People v. Verdugo CA2/6

Filed 5/20/14 P. v. Verdugo CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B248870 (Super. Ct. No. KA096643) Plaintiff and Respondent, (Los Angeles County)

v.

ENRIQUE GUERRERO VERDUGO,

Defendant and Appellant.

Enrique Guerrero Verdugo appeals his six-year prison sentence following a plea of no contest to vehicular manslaughter with gross negligence. (Pen. Code, § 192, 1 subd. (c)(1).) Appellant contends that the trial court abused its discretion in not granting probation or imposing a lesser sentence. We affirm. Facts and Procedural History Appellant entered a change of plea after the jury deadlocked in the first trial. It was stipulated that the trial court could consider the preliminary hearing transcript, the trial transcript, and the probation report as the factual basis for the plea. The prosecutor and appellant filed sentencing memos summarizing the following testimony in the first trial. (§ 1170, subd. (d).)

1 All statutory references are to the Penal Code unless otherwise stated.

On October 5, 2011, appellant ran a red light in his 2011 Chevrolet Silverado truck and struck and killed Loida Torres who was driving northbound on Hamilton Boulevard in Pomona. Traveling eastbound on Second Street, appellant entered the intersection and struck Torres' Buick on the driver's side. The posted speed limit was 35 miles per hour and the road was slick from a light rain. Moments after the collision, a motorist (Matilda Diaz) saw appellant talking on a cell phone and walking in circles around his truck. Appellant said "fuck" repeatedly and did not try to render aid to the victim. Pomona Police Officer Michael Vandenberg investigated the traffic fatality and determined that appellant was driving 73 miles per hour. There were no skid marks. The record shows that appellant owned a local auto body shop and was familiar with the area. Thirty minutes before the collision, tow truck driver Shane Warren saw appellant stop at the red light at Hamilton Boulevard and Second Street. Appellant had a cup of coffee in his hand, hit the steering wheel with his hands, and was waiving his arms like he was really mad. Revving the truck engine, appellant accelerated suddenly, spinning the truck tires through the intersection against the red light. The light turned green when appellant was three-quarters through the intersection. Filberto Berden, who worked at an auto parts store on Hamilton Boulevard, testified in the first trial that appellant drove every day on Hamilton Boulevard at 70 to 75 miles per hour. Before the collision, Berden told appellant to slow down otherwise someone would die. Appellant answered, "trucks are designed to run." On the day of the collision, Berden saw appellant screech his truck tires out of a coffee shop parking lot. On October 13, 2011, eight days after the fatal collision, appellant received a speeding ticket. Appellant was driving 60 miles per hour in a 35 mile per hour zone at Hamilton Boulevard and Orange Grove Avenue, about .7 miles from the collision scene. Upper Term Sentence Appellant claims that the trial court abused it discretion in imposing a six- year upper term sentence. Appellant forfeited the error by not objecting at the sentencing