Filed 4/27/22 P. v. Roque CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

SAMANTHA ROQUE,

Defendant and Appellant.

F080242

(Super. Ct. No. 18CMS0210)

OPINION

APPEAL from a judgment of the Superior Court of Kings County. Robert S.

Burns, Judge.

Robert F. Kane, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Kari 

Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

INTRODUCTION

Defendant Samantha Roque was convicted by jury of one count of gross vehicular 

manslaughter while intoxicated, in violation of Penal Code section 191.5, 

subdivision (a).1 She was sentenced to the middle term of six years (§ 191.5, 

subd. (c)(1)) and was ordered to pay $7,500 in restitution to the California Victim 

Compensation Board; a $300 restitution fine under section 1202.4, subdivision (b)(1); a 

parole revocation restitution fine of $300 under section 1202.45, subdivision (a), 

suspended; a $40 court operations assessment under section 1465.8, subdivision (a)(1); 

and a $30 court facilities fee under Government Code section 70373, subdivision (a)(1).

Defendant claims there was no substantial evidence to support the jury’s finding of 

gross negligence; that the trial court erroneously precluded evidence related to the 

victim’s failure to use a seatbelt; that the trial court improperly denied probation and 

abused its discretion in sentencing defendant to the middle term; and that the trial court 

violated defendant’s constitutional rights by failing to conduct an ability-to-pay hearing 

with respect to the $370 of fines and fees imposed. For the reasons set forth below, we 

reject defendant’s contentions and affirm the judgment.

BACKGROUND

I. Prosecution’s Case-in-chief

At approximately 11:30 p.m. on February 16, 2018, California Highway Patrol 

(CHP) officer Jonathan Yale was dispatched to the scene of a traffic accident on 

Highway 41 at Madison Avenue between Lemoore and Kettleman City. This specific 

section of Highway 41 contains two traffic lanes, one for northbound traffic and one for 

southbound traffic.2 There are yellow-painted dashed lines between the lanes, and there 

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 The southbound lane is for traffic headed toward Kettleman City, while the northbound 

lane is for traffic headed toward Lemoore and Fresno.
3.

is a curve in the road, which Yale described as neither “abrupt” nor “‘natural,’” but 

somewhere in between.

The accident scene was dark, with no street lights. There was an overturned 

Toyota RAV4 on the “west” side of the highway (southbound shoulder), and a Dodge 

pickup truck on the “east” side (northbound shoulder) of Highway 41. Multiple 

witnesses and passengers were present; firefighters arrived before Yale and were 

performing cardiopulmonary resuscitation on a 10-year-old victim, M.M., who sustained 

fatal injuries. Defendant was sitting by her Dodge. The Dodge was missing its right 

front tire and the entire front, right of the vehicle was crushed, with the bumper displaced 

and the hood crumpled.

Yale first spoke with RAV4 driver, A.B. Yale then approached defendant, and 

Yale could smell alcohol emanating from her breath and her body; her eyes were red and 

watery; and she remained sitting. He asked defendant whether she had any sort of 

injuries or whether she needed medical assistance; defendant did not identify injuries and 

she had already declined medical care.

Defendant told Yale she had been driving home from a friend’s house in Lemoore 

toward Kettleman City when she collided with the RAV4. She denied using her cell 

phone while driving, she was not speeding, and she was wearing her seatbelt. The RAV4 

came into defendant’s southbound lane of traffic, and defendant attempted to swerve to 

the right, but she was unable to avoid the collision. The airbags had deployed.

As they talked, Yale became concerned defendant was under the influence. She 

was slurring her words and she had remained sitting while they were talking. When 

asked whether she had been drinking, defendant admitted she had consumed a single 

tequila shot about four or five hours prior to the collision; but she also said she had the 

shot of tequila one and one-half hours before she started driving.

Yale then subjected defendant to a variety of field sobriety tests, which are used to 

indicate whether someone may be under the influence, all of which defendant failed. 
4.

Defendant had noted prior to the tests that she had back pain issues, a wandering-eye 

condition, and that she was clumsy. Yale concluded defendant was possibly under the 

influence and offered her a preliminary alcohol screening (PAS) test. He explained she 

could refuse the test, but if she was arrested, she would be required to submit a blood or 

breath test. Defendant refused the PAS test, and Yale placed her under arrest and 

transported her to the hospital to test her blood-alcohol content (BAC).

On the way to the hospital, defendant and Yale had a conversation that was 

recorded and played for the jury at trial. Yale explained they were going to the jail, and 

defendant said “that’s fucked up” and she “shouldn’t be in jail” because she was “not 

fucked up drunk.” Yale said they were going to the hospital, and then defendant was 

“definitely going to jail.” Defendant responded, “What the fuck? I’m not that drunk. So 

I’m going to the hospital to confirm apparently that I’m that drunk?”

Yale explained to defendant that he suspected she was under the influence of 

alcohol, and he had offered her a PAS test at the scene, but she had declined. Defendant 

said she had no idea that was the purpose of the breath test at the scene, and questioned 

whether Yale automatically assumed that anyone who does not consent to that breath test 

is under the influence. Yale tried to explain defendant was mischaracterizing what he 

had told her, but defendant argued “[n]o, that’s completely what you’re saying. Because 

what you’re saying is hey, I didn’t do that test. Therefore, you feel like I’m under the 

influence. That’s literally exactly what you said.” After arguing more with Yale, 

defendant concluded, “[t]hat’s fine. Go ahead and take the fuckin’ blood test. [¶] 

Because you will see that I am not under the influence.”

A.B. testified that at the time of the accident, she was driving her mother’s RAV4 

in the northbound lane. A.B.’s mother was in the right front passenger seat, and A.B.’s 

daughter, sister and nephew were in the backseat. She was driving and talking with her 

mother; the road was clear and there was little traffic. A.B. saw white lights coming 

toward her in her lane, and she tried to turn the RAV4 left. Despite her attempt to avoid 
5.

the other vehicle, they were struck and the RAV4 flipped. A.B. lost consciousness for a 

while, and then she realized the car was upside down. She asked her sister if the kids 

were okay. Her nephew was unconscious when pulled out of the car and had blood on 

his mouth.

L.V., A.B.’s mother, testified she was sitting in the front passenger seat of the 

RAV4 at the time of the accident. Her two grandchildren and her daughter were in the 

backseat, and A.B. was driving. She saw a car coming into their lane, and she closed her 

eyes because she did not want to see what was going to happen. She was not hurt in the 

collision.

When Yale examined the scene, he discovered a gouge mark in the northbound 

lane, which he thought was caused by the Dodge since it had lost a front tire. When that 

happened, Yale explained the front tire scraped against the roadway. This indicated the 

Dodge was in the oncoming northbound lane at the time of collision, not the southbound 

lane. Yale explained the collision between the Dodge and the RAV4 went into a 

sideswipe along both vehicles’ passenger sides.

CHP Officer Nathan Howard took measurements and diagrammed the collision 

scene. There was a gouge mark on the roadway, and there were skid marks that indicated 

the RAV4 had applied its brakes; no similar brake marks were found from the Dodge. 

He opined the collision occurred because the Dodge traveled into the oncoming 

northbound lane where the roadway curves, the RAV4 made an evasive maneuver to the 

left to avoid the collision, and the collision and the sideswiping of both vehicles’ 

passenger sides occurred in the Dodge’s original southbound lane.

An independent witness testified she was driving behind an SUV in the 

northbound lane just before the accident. She saw a “flurry of sparks” in the southbound 

lane and the Dodge coming towards her in the northbound lane.

CHP Officer Donnie Conner performed inspections of both the Dodge and the 

RAV4. On the Dodge, testing showed the brakes and the steering functions were intact at 
6.

the time of the collision. Conner did not look at the brakes or the steering on the RAV4; 

he was asked to focus on the seatbelt restraint system. He determined the driver’s and 

right front passenger’s seatbelts were being used at the time of the collision, but none of 

the three seatbelts in the RAV4’s backseat were used. The right rear seatbelt could not be 

buckled at all; it was possible that seatbelt was inoperable before the collision.

Criminalist Greg Masters analyzed defendant’s blood draw sample and the tests 

indicated an average BAC of 0.189 percent. In this case, based on elimination rates, 

defendant’s BAC would have been about 0.22 percent two hours before the blood draw. 

At that BAC, a person would not be able to safely operate a vehicle. For a 190-pound 

female who drank seven hours before this blood draw, to achieve a 0.189 percent BAC, 

defendant would have had to ingest about 15 to 17 ounces of 40 percent alcohol or 11 to 

12, 12-ounce beers at 4.5 percent alcohol. The criminalist opined someone with a BAC 

of 0.189 percent would be grossly impaired.

A pathologist opined M.M.’s death was caused by blunt force trauma of the head 

that caused a basilar skull fracture.

