People v. Oliver

THE PEOPLE, Plaintiff and Respondent, v. ASHLEY OLIVER, Defendant and Appellant.

H048338

California Court of Appeals, Sixth District

October 7, 2021

NOT TO BE PUBLISHED

Order Filed 10/25/21

Santa Clara County Super. Ct. No. C1909680

ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING

THE COURT: It is ordered that the opinion filed on October 7 2021, be modified as follows:

1. On page 3, replace the first part of the first sentence of the last paragraph beginning with "The probation officer" with the following:

The probation officer who authored the probation report recommended the trial court impose four years on count 1 and a consecutive sentence of eight months on count 3, with two one-year consecutive terms for the two section 12022.7 subdivision (a) enhancements . . .

2. On page 4, replace the first sentence of the last paragraph beginning with "The trial court" with the following:

The trial court imposed a prison term of six years on count 1 and eight months on count 3, to run consecutively to count 1 with one year for each of the section 12022.7, subdivision (a) enhancements, to run consecutively.

This modification does not change the judgment. Oliver's petition for rehearing is denied.

DANNER, J.

Appellant Ashley Oliver was convicted by plea of gross vehicular manslaughter of one person and driving under the influence of alcohol and proximately causing injury to another after she drove while intoxicated and collided with another car. Oliver challenges her conviction for driving under the influence arguing it is a lesser included offense of gross vehicular manslaughter. She also asserts the trial court erred in imposing a consecutive sentence. For the reasons set forth below, we reject her contentions and affirm the judgment.

I. FACTS AND PROCEDURAL BACKGROUND

On May 11, 2019, at approximately 2:00 a.m., Oliver was driving on Highway 17 with an approximate blood alcohol level of 0.10 percent, after having consumed eight shots of whiskey and rum.^[1] She drove into oncoming traffic and collided with another car carrying five teenagers. The driver of the other car, Billie Doe, ^[2] and three passengers in the car, Brianna Doe, Julian Doe, and Collette Doe, were seriously injured and a fourth passenger, Armando Doe was killed.

Oliver was charged by complaint with gross vehicular manslaughter of Armando Doe (Pen. Code, § 191.5, subd. (a)^[3] (hereafter section 191.5(a)); count 1) with an allegation of personal infliction of great bodily injury (§§ 667 & 1192.7); driving under the influence of alcohol and proximately causing injury to Armando Doe (Veh. Code, § 23153, subd. (a); count 2) with three allegations of personal infliction of great bodily injury against, respectively, Armando Doe, Billie Doe, and Brianna Doe, (§§ 12022.7, subd. (a) & 1203, subd. (e)(3)) and two allegations of proximately causing injury to another person (Julian Doe and Collette Doe) (Veh. Code, § 23558); and driving under the influence of alcohol with a blood alcohol level of 0.08 percent and proximately causing injury to Armando Doe (Veh. Code, § 23153 subd. (b) (hereafter Veh. Code, § 23153(b)); count 3) with three allegations of personal infliction of great bodily injury against, respectively, Armando Doe, Billie Doe, and Brianna Doe, (§§ 12022.7, subd. (a) & 1203, subd. (e)(3)) and two allegations of proximately causing injury to another person (Julian Doe and Collette Doe) (Veh. Code, § 23558)).

On January 15, 2020, the prosecutor moved to amend the complaint. Specifically, she amended the allegation in count 1 to allege the infliction of great bodily injury upon a non-accomplice under sections 667 and 1192.7, amended the named victim in count 3 from Armando Doe to Julian Doe, and struck the great bodily injury enhancement on count 3 as to Armando Doe. The prosecutor also indicated that, once Oliver pleaded to count 3, she would move to strike count 2 and the enhancements "because count 2 and count 3 represent the (a) and the (b) count of the D.U.I." Oliver's trial counsel stated that Oliver would enter an "open plea" to the remaining counts.

The trial court informed Oliver that she faced a maximum prison sentence of 12 years and eight months for counts 1 and 3 and their accompanying allegations. Oliver waived her right to trial and associated rights, pleaded no contest to count 1 and admitted the allegations attached to that count. She also pleaded no contest to the amended count 3 (naming Julian Doe as the victim) and admitted the associated allegations.

