Opinion
F077275
12-11-2020
THE PEOPLE, Plaintiff and Respondent, v. VICTOR SANTOS GARCIA, Defendant and Appellant.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16CR-02283)
OPINION
APPEAL from a judgment of the Superior Court of Merced County. Carol K. Ash, Judge. Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Victor Santos Garcia drove with an elevated blood alcohol level and collided head on with another vehicle, killing the other driver. He was charged with several offenses, the most serious of which was gross vehicular manslaughter while intoxicated. (Pen. Code, § 191.5, subd. (a).) At arraignment, his counsel informed the court defendant intended to plead guilty to gross vehicular manslaughter while intoxicated, but could not do so without a specialized interpreter. Because no such interpreter was available, the matter was continued. The People then amended the complaint to add a charge of second degree murder. (§ 187, subd. (a).) Defendant eventually proceeded to a jury trial, where he was found guilty on multiple counts, including second degree murder. He was sentenced to a term of 15 years to life in state prison.
Subsequent statutory references are to the Penal Code, unless otherwise indicated.
On appeal, defendant asserts he was denied his state-created due process right to plead guilty to the face of the original complaint. We conclude the court acted within its discretion in allowing the filing of the amended complaint, and defendant was not denied due process.
Accordingly, we affirm.
FACTS
Because the underlying factual background is not at issue in the instant appeal, we summarize it only briefly.
On March 30, 2016, at approximately 7:30 p.m., defendant attempted to pass another vehicle at speeds near 100 miles per hour on State Route 140 near Merced. As he crossed into oncoming traffic, he collided head on with another vehicle. The driver of the other vehicle, Elena G., suffered major injuries, including a severed spinal column, torn brain stem, and broken neck. She was pronounced deceased at the scene. Her grandson, who had been following behind her in a separate vehicle, witnessed the collision. Vehicle data from her vehicle showed that she was driving 48 miles per hour, braked hard, and tried to swerve just before impact.
Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their first names. No disrespect is intended.
At the scene, a witness immediately detected the strong smell of alcohol on defendant. Defendant was taken to a hospital for treatment of his injuries, and was evaluated by officers after 10:00 p.m. At that time, he smelled of alcohol and exhibited red watery eyes and slurred speech. He admitted driving and drinking a beer. He stated, "Because I'm drunk, I'm not sure where I was going." A preliminary alcohol screening test administered at 11:08 p.m. revealed defendant had a blood alcohol level of 0.15 percent. A blood test drawn at 11:22 p.m. revealed he had a blood alcohol level of 0.177 percent. An expert witness opined that defendant had a blood alcohol level of 0.24 percent at the time of the collision, and that an individual of defendant's size would have consumed nine to 10 beers to reach that level.
Previously, on April 22, 2014, defendant was stopped for driving under the influence and arrested. On February 7, 2016, approximately seven weeks before the incident at issue here, defendant was arrested for driving under the influence after he went over a curb and hit a fence. At that time, he had a blood alcohol level of 0.22 percent.
RELEVANT PROCEDURAL HISTORY
On April 6, 2016, the People filed a complaint charging defendant with gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a); count 1), driving while intoxicated and causing injury (Veh. Code, § 23153, subd. (a); count 2), driving with a blood alcohol level of 0.08 percent causing injury (Veh. Code, § 23153, subd. (b); count 3) and driving on a license suspended for driving under the influence (Veh. Code, § 14601.2, subd. (a); count 4). As to counts 2 and 3, the People alleged enhancements for personal infliction of great bodily injury (§ 12022.7, subd. (a)), and for having a blood alcohol level of 0.15 percent or more (Veh. Code, § 23578).
Defendant appeared for arraignment the same day. Defense counsel advised defendant to plead guilty to the charge of gross vehicular manslaughter before the People could amend the complaint to add a murder charge, which defense counsel had heard and read in the press could happen. Defendant agreed, and defense counsel informed the court defendant intended to plead guilty but required a specialized Zapoteco interpreter. As no such interpreter was available on that date, the matter was continued.
There is no reporter's transcript of the April 6, 2016 hearing. The record of those proceedings is therefore comprised of a settled statement. Defense counsel provided a declaration that eventually became part of the settled statement, and included therewith a news article in which the People stated they anticipated the charges brought in the original complaint could change.
