Filed 2/20/19

          CERTIFIED FOR PARTIAL PUBLICATION *

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                 SECOND APPELLATE DISTRICT

                          DIVISION THREE


THE PEOPLE,                                B284215

     Plaintiff and Respondent,             Los Angeles County
                                           Super. Ct. No. MA069101
     v.

MARCO ESCARCEGA,

     Defendant and Appellant.



      APPEAL from a judgment of the Superior Court of Los
Angeles County, Daviann L. Mitchell, Judge. Affirmed.
      Patrick Morgan Ford, for Defendant and Appellant.
      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Shawn McGahey Webb, Ilana Herscovitz Reid,
and John Yang, Deputy Attorneys General, for Plaintiff and
Respondent.




*Pursuant to California Rules of Court, rules 8.1100, 8.1105(b), and
8.1110(a), this opinion is certified for publication with the exception of
parts 2, 4, and 5 of the Discussion.
                         INTRODUCTION

      Defendant Marco Escarcega caused a head-on collision
while attempting to pass two vehicles on a two-lane road at night,
resulting in catastrophic injuries to two victims. Defendant
argues that there is insufficient evidence he acted with wanton
disregard for safety; that he was denied his right to present a
defense when the court excluded cross-examination questions
about other accidents on that stretch of road; that the great-
bodily-injury enhancement is unauthorized because great bodily
injury is an element of the underlying offense; that the evidence
did not support the court’s imposition of the high term; and that
the court erred by finding defendant presumptively ineligible for
probation. We affirm.

                PROCEDURAL BACKGROUND

       By information dated November 1, 2016, defendant was
charged with one count of reckless driving (Veh. Code, § 23103,
subd. (a); count 1).1 The information also alleged defendant had
caused a specified injury to Carlos I. (§ 23105) and personally
inflicted great bodily injury on Jessica S. (Pen. Code, § 12022.7,
subd. (a)). Defendant pled not guilty and denied the allegations.
       After a trial at which he testified in his own defense,the
jury convicted defendant of count 1 and found the allegations
true. The jury deliberated for just over an hour.
       Defendant was sentenced to an aggregate term of six years
in state prison—the high term of three years for count 1
(§ 23103/23105) plus three years for the enhancement (Pen. Code,


1 Unless otherwise indicated, all undesignated statutory references are
to the Vehicle Code.




                                   2
§ 12022.7, subd. (a)), to run consecutively. He filed a timely notice
of appeal.

                  FACTUAL BACKGROUND

1.    Prosecution Evidence
      1.1.   Defendant tries to pass two vehicles and crashes
             into an oncoming car.
       On July 15, 2015, at 9:20 p.m., defendant was driving a
2012 Hyundai Elantra eastbound on Palmdale Blvd. He was on
his way to work at Adelanto Detention Facility. That stretch of
road has one lane of traffic in each direction and is divided by a
broken yellow line. There are no streetlights. The speed limit is
55 miles per hour.
       As defendant approached 110th Street, he saw two vehicles
ahead of him. Shannon Emery’s Chevrolet Monte Carlo sedan
was directly in front of him. A large delivery box-truck was in
front of Emery. Neither Emery nor defendant could see whether
there were any cars in front of the delivery truck, which also
blocked their view of any headlights from oncoming traffic.
Defendant estimated he was driving 45 miles per hour at this
point, but Emery testified that she was going 70 miles per hour.
       Though defendant could not see beyond the truck, did not
know whether there were more cars in front of it, and could not
tell how much space there was between Emery and the truck, he
decided to pull into the westbound lane and pass both vehicles.
When defendant pulled past Emery and attempted to pass the
truck, however, he discovered it was following two or three more
cars.
       As defendant drew parallel with the delivery truck, he saw
headlights coming towards him. The headlights belonged to a




                                 3
Lexus sedan carrying Jessica, the driver, and her two nephews,
Carlos (age five) and Gabriel I. (age four). Jessica was driving
about 65 miles per hour in the westbound lane.
       Emery, who by this time had seen Jessica’s headlights,
eased off her gas pedal to allow defendant to pull in front of her.
According to his statement to authorities, defendant tried to
reenter the eastbound lane in front of Emery, but there wasn’t
enough room, so he slowed down to retake his original spot. By
that point, however, another car had pulled behind Emery, and
he couldn’t get back in. Defendant swerved onto the left shoulder.
Meanwhile, Jessica had seen defendant driving towards her, had
made the same decision he did, and swerved toward the same
shoulder. The cars collided, and Jessica blacked out briefly at the
moment of impact. Emery saw the collision and called 911.
       According to California Highway Patrol Officer Nathan
Parsons, who testified as an expert on collision reconstruction,
defendant had continued to accelerate until two and a half
seconds before the collision. Five seconds before the collision,
defendant was driving 67 miles per hour. Four seconds before the
collision, he was driving 71 miles per hour. Three seconds before
the collision, he was driving 73 miles per hour. And though
defendant first stepped on his brakes two and a half seconds
before the collision, he did not hit them hard enough to engage
the Antilock Braking System until one second before impact. At
the moment of impact, defendant was driving 42 miles per hour.
Jessica was driving approximately 37 miles per hour.
       When Jessica regained consciousness, her hands were on
the steering wheel. Glass from the shattered windshield had cut
her wrists. The engine was on fire. The children were screaming
in the back seat. Defendant stumbled out of the passenger side of




                                 4
his car as Jessica tried to free herself. She yelled for help 10 to 20
times, but defendant just looked at her and walked away.
Eventually, bystanders came to her aid, and Jessica and the
children were transported to a hospital. Meanwhile, defendant
called his fiancée to let her know he had been in an accident.
       Defendant was adamant that he had reached the shoulder
first and that Jessica was at fault for the crash—but CHP Officer
Eduardo Alonzo, who investigated the incident, determined that
unsafe passing had caused the collision. Defendant’s admission
that he could not see the cars in front of the delivery truck—and
therefore, did not have a clear view of the opposing lane—
strengthened that conclusion.
       Nor were either Parsons or Alonzo persuaded by
defendant’s theory that dips in the road had prevented him from
seeing Jessica’s headlights. Alonzo, who had driven on the road
numerous times, did not consider the depression on the
westbound side of Palmdale Blvd. to be significant; it had never
caused him to lose sight of oncoming traffic. According to
Parsons, who measured the road with a team of engineers, the
depression is 2.17 feet deep at its lowest point, which was 270
feet away from the impact site. But Jessica’s headlights were
higher than that—2.2 feet above ground at the center of the
lights and 2.4 feet above ground at the top of the lights.
      1.2.   Jessica and Carlos suffer serious injuries.
       Carlos went into hyperemic shock, had a collapsed lung,
and was put on life support with a chest tube. He was in a coma
for 10 days. He received multiple unsuccessful skin grafts from
his legs to his arm, which required his mother to tend to an open
wound from his wrist to his elbow. Carlos underwent more than
10 surgeries. He stayed at LAC +USC Medical Center from July




                                  5
15, 2015, to August 4, 2015. Although he returned home briefly,
he ultimately required additional surgeries and another hospital
stay. Carlos, who was seven years old at the time of trial, showed
the jury the injuries to his chest and legs. The jury also saw
photographs of various skin and muscle grafts on his legs, chest,
and arm.
      Jessica remained in the hospital for three weeks. She had
hip, knee, and ankle surgery to repair serious fractures; her
ankle had to be “completely reassembled.” Jessica suffered
additional fractures to her skull, four ribs, sternum, and lower
spinal disk, as well as internal bleeding. She was confined to a
wheelchair for six months, used a walker for three months, and
had to modify her home to accommodate her inability to walk.
She testified that she expected to undergo at least one more knee
surgery.
2.    Defense Evidence
      2.1.   Defendant’s Testimony
      Defendant testified on his own behalf. On the evening of
July 15, 2015, he was driving to work as a detention officer at the
Adelanto Detention Facility. He was supposed to arrive by 10:00
p.m. He was not running late, and there was no traffic. In his
experience, that stretch of Palmdale Blvd. was “very straight”
and had “little ups and downs” but no “major depressions.” He
did not know where the depressions were. The road was very
dark at night.
      As he approached 110th Street, he saw two vehicles in front
of him—a pickup truck stacked with items, and a smaller vehicle
behind that truck. Defendant was concerned about driving
behind the truck because he thought its cargo looked unstable




