Opinion
G045355
01-25-2012
THE PEOPLE, Plaintiff and Respondent, v. ROBERT CHARLES SERRANO, Defendant and Appellant.
Jamie Popper, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 10CF0029)
OPINION
Appeal from a judgment of the Superior Court of Orange County, Craig E. Robison, Judge. Affirmed.
Jamie Popper, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
* * *
Defendant Robert Charles Serrano pleaded guilty to vehicular manslaughter with gross negligence while intoxicated (Pen. Code, § 191.5, subd. (a); all further statutory references are to the Penal Code unless noted). He also admitted causing bodily injury to three additional victims (Veh. Code, § 23558) and fleeing the scene (Veh. Code, § 20001, subd. (d)). Finally, he admitted suffering a prior serious felony conviction in 1992, which triggered sentencing under the Three Strikes law (§ 667, subds. (d) & (e)(1)) and section 667, subdivision (a).
We appointed counsel to represent Serrano on appeal. Counsel filed a brief setting forth a statement of the case. Counsel did not argue against his client, but advised this court he found no issues to support an appeal. We provided Serrano 30 days to file written argument himself. That period has passed, and we have received no communication from him. After conducting an independent review of the record under People v. Wende (1979) 25 Cal.3d 436, we affirm.
A Santa Ana police officer testified at Serrano's May 2010 preliminary hearing that Erick Urias was the front seat passenger and owned a black BMW driven by Serrano in the early morning hours of January 3, 2010. Urias and Serrano had been drinking beer and other intoxicating beverages at a bar about a mile from the intersection of Main and MacArthur. According to Urias, Serrano was "not okay to drive" when they left the bar. A bartender described Serrano as "half drunk" when he arrived. He stayed about an hour and had two beers, and she had to stop him from leaving the bar with a drink.
The driver of a Chevrolet Malibu waited in the number two left turn lane on westbound MacArthur. The driver started to turn south on Main when the light turned green but applied the brakes when she saw the BMW, travelling east on MacArthur at a high rate of speed, appear ready to run the red light. The BMW struck the rear of a dark blue Scion waiting at the red signal in the number one eastbound lane of MacArthur. The Scion spun into the intersection and collided with the Malibu. A green Toyota turning south from the number one left turn lane on westbound MacArthur collided with the BMW in the intersection after the BMW struck the Scion.
Eighteen-year-old Corban White, the Scion's right front passenger, died from injuries suffered during the collision. The Toyota's driver, Alphonso Benitez, suffered a small laceration on his right shin. The driver of the Scion, Patrick Lewis, suffered a head bruise, and complained of pain to his neck, back, and shoulders. Urias suffered small lacerations on his face and hand. Serrano appeared incoherent but uninjured after the collision. He fled, but was arrested the next day.
A felony information charged Serrano as indicated above. In February 2011, Serrano waived his constitutional rights and pleaded guilty to the charges without a promise of a specified term and acknowledged he faced a 33-year maximum prison term.
Following a sentencing hearing in April 2011, the trial court denied probation and imposed a 31-year prison sentence, comprised of the aggravated 10-year term for manslaughter (§ 191.5, subd. (c)(1)), doubled to 20 years because of the strike (§ 667, subds. (d) & (e)), a consecutive five-year enhancement for fleeing the scene (Veh. Code, § 20001, subd. (c)), a consecutive one-year enhancement for causing injury to one of the other victims (Veh. Code, § 23558), and a five-year enhancement under section 667, subdivision (a). The court awarded presentence custody credits of 723 days and imposed various statutorily required fines and fees. Serrano filed a notice of appeal indicating the appeal was "based on the sentence or other matters occurring after the plea that do not affect the validity of the plea."
DISCUSSION
Serrano's appellate lawyer identifies two potential issues appearing in the record: (1) whether the trial court abused its discretion by declining to strike his 1992 robbery conviction (§ 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero)); and (2) whether multiple enhancements under Vehicle Code section 23558 violated section 654.
Appeal After Pleading Guilty/Appeal Waiver
Under section 1237.5, a defendant who pleads guilty or nolo contendere generally may not appeal his felony conviction without obtaining a certificate of probable cause. (People v. Maultsby (Jan. 5, 2012, S182042) ___ Cal.4th ___, ___ ; Cal. Rules of Court, rule 8.304(b).) The purpose of section 1237.5 is "to weed out frivolous and vexatious appeals from pleas of guilty or no contest, before clerical and judicial resources are wasted." (People v. Buttram (2003) 30 Cal.4th 773, 790.)
Serrano asserted in his notice of appeal the appeal was "based on the sentence or other matters occurring after the plea that do not affect the validity of the plea." In pleading guilty, Serrano executed an appeal waiver: "I understand I have the right to appeal from decisions and orders of the Superior Court. I waive and give up my right to appeal from any and all decisions and orders made in my case, including motions to suppress evidence . . . . I waive and give up my right to appeal from my guilty plea. I waive and give up my right to appeal from any legally authorized sentence the court imposes which is within the terms and limits of this plea agreement." (Italics added.)
Serrano did not obtain a certificate of probable cause, and may not challenge the validity of the plea. The plea did not specify a term or limit other than the 33-year statutory maximum. Serrano has thus waived his right to appeal except to the extent his sentence was legally unauthorized.
An "'unauthorized sentence'" constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal. (People v. Scott (1994) 9 Cal.4th 331, 354.) A sentence is generally "'unauthorized'" where it could not lawfully be imposed under any circumstance in the particular case, where error is "'clear and correctable'" independent of any factual issues presented by the record at sentencing. (Ibid.) For example, legal error resulting in an unauthorized sentence occurs where the court violates mandatory provisions governing the length of confinement. Sentences permitted by law but imposed in a procedurally or factually flawed manner are not deemed unauthorized. (Ibid.) But "[i]t is well settled . . . the court acts in 'excess of its jurisdiction' and imposes an 'unauthorized' sentence when it erroneously stays or fails to stay execution of a sentence under section 654." (Id. at p. 354, fn. 17.) With these principles in mind, we turn to the two potential issues Serrano's appellate lawyer raised as a possible basis for review.
