Opinion
F077098
04-28-2020
THE PEOPLE, Plaintiff and Respondent, v. LUIZ MIGUEL ORTEGA, Defendant and Appellant.
Paul Couenhoven, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Ian Whitney, Amanda D. Cary and Lewis A. Martinez, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 1490941)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Stanislaus County. Scott T. Steffen, Judge. Paul Couenhoven, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Ian Whitney, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Peña, J. and DeSantos, J.
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INTRODUCTION
Following a fatal automobile accident, a jury convicted appellant Luiz Miguel Ortega of second degree murder (Pen. Code, § 187, subd. (a); count I), felony gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a); count II), felony hit and run with death (Veh. Code, § 20001, subd. (b)(2); count III), and misdemeanor driving on a suspended license (Veh. Code, § 14601.1, subd. (a); count IV). In count II, the jury found true appellant fled the scene of the crime and he personally inflicted great bodily injury. In a bifurcated proceeding, appellant admitted a prior prison term.
All future statutory references are to the Penal Code unless otherwise noted.
Appellant received an indeterminate sentence of 15 years to life for the murder (count I), and a consecutive determinate sentence of three years for fleeing from the scene of the accident (count III). Both the indeterminate and determinate sentences were enhanced by an additional and consecutive year for the prior prison term (§ 667.5, subd. (b)). Additional sentences were imposed for felony gross vehicular manslaughter (count II) and misdemeanor driving on a suspended license (count IV), which were stayed pursuant to section 654.
Appellant argues his misdemeanor conviction for driving on a suspended license (count IV) must be reversed. He contends he stipulated to all elements necessary to establish this charge without providing a knowing and voluntary waiver of his constitutional rights. We conclude a waiver was not required and we reject this claim. However, we agree with the parties that appellant's prior prison term enhancements must be struck in light of Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136). We strike the one-year enhancements (§ 667.5, subd. (b)) and remand for resentencing. We also direct the trial court to correct a clerical error appearing in the determinate abstract of judgment. We otherwise affirm appellant's judgment.
Prior to filing supplemental briefing regarding Senate Bill 136, appellant had argued the trial court abused its discretion when it imposed the prior prison term enhancement twice (once in the indeterminate term and once in the determinate term). Because appellant's prior prison term no longer qualifies for a one-year enhancement under section 667.5, subdivision (b), we need not address appellant's other arguments regarding this enhancement.
BACKGROUND
We summarize the material trial evidence.
I. The Fatal Accident.
At approximately 1:59 a.m. on August 16, 2015, a vehicle ran a stop sign at an intersection in Modesto, California. This vehicle struck an automobile driven by Nenar Zaia. As a result of the collision, Zaia suffered severe injuries to his head and chest. His heart and aorta were lacerated. He suffered numerous bone fractures throughout his body, including multiple fractures of his skull. He was pinned in his vehicle, and he died before he could be extricated.
II. The Prosecution Established Appellant Was The Driver Who Struck Zaia.
At trial, the prosecution established it was appellant who drove the vehicle which struck Zaia's automobile. Records from the Department of Motor Vehicles (DMV) disclosed appellant owned the vehicle in question. He had purchased this vehicle about one year before this fatal accident.
Just after this collision, witnesses saw a man hobbling or walking away from the accident scene. In court, a witness identified appellant as that person.
Shortly after this accident, an officer spotted appellant limping down a road about a half mile from the collision. The officer shined a vehicle spotlight over appellant, who appeared to hide behind a tree. The officer took appellant into custody. Appellant appeared to be under the influence of alcohol and he was missing his right shoe. He had a laceration to his right shin. His lips appeared bloody, cut and swollen. Inside the vehicle that had struck Zaia's automobile, police found a right shoe. It was on or near the driver's seat.
The driver's airbag inside appellant's vehicle had deployed during this accident, and an apparent blood stain was on it. Law enforcement later obtained a deoxyribonucleic acid (DNA) sample from appellant. Appellant's DNA matched the DNA located on the deployed airbag.