                                6
and some of the items might fall out. He planned to pass the
smaller vehicle, and then to pass the truck.
       Defendant could not tell whether there were any vehicles in
front of the truck and the smaller car because “the truck obscured
any other taillights in front of it.” When he did not see any lights
coming in the opposite direction, he confirmed there was a broken
line on the road and moved into the left (westbound) lane to
initiate a pass. By the time he caught up to the car and was
approaching the truck, however, he discovered that there were
three more cars in front of the truck. Then he saw oncoming
headlights appear “out of nowhere.”
       Defendant tried to pull back into the right (eastbound) lane
between the truck and smaller car, but there wasn’t enough
room. He slowed down and tried to move back into his original
position, but by then, another car had pulled closer to the smaller
car and “it was too dangerous” to move over. Defendant decided
to move onto the left shoulder to allow the oncoming traffic to
pass. But while he was on the shoulder, the car coming toward
him swerved off the road and collided into him.
       After the collision, defendant got out of his car using the
passenger door. He saw Jessica crying and thought she might
have been saying something, but he couldn’t hear her through the
window. He couldn’t help her because he couldn’t walk. He tried
to tell a bystander to help her, but he couldn’t speak.
      2.2.   Expert Testimony
      Brad Avrit, president of Wexco International Corporation,
conducted an accident investigation. He recreated the location of
each vehicle based on its speed and the location of the impact to
show why the drivers did not see each other earlier. Avrit
concluded that the drivers’ headlights had been at the same




                                 7
elevation for only three and a half to four seconds, which left the
drivers only one and a half to two seconds to perceive the threat
and try to avoid a crash.
      Avrit prepared a video for the jury that purported to
demonstrate the problem by reenacting defendant’s view of the
oncoming headlights. Footage was taken by a camera placed on a
stationary tripod at defendant’s approximate eye level in the
Hyundai. The video demonstrated that defendant had no view of
oncoming headlights for approximately eight to 13 seconds where
the road dipped to the lower elevation. The same phenomenon
occurred for drivers traveling in the opposite direction.
      Avrit opined that it was legal to pass on that stretch of
Palmdale Blvd. because there were no “do not pass” signs, and
there was a dotted line on the road. But where there is a “site
obstruction” without any warning signs or solid yellow lines, he
opined, it is “considered a trap.”
      On cross-examination, Avrit conceded that the Google
Earth images on which he relied included a disclaimer that
“Google makes no claims to the accuracy of coordinates in Google
Earth.” He also admitted that he did not take survey
measurements of the road’s elevation. Nevertheless, he testified
that the Google Earth data was accurate “to a reasonable degree
of engineering certainty” based on what he observed with his
“own two eyes.”
3.    Rebuttal Evidence
       Parsons, the CHP expert, testified again on rebuttal. He
explained that he did not rely on data from Google Earth because
its reliability was unknown. He was concerned about the
accuracy of Avrit’s measurements because Google Earth
elevations are rounded to the nearest foot. And indeed, Parsons’s




                                 8
physical measurements of the road revealed a 200-foot error in
Avrit’s calculations. The depression was 673 feet long, not 860
feet, and it was 270 feet away from the area of impact.
       Parsons also had concerns about the defense video. He
noted that though Avrit set the camera on a 24-inch tripod to
account for defendant’s eye height, Avrit hadn’t accounted for the
height of the car. Thus, the camera was set too low and the video
showed less of the road than defendant would have seen. The
Highway Design Manual, by contrast, conducts its visibility
studies using a height of three and a half feet.

                        CONTENTIONS

      Defendant contends: (1) there is insufficient evidence he
acted with wanton or reckless disregard for safety; (2) he was
denied the right to present a defense when the court would not
allow him to cross-examine a CHP officer about the details of
other accidents on Palmdale Blvd.; (3) the great-bodily-injury
enhancement is unauthorized because great bodily injury is an
element of the underlying offense; (4) the evidence does not
support the court’s decision to impose the high term; and (5) the
court erred by finding him presumptively ineligible for probation.

                         DISCUSSION

1.    Substantial evidence supports defendant’s conviction.
      A criminal defendant may not be convicted of any crime or
enhancement unless the prosecution proves every fact necessary
for conviction beyond a reasonable doubt. (U.S. Const., 5th &
14th Amends.; see Cal. Const., art. I, §§ 7, 15; In re Winship
(1970) 397 U.S. 358, 364.) “This cardinal principle of criminal
jurisprudence” (People v. Tenner (1993) 6 Cal.4th 559, 566) is so




                                9
fundamental to the American system of justice that criminal
defendants are always “afforded protection against jury
irrationality or error by the independent review of the sufficiency
of the evidence undertaken by the trial and appellate courts”
(United States v. Powell (1984) 469 U.S. 57, 67).
       Defendant contends there is insufficient evidence to
support the wanton disregard element of reckless driving because
he was on a stretch of road that allowed passing, and since he
could not see around the truck he sought to pass, and the
depressions in the road blocked his view of oncoming headlights,
he did not realize he couldn’t pass safely until he had already
pulled into oncoming traffic. “This,” he insists, “could have
happened to anyone in his situation.” We disagree.
      1.1.   Standard of Review
       In assessing the sufficiency of the evidence, we review the
entire record to determine whether any rational trier of fact could
have found the defendant guilty beyond a reasonable doubt.
(People v. Zamudio (2008) 43 Cal.4th 327, 357.) “The record must
disclose substantial evidence to support the verdict—i.e.,
evidence that is reasonable, credible, and of solid value—such
that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.” (Ibid.)
       In applying this test, we review the evidence in the light
most favorable to the prosecution and presume in support of the
judgment the existence of every fact the jury could reasonably
deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978,
1053.) We may not reweigh the evidence or resolve evidentiary
conflicts. (People v. Young (2005) 34 Cal.4th 1149, 1181.) The
same standard applies where the conviction rests primarily on
circumstantial evidence. (People v. Thompson (2010) 49 Cal.4th




                                10
79, 113.) In short, we may not reverse a conviction for insufficient
evidence unless it appears “ ‘that upon no hypothesis whatever is
there sufficient substantial evidence to support [it].’ ” (People v.
Bolin (1998) 18 Cal.4th 297, 331.)
      1.2.     Elements of Reckless Driving
      To convict a defendant of reckless driving, the People must
prove beyond a reasonable doubt that:
      ◦      the defendant drove a vehicle on a highway;2 and
      ◦      the defendant intentionally drove with wanton
             disregard for the safety of persons or property.
(§ 23103; see CALCRIM No. 2200.) “A person acts with wanton
disregard for safety when (1) he or she is aware that his or her
actions present a substantial and unjustifiable risk of harm, and
(2) he or she intentionally ignores that risk.” (CALCRIM
No. 2200.)
      1.3.     There is substantial evidence defendant acted
               with wanton disregard for safety.
       Defendant emphasizes that passing was legally permitted
on that stretch of Palmdale Blvd. and insists it was proper for
him to move into the left lane without being able to see beyond
the delivery truck. He is mistaken.
       Section 21650 provides, “Upon all highways, a vehicle shall
be driven upon the right half of the roadway, except as follows:
[¶] (a) When overtaking and passing another vehicle proceeding
in the same direction under the rules governing that movement.”


