Filed 11/20/15 P. v. Trujillo 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068133
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF136687A)
                   v.

APRIL CRYSTAL TRUJILLO,                                                                  OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Eric Bradshaw,
Judge.
         Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Michael A. Canzoneri, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
         April Crystal Trujillo (Trujillo) appeals from her felony convictions for causing
bodily injury while driving under the influence of alcohol and driving with a blood
alcohol content of 0.08 percent or more. Trujillo ran a red light while so impaired and hit
another car, seriously injuring its three occupants.
       Trujillo argues the trial court should have excluded her admission to an
investigating officer that she was driving the vehicle at fault because the officer did not
provide required Miranda1 warnings when questioning her. We find no error because
Trujillo had previously waived her rights in response to a proper Miranda advisement,
and readvisement was unnecessary under the circumstances.
       Next, in challenging her sentence, Trujillo argues the trial court’s failure to order a
diagnostic evaluation pursuant to Penal Code2 section 1203.03 was an abuse of
discretion. Since the trial court had more than sufficient information to reach a just
disposition in this matter, we find no error under section 1203.03. Trujillo also argues the
court erred in denying probation and in failing to strike, pursuant to section 1385, one or
more of the great-bodily-injury enhancements the jury found to be true. Again, we find
no error because the trial court considered appropriate mitigating and aggravating factors
and reasonably declined to grant probation and to strike any of the great-bodily-injury
enhancements. Accordingly, we affirm the judgment.
                        FACTS AND PROCEDURAL HISTORY
       On May 22, 2012, Trujillo was charged by felony information with driving under
the influence of alcohol and causing bodily injury (Veh. Code, § 23153, subd. (a)) and
with driving with a blood alcohol content of 0.08 percent or more and causing bodily
injury (Veh. Code, § 23153, subd. (b)). The information also alleged, in relation to both
counts, two enhancements pursuant to Vehicle Code section 23558 (causing bodily injury
to more than one person); one enhancement pursuant to section 12022.7, subdivision (b)
(causing great bodily injury resulting in a victim becoming comatose); and three


       1Miranda   v. Arizona (1966) 384 U.S. 436.
       2Subsequent   statutory references are to the Penal Code unless otherwise noted.


                                              2.
enhancements pursuant to section 12022.7, subdivision (a) (causing great bodily injury to
an individual). Trujillo pleaded not guilty to the charges and denied the enhancements.
The case proceeded to jury trial.
       The incident underlying the charges was a two-vehicle traffic accident at the
intersection of White Lane and Gosford Road in Bakersfield. The accident occurred
about 11:45 p.m. on April 23, 2011. Trujillo was the driver and sole occupant of a white,
Ford F-150 truck. Earlier that evening, she had spent a couple of hours at a Mexican
restaurant called La Cabana, where she had eaten a few tacos and consumed five, 22-
ounce beers, four shots of liquor, and one mixed drink. She was 23 years old at the time.
       The other vehicle involved in the accident, a black Pontiac Grand Am, had three
occupants: Giovanni Perez was the driver, and Vicki Piceno and Janet Rodriguez were
passengers. The three, all teenagers, were en route to a Fastrip gas station at the
intersection of White Lane and Gosford Road, where Rodriguez was meeting her
boyfriend, Julio Garcia.
       In the moments leading up to the crash, Trujillo was driving eastbound on White
Lane, heading toward the intersection with Gosford Road. Jennifer Baker was also
driving eastbound on White Lane at the same time, going about 55 miles per hour. Baker
testified that, approximately eight-tenths of a mile from the intersection with Gosford
Road, a white pickup truck passed her “going incredibly fast.” The white truck “came
out of nowhere”; it was going “a good 70 to 80 miles an hour.” As the truck came up
behind her, it almost hit her but then “erratically moved over” to the fast lane. Baker saw
the light for eastbound traffic on White Lane, at the intersection with Gosford, was red.
She hoped the truck would not run the red light, but it did, and “there was a collision.”
       Another witness, Linda Mahan, testified that the black Grand Am was heading
westbound on White Lane. Approaching the intersection with Gosford Road, the Grand
Am stopped in the left-turn lane and waited for the turn signal to turn green in order to
turn left onto southbound Gosford. Mahan was directly behind the Grand Am; she also

