Filed 7/30/15 P. v. Maguire 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication 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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

MARTIN LEO MAGUIRE,

 Defendant and Appellant.

2d Crim. No. B254561

(Super. Ct. No. 1428983)

(Santa Barbara County)

A felony complaint charged appellant with driving under the influence of 

alcohol (Veh. Code, §§ 23153, subd. (a), 23560) and driving with a blood alcohol 

concentration of .08 percent or more causing injury (Veh. Code, § 23153, subd. (b)). 

Each count alleged two great bodily injury enhancements (Pen. Code, § 12022.7, subd. 

(a)).

1

Five months later appellant entered an open plea of guilty to the first count 

and admitted the two great bodily injury enhancements. The second count was 

dismissed. The trial court sentenced appellant to a state prison term of nine years, 

comprised of the upper term of three years (see § 18) plus two consecutive three-year 

terms for the enhancements (§ 12022.7, subd. (a)). Appellant contends the court abused 

 

1 All further statutory references are to the Penal Code unless otherwise stated. 
2

its discretion when it denied probation and sentenced him to the maximum term. We 

affirm.

FACTS AND PROCEDURAL BACKGROUND

Appellant was driving under the combined influence of Vicodin, Soma and 

alcohol (.01 percent). He crossed over the double yellow line striking a motorcycle and 

its two passengers head on. The passengers received severe injuries including each 

suffering a left leg amputation. Two witnesses applied tourniquets that likely prevented 

the death of the victims while appellant, unable or unwilling to assist, wandered aimlessly 

at the scene. The police investigation disclosed that appellant was visibly impaired and 

admitted taking Vicodin. The ensuing search of his vehicle revealed open beer cans, 

some partially consumed, and a bottle containing Vicodin and marijuana. 

Appellant had a prior conviction for driving under the influence (Veh. 

Code, § 23152, subd. (a)) in 1996 and one for reckless driving involving opiate use in 

2009. The plea forms which he signed acknowledged his awareness of the dangers of 

driving while intoxicated. The prescription medications he was taking warned that they 

may cause drowsiness, which alcohol consumption may intensify, and to use care when 

operating a vehicle. The probation report detailed not only appellant's criminal history 

but also many factors in his favor, including his remorse and taking care of a parent. 

After considering this history and all of the circumstances of the crime, the trial court

denied appellant's application for probation and sentenced him to the upper term of three 

years in prison for the offense and an additional three years for each great bodily injury 

enhancement (§ 12022.7, subd. (a)). It noted that the injuries inflicted greatly exceeded 

the facts necessary to establish the enhancements and that, given his prior record,

appellant well knew of the dangers associated with driving under the influence of alcohol 

and drugs. 

DISCUSSION

Appellant contends the trial court abused its discretion by denying his 

request for probation and also by imposing the upper term. We disagree. 
3

A trial court has broad discretion to determine whether a defendant is 

suitable for probation. (People v. Welch (1993) 5 Cal.4th 228, 233; People v. Aubrey

(1998) 65 Cal.App.4th 279, 282.) A single aggravating factor may support the denial of 

probation, and the court is presumed to have considered the relevant factors set forth in 

the California Rules of Court pertaining to the grant or denial of probation absent a 

record reflecting otherwise. (Cal. Rules of Court, rule 4.409; People v. Robinson (1992) 

11 Cal.App.4th 609, 615.)

Here, the probation report listed the factors supporting denial of probation. 

Specifically, it stated that the instant crime was appellant's third driving under the 

influence related offense, that he inflicted physical and emotional pain on the victims, 

that the degree of monetary loss is likely great and that he was an active participant. The 

trial court heard from various witnesses on appellant's behalf and based its decision to 

deny probation on legitimate sentencing factors supported by the evidence. The court did 

not, as appellant claims, impermissibly deny probation because of what the media might 

say about it. Read in context, the trial court's statements on the public nature of the 

proceeding were a proper commentary on the policy objectives of sentencing. The denial 

of probation was not an abuse of discretion. 

Next, appellant argues that the trial court violated the prohibition on dual 

use of facts when it imposed the upper term. (See § 1170, subd. (b); Cal. Rules of Court,

rule 4.420.) He contends the court erred by considering the great bodily injury to the 

victims both as an aggravating sentencing factor and as a basis for enhancing the 

sentence. (See § 12022.7, subd. (a).) The court did not, however, expressly rely on the 

two great bodily injury enhancements in imposing the upper term; instead, it found that 

the crime involved great bodily injury in excess of the enhancements. Evidence of 

conduct exceeding the minimum necessary to establish an enhancement may be 

considered to support the upper term. (People v. Castorena (1996) 51 Cal.App.4th 558, 

562.) Moreover, the court was entitled to consider appellant's history of driving while 

under the influence and his resultant awareness of the consequences of doing so. A 

defendant's recidivism is a relevant factor in deciding whether to impose the upper term. 
4

(See Cal. Rules of Court, rule 4.421(b); People v. McKinzie (2012) 54 Cal.4th 1302, 

1368, disapproved on another ground by People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3

["defendant's recidivism made him eligible for an upper term sentence"].) 

Appellant further contends that the trial court relied on facts that had not 

been pleaded, proven beyond a reasonable doubt or admitted by appellant. (See 

Cunningham v. California (2007) 549 U.S. 270.) Trial courts no longer find facts in 

support of their sentencing decisions. To comport with constitutional principles, the 

Legislature amended the Determinate Sentencing Law to give judges discretion to choose 

the appropriate sentence based on a statement of reasons justifying the sentence. (§ 1170, 

subd. (b); People v. Sandoval (2007) 41 Cal.4th 825, 850-851.) Those reasons were 

articulated here. The court's selection of the upper term was based upon an 

individualized consideration of the offense, the offender and the public interest, and was 

in no way arbitrary or capricious. (See Sandoval, at p. 847.) 

Lastly, appellant argues the trial court erred by failing to orally inform him 

about parole as required by section 1170, subdivision (c). As the People point out, the 

admonishment regarding parole was in the plea form that he signed, and thus the court's 

failure to verbalize it on the record was clearly harmless. (See People v. Enright (1982) 

132 Cal.App.3d 631, 637 ["where the change of plea form notes there could be 48 

months of parole, there is no prejudice in failing to inform the defendant that as part of 

the sentence . . . [he] may be on parole for a period of time"].) 

The judgment is affirmed. 

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P. J.

YEGAN, J.
5

John E. Dobroth, Judge*

Superior Court County of Santa Barbara

______________________________

Law Offices of Alana Segal, Alison Minet Adams, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant 

Attorney General, Lance E. Winters, Senior Assistant Attorney General, Jonathan J. 

Kline, Brendan Sullivan, Timothy N. Weiner, Deputy Attorneys General, for Plaintiff and 

Respondent.

 

* (Retired Judge of the Ventura Sup. Ct. assigned by the Chief Justice pursuant to art. VI, 

§ 6 of the Cal. Const.)