On April 13, 2016, the People filed an amended complaint, charging defendant with second degree murder (§ 187, subd. (a); count 1), gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a); count 2), driving on a license suspended for driving under the influence (Veh. Code, § 14601.2, subd. (a); count 3), driving under the influence causing injury (Veh. Code, § 23153, subd. (a); count 4), driving under the influence of alcohol (Veh. Code, § 23152, subd. (a); count 5), driving while having a blood alcohol level of 0.08 percent or higher (Veh. Code, § 23152, subd. (b); count 6), and being an unlicensed driver (Veh. Code, § 12500, subd. (a); count 7). As to count 4, the People alleged an enhancement for personal infliction of great bodily injury (§ 12022.7, subd. (a)). As to counts 5 and 6, the People alleged an enhancement for driving with a blood alcohol level of 0.15 percent or more (Veh. Code, § 23578).
Counts 5 through 7 pertained to the separate incident of driving under the influence that occurred on February 7, 2016.
The matter subsequently was continued several times due to the lack of an interpreter who could speak defendant's dialect.
On May 4, 2016, defendant filed an opposition to the first amended complaint and his arraignment on the same. Defendant argued the charge of murder was improperly joined under section 1009 because no new evidence was discovered that supported adding a new charge, and the People had not provided notice to defendant of their intent to add the charge. Additionally, defendant argued the sole purpose of the amendment was to attempt to obtain a harsher sentence, and thus the amendment constituted an improper attempt to usurp the discretionary sentencing authority of the court. Defendant asked the court to disallow the first amended complaint pursuant to section 1009, and to instead allow defendant to plead to the original complaint. Defendant argued that to do otherwise would prejudice his substantial rights because the court "would be treating the case as if [defendant] had been given an opportunity to plead and chose not to do so on April 6, 2016 (the time of his first arraignment) when in fact, he was legally and insufficiently unable to communicate with the court."
At a hearing on the same date, the court determined the first amended complaint properly could be filed because it joined charges that could have been filed in the original complaint and defendant suffered no prejudice. Defendant was then arraigned on the first amended complaint and entered pleas of not guilty.
The matter ultimately proceeded to a jury trial on a second amended information, filed January 9, 2018, and charging defendant with second degree murder (§ 187, subd. (a); count 1), gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a); count 2), driving under the influence and causing bodily injury (Veh. Code, § 23153, subd. (a); count 3), driving with a blood alcohol content of 0.08 percent or more and causing bodily injury (Veh. Code, § 23153, subd. (b); count 4), driving on a license suspended for driving under the influence (Veh. Code, § 14601.5, subd. (a); count 5), driving under the influence of alcohol (Veh. Code, § 23152, subd. (a); count 6), and driving while having a blood alcohol content of 0.08 percent or higher (Veh. Code, § 23152, subd. (b); count 7). As to counts 3 and 4, the People alleged an enhancement for inflicting great bodily injury. (§ 12022.7, subd. (a).) As to counts 4 and 7, the People alleged an enhancement for driving with a blood alcohol level of 0.15 percent or more (Veh. Code, § 23578). During jury deliberations, the People moved to dismiss count 4, and the court granted the People's motion.
Counts 6 and 7 pertained to the aforementioned February 7, 2016 incident.
The jury found defendant guilty on counts 1, 2, 5, 6, and 7, and found true the enhancement to count 7. The jury returned no verdict on count 3, which was a lesser included offense of count 2. Count 5 was dismissed at sentencing pursuant to Vehicle Code section 41500, subdivision (a).
On count 1, defendant was sentenced to a term of 15 years to life. Sentence on counts 2 and 6 was imposed and stayed pursuant to section 654. Sentence on count 7 was imposed to run concurrently to count 1.
Although the court orally ruled that sentence on count 7 was to run concurrently to the sentence on count 1, the court's minute order and abstract of judgment mistakenly state sentence on count 7 was stayed pursuant to section 654. We will order the court's minute order and abstract of judgment corrected to accurately reflect the court's oral pronouncement of judgment.
DISCUSSION
Defendant contends his "state-created due process right to plead guilty to the face of the [original] complaint" was violated. (Capitalization omitted.) We disagree.
Defendant did not raise this argument below. When he objected to the People's first amended complaint, he objected on the grounds the amendment was improper under section 1009 and interfered with the court's sentencing authority. Defendant argued the amendment was prejudicial because he had been unable to enter a plea of guilty on the original complaint as he intended. However, he did not argue his statutory or constitutional right to enter such plea was violated. Accordingly, the argument raised in this appeal is forfeited. Regardless, as we explain, it fails on the merits.
"A criminal defendant does not have an absolute right under the [United States] Constitution to have his guilty plea accepted by the court, [citation], although the States may by statute or otherwise confer such a right." (North Carolina v. Alford (1970) 400 U.S. 25, 38, fn. 11.) California law provides a criminal defendant the statutory right to plead guilty to pending charges:
"While the charge remains pending before the magistrate and when the defendant's counsel is present, the defendant may plead guilty to the offense charged, or, with the consent of the magistrate and the district attorney or other counsel for the people, plead nolo contendere to the offense charged or plead guilty or nolo contendere to any other offense the commission of which is necessarily included in that with which he or she is charged, or to an attempt to commit the offense charged and to the previous conviction or convictions of crime if charged upon a plea of guilty or nolo contendere." (§ 859a, subd. (a); see Cronk v. Municipal Court (1982) 138 Cal.App.3d 351, 354 (Cronk).)
