Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Kathryne Ann Stoltz, Judge, Super. Ct. No. LA051011
Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie A. Miyoshi and Nancy G. James, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, Acting P. J.
Appellant Mario Otero was convicted, following a jury trial, of one count of driving under the influence and causing bodily injury to another person in violation of Vehicle Code section 23153, subdivision (a) and neglecting a duty imposed by law by driving with .08 percent or greater of alcohol in his blood in violation of section 23153, subdivision (b). The jury found true the allegations that appellant proximately caused bodily injury or death to five people within the meaning of section 23558 and personally caused great bodily injury to two people within the meaning of Penal Code section 12022.7, subdivision (a). The trial court sentenced appellant to a total of nine years in state prison.
The jury found not true the allegation that appellant personally caused great bodily injury to Francisco Cotto.
Appellant appeals from the judgment of conviction, contending that his trial counsel's failure to properly research defenses to the charges constituted ineffective assistance of counsel, and that he relied on counsel's incorrect representations about those defenses to reject the prosecution's plea offer. We affirm the judgment of conviction.
Facts
On December 19, 2005, about 4:30 or 4:45 a.m., appellant offered some individuals at a party a ride home. Ana Cotto, Luis Cotto, Jose Blanco and Maria Chicas Reyes accepted the offer and got into the back seat of appellant's Jeep Liberty. A friend of appellant's sat in the front seat. Once everyone was in the Jeep, appellant announced that he was going to the beach.
About 5:15 a.m., appellant was traveling south on the Hollywood Freeway near the Burbank off-ramp about 110 miles per hour. He was zigzagging between lanes when he rear-ended a light blue car driven by Pedro Barba. The Jeep flipped over and slid along the center divider. Ana Cotto was ejected from the car. Maria Chicas Reyes also ended up on the ground outside the car.
California Highway Patrol Officer Ruben Hernandez came to the accident scene. He saw the two women on the ground, bleeding profusely. Appellant and two men were standing nearby. After paramedics arrived, Officer Hernandez questioned appellant. Appellant stated that he was the driver and had been going about 75 miles per hour at the time of the accident.
Officer Hernandez observed that appellant was unsteady on his feet and was slurring his words. There was a strong odor of alcohol on appellant. More than one time, appellant said: "I'm drunk. I'm responsible. Take me in." Officer Hernandez conducted a series of field sobriety tests and concluded that appellant was intoxicated. Appellant's blood was drawn at 7:58 a.m. His blood alcohol content was .10.
Maria Chicas Reyes was hospitalized for a month and a half due to injuries sustained in the accident. She had scars on her face and from her shoulder to her elbow on her right arm. She no longer had complete use of her right hand. Her eyes, nose and teeth were repositioned. At the time of trial, she had undergone seven surgeries and incurred about half a million dollars in medical expenses. She required continued treatment.
Ana Cotto was hospitalized for a week and could not walk for three months after the accident. Her hands and her right arm below the elbow were scarred.
Pedro Barba was out of work for two months with a back injury.
Appellant did not present any witnesses in his defense.
Discussion
On October 24, 2006, appellant rejected the prosecutor's offer of an eight year sentence, which came with a requirement that appellant serve 85 percent of the sentence. The next day, jury selection began for appellant's trial. On October 27, the court granted the prosecutor's motion to exclude evidence that Ana Cotto and Maria Chicas Reyes were not wearing seatbelts. Appellant's counsel indicated that she had hoped to argue that the lack of seatbelts was the cause of the passengers' injuries. If the jury ultimately found that appellant caused great bodily injury to the passengers, his sentence would be increased substantially. Immediately after the court's ruling, appellant himself addressed the court, contending that he was not responsible for the victims' injuries because they got into his car without permission. When that argument was unsuccessful, appellant attempted to re-open the issue of a plea bargain. The court was not receptive.
Appellant contends that his counsel was deficient in not realizing that the seatbelt defense would not be allowed under California law, and of failing to inform him of that fact as part of an evaluation of the prosecutor's plea offer. He further contends that he would have taken the prosecution's pre-trial plea offer of eight years if he had known that he had no defense to the enhancements.
Appellant's sentence after trial was nine years.
A claim of ineffective assistance of counsel may be based on a defendant's decision to proceed to trial rather than accept an offer of a plea bargain. (In re Alvernaz (1992) 2 Cal.4th 924, 928.) In such claims, the defendant must show that his counsel provided deficient representation and that he was prejudiced by that representation. In the case of a plea bargain, prejudice is shown where there is a reasonable probability that the defendant would have accepted the proffered plea bargain and that the plea bargain would have been approved by the court. (Id. at p. 937.)
