What is the test for determining whether to grant probation for a driver who killed a pedestrian by running him over and killing him?

The court's reliance on the degree of violence involved in this case was similarly misplaced. As discussed in the majority opinion, the extreme degree of defendants' recklessness and the horrible consequences of their gross negligence were properly considered in denying them probation. However, there is a significant difference between the relevant criterion affecting the decision to grant or deny probation and the criterion for selecting the aggravated prison term. "The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime" are specified in the rules of court as relevant factors in determining whether to grant or deny probation. (Rule 4.414(a)(1).) However, the corresponding factor affecting selection of the aggravated term includes an additional consideration. Rule 4.421(a)(1) specifies the following as a circumstance in aggravation: "The crime involved great violence, great bodily harm . . . or other acts disclosing a high degree of cruelty, viciousness, or callousness." In People v. McNiece (1986) 181 Cal.App.3d 1048, 1061, overruled on other grounds in People v. McFarland (1989) 47 Cal.3d 798, 805, the court held that because bodily harm resulting in death is an element of felony vehicular manslaughter, reliance upon that fact to aggravate the term of imprisonment is improper. The court explained, "This aggravating factor requires more than the basic fact of bodily harm. [Citation.] To be an aggravating factor, appellant must have committed cruel, vicious, and callous acts beyond the basic crime of vehicular manslaughter. [Citation.] 'The essence of "aggravation" relates to the effect of a particular fact in making the offense distinctively worse than the ordinary.' " (Ibid.) The aggravating factor "cannot be applied in a case where there are no facts in the case upon which such criteria could be

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found to be applicable other than facts which are inseparable from the commission of the crime itself." (People v. Golliver (1990) 219 Cal.App.3d 1612, 1619.)