Filed 6/3/15 P. v. Vasquez CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,

                   Plaintiff and Respondent,                                                 C076705

         v.                                                                      (Super. Ct. No. 11F04453)

AZALIA MONTEZ VASQUEZ,

                   Defendant and Appellant.

         Defendant Azalia Montez Vasquez appeals from the judgment entered following
her no contest plea to driving under the influence (DUI) causing bodily injury (Veh.
Code, § 23153, subd. (a)), driving with a blood-alcohol content of 0.08 percent or more
causing bodily injury (Veh. Code, § 23153, subd. (b)), felony hit and run (Veh. Code,
§ 20001, subd. (a)), and misdemeanor driving with a suspended or revoked license (Veh.
Code, § 14601.1, subd. (a)). Defendant also admitted she personally inflicted great




                                                             1
bodily injury upon Patrick Smith (Pen. Code, § 12022.7, subd. (a))1 and drove with a
blood-alcohol concentration above 0.15 percent (Veh. Code, § 23578).
       The trial court denied probation and sentenced defendant to serve five years
in state prison. Defendant contends: (1) her sentence must be vacated and the matter
remanded for resentencing because the trial court erroneously believed defendant was
statutorily ineligible for probation; (2) the trial court abused its discretion by imposing
a consecutive, rather than concurrent, sentence for felony hit and run because the acts
were committed in a continuous course of conduct; (3) the trial court erred in imposing
a $390 fine pursuant to Vehicle Code section 23550; and (4) the trial court’s imposition
of restitution and parole revocation fines in the amount of $240 each pursuant to
sections 1202.4 and 1202.45 must be reduced to the statutory minimum of $200.
       We conclude the trial court erroneously believed defendant was statutorily
ineligible for probation and remand for resentencing. Based on the record, we conclude
the trial court did not abuse its discretion by imposing a consecutive term for felony hit
and run. As to the $390 Vehicle Code fine, we strike the fine because defendant did not
meet the criteria. With regard to the restitution and parole revocation fines, we conclude
defendant has forfeited her contention because she failed to object in the trial court.
Accordingly, we remand for resentencing and strike the $390 fine. In all other respects,
the conviction and judgment are affirmed.
                                      BACKGROUND
       On June 19, 2011, at around 7:00 p.m., witness Shelby Simmons was driving on
Fair Oaks Boulevard with a passenger, Alex Whitten. Simmons saw defendant’s car
leave the parking lot of an apartment complex and make a left turn onto Fair Oaks



1      Undesignated statutory references are to the Penal Code.


                                              2
Boulevard, nearly colliding with Simmons’s car. A short time later, Simmons saw
defendant swerve into the bicycle lane on Fair Oaks Boulevard. Simmons also saw
Patrick Smith, the victim, walking in the bicycle lane.
       Moments later, Simmons saw defendant swerve into the bicycle lane again and hit
Smith, sending him flying into the air. Defendant did not stop, but continued driving
down Fair Oaks Boulevard.
       Simmons stopped his car and instructed his passenger, Whitten, to stay with
Smith, who was seriously injured. Simmons then followed defendant to a nearby gas
station. Simmons confronted defendant, and told her she needed to return to the scene of
the accident. Defendant agreed to follow Simmons back to the scene. When they
arrived, however, defendant looked in Smith’s direction and continued driving down Fair
Oaks Boulevard.
       Simmons’s passenger, Whitten, saw defendant pull into an apartment complex on
Fair Oaks Boulevard. Whitten found defendant’s car in a parking stall and noticed the
car’s shattered windshield.
       A California Highway Patrol officer arrived at the apartment complex a short time
later. When the officer contacted defendant, he noticed a strong odor of alcohol. He also
noticed objective signs of intoxication, including red and watery eyes and slurred speech.
A blood test taken approximately three hours after the collision revealed defendant’s
blood-alcohol content was 0.16 percent.
       The victim, Smith, spent more than two weeks in the hospital. He suffered a flail
chest, several rib fractures, a humerus fracture, and a collapsed lung.2




2    A flail chest is a life threatening injury where segments of the rib cage break and
become detached from the chest wall.


