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People v. Gurnett1/13/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Appellant Deborah Lynn Gurnett pleaded nolo contendere to gross vehicular manslaughter while intoxicated. On appeal, she contends the trial court improperly imposed the upper term of 10 years, having erred in its application of factors in aggravation and mitigation. We find that any such error was harmless and therefore shall affirm the judgment.
STATEMENT OF THE CASE
On March 22, 2001, appellant was charged in a second amended complaint with gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd (a); Veh. Code, §§ 23140, 23152, 23153). On August 7, 2001, appellant pleaded nolo contendere to the charge. On October 16, 2001, the trial court sentenced appellant to an aggravated term of 10 years in state prison.
On November 1, 2001, appellant filed a notice of appeal.
STATEMENT OF FACTS
The following statement of facts is taken from the probation officer's report and recommendation prepared on September 27, 2001.
"On the afternoon of January 30, 2001, San Ramon police officers responded to a report of a major injury accident involving a vehicle and bicyclist. The first officer that arrived at the scene contacted Deborah Lynn Gurnett and she identified herself as the driver involved in the accident. During the course of their conversation, the officer noted a strong odor of an alcoholic beverage on Gurnett's breath. Gurnett appeared unsteady on her feet and she was visibly swaying when she attempted to stand still. Further, Gurnett vomited approximately three times while the officer was speaking with her. Officers conducted field sobriety tests which Gurnett failed miserably. A preliminary alcohol screening test resulted in a .241%/.244% BAC [blood alcohol content]. Gurnett was placed under arrest for driving under the influence causing injury. Meanwhile, the bicyclist, victim James Shore, was being treated by fire department personnel and AMR for life- threatening injuries. Mr. Shore was transported to John Muir Hospital where he underwent surgery for his injuries.
"Officers interviewed witnesses to the accident and individuals who arrived at the scene shortly thereafter. Officers learned that Gurnett, who was speeding, was driving partially inside the bicycle lane. She struck Mr. Shore as he rode his bicycle in the bike lane, causing him to fly onto her hood, flipping back, shattering his head, helmet and her windshield. He was flung up into the air before slamming unconscious onto the pavement. Several individuals came to the aid of Mr. Shore as they waited for AMR and fire department personnel. Witnesses heard Gurnett making conflicting statements, including that she `didn't see him,' `you know he gave me the thumbs up to pass him, `I hit him with my side mirror,' and `he clipped my mirror.' Officers noted that Gurnett seemed to be worried only about herself and her concern for Mr. Shore was based upon how it was going to impact her.
"As a result of Deborah Gurnett's actions, Mr. Shore suffered massive subdural hematomas to his brain along with both a fractured and shattered skull. He also broke his pelvis and hip, and fractured his collar bone. Mr. Shore never regained consciousness. He remained in a coma until March 7, 2001, when he succumbed to the massive injuries inflicted by Deborah Gurnett."
DISCUSSION
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