                                             3.
intended to make a left turn when the turn signal changed to green. After the left-turn
signal changed to green, the Grand Am entered the intersection, followed by Mahan. The
white truck driven by Trujillo was simultaneously approaching the intersection.
Although the traffic signal was red for eastbound traffic on White Lane, the truck did not
stop. Mahan braked when she saw the truck speed into the intersection. She flashed her
lights and honked her horn to warn the driver of the Grand Am about the approaching
truck, to no avail. The truck slammed into the Grand Am with a “tremendous noise,” and
Mahan saw the latter get “pushed all the way out of the intersection.” The Grand Am
eventually came to rest against a telephone pole. Mahan could see that the truck had only
one occupant—the driver.
       Passersby rushed to the scene upon hearing the crash. One of the people who
came to the scene was Julio Garcia, Janet Rodriguez’s boyfriend, who was waiting for
her in the parking lot of the Fastrip located at the intersection. Garcia testified that he did
not immediately realize his girlfriend was in one of the cars involved in the collision. He
saw the white truck rolling to a stop; it stopped about 20 feet away from where he was
standing. He saw Trujillo exit from the driver’s-side door just before he realized that his
girlfriend was injured in the collision. His girlfriend was lying on the sidewalk, having
been flung from the Grand Am in the crash.
       Matthew LeGrand pulled up to the Fastrip parking lot at Gosford Road and White
Lane just after the collision. He testified that he saw a white truck with front-end
damage, a woman lying on the sidewalk, and the Grand Am at rest against a telephone
pole. While watching the scene, he noticed Trujillo looking in the truck, trying to find
something. She was going back and forth between the white truck and the woman lying
on the sidewalk. Eventually, she told LeGrand that she needed to reach someone and
gave him a couple of phone numbers to call. LeGrand asked her if she was okay and she
said, “no”; he also asked if she was driving and again she said, “no.”



                                              4.
       Perez, Piceno, and Rodriguez were taken for emergency medical treatment. Perez
suffered a broken collarbone, a collapsed lung, and multiple areas of bleeding into his
brain. By the time he was admitted to the hospital’s emergency department on the
morning of April 24, 2011, he was in a coma. Perez remained in a coma until the end of
June or early July 2011. At the time of trial, two years later, his condition had improved
but it was difficult for him to move and he used a wheel chair. He also had cognitive
impairment but was able to hold simple conversations. Rodriguez suffered a bruised
lung, a fractured femur, and fractures of the supporting bones for her lower-back
vertebrae. She eventually had a metal rod inserted in her leg, which caused her pain
during cold weather. Piceno suffered bruised lungs as well as fractures of her top rib on
the right side, breastbone, and the supporting bones for her lower-back vertebrae. Piceno
had ongoing difficulties with her pelvis at the time of trial.
       Bakersfield Police Officer Jerry Whisenhunt responded to the scene to conduct a
traffic investigation. Officer Whisenhunt testified that Trujillo was “hysterically upset,
crying, kept looking at the two vehicles, looking at what was going on.” He observed
that Trujillo had striations on the left side of her neck that were consistent with a “seat
belt burn” injury. Trujillo stated, “‘I was driving the white truck,’ and she pointed toward
the white truck which was on the southeast corner on the sidewalk in the grass area”; she
also told him that she was the only person in the truck.
       In talking to Trujillo, Officer Whisenhunt noted a strong odor of alcohol coming
from her breath and person; he also observed she was unsteady on her feet and had red,
watery eyes. In light of these facts, Officer Whisenhunt conducted a preliminary alcohol
screening (PAS) test on Trujillo; the test results indicated that she had a blood alcohol
concentration (BAC) of 0.26 percent. He then arrested Trujillo on suspicion of driving
under the influence of alcohol, handcuffed her, and placed her in his patrol car. Trujillo
consented to a chemical blood test, and, about 12:30 a.m. or 12:45 a.m., Officer
Whisenhunt left the scene to take her to Kern Medical Center to have her blood drawn

                                              5.
and to have her medically examined and cleared so she could be booked into the county
jail. Trujillo’s blood was drawn at 1:15 a.m.; the results of the blood test subsequently
demonstrated that Trujillo’s BAC was 0.26 percent. Officer Whisenhunt testified that,
based on his training and experience, he believed Trujillo was intoxicated at the time of
the accident.
       After Trujillo was medically cleared, Officer Whisenhunt escorted her to his patrol
car to take her to the county jail. As he sat in the driver’s seat and she in the back seat, he
advised her of her constitutional rights pursuant to Miranda and interviewed her for a
minute or two. Trujillo was not upset or crying anymore; she said she understood her
rights and agreed to talk to him. She was very cooperative and readily responded to his
questions. Trujillo admitted that she had been at La Cabana between about 8:00-8:30
p.m. and 10:00 p.m. and had drunk five beers (approximately 22 ounces each), four shots
of a liquor, and one mixed drink. She remembered leaving La Cabana and driving
eastbound on White Lane to a convenience store at White Lane and Ashe but had no
memory of leaving the store. Trujillo remembered being in a collision, but she did not
remember her direction of travel or speed, the lane she was in, whether the signal was
green or red, or any other contextual details. Officer Whisenhunt then drove Trujillo to
the Bakersfield Police Department for further questioning by Officer Daniel Wells.
Trujillo was booked into jail at 4:30 a.m.
       Bakersfield Police Officer Daniel Wells performed a collision reconstruction
investigation upon arriving at the scene at approximately 1:55 a.m. on April 24, 2011.
Officer Wells testified that he investigated the “dynamics of the crash” and was
designated as an accident reconstruction expert by the prosecution. Based on the
“damage to both vehicles and witness statements,” he concluded that the “front of the
Ford F-150 struck the right rear quarter panel of the Grand Am.” As part of his




