Filed 4/26/16 P. v. Valentine CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


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

THE PEOPLE,
                                                                                           F069751
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F11902713)
                   v.

MICHAEL LEE VALENTINE,                                                                   OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Don Penner,
Judge.
         Elizabeth M. Campbell, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Gregory
B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Gomes, Acting P.J., Detjen, J. and Peña, J.
          Appellant Michael Lee Valentine pled no contest to gross vehicular manslaughter
while intoxicated (Pen. Code, § 191.5, subd. (a)). On appeal, he contends the court
committed sentencing error. We affirm.
                                           FACTS
          On May 13, 2011, Sara Stilwell drove Michaela Agabashian to pick up Valentine
outside a comedy club in Fresno. Stilwell asked Valentine to drive her car. He drove to a
parking lot where they all smoked marijuana. Valentine then drove to a liquor store and
bought a “big handle of Captain Morgan” rum before driving everyone to his house.
          While Stilwell got ready in the bathroom, Valentine sat with Agabashian at a table
drinking. Valentine’s mother allowed Stilwell to drink at the house because Stilwell lied
about her age. She did not allow Agabashian to drink because Agabashian told her that
she was only 19 years old. Valentine’s mother also lectured the trio on the dangers of
drinking and driving and told them she was worried they could get in an accident because
an acquaintance of hers had a child “in a very similar situation.” To allay the concerns of
Valentine’s parents, Stilwell asked Agabashian if she was going to drive and Agabashian,
who did not know how to drive, falsely stated she would so Valentine’s parents would
think Agabashian, who was not drinking, was the designated driver. However once they
were in the car, Agabashian started drinking because everyone “wanted to get drunk that
night.”
          Valentine drove to the Tower District and by that time, he “was already driving
kinda crazy.” After Valentine parked the car, the trio encountered Tyler Arrow riding his
bike and Arrow invited them to a party in Kerman. After the trio agreed to go, Arrow
rode his bike to his sister’s house, which was “really close” to the Tower District.
Valentine drove to pick up Arrow, and drove the group towards Kerman. However, they
ended up in the country unable to find the party. During that time Valentine began
driving so fast that he frightened Agabashian and she “started crying and freaking out.”
Valentine’s driving also angered Stilwell and she made Valentine stop the car. Everyone

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“stumbled” out of the car but eventually they “all stumbled back into the car” and
Valentine continued driving.
       After locating the party and spending some time there, Valentine began driving
back to Fresno with Stilwell seated in the front passenger’s seat and Agabashian seated in
the back seat. Arrow, who had passed out on a couch, stayed at the party. By that time,
they were all “really drunk.”
       As they headed back to Fresno with Stilwell asleep in the front seat, Valentine
began driving at over 100 miles per hour with the radio blaring, which scared Agabashian
and she began arguing with him and asking him to slow down. Valentine stopped the car
and asked Agabashian what she was yelling about. However, after she kept yelling at
him, he started the car and continued driving fast. At 2:30 a.m. Agabashian was talking
on her cell phone with Ashley Kerns and passed the phone to Valentine. Kerns asked
Valentine to stop driving but he just laughed and handed the phone back to Agabashian.
The last thing Agabashian remembered before the crash was seeing a telephone pole in
front of them and screaming, “Watch out for that pole[!]” The car then ran off the road at
an excessive speed and overturned several times. A blood draw from Valentine obtained
within three hours of the accident indicated that his blood alcohol content (BAC) was .16
percent when drawn and that he had marijuana in his system.
       Stilwell was not wearing a seatbelt and was ejected from the car. She died on
May 28, 2011, from traumatic brain injury. Agabashian survived the accident but broke
her mandible and suffered a concussion.
       On July 15, 2014, the court sentenced Valentine to prison for the upper term of 10
years. In imposing the upper term the court stated:

               “The court makes a finding that there . . . is a mitigating factor here
       in that the defendant does not have a significant prior record. There is an
       indication in the probation report of the wrongful use of marijuana, not too
       long before that had something to do with his service in the military but the
       court does make a finding so that the record’s clear that there [is a]


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       mitigating circumstance[] here of an insignificant record. I don’t make any
       other mitigating circumstance findings so that the record’s clear, in
       particular I’m not making a finding of an early stage disposition.

