People v. Rayl CA1/2 ( 2024 )

Filed 5/16/24 P. v. Rayl CA1/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A167791
v.
KELCY BONDELL RAYL, (Sonoma County
Super. Ct. No. SCR 746954-1)
Defendant and Appellant.
Defendant Kelcy Bondell Rayl appeals from the sentence imposed
following her conviction for driving under the influence of alcohol. She
contends the trial court erred in failing to impose the lower term pursuant to
Penal Code section 1170, subdivision (b)(6) (§ 1170(b)(6)) because she suffered
psychological, physical, or childhood trauma and was the victim of intimate
partner violence. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Charges
In June 2022, the Sonoma County District Attorney filed a two-count
information charging Rayl with driving under the influence of an alcoholic
beverage (DUI) within 10 years of a prior felony DUI offense (Veh. Code,
§§ 23152, subd. (a), 23550.5; count 1) and driving with a blood alcohol content
(BAC) of .08 percent within 10 years of a prior felony DUI offense (id.,
§§ 23152, subd. (b), 23550.5; count 2). As to both counts, it was alleged that
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Rayl’s BAC was .15 percent or more within the meaning of Vehicle Code
section 23578.1 The district attorney also alleged various factors in
aggravation.
Jury Trial
A jury trial began in January 2023. California Highway Patrol Officer
Brad Hanks testified he was on duty at 3:20 p.m. on June 19, 2021, patrolling
the area of the Napa Sonoma County line, when he observed Rayl’s vehicle
parked diagonally on the side of the road.2 The engine was running, and the
left turn signal was on. Hanks pulled over to conduct a welfare check and
found Rayl in the driver’s seat. He saw an open bottle of wine in the center
console cupholder and an empty wine bottle on the passenger floorboard
tucked halfway under the seat. Hanks asked Rayl to get out of her car. She
stumbled, the smell of alcohol emanated “from her person and her breath,”
her eyes were red and watery, and her speech was slurred. Hanks asked
Rayl if she had driven the car she was in, and she said yes. Rayl said she had
driven from Napa, which was about 15 miles away. No one else was in the
car. Rayl said she had been drinking in her car and she started drinking at
4:30 p.m., although it was only 3:25 at this time. Hanks asked Rayl to
perform field sobriety tests. He started to administer “the walk and turn,”
but Rayl was not following directions and she stumbled and fell into the
traffic lane, so he stopped the test for her safety. Rayl could not keep her
1 Vehicle Code section 23578 provides, “if a person is convicted of
[driving under the influence in] a violation of Section 23152 or 23153, the
court shall consider a concentration of alcohol in the person’s blood of 0.15
percent or more, . . . as a special factor that may justify enhancing the
penalties in sentencing . . . .”
2 Hanks had been in the same area at 3:00 p.m. and did not notice the
car on the side of the road at that time.
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balance for “the one-leg stand,” she said she could not do “the modified
Romberg balance test,” and she declined to take a preliminary alcohol
screening test.
Hanks arrested Rayl for driving under the influence of alcohol based on
her unsteady gait, red watery eyes, strong odor of alcohol, and her
performance on the field sobriety tests. After the arrest, Hanks took a
chemical breath test of Rayl at 3:48 p.m. and again two minutes later. The
test results showed Rayl had a BAC of .30 percent at 3:48 p.m. and .29
percent at 3:50 p.m.
Rayl testified in her own defense. On June 19, 2021, she drove with
her mother from Sausalito to Napa to have lunch with her great aunt. Rayl
testified she started struggling with alcohol in her 40’s, but at the time of the
lunch, she had not been drinking any alcohol since November 2020. After
lunch, Rayl was driving back to Sausalito by herself when she checked her
voicemail; she received an upsetting message that caused her to “realize[]
that [her] marriage was over.” She started hyperventilating and “was having
a severe anxiety/panic attack.” She called a friend and said she had to pull
over to take medication as she is prescribed Xanax for panic attacks. Rayl
testified that she pulled off the road onto the shoulder; she did not have her
usual “emergency Xanax,” “but what [she] did have was a gift basket with
two bottles of wine.” Rayl knew “from past experience” that alcohol
“immediately relieves panic,” so she “guzzled the first bottle.” Then she did
breathing exercises and had her emotional support dog sit on her lap for
about five minutes. She called her friend again, and he said he would come
get her. Rayl testified that she drank from the second bottle of wine while
she talked on the phone. When she ended her phone call, Officer Hanks was
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already approaching her car. Rayl testified the only alcohol she drank that
day was the wine she had after she pulled over to the side of the road.
On February 6, 2023, the jury found Rayl guilty of driving under the
influence (count 1) and driving with a BAC of .08 percent (count 2) and found
true the allegation that Rayl’s BAC was .15 percent or more.
