Opinion
E073936
02-16-2021
THE PEOPLE, Plaintiff and Respondent, v. ARNULFO REYNA, Defendant and Appellant.
Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Christopher Beesley, and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI18001859) OPINION APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson, Judge. Affirmed as modified with directions. Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Christopher Beesley, and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Arnulfo Reyna drove while under the influence of alcohol, causing a multiple car crash and injuries to several people, and then drove away. On September 4, 2019, pursuant to a plea to the court, defendant pleaded no contest to two counts of driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a); counts 1 & 3), two counts of driving with a blood alcohol level of 0.08 or greater causing injury (Veh. Code, § 23153, subd. (b); counts 2 & 4), and one count of hit and run resulting in injury (Veh. Code, § 20001, subd. (b)(1); count 5). Defendant also admitted that he had suffered a prior conviction for driving under the influence in 2011 (Veh. Code, §§ 23560, 23566, 23550.5, subd. (a)), that he had personally inflicted great bodily injury upon two of the victims (Pen. Code, § 12022.7, subd. (a)) in the instant case, and that counts 1, 2, and 5 qualified as strikes (Pen. Code, §§ 1192.7, subd. (c)(8) & 667.5, subd. (c)(8)). Defendant was sentenced to the agreed upon term of six years eight months in state prison with 491 days' credit for time served.
All future statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant contends that he erroneously entered a plea as to multiple counts of driving under the influence causing injury because only one count of driving under the influence causing injury may be charged per one instance of driving. He therefore requests this court to dismiss counts 3 and 4. Defendant also asserts that if this court does not dismiss counts 3 and 4, the trial court erred in the manner in which it applied section 654 to those counts and count 2. The People argue this appeal should be dismissed because defendant had explicitly waived his right to appeal the conviction and judgment. We agree that defendant waived his right to appeal from the conviction. However, for reasons explained, we dismiss counts 3 and 4 and modify the judgment accordingly with directions to the superior court to amend the abstract of judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the police report that the parties stipulated was the factual basis for defendant's plea.
On July 5, 2018, defendant, who was under the influence of alcohol, drove his pickup truck into a car driven by Anita H. who was stopped at a red light. The collision propelled Anita H's vehicle into a car driven by Brian B. who was also stopped at the red light. After causing the crash, defendant sped away. Anita H. suffered severe chest pain and a broken foot. Brian B. suffered pain in his chest, neck, and head.
Witnesses who had observed the collision followed defendant's pickup truck. After defendant drove into a cul-de-sac, the witnesses used their vehicles to block defendant from leaving and called 911. Law enforcement responded to the scene. An officer found an open 12-pack of beer with several cans missing in the bed of defendant's pickup truck and some beer packaging on the driver's side floorboard. In addition, defendant's speech was slurred, he had bloodshot, watery eyes, a strong odor of alcohol emanating from his person, he was swaying as he stood in place, and he walked with an unsteady gait. Defendant was arrested for being under the influence of alcohol.
On August 26, 2019, a first amended information was filed alleging defendant had committed two counts of driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a); counts 1 & 3), two counts of driving with a 0.08 percent or greater blood alcohol content causing injury (Veh. Code, § 23153, subd. (b); counts 2 & 4), and one count of hit and run resulting in injury (Veh. Code, § 20001, subd. (b)(1); count 5). As to each of the five counts, the first amended information also alleged that defendant had suffered a drunk driving conviction in 2011 (Veh. Code, §§ 23560, 23566, 23550.5, subd. (a)), that defendant had personally inflicted great bodily injury upon a victim (Pen. Code, § 12022.7, subd. (a)), and that the offenses were serious and violent felonies (Pen. Code, §§ 1192.7, subd. (c)(8) & 667.5, subd. (c)(8)). The first amended information further alleged as to counts 1 through 4 that defendant proximately caused bodily injury to more than one victim (Veh. Code, § 23558).
On September 4, 2019, in a plea with the court, defendant pleaded no contest to all five counts and admitted all of the enhancement allegations as alleged in the first amended information. In return, defendant was promised an agreed upon sentence of six years eight months that was comprised of the upper term of three years on count 1, plus the middle term of three years on the great bodily injury enhancement attached to count 1, and an additional eight months on count 5. It was also agreed that the court would stay any further punishment and that under Wilkoff v. Superior Court (1985) 38 Cal.3d 345 (Wilkoff), superseded by statute on other grounds as stated in People v. Elder (2017) 11 Cal.App.5th. 123, 139, and section 12022.7, subdivision (a), counts 1, 2, and 5 would be strikes.