However, California law also provides a prosecutor wide latitude to amend a complaint:
" 'Under . . . section 1009, the People may amend an information without leave of court prior to entry of a defendant's plea, and the trial court may permit an amendment of an information at any stage of the proceedings.' [Citation.] '[S]ection 1009 authorizes amendment of an information at any stage of the proceedings provided the amendment does not change the offense charged in the original information to one not shown by the evidence taken at the preliminary examination. If the substantial rights of the defendant would be prejudiced by the amendment, a reasonable postponement not longer than the ends of justice require may be granted. . . . Similarly, where the amendment makes no substantial change in the offense charged and requires no additional preparation or evidence to meet the change, the denial of a continuance is justified and proper.' [Citation.] 'The questions of whether the prosecution should be permitted to amend the information and whether continuance in a given case should be granted are matters within the sound discretion of the trial court and its ruling will not be disturbed on appeal absent a clear abuse of discretion.' " (People v. Hamernik (2016) 1 Cal.App.5th 412, 424.)
In this case, defendant's statutory right to plead guilty to the face of the complaint (§ 859a, subd. (a)) is in tension with the People's right to add charges to an accusatory pleading at any stage of the proceeding before judgment to reflect the true " 'extent to which an individual is legitimately subject to prosecution.' " (In re Bower (1985) 38 Cal.3d 865, 875; see People v. Michaels (2002) 28 Cal.4th 486, 515 (Michaels).) However, our Supreme Court's decision in Michaels resolves this tension.
In Michaels, the People originally charged the defendant in a two-count complaint with robbery and murder, without specifying the degree of the murder or adding special circumstance allegations. (Michaels, supra, 28 Cal.4th at p. 512.) The defendant pled not guilty and, at a subsequent bail review hearing, the People stated they would determine whether to add special circumstance allegations after the preliminary hearing. At the start of the preliminary hearing, the defendant stated he would plead guilty and offered a change of plea form to the court. The prosecutor asked the court not to accept the plea, stating the People would amend to add the special circumstance allegations. After a recess, the prosecutor offered an amended complaint. The magistrate rejected the defendant's guilty plea and allowed the filing of the amended complaint. (Ibid.)
As in the instant case, the defendant in Michaels argued on appeal that he had an absolute right to plead guilty to the murder charge in the original complaint pursuant to section 859a. (Michaels, supra, 28 Cal.4th at pp. 512-513.) However, our Supreme Court concluded the magistrate did not abuse his discretion in granting the prosecutor leave to amend after the defendant stated his desire to plead guilty to murder. (Id. at p. 514.) The high court noted that the defendant "knew of the prosecution's express intention to decide whether to charge special circumstances after the preliminary hearing, yet [the] defendant gave no advance notice of his intent to enter a guilty plea before the preliminary hearing." (Ibid.) In such circumstances, the court concluded the magistrate acted within his discretion in refusing to accept the plea and allowing the prosecution to amend the complaint. (Ibid.)
In reaching this conclusion, the high court cited with approval to Cronk, supra, 138 Cal.App.3d 351. There, the People similarly filed a complaint charging the defendant with murder, without specifying the degree of murder. (Id. at p. 352.) Defense counsel made an ex parte request to advance the arraignment and plea, without notice to the district attorney, and the matter was so advanced. (Id. at pp. 352-353.) On the advanced hearing date, the defendant offered to plead guilty as charged. (Id. at p. 353.) The prosecutor asked that the matter be put over for a day to allow the People to file an amended complaint alleging the special circumstance. The magistrate continued the matter and the People filed an amended complaint charging the defendant with first degree murder with special circumstances. (Ibid.)
The defendant brought a petition for writ of mandate to compel the magistrate to accept his guilty plea. (Cronk, supra, 138 Cal.App.3d at p. 352.) As in the instant case, the defendant argued the magistrate was mandated to accept his plea pursuant to section 859a, and had no authority to refuse to accept the plea or to continue the matter to allow filing of an amended complaint. (Cronk, at p. 353.) The Court of Appeal concluded the defendant had accelerated the hearing date without notice to the prosecution in order to cut off " 'a legitimate right to amend,' " thus leaving the magistrate with inherent authority to " 'restore that right to the prosecution by refusing to accept the plea and granting a short continuance.' " (Id. at p. 354.) The court further noted, " 'The purpose of Section 859a [subdivision] (a) is to allow a speedy process for defendants and eliminate unnecessary procedural niceties to allow the efficient disposition of criminal matters. It was never designed to allow defendants to use surreptitious calendar changes to defeat the right of the People to amend to allege what may very well be just and proper charges of criminal activity.' " (Ibid., fn. omitted.)
