Filed 9/26/16 P. v. Ragsdale 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                                           F069654
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. MCR044276)
                   v.

GARY RAGSDALE,                                                                           OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Madera County. Mitchell C.
Rigby, Judge.

         Nuttall & Coleman and Roger T. Nuttall 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, Amanda D.
Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                                INTRODUCTION
         On February 19, 2014, defendant Gary Ragsdale waived his constitutional rights
and pled no contest to allegations he committed gross vehicular manslaughter while
intoxicated (upon Gary Smalz) (Pen. Code,1 § 191.5, subd. (a)) and inflicted great bodily
injury (upon Laura Smalz) (§ 12022.7, subd. (a)). On May 5, 2014, the trial court denied
defendant probation and sentenced him to a prison term of four years for gross vehicular
manslaughter while intoxicated, a consecutive term of three years for the great bodily
injury enhancement, for a total term of seven years. Defendant obtained a certificate of
probable cause.
       On appeal, defendant contends the trial court erred in applying the great bodily
injury enhancement because it is inapplicable to gross vehicular homicide, and the court
erred in not striking the enhancement during sentencing. Defendant further argues the
trial court erred in failing to consider probation as an option because defendant was not
ineligible for probation as a matter of law under section 1203 and the trial court clearly
misunderstood its sentencing discretion. Additionally, defendant contends the trial court
erred during sentencing in considering the level of his intoxication.
       The People concede defendant could not legally have committed great bodily
injury and argue defendant’s issue concerning the trial court failing to exercise its
discretion to strike the enhancement is moot. The People argue, inaccurately, that
defendant forfeited his argument that the trial court misunderstood its sentencing
discretion under section 1203, and further state the trial court did not abuse its sentencing
discretion. We find error on both of these issues, reverse the true finding for the great
bodily injury enhancement, and remand the case for a new sentencing hearing.
                                             FACTS
       On May 19, 2012, defendant made a left-hand turn into a parking lot near Road
600 and Avenue 31 in Madera County. He did so in front of a motorcycle ridden by Gary
and Laura Smalz. Defendant’s passenger, Laurana Renee Abshire, shouted to defendant,
“[T]here’s a bike!” Defendant hit the motorcycle. Gary and Laura Smalz died from the
injuries they sustained in the collision. After the accident, the California Highway Patrol

       1Unless   otherwise designated, statutory references are to the Penal Code.

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officer investigating the accident noticed defendant’s breath smelled like alcohol.
Defendant admitted drinking four or five beers. Defendant failed the field sobriety test
and had a blood-alcohol level of 0.20 percent.
                                      DISCUSSION
1.     Section 12022.7 Enhancement
       Defendant contends he could not be convicted of only a great bodily injury
enhancement for Laura Smalz because such enhancements do not apply to convictions for
murder or manslaughter as held by the California Supreme Court in People v. Cook
(2015) 60 Cal.4th 922, 924 (Cook). The People concede error.
       The defendant in Cook committed gross vehicular manslaughter, killing three
victims and seriously injuring a fourth. The trial court imposed sentences for the
manslaughter convictions for each of the three victims who died, as well as a great bodily
injury enhancement for a victim who survived. No other charges or enhancements were
charged concerning the surviving victim. (Cook, supra, 60 Cal.4th at pp. 924-925.) The
court found the defendant’s convictions for manslaughter were not subject to a great
bodily injury enhancement, reasoning the plain language of subdivision (g) of section
12022.7 states the section does not apply to murder or manslaughter. (Cook, supra, at pp.
924, 935.)
       Although the People could have charged defendant with gross vehicular
manslaughter for the death of Laura Smalz, they did not do so. Had the People filed such
a charge, defendant would not be subject to a great bodily injury enhancement for the
manslaughter of Laura Smalz. By not filing an allegation of gross vehicular
manslaughter for the death of Laura Smalz, however, the People are not entitled under the
reasoning of Cook to charge defendant and have him sentenced only on a great bodily
injury enhancement that is otherwise not attached to a substantive offense because
enhancements are different from substantive crimes. Enhancements focus on aspects of