Here, as in most ineffective assistance of counsel claims raised on appeal, there is no direct evidence of the communication between appellant and his trial counsel on the subject of the plea bargain and no direct evidence that appellant would have taken the plea bargain if he had known that he had no defense based on the victim's conduct. Appellant contends that his counsel's arguments at the hearing to exclude seatbelt evidence show that counsel erroneously believed that a seatbelt defense was possible. He further contends that his own conduct after the seatbelt defense was barred showed that he would have taken the plea if he had been properly advised.
It is possible to infer from counsel's argument that she did not fully understand the law in criminal actions concerning lack of seatbelt use by victims. The prosecution's motion to exclude seatbelt evidence relied on People v. Wattier (1996) 51 Cal.App.4th 948, which holds that a victim's failure to wear a seatbelt is not admissible as a defense to a vehicular manslaughter claim. Appellant's counsel argued that Wattier was not binding on the trial court because the decision was from the Fourth District Court of Appeal and the trial court was in the Second District Court of Appeal. This is not correct. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) However, appellant's counsel spent much more time attempting to distinguish Wattier from the facts of the present case, and attempting to argue that other law was more suited to the facts of the case. Clearly, she understood that she had at best an uphill battle in convincing the court to let in evidence that seatbelts were not used. She may have known that the effort was futile. We cannot infer from counsel's argument alone that she told appellant that there was a chance of the seatbelt defense being allowed, or that she failed to discuss this topic with appellant at all before trial.
Even if we were to infer that counsel misadvised appellant on the law, we would see no reasonable probability that appellant would have taken the plea offer if he had been correctly advised that he could not argue the lack of seatbelt use as a defense. Appellant's comments show that he had formed his own views of the law and did not wish to hear contrary opinions.
When the parties discussed the prosecution's plea offer on October 24, 2006, the prosecutor indicated that he did not have an objection to an open plea by appellant in lieu of accepting the proffered eight years with 85 percent time served. Appellant's counsel explained that appellant did not want to enter an open plea because he believes "that it's a 50 percent crime." The court confirmed that if any of the great bodily injury enhancements were found to be true, appellant would have to serve 85 percent of his sentence. Appellant's counsel stated: "I did explain that to [appellant]. In fact, I did show him the Penal Code sections that indicate specifically where it is 85 percent. [¶] However, his prior attorney did tell him that it was a 50 percent charge; and to my knowledge, based upon information that I have, he still believes that to be true."
When appellant did bring up the topic of a plea agreement after the trial court ruled out the seatbelt defense, appellant's comments can be reasonably understood as showing a continued belief that this was a 50 percent credit case. Notably, appellant did not ask to take the prosecution's earlier offer. Appellant instead asked the court: "Could I take – have in custody and have a work assignment?" This suggests that appellant still believed that he should get 50 percent credit. It also shows that even after the court had ruled that appellant had no defense, appellant was not interested in the prosecution's offer.
Further, appellant's request for a plea bargain did not come immediately after the trial court ruled the seatbelt evidence inadmissible, and explained that appellant's driving was the legal cause of the victim's injuries. Appellant first attempted to make his own argument about why he should not be legally responsible for the victims' injuries. He stated to the court: "They got in my car without permission. I told them clearly I was on my way to the beach. I told them, my friend, and clearly, I was betrayed. My friend and I were the only two who were all right." Appellant's comments indicate that he still did not believe that he should be held responsible for the injuries to the passengers, and that he believed that they were responsible for their own injuries. This was certainly not an argument advanced by appellant's counsel, and suggests that appellant was inventing defenses himself. The court explained that it did not matter if the people got into appellant's car without permission, since he went ahead and drove the car with them in it. It was only then that appellant attempted to re-open the subject of a plea bargain.
Given appellant's unwillingness to believe his counsel's explanation of the law on custody credits or the trial court's ruling on his legal responsibility as the driver, we cannot infer that he would have believed a statement by counsel that the seatbelt defense would never be allowed, or that such a belief would have altered his fixed view about custody credits. Appellant's own attempt to argue the law shows that he had formed his own incorrect beliefs about the law. Thus, we cannot infer that appellant would have accepted the plea offer if correctly advised by counsel on the seatbelt evidence.
To the extent that appellant contends that his counsel's statements show that counsel had advised appellant that a seatbelt defense was possible, we do not agree. Counsel's comments suggest that appellant may have believed in the seatbelt defense without any support from counsel. Counsel stated: "[Appellant] is certainly under the impression in his mind that he was going to, obviously, be able to either address and/or it would be addressed, the seat belt issue. [¶] Now that the court has shut down on that issue and he knows that he can't bring it up, it can't be brought up or can't be asked, he now knows there's absolutely no defense to that case. This is basically an exercise in futility." (Emphasis added.)
Disposition
The judgment is affirmed.
We concur: MOSK, J., KRIEGLER, J.