Filed 4/8/14 P. v. Bryan CA4/3

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

      Plaintiff and Respondent,                                        G048706

 v.                                                                    (Super. Ct. No. 11CF0864)

ASHLEY SELINA BRYAN,                                                   OPINION

      Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Lance
Jensen, Judge. Affirmed as modified.
                   Richard J. Moller, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   No appearance for Plaintiff and Respondent.


                                             *               *               *
              Appellant Ashley Selina Bryan was convicted by a jury of driving under the
influence and causing bodily injury (Veh. Code, § 23153, subd. (a)) and one count of
driving with a blood alcohol level of .08 percent or more and causing bodily injury (Veh.
Code, § 23153, subd. (b)). They found true a sentencing allegation that her blood alcohol
level was above .15 percent. The jury was unable to agree on the charge of gross
vehicular manslaughter while intoxicated as described in Penal Code section 191.5,
subdivision (a).
              Ms. Bryan subsequently pled to that charge and to the accompanying
allegation she had caused bodily injury and death to more than one victim (Veh. Code,
§ 23558). She was sentenced to the midterm of six years for the Penal Code section
191.5 charge and a concurrent term of two years for the Vehicle Code section 23153,
subdivision (a) count, and ordered to pay restitution and various fines and fees. She filed
a timely appeal.
              We appointed counsel to represent her on appeal. While not arguing
against appellant, counsel filed a brief which fully set forth the facts of the case and
advised us there were no arguable issues on appeal. The brief included a review of the
record and consideration of possible arguments, but concluded none of those arguments
had any chance of success. However, counsel noted that since he had no access to the
file of the Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531) hearing in
the case, he could not review that.
              We informed appellant she had 30 days to file written argument in her own
behalf. Almost four months have passed, and we have received no such argument, so it
appears she does not intend to file one. We have reviewed the record of appellant’s trial
and the brief filed by her counsel. We have also reviewed the transcript of the Pitchess
motion hearing, can find no flaw in the court’s actions in that hearing, and find ourselves
in agreement with appellate counsel: There is no arguable error in the proceedings
against appellant. (People v. Wende (1979) 25 Cal.3d 436.)

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                                         FACTS
              Logan Vescio was involved in a midnight accident on the 57 freeway that
left his car badly damaged, but him unhurt. He called 911 and awaited help, along with
his passenger Cameron Cook. A few minutes later, he decided to reenter what was left of
his car to activate the hazard lights, in an attempt to make it more visible. While he was
attempting that, appellant’s car crashed into his at high speed, injuring him and knocking
the car into Mr. Cook, who died from the resultant injuries. An expert testified
appellant’s blood alcohol level was probably .20 at the time she drove into Mr. Vescio’s
car.
                                      DISCUSSION
              We have carefully scrutinized the trial record. The case was unremarkable
in its facts and without any flaws that would have formed the basis of a convincing
defense. The jury was unable to arrive at a verdict on Count 1, probably reflecting
difficulty on the element of gross negligence (defense presented a witness who said he
almost hit the car and he had not been drinking). That was the thrust of the closing
argument by defense counsel, and it was successful: the jury did not convict of the
vehicular manslaughter with gross negligence charge.
              The court made a questionable ruling on a prosecution objection during the
defense closing argument, but reviewed the record at sidebar and reversed himself. The
jury was instructed the ruling was in error and the objection had been overruled. The
problem could hardly have been handled better.
              We were concerned there might have been error in the sentencing, since
counsel’s brief informed us appellant was sentenced to two years concurrent for the
Vehicle Code section 23153, subdivision (a) violation – which would have violated Penal
Code section 654. (People v. Miranda (1994) 21 Cal.App.4th 1464.) But in point of fact,
the trial court also saw this problem and stayed that sentence pursuant to Penal Code
section 654. The abstract of judgment is simply in error in showing that sentence as

                                             3
being concurrent; it was stayed pursuant to Penal Code section 654, and we order it
corrected to conform to the court’s sentencing.
               Other than that, we see nothing to change. The trial presented no rulings or
problems beyond those encountered in every such trial. We found no evidentiary
mistakes or instructional error. Viewing the evidence in the light most favorable to the
verdict, as we are required to do (People v. Young (2005) 34 Cal.4th 1149, 1180), there
was plenty here that was reasonable, credible, and of solid value to support a verdict
beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.)
                                      DISPOSITION
               Appellate counsel was right: there are no issues on appeal. The abstract of
judgment is ordered corrected to delete the concurrent sentence; otherwise, the judgment
is affirmed.




                                                  BEDSWORTH, J.

WE CONCUR:



O’LEARY, P. J.



RYLAARSDAM, J.




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