People v. Gutierrez

Opinion

KLINE, P. J. —Carlos Jose Gutierrez appeals from convictions entered upon guilty pleas to one count of vehicular manslaughter (count 1) (Pen. Code, § 192, subd. (c)(3)); one count of felony drunk driving (count 2) (Veh. Code, §23153, subd. (a)); and one count of driving with a revoked license (count 3) (Veh. Code, § 14601, subd. (a)). Appellant was sentenced to the middle term of six years on count 1, a consecutive eight months (one-third middle term) on count 2, and a concurrent eight months on count 3, to be served in the California Youth Authority. He contends that the trial court erred in imposing consecutive sentences;, relying on elements of the crimes as factors in aggravation; failing to impose a mitigated term; and denying probation.

Statement of Facts

The accident underlying appellant’s offenses occurred on the evening of May 23,1985, on the southbound portion of Highway 101 in the Fulton area. When California Highway Patrol Officer Kissinger reported to the scene he found appellant had driven off the shoulder of the road, crashed through a cyclone fence and wood fence, and hit some piping and trees. He had reportedly swerved around an automobile into the center divider, then swerved [599]back to the right, narrowly missing another vehicle. One passenger, Joann Boyd, had been thrown onto the side of the road and suffered fatal injuries. Another, Kimberly Souza, was also injured when she was thrown out of the car but survived. Appellant was taken to Community Hospital in critical condition. Two other passengers, Eleuterio Fernandez Arrendondo and Hector Olmedo, were uninjured.

Officer Kissinger learned that appellant, Arrendondo and Olmedo, age 19, 24 and 20 respectively, had met Joann Boyd, Kimberly Souza, Thea Dawn Souza and Wendy Coleman, all teenagers, at a parade in Healdsburg and were to give the girls a ride home. When the girls entered the car there was an empty 12-pack of Budweiser beer on the rear floorboard. Appellant stopped at a store where one of the male passengers bought another 12-pack of beer. While waiting, appellant took a bicycle parked outside the store and placed it in the trunk of his car. Appellant had been drinking beer, and continued to do so after the stop.

Appellant became irate when another driver pulled in front of him, chased the other car at over 80 miles per hour, and threw beer cans at it. On a number of occasions appellant took his hands off the steering wheel while traveling at 90 miles per hour or more, causing Joann Boyd to steer the car. The passengers asked appellant to slow down; Wendy Coleman and Dawn Souza asked to get out, which appellant allowed after spinning the car around twice. Appellant once returned to ask the girls to get back into the car, but they refused.