II. Defense Case

Officer Yale was recalled by the defense and testified A.B.’s sister was seated in 

the left rear of the RAV4; M.M. was in the right rear seat; and the female minor was in 

the center rear seat. He reached out to several witnesses after the accident and prepared a 

traffic collision report. His report indicated defendant had told him she bumped her head 

during the accident. He recalled it was difficult to get answers from defendant because 

she was not providing complete responses; while she said she had stopped drinking five 

hours before the accident, she also contrarily said she had stopped drinking one and onehalf to two hours before.

Defendant testified in her own defense. On the day of the accident, she had been 

at a family barbeque in Lemoore since around 3:00 p.m. She had food and alcohol at the 

party, but she was not sure when she started drinking and she could not remember how 
7.

much she had to drink. She also did not recall when she stopped drinking for the 

evening. She left the party around 11:00 p.m. to go home to Kettleman City. She felt 

okay when she left; she did not feel intoxicated. She took Highway 41 for the return trip, 

with which she was very familiar. She was wearing her seatbelt and she was not using a 

cell phone. She did not have the radio on, and she was driving the speed limit as she 

always does on that road.

While she was driving, a vehicle coming the opposite direction drove into her 

lane; defendant pulled on the wheel, but was unable to avoid the accident. She could not 

remember much after the accident, and she did not recall the impact. She regained 

consciousness in the Dodge and saw the airbags had deployed and the windows were 

broken out. She was confused and the next thing she remembered was being outside of 

the truck.

She was confused when she was talking to Yale; she may have sat down, but she 

could not remember. She recalled telling Yale where she had been before the collision, 

and that she had been driving the speed limit. She was unable to communicate all of the 

details because she did not remember all of it. She could not recall if he asked about her 

injuries or medical treatment, but he asked about her alcohol consumption. She informed 

him she had some alcohol, but could not remember saying how much she consumed.

She was arrested and taken to the hospital, where she had her blood drawn. No 

other tests were done, but she could not remember being offered any other tests. She was 

then taken to the county jail. At some point, she learned the details of the accident.

She could not remember telling the officer she had only one shot of tequila; she 

could not recall if she had a single shot—it could have been one drink, it could have been 

10. She got behind the wheel knowing she had consumed alcohol, but she did not recall 

what she had been drinking. She acknowledged it was possible she missed the curve in 

the road and that she caused the accident. She remembered hitting the brakes, and she 

told the officer that. She believed she bumped her head during the accident, but she was 
8.

not hospitalized for any kind of head injury. She acknowledged she knew it was 

dangerous to drink and drive and that traffic collisions can result in injury or death, but 

she did it anyway.

III. Prosecution Rebuttal Case

The prosecution called CHP Sergeant John Kolter, who conducted an in-depth 

accident investigation. From the RAV4’s data, he determined that vehicle was traveling 

at 65.9 miles per hour 4.1 seconds before the collision; at one-tenth of a second before the 

crash, the RAV4’s speed was down to 39.8 miles per hour. The RAV4 was operating in 

cruise control mode before the crash; there was no data available from the Dodge.

IV. Verdict and Sentencing

The jury found defendant guilty of gross vehicular manslaughter while 

intoxicated, and she was sentenced to the middle term of six years.

DISCUSSION

I. Substantial Evidence of Gross Negligence

Defendant was convicted of gross vehicular manslaughter while intoxicated under 

section 191.5, subdivision (a). That provision states, in relevant part, “[g]ross vehicular 

manslaughter while intoxicated is the unlawful killing of a human being without malice 

aforethought, in the driving of a vehicle, where the driving was in violation of 

Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the 

proximate result of the commission of an unlawful act, not amounting to a felony, and 

with gross negligence, or the proximate result of the commission of a lawful act that 

might produce death, in an unlawful manner, and with gross negligence.” (Ibid.)

Defendant disputes the sufficiency of evidence of the element of gross negligence, 

while the People maintain there was ample evidence to support the jury’s finding.
9.

A. Standard of Review

We review this claim under the familiar substantial evidence standard of review. 

We are required to view the “whole record in the light most favorable to the judgment” 

and determine if there is “substantial evidence—that is, evidence which is reasonable, 

credible, and of solid value—such that a reasonable trier of fact could find the defendant 

guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) The 

“uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless 

the testimony is physically impossible or inherently improbable.” (People v. Scott (1978) 

21 Cal.3d 284, 296.) As a reviewing court, we may not reweigh the evidence or consider 

the relative strength of contrary findings; instead, we must “presume every fact in support 

of the judgment the trier of fact could have reasonably deduced from the evidence.” 

(People v. Albillar (2010) 51 Cal.4th 47, 60.)

B. Analysis

The California Supreme Court has explained that “[g]ross negligence is the 

exercise of so slight a degree of care as to raise a presumption of conscious indifference 

to the consequences. [Citation.] ‘The state of mind of a person who acts with conscious 

indifferences to the consequences is simply, “I don’t care what happens.”’ [Citation.] 

The test is objective: whether a reasonable person in the defendant’s position would have 

been aware of the risk involved.” (People v. Bennett (1991) 54 Cal.3d 1032, 1036 

(Bennett); accord, People v. Ochoa (1993) 6 Cal.4th 1199, 1204 (Ochoa).)

This degree of negligence cannot be supported by the “‘mere fact’” that a driver 

violates a traffic law while legally intoxicated—gross negligence requires something 

more. (Bennett, supra, 54 Cal.3d at p. 1036.) To determine negligence and its degree, 

the jury must holistically examine “all relevant circumstances, including [the] level of 

intoxication, to determine if the defendant acted with a conscious disregard of the 

consequences rather than with mere inadvertence.” (Id. at p. 1038.)
10.

Defendant maintains any evidence of negligence here does not rise to the level of 

gross negligence: she committed no traffic violations nor was she driving erratically at 

the time of the accident; she had no criminal record for driving while intoxicated or any 

other crime; and of the five people in the RAV4, only M.M. was hurt and that was just 

because he was not wearing a seatbelt. In view of this, defendant argues the jury’s 

finding of gross negligence must rest solely on the mere fact of her intoxication, which 

legally is insufficient. Defendant cites several other cases, including Ochoa, where 

courts discussed evidence of gross negligence in the context of drunk driving, and she 

argues the facts here are much less egregious than any of those.

In Ochoa, the high court found sufficient evidence of gross negligence where the 

defendant’s BAC was as high as 0.15 percent at the time of the accident; he had exceeded 

the posted speed limit by at least 15 miles per hour at times; and he wove his vehicle in 

and out of adjoining lanes abruptly, without signaling, and without braking to avoid 

colliding with the vehicle carrying the victims who were killed as a result. (Ochoa,

supra, 6 Cal.4th at pp. 1202–1203.) The defendant had prior convictions for driving 

under the influence of alcohol and was fully aware of the associated risks. (Id. at 

p. 1203.)

In People v. Von Staden (1987) 195 Cal.App.3d 1423 (Von Staden), the court 

concluded there was ample evidence of gross negligence, including that the defendant 

ignored his host’s urging that he not drive while intoxicated; his BAC was 0.22 percent at 

the time of the accident; and he drove 30 miles per hour over the speed limit on a dark, 

foggy night on a curved road. (Id. at pp. 1426, 1428.)

In Bennett, the defendant was seen weaving in and out of traffic lanes; he crossed 

a double yellow centerline and passed three cars; he was driving about 10 miles over the 

speed limit when he lost control of the vehicle and crashed, killing one of his passengers; 

and two hours after the accident, his BAC tested at 0.20 percent. (Bennett, supra, 54 

Cal.3d at pp. 1034–1035.) Our high court held the trial court did not err by instructing 
11.

the jury it was to consider the overall circumstances of the defendant’s intoxication or the 

manner in which he drove, or both, to determine whether the defendant’s conduct 

constituted gross negligence. (Id. at p. 1038.) The court cited Von Staden with approval 

and observed that a driver’s level of intoxication is an integral aspect of the driving 

conduct the jury may consider in determining gross negligence. (Bennett, supra, at 

p. 1038.)

Finally, in People v. Hansen (1992) 10 Cal.App.4th 1065, the defendant drove 

erratically on a winding mountain road, entering the oncoming lane of traffic and 

speeding as he negotiated the curves; refused his passengers’ pleas to slow down or pull 

over; and ultimately drove over a cliff, killing one of the passengers. (Id. at pp. 1068–

1070.) The defendant’s BAC measured 0.20 percent. (Id. at p. 1070.) The chief issue on 

appeal was whether the trial court erred in permitting the prosecution to argue a theory of 

liability under section 191.5 based in part on the defendant’s failure to ensure his 

passengers were seatbelted. (Id. at pp. 1072–1073.) In concluding the trial court had not 

erred, the court noted “gross negligence was clearly evidenced in this case” even if the 

defendant had been driving flawlessly because he failed to heed requests from his 

passengers to slow down, failed to ensure they used seatbelts, and ignored one 

passenger’s express request for help finding a seatbelt. (Id. at p. 1078.)

