Filed 8/9/16 P. v. Stangl CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                       (Tehama)
                                                            ----




THE PEOPLE,

                   Plaintiff and Respondent,                                                 C079349

         v.                                                                     (Super. Ct. No. NCR92123)

ANTHONY EDWARDS STANGL,

                   Defendant and Appellant.


         Defendant Anthony Edwards Stangl pleaded guilty to gross vehicular
manslaughter while intoxicated and was sentenced to serve the maximum term of 22
years in state prison. On appeal, defendant challenges (1) the trial court’s imposition of
the upper term sentence and (2) the court’s limitation of custody credits pursuant to Penal
Code section 2933.1.1 We conclude the trial court did not abuse its discretion in
imposing the upper term. As to the credits, we conclude the 15 percent limitation of



1        Undesignated statutory references are to the Penal Code.


                                                             1
section 2933.1 does not apply to defendant’s conviction of gross vehicular manslaughter.
We modify the judgment to reflect the correct calculation of presentence custody credits
and affirm the judgment as modified.
                                 FACTUAL SUMMARY2
       At approximately 5:15 a.m. on August 30, 2014, defendant ran a stop sign and
struck another car, killing the driver. Defendant’s blood-alcohol level was 0.06 percent.
Witnesses estimated defendant’s speed at the time of the collision was between 60 and 65
miles per hour. Defendant admitted having consumed alcohol prior to 2:00 a.m., and
having smoked “a small amount of marijuana a couple hours earlier” pursuant to the “215
card” he obtained two weeks prior to the accident.
                             PROCEDURAL BACKGROUND
       Defendant was charged by information with gross vehicular manslaughter while
intoxicated (§ 191.5, subd. (a) – count I) and driving under the influence of alcohol and
drugs causing injury (Veh. Code, § 23153, subd. (f) – count II). The information alleged,
as to counts I and II, defendant sustained one prior strike conviction (§ 1170.12, subds.
(a)-(d), § 667, subds. (b)-(i)), one prior serious felony conviction (§ 667, subd. (a)(1)),
and three prior prison terms (§ 667.5, subd. (b)). The information further alleged, as to
count II, defendant inflicted great bodily injury within the meaning of section 12022.7,
subdivision (a).
       Defendant entered a negotiated plea of guilty to count I and admitted the prior
strike and two of the three prior prison term enhancements in exchange for dismissal of




2      Defendant stipulated the California Highway Patrol report would suffice as the
factual basis for his plea. Because the report was not included in the record on appeal,
the facts are summarized from the probation report.


                                              2
all remaining charges and allegations and a maximum possible state prison sentence of 22
years.
         The trial court denied defendant’s Romero motion to dismiss the prior strike and
sentenced defendant to serve the upper term of 10 years, doubled pursuant to the strike,
plus two consecutive one-year terms for the two prison priors, for an aggregate term of 22
years in state prison. The court awarded defendant 262 days of presentence custody
credit (227 actual days plus 35 conduct credits), calculated at 15 percent of the actual
period of confinement pursuant to section 2933.1.3
         Defendant filed a timely notice of appeal. He did not obtain a certificate of
probable cause.
                                        DISCUSSION
                                               I
                                    Upper Term Sentence
         Defendant contends the trial court abused its discretion by improperly relying on
two invalid aggravating factors in imposing the upper term. He contends his trial
counsel’s argument for a mitigated sentence preserved the issue for appeal.
Alternatively, he contends any failure to object was the result of the ineffective assistance
of his trial counsel.
         The People argue defendant’s claim is forfeited for failure to object at sentencing
and, in any event, his trial counsel was not ineffective because the trial court did not
abuse its discretion in imposing the upper term sentence. We conclude the trial court did
not abuse its discretion in imposing the upper term.



3       We note there is a discrepancy between the trial court’s oral pronouncement of
conduct credits and the abstract of judgment. The trial court ordered 35 days of conduct
credit and the abstract indicates 33 days of conduct credit. In light of our resolution of
the credit issue, we need not address this discrepancy.