                                             3
         On September 29, 2011, defendant was charged by amended complaint (later
deemed an information) with four counts as follows: (1) driving under the influence and
causing bodily injury to Smith (count 1; Veh. Code, § 23153, subd. (a)); (2) driving with
a blood-alcohol content of .08 percent or more causing bodily injury (count 2; Veh. Code,
§ 23153, subd. (b)); (3) felony hit and run (count 3; Veh. Code, § 20001, subd. (a)); and
(4) misdemeanor driving with a suspended or revoked license (count 4; Veh. Code,
§ 14601.1, subd. (a)). With respect to counts 1 and 2, the prosecution alleged defendant
personally inflicted great bodily injury upon Smith (§ 12022.7, subd. (a)). With respect
to count 2, the prosecution alleged defendant drove with a blood-alcohol concentration
above 0.15 percent (Veh. Code, § 23578).
         Defendant pled not guilty and was held to answer on all charges. On August 23,
2012, defendant failed to appear for her trial readiness conference and a bench warrant
was issued for her arrest. Defendant was reapprehended approximately eight months
later.
         On January 21, 2014, defendant pled no contest to all charges and admitted all of
the special allegations. In entering her pleas, defendant agreed to “plead to the sheet,”
with no agreement as to sentence.
         Defendant appeared for sentencing on April 25, 2014. In anticipation of the
sentencing hearing, the probation department prepared a report stating, “The defendant is
not eligible for probation pursuant to . . . Section 1203(e)(3), unless the Court finds
unusual circumstances warranting a grant of probation.” The probation department found
no such unusual circumstances. Although the probation department believed defendant
presented a “low risk to reoffend,” the department recommended an aggregate term of
four years four months in state prison in light of the nature and seriousness of the crime




                                              4
and the fact defendant had sustained a prior conviction for DUI in 1998. (Veh. Code,
§ 23152, subd. (a).)
       The probation department also reported the victim, Smith, was still receiving
medical treatment for injuries sustained in the incident. According to the probation
department, Smith was not interested in making a victim impact statement, but hoped
defendant “gets into a rehabilitation program and gets the help she needs.”
       The prosecution submitted a sentencing memorandum noting defendant was
eligible but not suitable for probation given the seriousness of the crime, defendant’s
prior DUI conviction, and the fact she absconded for eight months. The prosecution
recommended an aggregate term of five years eight months in state prison.
       Defendant, through her counsel, submitted a “response to probation report and
recommendation” urging the trial court to impose the judgment recommended by the
probation department, but suspend execution and grant defendant formal probation to
allow her to participate in a one-year residential program for substance abuse called Teen
Challenge.
       At the sentencing hearing, the trial court provided a detailed analysis of the facts
in determining whether to grant or deny probation. After commending the victim for
his compassion, understanding, and desire that defendant enter a rehabilitation program,
the trial court started its analysis by stating, “when I step back and try to reach a
disposition of this case that is fair, not only to [the victim], but to the community in
which we live, there are a number of problematic issues here that I wrestled with in
terms of getting to where I am today. [¶] The first of those is the obvious fact that this is
not your first venture into the issue of driving under the influence. As [the prosecutor]
alluded, you have a 1998 conviction for DUI. [¶] And certainly, I understand the desire
for a residential rehab program to address the substance abuse issues. It’s hard to argue