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the criminal act that are not always present but warrant additional punishment. (People v.
Ahmed (2011) 53 Cal.4th 156, 163.)
       We agree with the People’s concluding point that although the section 12022.7
enhancement is inapplicable to this case, on remand the trial court may reconsider
defendant’s sentence, subject to the limitation defendant’s sentence cannot exceed the
trial court’s original sentence. (People v. Savala (1983) 147 Cal.App.3d 63, 69,
disapproved on other grounds in People v. Foley (1985) 170 Cal.App.3d 1039, 1044.)
The true findings and sentence for great bodily injury based on section 12022.7,
subdivision (a) are reversed.
2.     Section 1203 Error
       On appeal, defendant contends the trial court abused its discretion by refusing to
grant probation. He argues his case presented the statutorily required unusual
circumstances and further claims the court failed to consider, or give proper weight to,
various relevant criteria and factors. The People reply defendant forfeited the issue by
failing to raise it to the trial court, and the trial court did not abuse its sentencing
discretion. Both parties now agree the statute does not apply. The People argue
resentencing is not required because the trial court has already rejected defendant’s
request for probation on other grounds. In fairness to both parties, and to ensure the trial
court properly exercises its sentencing discretion, we reverse the trial court’s sentence
and remand for a new sentencing hearing.
       A.      Sentencing Hearing
       The probation officer’s report prepared for the sentencing hearing noted twice, and
inaccurately, that defendant was presumptively ineligible for probation under section
1203, subdivision (e) because he willfully inflicted great bodily injury. At the sentencing
hearing on May 5, 2014, defense counsel failed to argue this error. Instead, counsel
argued this case presented unusual circumstances and sought to have the trial court strike
the great bodily injury enhancement. The trial court rejected defense counsel’s argument


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section 12022.7 was inapplicable to vehicular manslaughter while intoxicated and refused
to strike the enhancement.
       Defendant called several witnesses who testified concerning his sobriety, his
involvement with Alcoholics Anonymous, his good job history, and his remorse for
killing the victims. Defendant also submitted dozens of letters from friends, family
members, teachers, and employers attesting to his good character. On an assessment
scale of risk to reoffend, the probation officer evaluated defendant’s risk to reoffend at 2
out of 34, a very low risk to reoffend. Defendant had no history of illegal drug use. The
court stated defendant was presumptively ineligible for probation, this was not a case
where the evidence overcame that presumption, and defendant was “ineligible for
probation pursuant to … [s]ection 1203, subdivision (e) … (3).”
       The court noted defendant expressed remorse, and the court believed he would do
so for the rest of his life. The court found defendant’s blood-alcohol content had been
0.19 percent or greater. The court found no facts indicating the two victims in any way
contributed to the accident, and the defendant had no past criminal record. The defendant
also made some restitution to the victim. The court stated it did “not believe that
probation is appropriate in this circumstance. Even if there were no limitation with
regard to the Court’s ability to grant that, I do not believe in this particular circumstance
that probation is appropriate.” The court sentenced defendant to a prison term of four
years for violating section 191.5, subdivision (a), and to a consecutive term of three years
for the section 12022.7, subdivision (a) enhancement.
       Defendant filed a petition to recall the sentence, arguing section 1203, subdivision
(e)(3) did not create a statutory presumption against imposition of probation because his
conduct was not willful as a matter of law. On August 26, 2014, after a brief hearing, the
trial court summarily denied defendant’s motion to recall his sentence.




