 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
People v. Calhoun11/2/2004
r the two offenses but chose to impose only concurrent terms. Although only one valid aggravating circumstance is necessary to uphold the imposition of an upper term (People v. Zamora (1991) 230 Cal.App.3d 1627, 1637, 282 Cal.Rptr. 100), we cannot say on the basis of this record the trial court would have imposed the upper terms based solely on the one remaining valid aggravating circumstance. Weighing the multiple mitigating circumstances against that one aggravating circumstance, the court might instead have chosen to impose a consecutive term for Waller's second gross vehicular manslaughter conviction, as recommended in the probation report, in which event there would have been no aggravating circumstance permitting the imposition of the upper term. [FN13] Because we cannot conclude**552 on this record that it is reasonably probable the trial court would have imposed the same upper terms for Waller's two gross vehicular manslaughter convictions had it not considered the inapplicable multiple-victim aggravating circumstance, we remand this matter for resentencing of Waller. (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243; People v. Avalos (1984) 37 Cal.3d 216, 233, 207 Cal.Rptr. 549, 689 P.2d 121 [reviewing court must remand for resentencing "where it cannot determine whether the improper factor was determinative for the sentencing court."]; People v. Smith (1980) 101 Cal.App.3d 964, 967-968, 161 Cal.Rptr. 787 [matter remanded for resentencing]; cf. *1052 People v. Dozier (1979) 90 Cal.App.3d 174, 178-179, 153 Cal.Rptr. 53 [error was harmless because there were no mitigating circumstances for trial court to weigh against "multitude of aggravating factors."].)
FN13. We note that consecutive terms for Waller's two gross vehicular manslaughter offenses presumably would not be barred by Penal Code section 654, which provides:
"(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision...." Although Waller's two gross vehicular manslaughter convictions presumably arose out of the same act, separate punishment for both convictions is permitted because that act was an act of violence that harmed more than one person. (People v. McFarland, supra, 47 Cal.3d at p. 803, 254 Cal.Rptr. 331, 765 P.2d 493["[T]he general rule permitting multiple punishments when multiple injuries result from a single act of violence, governs this matter. As noted above, 'A defendant may properly be convicted of multiple counts for multiple victims of a single criminal act ... where the act prohibited by the statute is centrally an "act of violence against the person." ' [Citations.] Plainly, vehicular manslaughter with gross negligence constitutes a crime of violence against the person. [Citation.]"]; see
also People v. Champion (1995) 9 Cal.4th 879, 934-935, 39 Cal.Rptr.2d 547, 891 P.2d 93; People v. Solis (2001) 90 Cal.App.4th 1002, 1023, 109 Cal.Rptr.2d 464; People v. Garcia (1995) 32 Cal.App.4th 1756, 1781, 39 Cal.Rptr.2d 73.)
D
Although the People argue Waller waived the trial court's sentencing error by not objecting at the sentencing hearing, we conclude he did not have a meaningful opportunity to object to the court's error and therefore did not waive that error. People v. Scott (1994) 9 Cal.4th 331, 36 Cal.Rptr.2d 627, 885 P.2d 1040 stated:
"[T]he waiver doctrine should apply to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and case
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 California DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|