                                               5
that that doesn’t have a logical role to play in terms of the Court’s response to this
particular incident involving you and [the victim]. But it would be certainly -- from
my perspective, it would have been far better for you to have taken the rehabilitation
program after the ’98 incident instead of waiting until the horrific 2011 incident that
brings us here today. The delay in recognizing the severity of your alcohol issue is
significant for me.”
       The trial court went on to say, “The second thing -- I have to revisit it, because I
think [the prosecutor] is 100 percent right in addressing it. And that is your conduct after
the initiation of this case causes considerable concern for me in terms of your alleged
commitment to going through a program. And I refer specifically to the fact that you
were in abscond for seven to eight months after that Trial Readiness Conference was
scheduled and you failed to appear. [¶] At no time until law enforcement, essentially,
hunted you down and brought you back into the court system did you undertake any type
of rehabilitation program. At no time did you consensually turn yourself in to the Court
to face the consequences of your conduct involving this incident with [the victim]. And
on top of which, not only did you disappear, but you were found in a position continuing
to hide at the time law enforcement came and found you at your mother’s residence. [¶]
None of [this] speaks well for you in terms of offering up a commitment to change, a
commitment to sacrifice, a commitment to assuming responsibility for the conduct
relative to the event that brings you here today.”
       The trial court continued, “So it is also a difficult prospect when I have to balance
issues of mercy and forgiveness versus justice because they tend to run in opposite
directions. Certainly, [the victim] is taking the position that he is willing to concede that
this Court has the ability to and could place you in a residential program whose focus is
rehabilitation and forego, from his perspective, the imposition of a very significant




                                              6
penalty in terms of state prison. That would be the road of mercy and forgiveness. [¶]
But this community, and acting on their behalf, and standing in the place of [the victim]
today, I don’t believe that that’s justice. I don’t believe that it’s compensatory for the
injury that was inflicted upon [the victim] and the utter agony that he’s going to go
through for the balance of his life to allow you to walk out of this courtroom today,
essentially, free of any fetters, and with a threat of some future incarceration if you fail in
this program.”
       The trial court urged defendant to seek treatment for alcohol abuse, but added that,
“I have to tell you, I do believe that justice demands imposition of a very significant
penalty because I think it speaks clearly to the community’s condemnation of your
conduct, and it speaks to the issue of how significant it has been to one single member of
the community, to wit: [the victim], in terms of his life-long struggle to now deal with
the consequences of your conduct, not his conduct. [¶] He was simply walking on the
side of the street when you ran him over. So I cannot find the way down the path that
[defense counsel] points me toward. It is my intention to impose a state prison
commitment.”
       The trial court continued, “I do happen to intend to find a middle ground between
that which the People are asking for and that which Probation has recommended, but I
would further note that even Probation, understanding that you were willing to commit
yourself to this Teen Challenge Program rejected that in their perspective and suggested
to the Court that it impose a state prison commitment. [¶] So having said that, I will
make the note at the outset that you are not eligible for probation, and that is pursuant to
. . . section 1203(e)(3), which makes you probation ineligible because of the infliction of
great bodily injury unless this Court were to find unusual circumstances warranting a
grant of probation.”




                                               7
       The trial court concluded, “I do not find those unusual circumstances, and deny
probation. Not only because of the totality of the circumstances involved in this case,
particularly, because you do have this prior history, the DUI that went unattended in
terms of necessity of reconstructing your behavior patterns as they involve themselves
with alcohol, and further because of the high blood alcohol contents that you were found
with at the time of this particular incident, to wit: [¶] Your alcohol -- your blood alcohol
level was .16, which is double the legal limit that we all are familiar with here in the State
of California.”
       Accordingly, the trial court denied probation and sentenced defendant to serve five
years in state prison as follows: (1) the low term of one year four months for count 1
(Veh. Code, § 23153, subd. (a)), with an additional three years for the great bodily injury
enhancement (§ 12022.7, subd. (a)); (2) one year four months for count 2, stayed
pursuant to section 654; (3) eight months for count 3 (Veh. Code, § 20001, subd. (a)), to
be served consecutively; and (4) 30 days for count 4 (Veh. Code, § 14601.1, subd. (a)),
deemed served. With respect to the sentence for count 3, the trial court explained: “I
impose the consecutive sentence under [California Rules of Court3] [r]ule 4.425(a)(1),
finding that the crimes in Count One and Count Three and their objectives were
predominantly independent of each other.”
       The trial court also assessed various fees and fines, including a $390 fine pursuant
to Vehicle Code section 23550, a $240 restitution fine pursuant to section 1202.4, and a
$240 parole revocation fine pursuant to section 1202.45. With respect to the foregoing
fines, the trial court stated, “It is further the judgment and sentence of this Court that you
are ordered to pay a fine of $390, a restitution fine set in the minimum amount of $240.



