People v. Scott CA1/5

Filed 11/5/13 P. v. Scott CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIRST APPELLATE DISTRICT DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent, A137653

v. (Solano County Super. Ct. No. FCR285146) TYLER NEAL SCOTT,

Defendant and Appellant. ____________________________________/

Tyler Neal Scott (defendant) killed a man in a car accident while driving drunk. He pled guilty to gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a) (Count 2))1 and driving while intoxicated causing injury (Veh. Code, § 23153, subd. (a) (Count 3)). The court sentenced him to the upper term of 10 years in state

1 Unless otherwise noted, all further statutory references are to the Penal Code. “Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.” (§ 191.5, subd. (a).)

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prison on Count 2 and the midterm of two years in prison on Count 3, to run concurrently with the sentence on Count 2. Defendant appeals. He contends the court improperly imposed the upper term on Count 2 by relying on “improper aggravating factors.” He also makes an ineffective assistance of counsel argument based on trial counsel’s failure to object to the sentence in the trial court. We affirm. FACTUAL AND PROCEDURAL BACKGROUND In May 2011, the 22-year-old defendant was a member of the United States Air Force and worked at Travis Air Force Base. He signed a “‘DUI contract’ with the Travis Air Force Base” outlining “the dangers of drinking and driving and indicat[ing] . . . he could face a lengthy prison sentence if he killed someone” while driving under the influence of alcohol. He also “participated in alcohol counseling as a result of a reprimand he received stemming from an underage alcohol incident.” At a friend’s afternoon graduation party, defendant drank “multiple beers, mixed drinks of Captain Morgan and coke and shots of hard alcohol . . . while playing beer pong and sitting in the hot tub.”2 Defendant left his friend’s house “and drove westbound on Cement Hill Road at a high rate of speed trying to catch up to some friends who had left just before he did. Passenger [ ] J.W. was sitting in the front passenger seat of the defendant’s vehicle and asked the defendant to slow down. The defendant ignored this request and continued driving at a high rate of speed.” At the same time, another driver, G.S., was traveling eastbound on Cement Hill Road; another car, driven by A.L.L., followed G.S.’s car. “The defendant was driving in excess of 50 mph and began to ‘drift’ into the eastbound lane, crossing the double yellow lines. The left front of the defendant’s vehicle struck the left front of [ ] G.S.’s vehicle. This collision caused major damage to the left side of G.S.’s vehicle and left tire marks going over the left portion of the roof of G.S.’s vehicle.”