                                              6.
investigation, he interviewed Trujillo in the “squad room” at the police department; she
was under arrest and in handcuffs at the time.3
         When Officer Wells “first made contact” with Trujillo, before he gave her
Miranda warnings, he asked her whether she was the driver of the white truck; she told
him she was. Officer Wells then gave her Miranda warnings and questioned her about
the details of the crash. Trujillo stated that she understood her rights but agreed to talk to
him. She appeared intoxicated but was able to communicate with him. She told the
officer she remembered the collision and the point of impact, but nothing before or after
that point. The interview lasted approximately one minute. In a hearing pursuant to
Evidence Code section 402, which the court conducted to clarify the timing of the
Miranda advisement given by Officer Wells, he explained that he asked Trujillo whether
she was the driver, prior to advising her of her rights, because he was merely confirming
that she was the person he needed to interview.
         Defense counsel moved to exclude Officer Wells’s testimony that Trujillo told
him she was driving the white truck. Counsel argued that Trujillo’s admission was
obtained in violation of Miranda. The court found the testimony was admissible, noting
that Trujillo’s prior waiver of rights, when questioned by Officer Whisenhunt in his
patrol car, was reasonably contemporaneous with the subsequent questioning by Officer
Wells.
         Ultimately, the jury found Trujillo guilty on both counts charged in the
information. The jury also found all the enhancements alleged in the information to be
true. Trujillo was sentenced to a total term of 13 years’ imprisonment.




         3Officer
                Wells testified that the squad room is a large room with two holding cells
and a big table with benches that are used to interview suspects.


                                              7.
                                      DISCUSSION
I.     Trujillo’s admission that she was driving the white truck was properly admitted
       Trujillo argues the trial court should have excluded evidence of her statement to
Officer Wells that she was driving the white truck at the time of the accident because
Officer Wells did not readvise her of her Miranda rights prior to questioning her. The
People respond the trial court did not err because the statement was reasonably
contemporaneous with Trujillo’s prior waiver of rights in response to Officer
Whisenhunt’s Miranda advisement, and, hence, no readvisement was required. We agree
there was no error.
       A.     Background
       The trial court held a hearing pursuant to Evidence Code section 402 to ascertain
the facts relevant to Trujillo’s admission to Officer Wells that she was driving the white
truck. Officer Wells testified at the hearing. He stated that he asked Trujillo whether she
was the driver simply to confirm that he was interviewing the correct person, not to
establish that she was in fact the driver of the white truck. He was acting on the
assumption that her status as the driver was already established, as demonstrated by the
fact she was under arrest. Thus, once he confirmed Trujillo was the driver, he advised
her of her rights under Miranda and proceeded to interview her about “the details of the
crash.” He could not recall whether Officer Whisenhunt had told him he had previously
advised Trujillo regarding her Miranda rights in his patrol car.
       The trial court summarized the issue before it as follows:

               “What I’m dealing with here is I think a fair inference based on all
       the testimony that we’ve heard here in this trial is that Officer Whisenhunt,
       in fact, Mirandized the defendant and that she waived at [Kern Medical
       Center] before they ever entered the squad room. So what I’m dealing with
       here is a circumstance where you have a new officer coming in after
       Miranda has already been—after the defendant has already consented to
       talking. [¶] He asks a question before he Mirandized her again, which
       seems to be redundant to me but I’m willing to listen to argument on that