3      Undesignated rule references are to the California Rules of Court.


                                              8
An additional restitution fine in the same amount is imposed but suspended and will
remain suspended unless and until your parole is revoked.”
       Defendant filed a timely notice of appeal.
                                       DISCUSSION
                                               I
                                    Denial of Probation
       Defendant contends she is entitled to a new sentencing hearing because the trial
court erroneously believed she was presumptively ineligible for probation. We agree.
       All defendants are eligible for probation, in the discretion of the sentencing
court, unless a statute provides otherwise. (People v. Aubrey (1998) 65 Cal.App.4th
279, 282.) Some statutes bar probation absolutely, while others provide that a defendant
is ineligible except in unusual cases where the interests of justice would be served.
(Ibid.) Here, the trial court apparently relied on the probation report to conclude
section 1203, subdivision (e)(3), rendered defendant ineligible for probation absent
unusual circumstances.
       Section 1203, subdivision (e), provides: “Except in unusual cases where the
interests of justice would best be served if the person is granted probation, probation
shall not be granted to any of the following persons: [¶] . . . [¶] (3) Any person who
willfully inflicted great bodily injury or torture in the perpetration of the crime of
which he or she was convicted.” By its terms, section 1203, subdivision (e)(3), renders
a defendant conditionally ineligible for probation only when there has been a finding
the injury was willful, i.e., intentional. (§ 1203, subd. (e)(3); People v. Lewis (2004)
120 Cal.App.4th 837, 854.) Here, though defendant admitted she personally inflicted
great bodily injury upon Smith (§ 12022.7, subd. (a)), she did not admit Smith’s
injuries were willfully inflicted, and no such finding was ever made. Thus, the trial




                                               9
court erred in concluding defendant was presumptively ineligible for probation. (Lewis,
at p. 854.)
       We next consider whether the trial court’s application of an erroneous standard
of probation eligibility entitles defendant to a new sentencing hearing. Where, as here,
“the sentencing court bases its determination to deny probation in significant part upon
an erroneous impression of the defendant’s legal status, fundamental fairness requires
that the defendant be afforded a new hearing and ‘an informed, intelligent and just
decision’ on the basis of the facts. [Citation.]” (People v. Ruiz (1975) 14 Cal.3d 163,
168; see also People v. Sherrick (1993) 19 Cal.App.4th 657, 661; People v. Manriquez
(1991) 235 Cal.App.3d 1614, 1620.) Thus, we must remand for resentencing if the
record demonstrates the trial court’s error played a significant part in the denial of
probation.
       The People concede the trial court’s error, but argue remand is not required,
because “the record shows that the court did not rely solely or even significantly on its
error in deciding to deny probation and impose a prison sentence.” We do not think the
record is so clear. Although the trial court focused on the prevalence of aggravating
factors and expressed an intention “to impose a state prison commitment,” the court
also expressly invoked the presumptive ineligibility standard of section 1203,
subdivision (e)(3), and stated its decision was based on the absence of unusual
circumstances that would warrant granting probation. Had the trial court merely
discussed aggravating factors, without tying them to section 1203, subdivision (e)’s
unusual circumstances requirement, we might have accepted the People’s contention
that the court’s error was not a significant factor in the decision to deny probation.
However, the trial court’s reference to section 1203, subdivision (e)(3), suggests the
court may have denied probation, not because aggravating factors made defendant an




