Opinion
B317001
02-22-2023
In re CHAUNCEY ALEXANDER HOLLIS on Habeas Corpus.
Iredale and Yoo, Eugene Iredale, Julia Yoo and Grace Jun for Defendant and Petitioner. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS. Los Angeles County Super. Ct. No. LA078996 Richard H. Kirschner, Judge. Order to show cause discharged; petition for writ of habeas corpus granted.
Iredale and Yoo, Eugene Iredale, Julia Yoo and Grace Jun for Defendant and Petitioner.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
EGERTON, J.
A jury convicted petitioner Chauncey Alexander Hollis of one count of leaving the scene of an accident that resulted in permanent, serious injury and two counts of reckless driving causing great bodily injury (GBI). The jury found true allegations that Hollis had a prior conviction for reckless driving and that he personally inflicted great bodily injury on the victims in the commission of the crimes. The trial court sentenced Hollis to 12 years and four months in prison, which included a five-year GBI enhancement attached to the conviction for leaving the scene of an accident.
Hollis appealed the judgment on the sole basis that the trial court erred in granting his Faretta motion to represent himself. We affirmed the convictions.
Faretta v. California (1975) 422 U.S. 806.
Hollis then filed the present petition for writ of habeas corpus. He contends his appellate counsel was constitutionally ineffective because she failed to challenge the sufficiency of the evidence supporting the five-year GBI enhancement. The Attorney General does not contest that the enhancement should have been struck. Nevertheless, he argues Hollis is not entitled to relief because he suffered no prejudice. We agree with Hollis and grant his petition.
FACTS AND PROCEDURAL BACKGROUND
In 2014 the People charged Hollis with leaving the scene of an accident that caused permanent, serious injury to another person in violation of Vehicle Code section 20001, subdivision (a). The People also charged Hollis with two counts of reckless driving causing great bodily injury to Randy Douglas Gluck and Kelley Jean O'Connor in violation of Vehicle Code section 23104, subdivision (b). The People alleged Hollis had a prior conviction for reckless driving. The People also alleged, as to each count, that Hollis had personally caused great bodily injury to O'Connor and Gluck within the meaning of Penal Code section 12022.7, subdivisions (a) and (b) respectively. Finally, the People alleged Hollis had two prison priors under section 667.5, subdivision (b).
Undesignated statutory references are to the Penal Code.
At trial, the People presented evidence showing the following:
Kelley O'Connor picked up her friend Randy Gluck on the evening of July 13, 2014 in her Honda CR-V. They left a yogurt shop around 9:15 or 9:30 p.m. and were driving north on the 101 freeway toward O'Connor's home. Both O'Connor, the driver, and Gluck, the front passenger, were wearing seat belts. O'Connor drove past Universal Studios. That is the last thing she remembers before waking up in the hospital.
Nicholas Sacks also was driving north and west on the 101 that night. Sacks was going about 70 miles per hour in the number two lane. A black BMW sped past him going "at least double [that] speed." The BMW was "weaving in and out of traffic," "moving way too fast." Sacks did not see any car chasing or following the BMW. The BMW changed lanes and collided with the rear bumper of O'Connor's Honda CR-V. The Honda "flipped a few times and then shot debris everywhere." The BMW "veered to the right and hit the guardrail." Investigating officers later determined O'Connor's Honda had rolled about 290 feet after it was hit.
Sacks pulled to the side of the freeway. He saw an African American man running; the man jumped over the guardrail. Other people were already attending to the people in the CR-V, so Sacks went over to the BMW. He looked inside the BMW but no one was in the car. Sacks's girlfriend called 911. Paramedics and police arrived within about 10 or 15 minutes.
Curtis Thompson was working that night at Castle Park, a miniature golf and game arcade near the freeway. Thompson heard "cars crashing." A few minutes later, Thompson saw an African American man coming over a wall into the Castle Park parking lot. The man fell over and landed on his back. Thompson approached and asked the man if he was alright. The man said he was fine, jumped up, and "ran straight through Castle Park all the way to the rear of the building." Thompson followed the man through the complex, "out of the rear of the building," and through the golf course. The man then jumped over a barbed-wire-topped fence. At trial, Thompson identified Hollis as the man he had seen that night. Castle Park surveillance video also showed Hollis walking through the arcade toward the golf course.