2A highway is any place “publicly maintained and open to the use of
the public for purposes of vehicular travel,” including a street. (§ 360.)




                                    11
In turn, under section 21751, “On a two-lane highway, no vehicle
shall be driven to the left side of the center of the roadway in
overtaking and passing another vehicle proceeding in the same
direction unless the left side is clearly visible and free of
oncoming traffic for a sufficient distance ahead to permit such
overtaking and passing to be completely made without
interfering with the safe operation of any vehicle approaching
from the opposite direction.” Likewise, the “driver of a vehicle
overtaking another vehicle proceeding in the same direction shall
pass to the left at a safe distance without interfering with the
safe operation of the overtaken vehicle … .” (§ 21750, subd. (a).)
And, “No person shall turn a vehicle from a direct course or move
right or left upon a roadway until such movement can be made
with reasonable safety … .” (§ 22107.)
       Taken together, these statutes make clear that a broken
line on a roadway does not make passing legal: passing is only
legal if it is safe. And passing is not safe unless a driver, before
attempting to pass another car, can see that the left lane is free
from traffic and that there is enough room in the right lane to
overtake the slower vehicle without cutting it off.
       That’s why the California Driver Handbook published by
the Department of Motor Vehicles warns drivers to “[a]void
passing other vehicles … on two-lane roads; it is dangerous.
Every time you pass, you increase your chances of having a
collision.” (Dept. Motor Vehicles, Cal. Driver Handbook (Aug.
2018) p. 66 <https://www.dmv.ca.gov/web/eng_pdf/dl600.pdf> [as
of Feb. 14, 2019]; see, e.g., People v. Letner and Tobin (2010) 50
Cal.4th 99, 218, fn. 1 (dis. opn. of Kennard, J.) [noting that the
Driver Handbook recommends motorists reduce speed by 5–10
miles per hour on wet roads]; Burg v. Municipal Court (1983) 35




                                 12
Cal.3d 257, 272 [citing charts in Driver Handbook for principle
that drivers know the approximate number of drinks required to
exceed maximum BAC].) In particular, the Handbook cautions,
“Do not pull out to pass unless you know you have enough space
to pull back into your lane.” (Driver Handbook, at p. 65.) And:
“Do not count on having enough time to pass several vehicles at
once or that other drivers will make room for you.” (Id., at p. 66.)
The Handbook also emphasizes: “Do not pass: [¶] If you are
approaching a hill or curve and cannot see if other traffic is
approaching.” (Id., at p. 65.) Finally, the Handbook warns: “Drive
more slowly at night because you cannot see as far ahead and you
will have less time to stop for a hazard.” (Id., at p. 82.) Indeed,
this last point was consistent with Parsons’s testimony that it
takes longer for a driver to perceive and react to hazards at night
than during the day.
       Here, the delivery truck blocked defendant’s view of the
entire right lane and at least part of the left lane. He simply had
no idea whether it would be safe to pass—and yet he nevertheless
pulled into the left lane on a dark but apparently busy road and,
driving 70 miles per hour, tried to pass two vehicles at once. The
jurors, at least some of whom were presumably licensed drivers,
were undoubtedly familiar with basic principles of traffic safety
and could reasonably infer that by ignoring them, defendant
acted with wanton disregard for the safety of others. (De Young v.
Haywood (1956) 139 Cal.App.2d 16, 19 [“these rules of the road
are merely descriptive of practices that have long been recognized
throughout the country and are known to everyone of sufficient
judgment and experience to act as a competent juror”].)
       Furthermore, Emery testified that she made room for
defendant to return to the right lane but he did not try to slow




                                13
down. According to Parsons, defendant continued to accelerate
until two and a half seconds before the collision. The jury could
have reasonably inferred from this testimony that when
defendant saw Jessica’s headlights, he still had enough time and
space to return to his lane ahead of Emery but nonetheless still
tried to pass the truck. Taken together, a reasonable jury could
conclude from these facts that defendant’s conduct went beyond
mere carelessness.
       Accordingly, we conclude there is sufficient evidence
defendant acted with reckless disregard for safety.
2.    The court’s evidentiary ruling did not deny defendant
      the right to present a defense.
       Defendant contends he was denied his constitutional right
to present a defense when the court barred him from cross-
examining a CHP officer about the details of other accidents near
the collision site. The People argue the court properly excluded
the testimony on hearsay grounds. We find no constitutional
violation.
      2.1.   Proceedings Below
      On direct examination, CHP Officer Alonzo testified that
unsafe passing caused the collision in this case. He also opined
that the stretch of Palmdale Blvd. where the crash occurred had
a natural depression—but the depression was not significant and
he had never personally lost sight of oncoming traffic because of
it.
      On cross-examination, counsel elicited the following
testimony:




                               14
       Q.   Now, you stated that you went back to the
            location and … you could see a depression east
            of the accident location of the roadway.
       A.   A natural depression, yes.
       Q.   Okay. Now, did you determine what the source
            of that depression was?
       A.   It’s just the way the ground is. There’s a creek
            that runs naturally through there sometimes,
            depending on the rain.
       Q.   And, at least in part, that—there’s that
            depression. Vehicles coming west—if you’re
            traveling eastbound, you could see—at least see
            part of the vehicle disappearing behind that
            depression?
       A.   In my opinion, no. I’ve been out there numerous
            times, and I’ve never lost sight of a vehicle.
            [¶] … [¶]
       Q.   Are you—are you familiar if there had been any
            other accidents at that particular location at
            night?
       A.   In that specific area?
       Q.   That area.
       A.   Within that area, yes.
       Q.   Okay. Are you familiar with any other prior
            head-on collisions in that area?
At this point, the court called the attorneys to sidebar and asked
defense counsel where he was going with his questioning.




                                15
Counsel replied, “I was going to ask if he ever investigated other
accidents, if anyone ever said something similar, that they
couldn’t see.”
      The prosecutor responded, “That would be hearsay.” The
court agreed and noted that whether other people told Alonzo
that they could not see oncoming traffic did not appear to be
relevant to Alonzo’s opinion that he could always personally see
oncoming traffic when driving on that stretch of road.
Accordingly, the statements counsel wished to elicit were not
relevant to impeach Alonzo’s opinion testimony.
      At that point, defense counsel withdrew the question and
continued cross-examining Alonzo.
      2.2.   Legal Standard
       “Under the due process guarantees of the Fourteenth
Amendment to the United States Constitution, a criminal
defendant has the right to testify on his or her own behalf.
[Citations.] These constitutional due process guarantees include
the right to present witnesses and evidence in support of a
defense. (Chambers v. Mississippi (1973) 410 U.S. 284, 302.) As
the high court has explained, however, these rights are ‘subject to
reasonable restrictions.’ (United States v. Scheffer (1998) 523 U.S.
303, 308; see Chambers, at p. 302 [noting that a defendant ‘must
comply with established rules of procedure and evidence designed
to assure both fairness and reliability in the ascertainment of
guilt and innocence’].) [¶] ‘As a general matter, the ordinary rules
of evidence do not impermissibly infringe on the accused’s right
to present a defense.’ [Citations.]” (People v. Mickel (2016)
2 Cal.5th 181, 218, cert. denied sub nom. Mickel v. California
(2017) __ U.S. __ [137 S.Ct. 2214, 198 L.Ed.2d 661].)