                                             10
unsuitable candidate, but because those factors demonstrated the absence of unusual
circumstances. On this record, we cannot say the trial court’s error was not a significant
factor in the decision to deny probation.
       The People also argue remand is not required, because there is no reasonable
probability the court would have granted probation under the appropriate standard. We
decline to apply a harmless error analysis. (See People v. Sherrick, supra,
19 Cal.App.4th at p. 661 [“[w]e cannot ‘save’ the judgment on a harmless error analysis.
While the offenses were undoubtedly serious, the trial court’s comments unquestionably
demonstrate that it was laboring under a false impression of appellant’s legal status”].)
As noted, remand is required when the sentencing court bases its determination to deny
probation “in significant part” upon an erroneous impression of the defendant’s legal
status. (People v. Ruiz, supra, 14 Cal.3d at p. 168; see also People v. Alvarez (2002)
95 Cal.App.4th 403, 409 [remand for resentencing required due to mistaken application
of § 1203, subd. (e)(2)]; People v. Manriquez, supra, 235 Cal.App.3d at p. 1620 [remand
for resentencing required due to mistaken application of § 1203, subd. (e)(1)].) Here, the
record demonstrates the trial court misunderstood the scope of its discretion, and may
have relied upon the error to deny probation. A new sentencing hearing is therefore
necessary for the trial court to consider defendant’s probation request under the
appropriate legal standard. (People v. Downey (2000) 82 Cal.App.4th 899, 912
[“[w]here, as here, a sentence choice is based on an erroneous understanding of the law,
the matter must be remanded for an informed determination”].)
                                             II
                          Consecutive Sentence for Hit and Run
       Defendant contends the trial court abused its discretion in imposing a consecutive
sentence for the felony hit and run conviction. Specifically, she argues the trial court




                                             11
abused its discretion in finding the DUI causing bodily injury and felony hit and run
offenses were “predominantly independent of each other” because they “occurred at the
same time and involved only one victim.” She also argues her blood alcohol content was
such that she could not have formed separate objectives with respect to the two crimes.
We are not persuaded.
       A trial court has broad discretion to determine whether sentences are to run
concurrently or consecutively. (People v. Scott (1994) 9 Cal.4th 331, 349, 351.) We will
not disturb the trial court’s determination absent a clear showing of abuse. (People v.
Bradford (1976) 17 Cal.3d 8, 20.) An abuse of discretion is shown when the trial court
exceeds the bounds of reason, all circumstances being considered. (Ibid.)
       The criteria applicable to the trial court’s discretion are set forth in rule 4.425,
which states that in imposing a consecutive sentence the trial court may consider:
(1) whether the “crimes and their objectives were predominantly independent of each
other”; (2) whether the “crimes involved separate acts of violence or threats of violence”;
and (3) whether the “crimes were committed at different times or separate places, rather
than being committed so closely in time and place as to indicate a single period of
aberrant behavior.” (Rule 4.425(a)(1)-(3).) These criteria are not exclusive. Rule
4.408(a) states: “The enumeration in these rules of some criteria for the making of
discretionary sentencing decisions does not prohibit the application of additional criteria
reasonably related to the decision being made. Any such additional criteria must be
stated on the record by the sentencing judge.”
       Although defendant’s crimes occurred at the same time and involved a single
victim, the trial court could nevertheless conclude they were predominantly independent
of each other. As the People observe, DUI causing bodily injury and felony hit and run
are separate and distinct criminal acts. (See People v. Butler (1986) 184 Cal.App.3d 469,




                                              12
473-474 [for purposes of section 654, subdivision (a), vehicular manslaughter and felony
hit and run are separate and independent criminal acts involving different states of mind
and objectives]; see also People v. Jones (2012) 54 Cal.4th 350, 358.) The criminal act in
DUI causing bodily injury is driving under the influence of alcohol and causing bodily
injury to another person. (Veh. Code, § 23153, subd. (a).) By contrast, “ ‘[t]he gravamen
of a [Vehicle Code] section 20001 offense . . . is not the initial injury of the victim, but
leaving the scene without presenting identification or rendering aid.’ [Citation.]”
(People v. Harbert (2009) 170 Cal.App.4th 42, 59.) “Although a violation of [Vehicle
Code] section 20001 is popularly denominated ‘hit-and-run,’ the act made criminal
thereunder is not the ‘hitting’ but the ‘running.’ ” (People v. Corners (1985) 176
Cal.App.3d 139, 148.) Thus, DUI causing bodily injury and felony hit and run are
separate and independent crimes, even when they happen to occur at the same time and
involve a single victim.
       We reject defendant’s challenge to the sufficiency of the evidence underlying the
trial court’s determination the crimes were predominantly independent, including her
claim she was too drunk to form separate objectives with respect to the two crimes.
Defendant admitted the elements of two separate and independent crimes involving
different states of mind and objectives when she entered her no contest plea. (In re
Chavez (2003) 30 Cal.4th 643, 649; People v. Butler, supra, 184 Cal.App.3d at pp. 473-
474). Having done so, defendant waived any challenge to the sufficiency of the evidence
on appeal. (People v. Voit (2011) 200 Cal.App.4th 1353, 1364.) We therefore conclude
the record supports the trial court’s determination defendant’s crimes were predominantly
independent of each other, and find no abuse of discretion.




