Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF121487A, John S. Somers, Judge.
Peggy A. Headley, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, P.J.
INTRODUCTION
While driving under the influence of alcohol, appellant Danuel Michael Covarrubias travelled into the opposing lane of traffic and struck another vehicle, killing the driver. A jury found appellant guilty of second degree murder (Pen. Code, § 187, subd. (a); count 1), gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a); count 2), driving under the influence (DUI) causing injury (Veh. Code, § 23153, subd. (a); count 3), and driving with a.08 percent or higher blood alcohol level causing injury (Veh. Code, § 23153, subd. (b); count 4). On counts 3 and 4, the jury found true allegations that appellant had two prior DUI convictions (Veh. Code, § 23152) within the meaning of Vehicle Code section 23540.
Further statutory references are to the Penal Code unless otherwise specified. References to rules are to the California Rules of Court.
Count 2 did not refer to section 191.5, subdivision (a), which defines the offense of gross vehicular manslaughter, but the language contained in count 2 correctly describes the offense and appellant does not raise any claim of error regarding the failure to refer specifically to section 191.5, subdivision (a). The count does refer to section 191.5, subdivision (d), which defines the sentence enhancement which was imposed in this case. For reasons discussed in part III of the opinion, we reject appellant’s contention that there was insufficient evidence to support the enhancement.
Appellant was sentenced to a total indeterminate term of 15 years to life as follows: an indeterminate term of 15 years to life on count 1; an indeterminate term of 15 years to life on count 2; the upper term of four years on count 3; and the upper term of four years on count 4. Sentences on counts 2 through 4 were stayed under section 654. On each count, the trial court imposed a $30 court security fee (§ 1465.8) and a $30 assessment (Gov. Code, § 70373).
On appeal, appellant contends: (1) the trial court erred by failing to complete a pretrial competency hearing under section 1367 et seq.; (2) the trial court erred by allowing him to retain new counsel when criminal proceedings were suspended; (3) he was deprived of his right to counsel at a critical stage of the proceedings; (4) his convictions on count 3 (DUI causing injury) and count 4 (driving with.08 percent or higher blood alcohol causing injury) must be reversed because they are lesser included offenses of count 2 (gross vehicular manslaughter while intoxicated); (5) insufficient evidence supports the section 191.5, subdivision (d)enhancement in count 2; (6) the total court security fee imposed must be reduced from $120 to $60; (7) the total Government Code section 70373 assessment imposed must be reduced from $120 to $60; and (8) the abstract of judgment must be corrected to reflect the proper number of actual days of presentence custody credit the court awarded. We agree with the fourth, sixth, seventh, and eighth contentions, which respondent concedes, and modify the judgment accordingly. In all other respects, the judgment is affirmed.
The details of appellant’s criminal conduct are not relevant to the issues he raises in this appeal. Those details are set out in appellant’s opening brief, and we will not recount them here.
I. Appellant’s Competency
The first three contentions above concern the competency proceedings initiated by appellant’s original retained counsel, Martin Cohn, who requested that appellant be evaluated pursuant to section 1368. While criminal proceedings were suspended but before a competency hearing was completed, the trial court allowed another retained counsel, Fred Gagliardini, to substitute in for Mr. Cohn and to withdraw the previous section 1368 request. In his supplemental opening brief, appellant contends the trial court’s order, which reinstated the criminal proceedings without first making a formal determination as to his competency, violated his constitutional rights and requires automatic reversal of the entire judgment. Appellant also contends the court erred in permitting him to retain new counsel while criminal proceedings were suspended due to a doubt as to his competency. In his original opening brief, appellant argues that he was deprived of his right to counsel during a critical stage of the proceedings. For reasons discussed below, we find none of these contentions persuasive.
A. Background
On February 6, 2009, Mr. Cohn moved to have appellant examined pursuant to section 1368. Mr. Cohn offered no evidence or reasons in support of the motion but simply stated: “There is a motion for 1368 to have Mr. Covarrubias examined.” The trial court granted the motion, briefly stating: “Court will suspend proceedings. [¶] Court will appoint Dr. Couture.”