Prior to pleading guilty, defendant initialed and signed a plea form, which noted the above agreement with the trial court. He also initialed the paragraphs indicating he understood and waived his constitutional rights, that he understood the agreement and the consequences of pleading guilty, and that he had sufficient time to consult with his attorney. In addition, defendant initialed the paragraph that he agreed to "waive and give up any right to appeal from any motion [he] may have brought or could bring and from the conviction and judgment in [his] case since [he was] getting the benefit of [his] plea bargain." The plea form was signed by defendant, defendant's counsel, his Spanish interpreter, and the trial court.
The plea form was not signed by the deputy district attorney since the plea agreement was with the trial court.
Before accepting defendant's no-contest plea, the trial court reviewed the contents of the plea form with defendant, including each of the counts defendant was pleading to and the allegations he was admitting, and the constitutional rights he was waiving. Defendant replied in the affirmative to the trial court's query as to whether he had adequately discussed the matter with his attorney, including any potential defenses, penalties, punishments, and future consequences from entering his no contest plea. Defendant's attorney confirmed that he had adequately discussed the issues and reviewed the contents of the plea form with defendant. After the colloquies with defendant and his attorney, the trial court found the "plea was entered freely, voluntarily, knowingly and intelligently by" defendant.
After his plea, defendant was immediately sentenced on counts 1 and 5 in accordance with his agreement to the agreed upon term of six years eight months in state prison. The remaining counts and enhancements were stayed pursuant to section 654. In staying the remaining counts, the trial court stated as follows: "Regarding Counts 2, 3, and 4, the Court will stay any punishment with respect to those counts, which would have been one-third the midterm of eight months on each count will be stayed. Court will not impose on Counts 1—sorry, Counts 2, 3, 4, and 5, Penal Code Section 12022.7, great bodily injury enhancement, which the Court believes would be one-third the middle term of one year per count. That will be stayed. [¶] In addition, the Court will stay the admission of multiple victims, pursuant to Vehicle Code Section 23558 in Counts 1 through 4. The Court will stay the year. And the Court will stay the prior conviction admission, pursuant to Vehicle Code Section 23550.5(a)."
The trial court's corrected minute order of the hearing and the corrected abstract of judgment indicate that the sentence was imposed on counts 2, 3, and 4, the sentence was one-third the middle term consecutive, and then also indicates this consecutive term was stayed pursuant to section 654.
Defendant filed a timely notice of appeal and request for a certificate of probable cause on October 21, 2019. The same day the trial court granted the certificate of probable cause.
Defendant's stated reason for seeking a certificate of probable cause was: "I did not enter my plea knowingly and voluntarily. My counsel did not properly advise me of my rights and charges before I pled."
III
DISCUSSION
A. Plea to Two Counts of Driving Under the Influence
Relying on Wilkoff, supra, 38 Cal.3d 345, defendant contends that since there was only one incident of driving under the influence causing injury and only one incident of driving with a blood alcohol level of 0.08 percent or greater causing injury, he erroneously entered a plea as to multiple counts of driving under the influence causing injury, namely one for each victim. He thus believes this court should dismiss counts 3 and 4. The People respond the appeal should be dismissed because defendant had explicitly waived his right to appeal from the conviction and judgment.
1. Driving Under the Influence Offense Generally
Vehicle Code section 23153 provides, in pertinent part: "(a) It is unlawful for a person, while under the influence of any alcoholic beverage, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver. [¶] (b) It is unlawful for a person, while having 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver."
Our California Supreme Court has held that "a defendant cannot be charged with multiple counts of felony drunk driving under Vehicle Code section 23153, subdivision (a), where injuries to several people result from one act of drunk driving." (People v. McFarland (1989) 47 Cal.3d 798, 802 (McFarland); Wilkoff, supra, 38 Cal.3d at p. 353.) Wilkoff explained that a "charge of multiple counts of violating a statute is appropriate only where the actus reus prohibited by the statute—the gravamen of the offense—has been committed more than once. The act prohibited by [Vehicle Code] section 23153 is the act of driving a vehicle while intoxicated and, when so driving, violating any law relating to the driving of a vehicle." (Wilkoff, at p. 349.) The Supreme Court explained, "By 'one instance' of drunk driving we refer to one volitional act of driving. Thus if a driver collides with one car and is involuntarily propelled into a second car, only 'one instance' of driving has occurred. But if a driver collides with the first car and then voluntarily drives further and collides with a second car, then two acts of driving have occurred and the driver may be charged with two counts of felony drunk driving." (Id. at p. 349, fn. 4.)