                                              13
                                              III
                             Vehicle Code Section 23550 Fine
       Next, defendant contends the trial court erred in imposing a $390 fine pursuant to
Vehicle Code section 23550. The People concede the error. We have reviewed the
record and agree with the parties.
       Vehicle Code section 23550, subdivision (a), provides in pertinent part: “If a
person is convicted of a violation of Section 23152 and the offense occurred within 10
years of three or more separate violations of . . . Section 23152 . . . that resulted in
convictions, that person shall be punished by . . . a fine of not less than three hundred
ninety dollars ($390) nor more than one thousand dollars ($1,000).” The record indicates
defendant sustained one prior DUI conviction in 1998. There is nothing in the record to
suggest defendant sustained three or more prior DUI convictions within the last 10 years,
as required to support the imposition of a fine pursuant to Vehicle Code section 23550.
Accordingly, we strike the fine.
                                              IV
                         Restitution and Parole Revocation Fines
       Finally, defendant challenges the trial court’s imposition of restitution and parole
revocation fines in the amount of $240 each pursuant to sections 1202.4 and 1202.45,
respectively. Defendant argues both fines must be reduced to $200, the applicable
statutory minimum at the time defendant committed her crime in June 2011. (Stats.
2010, ch. 351, § 9, eff. Sept. 27, 2010 [former § 1202.4, subd. (b)(1)].) Defendant
maintains the record demonstrates the trial court intended to impose the statutory
minimum.
       During the sentencing hearing, the trial court stated, “you are ordered to pay . . . a
restitution fine set in the minimum amount of $240. An additional restitution fine in the




                                              14
same amount is imposed but suspended and will remain suspended unless and until your
parole is revoked.” Given the trial court’s statement, the People agree the restitution and
parole revocation fines should be reduced from $240 to $200.
       Claims of error relating to sentences permitted by law but “imposed in a
procedurally or factually flawed manner” are forfeited if not objected to in the trial court.
The “unauthorized sentence exception” is a narrow exception to the forfeiture doctrine
that applies where the sentence could not lawfully be imposed under any circumstances
in a particular case. (People v. Garcia (2010) 185 Cal.App.4th 1203, 1218; People v.
Scott (1994) 9 Cal.4th 331, 353-354.)
       Here, the sentence was “imposed in a procedurally or factually flawed manner”
because the trial court made a mistake in assuming the minimum fine was $240 rather
than $200.4 While the result was a slight increase to defendant’s restitution fine over her
actual minimum fine, the fine imposed was within the statutory range and no one
objected to the amount of the fine imposed. Based on the record, we conclude
defendant’s claim of error is forfeited.
                                       DISPOSITION
       The conviction is affirmed. The sentence is vacated and the case is remanded to
the trial court for resentencing in accordance with this opinion. Following the
resentencing hearing, the clerk of the superior court is directed to prepare an amended
abstract of judgment striking the $390 fine pursuant to Vehicle Code section 23550.
The clerk is further directed to forward copies of the amended abstract of judgment




4       At the time of defendant’s offense, former section 1202.4, subdivision (b)(1),
required the sentencing court to order every person convicted of a felony to pay a
restitution fine of at least $200, and no more than $10,000. (Stats. 2010, ch. 351, § 9.)


                                             15
to the Department of Corrections and Rehabilitation. In all other respects, the
judgment is affirmed.



                                                       HOCH         , J.



We concur:



  NICHOLSON , Acting P. J.



      BUTZ        , J.




                                            16
