People v. Spharler CA3 ( 2022 )

Filed 12/14/22 P. v. Spharler CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Tehama)
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THE PEOPLE, C095867
Plaintiff and Respondent, (Super. Ct. No. 21CR-002430)
v.
BRANDON LYLE SPHARLER,
Defendant and Appellant.
Defendant Brandon Lyle Spharler pleaded guilty to vehicular manslaughter and
driving under the influence; he also admitted a prior strike. The trial court sentenced him
to 15 years in prison, including the 10-year upper term on the vehicular manslaughter
conviction. On appeal, defendant contends the trial court abused its discretion by
imposing the upper term and refusing to strike the five-year enhancement under Senate
Bill No. 1393 (2017-2018 Reg. Sess.). We affirm.
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BACKGROUND1
While driving his vehicle, defendant struck two pedestrians, killing one and
seriously injuring another. Defendant remained at the scene until law enforcement
officers arrived. Defendant appeared to be under the influence and could not complete a
field sobriety test. The responding officer retrieved a text message from defendant’s
phone which asked for an individual to bring defendant additional drugs before he was
sent to jail. Defendant confirmed he recently used methamphetamine and heroin; the
responding officer arrested him.
Defendant pleaded guilty to vehicular manslaughter (Pen. Code, § 191.5, subd.
(a))2 and driving under the influence. (Veh. Code, § 23153, subd. (f).) Defendant
admitted a prior serious felony conviction and agreed to a lid of 15 years in state prison.
The probation report identified numerous prior convictions in aggravation, and
satisfactory prior performance on probation in mitigation.
At sentencing, defendant argued for probation so he could return to a residential
treatment program that would aid him in maintaining sobriety. Alternatively, if the court
decided to impose a prison sentence, defendant argued the trial court should strike the
prior serious felony enhancement and leave him with a 10-year prison term for the
vehicular manslaughter count. Defendant specifically argued that he was remorseful and
previously completed drug court, but he lacked access to residential treatment programs
during COVID. The trial court asked whether defendant’s argument applied to
sentencing as well and defendant answered affirmatively. After considering the
arguments of both parties and reviewing the probation report, the court denied
defendant’s requests.
1 The parties stipulated that the California Highway Patrol report, detailed in the
probation report, would serve as the factual basis for defendant’s plea.
2 Undesignated statutory references are to the Penal Code.
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The trial court denied probation because, if defendant was not incarcerated, he
posed a “grave public safety risk.” In reaching its determination not to strike the prior
serious felony enhancement, the court relied on a 2015 conviction, as well as two recent
misdemeanor convictions. In response to defendant’s argument for striking the prior
felony enhancement, the trial court explained that while defendant previously completed
adult drug court and those programs may have been limited during COVID, other people
managed to succeed during that same timeframe without “driving in such a condition[,]
killing someone and injuring someone else.” Because defendant had completed drug
court but suffered further convictions, the trial court concluded defendant’s ongoing
danger to public safety, coupled with his recent criminal history, justified declining to
strike the prior serious felony enhancement.
In imposing sentence, the trial court found the following aggravating factors:
(1) defendant’s prior conviction history, including two misdemeanors; (2) the increasing
seriousness of defendant’s criminal behavior; and (3) defendant’s culpability following
the accident. The trial court did not find any factors in mitigation.
At sentencing, defendant did not argue any applicable mitigating factors justified a
lower term prison sentence on the vehicular manslaughter count. Nor did he object to the
court’s consideration of misdemeanors as prior convictions. Defendant also did not
object when the trial court used the increasing seriousness and number of prior offenses,
the danger defendant presented to society, or defendant’s culpability following the
accident to aggravate the term, deny probation, or decline to strike the prior serious
felony enhancement. Accordingly, the trial court imposed a 15-year sentence, including
the aggravated 10-year term for vehicular manslaughter and the five-year enhancement
for the prior strike.
After the trial court declared sentence, defendant waived formal reading of the
sentence and asked to be heard on fines and fees. The court granted defendant’s request
and he introduced evidence related to his ability to pay.
