Filed 1/26/21 P. v. Hernandez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B301559
(Super. Ct. No. 1501098)
Plaintiff and Respondent, (Santa Barbara County)
v.
FLORINDA CAMARILLO
HERNANDEZ,
Defendant and Appellant.
Appellant Florinda Camarillo Hernandez caused a head-on
collision while driving intoxicated. Appellant and the two
occupants of the other car were seriously injured and had to be
hospitalized. Appellant’s two-year-old daughter, who was in the
backseat, suffered a shoulder laceration. Appellant’s blood
alcohol content (BAC) was .18 percent. She did not remember the
collision.
Appellant was charged with felony driving under the
influence of alcohol causing injury (Veh. Code, § 23153, subd. (a);
count 1); driving with a .08 percent BAC causing injury (id., subd.
(b); count 2) and child abuse (Pen. Code, § 273A, subd. (a);1 count
3). As to counts 1 and 2, it was alleged that appellant personally
inflicted great bodily injury (GBI) on two victims (§ 12022.7,
subd. (a); Veh. Code, § 23558), and that the offenses were violent
felonies (§ 667.5, subd. (c)(8)). Count 2 further alleged appellant
had a BAC of .15 percent or higher (Veh. Code, § 23578).
Appellant pled no contest to the charges and admitted the
special allegations. She was sentenced to five years’ probation
and ordered to serve 365 days in county jail.
Nearly three years later, on August 25, 2018, appellant was
again arrested for driving under the influence of alcohol. Because
she had violated her probation terms, the trial court ordered a
90-day evaluation by a prison diagnostic facility pursuant to
section 1203.03. Based on that evaluation, the warden
recommended a prison sentence, finding appellant “does present
an unreasonable burden and or threat to the safety of the
community.” The court subsequently revoked probation and
sentenced appellant to seven years, four months in state prison,
consisting of the lower term of 16 months on count 1, plus three
years for each of the two GBI enhancements. The sentence on
count 2 was stayed and the sentence on count 3 was ordered to
run concurrently with the sentence on count 1.
Appellant contends the trial court abused its discretion by
revoking her probation and imposing a prison sentence. She also
claims the court erred by not striking one of the GBI
enhancements. We affirm.
1All further statutory references are to the Penal Code
unless otherwise stated.
2
FACTUAL AND PROCEDURAL BACKGROUND
At 2:00 a.m. on November 10, 2015, appellant was driving
at an excessive speed in the rain without headlights. She drove
up onto a curb and then veered across the double yellow lines into
oncoming traffic. A driver traveling the other way was unable to
avoid the head-on collision. Appellant’s blood alcohol content
(BAC) was .18 percent. All four occupants of the vehicles were
injured.
After the collision, appellant successfully completed an
outpatient substance abuse treatment program, and her
daughter was returned to her care in July 2016. Appellant was
required to submit to regular testing and to attend weekly
Alcoholics Anonymous meetings.
The prosecution sought a prison sentence at the 2017
sentencing hearing. The trial court granted probation but
warned appellant that if she ever violated probation, particularly
due to drinking alcohol, she “could land . . . in state prison in a
heartbeat.” Appellant said she understood.
At 1:00 a.m. on August 25, 2018, Police Officer Frank
Medina pulled over a car that did not have rear lights and had a
towel over the license plate. Appellant was in the driver’s seat
and her daughter was in the backseat. A man was in the front
passenger seat. When the officer asked appellant if she had been
drinking, appellant said she had not but then admitted having a
few beers. She was arrested after failing three field sobriety
tests. Her BAC was between .15 percent and .17 percent.
Until that violation, appellant had satisfactorily performed
all probation conditions and was classified as a low supervision
case. Appellant testified that she started drinking heavily after
high school, which made her “happy for the first time.” She quit
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drinking after the 2015 offense and did not drink alcohol again
until the night of her second arrest. She drank that night
because she found inappropriate videos of her boyfriend on his
phone. When asked if she regretted that decision, she answered,
“If I could go back to that time I would still have the same
reaction. I would still drink. There’s no other way to think.”
The trial court sympathized with appellant’s life
circumstances but noted “that doesn’t excuse somebody from
putting other people’s lives at risk.” The court emphasized that
everyone in the 2015 collision was injured and that appellant’s
BAC on both occasions was approximately .17 percent.
The trial court sentenced appellant to prison because (1)
her 2015 offense was “incredibly serious” and caused injuries
from which the victims “may never recover”; (2) appellant
admitted that if she could go back in time, she would still drink
alcohol in response to seeing the videos on her boyfriend’s phone;
(3) appellant “flat out violated the terms of [her] probation”; (4)
the court could not trust appellant not to drink alcohol and (5)
the court would feel responsible if appellant drove again while
intoxicated and killed someone.
Appellant asked for a second chance. The court explained
she already had been given that chance and that “[i]n these kinds
of situations the court is not going to give another opportunity for
somebody else to get hurt.”