While the facts of these cases might include more egregious driving conduct as 

defendant claims, a factual comparison of other cases is not especially helpful when 

reviewing for substantial evidence. (See People v. Thomas (1992) 2 Cal.4th 489, 516 

[“When we decide issues of sufficiency of the evidence, comparison with other cases is 

of limited utility, since each case necessarily depends on its own facts.”].) Moreover, 

none of these cases purports to encapsulate a minimum evidentiary showing of gross 

negligence.

Here, expert testimony established defendant’s BAC was more than two times the 

legal limit: she tested at 0.189 percent two hours after the accident; and the criminalist 
12.

opined defendant’s BAC would have been approximately 0.22 percent at the time of the 

accident. Gross negligence can be shown by the level of the defendant’s intoxication: 

“one who drives with a very high level of intoxication is indeed more negligent, more 

dangerous, and thus more culpable than one who drives near the legal limit of 

intoxication, just as one who exceeds the speed limit by 50 miles per hour exhibits greater 

negligence than one who exceeds the speed limit by 5 miles per hour.” (Von Staden,

supra, 195 Cal.App.3d at p. 1428.) A reasonable jury could conclude this was an 

excessive BAC level and led to defendant driving her vehicle in the opposing lane of 

traffic, despite oncoming cars. (Bennett, supra, 54 Cal.3d at p. 1038 [level of 

intoxication is “integral aspect” of the driving conduct relevant to whether the defendant 

acted with conscious disregard of the consequences rather than with mere indifference].)

The criminalist also testified that a woman of defendant’s proportions would not 

register a 0.22 or a 0.189 percent BAC after only one shot of tequila as defendant told the 

officer was the limit of her alcohol intake prior to the accident. The criminalist opined it 

would have taken about 15 to 17 ounces of a 40 percent alcoholic beverage for defendant 

to obtain BAC levels of 0.189 percent or more; and a person at 0.189 percent BAC would 

be grossly impaired and unsafe to operate a vehicle. A reasonable jury could infer from 

this evidence that defendant knew she was highly intoxicated when she decided to drive 

because of how much alcohol she would have had to ingest to reach such a high BAC 

level. Defendant also acknowledged during cross-examination that she knew it was 

dangerous to drink and drive, but still made the decision to do so. (See Ochoa, supra, 6 

Cal.4th at p. 1208 [trier of fact could conclude from the defendant’s course of conduct 

and preexisting knowledge of the risks that he exercised so slight a degree of care as to 

exhibit conscious indifference concerning ultimate consequences of actions].)

The jury also knew defendant’s route home was a 30-minute highway drive, which 

she undertook at night. A reasonable jury could conclude that taking this drive exhibited 

a conscious indifference to the consequences: longer driving distances on well-traveled 
13.

roadways increase the likelihood of encountering other vehicles or obstacles (e.g., 

animals or debris) that require higher levels of focus and attention, especially at night; 

and highway driving is associated with higher speed limits—here, the jury knew the 

speed limit was 55 miles per hour. Accidents on a highway, as opposed to surface 

streets, are almost certainly going to involve greater vehicle speeds, increasing the 

chances of injury. When defendant veered into the oncoming lane of traffic on 

Highway 41, these additional risks defendant knowingly undertook set the stage for 

exactly the type of tragic accident that occurred—seconds before the accident, both 

vehicles were traveling at more than 50 miles per hour, and when A.B. tried to avoid the 

vehicle in her lane, she was unable to do so, and the RAV4 flipped over, killing one of 

the passengers.3

In sum, there was substantial evidence from which a reasonable jury could infer 

and find defendant ingested a large amount of alcohol and became highly intoxicated; 

reasonably knew she was highly intoxicated; and, despite knowing the risks of driving 

drunk, decided to drive 30 minutes home on a dark highway late at night, veered into 

oncoming traffic, and caused an accident that killed a passenger in an oncoming vehicle. 

This evidence was sufficient to support the jury’s finding defendant’s conduct rose above 

simple negligence and constituted gross negligence.

II. Exclusion of Seatbelt Evidence

Defendant argues the trial court erred in excluding the evidence that M.M. was not 

wearing a seatbelt at the time of the accident.

A. Background

At the preliminary hearing in September 2018, Officer Yale testified that when he 

spoke to L.V. on the night of the accident, she did not report any defect with a seatbelt in 

3 While there was a factual dispute whether defendant’s vehicle was the first to enter the 

oncoming lane, the jury was entitled to, and necessarily did, resolve this factual dispute against 

defendant.
14.

her RAV4. When he followed up with her after the accident, she told him she had taken 

the vehicle to the dealership before the collision to have the seatbelts inspected and she 

had scheduled an appointment for the day after the collision to have one of the belts 

replaced. A.B. denied any knowledge of a seatbelt defect when interviewed after the 

accident. M.M.’s mother, E.A., reported to a different officer that she and her niece had 

been wearing seatbelts during the accident. Another witness who Yale interviewed said 

M.M. had not been buckled in when she found him and pulled him out of the vehicle.

On September 5, 2019, both parties filed motions in limine. Defendant sought to 

admit evidence that M.M. was not wearing his seatbelt as relevant to establish the totality 

of the circumstances of the accident, defendant’s degree of negligence, and as to the 

proximate cause of M.M.’s death; the prosecution sought to exclude this evidence as 

irrelevant.

At the hearing, defense counsel argued the seatbelt evidence was relevant “[j]ust 

to the totality because the facts are in dispute, and then whose—whose conduct caused 

the accident.” The court explained it had reviewed authority holding the seatbelt status of 

a victim who is not in the defendant’s vehicle is not relevant because it is not part of the 

causation analysis; the court ruled tentatively that the seatbelt evidence was not relevant, 

but informed the parties that if “something pops up where you think it becomes relevant 

we can revisit that.”

At trial, after L.V. and A.B. had testified and were excused, the People called 

Officer Conner, who testified that none of the seatbelts in the rear of the RAV4 were in 

use at the time of the collision, and the right rear passenger seatbelt where M.M. had been 

sitting was retracted and locked into place. Conner testified it was possible that seatbelt 

was inoperable before the collision.

Defendant argues the trial court erred in excluding the seatbelt evidence because it 

was relevant to causation, defendant’s degree of gross negligence, and for impeachment 

and credibility purposes. Further, the trial court’s error in excluding this evidence also 
15.

violated defendant’s constitutional rights to present a complete defense and confront 

witnesses. The People contend the seatbelt evidence was irrelevant and there was no 

abuse of discretion in excluding it. Moreover, even if there was error, the People argue it 

was harmless because the evidence was nonetheless admitted through Conner’s crossexamination.

B. Standard of Review

Relevant evidence includes all “evidence ... having any tendency in reason to 

prove ... any disputed fact that is of consequence to the determination of the action.” 

(Evid. Code, § 210.) A trial court’s decision to exclude evidence as irrelevant is 

reviewed on appeal for an abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 

205–206.) The trial court “‘has broad discretion in determining the relevance of evidence 

[citations] but lacks discretion to admit irrelevant evidence.’” (People v. Riggs (2008) 44 

Cal.4th 248, 289.)

C. Seatbelt Evidence Not Relevant to Causation

According to defendant, M.M.’s death was proximately caused by M.M.’s lack of 

a seatbelt, and M.M.’s mother’s failure to ensure he was wearing a seatbelt was a 

violation of Vehicle Code section 27360.5.4 Defendant argues M.M.’s mother’s criminal 

act in failing to ensure M.M. used a seatbelt and his unrestrained status were relevant as 

an intervening, superseding cause of M.M.’s death that should have been admitted as 

causation evidence.

4 Enacted in 2011 and effective January 1, 2012, Vehicle Code section 27360.5 provides as 

follows: “(a) A parent, legal guardian, or driver shall not transport on a highway in a motor 

vehicle ... a child or ward who is eight years of age or older, but less than 16 years of age, 

without properly securing that child or ward in an appropriate child passenger restraint system or 

safety belt meeting applicable federal motor vehicle safety standards. [¶] (b) Subdivision (a) 

does not apply to a driver if the parent or legal guardian of the child is also present in the motor 

vehicle and is not the driver.” Violation of this section is punishable by fines of $100 for a first 

offense and $250 for subsequent offenses. (Id., § 27360.6, subds. (a)(1), (b)(1).)
16.

Causation was among the essential elements of the charge of gross vehicular 

manslaughter while intoxicated—i.e., whether defendant’s grossly negligent conduct 

caused the death of another person. (See CALCRIM No. 590.) The actual, direct cause 

of death in this case was the blunt force trauma to M.M.’s head, as the pathologist 

testified. As such, it is proximate causation, not direct or actual causation, which, 

together with the requisite mens rea, determines defendant’s criminal liability. (People v. 

Sanchez (2001) 26 Cal.4th 834, 845.) To determine whether defendant proximately 

caused M.M.’s death, the jury was instructed that “[a]n act causes death if the death is the 

direct, natural, and probable consequence of the act and the death would not have 

happened without the act.” (CALCRIM No. 590; see People v. Schmies (1996) 44 

Cal.App.4th 38, 48 (Schmies) [“‘[F]or liability to be found, the cause of the harm not 

only must be direct, but also not so remote as to fail to constitute the natural and probable 

consequence of the defendant’s act.’”].)

