California Court of Appeal Apr 9, 2025 No. E082362Unpublished
Filed 4/9/25 P. v. Coleman CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E082362
v. (Super.Ct.No. FVI17000111)
GARY MITCHELL COLEMAN, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Charlie Hill, Judge.
Affirmed and remanded with directions.
Sally Patrone, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles S. Ragland, Assistant Attorney General, Daniel Rogers, Alana R. Butler
and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
1
INTRODUCTION
On a Saturday morning in May 2015, appellant Gary Mitchell Coleman, Jr.,
(Coleman) drove home after a night out drinking in Las Vegas. Around 6:30 a.m., he
was seen driving over 130 miles per hour and weaving in and out of traffic on a rural
stretch of Interstate 15. Minutes later, he rear-ended a sport utility vehicle (SUV),
causing the SUV to flip over and roll across the lanes of oncoming traffic, killing the
driver.
Coleman was convicted by a jury of vehicular manslaughter while intoxicated.
(Pen. Code, § 191.5, subd. (b).)1 He was sentenced to the middle term of two years.
Coleman contends the trial court erred in sentencing him to the middle term of two
years, rather than the lower term of 16 months. He asserts that under section 1170,
subdivision (b)(6), the lower term was presumed due to his youth and psychological
trauma, and that the court abused its discretion by relying on improper aggravating
factors to conclude that imposition of the lower term was not in the interests of justice.
He also contends the court miscalculated his presentence credits and that the minute order
for the sentencing hearing incorrectly reflects that the court imposed the upper term of
two years.
We agree the minute order should be corrected to reflect that the court imposed the
middle term of two years and otherwise affirm.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2
BACKGROUND
1. The Underlying Offense
A. Prosecution Evidence
On May 2, 2015, a little before 6:30 a.m., a driver on a rural stretch of Interstate
15 near the city of Baker called 911 to report that a silver Mercedes had just passed him
going around 145 miles per hour. At trial, the driver estimated the Mercedes was going
about 60 miles per hour faster than he was, which he calculated to be around 130 or 135
miles per hour. When the Mercedes passed the driver, it missed hitting his car by about a
foot, then overextended onto the left shoulder before correcting back into the lane. The
driver watched the Mercedes weave in and out of traffic over the next few miles, and he
called 911 to report it.
Within minutes of the driver’s 911 call, the Mercedes rear-ended an SUV, causing
the SUV to roll across the lanes of oncoming traffic and crash. The driver of the SUV
was ejected from her vehicle and died at the scene. The Mercedes spun out and came to
rest in the dirt area of the center median.
When law enforcement and emergency personnel arrived, Coleman was removed
from the driver’s seat of the Mercedes and placed on a gurney. His eyes were bloodshot
and he smelled like alcohol. He was lethargic. He admitted to the responding officer that
he rear-ended a vehicle, but his voice was low and hard to understand. He attempted to
give a breath sample, but did not provide enough air for the machine. A later blood draw
reflected a blood-alcohol content of 0.12 percent. A person is impaired for purposes of
driving a vehicle at 0.08 percent.
3
Later that afternoon, after being medically cleared, Coleman waived his Miranda2
rights and spoke with an officer. Coleman told the officer he was driving back from Las
Vegas when the collision occurred. The day before the collision was a Friday. Coleman
worked that day and left for Las Vegas around 5:00 p.m. He was operating on only a few
hours of sleep because he had locked himself out of his apartment the night before.
Coleman arrived in Las Vegas around 10:00 p.m. and got something to eat.
Around midnight he met up with a fraternity brother named “Big Lou” at the apartment
of one of Big Lou’s friends. Coleman had a shot of vodka at the apartment, and then
around 1:00 a.m. went to a strip club with Big Lou and a couple of Big Lou’s friends.
Coleman had a beer and a shot of tequila at the strip club. Around 3:30 a.m. they went to
a casino. While at the casino, Coleman got emotional about his girlfriend and got into an
argument with Big Lou. Coleman left the casino around 5:00 a.m. and began driving
home. He was tired and felt the effects of the alcohol while he was driving. He did not
remember how the collision occurred. He told the officer he probably fell asleep.