               “In aggravation, the court in my opinion, there are three significant
       aggravating factors. The attempts by the victims in this case to try to
       persuade the defendant to stop driving in the erratic manner that he drove,
       the fact that there is another victim that was not pled to, the second victim
       in this case [Agabashian] who suffered injury, the District Attorney
       reserved the right to comment on that injury. I find that to be an
       aggravating factor and then finally the blood alcohol level. . . . Vehicle
       Code Section 23578[1] specifically tells the court to take into
       consideration—both for purposes of probation and for aggravation, the fact
       that a blood alcohol level is a .15 or higher as it was in this particular
       case. . . . The court also makes a finding that the aggravating circumstances
       outweigh the one mitigating circumstance in this case.”
       Defense counsel did not object to any of the aggravating circumstances the court
relied on to impose the upper term.
                                       DISCUSSION
       Valentine contends the court improperly found aggravating factors based on his
elevated BAC and his continued driving after being told to stop by passengers and other
people because these circumstances were part of the gross negligence that elevated his
manslaughter offense to a more serious offense. Although section 235782 allows the
court to base an aggravating factor on an elevated BAC, Valentine contends the court
erroneously relied on that section to find an aggravating factor because gross vehicular
manslaughter is not listed in that section as one of the offenses to which it applies.
Valentine also contends these issues have not been forfeited because defense counsel


1      All further statutory references are to the Vehicle Code.
2      Section 23578 provides: “In addition to any other provision of this code, if a
person is convicted of a violation of Section 23152 or 23153, the court shall consider a
concentration of alcohol in the person’s blood of 0.15 percent or more, by weight, or the
refusal of the person to take a chemical test, as a special factor that may justify enhancing
the penalties in sentencing, in determining whether to grant probation, and, if probation is
granted, in determining additional or enhanced terms and conditions of probation.”


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objected to “use of several factors underlying gross negligence to impose the upper
term.” Alternatively, he contends he was denied the effective assistance of counsel if he
forfeited this issue by his defense counsel’s failure to object to the court’s reliance on
these factors. Finally, Valentine contends he was prejudiced by the consideration of
these factors because the court did not indicate that one of the factors was weighed more
heavily than the others and it stated at the onset of the hearing that it was a close call
between the middle term and the aggravated term. We conclude Valentine forfeited his
challenge to these two aggravating circumstances by his failure to object. Alternatively,
we conclude that the court did not abuse it discretion when it relied on the two
circumstances at issue to impose the aggravated term and that Valentine was not denied
the effective assistance of counsel.
       In People v. Scott (1994) 9 Cal.4th 331 (Scott), the Supreme Court held that a
criminal defendant who fails to object to a “trial court’s failure to properly make or
articulate its discretionary sentencing choices” cannot raise the claim for the first time on
appeal. (Id. at p. 353.) Forfeited challenges are those that “involve sentences which,
though otherwise permitted by law, were imposed in a procedurally or factually flawed
manner.” (Id. at p. 354.) The claim that the sentencing court relied on inappropriate
factors to impose the aggravated term is a claim that the court “fail[ed] to properly make
. . . [a] discretionary sentencing choice[].” (Id. at p. 353.) Since Valentine failed to
object to the asserted errors in the trial court, under Scott, his claim of error is forfeited.
(Cf. People v. Kelley (1997) 52 Cal.App.4th 568, 581-582 [under Scott, the claim that the
trial court failed to consider circumstances in mitigation may not be raised for the first
time on appeal].)
       As previously stated,Valentine contends he did not forfeit this issue because
defense counsel objected to the use of several factors “underlying gross negligence” to
impose the upper term. We disagree.



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       Defense counsel challenged the weight the court gave Valentine’s failure to heed
his passengers’ warnings to stop when he argued that although Valentine failed to stop
when asked to do so, “those comments were made right before impending danger.”
However, he did not object to the court finding an aggravating circumstance based on his
failure to heed these warnings or argue that it was improper to use it as an aggravating
factor because it was one of the facts that supported a finding of gross negligence. Nor
did he object to or make any argument against the court considering his elevated BAC as
a factor in aggravation. Thus, under Scott, Valentine’s claim of error is forfeited.
However, even if Valentine’s claim were properly before us, we would find no error.
       Penal Code section 1170 affords a trial court broad discretion in imposing
sentence. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) “[D]iscretion is abused
whenever the court exceeds the bounds of reason, all of the circumstances being
considered. [Citations.]” (People v. Giminez (1975) 14 Cal.3d 68, 72.) “[A] trial court
will abuse its discretion . . . if it relies upon circumstances that are not relevant to the
decision or that otherwise constitute an improper basis for decision. [Citations.]”
(People v. Sandoval, supra, 41 Cal.4th at p. 847.) Absent a clear showing of abuse, a
trial court’s discretion in sentencing will not be disturbed on appeal. (People v. Sanchez
(1982) 131 Cal.App.3d 718, 740.) Moreover, a sentencing court is presumed to have
acted properly, absent a clear showing that its sentence choice is arbitrary or irrational.
(People v. Hubbell (1980) 108 Cal.App.3d 253, 260.)
       “The statutes and sentencing rules generally require the court to state ‘reasons’ for
its discretionary choices on the record at the time of sentencing. [Citations.]” (Scott,
supra, 9 Cal.4th at p. 349.) “Such reasons must be supported by a preponderance of the
evidence in the record and must ‘reasonably relat[e]’ to the particular sentencing
determination. [Citations.]” (Id. at pp. 349-350, fn. omitted.) “[I]n assessing factors in
aggravation or in mitigation the sentencing court not only may but must examine all of
the circumstances of the crime. [Citations.] ‘[T]he “circumstances” the sentencing judge