III. Appellant's Intoxication At The Time Of The Fatal Accident.
Shortly after this accident, appellant received medical attention from a paramedic. Their interaction was recorded and it was played for the jury. During their recorded interaction, the paramedic asked appellant if he had been driving the vehicle involved in the accident. Appellant said he had blacked out before the accident. He later said he could not remember anything. Appellant was transported to a hospital.
At the hospital a short time later, an officer had appellant perform a field sobriety test. The test suggested appellant was under the influence of alcohol, and appellant was arrested on suspicion of driving under the influence (DUI). At about 4:04 a.m. and 4:06 a.m. that morning, appellant underwent two breath tests. The results showed appellant's blood-alcohol level between 0.17 and 0.18 percent. At about 9:59 a.m. that same day, appellant's blood was drawn. His blood was tested twice. The tests showed a blood-alcohol level of 0.091 and 0.090 percent. At trial, the prosecution's toxicology expert opined appellant's blood-alcohol level would have been about 0.20 to 0.21 percent at the time of the fatal accident.
Appellant's blood also tested positive for methamphetamine and marijuana.
As part of its investigation, law enforcement had appellant's vehicle inspected for mechanical defects. No mechanical or other system failures were discovered that could have contributed to the collision.
IV. Appellant's License Was Suspended When The Fatal Accident Occurred.
According to DMV records, three active suspensions were on appellant's driver's license when this fatal accident occurred. Under DMV's practice, it would have sent appellant notice of each suspension via mail.
It is "conclusively presumed" a person received knowledge of a suspended or revoked license if the DMV uses first-class mail to notify the person. (Veh Code, § 14601.1, subd. (a); Veh. Code, § 13106, subd. (a).)
After the prosecution presented evidence demonstrating appellant's license had been suspended, appellant stipulated he "knew his driver's license was suspended prior to [the date of the fatal accident with Zaia]." The trial court instructed the jury it must accept this as true. It is this stipulation which is the subject of appellant's first claim on appeal.
V. Appellant's Prior Convictions For Driving Under The Influence.
Before this fatal accident in August 2015, appellant had suffered two alcohol-related convictions. In 2006, he was arrested and convicted for alcohol involved DUI. When he was sentenced, the trial court warned appellant driving under the influence of alcohol, drugs, or both is dangerous to human life. Appellant was warned he could be charged with murder if he had another DUI that resulted in a death.
In April 2007, appellant admitted a violation of probation for failure to complete a DUI program. He was given additional jail time.
In November 2008, appellant was again arrested for alcohol involved DUI. In 2010, that matter resolved when he was convicted for misdemeanor alcohol-related reckless driving. When he was sentenced, the trial court warned appellant driving under the influence of alcohol, drugs, or both is dangerous to human life. Appellant was warned he could be charged with murder if he had another DUI that resulted in a death.
DISCUSSION
I. The Conviction In Count IV Should Not Be Reversed Because Appellant's Stipulation Was Not The Functional Equivalent Of A Guilty Plea.
In count IV, appellant was convicted of misdemeanor driving on a suspended license. The elements for this charge are (1) appellant drove while his license was suspended (or revoked) and (2) he knew his driving privilege was suspended (or revoked). (Veh. Code, § 14601.1, subd. (a); CALCRIM No. 2220.) During trial, the parties stipulated appellant "knew his driver's license was suspended prior to [the date of the fatal accident with Zaia]." The trial court instructed the jury it must accept this as true.
Appellant asserts his misdemeanor conviction for driving on a suspended license must be reversed. He notes his defense never contested his identity as the driver of the vehicle that caused Zaia's death. He contends his stipulation admitted all elements of this offense, and he claims it was the equivalent of a guilty plea. He argues he was never advised of the constitutional rights he was giving up when he entered into this stipulation. He relies on People v. Farwell (2018) 5 Cal.5th 295 (Farwell).
In contrast, respondent contends appellant entered into an evidentiary stipulation that did not require an advisement of trial rights. Respondent argues Farwell is distinguishable. Respondent urges us to affirm the conviction in count IV.