“In general, ‘[p]roximate cause is clearly established where the act is directly 

connected with the resulting injury, with no intervening force operating.’” (Schmies, 

supra, 44 Cal.App.4th at pp. 48–49.) There may be more than one proximate cause of 

death (People v. Sanchez, supra, 26 Cal.4th at p. 847), but it is well established that the 

contributing negligence of a victim is not sufficient to absolve the defendant of criminal 

liability unless that negligence is an intervening force that constitutes a superseding 

cause. (People v. Cervantes (2001) 26 Cal.4th 860, 866–867 [the defendant may be 

criminally liable for a result directly caused by his or her act even though there is another 

contributing cause]; People v. Marlin (2004) 124 Cal.App.4th 559, 569 [crime victim’s 

contributory negligence is not a defense]; People v. Autry (1995) 37 Cal.App.4th 351, 

360 [contributing negligence of victim does not relieve criminal actor’s liability unless 

victim’s conduct was sole or superseding cause of death] (Autry).)

Here, the question presented is whether M.M.’s failure to wear a seatbelt was an 

intervening force that constituted a superseding cause of his death, breaking the chain of 
17.

causation arising from defendant’s act of driving while intoxicated, straying into the 

oncoming traffic lane, and causing the accident that led to M.M.’s fatal head injury. The 

Restatement Second of Torts, section 441, subdivision (1), states, “An intervening force 

is one which actively operates in producing harm to another after the actor’s negligent act 

or omission has been committed.” (See Schmies, supra, 44 Cal.App.4th at pp. 46–47

[principles of causation apply to crimes as well as civil torts]; People v. Sanchez, supra,

26 Cal.4th at p. 855 [criminal law relies on civil law formulations of concurrent and 

superseding cause].)

A superseding cause refers to an intervening force that breaks the chain of 

causation, “‘producing harm of a kind and degree so far beyond the risk the original 

[wrongdoer] should have foreseen that the law deems it unfair to hold him responsible.’” 

(People v. Sanchez, supra, 26 Cal.4th at p. 855 (conc. opn. of Kennard, J.); People v. 

Cervantes, supra, 26 Cal.4th at p. 871 [superseding cause is an independent intervening 

force].) On the other hand, if the intervening force or cause “‘“is a normal and 

reasonably foreseeable result of [the] defendant’s original act,”’” the intervening force is 

dependent and not a superseding cause, and it will not relieve a defendant of liability. 

(People v. Cervantes, supra, at p. 871.)

Relying on these principles, two Courts of Appeal have concluded victims’ lack of 

safety equipment to protect them against the harm caused by a drunk driver was not an 

intervening force as a matter of law and could not constitute a superseding cause to 

relieve the respective defendants of criminal liability. (Autry, supra, 37 Cal.App.4th at 

p. 360; People v. Wattier (1996) 51 Cal.App.4th 948 (Wattier).) In Autry, the defendant 

drove recklessly with a 0.22 percent BAC and ultimately plowed into and killed two 

highway construction workers. (Autry, supra, at pp. 355–357.) Upon trial, the defendant 

was convicted of two counts of second degree murder and two counts of driving with a 

BAC of 0.08 percent or more, causing bodily injury. (Id. at p. 355.)
18.

On appeal, the defendant argued the trial court erred in refusing to give an 

intervening or superseding cause instruction to the jury. (Autry, supra, 37 Cal.App.4th at 

p. 360.) The defendant had argued to the jury the construction company should have 

used an “attenuator truck” to protect its workers.5 (Autry, supra, at p. 357.) In rejecting 

this argument, the Court of Appeal pointed out the defendant’s requested instructions 

correctly stated that an intervening force that constitutes a superseding cause is one which 

relieves the criminal actor of responsibility and breaks the chain of cause after the 

defendant’s original act; the lack of an attenuator truck preexisted the defendant’s 

conduct. (Id. at p. 361.)

Moreover, the court observed the failure to provide an attenuator truck was the 

absence of an intervening force that failed to break the chain of the natural and probable 

consequences of the defendant’s conduct and, as such, could not be an intervening, 

superseding cause as a matter of law. The court applied the reasoning employed in 

People v. McGee (1947) 31 Cal.2d 229, where the high court concluded that a surgical 

delay after a shooting did not constitute an intervening force to relieve the defendant of

criminal liability for the shooting victim’s death. (Autrey, supra, 37 Cal.App.4th at 

p. 361, citing & quoting People v. McGee, supra, at p. 243.) The high court explained 

the “defendant cannot complain because no force intervened to save him from the natural 

consequence of his criminal act. The factual situation is in legal effect the same, whether 

the victim of a wound bleeds to death because surgical attention is not available or 

because, although available, it is delayed by reason of the surgeon’s gross neglect or 

incompetence. The delay in treatment is not in fact an intervening force; it cannot in law 

amount to a supervening cause.” (People v. McGee, supra, at p. 243.) The Autry court 

5 The defendant presented evidence that California Department of Transportation policy 

requires that an “‘attenuator truck’” follow behind roadway workers to absorb any collision if a 

vehicle veers into an area where workers are located; the victims’ construction company did not 

have such equipment. (Autry, supra, 37 Cal.App.4th at p. 357.)
19.

reasoned that similar to McGee, the defendant could not complain that a third party failed 

to take steps (providing an attenuator truck), which might have prevented the natural and 

probable consequences of the defendant’s conduct. (Autry, supra, at p. 361.)

In Wattier, the defendant was speeding and darting between traffic without 

signaling and tailgating other motorists. (Wattier, supra, 51 Cal.App.4th. at p. 951.) 

After attempting to pass a vehicle on the right shoulder, the defendant’s vehicle lost 

traction and careened into another vehicle that, in turn, whirled out of control and 

overturned. (Ibid.) An eight-year-old front passenger in that vehicle died of massive 

internal injuries; meanwhile, the defendant drove off without even slowing down. (Ibid.) 

The defendant was charged with vehicular manslaughter.

The prosecution sought to exclude any mention at trial that the little boy was not 

wearing a seatbelt at the time of the collision. (Wattier, supra, 51 Cal.App.4th at p. 952.) 

The defense objected and argued that if the victim had been properly belted, no death 

would have occurred. (Ibid.) The trial court ruled the seatbelt evidence was 

inadmissible, and the appellate court agreed. (Id. at pp. 952, 953.)

Relying on Autry, the court similarly reasoned that an intervening force is one 

occurring after the defendant’s act; moreover, the lack of a seatbelt was the absence of a 

force that failed to break the chain of the natural and probable consequences of the 

defendant’s conduct. (Wattier, supra, 51 Cal.App.4th at p. 953.) As a matter of law, the 

failure to wear a seatbelt was not an intervening force and, thus, could not constitute a 

superseding cause of the victim’s death. (Ibid.) As such, the court held the seatbelt 

evidence was irrelevant to the ultimate issue of the defendant’s criminal responsibility 

and concluded the evidence was properly excluded. (Id. at p. 955.)

We find the causation principles applied in Autry and Wattier operate equally here. 

As explained in both Autry and Wattier, a victim’s (or a victim’s employer’s) preexisting 

failure to take particular protective actions is not an intervening force as a matter of law. 

(Autry, supra, 37 Cal.App.4th at p. 361; Wattier, supra, 51 Cal.App.4th at p. 953.) Both 
20.

courts emphasized that third parties’ and/or the victims’ failure to take certain 

protective/preventative action preexisted the defendants’ conduct, which precluded that 

omission from being an intervening force. (Autry, supra, 37 Cal.App.4th at p. 361 [“an 

‘intervening’ or ‘superseding’ cause which relieves the criminal actor of responsibility is 

one which ‘breaks the chain of causation’ after the defendant’s original act”]; Wattier, 

supra, 51 Cal.App.4th at p. 953 [“a superseding cause must break the chain of causation 

after the defendant’s act before he or she is relieved of criminal liability for the resulting 

harm”].)

Neither court noted comment a. to subdivision (1) of section 441 of the 

Restatement Second of Torts, which states that “[a] force set in motion at an earlier time 

is an intervening force if it first operates after the actor has lost control of the situation 

and the actor neither knew nor should have known of its existence at the time of his 

negligent conduct.” However, even if comment a. to section 441, subdivision (1) of the 

Restatement Second of Torts means that the preexisting lack of a seatbelt here did not 

dispositively preclude it from constituting an intervening force, both courts relied on the 

separate fact that the absence of an attenuator truck and seatbelt were not forces at all: 

their absence as safety measures constituted the lack of a force that failed to break the 

chain of causation. (Autry, supra, 37 Cal.App.4th at p. 361; Wattier, supra, 51 

Cal.App.4th at p. 953.) The same holds true here. As Autry pointed out, this is 

analogous to the surgical delay in McGee that the Supreme Court held could not 

constitute an intervening force constituting a superseding cause as a matter of law. 