                                16
       “A defendant’s interest in presenting such evidence may
thus ‘ “bow to accommodate other legitimate interests in the
criminal trial process.” ’ [Citations.] As a result, state and federal
rulemakers have broad latitude under the Constitution to
establish rules excluding evidence from criminal trials. Such
rules do not abridge an accused’s right to present a defense so
long as they are not ‘arbitrary’ or ‘disproportionate to the
purposes they are designed to serve.’ [Citations.]” (United States
v. Scheffer, supra, 523 U.S. at p. 308.)
      2.3.   Defendant has not established error.
       Defendant contends the court’s ruling “was erroneous as
the evidence was relevant and admissible under state law, and
its exclusion violated appellant’s constitutional right to present
evidence in his defense.” While he explains the relevance of the
evidence, however, he does not address its admissibility—that is,
he does not explain why the court’s ruling was wrong.
       Only relevant evidence is admissible. (Evid. Code, § 350.)
Relevant evidence is “evidence, including evidence relevant to the
credibility of a witness or hearsay declarant, having any tendency
in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.” (Evid. Code,
§ 210.) “Although a trial court enjoys broad discretion in
determining the relevance of evidence [citation], it lacks
discretion to admit evidence that is irrelevant [citations] or
excluded under constitutional or statutory law (e.g., Evid. Code,
§ 1200, subd. (b)).” (People v. Morrison (2004) 34 Cal.4th 698,
724.)
       Hearsay is an out-of-court statement offered for the truth of
the matter asserted in the statement. (Evid. Code, § 1200,
subd. (a).) “Thus, a hearsay statement is one in which a person




                                  17
makes a factual assertion out of court and the proponent seeks to
rely on the statement to prove that assertion is true. Hearsay is
generally inadmissible unless it falls under an exception. (Evid.
Code, § 1200, subd. (b).)” (People v. Sanchez (2016) 63 Cal.4th
665, 674; Evid. Code, § 1202 [exception required for each level of
hearsay].) On the other hand, an out-of-court “statement ‘offered
for some purpose other than to prove the fact stated therein is not
hearsay.’ [Citations.]” (Sanchez, at p. 674.) 
       Here, defense counsel planned to ask Alonzo whether
anyone involved in another head-on collision in the area told him
that a depression in the road kept them from seeing oncoming
traffic. To answer, Alonzo would have had to testify to out-of-
court statements—statements that would only be relevant if they
were true. Accordingly, the proffered evidence was hearsay.
       In his reply brief, defendant appears to concede this point.
He suggests, however, that “the statements of others were not
necessary, and the evidence could have been presented from
business records collected by the investigators at the California
Highway Patrol. [Citation.] There can be no real doubt that the
highway patrol has records of all head-on collisions on the state’s
highways.” Certainly, counsel could have explored those
options—but he didn’t.
       The rules of evidence are not self-executing. “The proponent
of proffered testimony has the burden of establishing its
relevance, and, if the testimony [comprises] hearsay, the
foundational requirements for its admissibility under an
exception to the hearsay rule. [Citations.] Evidence is properly
excluded when the proponent fails to make an adequate offer of
proof regarding the relevance or admissibility of the evidence.
[Citations.]” (People v. Morrison, supra, 34 Cal.4th at p. 724.)




                                18
Here, defendant did not identify an exception to the hearsay rule
or suggest a non-hearsay theory of admissibility. (Ibid.) Counsel
did not establish the existence of the hypothesized business
records or speculate about what they said. Accordingly, defendant
has forfeited the issue. (See People v. Ramos (1997) 15 Cal.4th
1133, 1177–1178 [defendant did not demonstrate error on appeal
where trial counsel failed to establish foundation for asserted
hearsay exception].)
       Nor do we find constitutional error in the exclusion of this
evidence under Chambers v. Mississippi, supra, 410 U.S. 284 and
its progeny. “The high court has never suggested these decisions
abrogated ‘the respect traditionally accorded to the States’ in
formulating and applying reasonable foundational requirements.
[Citations.] ‘[F]oundational prerequisites are fundamental to any
exception to the hearsay rule. [Citations.]’ [Citation.] ‘As a
general matter, the ordinary rules of evidence do not
impermissibly infringe on the accused’s right to present a
defense.’ [Citation.] Defendant has failed to demonstrate any
infringement, particularly since all of the excluded evidence
would only have served to corroborate other testimony informing
the jury of the same or comparable facts.” (People v. Ramos,
supra, 15 Cal.4th at p. 1178.)
3.    A great-bodily-injury enhancement may attach to
      felony reckless driving.
      Penal Code section 12022.7 (hereafter Section 12022.7)
provides for a three-year sentence enhancement when a
defendant personally inflicts great bodily injury on a non-
accomplice in the commission of a felony. (Pen. Code, § 12022.7,
subd. (a).) But the statute specifically exempts murder,
manslaughter, arson, and any crime in which “infliction of great




                                19
bodily injury is an element of the offense.” (Id., subd. (g).)
Defendant argues subdivision (g) bars the enhancement imposed
here because great bodily injury is an element of the “offense” of
reckless driving causing an enumerated injury (§ 23105) even
though that “offense” named Carlos as the victim and the
enhancement named Jessica.
       As a matter of first impression, we conclude section 23105
is not a substantive offense because it does not define a criminal
act. Instead, it is a sentencing provision that allows particularly
serious forms of reckless driving to be punished as felonies rather
than misdemeanors. Because great bodily injury is not an
element of the substantive offense of reckless driving (§ 23103),
the prohibition in Section 12022.7, subdivision (g), does not
apply.3
      3.1.     Relevant Statutes
     As discussed, to convict a defendant of reckless driving
under section 23103, the prosecution must prove:
      ◦      the defendant drove a vehicle on a highway; and
      ◦      the defendant intentionally drove with wanton
             disregard for the safety of persons or property.
Under the statute, “except as provided in Section 23104 or
23105,” a defendant “convicted of the offense of reckless driving”
may be sentenced to between five and 90 days in county jail, a
fine of between $145 and $1,000, or both. (§ 23103, subd. (c).)



3 Defendant does not argue that the enhancement should have been
stricken or stayed under some other statutory provision, and we
express no opinion on that subject.




                                   20
That is, “except as provided in Section 23104 or 23105,” reckless
driving is a misdemeanor.
      Section 23104 lengthens a defendant’s sentence “whenever
reckless driving of a vehicle proximately causes bodily injury to a
person other than the driver … .” If the defendant is a first-time
offender, he is subject to a misdemeanor term of between 30 days
and six months in county jail, a fine of between $220 and $1,000,
or both. (§ 23104, subd. (a).) If the defendant has previously been
convicted of reckless driving, engaging in a speed contest
(§ 23109), or driving under the influence (§ 23152), however, the
offense becomes a wobbler.4
      Finally, under section 23105, a “person convicted of
reckless driving in violation of section 23103 that proximately
causes one or more” enumerated serious injuries is subject to the
same punishment as a recidivist offender. That is, the offense
becomes a wobbler.
      Here, defendant was charged with one count of reckless
driving (§ 23103, subd. (a)). As to that count, the information
alleged he had proximately caused an enumerated injury to
Carlos, which elevated the offense to a felony under section
23105. Then, as to the same count, the information alleged that
he personally inflicted great bodily injury on Jessica under
Section 12022.7, subdivision (a). The jury convicted defendant of
reckless driving and found both allegations true. We are asked to



4Wobblers are a “special class of crimes” that “are chargeable or, in the
discretion of the court, punishable as either a felony or a misdemeanor;
that is, they are punishable either by a term in state prison or by
imprisonment in county jail and/or by a fine.” (People v. Park (2013) 56
Cal.4th 782, 789.)




