Filed 5/20/14 P. v. Verdugo CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 8.111.5.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B248870
                                                                           (Super. Ct. No. KA096643)
                  Plaintiff and Respondent,                                  (Los Angeles County)

v.

ENRIQUE GUERRERO VERDUGO,

                  Defendant and Appellant.



                      Enrique Guerrero Verdugo appeals his six-year prison sentence following a
plea of no contest to vehicular manslaughter with gross negligence. (Pen. Code, § 192,
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subd. (c)(1).) Appellant contends that the trial court abused its discretion in not granting
probation or imposing a lesser sentence. We affirm.
                                         Facts and Procedural History
                      Appellant entered a change of plea after the jury deadlocked in the first
trial. It was stipulated that the trial court could consider the preliminary hearing
transcript, the trial transcript, and the probation report as the factual basis for the plea.
The prosecutor and appellant filed sentencing memos summarizing the following
testimony in the first trial. (§ 1170, subd. (d).)



1
    All statutory references are to the Penal Code unless otherwise stated.
              On October 5, 2011, appellant ran a red light in his 2011 Chevrolet
Silverado truck and struck and killed Loida Torres who was driving northbound on
Hamilton Boulevard in Pomona. Traveling eastbound on Second Street, appellant
entered the intersection and struck Torres' Buick on the driver's side. The posted speed
limit was 35 miles per hour and the road was slick from a light rain. Moments after the
collision, a motorist (Matilda Diaz) saw appellant talking on a cell phone and walking in
circles around his truck. Appellant said "fuck" repeatedly and did not try to render aid to
the victim.
              Pomona Police Officer Michael Vandenberg investigated the traffic fatality
and determined that appellant was driving 73 miles per hour. There were no skid marks.
              The record shows that appellant owned a local auto body shop and was
familiar with the area. Thirty minutes before the collision, tow truck driver Shane
Warren saw appellant stop at the red light at Hamilton Boulevard and Second Street.
Appellant had a cup of coffee in his hand, hit the steering wheel with his hands, and was
waiving his arms like he was really mad. Revving the truck engine, appellant accelerated
suddenly, spinning the truck tires through the intersection against the red light. The light
turned green when appellant was three-quarters through the intersection.
              Filberto Berden, who worked at an auto parts store on Hamilton Boulevard,
testified in the first trial that appellant drove every day on Hamilton Boulevard at 70 to 75
miles per hour. Before the collision, Berden told appellant to slow down otherwise
someone would die. Appellant answered, "trucks are designed to run." On the day of the
collision, Berden saw appellant screech his truck tires out of a coffee shop parking lot.
              On October 13, 2011, eight days after the fatal collision, appellant received
a speeding ticket. Appellant was driving 60 miles per hour in a 35 mile per hour zone at
Hamilton Boulevard and Orange Grove Avenue, about .7 miles from the collision scene.
                                   Upper Term Sentence
              Appellant claims that the trial court abused it discretion in imposing a six-
year upper term sentence. Appellant forfeited the error by not objecting at the sentencing



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hearing. (People v. Scott (1994) 9 Cal.4th 331, 353, 356. People v. Brown (2000) 83
Cal.App.4th 1037, 1041-1042.)
              On the merits, appellant makes no showing that the sentence is arbitrary or
capricious. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) Sentencing courts have
wide discretion in weighing aggravating and mitigating factors and may balance them
against each other in qualitative as well as quantitative terms. (People v. Avalos (1996)
47 Cal.App.4th 1569, 1582.) A trial court may base an upper term sentence upon any
aggravating circumstance the court deems significant. (People v. Sandoval, supra, 41
Cal.4th at p. 848.)
              Here the probation report listed five aggravating factors and no mitigating
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factors. Appellant's prior convictions as an adult were numerous and of increasing
seriousness. In 1998, he was convicted of transporting/selling narcotics (Health & Saf.
Code, § 11352) and received a suspended sentence and probation. Appellant violated
probation and was sentenced to three years prison. In 1990, he was paroled, violated
parole, and returned to state prison.
              In 2010, appellant was convicted of an auto repair estimate violation (Bus.
& Prof. Code, § 9884.9), granted probation, and violated probation. In 2011, appellant
was convicted of spousal battery (§ 243, subd. (e)(1)) and obstructing a police officer (§
148, subd. (a)(1)) and granted probation. Appellant violated probation when he
committed the current offense.
              The trial court found that appellant's criminal record and failed attempts at
parole and probation "shows a certain contempt for the rule of law." We concur. Lack of




2
 The listed factors in aggravation are: (1) the crime involved great bodily harm or a high
degree of callousness; (2) appellant's prior convictions as an adult were numerous or of
increasing seriousness; (3) appellant had served a prior prison term; (4) appellant was on
probation when the crime was committed; and (5) appellant's prior performance on
probation or parole was unsatisfactory. (Cal. Rules of Court, rule 4.421(a)(1) and rule
4.421(b)(2)-(4).)


                                             3
remorse is a valid aggravating factor where the defendant denied guilt and the evidence is
overwhelming. (People v. Holguin (1989) 213 Cal.App.3d 1308, 1319.)
              The trial court found that appellant "ran a red light the morning of the
death at the same intersection. He . . . was warned to slow down, that he could kill
somebody . . . . That puts [appellant] on notice of the danger of speed, particularly when
there's reduced visibility or slick pavements. Which we certainly had." The trial court
found that appellant "was on notice of the danger and persisted in similar [dangerous]
behavior relating to his driving. That persistence constitutes an intentional act, [a]
conscious decision to continue that kind of behavior."
              A single factor in aggravation is sufficient to justify an upper term
sentence. (People v. Holguin, supra, 213 Cal.App.3d at p. 1319; People v. Piceno (1987)
195 Cal.App.3d 1353, 1360.) Appellant's citation of People v. Dozier (1979) 90
Cal.App.3d 174 is misplaced because there was no dual use of facts to impose an upper
term and add a sentence enhancement. Appellant claims that the trial court could not
impose an upper term because gross negligence was manifested in all aspects of the
traffic fatality. Where, however, "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.]" (People v. Castorena (1996) 51
Cal.App.4th 558, 562 [upper term imposed in gross vehicular manslaughter case].)
              Appellant's wanton and reckless driving caused the death of an innocent
motorist. His conduct " 'exceeded even the word gross.' " (Ibid.) Before the traffic
fatality, appellant was warned to slow down and that he could kill someone. Appellant
did not listen. Thirty minutes before the collision, a tow truck driver saw appellant
accelerate suddenly through the intersection against a red right.
              Appellant argues that the trial court abused its discretion in not granting
probation but probation is an act of clemency and grace, not a matter of right. (People v.
Giordano (2007) 42 Cal.4th 644, 663, fn. 7.) The record amply supports the trial court's
decision to deny probation and impose an upper six-year term which was based on an
individualized consideration of the offense, the offender, and public safety. (People v.


                                              4
Sandoval, supra, 41 Cal.4th at p. 847.) Absent a showing that the sentence is irrational or
arbitrary, it is presumed that the trial court acted to achieve legitimate sentencing
objectives. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831-822.)
              The judgment is affirmed.
              NOT TO BE PUBLISHED.



                                                          YEGAN, J.
We concur:


              GILBERT, P.J.


              PERREN, J.




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                                 Bruce F. Marrs, Judge

                         Superior Court County of Los Angeles

                         ______________________________


             Mario L. Acosta, under appointment by the Court of Appeal, for Defendant
and Appellant.


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M.
Roadarmel, Jr. , Supervising Deputy Attorney General, Daniel C. Chang, Deputy
Attorney General, for Plaintiff and Respondent.




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