Court Trial
In a bifurcated proceeding, the trial court decided the allegations of
prior convictions and aggravating factors. The court found Rayl had two
prior convictions for felony DUI offenses as alleged in counts 1 and 2 and
found true the following two aggravating factors: (1) Rayl’s prior convictions
were numerous (Cal. Rules of Court, rule 4.421(b)(2)) and (2) she had served
two prior prison terms (id., rule 4.4421(b)(3)). The court found that, in
addition to the two prior felony DUI convictions, Rayl had three prior
misdemeanor convictions for DUIs and a grand theft conviction.
Sentencing
In March 2023, Rayl filed a sentencing brief in which she urged the
court to impose the lower term on the ground two mitigating circumstances
listed in section 1170(b)(6) applied. Rayl argued she had experienced (1)
childhood trauma in “witnessing her father physically abusing her mother
and being sexually assaulted at age 13” and (2) “intimate partner violence at
the hands of her ex-husband.” Rayl, who was 59 years old, reported that she
was diagnosed with post-traumatic stress disorder at age 13 and panic and
anxiety disorders in 2006 and 2016 and that she took prescription medication
for these conditions. She argued, “These psychological traumas clearly
contributed to [her] alcoholism and her decision to drink in her car that day.”
The probation department (Probation) determined that factors in
aggravation outweighed those in mitigation and recommended imposition of
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the upper term of three years. Probation “sympathize[d] with [Rayl]’s
experienced trauma as a child, her struggles with mental health, and being
the victim of domestic violence,” but emphasized this was her third DUI
conviction in 10 years. Probation was “concerned that the defendant may be
minimizing her conduct in this matter which is likened to her two prior DUIs
in that, while she admits to drinking, she vehemently denies driving.” Rayl
had been released on pretrial supervision (PTS) and fitted with an alcohol
monitor in June 2021. She violated the PTS term that she not possess or use
alcohol; the monitoring device registered a .09 BAC and .067 BAC on two
days in October 2021. Rayl tested positive for alcohol on November 1, 2021,
and she admitted herself to the hospital in mid-November. Rayl was allowed
to remain on PTS, but “alcohol-drinking events” were reported on December
27 and 28, 2021. She was remanded to custody and PTS was terminated in
January 2022. Probation noted that Rayl believed “she does not pose a safety
risk to the community when she drinks alcohol, [but] probation believes
otherwise.”
At the sentencing hearing, the prosecutor agreed with Probation’s
recommendation. The prosecutor noted that, despite significant treatment
(Rayl “did at least five different programs that were either intensive
outpatient or inpatient . . . from 2006 through June of 2021”), Rayl’s current
offense was “another DUI at an extremely high BAC of .29/.30” which “led to
her putting the public at risk.”
Addressing Rayl’s request for a lower term under section 1170(b)(6),
the prosecutor did not dispute that Rayl suffered childhood trauma and
domestic violence. But she argued the circumstance that Rayl was a
domestic violence victim did not “actually contribute[] to the commission of
this offense,” given that Rayl’s history of DUIs predated the documented
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domestic violence incident of 2019 and the current offense occurred over two
years after the incident of domestic violence.3 As to the circumstance that
Rayl experienced childhood trauma, the prosecutor argued, “the lower term
would be contrary to the interest of justice” because “Rayl has had a
significant number of chances at probation, at prison, at treatment” “to
address [her] drinking and driving habits,” “yet we are still here on [at least]
DUI number six in her lifetime.” Further, the prosecutor explained to the
court, while Rayl acknowledged she is an alcoholic, “she continues to deny not
only this incident but other DUI incidents that she is drinking and driving
and, therefore, she’s denying she’s putting the public at risk.”4 The
prosecutor argued that a lower term was not in the interest of justice
“because she will return to the community faster and she will put the public
at risk again because she has not acknowledged what’s gone on up until this
point.” The prosecutor asserted that the aggravating factors outweighed the
mitigating factors and that the upper term was appropriate “to keep the
public safe for [as] long as possible.”
Defense counsel argued, “balancing the extensive mitigation in this
case and in her life with the aggravation, which is that [Rayl]’s had multiple
convictions, I don’t think there is any way that the Court can say that those
aggravating factors outweigh the plentiful mitigation and trauma that she’s
been through as a victim and throughout her childhood and everything that
she struggled with.”
3 The prosecutor argued, “This is not a situation where the day that
this DUI occurred Ms. Rayl was fleeing from someone abusive.”
4 Defense counsel acknowledged that Rayl had not taken responsibility
for her current DUI as she “denied that the crime that she was accused of
occurred.”