                                   21
decide whether defendant’s subsequent sentence is authorized
under Section 12022.7, subdivision (g).
      3.2.   Standard of Review
        Section 12022.7, subdivision (g)’s application to the reckless
driving statutes is an issue of “statutory interpretation that we
must consider de novo.” (People v. Prunty (2015) 62 Cal.4th 59,
71.) As with any case involving statutory interpretation, our
primary goal is to ascertain and effectuate the lawmakers’ intent.
(People v. Park, supra, 56 Cal.4th at p. 796.) To determine intent,
we “examine the ordinary meaning of the statutory language, the
text of related provisions, and the overarching structure of the
statutory scheme.” (Weatherford v. City of San Rafael (2017)
2 Cal.5th 1241, 1246; id. at p. 47, citing Poole v. Orange County
Fire Authority (2015) 61 Cal.4th 1378, 1391 (conc. opn. of Cuéllar,
J.) [“ ‘The statute’s structure and its surrounding provisions can
reveal the semantic relationships that give more precise meaning
to the specific text being interpreted, even if the text may have
initially appeared to be unambiguous’ ”].)
        Though we focus on the text itself, we “must also consider
‘the object to be achieved and the evil to be prevented by the
legislation. [Citations.]’ [Citation.]” (Horwich v. Superior Court
(1999) 21 Cal.4th 272, 276.) We “ ‘must select the construction
that comports most closely with the apparent intent of the
Legislature, with a view to promoting rather than defeating the
general purpose of the statute, and avoid an interpretation that
would lead to absurd consequences.’ [Citation.]” (People v.
Coronado (1995) 12 Cal.4th 145, 151.) “ ‘Thus, “[t]he intent
prevails over the letter, and the letter will, if possible, be so read
as to conform to the spirit of the act.” [Citation.]’ ” (Horwich, at
p. 276.)




                                 22
      3.3.   Great bodily injury is not an element of reckless
             driving.
       By its terms, Section 12022.7, subdivision (g), applies only
to murder, manslaughter, arson, or when “infliction of great
bodily injury is an element of the offense.” Since defendant was
not charged with murder, manslaughter, or arson, we must first
determine whether great bodily injury is an “element of the
offense” charged in this case. We conclude it is not. As we explain
in detail below, section 23105 is a sentencing provision that
mandates an alternate, elevated base term for defendants
convicted of particularly serious forms of reckless driving. But the
relevant offense is reckless driving under section 23103—and
infliction of great bodily injury is not an element of that offense.
Therefore, subdivision (g) does not apply.
      3.3.1. Substantive Crimes and Punishment Statutes
      “Provisions describing substantive crimes … generally
define criminal acts.” (People v. Ahmed (2011) 53 Cal.4th 156,
163.) Sentence enhancements and alternate penalty provisions,
on the other hand, “increase the punishment for those acts. They
focus on aspects of the criminal act that are not always present
and that warrant additional punishment.” (Ibid.; People v. Dennis
(1998) 17 Cal.4th 468, 500–502.) Though these statutes can
resemble substantive offenses insofar as they impose additional
punishment based on a factual finding that a defendant engaged
in certain conduct while committing a crime, because the statutes
“do not define criminal acts,” they are not separate offenses.
(Ahmed, at p. 163.) A penalty provision differs from a substantive
offense in that it “is separate from the underlying offense and
does not set forth elements of the offense or a greater degree of




                                23
the offense charged. [Citations.]” (People v. Bright (1996) 12
Cal.4th 652, 661, overruled on other grounds by People v. Seel
(2004) 34 Cal.4th 535.)
       Likewise, though sentence enhancements and penalty
provisions serve similar functions, the “difference between the
two is subtle but significant.” (People v. Jones (2009) 47 Cal.4th
566, 578.) A sentence enhancement is “an additional term of
imprisonment added to the base term.” (Cal. Rules of Court, rule
4.405(3), italics added.) A penalty provision, on the other hand,
“ ‘sets forth an alternate penalty for the underlying felony itself,
when the jury has determined that the defendant has satisfied
the conditions specified in the statute.’ [Citation.]” (Jones, at
p. 578.) It usually does so either by allowing a misdemeanor to be
punished as a felony under the Determinate Sentencing Law or
by removing a crime from the DSL and bringing it under an
alternative sentencing scheme such as the Three Strikes law.
Thus, we can most easily identify a penalty provision by contrast
to what it isn’t: an enhancement or a substantive offense.
      3.3.2. Plain Meaning and Statutory Structure
      A statute is more likely to be a sentencing provision than a
substantive offense when it identifies circumstances that elevate
the punishment for a crime defined in a different statute.
      For example, in Robert L., the Supreme Court held that
Penal Code section 186.22, subdivision (d), is an alternate
penalty provision because it “provides for an alternate sentence
when it is proven that the underlying offense has been committed
for the benefit of, or in association with, a criminal street gang.”
(Robert L. v. Superior Court (2003) 30 Cal.4th 894, 899
(Robert L.).) Though the statute “prescribes an alternate penalty
when the underlying offense is committed under specified




                                 24
circumstances,” it is not a “substantive offense because it does not
define or set forth elements of a new crime. [Citation.]” (Id. at
pp. 899–900, italics added.)
       Likewise, in Bouzas, the Supreme Court held that Penal
Code section 666, petty theft with prior, was a sentencing
provision, not a substantive offense, because it was structured to
increase “the punishment for a violation of other defined crimes
and not to define an offense in the first instance. [Penal Code
section 666] simply refers to other substantive offenses defined
elsewhere” and states that a defendant previously convicted of
one of those offenses is subject to greater punishment than a
first-time thief. (People v. Bouzas (1991) 53 Cal.3d 467, 478–479.)
       Section 23105 operates the same way. It states: “A person
convicted of reckless driving in violation of Section 23103 that
proximately causes one or more of the injuries specified in
subdivision (b) to a person other than the driver, shall be
punished by imprisonment” as either a felon or a misdemeanant.
(§ 23105, subd. (a).) Thus, like the statutes at issue in Robert L.
and Bouzas, section 23105 first references a substantive offense
defined elsewhere—“reckless driving in violation of Section
23103”—then identifies conditions under which that act may be
punished as a felony: when a “person … proximately causes one
or more of the injuries specified in subdivision (b) … .” (See
People v. Weathington (1991) 231 Cal.App.3d 69, 89 [holding that
§ 23175 (DUI with prior) is a penalty provision where it
“describes the conduct that constitutes the crime as ‘a violation of
section 23152’ ”], cited with approval in People v. Coronado,
supra, 12 Cal.4th at p. 152, fn. 5.)
       The structure of the reckless driving statute itself supports
this view. In section 23103, subdivision (a) defines a criminal act:




                                25
“A person who drives a vehicle upon a highway in willful or
wanton disregard for the safety of persons or property is guilty of
reckless driving.” Then, subdivision (c) establishes the
punishment for that act: “persons convicted of the offense of
reckless driving shall be punished” as misdemeanants, “except as
provided in Section 23104 or 23105.” Notably, the punishment
subdivision of section 23103 expressly refers to section 23105—
but the subdivision defining the criminal act does not.
       If statutory “ ‘language is unambiguous, there is no need
for further construction.’ ” (People v. Gonzales (2017) 2 Cal.5th
858, 868.) Based on the plain meaning and structure of these
statutes, section 23105 is not a substantive offense. And though
section 23103 is a substantive offense, great bodily injury is not
an element of that offense. Accordingly, great bodily injury
cannot be “an element of the offense” in this case within the
meaning of Section 12022.7, subdivision (g).
       We are mindful, however, that in arguing Section 12022.7,
subdivision (g), applies here, defendant relies heavily on Beltran,
in which the court of appeal reversed a Section 12022.7
enhancement after concluding “great bodily injury is an element
of the felony offense of evading a pursuing peace officer.” (People
v. Beltran (2000) 82 Cal.App.4th 693, 697.) As relevant to that
case, section 2800.3 provided that a person convicted of evading a
peace officer under section 2800.1 could be punished as a felon if
he proximately caused death or serious bodily injury. Beltran
focused on whether “great bodily injury” under Section 12022.7,
subdivision (g), encompassed the “serious bodily injury” referred
to in section 2800.3. (Beltran, at pp. 696–697.) But while it
acknowledged section 2800.1 was a sentencing provision, the
court did not explain why, in its view, serious bodily injury was