The minute order of the February 6 hearing states: “Motion for examination pursuant to PC 1368 granted. [¶] Criminal proceedings are suspended pursuant to PC 1368. [¶] Dr. Couture appointed to examine defendant pursuant to PC 1368.” (Unnecessary capitalization omitted.) The court also set the next hearing in the matter for March 13, 2009.
On February 11, 2009, the trial court issued a written “ORDER FOR EVALUATION (PC 1368).” The order stated, in part:
“IT IS HEREBY ORDERED, pursuant to Penal Code section 1368, that the above-named defendant be made available for examination by the Doctor hereby appointed for the purpose of an evaluation and recommendation regarding placement after a finding by the above-entitled Court that the defendant is not presently competent to stand trial and/or cooperate with counsel.” (Italics added.)
On March 13, 2009, Mr. Gagliardini appeared on behalf of appellant, who was also present at the hearing, and informed the court he was “standing in for Mr. Marty Cohn.” The following discussion occurred:
“THE COURT: Mr. Gagliardini, did you see the letter from Dr. Couture or did Mr. Cohn talk to you about it?
Dr. Couture’s letter, dated March 10, 2009, states: “On 2/6/09, you ordered that I interview [appellant] pursuant to PC 1368. I have been unable to contact his attorney, Martin [Cohn], Esquire. I cannot find a listed phone number in order to obtain records. No one at the Court or the Public Defender’s Office appears to know who he is. I cannot proceed without some information regarding his alleged offenses, such as the police report, etc. This is currently scheduled [for] a hearing on 3/13/09, I cannot meet that deadline. If the Court could put me in touch with Mr. [Cohn] or to assist me obtaining the information, I would remain willing to see [appellant]. I await the Court’s instructions.”
“MR. GAGLIARDINI: It went to Mr. Cohn’s office. It was faxed to my office yesterday requesting, I think, a police report, some other
“THE COURT: You need to explain to him he needs to get some information to Dr. Couture. Dr. Couture couldn’t find him, couldn’t get a hold of him.
“MR. GAGLIARDINI: I’ll do that. I’ll do that over the weekend. I left a message for Dr. Couture yesterday.”
The court then set the next hearing for April 3, 2009.
On April 3, 2009, Mr. Gagliardini again appeared on behalf of appellant in place of Mr. Cohn. Appellant was also present at the hearing. As reflected in the following colloquy, Mr. Gagliardini requested that he be permitted to substitute in as appellant’s counsel of record and informed the court of his intention to withdraw the previous section 1368 request:
“THE COURT: This is the time and place set for a 1368 report. I received the letter, the Court did, late yesterday.… Dr. Couture, he still has not been able to obtain materials needed to perform the evaluation. But apparently you are a new attorney on this.
Dr. Couture wrote a second letter to the court, dated April 1, 2009, which states: “I have tried repeatedly to obtain the records of arrest and the charges against the defendant. I have discovered a change of attorneys from Martin P. Cohn to Fred Gagliardini, Esquire, but I still have been unable to obtain the materials I need to perform this evaluation. As the hearing is now set for 4/3/09, I will not be able to complete this request in a timely manner. I continue to be willing to see [appellant] if I can obtain these materials. Thank you for your forbearance.”
“MR. GAGLIARDINI: Your Honor, I’m going to be privately retained. I’d ask to substitute in today. And if the Court grants that, I’m going to withdraw the 1368 request after having spoken with and viewed Mr. Covarrubias. And the basis for that is, just through my brief research, is that the defendant is deemed to be presumptively competent unless and until there has been a finding of incompetency. So I believe at this point the law still indicates making his own choice for counsel. And if he is allowed to exercise that right, I’m going to ask a 1368 to be withdrawn. Tough, huh?
“THE COURT: I haven’t had this before. Since criminal proceedings are suspended, he does have a right — if you want to use a Marsden issue, he has a right to submit a Marsden until the 1368 one way or another
“MR. GAGLIARDINI: Right.
“THE COURT: So I guess he would have a right to a new attorney. This Martin Cohn, you are taking over for him?
“MR. GAGLIARDINI: Yes. He is out of town.… We have already communicated. He’s already transmitted the file to my office. [¶] … [¶]
“THE COURT: So you are convinced that you do not need a 1368?