                                             8.
      point and find out what—if there’s a basis for [a] Miranda type objection
      here, I’m certainly willing to listen to it.”
      The defense argued that Trujillo’s admission that she was the driver was extremely
incriminating and should be excluded because, in light of her inebriation and
disorientation, her Miranda waiver was not knowing and intelligent. The prosecution
conceded that Miranda applied because Trujillo’s admission was incriminating and
obtained in a custodial setting, but argued the prior waiver was valid and reasonably
contemporaneous with Officer Wells’s questioning. The prosecution pointed out that
Officer Whisenhunt obtained Trujillo’s Miranda waiver well after 1:15 a.m., when her
blood was drawn at Kern Medical Center, and Officer Wells questioned her sometime
before 4:30 a.m., when she was booked into jail. The prosecution concluded that Officer
Wells interviewed Trujillo about “30 to 40 minutes” after she waived her rights while
seated in Officer Whisenhunt’s patrol car.
      The prosecution further argued that there was no question Trujillo’s prior waiver
was knowing and intelligent. She had been calm and communicated effectively with staff
at Kern Medical Center; Officer Whisenhunt obtained the waiver well after the accident
when she had regained her composure; she was responsive and readily answered Officer
Whisenhunt’s questions; she was cooperative throughout the investigative process; and
she had prior experience with law enforcement.4 The defense responded that any
appearance of cooperation should be discounted because Trujillo was inebriated and her
exchanges with the officers were very brief.
      The court ruled that Officer Wells’s testimony regarding Trujillo’s statement that
she was the driver of the white truck was admissible. The court reasoned as follows:

      “The point that causes this Court trouble is the fact that—are the facts of
      the intoxication and the level of intoxication and the fact it was a different
      officer. Those are the two facts that bother me the most.

      4Trujillo  had a prior 2010 misdemeanor conviction pursuant to section 647,
subdivision (f), for being drunk in public.


                                               9.
               “On the other hand, the only information I have as we consider what
       does a .26 mean is some general testimony from what I consider to be an
       experienced officer but ultimately I have no information, no factual
       information in front of me. Both counsel have talked about—we’ve talked
       about height, weight, on the one hand. We’ve talked about youth. We’ve
       also talked about a prior 647(f), and frankly none of that tells me anything.

              “It doesn’t tell me anything about a person’s experience with
       Miranda. It doesn’t tell me anything about a person’s experience with
       alcohol so the .26, I don’t know. I don’t know. I don’t have any facts in
       front of me that say that at a .26, she couldn’t do cartwheels. I just don’t
       know. I know what Officer Whisenhunt described at the scene. Then I
       know what he described at [Kern Medical Center], a seemingly different
       person and in a different state of mind.

               “I think the proximity of the Miranda warnings and I think [the
       prosecutor] probably has a—I think I’m more inclined to go along with his
       timeline here. It certainly was less than two hours, probably a lot less than
       that even [giving] defendant the benefit of the doubt on this. So I’ll allow
       the testimony to stand.”
       B.     Analysis
       Trujillo argues the admission of her statement to Officer Wells violated Miranda
because the questioning by Officer Wells at the police station was not reasonably
contemporaneous with her prior waiver. She contends the trial court’s error was not
harmless beyond a reasonable doubt and, hence, the judgment should be reversed. The
People respond that Officer Wells’s questioning was reasonably contemporaneous with
the prior advisement and waiver of rights, and that, in any event, any error is harmless
beyond a reasonable doubt.
       Miranda v. Arizona, supra, 384 U.S. 436, held that a defendant’s statements made
during a custodial interrogation are admissible against him only if he knowingly and
intelligently waived his rights to remain silent and to the presence and assistance of
counsel. (People v. Cruz (2008) 44 Cal.4th 636, 667.) “The waiver must be ‘voluntary
in the sense that it was the product of a free and deliberate choice rather than
intimidation, coercion, or deception’ [citation], and knowing in the sense that it was



