People v. Zink CA2/6

Filed 4/22/15 P. v. Zink CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.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. B256883 (Super. Ct. No. 2013009427) Plaintiff and Respondent, (Ventura County)

v.

CHRISTOPHER LEE ZINK,

Defendant and Appellant.

Christopher Lee Zink appeals his seven-year prison sentence after pleading guilty to felony driving under the influence causing injury (DUI: Veh. Code, § 23153, subd. (a)) and admitting that he inflicted great bodily injury (GBI) on the victim, causing paralysis from the neck down (Pen. Code, § 12022.7, subd. (b)). Appellant claims that the trial court abused its discretion in not granting probation or striking the five-year GBI enhancement, and that it erred in imposing a two-year midterm sentence on count 1 for felony DUI causing injury. We affirm. Facts and Procedural History On March 22, 2013, appellant attended a graduation party in Ventura, drank three beers, and decided to drive home after he and his friends were kicked out of their hotel rooms for being too noisy. Appellant had not slept in almost 24 hours and nodded off, driving 50 to 55 miles per hour on Rice Avenue. It was dark and a few minutes before 5:00 a.m. Appellant ran the red light at Rice Avenue and Channel Islands

Boulevard and broadsided a Ford Expedition driven by Francisco Briones. Briones (age 21) was on his way to work and had just turned right onto Rice Avenue on a green light. The collision demolished the Ford Expedition and fractured Briones' C5 vertebra, causing permanent paralysis from the neck down. When officers arrived, appellant said: "I'm fine. I'm the designated driver." Appellant had a strong odor of alcohol on his breath, bloodshot eyes, and thick and slurred speech. Appellant failed several field sobriety tests and was arrested. At 6:32 a.m., an hour and a half after the collision, appellant's blood was drawn and had a .14 percent blood alcohol content. Appellant was charged with felony DUI causing injury (count 1; Veh. Code, § 23153, subd. (a)), driving with a .08% blood alcohol causing injury (count 2; Veh. Code, § 23153, subd. (b)), and personally inflicting great bodily injury on Briones causing paralysis (GBI enhancement; Pen. Code, § 12022.7). After the preliminary hearing, appellant entered into a written plea agreement that provided for a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754), and the dismissal of count 2 for driving with a blood-alcohol content of .08 percent or more, by weight, causing injury. The plea agreement, which was signed by appellant and his attorney, stated that appellant could be sentenced to a maximum possible term of eight years state prison. At the sentencing hearing, appellant requested probation or, in the alternative, that the court strike the five-year GBI enhancement. If the trial court was disinclined to strike the enhancement, appellant argued that he should receive a 16-month low term plus five years on the GBI enhancement, which is what the prosecution offered before the preliminary hearing. The trial court denied probation and denied the motion to strike the GBI enhancement. Appellant was sentenced to a two-year midterm for felony DUI causing injury (count 1), plus five years on the GBI enhancement (§ 12022.7, subd. (b)). Penal Code Section 1203, subdivision (e)(3) Willful Conduct Appellant argues that the trial court erred in finding that section 1203 rendered appellant presumptively ineligible for probation. Section 1203, subdivision (e)