                                26
nevertheless an “element of the offense” for enhancement
purposes. (Beltran, at pp. 696–697.) Certainly, opinions are not
authority for propositions not considered therein (e.g., People v.
Bailey (2018) 27 Cal.App.5th 376, 385), but Beltran’s failure to
address this point may also indicate some latent statutory
ambiguity that isn’t apparent from the plain text.
      To resolve any ambiguity, we turn to legislative history.
(See People v. Bright, supra, 12 Cal.4th at pp. 662–669 [when
construing a provision as a penalty provision or a substantive
offense, examination of legislative intent is particularly
important because of the broad consequences that follow].)
      3.3.3. Legislative Purpose
       Here, section 23105’s history is consistent with its plain
meaning: the Legislature enacted a penalty provision. (See People
v. Garcia (1998) 63 Cal.App.4th 820, 829–832 [based on
legislative history, statute increasing term for second degree
murder when killing is committed by shooting from a vehicle was
a penalty provision, not a substantive crime]; People v.
Weathington, supra, 231 Cal.App.3d at p. 89 [based on legislative
history, it “is clear the purpose of the repeat offender provisions
of the ‘drunk driving’ statutes historically has been to specify
penalties rather than to define the crime”].) To understand why,
we must consider the problem of street racing in the early
aughts.
       In the wake of the 2001 summer blockbuster The Fast and
the Furious (Universal Pictures 2001), a series of deaths
galvanized law enforcement to crack down on local street-racing
enthusiasts and served as a catalyst for new legislation designed
to deter the activity. (Clar, Chapter 411: Putting the Brakes on
the Dangerous Street Racing Phenomenon in California (2003) 34




                                 27
McGeorge L.Rev. 372, 373–374; Worrall & Tibbetts, Explaining
San Diego’s Decline in Illegal Street-Racing Casualties 23 Just. Q.
(2006) pp. 530, 531–535 [describing municipal government and
local law enforcement responses].) At the urging of a coalition of
East Bay cities, the Legislature responded with urgency
legislation during its 2001–2002 session that allowed police to
impound the car of anyone they arrested for street racing—and to
hold the car for 30 days. (Clar, supra, at pp. 379–381; Stats. 2002,
ch. 411, § 2, p. 2343; Assem. Com. on Transportation, Analysis of
Sen. Bill No. 1489 (2001–2002 Reg. Sess.) as amended Apr. 24,
2002, pp. 3–4.)
       During the 2003–2004 session, lawmakers expanded the
collateral consequences of street racing again—this time by
requiring the DMV to revoke offenders’ licenses (Stats. 2004, ch.
595, § 2)—but efforts to increase the penal consequences for the
crime stalled. Assembly Bill No. 985 would have made street
racing (§ 23109) a wobbler whenever it caused great bodily
injury—even for a first-time offender.5 The bill died in committee
amidst concerns that the new penalties would exceed those for
reckless driving.6 (Sen. Com. on Public Safety, Analysis of Assem.
Bill No. 985 (2003–2004 Reg. Sess.) as amended Apr. 2, 2003,

5   We use street racing and engaging in a speed contest synonymously.
6 As section 23105 had not yet been enacted, the maximum penalty for
reckless driving then appeared in section 23104. As discussed, section
23104 increases penalties for reckless drivers who injure others. If the
defendant is a first-time offender, he is subject to a longer
misdemeanor sentence. (§ 23104, subd. (a).) If the defendant causes
great bodily injury and has previously been convicted of reckless
driving, engaging in a speed contest (§ 23109), or driving under the
influence (§ 23152), however, the offense becomes a wobbler. (§ 23104,
subd. (b).)




                                    28
pp. 2, 6.) Assembly Bill Nos. 1314 and 2440, which would have
increased penalties for recidivist street racers who proximately
caused any injury, also died in committee. Critics felt existing
penalties for reckless driving were sufficient, and they were
skeptical about the need for competing penalties for a similar
offense. (See Assem. Com. on Appro., Analysis of Assem. Bill
No. 2440 (2003–2004 Reg. Sess.) as amended Apr. 12, 2004, p. 2.)
       So, in the 2005–2006 legislative session, advocates adopted
a two-step approach. First, the Legislature amended the street-
racing law (§ 23109) to increase the penalties for street-racing
recidivists, making the penalties equivalent to those already
available for reckless driving under section 23104. (Assem. Bill
No. 1325 (2005–2006 Reg. Sess.) § 1; Stats. 2005, ch. 475, § 1.)
“Part of the rationale for creating the enhanced penalties on a
second offense was that the concern was not with the person who
gets caught reckless driving or in a speed contest on a first time
bad decision situation but [rather] those who participate
regularly in speed contests and other similar events. The
provisions … were intended to go after those repeat offenders
who continue to offend even when caught.” (Sen. Com. on Public
Safety, Analysis of Assem. Bill No. 2190 (2005–2006 Reg. Sess.)
as amended Apr. 20, 2006, p. 7; accord, Gov. Off. of Planning and
Research, Enrolled Bill Rep. on Assem. Bill No. 1325 (2005–2006
Reg. Sess.) Sept. 19, 2005, p. 1 [“This bill would help reduce
street racing by targeting repeat offenders who cannot plead
ignorance about the consequences of their actions. These
offenders know about the numerous crashes, injuries and
fatalities yet they still choose to put themselves and others at
risk with their unlawful behavior. AB 1325 will help deter repeat
offenders by increasing the penalties for a second offense and will




                                29
send the message to all street racers that California is serious
about punishing participants in these deadly games.”].)
       Next, once the new recidivist penalties went into effect, the
broader measure was reintroduced—but this time it amended
both the reckless driving law and the street-racing statute.
(Assem. Bill No. 2190 (2005–2006 Reg. Sess.) as introduced Feb.
22, 2006 [hereafter A.B. 2190].) As introduced, A.B. 2190 deleted
the prior-conviction requirements of sections 23104 (reckless
driving wobbler) and 23109 (street racing) and provided instead
that any defendant—including a first-time offender—who
proximately caused any injury could be subject to a felony.
       Though an Assembly amendment limited the expanded
punishment to offenders who caused great bodily injury (Assem.
Amend. to A.B. 2190 (2005–2006 Reg. Sess.) Apr. 20, 2006), the
Senate Public Safety Committee was still not convinced that
first-time reckless drivers and street racers should be eligible for
felony punishment—particularly since no one knew whether the
last round of statutory changes had made any impact. (Sen. Com.
on Public Safety, Analysis of A.B. 2190, supra, pp. 8–10.)
       To address these concerns, the Senate made several
changes to the bill. First, it amended the bill to express the
Legislature’s intent that “only the most egregious violations”
should be charged as felonies. (Sen. Amend. to A.B. 2190 (2005–
2006 Reg. Sess.) June 26, 2006.) Then, apparently concluding this
expression of intent did not do enough to limit felony eligibility,
the Senate rewrote the bill. (Sen. Amend. to A.B. 2190 (2005–
2006 Reg. Sess.) Aug. 23, 2006.)
       Rather than changing the existing statutes, the final
version created two new provisions—section 23105 for reckless
driving and section 29109.1 for street racing—and listed precise