B. Defense Evidence
Coleman testified in his own defense.3 He was 24 years old at the time of the
collision. He was in the Navy and recently stationed at Lemoore Naval Base. He
2 Miranda v. Arizona (1966) 384 U.S. 436.
3 Coleman’s testimony addressed the events leading up to the collision. We summarize only those facts that differ or add to the statement he gave to law enforcement.
4
explained that although he only had a couple hours of sleep the night before he went to
Las Vegas, he had been trained in the Navy to operate on short sleep.
Coleman went to Las Vegas to meet his girlfriend. He was initially planning to
stay overnight with Big Lou, but after they got into the argument at the casino, Big Lou
told Coleman he could not stay with him that night.
Coleman left the casino around 4:00 or 5:00 a.m. and took a nap in his car. He felt
refreshed when he woke up and began driving home. At some point that changed, and he
felt the effects of the alcohol and felt tired. The last thing Coleman remembered was
hitting a stretch of the freeway that did not have any rest stops. He explained, “sleep just
came over me. … [I]t was almost like a dream … and then boom.” Coleman hit his head
and the air bags deployed. Later, someone pulled him out of the car and told him he
murdered someone. He was in shock. He knew he was driving fast, but did not recall
how fast. Nor did he recall seeing the SUV before he struck it.
2. Procedural History
A. The Charges and Conviction
The prosecution charged Coleman with gross vehicular manslaughter while
[“A fact that is an element of the crime on which punishment is being imposed may not
be used to impose a particular term”].)
“After a sufficient factual basis to support the circumstances in aggravation or
mitigation is found, the [trial] court enjoys broad discretion in its sentencing
determination.” (Hilburn, supra, 93 Cal.App.5th at p. 205.) We review the court’s
discretionary sentencing decisions, including its weighing of aggravating and mitigating
circumstances under section 1170, subdivision (b)(6), for an abuse of discretion. (People
10
v. Salazar (2023) 15 Cal.5th 416, 428, fn. 8.) The court must exercise its discretion “‘in a
manner that is not arbitrary and capricious, that is consistent with the letter and spirit of
the law, and that is based upon an “individualized consideration of the offense, the
offender, and the public interest.”’ [Citation.] The court abuses ‘its discretion … if it
relies upon circumstances that are not relevant to the decision or that otherwise constitute
an improper basis for decision.’” (Hilburn, at p. 206; People v. Sandoval (2007) 41
Cal.4th 825, 847.)
B. Analysis
We start by addressing the People’s contention that the low term presumption of
section 1170, subdivision (b)(6), did not apply.
To trigger the low term presumption of section 1170, subdivision (b)(6), there
must be an initial showing that the defendant’s youth (or other trauma) was a
“‘contributing factor’” in the commission of the offense. (People v. Fredrickson (2023)
90 Cal.App.5th 984, 992 (Fredrickson).) “[A]n initial showing has been made when the
record and/or arguments are sufficient to put a trial court on notice that a defendant’s
youth may have been a contributing factor in [his or her] commission of the underlying
offense.” (Id., at p. 994.)
An initial showing was made here. The probation officer’s report and the parties’
sentencing briefs identified the low term presumption of section 1170, subdivision (b)(6),
and the corollary rule 4.420(e), as a sentencing consideration for the court, and the
underlying facts of the offense—the reckless driving, excessive speeding, and decision to
make the five-hour drive home from Las Vegas after having stayed up nearly all night
11
drinking—were sufficient to put the court on notice that Coleman’s youth may have been
a contributing factor in his commission of the offense.