“MR. GAGLIARDINI: Correct.
“THE COURT: All right. Based on the request from the defendant to withdraw his 1368, we will drop the 1368, reinstate criminal proceedings, show Mr. Gagliardini as the attorney of record and reset the trial and readiness date.”
B. Analysis
Section 1368 provides that, when “a doubt arises in the mind of the judge as to the mental competence of the defendant, [the judge] shall state that doubt in the record and inquire of [defense counsel his or her] opinion” as to the defendant’s competence. (§ 1368, subd. (a).) The court may recess the criminal proceedings to allow defense counsel to form an opinion. (§ 1368, subd. (a).) If defense counsel informs the court of a belief that defendant is or may be mentally incompetent, the court “shall” order the question of competence to be determined in a hearing held pursuant to sections 1368.1 and 1369. (§ 1368, subd. (b).) If the court believes the defendant is incompetent, it may order such a hearing notwithstanding defense counsel’s opinion to the contrary. (§ 1368, subd. (b).) When the trial court has ordered a hearing to make a determination into the defendant’s competence, it “shall” suspend the criminal prosecution until that determination is made. (§ 1368, subd. (c).)
The procedures of section 1367 et seq. codify a principle of constitutional due process enunciated in Pate v. Robinson (1966) 383 U.S. 375 (Pate). That principle prohibits the conviction of a defendant who is mentally incompetent in the sense that he or she does not understand the nature of the criminal proceedings or lacks the ability to assist in his or her own defense. (See § 1367, subd. (a).) Once a court is apprised of substantial evidence of a defendant’s mental incompetence, that defendant is denied his or her constitutional right to a fair trial if the court proceeds with a criminal prosecution without first making a formal determination that the defendant is, in fact, competent to stand trial. (See People v. Ary (2004) 118 Cal.App.4th 1016, 1020; see also Pate, supra, 383 U.S. at pp. 384-385.)
Thus, the above-stated provisions of section 1368 have been interpreted to afford a constitutional right. If the trial court judge makes an express declaration of his or her doubt as to a defendant’s competency, pursuant to section 1368, subdivision (a), the court is required to hold a hearing and make formal determination of competency. (People v. Marks (1988) 45 Cal.3d 1335, 1340 (Marks).) If the trial court judge has not made such an express declaration of doubt, but a defendant has nevertheless presented substantial evidence of a mental incapacity, the court is similarly required to conduct a hearing and make a formal determination of competency. (People v. Hale (1988) 44 Cal.3d 531, 539; People v. Pennington (1967) 66 Cal.2d 508, 518-519 (Pennington).) Once a trial court is required to make such a formal determination, defense counsel cannot waive that determination on behalf of the defendant. (See Marks, supra, 45 Cal.3d at p. 1340.) If a trial court fails to make a formal determination of competency once it is required to do so, that court’s order directing the reinstitution of criminal proceedings is an act in excess of its jurisdiction. (People v. Superior Court (1991) 1 Cal.4th 56, 69-70.)
Here, there was no expression of judicial doubt as to competency, nor was there substantial evidence of incompetency, so as to require the court to conduct a hearing and make a formal determination as to appellant’s competence. As shown by our summary of the record of the hearing on February 6, 2009, the trial court, at the request of appellant’s first retained counsel, suspended proceedings and appointed a doctor to examine appellant pursuant to section 1368. The court, however, made no statement on the record expressing a doubt as to appellant’s competency. Thus this case is distinguishable from the authorities appellant has cited in support of his argument. (See e.g., Marks, supra, 45 Cal.3d at p. 1337 [“We reverse the entire judgment because the trial court failed to conduct a competency hearing pursuant to sections 1368 and 1369 after specifically stating a doubt as to defendant’s competency to stand trial and ordering a hearing to determine his competency”].)