Order Declining to Strike 1992 Robbery Conviction
In Romero, the Supreme Court concluded section 1385, subdivision (a), permits a trial court to exercise its discretion to strike a prior felony strike conviction in the interests of justice. A trial court's discretion to strike a prior conviction is limited, however. Courts may not dismiss prior convictions solely to accommodate judicial convenience or relieve court congestion. Nor may the court strike a prior solely in exchange for a guilty plea, or because the court dislikes the lengthy sentence a defendant must serve under the Three Strikes law. (Romero, supra, 13 Cal.4th at p. 530.) The standard for a ruling on a Romero denial, and for appellate review, is "whether, in light of the nature and circumstances of [a defendant's] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.) Review is "deferential," not de novo; the issue is whether the trial court's decision "'falls outside the bounds of reason.'" (Id. at p. 162.)
The trial court's exercise of discretion declining Serrano's invitation to strike the prior did not result in a legally unauthorized sentence. (Cf. People v. Bradley (1998) 64 Cal.App.4th 386, 391 [declining to impose or strike an enhancement is a legally unauthorized sentence subject to correction for the first time on appeal].) Serrano therefore waived his right to challenge the trial court's decision not to strike the 1992 strike conviction when he entered his guilty plea and agreed not to appeal any legally authorized sentence.
In any event, the record reflects 37-year-old Serrano suffered a strike conviction for robbery in 1992 when he was 18 years old. The probation report reflects Serrano served as a lookout during a December 1991 robbery of a Costa Mesa clothing store. While he waited in a van, Serrano's three accomplices pointed a pellet gun at a store clerk, threatened to shoot his head, and duct-taped the clerk's eyes before stealing money and merchandise.
In 1994, Serrano suffered a conviction for misdemeanor commercial burglary after he and a codefendant stole beer from a convenience store. In 1995, Serrano suffered a conviction in Washington State for driving under the influence. In 1999, Serrano suffered a second alcohol-related driving conviction in Washington.
In 2005, Serrano suffered convictions in California for driving under the influence and driving with a blood alcohol content (BAC) of .08 percent or above. According to the probation report, a police officer stopped Serrano when he drove a short distance after he took too long to proceed through a traffic light. His BAC registered .19 percent. The court in that proceeding advised Serrano under Vehicle Code section 23593, subdivision (a), that being under the influence of alcohol impaired the ability to safely operate a motor vehicle and was extremely dangerous to human life, and if he continued to drive under the influence and someone was killed, he could be charged with murder.
In 2006, Serrano suffered a misdemeanor conviction for vehicle tampering. (Veh. Code, § 10852, subd. (a).) According to the probation report, Serrano was intoxicated and attempted to break into a pickup truck with a knife blade. He was on probation for this offense at the time of the current crimes.
Given the nature and circumstances of Serrano's present felony and his prior record, there is no arguable issue whether the trial court abused its discretion in determining Serrano was not outside the spirit of the Three Strikes law.
Vehicle Code Section 23558 and Section 654
The information charged, and Serrano admitted, three enhancements under Vehicle Code section 23558 corresponding to the bodily injury suffered by Lewis, Benitez, and Urias during the collision. The court stated it was imposing only one term because it had used "two of them . . . as aggravating factors in selecting the upper term" for manslaughter, and also stated "enhancements will be imposed and stayed, and that is the enhancement[s] as to [Urias and Benitez]." The court then stated it had reconsidered its tentative decision and "will impose that consecutive one-year sentence" for the "Lewis enhancement."
Vehicle Code section 23558 provides that "A person who proximately causes bodily injury or death to more than one victim in any one instance of driving in violation of Section 23153 of this code or in violation of Section 191.5 of, or subdivision (a) of Section 192.5 of, the Penal Code, shall, upon a felony conviction, and notwithstanding subdivision (g) of Section 1170.1 of the Penal Code, receive an enhancement of one year in the state prison for each additional injured victim. The enhanced sentence provided for in this section shall not be imposed unless the fact of the bodily injury to each additional victim is charged in the accusatory pleading and admitted or found to be true by the trier of fact. The maximum number of one year enhancements that may be imposed pursuant to this section is three. [¶] Notwithstanding any other provision of law, the court may strike the enhancements provided in this section if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment."
The information charged, and Serrano admitted, three Vehicle Code section 23558 enhancements. The statute specifies "an enhancement of one year in the state prison for each additional injured victim,'' up to three. (Italics added.) Here, the court only imposed one enhancement. Section 654 provides, "(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." To the extent section 654 could be read to bar multiple enhancements for a single act of driving while intoxicated, the specific language of Vehicle Code section 23558 authorized three enhancements in this case. (See People v. Ausbie (2004) 123 Cal.App.4th 855, 865 [Legislature expressly limited to three the number of one-year enhancements a court may impose even where there are more than three injured victims; although appellant was charged with only one offense, relating to two victims, she may nonetheless receive increased punishment for each of the victims injured], disapproved on other grounds in People v. Reed (2006) 38 Cal.4th 1224, 1228; see also People v. Arndt (1999) 76 Cal.App.4th 387, 396-397 [section 654 does not preclude multiple enhancements for multiple victims].) We discern no arguable issue.
Our independent review of the record discloses no other arguable issues.
DISPOSITION
The judgment is affirmed.
ARONSON, J.
WE CONCUR:
O'LEARY, ACTING P. J.
IKOLA, J.