Once an initial showing has been made, the record must “‘affirmatively’ show
compliance with the statute.” (Fredrickson, supra, 90 Cal.App.5th at p. 992.) As the
People point out, the court did not expressly find that Coleman’s youth and psychological
trauma were contributing factors in his commission of the offense. It did, however,
expressly state that it considered section 1170, subdivision (b)(6), it then noted that the
record included evidence of Coleman’s youth and psychological trauma, and it went on to
find that the aggravating circumstances outweighed the mitigating circumstances, such
that imposition of the low term was contrary to the interests of justice. Under these
circumstances, we conclude the court made an implied finding that Coleman’s youth and
psychological trauma were contributing factors in his commission of the offense. (See
People v. Fulkman (1991) 235 Cal.App.3d 555, 560 [“‘[w]here there are no express
findings of fact, it is implied that the trial court … made whatever findings were
necessary to support the judgment or order’”].)
We further conclude there is substantial evidence in the record to support the
court’s implied finding. (See People v. Watkins (1992) 6 Cal.App.4th 595, 600 [implied
findings will be upheld if supported by substantial evidence].) The facts of the
underlying offense, as noted ante—the reckless driving, excessive speeding, and decision
to make the five-hour drive home after having stayed up nearly all night drinking—
reflect the “hallmark features” of youth, which include “immaturity, impetuosity, and
failure to appreciate risks and consequences.” (Miller v. Alabama (2012) 567 U.S. 460,
12
477.) We therefore reject the People’s argument that Coleman failed to establish that his
youth or psychological trauma contributed to the offense.5
Next, we address Coleman’s claim that the court abused its discretion by relying
on improper aggravating factors to conclude that imposition of the low term was contrary
to the interests of justice.
The sole aggravating factor the court relied on to rebut the low term presumption
of section 1170, subdivision (b)(6), was that the crime involved great bodily harm that
resulted in the victim’s death. (Rule 4.421(a)(1).) The court stated: it “finds that the
aggravating factor of great bodily harm and the death of [the victim] outweighs the
mitigating circumstances such that the imposition of the lower term will be contrary to
the interest of justice.”
The People correctly concede that the court erred in relying on great bodily harm
as an aggravating factor. It is settled that the court may not consider an element of the
substantive offense as a factor in aggravation. (Burbine, supra, 106 Cal.App.4th at
pp. 1261-1262; rule 4.420(h).) “Bodily harm resulting in death is an element of felony
vehicular manslaughter. Reliance upon that fact alone is improper when trying to
aggravate a term of imprisonment.” (People v. McNiece (1986) 181 Cal.App.3d 1048,
1061, disapproved on other grounds in People v. McFarland (1989) 47 Cal.3d 798, 804–
5 Because we conclude Coleman’s youth was sufficient to trigger the presumptive low term under section 1170, subdivision (b)(6), we need not address whether Coleman’s psychological trauma was also a contributing factor. The existence of a single contributing factor is sufficient to trigger the presumptive low term. (§ 1170, subd. (b)(6).)
13
805; accord People v. Piceno (1987) 195 Cal.App.3d 1353, 1357 [sentencing court may
not rely on great bodily harm as an aggravating factor for vehicular manslaughter because
manslaughter involves the killing of a human being which is “the greatest of all bodily
harm”].) The People contend, however, that the error was harmless because the court
relied on other aggravating factors that were not elements of the offense.
In assessing prejudice, we apply the Watson6 standard because the court’s
consideration of aggravating factors in determining whether the low term is contrary to
the interests of justice under section 1170, subdivision (b)(6), does not implicate federal
constitutional error. (Hilburn, supra, 93 Cal.App.5th at pp. 202–205; rule 4.420(d); see
People v. Lynch (2024) 16 Cal.5th 730, 755 [Watson standard applies “to errors of state
law that do not rise to the level of federal constitutional error”].) Under the Watson
standard, “[i]n order to determine whether error by the trial court in relying upon
improper factors in aggravation requires remanding for resentencing ‘the reviewing court
must determine if “it is reasonably probable that a result more favorable to the appealing
party would have been reached in the absence of the error.”’” (People v. Avalos (1984)
37 Cal.3d 216, 233 (Avalos); People v. Watson, supra, 46 Cal.2d at p. 836.) A reasonable
probability of a lesser sentence exists when the improper factor was determinative for the
sentencing court or where the reviewing court cannot make that determination. (Avalos,
supra, at p. 233; see People v. McDaniels (2018) 22 Cal.App.5th 420, 426 [when a trial
court has “rel[ied] on an improper sentencing factor, a reviewing court must still affirm
6 People v. Watson (1956) 46 Cal.2d 818, 836.
14
unless ‘the error complained of has resulted in a miscarriage of justice.’ [Citation.] In
these situations, the trial court has revealed which sentencing choice it prefers, and the
reviewing court must decide whether there is a reasonable probability that the trial court’s
lawful exercise of discretion on remand will lead it to make a different choice”].) We
take into consideration all of the factors the court relied on at the sentencing hearing.