The court's holding in Wilkoff was "based upon the express language of the statute, which defines the offense principally in terms of driving while intoxicated rather than the injuries which result therefrom, as well as evidence that the Legislature clearly intended only one violation of the statute regardless of the number of victims." (McFarland, supra, 47 Cal.3d at p. 802; Wilkoff, supra, 38 Cal.3d at pp. 352-353.) The legislative intent, Wilkoff concluded, was "that one instance of driving under the influence which causes injury to several persons is chargeable as only one count of driving under the influence." (Wilkoff, at p. 353; McFarland, at p. 802; see People v. Walker (2014) 231 Cal.App.4th 1270, 1276 (Walker); People v. Subramani (1985) 173 Cal.App.3d 1106, 1110.)
Here, the police report of the incident indicates that defendant drove under the influence of alcohol and collided with a car stopped at a red light, causing that vehicle to move and collide with a second car stopped at a red light. As a result, two people were injured. Defendant then fled but was stopped by witnesses who had observed the incident. Contrary to the People's suggestion, there is no indication that after defendant collided with the first vehicle and then voluntarily drove away that he collided again with a second vehicle. Therefore, defendant could not be charged with multiple counts of driving under the influence causing injury representing the multiple victims.
2. Waiver of Right to Appeal
"Just as a defendant may affirmatively waive constitutional rights to a jury trial, to confront and cross-examine witnesses, to the privilege against self-incrimination, and to counsel as a consequence of a negotiated plea agreement, so also may a defendant waive the right to appeal as part of the agreement. [Citations.]" (People v. Panizzon (1996) 13 Cal.4th 68, 80 (Panizzon).) "To be enforceable, a defendant's waiver of the right to appeal must be knowing, intelligent, and voluntary. [Citations.] Waivers may be manifested either orally or in writing. [Citation.]" (Ibid.; accord, People v. Vargas (1993) 13 Cal.App.4th 1653, 1659 (Vargas).)
"[A] waiver that is nonspecific, e.g., 'I waive my appeal rights' or 'I waive my right to appeal any ruling in this case,'" is considered a general waiver. (Panizzon, supra, 13 Cal.4th at p. 85, fn. 11.) "A broad or general waiver of appeal rights ordinarily includes error occurring before but not after the waiver because the defendant could not knowingly and intelligently waive the right to appeal any unforeseen or unknown future error. [Citation.] Thus, a waiver of appeal rights does not apply to '"possible future error" [that] is outside the defendant's contemplation and knowledge at the time the waiver is made.' [Citations.]" (People v. Mumm (2002) 98 Cal.App.4th 812, 815 (Mumm), italics added; accord, In re Uriah R. (1999) 70 Cal.App.4th 1152, 1160 [a general waiver does not preclude attacks on subsequent errors that are unforeseen or unforeseeable at the time the waiver was made].)
"The court shall . . . cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea." (§ 1192.5.) A court may rely upon a defendant's validly executed plea agreement as a proper substitute for personal admonishment that a defendant is waiving his right to appeal. (Panizzon, supra, 13 Cal.4th at p. 83; Vargas, supra, 13 Cal.App.4th at p. 1659; People v. Castrillon (1991) 227 Cal.App.3d 718, 722.) Where both defendant and his attorney signed an appeal waiver form and attested to the defendant's knowing and voluntary relinquishment of his appeal rights, courts have concluded that the defendant's waiver was knowing and voluntary. (Panizzon, at pp. 83-84.)
Here, defendant executed the plea agreement on September 4, 2019, wherein he initialed on the line items advising that he had, among other rights, a right to a jury trial, to face and cross-examine witnesses, and against self-incrimination. He also initialed paragraph 19, which stated that he agreed to "waive and give up any right to appeal from any motion I may have brought or could bring and from the conviction and judgment in my case since I am getting the benefit of my plea bargain." The plea form was signed by defendant, his attorney, the trial court, and his Spanish-language interpreter. Defendant's Spanish-language interpreter assisted defendant during the change-of-plea hearing, and certified that she had "translated the entire content" of the plea form "in presence of and directly to" defendant. By signing the plea agreement, defendant represented he had read and understood the entire document, and he waived and gave up all of the rights that he had initialed.
Before accepting defendant's plea, the trial court reviewed the contents of the plea form with defendant, including each of the counts defendant was pleading to, the allegations he was admitting, and the constitutional rights he was waiving. Defendant also acknowledged that he had adequately discussed the matter with his attorney, including any potential defenses, penalties, punishments, and future consequences from entering his no contest plea. Defendant's attorney confirmed that he had adequately discussed the issues and reviewed the contents of the plea form and agreement with defendant. After the colloquies with defendant and his counsel, the trial court found the "plea was entered freely, voluntarily, knowingly and intelligently by" defendant.
