People v. Maguire CA2/6

Filed 7/30/15 P. v. Maguire CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B254561 (Super. Ct. No. 1428983) Plaintiff and Respondent, (Santa Barbara County)

v.

MARTIN LEO MAGUIRE,

Defendant and Appellant.

A felony complaint charged appellant with driving under the influence of alcohol (Veh. Code, §§ 23153, subd. (a), 23560) and driving with a blood alcohol concentration of .08 percent or more causing injury (Veh. Code, § 23153, subd. (b)). Each count alleged two great bodily injury enhancements (Pen. Code, § 12022.7, subd. (a)).1 Five months later appellant entered an open plea of guilty to the first count and admitted the two great bodily injury enhancements. The second count was dismissed. The trial court sentenced appellant to a state prison term of nine years, comprised of the upper term of three years (see § 18) plus two consecutive three-year terms for the enhancements (§ 12022.7, subd. (a)). Appellant contends the court abused

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

its discretion when it denied probation and sentenced him to the maximum term. We affirm. FACTS AND PROCEDURAL BACKGROUND Appellant was driving under the combined influence of Vicodin, Soma and alcohol (.01 percent). He crossed over the double yellow line striking a motorcycle and its two passengers head on. The passengers received severe injuries including each suffering a left leg amputation. Two witnesses applied tourniquets that likely prevented the death of the victims while appellant, unable or unwilling to assist, wandered aimlessly at the scene. The police investigation disclosed that appellant was visibly impaired and admitted taking Vicodin. The ensuing search of his vehicle revealed open beer cans, some partially consumed, and a bottle containing Vicodin and marijuana. Appellant had a prior conviction for driving under the influence (Veh. Code, § 23152, subd. (a)) in 1996 and one for reckless driving involving opiate use in 2009. The plea forms which he signed acknowledged his awareness of the dangers of driving while intoxicated. The prescription medications he was taking warned that they may cause drowsiness, which alcohol consumption may intensify, and to use care when operating a vehicle. The probation report detailed not only appellant's criminal history but also many factors in his favor, including his remorse and taking care of a parent. After considering this history and all of the circumstances of the crime, the trial court denied appellant's application for probation and sentenced him to the upper term of three years in prison for the offense and an additional three years for each great bodily injury enhancement (§ 12022.7, subd. (a)). It noted that the injuries inflicted greatly exceeded the facts necessary to establish the enhancements and that, given his prior record, appellant well knew of the dangers associated with driving under the influence of alcohol and drugs. DISCUSSION Appellant contends the trial court abused its discretion by denying his request for probation and also by imposing the upper term. We disagree.