                                             10.
‘made with a full awareness of both the nature of right being abandoned and the
consequences of the decision to abandon it.’ [Citation].” (People v. Sauceda-Contreras
(2012) 55 Cal.4th 203, 219.) The prosecution bears the burden of demonstrating the
validity of the defendant’s waiver by a preponderance of the evidence. (People v. Dykes
(2009) 46 Cal.4th 731, 751.)
       “In reviewing a trial court’s Miranda ruling, we accept the court’s resolution of
disputed facts and inferences and its evaluations of credibility, if supported by substantial
evidence, and we independently determine, from the undisputed facts and facts properly
found by the trial court, whether the challenged statement was illegally obtained.
[Citation].” (People v. Bacon (2010) 50 Cal.4th 1082, 1105.)
       After a valid Miranda waiver, readvisement prior to continued custodial
interrogation is unnecessary if the subsequent interrogation is “‘reasonably
contemporaneous’” with the prior waiver. (People v. Duff (2014) 58 Cal.4th 527, 555.)
“‘The necessity for readvisement depends upon various circumstances, including the
amount of time that has elapsed since the first waiver, changes in the identity of the
interrogating officer and the location of the interrogation, any reminder of the prior
advisement, the defendant’s experience with the criminal justice system, and “[other]
indicia that the defendant subjectively underst[ood] and waive[d] his rights.”
[Citation].’” (Ibid.) In Duff, the defendant waived his rights and spoke with one officer,
then asked to stop; as the officer was preparing to leave, the defendant asked to speak
with a different officer. The second officer appeared 23 minutes later and, after small
talk and a bathroom break, questioned the defendant and obtained his confession. (Id. at
pp. 554-555.) Noting that prior cases had “permitted as ‘reasonably contemporaneous’
the resumption of interrogation without a readvisement even a day or two after the initial
waiver,” the Supreme Court found that the second round of questioning in Duff was
“entirely constitutional notwithstanding the absence of renewed Miranda warnings.” (Id.
at p. 555.)

                                             11.
       In this case, the trial court properly found that less than two hours, and in all
likelihood, significantly less than two hours, had elapsed between the rights waiver
obtained by Officer Whisenhunt in his patrol car and the questioning conducted by
Officer Wells at the police department. Officer Whisenhunt testified that he left the
scene of the accident about 12:30 a.m. or 12:45 a.m. to take Trujillo to Kern Medical
Center, which was about a 15- to 20-minute drive away. The officer testified that
Trujillo’s blood was drawn at 1:15 a.m., shortly after arrival at the hospital, but it took
considerably longer for a doctor to examine her and provide a medical clearance. The
officer estimated that he and Trujillo remained at Kern Medical Center “anywhere from
an hour and a half to two and a half hours” to get the medical clearance from a doctor.
Thereafter, the officer placed Trujillo in the back of his patrol car, provided a proper
Miranda advisement, obtained a waiver, and questioned her very briefly before taking her
to the Bakersfield Police Department’s squad room. After a brief interview with Officer
Wells, Trujillo was booked into the county jail at 4:30 a.m.
       According to this timeline, Officer Whisenhunt and Trujillo arrived at Kern
Medical Center about 1:00 a.m., and they waited a minimum of an hour and a half,
possibly more, for Trujillo to be medically cleared. The Miranda advisement and waiver
of rights in Officer Whisenhunt’s patrol car thus occurred sometime after 2:30 a.m., and
Trujillo’s interview with Officer Wells, in turn, occurred after Trujillo waived her rights
but before she was booked into jail at 4:30 a.m.5 The evidence therefore supported the
trial court’s determination that “less than two hours” and “probably a lot less than that”
had elapsed between the initial Miranda waiver and the questioning conducted by Officer
Wells at the police department.


       5At  an Evidence Code section 402 hearing held prior to trial, Officer Wells
testified that he was called to the scene of the accident at 1:55 a.m. on April 24, 2011, and
stayed at the scene for approximately one and a half hours, after which he went to
Bakersfield Police Department and interviewed Trujillo.


                                             12.
       Based on the totality of the circumstances, Officer Wells’s questioning was
reasonably contemporaneous with the waiver of rights obtained by Officer Whisenhunt,
rendering a further Miranda advisement unnecessary. Less than two hours had elapsed
between Trujillo’s waiver and Officer Wells’s questioning, strongly indicating that
renewed Miranda warnings were not required. (See People v. Williams (2010) 49 Cal.4th
405, 435 [interrogation conducted 40 hours after initial advisement and waiver of rights
was reasonably contemporaneous].) Furthermore, the closeness in time of the two rounds
of questioning and the similar line of questioning employed by both officers suggested
that Officer Wells’s questioning was part of an “ongoing and cooperative process,” which
also obviated the need for renewed warnings. (See People v. Lewis (2001) 26 Cal.4th
334, 386-387 [readvisement unnecessary where one interrogator obtained waiver of
rights and five hours later a second interrogator elicited defendant’s confession, because
the second interrogation “was part of an ongoing and cooperative process”].) Finally, the
fact that Trujillo continuously remained in custody during the relevant period—although
she was moved from the back of a patrol car to an interrogation room inside the police
department—also militated against the need for renewed warnings as there was no
indication her status or rights had changed in any material way. (See People v. Mickle
(1991) 54 Cal.3d 140, 171 [Miranda readvisement unnecessary for re-interview of
defendant in hospital because he had waived his rights at stationhouse 36 hours earlier
and had remained in official custody for entire duration].)
       We also reject Trujillo’s suggestion that the prior warning and waiver were not
reasonably contemporaneous because she was too intoxicated and too traumatized by the
accident to focus on and remember the warning. The trial court could reasonably
conclude, based on the record, that Trujillo understood her rights and knowingly agreed
to answer the officers’ questions and cooperate with the investigation. (See People v.
Stroud (1969) 273 Cal.App.2d 670, 680 [.229 blood alcohol content, standing alone,
“neither proves nor disproves defendant’s capacity to understand and rationalize”];