The order issued on February 11, 2009 does not support appellant’s claim that the court expressly declared a doubt as to his competency within the meaning of section 1368, subdivision (a). The order purports to refer back to a previous “finding by the … [trial court] that the defendant is not presently competent to stand trial and/or cooperate with counsel.” However, the record shows no such finding was made by the trial court at the hearing on February 6, 2009, when it granted defense counsel’s section 1368 request. Instead, it appears that the February 11 order was based on a generic template and does not accurately reflect the court’s ruling at the February 6 hearing. Because the record affirmatively demonstrates the court’s subsequent written order does not correctly reflect the court’s actions at prior hearing, we are not required to apply the presumption of correctness, invoked by appellant in his reply brief, to infer that the court made an express declaration of doubt as to his competency, when the record clearly demonstrates otherwise. (See People v. Martinez (1998) 65 Cal.App.4th 1511, 1517 [appellate court must presume order of trial court is correct; “‘“all intendments are indulged in to support it on matters as to which record is silent, and error must be affirmatively shown].”’”)
In sum: “At no time in these proceedings did the trial court ever express doubt about [appellant’s] competency; nor was there any evidence presented that [appellant] was incompetent. Thus the trial court did not abuse its discretion in granting [appellant’s] motion to withdraw [his] request for a competency hearing. [Citation.]” (People v. Johnson (1991) 235 Cal.App.3d 1157, 1166; see also Pennington, supra, 66 Cal.2d at pp. 518-519.)
Having found that the trial court made no express declaration of doubt as to appellant’s competency, and there is no evidence, let alone substantial evidence, that appellant was incompetent, appellant’s other two contentions need not detain us long. First, appellant suggests it was improper for the trial court to allow him to replace his first retained attorney when it had, in appellant’s words, “suspended criminal proceedings under section 1368 based upon the trial court’s very doubt about the defendant’s ability to rationally consult with the same attorney.” (Italics added.) While acknowledging the lack of authority directly supporting his argument, appellant analogizes the situation in this case to that of a defendant who seeks self-representation after a doubt has arisen as to the defendant’s competency. (See e.g., People v. Robinson (2007) 151 Cal.App.4th 606, 616 [“If the court has a reasonable doubt as to the defendant’s competency to stand trial, that doubt should extend to the defendant’s competency to waive counsel and represent himself”].) Because the record here discloses no grounds for doubting appellant’s competency, we reject his claim that the court should not have allowed him to retain new counsel.
Finally, we reject appellant’s contention that he was deprived of the right to counsel at a critical stage of the proceedings as a result of the absence of Mr. Cohn at the hearing on April 3, 2009. As respondent correctly points out, appellant was represented by counsel at the April 3rd hearing. He was represented by Mr. Gagliardini, who had also represented him, in place of Mr. Cohn, at the previous hearing on March 13, 2009. There is nothing in the record to suggest that appellant did not desire or consent to the substitution, as he was present when Mr. Gagliardini explained that he was being “privately retained” to represent appellant. Nor is there any basis in the record to suggest that appellant was unable to understand the proceedings — including Mr. Gagliardini’s announced plan to withdraw the prior section 1368 request — or to exercise his right to counsel of his own choosing.
Appellant intimates that the result might have been different if Mr. Cohn had been present at the hearing on April 3, 2009, despite Mr. Gagliardini’s representation that there was no basis to pursue the section 1368 issue. But there is no support for this view in the record. The record instead reflects cooperation between the two attorneys’ offices, and that, at both hearings Mr. Gagliardini had received files and information from Mr. Cohn’s office and appeared adequately prepared to represent appellant. Moreover, Mr. Cohn never explicitly stated a doubt as to appellant’s competence, although such doubt might arguably be inferred from his request to have appellant examined pursuant to section 1368. As noted above, Mr. Cohn offered no evidence or reasons for his request. In our view, Mr. Gagliardini’s motion to “withdraw the 1368 request” was not so much an attempt to waive appellant’s right to a competency hearing, as it was a request to withdraw Mr. Cohn’s previously implied — and ultimately unsubstantiated — “opinion” concerning appellant’s competency. (See rule 4.130(b)(2) [“The opinion of counsel, without a statement of specific reasons supporting that opinion, does not constitute substantial evidence” [of mental incompetence for purposes of initiating competency proceedings].)
II. Appellant’s Convictions on Counts 3 and 4
Appellant contends his convictions on count 3 (DUI causing injury) and count 4 (driving with.08 percent or higher blood alcohol causing injury) must be reversed because these crimes are lesser included offenses of gross vehicular manslaughter while intoxicated. Respondent correctly concedes.