In his reply brief, defendant asserts that the waiver of his right to appeal should not apply because he obtained a certificate of probable cause and his certificate encompasses the issues raised in this appeal. He further asserts that this court should address the merits of his claim because he "raises a legal error committed by the trial court, one that is cognizable on appeal despite the language of this boiler plate waiver" and that "the waiver was not a knowing, intelligent waiver of the right to appeal from the challenged legal error committed by the trial court."
We reject defendant's contentions, as, under the totality of the circumstances, defendant's waiver of his appeal rights was knowing, intelligent, and voluntary. Here, as in Vargas, "[t]he written waiver of the right of appeal demonstrates, independent of the oral advisement by the court, [that] defendant was informed sufficiently of this right to knowingly and intelligently waive [his right to appeal]." (Vargas, supra, 13 Cal.App.4th at p. 1661.) "The fact a defendant received advice of counsel" is another factor to consider in determining whether "the waiver was knowing, intelligent and voluntary." (Ibid.) In addition, "[a]lthough a defendant may not know the specific nature of the appeal he is giving up . . . , if he understands he is receiving a benefit in return, his decision to enter into the agreement reflects a highly rational judgment, and that is sufficient to make the plea and waiver knowing, intelligent and voluntary." (Ibid.) Thus, defendant knowingly, voluntarily, and intelligently waived his right to appeal as part of his plea agreement.
However, because defendant pleaded no contest to all of the charges and enhancements, defendant could not legally be charged with two counts of driving under the influence causing injury and two counts of driving with a blood alcohol level of 0.08 percent or greater causing injury, no factual basis existed for two counts of driving under the influence causing injury (see People v. Holmes (2004) 32 Cal.4th 432, 443 [trial court possesses wide discretion in determining whether a sufficient factual basis exists for a guilty plea and its acceptance of that plea will be reversed only for abuse of discretion]), and to forestall an ineffective assistance of counsel claim, we address the merits of defendant's claim. As explained previously, the evidence showed defendant engaged in but a single act of driving under the influence, which resulted in the collision, causing injury to two people. Accordingly, we dismiss and vacate the stayed sentences on counts 3 and 4. (See Walker, supra, 231 Cal.App.4th at pp. 1276-1277.)
B. Application of Section 654
Defendant also asserts that the sentence on count 2 must be imposed concurrently pursuant to section 654. The People argue defendant waived this claim as part of his plea agreement and that it is barred under California Rules of Court, rule 4.412(b) (rule 4.412(b)).
Here, defendant had obtained the necessary certificate of probable cause to attack the validity of his plea. (See Panizzon, supra, 13 Cal.4th at pp. 75-80.) In addition, a general waiver of the right to appeal, like the one here, does not preclude an appeal from an unforeseen error that occurs after the waiver is entered because such a waiver is not knowing and intelligent. (Mumm, supra, 98 Cal.App.4th at pp. 815; People v. Sherrick (1993) 19 Cal.App.4th 657, 659 (Sherrick).)
In Panizzon, our Supreme Court addressed the scope of a sentencing-specific appellate waiver and its effect on a defendant's right to appeal. In that case, the defendant pleaded no contest pursuant to a plea bargain that provided for a sentence of life with the possibility of parole, plus 12 years. (Panizzon, supra, 13 Cal.4th at p. 73.) In the written waiver and plea agreement, the defendant agreed that he was waiving his "'right to appeal from the sentence [he would] receive in this case.'" (Id. at p. 82.) The defendant later challenged the sentence on the ground that it was disproportionate to the sentences his codefendants had received after him, and that therefore his sentence constituted cruel and unusual punishment. (Id. at pp. 74, 85.) The defendant also argued that the sentencing error was unforeseen or unknown at the time of his plea and appellate waiver, and that such future sentencing error was beyond the scope of his waiver. (Id. at p. 85.)
The California Supreme Court determined that defendant's claim fell within the scope of the appellate waiver and was not reviewable on appeal. (Panizzon, supra, 13 Cal.4th at p. 89.) The court explained: "Not only did the plea agreement in this case specify the sentence to be imposed, but by its very terms the waiver of appellate rights also specifically extended to any right to appeal such sentence. Thus, what defendant seeks here is appellate review of an integral element of the negotiated plea agreement, as opposed to a matter left open or unaddressed by the deal." (Id. at pp. 85-86.) The court further stated that "both the length of the sentence and the right to appeal the sentence are issues that cannot fairly be characterized as falling outside of defendant's contemplation and knowledge when the waiver was made." (Id. at p. 86.)