                                               6.
may look to in aggravation or in mitigation of the crime include “attendant facts,” “the
surroundings at the commission of an act.” [Citation.] “Circumstances” include
“practically everything which has a legitimate bearing” on the matter in issue.
[Citations.]’ [Citation.]” (People v. Blade (1991) 229 Cal.App.3d 1541, 1544.)
         As this court has explained, because “[n]either [Penal Code] section 1170 nor the
California Rules of Court attempt to provide an inclusive list of aggravating
circumstances. . . . a trial court is free to base an upper term sentence upon any
aggravating circumstance that (1) the court deems significant and (2) is reasonably
related to the decision being made. [Citations.]” (People v. Moberly (2009) 176
Cal.App.4th 1191, 1196.) In this respect, “[t]he essence of ‘aggravation’ relates to the
effect of a particular fact in making the offense distinctively worse than the ordinary.”
(People v. Moreno (1982) 128 Cal.App.3d 103, 110.) A single appropriate factor is
sufficient to support an aggravated term. (People v. Forster (1994) 29 Cal.App.4th 1746,
1759.)
         Gross negligence can be shown by the overall circumstances of the defendant’s
intoxication and the manner in which the defendant drove. (People v. Von Staden (1987)
195 Cal.App.3d 1423, 1428.) “[O]ne who drives with a very high level of intoxication is
indeed more negligent, more dangerous, and thus more culpable than one who drives near
the legal limit of intoxication, just as one who exceeds the speed limit by 50 miles per
hour exhibits greater negligence than one who exceeds the speed limit by 5 miles per
hour.” (Ibid.) Gross negligence can also be shown by the failure to heed warnings not to
drive intoxicated. (Ibid.)
         In People v. Castorena (1996) 51 Cal.App.4th 558 (Castorena), the defendant was
convicted of gross vehicular manslaughter and sentenced to the aggravated term. (Id. at
pp. 559-560.) On appeal, he argued that “because gross negligence is established from
all ‘relevant aspects of [a] defendant’s conduct resulting in the fatal accident’ [citation]
there were no remaining facts for the court to use to aggravate his sentence.” (Id. at

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p. 562.) In rejecting this contention, the Castorena court stated, “[California Rules of
Court r]ule 420(d) provides, ‘A fact that is an element of the crime shall not be used to
impose the upper term.’ However, where the facts surrounding the charged offense
exceed the minimum necessary to establish the elements of the crime, the trial court can
use such evidence to aggravate the sentence. [Citation.]” (Ibid., italics added.)
       “It is generally held that mere speed, of itself, does not constitute wil[l]ful
misconduct. This may not always be true. There may be a point at which the speed
becomes so excessive, the danger of injury to the passenger so probable, that such
extreme speed alone might be held to be wil[l]ful misconduct.” (Fisher v. Zimmerman
(1937) 23 Cal.App.2d 696, 701-702.) It follows a fortiori that excessive speed alone may
also constitute gross negligence. (Hallman v. Richards (1954) 123 Cal.App.2d 274, 278
[“wil[l]ful misconduct means something different from and more than negligence,
however gross”].)
       The trial court reasonably could have concluded that driving at a speed exceeding
100 miles per hour, as Valentine did before the crash, was sufficient to establish he was
grossly negligent. Further, Valentine’s elevated BAC, which was at least twice the legal
limit when the crash occurred, and his failure to heed warnings not to drive while
intoxicated and the passengers’ directives to stop each made his conduct “ ‘ “distinctively
worse” ’ ” (People v. Black (2007) 41 Cal.4th 799, 817) than if he had just been speeding
excessively. Therefore, since the circumstances here “exceed the minimum necessary to
establish the elements of the crime” (Castorena, supra, 51 Cal.App.4th at p. 562), the
court did not abuse its discretion when it found aggravating circumstances based on these
circumstances and imposed the aggravated term.3



3      In view of this conclusion, we need not decide whether section 23578 allowed the
court to find an aggravating circumstance based on Valentine’s high BAC even though
Penal Code section 191.5 is not listed as one of the code sections to which it applies.


                                              8.
       “A defendant claiming ineffective assistance of counsel under the federal or state
Constitutions must show both deficient performance under an objective standard of
professional reasonableness and prejudice under a test of reasonable probability of a
different outcome. [Citation.]” (People v. Osband (1996) 13 Cal.4th 622, 664.)
       Had defense counsel objected to the court’s use of the two aggravating
circumstances Valentine now complains of, his objection would have been overruled
because there was no legal basis for such an objection. Further, since defense counsel is
not required to make frivolous objections (People v. Price (1991) 1 Cal.4th 324, 387) he
did not provide ineffective representation by his failure to object to the court’s use of
these circumstances to impose the aggravated term. Nor was Valentine prejudiced by
counsel’s failure to object. Accordingly, we reject Valentine’s ineffective assistance of
counsel claim because he has not shown deficient performance by defense counsel or
prejudice.
                                      DISPOSITION
       The judgment is affirmed.




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