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People v. Johnson8/4/2004
On June 23, 2003, appellant, Patricia Johnson, entered a plea of nolo contendere to driving under the influence of alcohol and drugs (Veh.Code, § 23153, subd. (a)). Johnson admitted an enhancement that she caused injury to multiple victims (Veh.Code, § 23558). A condition of the plea agreement was that Johnson receive no more than 28 months in prison. The trial court sentenced Johnson to prison for 16 months on count one plus one year on the enhancement for a total term of 28 months. Johnson had been placed on Proposition 36 probation the day before the instant offense.
On appeal, Johnson contends the trial court abused its sentencing discretion in denying her request to stay on probation. We will affirm the judgment.
FACTS
On May 21, 2003, Fresno Police officers arrived at the scene of a traffic accident. [FN1] Johnson had driven her vehicle into a light pole. Two girls, 11 and 12 years old, were passengers in the car. Neither child was wearing a seat belt. One girl had a broken arm. The other was bleeding from cuts on her forehead. A blood test showed Johnson was under the influence of cocaine and had a blood-alcohol level of .15 percent.
FN1. Because Johnson pled nolo contendere at an early stage of the proceedings, we derive the facts of the case from the probation report and the sentencing hearing.
The sentencing hearing was held on July 22, 2003. Defense counsel argued that Johnson's accident was a single car collision. Counsel requested that the court keep Johnson on probation. The probation officer's report recommended that Johnson be placed in a substance abuse program. Johnson had been placed on Proposition 36 probation for a drug offense the day before the accident. [FN2] The probation report noted that after the instant offense, Johnson was no longer eligible for Proposition 36 probation. [FN3]
FN2. Johnson was convicted of possession of cocaine (Health & Saf.Code, § 11350, subd. (a)).
FN3. We note that Johnson was no longer entitled to Proposition 36 probation after her drunk driving conviction. (See People v. Canty (2004) 32 Cal.4th 1266, 1278-1286.)
The trial court noted that it tried to find a reason to place Johnson into a diagnostic program, but could not do so in good conscience. The court stated it was blind luck Johnson had not had an accident with another vehicle. The court observed that the current offense occurred one day after Johnson was placed on probation, she had children in the car, and she had consumed a lot of alcohol to achieve a blood-alcohol level of .15 percent. The court rejected Johnson's excuse for the accident, which was that there was a mechanical failure in her vehicle. The court thought it was amazing that Johnson did not kill someone. The court denied Johnson's request for probation and imposed a 28-month sentence pursuant to the terms of the plea agreement.
DISCUSSION
Johnson contends the trial court abused its sentencing discretion in denying her probation. Johnson notes the trial court was misinformed about her treatment program because it noted that she had not had time to enroll into an inpatient treatment program but the probation report noted that she had been ordered to attend an outpatient treatment program. Johnson argues that the trial court was therefore misinformed about the nature of her earlier probation and "abused its discretion in relying on that factor in denying appellant probation." Johnson further argues that the trial court's skepticism about the mechanical condition of her vehicle, and the court's failure to recognize that she could still operate a vehicle with a blood-alcohol level of .15 percent, indicate the court's decision "was arbitrary and beyond the bounds of reason."
*2 The grant or denial of probation generally rests
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