The Supreme Court distinguished Sherrick, supra, 19 Cal.App.4th 657, and Vargas, supra, 13 Cal.App.4th 1653, where a "general waiver of the right to appeal, given as part of a negotiated plea agreement," was "not . . . construed to bar the appeal of sentencing errors occurring subsequent to the plea," because "the defendants in those decisions were attempting to appeal sentencing issues that were left unresolved by the particular plea agreements involved." (Panizzon, supra, 13 Cal.4th at p. 85, fn. omitted.) As explained by the Supreme Court, "[i]n People v. Sherrick, . . . the defendant was permitted to argue on appeal that the trial court utilized a patently erroneous standard in determining his ineligibility for probation where the plea agreement and waiver of appellate rights evidently contemplated no specific sentence or probation eligibility. Similarly, in People v. Vargas, . . . the defendant was not barred from challenging an alleged misapplication of conduct credits on appeal where the plea agreement and waiver of appellate rights apparently made no mention of conduct credits. In each of those decisions, the appellate court viewed the sentencing issue as not being within the contemplation and knowledge of the defendant at the time the waiver was made and so refused to extend thereto a general waiver of the right to appeal." (Panizzon, at p. 85.)
In this case, the trial court's error, the mistake in the manner in which the stayed sentences were imposed, was unforeseen and occurred after defendant initialed a general waiver of right to appeal. Defendant's appellate waiver was nonspecific, and thus he only waived the right to appeal error occurring before, but not after, the waiver. (Panizzon, supra, 13 Cal.4th at p. 85 & fn. 11; Mumm, supra, 98 Cal.App.4th at p. 815.) While defendant orally agreed he had initialed the boxes on the plea form and the trial court found he entered into his plea knowingly and voluntarily, defendant could neither have foreseen nor predicted the trial court would have erroneously imposed the stayed portion of the sentence.
We also reject the People's assertion that defendant is precluded from challenging his sentence by rule 4.412(b). Rule 4.412(b) states as follows: "By agreeing to a specified term in prison or county jail . . . , a defendant who is sentenced to that term or a shorter one abandons any claim that a component of the sentence violates section 654's prohibition of double punishment, unless that claim is asserted at the time the agreement is recited on the record."
Contrary to the People's contention, rule 4.412 is not applicable to the claim defendant raises here. Defendant is not contesting the six-year eight-month term imposed as a result of his plea. He is also not claiming the imposition of the agreed upon term violates the section 654 rule against double punishment. In fact, assuming defendant was properly convicted of counts 3 and 4, the trial court properly found counts 2, 3, and 4 fell within the purview of section 654. Rather, defendant maintains that the trial court erred in the manner in which it applied section 654.
Based on the foregoing, we decline to find waiver and address the merits of defendant's second claim of error.
The trial court here appropriately stayed the sentence on count 2, driving with a blood-alcohol level at or above 0.08 percent causing injury. However, the term the court imposed and stayed was eight months, one-third the midterm. This was an error. "The one-third-the-midterm rule of section 1170.1, subdivision (a), only applies to a consecutive sentence, not a sentence stayed under section 654." (People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164.) If the conviction on count 1 were ever invalidated, a full sentence on count 2 would ensure that defendant's punishment is commensurate with his criminal liability. (Ibid.) "Furthermore, the imposition of a 'consecutive' and 'stayed' sentence would be meaningless because the stayed sentence would only operate if the principal count were eliminated. Therefore, a stayed sentence cannot be consecutive to a principal sentence." (Ibid.) In other words, "[A sentence] cannot be both consecutive and stayed simultaneously because the two are mutually exclusive." (Ibid.) Hence, rather than staying one-third the middle term consecutive, the trial court must stay a full term concurrent under section 654. (Ibid.)
We have inherent authority to correct an unauthorized sentence by modifying the judgment. (People v. Relkin (2016) 6 Cal.App.5th 1188, 1197-1198 [correcting a judgment on appellate court's own initiative to impose full midterm sentence, rather than one-third of midterm sentence, on a count stayed under section 654].) Accordingly, we modify the sentence on count 2.
IV
DISPOSITION
The judgment is ordered modified by vacating the conviction and the stayed sentences on count 3, driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a)), and count 4, driving with a blood alcohol level of 0.08 percent or greater causing injury (Veh. Code, § 23153, subd. (b)). In addition, the judgment is modified to reflect a sentence of 16 months stayed under section 654. The clerk of the superior court is directed to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed in all other respects.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P J. SLOUGH
J.