                                            13.
Matylinsky v. Budge (9th Cir. 2009) 577 F.3d 1083, 1095 [“an intoxicated individual can
give a knowing and voluntary waiver, so long as that waiver is given by his own free
will”]; United States v. Comstock (9th Cir. 2011) 443 Fed.Appx. 310, 312 [Miranda
waiver valid despite intoxication when defendant was coherent, responsive, aware of
surroundings, and gave detailed confession]; People v. York (1980) 108 Cal.App.3d 779,
787 [Miranda waiver valid despite suspect’s drinking].) In waiving her rights, Trujillo
told Officer Whisenhunt that she understood her rights, was “very cooperative,” and
answered his questions promptly (albeit she could not remember where she was coming
from or going to at the time of the accident). Officer Wells testified that, while Trujillo
“appeared somewhat intoxicated,” she seemed “to be able to understand [him] fine.”
       In sum, Trujillo’s initial valid waiver was “‘reasonably contemporaneous’” with
the subsequent questioning by Officer Wells, rendering renewed Miranda warnings
unnecessary. Officer Wells’s questioning thus comported with constitutional
requirements. Accordingly, the trial court did not err in admitting his testimony
regarding Trujillo’s admission that she was driving the white truck at the time of the
collision.

II.    The court did not abuse its discretion in denying defense’s request for a
       pre-sentencing diagnostic study pursuant to section 1203.03, subdivision (a)
       Trujillo argues the trial court’s rejection of her request for a diagnostic study
pursuant to section 1203.03 was sentencing error necessitating reversal. She contends the
study was required for determining a just sentence because her offense was alcohol-
related, and there was evidence before the court indicating she was an alcoholic. We
disagree.
       Section 1203.03 provides, in pertinent part, that a court may order the Department
of Corrections to conduct a diagnostic evaluation of a defendant if it concludes
“diagnosis and treatment services” are essential to the just disposition of the case.
(§ 1203.03, subd. (a); People v. Harris (1977) 73 Cal.App.3d 76, 85; accord, People v.


                                             14.
Peace (1980) 107 Cal.App.3d 996, 1001.) The purpose of a diagnostic study is to obtain
social and psychological information relevant to sentencing (People v. Myers (1984) 157
Cal.App.3d 1162, 1169) and for the Department of Corrections to make a
recommendation as to whether “probation or prison” would be the appropriate disposition
in the case. (People v. Nocelotl (2012) 211 Cal.App.4th 1091, 1093; People v. Tang
(1997) 54 Cal.App.4th 669, 676.) The trial court exercises broad discretion in
determining whether a diagnostic study is warranted. (People v. Lawrence (1985) 172
Cal.App.3d 1069, 1075; People v. Swanson (1983) 142 Cal.App.3d 104, 110-111.) We
review the trial court’s decision regarding the propriety of a diagnostic study for abuse of
discretion. (Peace, supra, at p. 1002.) The court’s determination will be upheld unless it
exceeds the bounds of reason. (Ibid.)
       Trujillo has not shown the court abused its discretion in declining to order a
diagnostic evaluation. The court noted in a preliminary assessment that probation was
not a suitable sentencing option given the severity of the victims’ injuries and the fact
that Trujillo knew she was “on a bad path” with regard to her drinking.6 Furthermore, the
court had ample information regarding Trujillo’s alcohol problem and her efforts to
control it. Trujillo’s alcohol problem was reflected in the facts of the offense, in her
sentencing statement and its attachments, and in the probation report. Her sentencing
statement included records related to her rehabilitation efforts as well as numerous letters
from family, friends, and coworkers outlining her social history. The probation report


       6The  court stated: “This is a very difficult case for me to deal with. It troubles me
that we’re dealing with such horrendous injuries and that’s my first concern. It troubles
me that I’m dealing with a young lady who just made—exercised horrendously bad
judgment. But fundamentally, it’s not a case where—ultimately where the defendant had
no warning that she was on a bad path. And the purpose of the 1203.03 would be to
determine whether or not she could function successfully on probation as I understand it.
And although I disagree with the People, that she’s statutorily ineligible for probation, I
do not find that probation is suitable in this case. So I’m going to deny the 1203.03
request and we’re gonna proceed with sentencing.”