                                               3
         A trial court’s sentencing decision is reviewed for abuse of discretion. (People v.
Sandoval (2007) 41 Cal.4th 825, 847.) “The trial court’s sentencing discretion must be
exercised in a manner that is not arbitrary and capricious, that is consistent with the letter
and spirit of the law, and that is based upon an ‘individualized consideration of the
offense, the offender, and the public interest.’ ” (Ibid.) The court may rely on any
aggravating circumstances reasonably related to its sentencing decision (Sandoval, supra,
41 Cal.4th at p. 848; Cal. Rules of Court, rule 4.4204) and need not explain its reasons for
rejecting alleged mitigating circumstances (People v. Avalos (1996) 47 Cal.App.4th 1569,
1583).
         In sentencing defendant to serve the upper term sentence, the trial court relied on a
number of aggravating circumstances, stating in part as follows:
         “[W]hat the Court cannot get around at this point are the obvious factors under
[rule] 4.421 regarding the crime itself and certainly the victim was vulnerable. I mean, it
is that early in the morning, sure enough, the defendant, at a high rate of speed, goes
through a stop sign and ends up having someone pay the ultimate price, which is with
their life.
         “But even aside from the issue of vulnerability of the victim, what the Court
cannot escape is the defendant’s previous record. [The prosecution] had indicated that
the defendant has spent the better part of his life or at least his latter juvenile years and
then his adult life committing crimes. And there is really no getting around that,
unfortunately. That in and of itself would be reason to give the defendant . . . the
aggravated term. But what I don’t understand is how the defendant, in light of his past
record, did not see that he was on his probably fifth last chance that he got with respect to
his criminal history.



4        Undesignated rule references are to the California Rules of Court.


                                               4
       “I do believe that based on his conduct, staying out until the time that he did and
then driving not more than a couple hours later, having been drinking and certainly
having smoked marijuana, he has engaged in what I would term to be violent conduct and
indicates he is a serious danger. His prior convictions as an adult and sustained petitions
in juvenile delinquency are numerous, not necessarily of increasing seriousness when you
just look at those offenses, but when you add in the new offense, certainly that would be
the case. And the defendant has served a prior prison term. I don’t know if he was on
parole at the time. If he received four years on a [section] 594, whether that is the case or
not, I don’t know. But certainly his prior performance on probation and parole was
unsatisfactory.”
       Defendant contends victims of vehicular manslaughter, including victims of drunk
drivers, are not particularly vulnerable within the meaning of rule 4.421(a)(3). He also
claims the fact he stayed out late after drinking and smoking marijuana was nothing more
than an element of the offense of vehicular manslaughter while intoxicated and did not
constitute “great violence” within the meaning of rule 4.421(a)(1).
       We need not decide whether the victim’s vulnerability and the characterization
that the crime was one of great violence were invalid factors as applied here. The trial
court relied on other valid factors, including defendant’s prior offenses,5 his prior prison
term, and his unsatisfactory prior performance on probation and parole. Any one of those
aggravating circumstances supported an upper term sentence. (People v. Osband (1996)
13 Cal.4th 622, 728; People v. Black (2007) 41 Cal.4th 799, 815 [a single valid
aggravating factor justifies the upper term].)



5       Defendant’s criminal history began in May 2003 and included juvenile
adjudications for felony burglary, attempted arson, felony vandalism, petty theft, and
trespass, and adult adjudications for felony first and second degree burglary, felony grand
theft, and vandalism, as well as a parole violation.


