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People v. Bates1/23/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Jerome Anthony Bates pleaded guilty to gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)) and admitted he personally inflicted great bodily injury within the meaning of section 1192.7, subdivision (c)(8). The trial court denied Bates's application for probation and sentenced him to the upper term of 10 years in state prison.
On appeal, Bates contends he should have been placed on probation. He asserts the trial court (1) erred in assuming he was presumptively ineligible for probation and finding there were no unusual circumstances warranting probation, and (2) abused its discretion in denying probation. Bates also attacks his sentence, arguing the trial court applied inappropriate factors in imposing the upper term.
FACTS
On the evening of August 11, 2001, Bates, and Christopher Sterling, both of whom were Marines stationed at Camp Pendleton, went to Tijuana in Sterling's vehicle. Neither Bates nor Sterling complied with the Camp Pendleton rule requiring a Marine to obtain permission from his command to visit Mexico. Bates and Sterling spent the night drinking and dancing in Tijuana nightclubs. Early the next morning, Bates and Sterling left Tijuana and decided to return to Camp Pendleton even though they had originally planned to stay at a National City hotel . Bates volunteered to drive Sterling's vehicle. Bates had attended the Marine Corps Arrive Alive class about the dangers of drinking and driving. Bates had in his wallet an Arrive Alive card, which entitled him to a free taxi ride.
At six o'clock the following morning, California Highway Patrol (CHP) Officer Stephen Linen was issuing a traffic citation to Kevin Borth on the shoulder of northbound Interstate 5, north of Leucadia Boulevard in Encinitas. Linen was standing on the right side of his patrol vehicle, which was parked behind Borth's pickup truck on the paved shoulder of the highway. When the car driven by Bates smashed into the rear of the CHP vehicle, Linen was thrown onto the dirt embankment and sustained fatal injuries. At impact, Bates was driving at a speed of 88 miles per hour.
The patrol vehicle was thrust into the rear of Borth's truck, causing major structural damage to the truck. The fuel tank of the patrol car ruptured, resulting in a fire which engulfed the patrol vehicle. The car driven by Bates came to rest with its left side against the right side of Borth's truck.
Bates was unable to open his door and remained in the driver's seat with his seat belt fastened until witnesses helped him out of the vehicle. When initially questioned by officers, Bates said he was not the driver of the vehicle and claimed he was riding in the back seat.
A CHP officer who arrived at the scene at 6:10 a.m. observed Bates had the following symptoms of intoxication: the odor of alcohol on his breath; slow and slurred speech; and bloodshot, glassy eyes. Bates denied he had consumed any alcohol and denied being the driver. Bates failed to perform field sobriety tests adequately and his blood alcohol tested .10 percent on a breath analysis administered at 6:30 a.m.
Borth and his passenger, James Vath, sustained minor injuries. Sterling sustained a broken arm, fractured ribs, a concussion and minor lacerations.
In September 1999, Bates was issued a citation
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