P. v. Super. Ct. 10/3/07 CA4/2

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: E041331

Case Date: 01/03/2008

Preview:Filed 10/3/07 P. v. Super. Ct. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOURTH APPELLATE DISTRICT DIVISION TWO

THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; SHERRI ANN SMITH, Real Party in Interest. E041331 (Super.Ct.No. SWF-012388) OPINION

ORIGINAL PROCEEDINGS; petition for writ of mandate. James T. Warren, Judge. Petition denied. Grover Trask and Rod Pacheco, District Attorneys, and Matt Reilly, Deputy District Attorney, for Petitioner. No appearance for Respondent.

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Neil Auwarter, under appointment by the Court of Appeal, for Real Party in Interest. In this case, we determine whether there has been reversible error when the trial court refuses to allow the victim and the victims' family to address the court at a resentencing undertaken pursuant to Penal Code section 1170, subdivision (d).1 We conclude that in the circumstances of this case, the People are not entitled to relief and the judgment should stand. Accordingly, we deny the petition.2 STATEMENT OF FACTS We take the facts of the underlying offense from the probation report. A detailed recital is not necessary. Real party and defendant Sherri Ann Smith, then 42 years of age, with no juvenile or adult involvement with the criminal justice system, had attended the Temecula Balloon Festival with a friend, consuming "large amounts" of food and two glasses of wine. After stopping briefly at her friend's home, she headed east on Highway 74 to the restaurant where her boyfriend worked.3 Her vehicle collided with a motorcycle driven by Kerry Suglia, on which his wife Sheryl was also riding. Kerry Suglia suffered

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

We initially denied the People's petition summarily without opinion. However, the People sought review in the Supreme Court, and that court transferred the matter back to us with directions to vacate our order and to issue an order to show cause why the relief sought should not be granted. We did so. Highway 74, or the "Ortega Highway," is an extremely twisting, largely twolane road winding through the hills.
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massive trauma and died at the scene; Mrs. Suglia was critically injured and her left leg eventually had to be amputated. Smith appeared to be under the influence of alcoholic beverages at the scene and her blood alcohol was tested at .11 percent. She told officers that "The motorcycle was coming at me right in the middle, and bam he ran right into the front of me." There were no other witnesses to the actual crash; however, Mrs. Suglia told a witness who arrived almost immediately after the impact that Smith "came into their lane head-on" and that "there was no way that they could get out of the way of Smith's vehicle."4 Smith pleaded guilty to vehicular manslaughter (Pen. Code,

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