A defendant cannot be convicted of both a lesser included offense and the greater offense. (People v. Reed (2006) 38 Cal.4th 1224, 1227.) Where a defendant has been convicted of both, the conviction of the lesser must be reversed and any attached enhancements stricken. (People v. Binkerd (2007) 155 Cal.App.4th 1143, 1150-1151 (Binkerd).)
In People v. Miranda (1994) 21 Cal.App.4th 1464 (Miranda), the court held that DUI causing injury in violation of Vehicle Code section 23153, subdivision (a) is a necessarily included offense of gross vehicular manslaughter while intoxicated in violation of section 191.5, subdivision (a). (Miranda, at p. 1468; see also Binkerd, supra, 155 Cal.App.4th at pp. 1147-1148, 1150.) The Miranda court explained, “One person who injures a person while driving under the influence commits a violation of Vehicle Code section 23153; and if that person dies from that injury — whether immediately or sometime later — a violation of Penal Code section 191.5 has occurred.” (Miranda, at p. 1468.) This same reasoning applies to driving with a.08 percent or higher blood alcohol level causing injury within the meaning of Vehicle Code section 23153, subdivision (b). (See Binkerd, at p. 1149.)
Here, appellant was convicted of gross vehicular manslaughter while intoxicated (count 2) and also both DUI causing injury (count 3) and driving with a.08 percent or higher blood alcohol level causing injury (count 4), all pertaining to the same victim. Appellant could not commit a violation of section 191.5, subdivision (a), as charged in count 2 (manslaughter), without injuring that same victim, as charged in counts 3 and 4.
Accordingly, appellant’s convictions in counts 3 and 4 must be reversed and the jury’s true findings on the attached enhancements stricken.
III. Imposition of Enhancement under Section 191.5, Subdivision (d) on Count 2
Count 2 of the information charged appellant with gross vehicular manslaughter while intoxicated, having been previously convicted of violating Vehicle Code section 23152, subdivision (b) (DUI) on December 14, 2006, in the Santa Maria Superior Court, and again on June 6, 2007, in the San Luis Obispo Court in violation of section 191.5, subdivision (d).
Appellant does not dispute that the prosecution presented sufficient evidence to prove that he sustained the two prior DUI convictions alleged in count 2. He contends, however, the evidence was insufficient to support the 15-year-to-life enhancement under section 191.5, subdivision (d) because there was no evidence that his prior DUI conviction was punishable under Vehicle Section 23540, as was alleged in the enhancements attached to counts 3 and 4. We reject appellant’s sufficiency of the evidence claim because there was admittedly sufficient evidence that appellant’s 2007 DUI conviction was punishable under Vehicle Code section 23542, which also subjects him to the 191.5, subdivision (d) enhancement.
Vehicle Code section 23540 (“Second offense”) provides, in part: “(a) If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years of a separate violation of Section 23103 [reckless driving], as specified in … 23152 …, that resulted in a conviction, that person shall be punished by imprisonment in the county jail for not less than 90 days nor more than one year.…”
Counts 3 and 4 specifically alleged that appellant suffered the 2006 and 2007 convictions “within the meaning of California Vehicle Code section 23540.” (Unnecessary capitalization omitted.) As noted above, the jury found these enhancement allegations to be true. For reasons discussed in part II of the opinion, these findings must be stricken.
Appellant is correct that, as his first offense, his 2006 DUI conviction was not punishable under any of the provisions referenced in subdivision (d) of section 191.5.
Section 191.5, subdivision (d) provides, in part:
“A person convicted of violating subdivision (a) who has one or more prior convictions of this section or of paragraph (1) of subdivision (c) of Section 192, subdivision (a) or (b) of Section 192.5 of this code, or of violating Section 23152 punishable under Sections 23540, 23542, 23546, 23548, 23550, or 23552 of, or convicted of Section 23153 of, the Vehicle Code, shall be punished by imprisonment in the state prison for a term of 15 years to life.” (Italics and emphasis added.)
As appellant acknowledges, the documents admitted to prove his 2007 DUI conviction establish that he was granted probation and required to serve 30 days in jail for that conviction. Thus, appellant’s 2007 conviction was punishable under Vehicle Code section 23542 within the meaning of section 191.5, subdivision (d), and he was properly subjected to the enhanced sentencing provision for his conviction of gross vehicular manslaughter in count 2.