(Autry, supra, at p. 361, citing & quoting People v. McGee, supra, 31 Cal.2d at p. 243.)

Defendant contends Autry is too far removed from the facts of this case to have 

any analogous value because in Autry the defendant was able to admit evidence that the 

victims’ employer failed to protect its highway workers with an attenuator truck. Yet, the 

admission of this evidence in Autry does not affect the analysis. The appellate court 

pointed out the lack of an attenuator truck was evidence only of a concurrent cause that 
21.

did not warrant a superseding cause instruction; and there was no evidence the accident 

and resulting deaths were caused solely by the lack of a protective attenuator truck. 

(Autry, supra, 37 Cal.App.4th at pp. 361–362 [distinguishing People v. Glass (1968) 266 

Cal.App.2d 222, where road repair crew’s lack of safety precautions was relevant as the 

sole cause of a traffic accident and resulting death].) Similarly, here, there was no 

evidence the accident and resulting death was caused solely by M.M. being unbuckled. 

The lack of a seatbelt was not an intervening force as a matter of law—it was the absence 

of a force that failed to break the chain of causation and, thus, it could not constitute a 

superseding cause that would alleviate defendant’s criminal liability.

Defendant also argues Wattier’s reasoning as to seatbelts should not control here 

because the accident in that case occurred in 1993, and it was not decided on appeal until 

1997 when seatbelt use was not as widespread as it is now. Defendant maintains that by 

2018, when the accident occurred here, it would have been unlikely that M.M. would not 

be wearing a seatbelt, especially since his mother’s failure to ensure he was buckled was 

a criminal act.

This argument, however, presupposes M.M.’s failure to be seatbelted constituted 

an intervening force and fails to confront the causation principles relied on by Autry and 

Wattier. The subsequent factual question of whether an intervening force was so 

unforeseeable and extraordinary that it constitutes a superseding cause, which is 

defendant’s argument, is moot when there is no intervening force as a matter of law.

For the same reasons, the breach of M.M.’s mother’s legal duty to ensure M.M. 

was seatbelted did not constitute an intervening, superseding cause. (Autry, supra, 37 

Cal.App.4th at p. 360 [“contributory negligence of the victim or a third party does not 

relieve the criminal actor of liability, unless the victim’s or third party’s conduct was the 

sole or superseding cause of the death”].) Additionally, as explained in the Restatement 

Second of Torts, section 452, subdivision (1), the failure of a third person to act to 

prevent harm to another threatened by the actor’s negligent conduct is not a superseding 
22.

cause of such harm. Comment b. on subdivision (1) explains that “[i]f the third person is 

under a duty to the other to take such action, his failure to do so will subject him to 

liability for his own negligence, which is concurrent with that of the actor, for the 

resulting harm which he has failed to prevent; but his failure to perform his duty does not 

relieve the original actor of liability for the results of his own negligence.” (Rest. 2d 

Torts, § 452, subd. (1), com. b.)

This reasoning is underpinned by the public policy considerations that Wattier

touched upon: “A society cannot permit a defendant to escape responsibility for his or 

her criminal conduct simply because a victim [or a third party] was not ‘sufficiently’ 

cautious or perfect.” (Wattier, supra, 51 Cal.App.4th at p. 954.) M.M’s mother had a 

legal obligation to properly seatbelt her child under Vehicle Code section 27360.5 to 

mitigate the potential danger that vehicle travel poses—sometimes created by willful, 

criminal and/or reckless acts of other drivers, and other times stemming from things like 

drivers navigating sudden obstacles in the roadway, vehicle mechanical failures, 

inattention, misjudgment, and bad weather, to name just a few. M.M.’s mother is 

responsible for her own conduct, which may have contributed to M.M.’s death, but her 

contributory negligence does not negate defendant’s criminal liability for proximately 

causing M.M.’s death.

For the reasons articulated in Autry, Wattier, and McGee, M.M.’s lack of a seatbelt 

here was not a force at all, but the absence of a force that failed to break the chain of 

causation—it was not an intervening, superseding cause as a matter of law. As such, it 

was not evidence that could relieve defendant of criminal liability for proximately 

causing M.M.’s death, and it was irrelevant to the ultimate issue of defendant’s criminal 

responsibility. The trial court did not err by excluding the seatbelt evidence as irrelevant 

to the issue of causation.
23.

D. Other Relevance of Seatbelt Evidence

Defendant additionally argues the seatbelt evidence was relevant to the jury’s 

consideration of whether her conduct was grossly negligent. We disagree. Gross 

negligence is determined from the overall circumstances “‘of the defendant’s conduct

resulting in the fatal accident.’” (Bennett, supra, 54 Cal.3d at p. 1039, italics added, fn. 

omitted.) This includes the level of defendant’s intoxication, the manner of driving, and 

anything else relevant to defendant’s conduct resulting in the fatal accident. In People v. 

Hansen, the victim’s seatbelt status was relevant because the victim was a passenger in 

the defendant’s vehicle, and the defendant had a legal obligation to ensure passengers had 

operable seatbelts that were buckled. (People v. Hansen, supra, 10 Cal.App.4th at 

pp. 1068, 1077–1078.) Outside that particular context, we are aware of no authority, and 

defendant cites none, that a victim’s seatbelt status is relevant to the degree or the 

existence of the defendant’s gross negligence.

Finally, defendant maintains she should have been able to explore the seatbelt 

evidence as relevant to A.B.’s credibility—both as a matter of state evidentiary law and 

under her right to present a complete defense and confront witnesses under the federal 

Constitution. Defendant contends L.V. told officers she was aware of a preexisting 

defect in M.M.’s seatbelt, yet A.B. told police everyone in the backseat was buckled. 

Defendant argues she should have been able to explore A.B.’s preexisting knowledge of 

the seatbelt defect as relevant to her overall credibility, which was important because 

A.B. testified defendant came into her lane of traffic. By the time the prosecutor’s expert 

testified that none of the seatbelts in the rear of the victim’s vehicle were in use at the 

time of the accident—opening the door for cross-examination on the seatbelt testimony—

A.B. and L.V. had already testified. Thus, although evidence of M.M.’s lack of a seatbelt 

was ultimately admitted, it came too late for defendant to use it to explore A.B.’s 

credibility.
24.

Defendant, however, never presented this theory of relevance to the trial court and 

may not predicate error on a theory that was not presented below. (See People v. Ramos 

(1997) 15 Cal.4th 1133, 1179 [the defendant failed to preserve relevance issue for 

appellate review where he failed to explain relevance of evidence or otherwise establish 

its admissibility at trial]; see also People v. Casares (2016) 62 Cal.4th 808, 830 [failure at 

trial to advance other basis of relevance beyond credibility forfeited argument on appeal], 

disapproved on another ground by People v. Dalton (2019) 7 Cal.5th 166, 214.)

At the motion in limine hearing, the trial court left open the possibility that 

proceedings at trial might render seatbelt evidence relevant and expressly indicated the 

ruling could be revisited. Defendant never argued at the hearing or in her motion in 

limine that L.V.’s preexisting knowledge of the seatbelt defect and A.B.’s statement to 

police that everyone was seatbelted could be relevant to A.B.’s or L.V.’s general 

credibility.6 Defendant also did not seek to elicit testimony about A.B.’s or L.V.’s 

knowledge of RAV4 seatbelt defects for credibility purposes when they testified. 

Moreover, the record does not reflect any objection or request to recall A.B. and L.V. for 

further cross-examination on this basis after the prosecution’s expert testified about his 

investigation of the RAV4’s seatbelts. (See People v. Flynn (1958) 166 Cal.App.2d 501, 

511 [recalling of a witness excused by all parties for further cross-examination is a matter 

committed to sound discretion of court]; see also Evid. Code, § 774 [court has discretion 

to permit reexamination of a witness].)

Having concluded the court did not abuse its discretion by ruling the seatbelt 

evidence was irrelevant to issues of causation and the gross negligence of defendant, we 

also reject defendant’s claim that the exclusion of this evidence violated her various 

rights under the federal Constitution. (People v. Prince (2007) 40 Cal.4th 1179, 1243 

6

In other words, defendant argues she should have been able to explore whether A.B. 

knew M.M.’s seatbelt was inoperable and, thus, lied to the police when she told them everyone 

was belted at the time of the accident.
25.

[rejecting the defendant’s claims “‘that the trial court’s exclusion of the proffered 

evidence violated his federal constitutional rights to present a defense, to confront and 

cross-examine witnesses, and to receive a reliable determination on the charged ... 

offense [because] [t]here was no error under state law, and we have long observed that, 

“[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the 

accused’s [state or federal constitutional] right to present a defense”’”].)

III. Trial Court’s Sentencing Choices

Defendant argues the trial court abused its discretion in denying probation and 

imposing the six-year middle term.

A. Background

A probation officer interviewed defendant and noted defendant appeared to be 

genuinely remorseful and took full responsibility for her actions. Defendant told the 

officer she did not have a prior record and was not a regular drinker. The officer noted 

defendant was intoxicated at twice the legal limit during the accident, she had caused the 

death of one victim and emotional trauma to the other victims, but she had no prior 

record.