In her sentencing memorandum to the trial court, filed in anticipation of sentencing, Oliver argued that count 3 (Vehicle Code, section 23153, subdivision (b)), is a lesser included offense of section 191.5, and therefore she could not be convicted of both offenses. She asked the trial court to strike her conviction for count 3 and to give her a probationary sentence.

The prosecutor also filed a sentencing memorandum. The prosecutor asserted that the trial court could lawfully convict Oliver of both counts 1 and 3, and impose separate sentences on them, because each count named a different victim. The prosecutor stated that the trial court should not impose a probationary sentence on Oliver but should instead sentence her to eight years and eight months in prison.

The probation officer who authored the probation report recommended the trial court impose four years on count 1 with a consecutive one-year term for the associated enhancement and a consecutive sentence of eight months on count 3 with a one-year consecutive term for the two section 12022.7 subdivision (a) enhancements and a four-month consecutive term for one of the Vehicle Code section 23558 enhancements, ^[4] for an aggregate term of seven years' imprisonment.

On July 6, 2020, the trial court conducted Oliver's sentencing hearing. Oliver repeated her contention that the trial court could not convict her of both counts 1 and 3 because count 3 is a lesser included offense of count 1. Both Oliver and the prosecutor agreed that the trial court could not impose unstayed sentences on both the section 12022.7, subdivision (a) and the Vehicle Code enhancements.

The trial court stated it could sentence Oliver on both counts 1 and 3 because the counts had different named victims. The trial court elected not to impose a probationary sentence because of the seriousness of the victims' injuries and their vulnerability. In describing how it selected the appropriate term for count 1, the trial court stated "once I weigh the factors in aggravation versus mitigation, I find that they are even to one another. If they are even to one another, in other words, it's an equal balance, then Penal Code [s]ection 1170(b) says that if I impose a sentence, it has to be the mid-term sentence, something in the middle. . . . so that means I have to impose the middle term. So the Court is going to impose the six years [o]n Count 1, which is the middle term." With respect to the sentence on count 3, the trial court said, "I already have told you that we can impose a sentence for that consecutive to Count 1; so it's one-third the mid-term of that, which is eight months was the max [sic] I can give on that."

The trial court imposed a prison term of six years on count 1 with a consecutive one-year term on the associated enhancement and eight months on count 3, to run consecutively to count 1, with one year for one of the section 12022.7, subdivision (a) enhancements, to run consecutively. The court struck the punishment on the remaining enhancements, for an aggregate sentence of eight years and eight months. The trial court ordered victim restitution, awarded 486 days of custody credits and imposed various fines and fees.^[5] The trial court granted Oliver a certificate of probable cause for this appeal.

II. DISCUSSION

Oliver asserts the trial court erred by entering a conviction on count 3 because it is a necessarily included offense of count 1. Oliver contends that a number of prior cases, in particular People v. Miranda (1994) 21 Cal.App.4th 1464 (Miranda), have held that the crime of driving while intoxicated resulting in injury is a lesser included offense of gross vehicular manslaughter while intoxicated and therefore a defendant cannot be convicted of both crimes. Oliver recognizes that People v. Machuca (2020) 49 Cal.App.5th 393 (Machuca) held that a court may lawfully convict an individual for both offenses if they have different named victims, but she argues the case was wrongly decided. She contends the identity of the victim is not an element of either offense and therefore is irrelevant to the multiple conviction analysis. The Attorney General urges this court to follow Machuca and affirm the judgment.

In the alternative, Oliver maintains the trial court erred when it imposed a consecutive sentence on count 3. Citing to California Rules of Court, rule 4.425(a), ^[6]Oliver asserts the relevant factors weigh in favor of concurrent terms on counts 1 and 3 and that the trial court, having found that the aggravating and mitigating factors were "even to one another," could not impose a consecutive sentence on count 3 under rule 4.425. Oliver requests this court to reverse the judgment on count 3 or order that the sentences on counts 1 and 3 be served concurrently.

With respect to Oliver's contention that the trial court should have imposed concurrent terms on counts 1 and 3, the Attorney General argues Oliver forfeited this claim by failing to object on this ground in the trial court and that, in any event, Oliver cannot show prejudice because two valid aggravating factors support consecutive sentencing-the vulnerability of the victims and the "horrific" nature of the crimes.

Oliver responds that...