(Super. Ct. No. CM033646)
The opinion of the court was delivered by: Duarte , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Jimmy Candido Flores pled no contest to gross vehicular manslaughter while intoxicated (Pen. Code,*fn1 § 191.5, subd. (a)) and possession of marijuana for sale (Health & Saf. Code, § 1359). The trial court sentenced him to 10 years and eight months in state prison with 294 days of presentence credit (196 actual and 98 conduct).
On appeal, defendant contends that the trial court abused its discretion when it imposed the upper term for gross vehicular manslaughter while intoxicated, and also that the prospective application of the Criminal Justice Realignment Act of 2011 (Realignment Act) (Stats. 2011, ch. 15) violates his right to equal protection of the law. We disagree and shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On the morning of July 22, 2010, the California Highway Patrol (CHP) responded to a report of a traffic injury collision in Chico. The victim was located in a ditch and transported to the hospital, where she was declared dead. An autopsy report determined the cause of death was "multiple trauma due to pedestrian versus motor vehicle collision."
Defendant was at the scene, pacing back and forth while talking on his cell phone. His vehicle was on the shoulder of the road, with damage to the hood, bumper, right headlight, and turn signal. Defendant claimed he was driving on the highway when he noticed the victim jogging in the gravel part of the road. According to defendant, one of his dogs jumped on his arm and its paws landed on the steering wheel. He struck the victim before he could take evasive action. Defendant then turned back and called 911. He did not render aid because he "freaked out" over the incident.
Defendant's eyes were bloodshot, with droopy lids. His speech was slow, he smelled of marijuana, and he could not stand still for more than a few seconds. He admitted taking a "hit" of marijuana earlier that morning (he said he had been issued a medical marijuana recommendation for "back pain and sleep issues"; it was expired on the date of his crime). Defendant failed a field sobriety test, and his blood tested positive for methadone, cannabinoids, and multiple prescription drugs.
Witnesses described defendant as "panicked" at the scene of the incident. One witness said defendant drove erratically before the collision. The CHP officer at the scene observed defendant showed no remorse.
In August, authorities heard the incarcerated defendant discussing marijuana sales in a phone call with his girlfriend, and law enforcement officers spotted an apparent marijuana grow at a house associated with defendant. In November, an undercover agent bought two ounces of marijuana from defendant's girlfriend, who was then arrested and told agents that she and defendant grew marijuana at a residence in Durham. Agents later executed a search warrant at the Durham residence and at another residence, and found a total of 36 pounds of marijuana, marijuana ...