The probation officer recommended that probation be denied: “Although the 

defendant does not have a prior criminal history, the present matter before the Court is an 

example of negligence on the defendant’s part which caused the death of a 10-year-old 

boy which could have been prevented. However, most concerning is the fact that the 

defendant’s [BAC] was extremely high and, although she told the investigating officer on 

the scene that she only had ‘a shot of tequila,’ it does not coincide with the defendant’s 

driving pattern, coupled with the fact that she performed extremely poor on her field 

sobriety tests. [¶] The communities all around this nation have heard countless reports of 

deaths caused by drunk drivers; therefore, there is no excuse when someone gets behind 

the wheel intoxicated. This is especially true in the defendant’s case, where she was 

planning to drive an approximate 30-minute drive from Lemoore to Kettleman City. 
26.

Therefore, this officer is respectfully recommending the defendant be denied a grant of 

probation. After reviewing all the circumstances in this matter, as well as the aggravating 

and mitigating factors, this officer finds it appropriate to recommend the middle term of 

six years state prison.”

Defendant filed a sentencing brief seeking a grant of probation. Defendant noted 

she had been incarcerated for nearly a year and a half without incident; she was granted a 

two-day release to attend her grandfather’s funeral and she complied with all orders 

during her release and returned to jail as required. Defendant emphasized her lack of any 

criminal history; her belief the circumstances of her offense were much less serious than 

those typically presented for convictions under section 191.5, subdivision (a); and that 

justice would be best served by granting probation.

In denying probation and imposing the middle term of six years, the court 

indicated as follows:

“I would note that [defendant] was convicted of a violation of ... 

section 191.5[, subdivision (a)], gross vehicular manslaughter while 

intoxicated. It occurred when she was driving on a highway that had an 

S curve. She drove through the S curve into the oncoming flow of traffic 

hitting the side of the victim’s vehicle causing the victim’s vehicle to roll 

over and off the roadway.

“The one passenger in that vehicle was [M.M.], who was ten years 

old, and he was killed as a result of the accident. And the defendant’s 

[BAC] at the time was a—it was a .18, .19. That was the evidence during 

the tr[ia]l.

“In looking at a grant of probation the defendant was an active 

participant. She did inflict physical injury and emotional injury. The injury 

to [M.M.] was an element of the offense, and that’s not what I’m referring 

to, but there does appear to be both physical injury to the other participants 

and clearly emotional trauma as a result of the accident and the injury that 

[defendant] caused.

“Her prior criminal record consists solely of one prior speeding 

ticket. Other than that she has absolutely no history with the justice system. 

She has indicated a willingness to comply with probation and probation 
27.

terms and she should be able to comply with those terms and conditions of 

probation. She would suffer the same effects and collateral consequences 

all defendants encounter when they’ve been convicted of a felony and 

incarcerated on a felony.

“Probation indicates that they believe [defendant] is remorseful; 

however, that appears to me to be in contrast to her trial testimony and the 

video of her contact with the police officer during the incident, both of 

which appear to me to demonstrate a marked lack of remorse. The 

defendant does appear to me to be a danger to others if not imprisoned. At 

this time the Court will deny a grant of probation.

“In terms of looking at the appropriate period of incarceration, she 

has absolutely no prior criminal record. In comparing this with other 

instances of the same crime really the aggravating factor is the fact that 

[M.M.] was only ten years old, and it’s the tender age of [M.M.] that I find 

to be rather aggravating. The loss to society is greater when a child is 

killed in such a needless and senseless fashion, and when not necessarily an 

adult, we lose not only a member of society, we lose a future. And the pain 

that is suffered by the surviving family members is greater because of that 

innocence that’s lost when a child is killed.

“Based upon all that I do think the absence of a record is a pretty 

significant mitigating factor. It appears to me that the middle term of six 

years as recommended by Probation is the appropriate term.”

B. Denial of Probation Was Not Abuse of Discretion

1. Standard of Review

“Probation is an act of clemency which rests within the discretion of the trial 

court, whose order granting or denying probation will not be disturbed on appeal unless 

there has been an abuse of discretion.” (People v. Henderson (1964) 226 Cal.App.2d 

160, 163.) The defendant bears a heavy burden when attempting to show an abuse of that 

discretion. (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311, disapproved on other 

grounds by People v. Cook (2015) 60 Cal.4th 922, 938–939.) In reviewing the trial 

court’s order for an abuse of discretion, the appellate court’s function is to determine 

whether that order is arbitrary or capricious or exceeds the bounds of reason considering 

all the facts and circumstances. (Weaver, supra, at p. 1311.) The circumstances utilized 
28.

by the trial court to support its sentencing choice must be established by a preponderance 

of evidence, and a reviewing court considers whether there was substantial evidence to 

support the trial court’s finding that a particular factor is applicable. (Id. at p. 1313.)

2. Relevant Criteria in Considering Probation

The California Rules of Court provide nonexhaustive criteria for the trial court to 

consider in granting or denying probation.7 These criteria include facts relating to the 

crime: (1) the nature, seriousness, and circumstances of the crime as compared to other 

instances of the same crime; (2) whether the defendant was armed with or used a weapon; 

(3) the vulnerability of the victim; (4) whether the defendant inflicted physical or 

emotional injury; (5) the degree of monetary loss to the victim; (6) whether the defendant 

was an active or passive participant; (7) whether the crime was committed because of an 

unusual circumstance, such as great provocation, which is unlikely to recur; (8) whether 

the manner in which the crime was carried out demonstrated criminal sophistication or 

professionalism by the defendant; and (9) whether the defendant took advantage of a 

position of trust or confidence to commit the crime. (Rule 4.414(a).)

Other criteria relating to the defendant include: (1) the prior record of criminal 

conduct of the defendant; (2) prior performance and present status on probation, 

mandatory supervision, postrelease community supervision, or parole; (3) willingness to 

comply with the terms of probation; (4) ability to comply with reasonable terms of 

probation as indicated by the defendant’s age, education, health, mental faculties, history 

of substance abuse, family background and ties, employment and military service, and 

other relevant factors; (5) the likely effect of imprisonment on the defendant and his or 

her dependents; (6) the adverse collateral consequences on the defendant’s life resulting 

from the felony conviction; (7) whether the defendant is remorseful; and (8) the 

7 Further references to rules are to the California Rules of Court.
29.

likelihood that the defendant will be a danger to others if not incarcerated. 

(Rule 4.414(b).)

The trial court may also consider additional criteria not listed in the rules, provided 

those criteria are reasonably related to that decision and they are stated on the record by 

the sentencing judge. (Rule 4.408(a).)

3. Analysis

Defendant argues she was precisely the type of defendant who should have been 

granted probation, as she posed minimal risk to public safety and it would promote her 

rehabilitation. Defendant maintains the circumstances of the crime were not egregious 

and M.M.’s harm was partially caused by the adults in his vehicle who failed to ensure he 

was wearing a seatbelt; she had no prior record; she had already served over 600 days in 

jail prior to sentencing; and incarceration would adversely impact her daughter. 

Defendant further contends the probation officer and the trial court’s belief that defendant 

posed a danger to the public was conjecture. She had no prior convictions or infractions 

involving alcohol, and she was driving the speed limit at the time of the accident: the 

incident was an aberration.

The People maintain that while there were factors that could have supported 

probation, there were other relevant factors that supported the trial court’s decision to 

deny probation. The People highlight that defendant was driving with a BAC more than 

twice the legal limit, which would have taken 15 to 17 ounces of hard alcohol to achieve; 

she demonstrated objective signs of intoxication and performed poorly on all field 

sobriety tests; she was combative and belligerent with the investigating officer; and there 

was no evidence she ever inquired about anyone’s safety at the scene of the accident. 

Though the probation officer found defendant remorseful, the court had an opportunity to 

consider defendant’s testimony and demeanor while testifying and during the trial, and 

found her to be unremorseful. The trial court also noted defendant was an active 

participant in the crime, which had an emotional impact on the victim’s family.
30.

We find no abuse of discretion in denying probation. The court expressly 

considered the relevant factors that were supported by substantial evidence, and the court 

gave serious consideration to the request for probation, weighing the circumstances for 

and against it. As the People note, the factual disputes about whether defendant’s 

conduct constituted gross negligence and whether defendant crossed into the oncoming 

lane of traffic were necessarily resolved against defendant by the jury’s guilty verdict. 

While defendant’s driving conduct was not as egregious as some other cases involving 

the same crime, it was quite serious: defendant made the decision to drive at a BAC 

more than two times the legal limit a substantial distance on a highway at night; she was 

an active participant in the crime. The court was entitled to consider these circumstances. 

(Rule 4.414(a)(1).)