These cases make clear that the court has inherent power to grant at least a short continuance to enable the prosecution to amend the complaint in the face of a defendant's offer to plead guilty. (Michaels, supra, 28 Cal.4th at p. 514; Cronk, supra, 138 Cal.App.3d at p. 354.) Although section 859a affords a defendant the opportunity to plead to the complaint in order " 'to allow the efficient disposition of criminal matters,' " it does not vitiate the People's right to amend the complaint to allege otherwise permissible charges. (Cronk, supra, 138 Cal.App.3d at p. 354; accord, Michaels, supra, 28 Cal.4th at p. 514.)
Here, by defense counsel's own admission, defendant sought to plead guilty to the face of the original complaint in order to cut off the People's right to amend to add a charge of second degree murder. He was unsuccessful in doing so because a specialized interpreter was not available. However, even if an interpreter had been available, the People could have sought, and the court permissibly could have granted, a short continuance to permit filing of an amended complaint. (Michaels, supra, 28 Cal.4th at p. 514; Cronk, supra, 138 Cal.App.3d at p. 354.) We acknowledge the People did not, in fact, seek a continuance to permit such filing in this case. However, there was no reason for the People to do so, as the matter was necessarily continued due to the lack of an adequate interpreter. Notably, although the People apparently had no advance notice of defendant's intent to plead guilty at the first arraignment, the first amended complaint was filed seven days thereafter. The court acted well within its discretion to permit such filing, even in the face of defendant's prior offer to plead guilty. (See Michaels, supra, 28 Cal.4th at p. 514; Cronk, supra, 138 Cal.App.3d at p. 354.)
Given the immediacy of the amendment at this early stage of the proceedings, defendant cannot claim the delay in bringing the additional charge prejudiced his substantial rights. --------
Defendant suggests Michaels and Cronk are distinguishable because he was not advised by the prosecution that the People intended to amend the complaint. This argument is unpersuasive in light of defense counsel's declaration stating that he advised defendant to plead guilty to the original complaint based on reports the People might seek to amend. Defendant also argues that the trial court improperly focused on whether the murder charge was properly joined under section 1009, a factor defendant now characterizes as "irrelevant." However, this was the argument pressed by defendant in the trial court, and the court did not err in addressing it.
Finally, defendant cites People v. Reza (1984) 152 Cal.App.3d 647, in support of the proposition that the court had an absolute obligation to accept his guilty plea. There, the defendant "sought to enter [a] plea of guilty in the face of very strong evidence in order to avoid prejudice on a much weaker but more serious accusation." (Id. at p. 653.) The prosecution opposed the plea out of a desire to use the evidence on one count to help prove another. (Ibid.) The court refused to accept the plea, and the Court of Appeal concluded this was error. (Ibid.) Although the Court of Appeal noted the prosecution's opposition "could have been considered as a possible basis for a reasonable continuance, if requested," the court concluded it was error "to reject a competent defendant's offer of an unconditional plea of guilty in a noncapital case where there is a factual basis for the plea." (Id. at pp. 653-654.) Reza is distinguishable because it did not involve an amendment to the complaint. Moreover, to the extent Reza suggests the trial court has an absolute obligation to accept a defendant's guilty plea on the date that it is offered, our Supreme Court's later decision in Michaels necessarily abrogates such holding. (See Michaels, supra, 28 Cal.4th at p. 514.)
In sum, the court retained discretion to allow amendment of the complaint, even after defendant offered to plead guilty. (Michaels, supra, 28 Cal.4th at p. 514.) The court did not abuse its discretion in permitting amendment under the facts of this case. Because defendant was not deprived of his statutory right to plead guilty, we necessarily reject his contention that amendment of the complaint deprived him of a state-created due process right protected under the Fourteenth Amendment to the federal Constitution. (Michaels, supra, at p. 514.)
DISPOSITION
The matter is remanded for the court to correct the minutes of the March 16, 2018 sentencing hearing and the abstract of judgment to reflect that defendant was sentenced on count 7 to a term of six months, to be served concurrently to the sentence on count 1. A copy of the corrected abstract of judgment shall be forwarded to the appropriate authorities. In all other respects, the judgment is affirmed.
DETJEN, J. WE CONCUR: HILL, P.J. SMITH, J.