                                                 5
       Defendant concedes the factors relating to his criminal history were valid, but
argues those factors did not outweigh the circumstances in mitigation. He claims, in the
absence of the invalid factors, it is reasonably probable the court would have imposed a
more favorable sentence. We disagree.
       At sentencing, the court considered defendant’s statement, defense counsel’s
lengthy argument regarding the various mitigating factors, and supporting statements
from defendant’s fiancée and pastor. Acknowledging in particular defense counsel’s
statements in mitigation, the court nonetheless stated, “[W]hat the Court cannot escape is
the defendant’s previous record . . . . That in and of itself would be reason to give the
defendant . . . the aggravated term.” The court left little doubt as to the weight of
defendant’s criminal history when, after imposing sentence, the court told defendant,
“[M]y hope is, sir, that you are able to think, and I know you will every day you’re
incarcerated, about what has transpired here. You cannot fault [defense counsel],
because [he] did everything he could to get you the best possible result. He could not get
around your previous record. The fact . . . that you are a young man and you have
compiled a record like this so far, I guess it wouldn’t come as a surprise that it would end
like this, but the unfortunate thing is . . . it has ended like this and you have taken the life
of someone else and you have no one else to blame but you.” (Italics added.)
       After carefully balancing various aggravating circumstances against various
mitigating circumstances, the court concluded the mitigating circumstances were
outweighed, particularly by defendant’s sustained history of criminal conduct. We
conclude the trial court’s imposition of the upper term was not arbitrary or capricious.
Because it is not reasonably probable the sentence would have been more favorable had
defense counsel objected to the court’s consideration of the two challenged aggravating
factors, defendant’s claim of ineffective assistance fails. (Strickland v. Washington




                                               6
(1984) 466 U.S. 668 [80 L.Ed.2d 674]; People v. Hawkins (1995) 10 Cal.4th 920, 940,
disapproved on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89.)
                                              II
                              Calculation of Custody Credits
       Defendant contends, and the People concede, the trial court miscalculated
presentence custody credits on the erroneous belief gross vehicular manslaughter is a
“violent felony” within the meaning of section 667.5, thus limiting maximum credits to
15 percent of actual confinement time pursuant to section 2933.1. We accept the
People’s concession and modify the judgment.
       Section 2933.1, subdivision (a), provides that “any person who is convicted of a
felony offense listed in subdivision (c) of [s]ection 667.5 shall accrue no more than 15
percent of worktime credit, as defined in [s]ection 2933.” Subdivision (c) of that section
provides, “Notwithstanding [s]ection 4019 or any other provision of law, the maximum
credit that may be earned against a period of confinement in, or commitment to, a county
jail, industrial farm, or road camp, or a city jail, industrial farm, or road camp, following
arrest and prior to placement in the custody of the Director of Corrections, shall not
exceed 15 percent of the actual period of confinement for any person specified in
subdivision (a).”
       At sentencing, the prosecution argued defendant’s crime was “a violent offense
per [section] 667.5(c)” and should therefore “be 15 percent of his actual days as opposed
to day for day.” Defense counsel disagreed, arguing defendant was entitled to “the
[section] 4019” credits pending disposition of the case. After reading aloud from section
2933.1, subdivisions (a) and (c), and concluding defendant “should receive 15 percent of
the 227,” the trial court determined defendant’s presentence custody credits totaled 262
(227 actual days plus 35 days of conduct credit) pursuant to section 2933.1.




                                              7
       Defendant’s crime of conviction for gross vehicular manslaughter while
intoxicated (§ 191.5, subd. (a)) is not among the violent felonies listed in section 667.5,
subdivision (c), and “is not a qualifying violent felony for the purpose of the credit
restrictions imposed by section 2933.1(a).” (In re Pope (2010) 50 Cal.4th 777, 780.)
Therefore, the trial court erred in limiting defendant’s credits pursuant to that statute,
resulting in an unauthorized sentence that may be corrected by an appellate court even in
the absence of an objection or argument in the lower court. (People v. Turner (2002)
96 Cal.App.4th 1409, 1413-1415.)
       We therefore modify the judgment to reflect 227 actual days of credit plus 226
days of conduct credit for a total of 453 days of presentence custody credit pursuant to
section 4019.
                                       DISPOSITION
       The judgment is modified to reflect presentence custody credits consistent with
this opinion. As modified, the judgment is affirmed. The trial court is directed to amend
the abstract of judgment to reflect the modified custody credits, and to direct a certified
copy of the amended abstract to the Department of Corrections and Rehabilitation.



                                                                /s/
                                                   HOCH, J.


We concur:


         /s/
BLEASE, Acting P. J.


             /s/
ROBIE, J.



                                               8