The harm to the victim’s family was also a factor the court considered—that 

defendant imposed significant emotional injury on those in the vehicle and the victim’s 

family. (Rule 4.414(a)(4).) The court found defendant’s demeanor and testimony at trial 

demonstrated a lack of remorse—another relevant factor the court was entitled to 

consider. Moreover, because the court found defendant demonstrated a lack of remorse 

at trial and in the recorded interaction with the officer just after the accident, the court 

had concerns defendant posed a danger if not imprisoned—that was a legitimate factor to 

consider and was not speculative in light of the lack-of-remorse finding—someone not 

demonstrating remorse may be more inclined to recidivate. (Id., (b)(8).)

While there were factors that favored granting probation, we decline defendant’s 

invitation to substitute our judgment for that of the trial court. (See Gonzales v. Nork 

(1978) 20 Cal.3d 500, 507 [“As with all actions by a trial court within the exercise of its 

discretion, as long as there exists ‘a reasonable or even fairly debatable justification, 

under the law, for the action taken, such action will not be here set aside, even if, as a 

question of first impression, we might feel inclined to take a different view from that of 

the court below as to the propriety of its action.’”].)
31.

C. Imposition of Middle Term

Defendant claims the trial court erred in selecting the six-year middle term 

(§ 1170, subd. (b)).

1. Applicable Legal Standards

Pursuant to section 1170, subdivision (b)(1), effective January 1, 2022, “[w]hen a 

judgment of imprisonment is to be imposed and the statute specifies three possible terms, 

the court shall, in its sound discretion, order imposition of a sentence not to exceed the 

middle term, except as otherwise provided in paragraph (2).”8 “[T]he court may consider 

the record in the case, the probation officer’s report, other reports, ... and statements in 

aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or 

the family of the victim if the victim is deceased, and any further evidence introduced at 

the sentencing hearing.” (§ 1170, subd. (b)(4).) The court is to set forth on the record the 

facts and reasons for choosing the sentence imposed. (Id., subd. (b)(5).)

“‘Sentencing courts have wide discretion in weighing aggravating and mitigating 

factors [citations], and may balance them against each other in “qualitative as well as 

quantitative terms”[citation] ....’” (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) 

We review a trial court’s sentencing selection of one of the three terms under 

section 1170, subdivision (b), for an abuse of discretion. (People v. Sandoval (2007) 41 

Cal.4th 825, 847.) “[A] trial court does not abuse its discretion unless its decision is so 

irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony 

(2004) 33 Cal.4th 367, 377.) “‘“[T]he trial court is presumed to have acted to achieve 

legitimate sentencing objectives”’” (People v. King (2010) 183 Cal.App.4th 1281, 1323), 

and the reviewing court does not reweigh the sentencing court’s balancing of factors 

(People v. Scott (1994) 9 Cal.4th 331, 355). The burden is on the party attacking the 

8 At the time of sentencing in October 2019, section 1170, former subdivision (b), left “the 

choice of the appropriate term ... within the sound discretion of the court.”
32.

sentence to clearly show the sentencing decision was irrational and arbitrary. (People v. 

Carmony, supra, at p. 376.)

2. No Abuse of Discretion

Defendant argues the court improperly considered M.M.’s death an aggravating 

factor because the victim’s death is already an element of the crime, the victim’s age was 

improperly considered since defendant did not specifically select her victim, and the 

court failed to properly consider the unusual mitigating circumstance that M.M.’s mother 

was a contributing cause of M.M.’s death. 

A fact that is an element of a crime upon which sentence is imposed may not be 

used to impose a particular term. (Rule 4.420(h).) Defendant claims the death of the 

victim is a necessary element of gross vehicular manslaughter while intoxicated and this 

fact cannot be considered as a basis to impose a greater sentence. Examining the court’s 

discussion of the sentencing factors, however, it was not M.M.’s death the court 

considered an aggravating factor, but M.M.’s young age. The trial court ruled that 

although defendant had no prior criminal history, which was a mitigating factor, in 

comparing this case with other instances of the same crime the young age of the victim 

was an aggravating factor. The court reasoned the loss to society is greater when a child 

is killed in such a needless and senseless fashion, and the pain and suffering of the 

surviving family members is greater when a child is killed. The age of the victim is not 

an element of gross vehicular manslaughter while intoxicated, so this consideration does 

not violate any dual use prohibition.

Defendant contends considering the victim’s age was improper because she did 

not select M.M. as a victim—she had no reason to know the victim would be a 10-yearold child.9

 However, rule 4.421 permits a court to consider any other factors that 

9 As the People point out, defendant has forfeited this claim because she made no objection 

on this ground below. (See People v. Scott, supra, 9 Cal.4th at p. 356.) However, even 

considering the merits, defendant has not established an abuse of discretion.
33.

“reasonably relate to ... the circumstances under which the crime was committed” (id., 

(c)) and whether the “victim was particularly vulnerable” (id., (a)(3)). Defendant’s 

intoxicated driving put in grave jeopardy the life and safety of every individual, of any 

age, who was traveling around her between Lemoore and Kettleman City the night of the 

accident. Children are invariably among those traveling in vehicles, which defendant had 

every reason to know, and they are a more vulnerable victim because of their young age. 

As the pathologist testified, children’s bones are not as developed and as thick as adults, 

so lesser traumas can cause basilar fractures in children, the type of skull fracture that

killed M.M. in this case. Though defendant may not have selected this young victim 

knowingly, she reasonably knew children might be traveling on the roads around her, but 

she disregarded this risk and decided to drive at a high level of intoxication anyway. The 

death of a child is also, as the court pointed out, a greater loss to society and causes 

greater pain and suffering to the family because the loss is more unexpected. The young 

age of the victim was not an inappropriate factor for the court to consider.

Finally, defendant argues the trial court failed to consider all the mitigating factors 

and balance them, especially the unusual circumstance that M.M.’s mother failed to 

ensure he was properly seatbelted. As the People point out, the trial court acknowledged 

defendant’s lack of a criminal record and that it was a significant mitigating factor. The 

court was also well aware from the trial testimony that M.M. was not seatbelted at the 

time of the accident, and this factor was discussed in defendant’s sentencing 

memorandum, which the trial court indicated it had reviewed, among other things. To 

the extent the court considered this a contributing cause of M.M.’s death, it was entitled 

to disregard or give it less weight in balancing the factors. (Rule 4.409; People v. King, 

supra, 183 Cal.App.4th at p. 1322 [“‘[U]nless the record affirmatively indicates 

otherwise, the trial court is deemed to have considered all relevant criteria, including any 

mitigating factors.’”]; People v. Sperling (2017) 12 Cal.App.5th 1094, 1102.) On this 

record, we conclude the trial court properly weighed the relevant factors in mitigation.
34.

Contrary to defendant’s assertion, we conclude the trial court considered the 

relevant mitigating and aggravating factors, and its selection of the middle term was not 

so irrational or arbitrary that no reasonable person could agree with it. (People v. 

Carmony, supra, 33 Cal.4th at p. 377.)

IV. Ability to Pay $300 Restitution Fine and $70 Court Assessments

A. Background

As noted above, the trial court imposed a restitution fine of $300 under 

section 1202.4, subdivision (b)(1); a parole revocation restitution fine of $300 under 

section 1202.45, subdivision (a), suspended; a court operations assessment of $40 under 

section 1465.8, subdivision (a)(1); and a court facilities assessment of $30 under 

Government Code section 70373, subdivision (a)(1).

10

 Relying on the Court of Appeal’s 

decisions in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) and People v. Son 

(2020) 49 Cal.App.5th 565 (Son), defendant claims the imposition of the restitution fine 

and court assessments without a determination she has the ability to pay violates her right 

to due process and equal protection. She requests that the fine and assessments be 

vacated and the matter be remanded for an ability-to-pay hearing.

The People assert defendant forfeited her constitutional challenge based on her 

failure to object in the trial court. On the merits, they contend defendant’s challenge to 

the restitution fine should be found constitutional under the federal and state excessive 

fines clauses; but even if analyzed under due process principles, it was constitutionally 

imposed. With respect to the assessments, the People concede that due process requires 

the court to conduct, upon defendant’s request, an ability-to-pay hearing before the 

assessments are imposed. They maintain, however, the imposition of the assessments in 

this case was harmless because defendant is able-bodied and capable of performing work.

10 Defendant was also ordered to pay victim restitution of $7,500 to the California Victim 

Compensation Board. The court elected not to impose a $390 DUI fine, despite defendant’s 

contrary assertion.
35.

B. Dueñas

In January 2019, a Court of Appeal held in Dueñas that court assessments under 

Government Code section 70373 and Penal Code section 1465.8 are fundamentally unfair 

and violate due process under the federal and state Constitutions when imposed upon 

indigent defendants without a determination of the “present ability to pay.” (Dueñas, 

supra, 30 Cal.App.5th at p. 1168.) The court noted the assessment statutes were enacted 

to raise funds for the state courts and were not intended to be punitive. (Id. at p. 1165.) 