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At the conclusion of the hearing, the court gave defendant the opportunity to be
heard on anything further and he declined.
DISCUSSION
A. Upper term
Defendant contends the trial court abused its discretion in imposing the upper term
because it failed to consider factors in mitigation, erroneously considered defendant’s
misdemeanors as prior convictions, and purportedly applied dual use of facts at
sentencing. The People contend these issues are forfeited on appeal. We agree with the
People.
“[T]he right to challenge a criminal sentence is not unrestricted. In order to
encourage prompt detection and correction of error, and to reduce the number of
unnecessary appellate claims, reviewing courts have required parties to raise certain
issues at the time of sentencing. In such cases, lack of a timely and meaningful objection
forfeits or waives the claim.” (People v. Scott (1994) 9 Cal.4th 331, 351, italics omitted.)
The forfeiture doctrine applies to “claims involving the trial court’s failure to properly
make . . . its discretionary sentencing choices,” including “cases in which the stated
reasons allegedly do not apply to the particular case, and cases in which the court
purportedly erred because it . . . misweighed the various factors.” (Id. at p. 353; accord,
People v. Scott (2015) 61 Cal.4th 363, 406.) For the forfeiture doctrine to apply, the trial
court must give the parties a meaningful opportunity to object or seek clarification of
potential errors in a sentence. (People v. Gonzalez (2003) 31 Cal.4th 745, 752.)
At sentencing, the trial court stated its reasons for denying probation, declining to
strike the prior serious conviction, and imposing sentence. After doing so, defendant
asked the court if he could be heard on fines and fees and the trial court granted his
request. After resolving fines and fees, the trial court asked whether there was “anything
further,” but defendant did not speak up. Despite being given two opportunities—
including time to introduce evidence regarding fines and fees—defendant did not object
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to the trial court’s consideration of defendant’s prior misdemeanors to impose the upper
term. Defendant also did not argue the court should consider applicable mitigating
factors to impose less than the 10-year upper term for the vehicular manslaughter count.
Finally, defendant did not object to the trial court’s purported dual use of facts
concerning the seriousness of the accident as an element of the offense, being used both
to impose the upper term and to deny probation. Accordingly, each of defendant’s
contentions are forfeited on appeal.
B. Motion to strike prior conviction
Defendant also contends the trial court abused its discretion by refusing to strike
the prior conviction enhancement. We disagree.
Trial courts have discretion to dismiss section 667, subdivision (a) enhancements.
(People v. Scarano (2022) 74 Cal.App.5th 993, 1003, review granted June 1, 2022,
S273830.) We review a trial court’s decision not to strike a prior serious felony
enhancement for abuse of discretion. (People v. Shaw (2020) 56 Cal.App.5th 582, 586-
587.) A trial court does not abuse its discretion if it evaluates the nature of the offense
and the background of the offender. (Id. at p. 587.) A trial court’s ruling will not be
disturbed, and reversal is not required, “ ‘ “ ‘ unless the trial court exercised its discretion
in an arbitrary, capricious, or patently absurd manner that resulted in a manifest
miscarriage of justice.’ ” ’ ” (People v. Rogers (2013) 57 Cal.4th 296, 326.)
In declining to strike defendant’s prior serious felony enhancement, the trial court
relied on the parties’ arguments as well as the probation report. The court analyzed
defendant’s 2015 prior conviction, and prior completion of drug court, as well as his
more recent misdemeanor convictions. The court also considered the nature of the
current offense, finding that despite defendant’s completion of drug court, he drove while
under the influence, killing one and seriously injuring another. In evaluating the nature
of the offense and defendant’s background, the court concluded defendant still presented
an ongoing danger to public safety. The trial court reasoned defendant’s danger to
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society weighed against striking the enhancement. We find the rationale reaching this
conclusion neither arbitrary nor capricious. The trial court did not abuse its discretion.
DISPOSITION
The judgment is affirmed.
KRAUSE , J.
We concur:
ROBIE , Acting P. J.
BOULWARE EURIE , J.
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