We agree with respondent and we reject appellant's assertions. Appellant's stipulation was not the equivalent of a guilty plea to the charge in count IV. As such, an advisement of constitutional rights was not required. We provide an overview of evidentiary stipulations before reviewing Farwell, supra, 5 Cal.5th 295.
A. Evidentiary stipulations do not require a waiver of constitutional rights.
"Evidentiary stipulations have long been recognized as tactical trial decisions which counsel has discretion to make without the express authority of the client." (People v. Adams (1993) 6 Cal.4th 570, 578 (Adams).) When an evidentiary stipulation does not admit every element necessary for conviction of an offense, a defendant is not required to be advised of his or her trial rights and the penalty consequences of the admission, or to provide a waiver of those trial rights. (Id. at p. 577.)
In Adams, our Supreme Court considered whether the Boykin-Tahl advisements were required when a defendant stipulated he had been released on bail at the time an alleged offense occurred, and that fact was one component of a sentence enhancement under section 12022.1 (felony committed while release on bail or own recognizance). (Adams, supra, 6 Cal.4th at pp. 572-573.) The Adams court held "because defendant's stipulation was a stipulation to evidentiary facts, not an admission that the enhancement allegation itself was true or an admission of every element necessary to imposition of punishment on the section 12022.1 charge, the Boykin-Tahl and Yurko requirements are inapplicable." (Adams, supra, 6 Cal.4th at p. 573.)
In Boykin v. Alabama (1969) 395 U.S. 238 (Boykin), the United States Supreme Court held that, when a trial court accepts a guilty plea, it should ensure the record reflects the defendant voluntarily and knowingly waived his constitutional rights to a jury trial, to confront and cross-examine witnesses, and against compulsory self-incrimination. (Id. at pp. 242-243.)
In In re Tahl (1969) 1 Cal.3d 122 (Tahl), our high court followed Boykin and held that, when a guilty plea is entered, the record must establish the defendant was advised of his right to confrontation, to a jury trial, and against selfincrimination, as well as the nature of the charge and the consequences of his plea. (Id. at p. 132.)
In In re Yurko (1974) 10 Cal.3d 857 (Yurko), the defendant admitted three prior felony convictions. (Id. at p. 860.) Our high court held that, pursuant to the Boykin-Tahl requirements, a defendant who admits the truth of an alleged prior conviction for purposes of a sentencing enhancement must be advised of, and waive, his rights to trial by jury, to confront his accusers, and to remain silent. (Yurko, supra, 10 Cal.3d at p. 863.)
B. Farwell , supra , 5 Cal.5th 295.
In Farwell, supra, 5 Cal.5th 295, the defendant was charged with gross vehicular manslaughter and misdemeanor driving on a suspended license. (Farwell, supra, 5 Cal.5th at p. 298.) During trial, the parties entered into a stipulation the defendant " 'was driving a motor vehicle while his license was suspended for a failure to appear, and ... when he drove, he knew his license was suspended.' " (Id. at pp. 298-299.) The jury was instructed it must accept these facts as true. (Id. at p. 299.) The trial court, however, did not advise the defendant "of the constitutional rights implicated by a guilty plea or the stipulation. Nor did it solicit a personal waiver of those rights." (Ibid.)
The Farwell court determined this stipulation had encompassed all elements necessary to prove the crime of driving with a suspended or revoked license (Veh. Code, § 14601.1, subd. (a)). (Farwell, supra, 5 Cal.5th at p. 299.) The stipulation was the only basis for the jury's misdemeanor verdict. (Id. at p. 298.) The high court stated a "stipulation that admits all of the elements of a charged crime necessary for a conviction is tantamount to a guilty plea." (Id. at p. 299.) The Supreme Court reasoned the defendant's stipulation had "conclusively established the stipulated facts as true and completely relieved the prosecution of its burden of proof on count 2. While the jury was still required to return a verdict on that count, its limited function did not amount to a jury trial in the constitutional sense." (Id. at p. 300.)