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       B.     Analysis
       We initially reject the People’s argument defendant has forfeited this issue.
Although defendant did not raise this point at the original sentencing hearing, he did file a
timely motion to recall his sentence and argued the point to the trial court. The trial court
ruled on defendant’s petition and we have a record to review on appeal.
       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 has been convicted.” (Italics added.)
A defendant falling within the statute’s provisions is presumptively ineligible for
probation. (People v. Stuart (2007) 156 Cal.App.4th 165, 177; see People v. Tang (1997)
54 Cal.App.4th 669, 678-679.)
       Under subdivision 1 of section 7, “[t]he word ‘willfully,’ when applied to the
intent with which an act is done or omitted, implies simply a purpose or willingness to
commit the act, or make the omission referred to. It does not require any intent to violate
law, or to injure another, or to acquire any advantage.” Thus, “[c]ourts have concluded
the word ‘willfully’ implies no evil intent but means the person knows what he or she is
doing, intends to do it and is a free agent. Usually the word ‘willfully’ defines a general
intent crime unless the statutory language requires an intent to do some further act or
achieve some future consequence. [Citation.]” (People v. Lewis (2004) 120 Cal.App.4th
837, 852 (Lewis).) As the California Supreme Court has recognized, however, the
meaning of the term varies, depending on the statutory context. (People v. Garcia (2001)
25 Cal.4th 744, 753.)
       In Lewis, the defendant was convicted of assaulting a child with force likely to
produce great bodily injury, resulting in death. (§ 273ab.) On appeal, he argued the trial
court erred by finding him presumptively ineligible for probation under section 1203,
subdivision (e)(3), as that statute’s restriction on the granting of probation applied only to

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those who intended to inflict great bodily injury and not to those whose criminal acts
merely resulted in great bodily injury. (Lewis, supra, 120 Cal.App.4th at pp. 842, 850-
851.) The Court of Appeal agreed, reasoning:

               “The word ‘willfully’ as generally used in the law is a synonym for
       ‘intentionally,’ i.e., the defendant intended to do the act proscribed by the
       penal statute. Section 1203, subdivision (e)(3), so read requires the
       defendant intentionally inflicted great bodily injury or torture in the
       commission of the crime. The section describes no initial act, e.g., willfully
       strikes, or willfully burns, resulting in some required particular result, e.g.,
       great bodily injury, the burning of some particular type of property. When
       the structure of a section requires a willful act followed by some particular
       result, then it is reasonable to read the willful, i.e., intentional, element as
       referring only to the initial act and not to the ultimate result. In such
       sections the word ‘willfully’ does not require the defendant intend the
       ultimate result, only that he or she intended the initial act. [Citation.]

               “The word ‘willfully’ in section 1203, subdivision (e)(3), does not
       follow this act/result form. It refers merely to a result, i.e., the infliction of
       great bodily injury. Given this structure of the section, we conclude the
       only reasonable reading of it is the word ‘willful’ requires the defendant’s
       intent to cause great bodily injury or torture, not merely that the crime
       resulted in great bodily injury or torture. [Citation.]

               “This interpretation of section 1203, subdivision (e)(3), is supported
       by a comparison of its language with that of the enhancement for the
       infliction of great bodily injury contained in section 12022.7, subdivision
       (a). Section 12022.7 requires a person ‘personally inflict great bodily
       injury’ on another in the commission or attempted commission of a felony.
       Unlike section 1203, subdivision (e)(3), it does not require that the
       infliction be willful. The section has been interpreted to require only a
       general criminal intent, i.e., the defendant need not intend great bodily
       injury result, the only intent required is that for the underlying felony.
       [Citations.]

               “The inclusion of the word ‘willfully’ in section 1203, subdivision
       (e)(3), suggests that the Legislature meant the section to be applicable not
       merely when great bodily injury is the result of a crime but, rather, when
       the defendant intended to cause great bodily injury.” (Lewis, supra, 120
       Cal.App.4th at pp. 852-853, fns. omitted.)
       The reasoning in Lewis is applicable to this case and, accordingly, defendant was
not presumptively ineligible for probation. Although by pleading no contest and

