjoys considerable latitude in determining the qualification of an expert." (People v. King (1968) 266 Cal.App.2d 437, 443.) Such determination is reviewed under the deferential abuse of discretion standard. (People v. Hoyos (2007) 41 Cal.4th 872, 910.) "'Error regarding a witness's qualifications as an expert will be found only if the evidence shows the witness "'"clearly lacks qualification as an expert."'" [Citation.]'" (Ibid., italics omitted.)

A person is qualified to testify as an expert if he or she has special knowledge, skill, experience, training, or education sufficient to qualify him or her as an expert on the subject to which his or her testimony relates. (§ 720, subd. (a).) "[T]he determinative issue in each case must be whether the witness has sufficient skill or experience in the field so that his testimony would be likely to assist the jury in the search for the truth, and 'no hard and fast rule can be laid down which would be applicable in every circumstance.' [Citation.] Where a witness has disclosed sufficient knowledge, the question of the degree of knowledge goes more to the weight of the evidence than its admissibility." (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 38.)

The foundational requirements for an expert's testimony need not be established in the absence of a specific objection or unless the court, in its discretion, requires it. (§ 720, subd. (a); People v. Rodriquez (1969) 274 Cal.App.2d 770, 776.) An objection to or a motion to strike evidence must be timely made. (§ 353.) A party's belated objection to an expert witness's testimony will preclude a claim of error in the admission of the expert's opinion. (Pineda v. Los Angeles Turf Club, Inc. (1980) 112 Cal.App.3d 53, 60-61 (Pineda).)

We disagree with defendant's contention that the prosecution did not offer Officer Nishimi as an expert witness during the second trial. The prosecution expressed its intent to offer Officer Nishimi as an expert witness on the first day of trial and defense counsel acknowledged during that discussion that Officer Nishimi had testified as an expert at the first trial. The defense and prosecution's closing arguments also assumed that Officer Nishimi was offered as an expert witness.

In addition, the trial court did not abuse its discretion in allowing Officer Nishimi to give opinions regarding accident reconstruction or, more specifically, occupant kinematics and correlation of injury. Although the prosecution was not required to establish Officer Nishimi's expert qualifications in the absence of an objection from the defense (§ 720, subd. (a); People v. Rodriquez, supra, 274 Cal.App.2d at p. 776), such a foundation was nonetheless established during Officer Nishimi's direct examination. Defense counsel did not object until after Officer Nishimi had given various opinions. We agree with the trial court that defense counsel's objection came too late.

The trial court said that defense counsel could question Officer Nishimi about his qualifications during cross-examination. Such procedure was within the trial court's discretion. (People v. Hinkle (1923) 64 Cal.App. 375, 380-381.) After cross-examination, defense counsel did not renew his objection to Officer Nishimi's expert qualifications or move to strike Officer Nishimi's testimony. By failing to move to strike, defendant did not allow the trial court to address any alleged error. Defendant thereby forfeited her claim of error.

Moreover, defendant has not established that Officer Nishimi was not qualified to offer opinions about accident reconstruction, occupant kinematics and injury correlation. Officer Nishimi had been a highway patrol officer for 14 years, had substantial training and experience in traffic accident investigation and reconstruction, received training on occupant kinematics, and participated in over 1,000 traffic accident investigations and ten MAIT investigations. He was one of only 52 state-certified accident reconstruction specialists and was an associate MAIT member. MAIT members are an elite group within the California Highway Patrol and undergo extensive training and testing. The extent of his experience in specifically applying occupant kinematics or injury correlation analysis in a criminal investigation goes to the weight of his testimony rather than to its admissibility.

Defendant's reliance on People v. King, supra, 266 Cal.App.2d 437 is misplaced because the defendant in King moved to strike the expert's opinion. (Id. at p. 452.) Here, defense counsel did not move to strike the officer's testimony.

The trial court did not abuse its discretion in allowing Officer Nishimi to testify.

III

Defendant claims the trial court erred when it denied probation based on her lack of remorse -- specifically, her continued denial that she was the driver.

"Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation. [Citations.] The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions. [Citations.] The primary goal of probation is to ensure '[t]he safety of the public . . . through the enforcement of court-ordered conditions of probation.' [Citation.]" (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.)

The trial court's decision to deny probation will be reversed only upon a clear showing of abuse of discretion. (People v. Martinez (1985) 175 Cal.App.3d 881, 896.) The defendant bears the burden of demonstrating that the trial court's sentencing decision was irrational or arbitrary. (People v. Carmony (2004) 33 Cal.4th 367, 376-377.) "'"In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review."'" (Ibid.) Moreover, 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.' [Citation.]" (People v. Calhoun (2007) 40 Cal.4th 398, 410; People v. Weaver (2007) 149 Cal.App.4th 1301, 1318.)

Lack of remorse is a proper factor to consider when deciding whether to grant probation. (Cal. Rules of Court, rule 4.414(b)(7); People v. Leung (1992) 5 Cal.App.4th 482, 507.) And where the evidence of guilt is overwhelming, the court may consider the defendant's refusal to acknowledge guilt in considering whether to deny probation. (People v. Holguin (1989) 213 Cal.App.3d 1308, 1319.) However, the court may not consider a defendant's lack of remorse or refusal to take responsibility for the offense if the defendant has denied guilt and the evidence of guilt is conflicting. (Ibid.) This is because a defendant may not be penalized for failing to confess following a conviction. (People v. Coleman (1969) 71 Cal.2d 1159, 1168, overruled on other grounds in Garcia v. Superior Court (1997) 14 Cal.4th 953, 966, fn. 6.)

Defendant claims the trial court should not have considered her denial that she was the driver, because the evidence in support of her guilty verdict was not "overwhelming." She points out that the first trial ended in a hung jury and the judge who presided over the first trial was concerned that a second trial would also result in a hung jury. In any event, defendant notes that although she did not admit being the driver, she nonetheless expressed ultimate responsibility for the accident during the sentencing hearing.

However, even if the evidence against defendant was not overwhelming, her denial that she was the driver was not the trial court's only reason for denying probation. The trial court also denied defendant probation because of her repeated violations "fueled" by her alcohol use. In 2005 defendant was convicted for disturbing another person by loud and unreasonable noise (Pen. Code, § 415, subd. (2)), an incident involving defendant's alcohol use. The fatal accident occurred the next year, in 2006. But the probation report indicated that defendant "continued in the same lifestyle" after the accident. In 2007 she was charged with battery (Pen. Code, § 243, subd. (e)(1)), another incident involving her alcohol use. In July 2008 and February 2009, defendant's bail was revoked because she was out drinking alcohol in violation of a court order prohibiting alcohol use. And in 2009 she was convicted for gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)). Defendant's record indicated to the trial court that defendant would be unlikely to comply with the terms and conditions of probation.

Defendant does not contend that the trial court erred in considering the likelihood that she would comply with the terms and conditions of probation. On this record, even if the trial court had not considered defendant's denial that she was the driver, it is not reasonably probable that the trial court would have granted probation. The record indicates that defendant still posed a risk to public safety and had previously violated court orders. The trial court did not abuse its discretion in concluding that probation was not appropriate.

DISPOSITION

The judgment is affirmed.

We concur: BLEASE , Acting P. J. HULL , J.


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