                                             15.
documented Trujillo’s public-intoxication conviction from 2010 and revealed that she
had attended 30 Alcoholics Anonymous meetings as a condition of probation. The court
also heard testimony from a correctional counselor at the Department of Corrections
regarding the scope of a diagnostic evaluation conducted pursuant to section 1203.03.
       In light of the information before it, the court reasonably could have concluded
that further “diagnosis and treatment services” were not necessary for a just disposition of
the case. (Section 1203.03, subd. (a); see People v. Swanson, supra, 142 Cal.App.3d at
p. 111 [where court had great deal of information regarding defendant’s alcohol problem,
it did not abuse its discretion in refusing to order diagnostic study].) The trial court also
could reasonably have determined that a diagnostic evaluation, as described by the
correctional counselor, would not affect the outcome of the case. (See People v.
Lawrence, supra, 172 Cal.App.3d at p. 1075 [trial court properly rejected request for
diagnostic study as superfluous given court’s conclusion that state prison was appropriate
disposition].) Hence, it was not an abuse of discretion for the court to decline to order an
evaluation.

III.   The court did not abuse its discretion in denying defense’s requests for
       probation and to strike one or more great-bodily-injury enhancements
       In sentencing Trujillo, the trial court considered a range of applicable factors but
ultimately adopted the recommendation set forth in the probation report. Accordingly,
the court imposed a sentence of 13 years’ imprisonment on count 1 and its applicable
enhancements and stayed an identical sentence on count 2 and its applicable
enhancements. Trujillo argues the trial court abused its discretion in denying probation
or, alternatively, in not dismissing or striking one or more of the great-bodily-injury
enhancements the jury found to be true.
       A.     Trial court’s denial of probation
       “Probation is generally reserved for convicted criminals whose conditional release
into society poses minimal risk to public safety and promotes rehabilitation.” (People v.


                                             16.
Welch (1993) 5 Cal.4th 228, 233; § 1202.7.) “‘[It] is an act of clemency which rests
within the discretion of the trial court, whose order granting or denying probation will not
be disturbed on appeal unless there has been an abuse of discretion.’” (People v.
Superior Court (Du) (1992) 5 Cal.App.4th 822, 831; People v. Lai (2006) 138
Cal.App.4th 1227, 1256 [trial court has broad discretion in evaluating factors in
aggravation and mitigation to determine whether eligible defendant is suitable for
probation]; § 1203, subd. (b); Cal. Rules of Court, rule 4.414.)
       To establish abuse of discretion, Trujillo must show the denial of probation was
arbitrary or capricious under the circumstances. (Du, supra, 5 Cal.App.4th at p. 831.)
She argues the trial court abused its discretion in denying probation because she was a
youthful offender without any significant criminal history, was gainfully employed, had
strong community ties, and had voluntarily sought treatment for her alcoholism (which
had led her to commit the instant offense). At the sentencing hearing, the defense had
asked for probation based on the same factors, arguing Trujillo was a good person who
had made a bad mistake and was genuinely remorseful for her actions. In contrast, the
probation officer concluded probation was not warranted in light of the severity of the
victims’ injuries and Trujillo’s extremely high BAC. The prosecution, for its part, argued
Trujillo was statutorily ineligible for probation and asked the court to impose a sentence
of 15 years’ imprisonment. The court also heard the testimony of several witnesses at the
sentencing hearing, including the sister of one of the victims, as well as a number of
Trujillo’s family members.
       Although the court concluded Trujillo was eligible for probation, it ultimately
adopted the recommendation of the probation officer and sentenced Trujillo to the middle
term of two years for the offense, along with additional terms for the applicable
enhancements, for a total term of 13 years’ imprisonment. The court noted it had read
and considered the sentencing statements from both parties, as well as the probation
report; taken into account the testimony of the witnesses; and weighed a range of

                                            17.
mitigating and aggravating factors. The court also noted it was guided by Vehicle Code
section 23578, which permits the court, in sentencing a defendant convicted under
Vehicle Code section 23153, to consider a blood alcohol concentration of 0.15 percent or
more as a special factor that may support enhanced penalties and affect the propriety of
probation.7 The court concluded a prison sentence was warranted in light of, inter alia,
the severity of the victims’ injuries and the fact that Trujillo had notice of her drinking
problem.8 We see nothing arbitrary or capricious in the trial court’s decision to deny
probation and sentence Trujillo to prison. Accordingly, we find no abuse of discretion.