C. The facts from this matter.
We reject appellant's assertion his stipulation was the equivalent of a guilty plea. To the contrary, his stipulation did not admit all elements necessary to establish a conviction under Vehicle Code section 14601.1, subdivision (a). Although appellant never disputed at trial that he was the driver, he also never admitted he was driving the vehicle which struck Zaia's automobile. As such, and unlike in Farwell, appellant's stipulation did not relieve the prosecution of its burden of proof. Instead, the prosecution was still required to prove it was appellant who caused this deadly accident.
Contrary to Farwell, appellant's stipulation did not limit the jury's function in the constitutional sense regarding its role in deciding guilt in count IV. (See Farwell, supra, 5 Cal.5th at p. 300.) Moreover, it is clear appellant's stipulation was not the basis for the guilty verdict in count IV. Instead, the prosecution presented overwhelming evidence establishing it was appellant who drove the vehicle in question. The prosecution also demonstrated appellant's license had been suspended prior to this fatal collision. Consequently, Farwell is distinguishable and it does not dictate reversal of appellant's misdemeanor conviction.
Based on this record, appellant's stipulation was not the equivalent of a guilty plea in count IV. Thus, the trial court was not required to advise appellant of his constitutional rights and obtain a waiver when appellant entered into this stipulation. (See Adams, supra, 6 Cal.4th at p. 577.) Accordingly, appellant's arguments are without merit and this claim fails.
II. Appellant's One-Year Enhancements Must Be Struck.
The parties agree, as do we, appellant's one-year sentencing enhancements under section 667.5, subdivision (b), must be struck. Senate Bill 136 went into effect on January 1, 2020, and it amended section 667.5, subdivision (b). (People v. Lopez (2019) 42 Cal.App.5th 337, 340-341.) Under the new law, a one-year prior prison term enhancement only applies if a defendant served a prior prison term for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). (People v. Lopez, supra, 42 Cal.App.5th at pp. 340-341.)
Appellant filed a request for judicial notice involving materials pertaining to the legislative intent behind Senate Bill 136. On October 22, 2019, this court issued an order deferring consideration of that request, but we granted respondent an opportunity to file an objection. Respondent did not file an opposition or otherwise object. Because the requested information pertains to official acts of the Legislature, we grant appellant's request for judicial notice. (Evid. Code, § 452, subd. (c).)
It is undisputed appellant's prior prison term was not for a sexually violent offense. Senate Bill 136 retroactively applies to appellant. (People v. Lopez, supra, 42 Cal.App.5th at pp. 341-342.) Thus, appellant's prior prison term no longer qualifies for a one-year enhancement under section 667.5, subdivision (b). Accordingly, we remand this matter for the trial court to strike these enhancements and to resentence appellant accordingly.
We note that, "when part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.' [Citations.]" (People v. Buycks (2018) 5 Cal.5th 857, 893.) --------
III. The Determinate Abstract Of Judgment Contains A Clerical Error.
A clerical error appears in the determinate abstract of judgment. In count II, appellant was convicted of felony gross vehicular manslaughter while intoxicated in violation of section 191.5, subdivision (a). The determinate abstract of judgment incorrectly lists this conviction under the Vehicle Code.
On its own motion, an appellate court may correct clerical errors appearing in abstracts of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Following resentencing, the trial court shall ensure appellant's amended determinate abstract of judgment reflects appellant's conviction in count II under the Penal Code and not the Vehicle Code.
DISPOSITION
This matter is remanded to the trial court for resentencing. At resentencing, the court shall strike the enhancements imposed under Penal Code section 667.5, subdivision (b), and appellant shall be resentenced accordingly. Following resentencing, the court shall prepare amended abstracts of judgment. The court shall ensure the amended determinate abstract of judgment reflects that appellant's conviction in count II was pursuant to Penal Code section 191.5, subdivision (a). The court shall forward the amended abstracts of judgment to the appropriate authorities. In all other respects, appellant's judgment is affirmed.