(Avalos, at p. 233.)
Although the court found only one aggravating factor under rule 4.421—that the
crime involved great bodily harm—it emphasized other aggravating facts about the
offense while imposing sentence. For example, the court stated “that while [Coleman]
was driving he felt the effects of alcohol and was tired from lack of sleep; however, he
continued to drive” and he “was driving in and out of traffic at a high rate of speed at the
time of the accident” which “poses [a] high risk [of] danger to members of society who
are using California roads.” And later, the court reiterated that Coleman “felt the effects
of the alcohol, yet he made a choice to continue driving because he wanted to get home.
He had an option to pull his car over and wait [for] more time to become sober,” but
“[h]e chose to continue driving.”
We agree with the People that these facts, as found by the court, are appropriately
considered aggravating factors and should inform our prejudice analysis because they
made the offense “distinctively worse than the ordinary” (People v. Moreno (1982) 128
Cal.App.3d 103, 110), and under rules 4.408 and 4.421, they reasonably relate “to the
decision being made” (rule 4.408(a)) and to the “circumstances under which the crime
was committed” (rule 4.421(c)).
15
Coleman contends the court was not permitted to consider his intoxication as an
aggravating factor because, like great bodily harm, it was an element of the offense.
Intoxication, or driving with a blood-alcohol content in excess of 0.08 percent, is
clearly an element of vehicular manslaughter while intoxicated. (§ 191.5, subd. (b); Veh.
Code, §§ 23152, 23153; CALCRIM No. 591.) “However, where the facts surrounding
the charged offense exceed the minimum necessary to establish the elements of the crime,
the trial court can use such evidence to aggravate the sentence.” (People v. Castorena
(1996) 51 Cal.App.4th 558, 562.) Here, the court relied on more than the mere fact of
Coleman’s intoxication. It was Coleman’s subjective awareness of “the effects of alcohol
and [being] tired from lack of sleep” and the conscious decision he made to continue
driving that the court found aggravating.
The court also found the nature of Coleman’s driving aggravating—a
circumstance which Coleman does not challenge. Weaving in and out of traffic while
driving 130 miles per hour is properly considered a circumstance in aggravation. (See
People v. Von Staden (1987) 195 Cal.App.3d 1423, 1428 [“one who drives with a very
high level of intoxication is indeed more negligent, more dangerous, and thus more
culpable than one who drives near the legal limit of intoxication, just as one who exceeds
the speed limit by 50 miles per hour exhibits greater negligence than one who exceeds the
speed limit by 5 miles per hour”].)
Given the court’s emphasis on these additional aggravating facts, we conclude its
reliance on great bodily harm as an aggravating factor was not determinative, and there is
not a reasonable probability that upon remand the trial court would impose the lower
16
term. (Avalos, supra, 37 Cal.3d at p. 233.) We therefore find the court’s error in relying
on great bodily harm as an aggravating factor to be harmless and conclude the court
properly sentenced Coleman to the presumptive middle term under section 1170,
subdivision (b)(1).
2. The Court’s Minutes Reflect the Correct Amount of Presentence Credits
At the sentencing hearing, the court awarded Coleman 232 days of presentence
credit under section 4019, based on 119 actual days and 118 conduct days. The minute
order for the sentencing hearing, however, reflects that the court awarded 236 days of
presentence credits, based on 118 actual days and 118 conduct days.
Coleman contends the court miscalculated the credits at the sentencing hearing
and requests the minute order be corrected to reflect an award of 237 days.