DISCUSSION
Revocation of Probation
“[S]ection 1203.2, subdivision (a) authorizes a trial court to
revoke probation ‘if the interests of justice so require and the
court, in its judgment, has reason to believe from the report of the
probation officer or otherwise that the person has violated any of
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the conditions of his or her probation . . . .’” (People v. Jackson
(2005) 134 Cal.App.4th 929, 935.) “‘As the language of section
1203.2 would suggest, the determination whether to . . . revoke
probation is largely discretionary.’ [Citation.] ‘[T]he facts
supporting revocation of probation may be proven by a
preponderance of the evidence.’ [Citation.] However, the
evidence must support a conclusion the probationer's conduct
constituted a willful violation of the terms and conditions of
probation.” (People v. Galvan (2007) 155 Cal.App.4th 978, 981-
982.)
“‘The discretion of the [trial] court to revoke probation is
analogous to its power to grant the probation, and the court’s
discretion will not be disturbed in the absence of a showing of
abusive or arbitrary action. [Citations.]’ [Citation.] ‘Many times
circumstances not warranting a conviction may fully justify a
court in revoking probation granted on a prior offense.
[Citation.]’ [Citation.] ‘“[O]nly in a very extreme case should an
appellate court interfere with the discretion of the trial court in
the matter of denying or revoking probation. . . .”’ [Citation.]
And the burden of demonstrating an abuse of the trial court’s
discretion rests squarely on the defendant.” (People v. Urke
(2011) 197 Cal.App.4th 766, 773.)
Appellant contends the trial court abused its discretion by
revoking probation and sentencing her to state prison. She
concedes her offenses do not qualify for Proposition 36 relief but
maintains California’s increasing use of diversion and
rehabilitative programs to treat defendants with addiction and
mental illness required reinstatement of probation. We disagree.
This type of rehabilitative approach is geared toward defendants
who committed drug possession crimes or other less serious
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offenses. (See § 1210.1, subd. (a); People v. Goldberg (2003) 105
Cal.App.4th 1202, 1206-1207.)
As the People point out, appellant gave the trial court little
choice but to impose a prison sentence after she seriously injured
multiple people, including herself, in the 2015 collision and then
became intoxicated again which resulted in a second arrest.
Appellant claims she was not driving the car, and her passenger
did come forward and say he was driving. Even if that is true,
however, appellant had a BAC of .17 percent and her young
daughter was with her in the car at 1:00 a.m. Appellant’s
probation terms prohibited her from “drink[ing] or possess[ing]
any alcoholic beverages.”
The trial court was particularly troubled by appellant’s
admission that even if she could go back to that night, she would
still drink under the circumstances. The court stated: “So what
does that tell the court? Her daughter doesn’t matter. People in
the community don’t matter. All that matters is how she feels
and how she deals with her feelings. And that tells the story.”
It was well within the trial court’s discretion to decline to
risk public safety by reinstating probation. Appellant had been
given an opportunity to avoid prison but demonstrated she could
not or would not rehabilitate on probation and that prison was
the only viable alternative. (See People v. Kingston (2019) 41
Cal.App.5th 272, 278 [“When the record reveals that a
defendant’s violation of the terms of probation was the result of
irresponsible or willful behavior, termination of probation and
imposition of a prison sentence is no abuse of discretion”].)
GBI Enhancement
Defense counsel asked the trial court to strike one of the
three-year GBI enhancements under section 1385. Counsel noted
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appellant has a young daughter, was working full time before her
second arrest and had abided by her probation terms prior to that
arrest. Appellant argues the denial of this request was an abuse
of discretion.
Section 1385 authorizes a trial court to strike or dismiss a
GBI enhancement or “the additional punishment for that
enhancement in furtherance of justice. . . .” (Id., subd. (b)(1); see
People v. Flores (2005) 129 Cal.App.4th 174, 178.) The decision
not to strike an enhancement is reviewed for abuse of discretion.
(People v. Carmony (2004) 33 Cal.4th 367, 373 (Carmony).)
In declining to strike one of the GBI enhancements, the
trial court determined such action “would discount the injury to
the other victim completely.” Appellant contends the trial court
failed to weigh all the appropriate factors in assessing whether to
strike the enhancement. These factors include the defendant’s
background, character and prospects, the prior conviction and the
nature and circumstances of the present offense. (People v. S.M.
(2017) 9 Cal.App.5th 210, 220.) The record reflects, however,
that the court considered these factors in electing to impose the
low term on count 1.
The injuries to the two victims were serious and required
hospitalization. The driver suffered a lower leg injury and was
unable to walk. The passenger was unconscious and halfway out
the door when officers arrived. Upon arrival at the hospital, she
was admitted to the intensive care unit. She “suffered injury to
her head which has resulted in migraines and memory loss. She
now has back problems which will require surgery [per the
doctor]. She has nerve damage to her right[-]hand fingers . . . ,
[and] is now disabled as she cannot retain information and has to
be heavily sedated due to the migraines.”
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Given the seriousness of the victims’ injuries, and the
likelihood that one of them will never fully recover, we cannot
conclude the court’s “decision is so irrational and arbitrary that
no reasonable person could agree with it.” (Carmony, supra, 33
Cal.4th at p. 377.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
TANGEMAN, J.
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James K. Voysey, Judge
Superior Court County of Santa Barbara
______________________________
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, William H. Shin and Roberta L.
Davis, Deputy Attorneys General, for Plaintiff and Respondent.
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