                                30
injuries a first-time offender needed to cause to warrant felony
punishment. Not all great bodily injury would qualify. Instead,
the defendant must proximately cause: loss of consciousness,
concussion, a bone fracture, a protracted loss or impairment of
function of a bodily member or organ, a wound requiring
extensive suturing, a serious disfigurement, brain injury, or
paralysis. (§ 23105, subd. (b).)
      These negotiations reveal that the Legislature was focused
on increasing punishment for existing crimes and the
circumstances under which such punishment would be
appropriate. There is no indication that lawmakers suspected
they would be creating an entirely new criminal offense.
      3.3.4. Absurd Consequences
       Nor does treating section 23105 as a sentencing provision
lead to absurd consequences that the Legislature could not
possibly have intended.
       If section 23105 is a sentencing provision, a defendant who
drives recklessly may be charged with only one count of reckless
driving—regardless of how many people he injures—because he
has committed only one criminal act. Yet he is also subject to a
great-bodily-injury enhancement for each otherwise unaccounted-
for victim. (People v. Oates (2004) 32 Cal.4th 1048.) If section
23105 is a substantive offense, on the other hand, each infliction
of great bodily injury represents a distinct criminal act—so a
defendant whose driving injures multiple people may be charged
with as many counts of reckless driving as there are injured
victims. (People v. Cook (2015) 60 Cal.4th 922, 934–937 (Cook).)7


7In examining vehicular manslaughter in Cook, the Supreme Court
held that section 12022.7, subdivision (g), did not apply to




                               31
       To illustrate the difference, imagine, for example, that the
defendant in this case, a first-time offender, had collided with a
gasoline tanker instead of a passenger sedan and had seriously
injured 50 people rather than two. If section 23105 is a
sentencing provision, defendant would be charged with one count
of felony reckless driving—one strike offense for his one act of
criminal recklessness—and 49 enhancements for the 49 other
people he hurt. But if section 23105 is a substantive offense,
defendant would be charged instead with 50 counts of reckless
driving causing great bodily injury—50 strikes for his one act of
criminal recklessness.
       The Legislature plainly did not contemplate such a result.
As enacted, section 23105 was conduct-focused—not victim-
specific. The purpose of the bill was to “increase traffic safety by
reducing the number of drivers engaging in motor vehicle speed
contests and reckless driving.” (Bus., Trans., and Housing
Agency, Enrolled Bill Rep. on Assem. Bill No. 2190 (2005–2006
Reg. Sess.) Sept. 5, 2006, p. 1; accord, e.g., id., at pp. 2–3
[describing penalties]; Off. of Planning and Research, Enrolled
Bill Rep. on Assem. Bill No. 2190 (2005–2006 Reg. Sess.) Aug. 29,
2006, p. 2 [“Stiff penalties are crucial in order for law


manslaughter even if the enhancement involved injuries to a different
victim than the victim of the substantive offense. (Cook, supra, 60
Cal.4th at p. 936.) Nevertheless, it found “nothing absurd in charging
and punishing a defendant separately for whatever crimes that
defendant committed against separate victims.” (Ibid.) Thus, the
“prosecution can charge a defendant for each manslaughter the
defendant committed and, if appropriate, for crimes committed against
surviving victims, and the court can sentence the defendant for each
crime against separate victims for which the defendant is convicted to
the extent the sentencing laws permit.” (Ibid.)




                                  32
enforcement to curb the very dangerous problem of reckless
driving and drag racing. … This bill seeks to deter this highly
dangerous behavior by increasing penalties”].)
       As discussed above, the list of injuries was added to the bill
to narrow its scope to address the Senate’s concerns about
whether a first offense for reckless driving should ever be treated
as a wobbler. As such, the injuries represented an objective
measure of seriousness—a Legislative determination of the
circumstances under which reckless driving is egregious enough
to warrant a felony sentence for a first-time offender. Treating
the provision as a substantive offense would undermine that
intent by subjecting a first-time offender to multiple felonies
rather than just one.
       We recognize that our interpretation of section 23105 could
lead to sentencing disparities wherein defendants convicted of
multiple counts of vehicular manslaughter receive shorter
aggregate terms than defendants convicted of a single count of
reckless driving with multiple great-bodily-injury enhancements.
(See Cook, supra, 60 Cal.4th at pp. 936–938.) Yet “it appears that
no interpretation of [S]ection 12022.7, subdivision (g), is
guaranteed to eliminate all possible anomalies.” (Id. at p. 938;
see, e.g., Harmelin v. Michigan (1991) 501 U.S. 957, 998–1001
(conc. opn. of Kennedy, J.) [noting inevitable sentencing
vagaries].) Nor is the disparity substantial enough to warrant a
different statutory construction. (See California School
Employees Assn. v. Governing Bd. of South Orange County
Community College Dist. (2004) 124 Cal.App.4th 574, 588 [“We
must exercise caution using the ‘absurd result’ rule; otherwise,
the judiciary risks acting as a ‘ “super-Legislature” ’ by rewriting
statutes to find an unexpressed legislative intent.”].)




                                 33
      Because section 23105 is not a substantive offense and
great bodily injury is not an element of section 23103, we
conclude Section 12022.7, subdivision (g), does not apply.
Accordingly, defendant’s sentence is authorized.
4.    The court properly imposed the high term.
      Defendant contends the evidence did not support the
court’s decision to impose the high term in this case. His claim is
premised on an outdated version of the Determinate Sentencing
Law, and we find no abuse of discretion.
      4.1.   The issue is cognizable on appeal.
       The People contend defendant has forfeited this claim by
failing to object to the court’s sentencing choices below. We
disagree.
       Defense counsel filed a sentencing brief that listed
mitigating factors supporting a grant of probation, included
letters seeking leniency, and attached evidence of defendant’s
work history and current health problems; arranged for in-court
statements from character witnesses; and argued at the
sentencing hearing that the maximum six-year term was too
high. Counsel’s arguments made it clear that defendant objected
to imposition of the high term in this case. Because the trial court
was fully apprised of defendant’s contention that a six-year
prison term was inappropriate—and the reasons for that
contention—an express objection was not required. (People v.
Downey (2000) 82 Cal.App.4th 899, 909, fn. 4 [“Given defense
counsel’s vigorous argument that the court should reinstate
probation and not impose any other sentence, there was no
waiver of this issue for purposes of appeal.”]; Mundy v. Lenc
(2012) 203 Cal.App.4th 1401, 1406–1407 [trial court “had the




                                34
benefit” of appellant’s briefs, which “raised the points he asserts
on appeal,” and plainly rejected those arguments].) Thus, the
issue is cognizable on appeal despite the lack of an express
objection below. (Ibid.; accord, People v. Sandoval (2007) 41
Cal.4th 825, 837, fn. 4 (Sandoval) [objection would have been
futile].)8
      4.2.   Legal Principles
      California’s Determinate Sentencing Law (DSL) specifies
three possible terms of imprisonment for most offenses—a low
term, a middle term, and an upper term. Before 2007, the middle
term was the presumptive sentence: the court could impose the
upper or lower term only if it found circumstances in aggravation
or mitigation—and the court had to determine the facts
supporting those circumstances by a preponderance of the
evidence. (Sandoval, supra, 41 Cal.4th at p. 836.) Inexplicably,
both defendant and the People base their arguments on this
version of the DSL.
      In Cunningham, the United States Supreme Court held
that such judicial fact finding violated the Sixth Amendment.
(Cunningham v. California (2007) 549 U.S. 270, 274, 281; see
Apprendi v. New Jersey (2000) 530 U.S. 466, 490; Blakely v.
Washington (2004) 542 U.S. 296, 299, 303–304.) In response, the
California Legislature did away with the midterm presumption
and granted trial courts discretion to impose any of the three
possible terms without engaging in additional fact finding. (See


8 We note that even if defendant had forfeited the issue below, we
would exercise our discretion to consider it on appeal to forestall a
later claim of ineffective assistance of trial counsel. (People v. Beltran,
supra, 82 Cal.App.4th at p. 697, fn. 5.)