       B.     Trujillo’s request to strike one or more of the applicable great-bodily-
              injury enhancements
       Trujillo argues the trial court abused its discretion in failing to dismiss or strike
any of the great-bodily-injury enhancements alleged in the information and found to be
true by the jury. We disagree.
       The information alleged six identical enhancements with respect to each count:
two enhancements pursuant to Vehicle Code section 23558 (causing bodily injury to
more than one person); one enhancement pursuant to section 12022.7, subdivision (b)
(causing great bodily injury resulting in a victim becoming comatose); and three
enhancements pursuant to section 12022.7, subdivision (a) (causing great bodily injury to
an individual). Trujillo’s base sentence of two years on count 1 was enhanced by five


       7Vehicle  Code section 23578 provides as follows: “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.”
       8The probation report noted that Trujillo was convicted of public intoxication in
2010, was on probation for that offense when she committed the instant offense, and had
attended 30 Alcoholics Anonymous meetings as a condition of probation.


                                              18.
years for causing great bodily injury resulting in a victim becoming comatose. She also
received two additional three-year terms, each based on a separate enhancement for
causing great bodily injury. In total, she was sentenced to 13 years on count 1. Her
sentence for the remaining three enhancements related to count 1 was stayed; her
sentence for count 2 and all related enhancements was also stayed.
       Section 1385, subdivision (a), authorizes a trial court to dismiss sentencing
enhancements, among other things, if the dismissal is “in the furtherance of justice.” (In
re Varnell (2003) 30 Cal.4th 1132, 1136; People v. Thomas (1992) 4 Cal.4th 206, 210;
People v. Rivas (2004) 119 Cal.App.4th 565, 571.) However, the trial court’s power
under section 1385, “while broad, is by no means absolute.” (People v. Orin (1975) 13
Cal.3d 937, 945.) Any dismissal must be in furtherance of justice, which “‘requires
consideration both of the constitutional rights of the defendant’” and “‘the interests of
society represented by the People .…’” (Ibid.) Further, in exercising its discretion under
section 1385, “the court should consider the nature and circumstances of the defendant’s
current crimes, the defendant’s prior convictions, and the particulars of his or her
background, character, and prospects. [Citation].” (People v. Orabuena (2004) 116
Cal.App.4th 84, 99.)
       We review the trial court’s denial of relief under section 1385 for abuse of
discretion. (People v. Orabuena, supra, 116 Cal.App.4th at p. 99; People v. Lee (2008)
161 Cal.App.4th 124, 131-132.) The trial court is presumed to have acted to achieve
legitimate sentencing objectives. (People v. Lee, supra, at pp. 131-132.) However, abuse
of discretion may be shown where the court was not aware of the scope of its discretion
pursuant to section 1385, considered impermissible factors in exercising its power to
strike or dismiss an enhancement, or acted so irrationally or arbitrarily that no reasonable
person could agree with its denial of relief under section 1385. (People v. Lee, supra, at
p. 132; People v. Orabuena, supra, at pp. 99-100.)



                                             19.
       Here, Trujillo asserts the court abused its discretion by not striking one or more
enhancements because the instant offense was nonviolent, Trujillo was only 23 years old
at the time of the offense, she had been gainfully employed in the records department at
North Kern State Prison since 2007, she was addressing her alcoholism through
treatment, she was of good character and had strong community ties, and the sentence she
received was extremely harsh because multiple enhancements (based on the fact that
three victims were injured in the crash) added 11 years to her sentence for a single
substantive offense.
       Contrary to Trujillo’s assertion, her offense constituted a violent felony pursuant
to section 667.5, subdivision (c)(8). (People v. Arndt (1999) 76 Cal.App.4th 387, 396
[running a stop light while driving under the influence and inflicting great bodily injury
on three people undoubtedly constituted violent crime].) Moreover, a defendant may
properly be punished more severely for causing injury to multiple persons rather than to
only one person. (Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 352 [sentencing
enhancements may appropriately be used to increase punishment where single act injures
more than one person].)
       The trial court reviewed Trujillo’s sentencing statement and heard defense
counsel’s related arguments for a mitigated sentence. Ultimately, based on its
consideration of a number of appropriate factors, the court declined to exercise its
discretion pursuant to section 1385 to strike any applicable enhancement. As there is
nothing irrational or arbitrary about the court’s sentencing decision, we find no abuse of
discretion.




                                            20.
                                DISPOSITION
    The judgment is affirmed.

                                              _____________________
                                                            Smith, J.
WE CONCUR:


_____________________
Hill, P.J.


_____________________
Poochigian, J.




                                    21.