Nevertheless, the court reasoned, when imposition of these fines create mounting 

criminal justice debts from unpayable assessments, the statutes are transformed from a 

court-funding mechanism into additional punishment on those criminal defendants who 

could not pay. (Id. at p. 1168.) Relying on the constitutional principles of fair and equal 

treatment before the law for indigent defendants, as discussed in Griffin v. Illinois (1956) 

351 U.S. 12, In re Antazo (1970) 3 Cal.3d 100, and Bearden v. Georgia (1983) 461 U.S. 

660, the court concluded the assessments were fundamentally unfair if imposed without a 

determination whether the defendant has the ability to pay. (Dueñas, supra, at p. 1168.)

Addressing the restitution fine separately, the court reasoned that, although a 

restitution fine is intended as additional punishment for a crime, section 1202.4 expressly 

disqualifies inability to pay as a basis for waiving the fine. (Dueñas, supra, 30 

Cal.App.5th at pp. 1169–1170.) The court found this provision at odds with the statutory 

policy requiring restitution to be consistent with a person’s ability to pay (§ 1203.2, 

subd. (a)) and with common law principles that consider a defendant’s financial 

circumstances when imposing a punitive award. (Dueñas, supra, at p. 1170.) The court 

also observed an indigent defendant is not afforded the same relief at probation 

completion as those defendants who can pay their restitution fine—those unable to pay 

do not have the right to have the charges dropped and to be free from the penalties of the 

offense for which they are on probation. (Id. at pp. 1170–1171.) The court concluded 

this limits the rights of those unable to pay and is fundamentally unfair. (Id. at p. 1171.) 
36.

To avoid a constitutional dilemma, the court held that, while section 1202.4 required 

imposition of a restitution fine, the trial court must suspend execution of the fine “until 

and unless the People demonstrate that the defendant has the ability to pay the fine.” 

(Dueñas, supra, at p. 1172.)

Since Dueñas, Courts of Appeal have split regarding if and under what 

circumstances the constitutional concerns underpinning the decision in Dueñas apply. 

The decision in Dueñas was extended beyond the facts unique to Velia Deuñas’s 

circumstances in People v. Castellano (2019) 33 Cal.App.5th 485, 489–491, and some 

Courts of Appeal followed Dueñas’s lead. (E.g., People v. Belloso (2019) 42 

Cal.App.5th 647, 662–663, review granted Mar. 11, 2020, S259755.) Other courts have 

concluded Dueñas was wrongly decided, in part or in whole, or limited Dueñas to its 

facts. (E.g., People v. Pack-Ramirez (2020) 56 Cal.App.5th 851, 859–861; People v. 

Cota (2020) 45 Cal.App.5th 786, 794–795; People v. Lowery (2020) 43 Cal.App.5th 

1046, 1053–1055; People v. Allen (2019) 41 Cal.App.5th 312, 326–330; People v. Hicks

(2019) 40 Cal.App.5th 320, 325–330, review granted Nov. 26, 2019, S258946; People v.

Aviles (2019) 39 Cal.App.5th 1055, 1067–1069; People v. Kopp (2019) 38 Cal.App.5th 

47, 94–98, review granted Nov. 13, 2019, S257844 (Kopp).)

“More recently, the majority in Son concluded that remand to allow the parties to 

make a record on the defendant’s ability to pay was appropriate, but the panel was 

otherwise divided. (Son, supra, 49 Cal.App.5th at p. 598.) Justice Smith declined the 

People’s invitation to limit challenges to fines and fees to the Eighth Amendment’s 

excessive fines clause (Son, at p. 596, fn. 20), but concluded that a restitution fine, as 

punishment, survives rational basis review and may be imposed on an indigent litigant 

without regard to ability to pay (id. at p. 595). With respect to nonpunitive court facilities 

and court operations assessments, Justice Smith concluded that whether considered under 

the due process or equal protection clause, the imposition of the assessments on indigent 

defendants does not survive strict scrutiny and violates the Constitution. (Son, at 
37.

pp. 589–590.) Justice Snauffer concurred in the disposition, but did not join in or express 

a view on whether restitution fines are always punitive and therefore not subject to an 

ability-to-pay challenge. (Id. at pp. 598–599 (conc. opn. of Snauffer, J.).) Justice 

Franson, who concurred in part and dissented in part, distinguished Dueñas on its facts 

but concluded that even if a constitutional error is presumed, remand is unnecessary 

because the error is harmless beyond a reasonable doubt. (Id. at p. 599 (conc. & dis. opn. 

of Franson, J.).)” (People v. Montes (2021) 59 Cal.App.5th 1107, 1116–1117, fn. 

omitted.)

The California Supreme Court is now poised to address the issues raised by 

Dueñas, having granted review in Kopp.

C. Dueñas Claim Has Been Forfeited

Defendant was sentenced on October 29, 2019, which was more than nine months 

after the Court of Appeal issued its decision in Dueñas. Although defendant did not have 

a statutory right to object to imposition of the minimum $300 restitution fine under 

section 1202.4, the parties and the trial court had ample notice of the Dueñas decision. 

Defendant’s inability-to-pay argument is predicated on Dueñas, and her citation to 

subsequently decided Son does not alter this conclusion. Although Son was not decided 

until 2020, an objection at the time of sentencing in October 2019 based on the inability 

to pay the fines and fees would not have been futile or wholly unsupported by substantive 

law then in existence. (See People v. Welch (1993) 5 Cal.4th 228, 237 [“Reviewing 

courts have traditionally excused parties for failing to raise an issue at trial where an 

objection would have been futile or wholly unsupported by substantive law then in 

existence.”].)

Defendant argues we have the inherent authority to consider a forfeited claim. 

However, the failure to object in the trial court generally forfeits a claim on appeal, and 

this principle is applicable to constitutional claims. (People v. McCullough (2013) 56 

Cal.4th 589, 593; In re Sheena K. (2007) 40 Cal.4th 875, 880–881.) Moreover, 
38.

“‘discretion to excuse forfeiture should be exercised rarely and only in cases presenting 

an important legal issue’” (In re Sheena K., supra, at pp. 887–888, fn. 7). Here, as stated, 

defendant had ample notice prior to sentencing of Dueñas, on which she now relies to 

advance her constitutional claim. Defendant’s inability-to-pay claim has been forfeited.

D. No Ineffective Assistance of Counsel Established

In anticipation of our conclusion that she forfeited her appellate claim under 

Dueñas, defendant alternatively argues her counsel’s performance was constitutionally 

ineffective in failing to challenge the fine and assessments at sentencing. Defendant 

argues generally there could be no satisfactory explanation for her counsel’s failure to 

object to the imposition of the assessments and restitution fine, and that had the objection 

been made, the record establishes defendant is unable to pay.

“‘[A] defendant claiming a violation of the federal constitutional right to effective 

assistance of counsel must satisfy a two-pronged showing: that counsel’s performance 

was deficient, and that the defendant was prejudiced, that is, there is a reasonable 

probability the outcome would have been different were it not for the deficient 

performance.’” (People v. Woodruff (2018) 5 Cal.5th 697, 736, quoting People v. 

Alexander (2010) 49 Cal.4th 846, 888; accord, Strickland v. Washington (1984) 466 U.S. 

668, 687; People v. Mickel (2016) 2 Cal.5th 181, 198.) To establish deficient 

performance, defendant must show that counsel’s performance “fell below an objective 

standard of reasonableness under prevailing professional norms.” (People v. Mai (2013) 

57 Cal.4th 986, 1009; accord, Strickland v. Washington, supra, at pp. 687–688; People v. 

Mickel, supra, at p. 198.) The burden lies with the defendant to show inadequate or 

ineffective representation, and the proof “‘must be a demonstrable reality and not a 

speculative matter.’” (People v. Karis (1988) 46 Cal.3d 612, 656.)

In the context of a direct appeal, we examine the record to see if there is any 

explanation for the challenged aspects of representation. (People v. Mai, supra, 57 

Cal.4th at p. 1009.) If the reasons for defense counsel’s actions are not readily apparent 
39.

from the record, we will not assume constitutionally inadequate representation and 

reverse a conviction unless the record discloses no conceivable tactical purpose for 

counsel’s act or omission. (Ibid.)

The challenged fine and assessments total $370. The record shows defendant was 

29 years old at the time of sentencing. She had graduated from high school and had taken 

some college courses. She also had an employment history, as noted in the probation 

report and bail review report, although at the time of her arrest defendant was not 

regularly employed outside the home.

Defendant is a young woman, and her prison term is limited to six years, a good 

portion of which she had served before sentencing. Since defendant had an employment 

history prior to her arrest and conviction, and she suffers no physical disabilities 

precluding work, the record implies a reason why counsel may not have objected to the 

$370 fine and assessments—counsel may have reasonably believed defendant has the 

ability to pay presently or retains the ability to pay in the future. As there is a 

conceivable reason for counsel’s failure to object to imposition of the $370, on this 

record defendant has not established any deficient performance by her counsel.

DISPOSITION

The judgment is affirmed.

MEEHAN, J.

WE CONCUR:

HILL, P. J.

PEÑA, J.