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The trial court declined to grant probation, noting Rayl “does not
appear to grasp the seriousness of her drinking addiction” as she did not
believe she needed residential treatment “despite this being her sixth DUI
conviction.”5 Considering the mitigating factors argued by defense counsel,
the court found it would be contrary to the interest of justice to sentence Rayl
to the lower term, again emphasizing that this was her sixth DUI conviction.
The court agreed with the prosecutor that domestic violence did not appear to
be a contributing factor to the commission of the current offense. The trial
court observed that the jury did not believe Rayl’s testimony that she did not
start drinking until she stopped driving, and the court did not “believe that
story . . . either.” The court stated that it agreed with the prosecutor’s
arguments and that “the upper term is merited and appropriate in this case.”
DISCUSSION
As relevant to this appeal, section 1170(b)(6) provides, “[U]nless the
court finds that the aggravating circumstances outweigh the mitigating
circumstances that imposition of the lower term would be contrary to the
interests of justice, the court shall order imposition of the lower term if any of
5 In the context of denying probation, the court noted that Rayl was
originally placed on pretrial release with a monitor, but after a few months,
she had alcohol-related events and admitted herself to the hospital. She was
then given another chance at pretrial release, but she had another drinking
event. “She then had pretrial release terminated and was given $250,000
bail, which she bailed out on. She was on bail in January of 2022. Shortly
after that [she was] ordered [to comply with] Soberlink terms in addition to
her bail. In less than a month she showed a 34-hour testing gap on her
Soberlink where she didn’t test as instructed. She then had another 25-hour
testing gap after that in July of·2022. In August of 2022 she had another gap
where she was·not testing as directed. . . . She couldn’t stay sober. She
couldn’t stop drinking. The Court had to remand her and find that a
preventative detention was in order to secure the safety of the community
and of Ms. Rayl.”
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the following was a contributing factor in the commission of the offense:
[¶] (A) The person has experienced psychological, physical, or childhood
trauma, including, but not limited to, abuse, neglect, exploitation, or sexual
violence. [¶] . . . [¶] (C) Prior to the instant offense, or at the time of the
commission of the offense, the person is or was a victim of intimate partner
violence . . . .”
Rayl contends this case must be remanded for resentencing either
because the trial court “did not seem to realize the full scope of Penal Code
section 1170, subdivision (b)(6)” or because the court abused its discretion.
Rayl’s claims lack merit.
First, “[a]bsent evidence to the contrary, we presume that the trial
court knew and applied the governing law.” (People v. Gutierrez (2014) 58
Cal.4th 1354, 1390.) Here, nothing in the record suggests the trial court did
not understand the scope of its discretion under section 1170(b)(6). To the
contrary, Rayl filed a sentencing brief arguing she was entitled to the lower
term under section 1170(b)(6), both counsel addressed the issue at the
sentencing hearing, and the trial court stated it agreed with the prosecutor’s
arguments that the lower term was “contrary to the interest of justice” in this
case, all of which demonstrates the trial court was aware of the scope of its
discretion under section 1170(b)(6).
Second, Rayl does not show abuse of discretion. Initially, we see no
error in the trial court’s determination that the circumstance of Rayl being a
victim of intimate partner violence was not a contributing factor to the
commission of her current offense. (See People v. Achane (2023) 92
Cal.App.5th 1037, 1044 [noting that a trial court’s decision whether to apply
the lower term under section 1170(b)(6) “depends on both factual
determinations and the exercise of discretion”].) And we conclude it was
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within the trial court’s discretion to determine the aggravating factor of
Rayl’s many prior DUIs outweighed the mitigating circumstances such that it
would be contrary to the interests of justice and public safety (as argued by
the prosecutor) to impose the lower term in this case. Rayl complains that
the trial court “neglected to mention” that her prior performance on parole
was successful, but we presume, absent “an affirmative record to the
contrary,” that the trial court “considered all of the relevant factors.” (People
v. Myers (1999) 69 Cal.App.4th 305, 310.) That the court did not expressly
mention every potential mitigating circumstance “ ‘does not mean the trial
court ignored or overlooked such evidence.’ ” (People v. Tully (2012) 54
Cal.4th 952, 1064.)
Rayl also seems to suggest that, once she made a prima facie showing
that a mitigating circumstance under section 1170(b)(6) applied, the trial
court was precluded from imposing an upper term because “the middle term
becomes the aggravated term.” To the extent this is her position, Rayl offers
no authority for this argument, and we do not read the statute as prohibiting
an upper term whenever a section 1170(b)(6) mitigating circumstance may be
present.
DISPOSITION
The judgment is affirmed.
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_________________________
Miller, J.
WE CONCUR:
_________________________
Stewart, P. J.
_________________________
Mayfield, J.*
A167791, People v. Rayl
* Judge of the Mendocino Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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