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admitting the enhancement allegations defendant admitted his act of driving drunk
proximately caused great bodily injury to the victims, there was no suggestion in the
evidence or finding by the court that he intentionally caused the accident with the other
vehicle or intentionally inflicted such injury on his victims.
       Defendant presented many arguments in favor of probation. Although the trial
court indicated it would have still sentenced defendant to prison, a new sentencing
hearing is required to permit the court to address defendant’s application for probation
“under a proper understanding of the rules governing its sentencing discretion” (People v.
Garrett (1991) 231 Cal.App.3d 1524, 1529) and taking into account the pertinent facts
and circumstances in light of defendant’s “true legal status” (People v. Ruiz (1975) 14
Cal.3d 163, 168, fn. 5; People v. Manriquez (1991) 235 Cal.App.3d 1614, 1620).
       Because the People also seek a new sentencing hearing, we find no harm in
allowing defendant to reargue to the trial court why it should consider probation because
defendant is not presumptively ineligible for probation as originally accepted by the
probation officer, the prosecutor, and the trial court.
3.     Consideration of Defendant’s Blood-alcohol Level
       Defendant finally argues the trial court erred in considering his blood-alcohol
level, a 0.20 percent, pursuant to Vehicle Code section 235782 because he did not plead
guilty to a violation of Vehicle Code sections 23152 or 23153, the sections referenced in
Vehicle Code section 23578. Vehicle Code section 23578 acts as a sentencing guideline
and does not reference Penal Code section 191.5. Section 191.5, subdivision (a),
however, expressly references and incorporates by reference Vehicle Code sections
23152 and 23153. It states, in relevant part, “[g]ross vehicular manslaughter while

       2Vehicle Code section    23578 states in relevant part: “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, …
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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intoxicated is the unlawful killing of a human being without malice aforethought, in the
driving of a vehicle, where the driving was in violation of Section 23140, 23152, or
23153 ….” In entering his plea of no contest to a violation of section 191.5, subdivision
(a), defendant was further admitting he was intoxicated within the meaning of Vehicle
Code section 23152. We reject defendant’s argument Vehicle Code section 23578 is
inapplicable to his no contest plea.
       Defendant further argues his elevated blood-alcohol level was a fact not proven
beyond a reasonable doubt. We also reject this contention. Defendant failed to object to
the probation officer’s reference to his blood-alcohol level in the probation report. We
agree with the People’s assertion defendant forfeited this point by failing to raise it
below. (See People v. Smith (2001) 24 Cal.4th 849, 853; see also People v. Scott (1994)
9 Cal.4th 331, 353.)
       Defendant ignores the fact he and the prosecutor stipulated to a factual basis to the
plea based on the law enforcement reports prior to pleading no contest to the allegations
in the information. The probation officer’s report appears to be based on the report of the
investigating California Highway Patrol officer, who noted defendant’s blood-alcohol
level was 0.20 percent. Defendant failed to object to this piece of evidence either during
the change of plea hearing or during the sentencing hearing, and he did not raise the issue
of discrepancies between the highway patrol officer’s report and the probation officer’s
report. The probation officer’s report noted defendant’s blood-alcohol level was 0.15
percent or more as a special factor in aggravation and specifically cited Vehicle Code
section 23578. The report further noted defendant’s blood-alcohol level was 0.20. No
objections were raised to these representations. There is no merit to defendant’s
contentions on this issue.
       We agree with the People the trial court’s refusal to strike the great bodily injury
enhancement is moot in light of our analysis this enhancement is inapplicable to




                                              9.
defendant. In light of this case being remanded for resentencing, we also find
defendant’s allegation of cumulative error to be moot.
                                     DISPOSITION
       Defendant’s conviction for gross vehicular manslaughter while intoxicated is
affirmed. The sentence is vacated and the matter is remanded for resentencing. Except
for the limitation that the court not impose a longer prison term than the original sentence
of seven years, we express no view on how the court should exercise its discretion on the
question of probation or the appropriate prison term if probation is denied.


                                                         ___________________________
                                                                             PEÑA, J.
WE CONCUR:


 __________________________
DETJEN, Acting P.J.


 __________________________
SMITH, J.




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