Vehicle Code section 23542 (“Conditions of probation for second offense”) provides, in part: “(a)(1) If the court grants probation to a person punished under Section 23540, in addition to the provisions of Section 23600 and any other terms and conditions imposed by the court, the court shall impose as conditions of probation that the person be confined in county jail and fined under either of the following: [¶] (A) For at least 10 days, but not more than one year, and pay a fine of at least three hundred ninety dollars ($390), but not more than one thousand dollars ($1,000). [¶] (B) For at least 96 hours, but not more than one year, and pay a fine of at least three hundred ninety dollars ($390), but not more than one thousand dollars ($1,000). A sentence of 96 hours of confinement shall be served in two increments consisting of a continuous 48 hours each. The two 48-hour increments may be served nonconsecutively. [¶] (2) The person's privilege to operate a motor vehicle shall be suspended by the department under paragraph (3) of subdivision (a) of Section 13352. The court shall require the person to surrender the driver’s license to the court in accordance with Section 13550.”
Appellant tries to avoid this conclusion by arguing that because “Vehicle Code section 23542 was not pleaded … it would violate appellant’s due process right to notice … to attempt to rely upon Vehicle Code section 23542 as the basis for the section 191.5, subdivision (d) enhancement, for the first time on appeal.” (Fn. omitted) Appellant cites subdivision (g) of section 191.5, which provides: “For the penalties in subdivision (d) to apply, the existence of any fact required under subdivision (d) shall be alleged in the information or indictment and either admitted by the defendant in open court or found to be true by the trier of fact.”
The cases appellant relies on are inapposite because in each of those cases the prosecution failed to give the defendant notice in the information that it sought to have the defendant sentenced under a particular statutory provision. (See People v. Mancebo (2002) 27 Cal.4th 735, 743; People v. Botello (2010) 183 Cal.App.4th 1014, 1027 [“the information charged each defendant with personally committing acts specified in the firearm enhancements of section 12022.53, subdivisions (b) through (d), but did not mention the applicability of those enhancements through subdivision (e)(1), either by designation of that provision or by description of the required circumstances”; “to apply section 12022.53, subdivision (e)(1) for the first time on appeal would violate the express pleading requirement of that provision, and defendants’ due process right to notice that subdivision (e)(1) would be used to increase their sentences”]; People v. Arias (2010) 182 Cal.App.4th 1009, 1020-1021.)
In contrast, the information in this case specifically referred to section 191, subdivision (d) in count 2, and alleged that appellant’s prior DUI convictions were the basis of the enhancement. Thus, appellant was on adequate notice that he was facing an enhanced sentence under section 191, subdivision (d), based on his prior convictions, notwithstanding the failure to specify under which particular Vehicle Code provision the alleged qualifying prior convictions were punishable. Appellant’s notice and sufficiency of the evidence claims thus fail.
IV. Correction of Abstract of Judgment
We agree with appellant’s last three contentions on appeal, which respondent concedes, and order the abstract of judgment to be amended accordingly. Namely, due to our reversal of counts 3 and 4, the corresponding $30 court security fee (§ 1465.8) and Government Code section 70373 assessment must be stricken, thereby reducing the total amount imposed for each from $120 to $60. In addition, the abstract of judgment must be corrected to reflect that appellant was awarded 827 actual days of presentence custody credits, which award appears to have been accidentally omitted.
DISPOSITION
Appellant’s convictions for DUI causing injury (count 3) and driving with a blood alcohol level of.08 percent or higher causing injury (count 4) are reversed, the enhancements attached to those counts are stricken, and the total court security fee imposed is reduced from $120 to $60, and the total Government Code section 70373 assessment imposed is reduced from $120 to $60. The trial court is ordered to prepare an amended abstract of judgment reflecting these modifications, and to reflect that appellant was awarded 827 actual days of presentence custody credits, and to forward a copy of the amended abstract to the Department of Rehabilitation and Corrections. In all other respects, the judgment is affirmed.
WE CONCUR: WISEMAN, J., FRANSON, J.