Department of Motor Vehicles records showed that Hollis bought a 7-series BMW in 2009 and that he was still its registered owner in July 2014. According to the DMV, Hollis's car's license plate number was 6RNS925. The BMW that hit the Honda on the night of July 13, 2014 had that same license plate. DNA testing of blood on the armrest of the driver's side door as well as the air bag of the BMW matched a swab taken from Hollis. California Highway Patrol officer Jeffrey Wadsworth testified the condition of the seat belts and air bags in the BMW showed the driver was the only occupant at the time of the collision.
O'Connor stayed in the hospital for about nine days. She had a fractured skull, a fractured clavicle, and fractured ribs. O'Connor "had to have [her] clavicle put back together with a metal plate so it would grow back together." She had stitches for a laceration that ran about five inches down her scalp behind her right ear. Her left hand also was badly injured. Nearly two years after the collision, O'Connor still suffered pain, dizziness, and memory loss on "an everyday basis."
The collision left Gluck in a persistent vegetative state. Doctors had to remove part of his skull and brain. Nearly 22 months after the collision, Gluck remained in a subacute facility that cares for patients who need aggressive pulmonary care. Unable to breathe on his own, Gluck was connected to a breathing machine. He had no quality of life, and his physician did not expect him to improve.
At the conclusion of the evidence, the People moved to amend count 1 to conform to proof and to allege a violation of section 20001, subdivision (b)(2) (failure to stop at accident resulting in permanent, serious injury or death) rather than section 20001, subdivision (a) (failure to stop at accident resulting in injury or death) of the Vehicle Code. The trial court granted the motion.
The jury convicted Hollis on all counts. It found true the allegations that Hollis personally inflicted great bodily injury on Gluck and O'Connor, that he previously had been convicted of reckless driving, and that he had served time in prison and not remained free of prison custody for five years before committing the crimes in this case.
The trial court sentenced Hollis to 12 years and four months in the state prison, calculated as the upper term of four years on count 1 for leaving the scene of an accident resulting in permanent, serious injury in violation of Vehicle Code section 20001, subdivision (b)(2), plus five years under section 12022.7, subdivision (b) for the infliction of great bodily injury that caused the victim (Gluck) to become comatose due to a brain injury, plus two eight-month terms (one-third the midterm) on counts 2 and 3, to be served consecutively, for reckless driving causing injury with a prior reckless driving conviction in violation of Vehicle Code section 23104, subdivision (b), plus the two one-year prison priors. The court imposed and stayed the great bodily injury enhancements on counts 2 and 3.
Hollis appealed the judgment on the sole basis that the trial court erred in granting his Faretta motion to represent himself at trial. Although not raised by either party, we requested supplemental briefing addressing whether the trial court should have struck, rather than stayed, the GBI enhancement on count 3. In response to our request, the Attorney General conceded the enhancements on counts 2 and 3 should have been struck, noting that "[b]ecause the infliction of great bodily injury is an element of Vehicle Code section 23104, subdivision (b), the great bodily injury enhancement under section 12022.7 does not apply."
We accepted the Attorney General's concessions and remanded the case for the trial court to strike the GBI enhancements on counts 2 and 3. We affirmed the judgment in all other respects. (See People v. Hollis (May 4, 2018, B276667) [nonpub. opn.].) The Supreme Court denied Hollis's petition for review. Hollis then filed the present petition for writ of habeas corpus.
DISCUSSION
Hollis contends his appellate counsel was constitutionally ineffective by failing to challenge the sufficiency of the evidence supporting the GBI enhancement on count 1.
Under either the federal or state Constitution, the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the [proceedings] cannot be relied on as having produced a just result." (Strickland v. Washington (1984) 466 U.S. 668, 686; see In re Valdez (2010) 49 Cal.4th 715, 729.) To establish a claim for ineffective assistance of counsel, a defendant must prove by a preponderance of the evidence (1) that his lawyer's performance was deficient because it fell below an objective standard of reasonableness in all the circumstances; and (2) that absent those errors, a different outcome was reasonably probable, meaning a probability sufficient to undermine confidence in the outcome. (People v. Cunningham (2001) 25 Cal.4th 926, 1030-1031.)