                                    35
Stats. 2007, ch. 3, § 1.) As amended, the DSL provides, “When a
judgment of imprisonment is to be imposed and the statute
specifies three possible terms, the choice of the appropriate term
shall rest within the sound discretion of the court. … The court
shall select the term which, in the court’s discretion, best serves
the interests of justice. The court shall set forth on the record the
reasons for imposing the term selected … .” (Pen. Code, § 1170,
subd. (b).) Thus, under the amended DSL, though the court must
“specify reasons for its sentencing decision,” it is no longer
“required to cite ‘facts’ that support its decision or to weigh
aggravating and mitigating circumstances. [Citations.]”
(Sandoval, supra, 41 Cal.4th at pp. 846–847.) Nor must the
court’s reasons be supported by a preponderance of the evidence.
       Instead, in “exercising his or her discretion in selecting one
of the three authorized terms of imprisonment referred to in
section 1170(b), the sentencing judge may consider circumstances
in aggravation or mitigation, and any other factor reasonably
related to the sentencing decision. The relevant circumstances
may be obtained from the case record, the probation officer’s
report, other reports and statements properly received,
statements in aggravation or mitigation, and any evidence
introduced at the sentencing hearing.” (Cal. Rules of Court, rule
4.420(b).)
       This “evaluation of the relative weight of aggravating and
mitigating circumstances is not equivalent to a factual finding.”
(People v. Black (2007) 41 Cal.4th 799, 814, fn. 4.) As long as “a
defendant is eligible for the upper term by virtue of facts that
have been established consistently with Sixth Amendment
principles” (id. at p. 813), “a trial court is free to base an upper
term sentence upon any aggravating circumstance that the court




                                 36
deems significant, subject to specific prohibitions. [Citations.] The
court’s discretion to identify aggravating circumstances is
otherwise limited only by the requirement that they be
‘reasonably related to the decision being made.’ [Citation.]”
(Sandoval, supra, 41 Cal.4th at p. 848.)
      4.3.   The court did not abuse its discretion.
       We review sentencing decisions for abuse of this broad
discretion. (Sandoval, supra, 41 Cal.4th at p. 847.) “The trial
court’s sentencing discretion must be exercised in a manner that
is not arbitrary and capricious, that is consistent with the letter
and spirit of the law, and that is based upon an ‘individualized
consideration of the offense, the offender, and the public interest.’
[Citation.]” (Ibid.) To prevail on appeal, the party attacking the
sentence must show the court’s decision was irrational or
arbitrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th
968, 977–978; People v. Giminez (1975) 14 Cal.3d 68, 72.)
       Here, the sentencing decision was neither irrational nor
arbitrary. The court was statutorily permitted to sentence
defendant to the high term. The trial court expressly recognized
that authority, and on the record clearly weighed and delineated
the reasons behind the sentence. (See People v. Quintanilla
(2009) 170 Cal.App.4th 406.) For example, the court concluded
that defendant displayed callous disregard for life when, as a law
enforcement officer, he saw Jessica screaming inside a burning
car yet failed to call 911; instead, he called his fiancée. (Cal.
Rules of Court, rule 4.421(a)(1).) The court also emphasized that
defendant’s consistent failure—including at sentencing—to take
responsibility for the crash, insistence on blaming Jessica for
causing it, and adamance that he hadn’t driven recklessly
indicated that he had still not learned how to pass properly and




                                 37
was likely to put the public in danger again in the future. 9 (Id.,
rules 4.408, 4.421(c).) Weighing against these factors—and
others—the court considered defendant’s sentencing materials
and various mitigating circumstances such as his lack of a
criminal record.
      Defendant has not established that the court exceeded the
bounds of reason in imposing the upper term.
5.    Any error in assessing defendant’s presumptive
      probation eligibility was harmless.
       Defendant argues the matter must be remanded for
resentencing because the court acted under the mistaken belief
he was presumptively ineligible for probation. We need not reach
that issue because any error was harmless.
       Normally, “a discretionary sentencing decision rendered by
a judge who did not understand what he [or she] was doing would
not be sustainable as a proper exercise of discretion.” (In re Large
(2007) 41 Cal.4th 538, 550.) Here, however, the record
affirmatively demonstrates that the court would not have granted
probation even if it were aware of the full scope of its discretion.
(People v. McVey (2018) 24 Cal.App.5th 405, 418; People v.
Ferguson (2011) 194 Cal.App.4th 1070, 1092 [even assuming trial
court erred in concluding defendant was statutorily ineligible for



9 For instance, in his sentencing statement, defendant said “there was
nothing on that road that day that showed that there was a problem
for me to pass. Everything was fine.” Also: “I wasn’t driving reckless
that night. It just happened,” and he hoped Jessica and Carlos could
“forgive me [for] anything that they believe I did.” And, though he
insisted, “I never blamed Jessica for crashing into me,” he repeatedly
emphasized that she hit him.




                                  38
probation, denial of probation was not an abuse of discretion
where court expressed other valid reasons for its choice].)
       First, the court explained, “The court is aware … [that]
under unusual circumstances, [the Penal Code] does permit the
court to allow probation. I do not find this case [is] in any way,
shape, or form the kind of case that the court would find an
unusual circumstance. I’m making it abundantly clear. This is
not a probationary [case] at this point, and I’ll explain the
purposes for my sentence in just a minute.” The court’s comments
indicate not only that it did not believe this was an unusual case,
but also that it did not believe probation would be appropriate
under any circumstances—a view the court went on to explain in
detail.
       For example, when addressing defendant’s decision to call
his fiancée rather than 911, the court noted, “I realize there were
other people there and you may not have been able to pull
[Jessica] out of that [burning] car, but you made no effort to even
move towards the car to try to help. And she could see you.
There’s no doubt in my mind that you could … see her. And she
was screaming. And the … citizens there that came to her aid
saw her and heard her, and they came to her aid. And the first
thing you did was think about yourself by calling your girlfriend.
That is [callous] disregard for human life, in my opinion. They’re
lucky they didn’t die out there that night.”
       The court explained that while defendant saw himself as a
victim, “You are not. You caused everything that night. You
alone. Not Jessica. Not the roadway.” Defendant’s failure to
acknowledge this fact told the court that “if you were in the same
situation, you would do it again ’cause you still, as we sit here
today, do not see that as reckless, sir. I don’t know what you’re




                                39
thinking. You absolutely made a conscious choice to drive into
oncoming traffic.” Moreover, “based on what the witnesses were
saying, you had more than enough room to move back into your
lane, and you chose not to. You decided to keep going. You almost
killed this entire family.”
       The court described defendant’s attitude throughout the
trial as expressing “disgust” rather than “compassion,” and
concluded, “[a]sking for second chances, the difference is when
you’re done with your sentence, you will move on with your life.
This family will forever suffer from your actions. I wish they had
the opportunity just to ride it out for a couple of years and go on
with their lives and have it all put back in place. They will not
get that, and you will. [¶] So with respect to the sentencing,
probation is hereby denied.”
       Second, as discussed, the court had the discretion to
sentence defendant to 16 months, two years, or three years for
count 1. In choosing to impose the high term, the court identified
several aggravating factors, including defendant’s failure to
render aid, his lack of any remorse, and his consistent effort to
blame Jessica for the crash.
       “In light of the trial court’s express consideration of the
factors in aggravation and mitigation, its pointed comments on
the record, and its deliberate choice of the highest possible
term …, there appears no possibility that, if the case were
remanded, the trial court would exercise its discretion” to grant
probation in this case. (People v. McVey, supra, 24 Cal.App.5th at
p. 419.) “We therefore conclude that remand in these
circumstances would serve no purpose but to squander scarce
judicial resources.” (Ibid.)




                                40
                      DISPOSITION

    The judgment is affirmed.



      CERTIFIED FOR PARTIAL PUBLICATION



                                    LAVIN, Acting P. J.
WE CONCUR:



    EGERTON, J.



    DHANIDINA, J.




                            41