The People agree the court miscalculated the credits when it orally imposed
sentence, but contend the minute order does not need to be corrected because it reflects
the correct amount of credits—236 days, based on 118 actual days and 118 conduct days.
In support, the People cited the probation officer’s report which states Coleman was in
custody for 118 days.
Coleman conceded in the reply brief that “the credits should be 118 actual days,
plus 118 days of good time/work time, for a total of 236 days.” However, he went on to
argue that “correction is still needed.”
Conflicts between the oral pronouncement of judgment and the minute order are
generally resolved in favor of the oral pronouncement. (People v. Gonzalez (2012) 210
Cal.App.4th 724, 744.) However, in certain circumstances, the reviewing court will
17
deem the minute order to prevail over the reporter’s transcript. (People v. Cleveland
(2004) 32 Cal.4th 704, 768 (Cleveland); People v. Thompson (2009) 180 Cal.App.4th
974, 978 (Thompson).) When the record is in conflict and cannot be harmonized, “‘that
part of the record will prevail, which, because of its origin and nature or otherwise, is
entitled to greater credence.’” (People v. Smith (1983) 33 Cal.3d 596, 599.) Whether the
minute order will be deemed to prevail against contrary statements in the reporter’s
transcript will depend upon the circumstances of the case. (Ibid.)
Here, the trial court incorrectly calculated the presentence credit award in its oral
pronouncement of judgment. It then issued a minute order that both parties agree
accurately reflects the amount of presentence credits to which Coleman is entitled. Under
these circumstances, we deem the minute order to prevail over the reporter’s transcript
and conclude the erroneous statements in the reporter’s transcript are of no effect.
(Cleveland, supra, 32 Cal.4th at p. 768; Thompson, supra, 180 Cal.App.4th at p. 978.)
No further correction of the record needs to be made.
3. The Court’s Minutes Incorrectly Reflect the Sentence Imposed
Finally, the parties agree the minute order for the sentencing hearing should be
corrected to reflect that the court imposed the middle term of two years for Coleman’s
conviction of vehicular manslaughter while intoxicated.
The minute order incorrectly states the court imposed the “[u]pper term” of two
years. As noted, the punishment for vehicular manslaughter while intoxicated is 16
months, two years, or four years. (§ 191.5, subd. (c)(2).)
18
An appellate court has the authority to correct clerical errors in a minute order to
ensure that the record is accurate. (People v. Zackery (2007) 147 Cal.App.4th 380, 385-
386; People v. Gonzalez (2012) 210 Cal.App.4th 724, 744.) Accordingly, we will direct
the trial court to prepare an amended minute order that reflects Coleman was sentenced to
the middle term of two years for vehicular manslaughter while intoxicated.
DISPOSITION
The trial court is directed to amend the October 13, 2023 minute order to reflect
that it imposed the middle term of two years for Coleman’s conviction of vehicular
manslaughter while intoxicated. In all other respects the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
MILLER J. FIELDS J.
19
AI Brief
AI-generated · verify before citing
Holding. The court held that while the trial court erred by relying on an element of the offense (great bodily harm) as an aggravating factor to rebut the low-term presumption, the error was harmless given other aggravating circumstances, and the sentence was affirmed. The court also directed the trial court to correct the sentencing minute order to accurately reflect the middle term sentence and presentence credits.
Issues
Whether the trial court abused its discretion by relying on improper aggravating factors to rebut the low-term presumption under Penal Code section 1170, subdivision (b)(6).
Whether the trial court's reliance on an element of the offense as an aggravating factor was harmless error.
Whether the sentencing minute order requires correction to reflect the oral pronouncement of the middle term and accurate presentence credits.
Disposition. Affirmed and remanded with directions.
Quotations verified verbatim against the opinion
“We agree with Coleman that the court abused its discretion by relying on an improper aggravating factor, but we find the error was harmless and conclude the court properly sentenced Coleman to the middle term.”
“It is settled that the court may not consider an element of the substantive offense as a factor in aggravation.”
“We agree the minute order should be corrected to reflect that the court imposed the middle term of two years and otherwise affirm.”