On count 1, the jury convicted Hollis of violating Vehicle Code section 20001, subdivision (b)(2), and it found true GBI allegations under section 12022.7, subdivision (b). Section 12022.7, subdivision (b) provides a five-year enhancement for "[a]ny person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony which causes the victim to become comatose due to brain injury or to suffer paralysis of a permanent nature ...." (§ 12022.7, subd. (b).) For a section 12022.7 GBI enhancement to attach to a violation of Vehicle Code section 20001, the injury must have been caused or aggravated by the defendant's failure to stop and render aid; it is not enough that the accident itself resulted in GBI. (People v. Valdez (2010) 189 Cal.App.4th 82, 90.) Here, the prosecutor presented no evidence-let alone substantial evidence-to support a finding that Gluck or O'Connor suffered injuries caused or aggravated by Hollis's failure to stop and render aid. The undisputed evidence instead shows numerous bystanders stopped to provide aid to the victims and called 911 immediately after the collision. Nothing in the record even suggests Hollis could have provided meaningful, additional assistance had he not fled the scene.
On this record, there is no doubt that, had Hollis's appellate counsel challenged the sufficiency of the evidence supporting the GBI enhancement on count 1, this court would have ordered the trial court to strike it on remand. We can conceive of no tactical reason why counsel would have decided not to raise the issue; nor has the Attorney General suggested any. Moreover, because the trial court had already imposed the maximum possible sentence, Hollis's aggregate sentence necessarily would have been reduced by five years. Accordingly, appellate counsel's failure to raise the issue on appeal was both unreasonable and prejudicial.
The Attorney General does not dispute that the enhancement should have been struck. Nevertheless, he maintains Hollis is not entitled to writ relief because he has not shown prejudice. According to the Attorney General, had this court struck the five-year GBI enhancement on count 1, the trial court on remand would have simply imposed the five-year GBI enhancement on count 2. Therefore, the Attorney General argues, Hollis's aggregate sentence would have remained the same.
We reject this argument for the same reason the Attorney General previously conceded the enhancement should be struck. On count 2, the jury convicted Hollis of reckless driving in violation of Vehicle Code section 23104, subdivision (b), and it found true the GBI enhancement allegations under section 12022.7, subdivision (b). As noted above, section 12022.7, subdivision (b) provides a five-year enhancement for any person who, in the commission of a felony, personally inflicts great bodily injury that causes the victim to become comatose or to suffer permanent paralysis. (§ 12022.7, subd. (b).) Section 12022.7, subdivision (g), however, limits the application of the enhancement. It provides that section 12022.7, subdivision (b) "shall not apply if infliction of great bodily injury is an element of the offense." (§ 12022.7, subdivision (g).)
A violation of Vehicle Code section 23104, subdivision (b) -to which the section 12022.7, subdivision (b) enhancement attached on count 2-requires the defendant to have engaged in reckless driving that "proximately cause[d] great bodily injury . . . to a person other than the driver ...." (Veh. Code, § 23104, subd. (b).) As the Attorney General rightly conceded in connection with Hollis's appeal, because the infliction of GBI is an element of the offense, a section 12022.7, subdivision (b) enhancement cannot attach to it. (§ 12022.7, subd. (g).) Therefore, contrary to the Attorney General's present contention, the trial court could not have imposed a GBI enhancement on count 2, regardless of whether the court imposed a GBI enhancement on count 1. (See People v. Beltran (2000) 82 Cal.App.4th 693, 696-697 [a section 12022.7 enhancement cannot attach to a violation of Vehicle Code section 2800.3 because the offense requires the prohibited act" 'proximately causes . . . serious bodily injury to any person' "].)
The Attorney General maintains he was wrong to have conceded the issue in connection with Hollis's appeal. Without citing any supporting authority, he contends that, because section 12022.7, subdivision (b) requires the victim to have suffered an injury resulting in a coma or paralysis, it is not subject to the limitation found in section 12022.7, subdivision (g). We disagree. Section 12022.7, subdivision (g) means what it says: The enhancement in "[s]ubdivision[ ] . . . (b) . . . shall not apply if infliction of great bodily injury is an element of the offense." (Section 12022.7, subd. (g).) The infliction of great bodily injury is an element of reckless driving in violation of Vehicle Code section 23104, subdivision (b). Therefore, under the plain language of section 12022.7, subdivision (g), the GBI enhancement in section 12022.7, subdivision (b) "shall not apply."
DISPOSITION
We grant Chauncey Alexander Hollis's petition for writ of habeas corpus. Let a peremptory writ issue directing the trial court (1) to strike the great bodily injury enhancement on count 1 (§ 12022.7, subd. (b)), (2) to amend the abstract of judgment accordingly, and (3) to send a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We agree with Hollis that there is no need for resentencing because the trial court could not impose a more severe sentence.
We concur: LAVIN, Acting P. J. RICHARDSON (ANNE K.), J. [*]
[*]Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.