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People v. Jackson

Court of Appeals of California, Second Appellate District, Division Three.
Nov 25, 2003
B164257 consolidated (Cal. Ct. App. Nov. 25, 2003)

Opinion

B164257 consolidated B164520.

11-25-2003

THE PEOPLE, Plaintiff and Respondent, v. ALFRED JACKSON, Defendant and Appellant.

John Doyle, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, and Lauren E. Dana, Deputy Attorney General, for Plaintiff and Respondent.


Alfred Jackson appeals the judgment entered after conviction by jury of driving under the influence causing injury (Veh. Code, § 23153, subd. (a)) and the judgment ( order revoking probation) entered following plea of guilty to two counts of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)). The trial court sentenced Jackson to a prison term of eight years for driving under the influence with injury and imposed a consecutive term of 16 months for violation of probation in the possession of a controlled substance case. We affirm.

Jacksons separate appeals from the current conviction and the violation of probation have been consolidated.

FACTUAL AND PROCEDURAL BACKGROUND

1. The facts of the driving under the influence case.

On August 16, 1999, at approximately 8:15 p.m., Jacksons Ford Expedition crossed double yellow lines on Hoover Street and collided with a Chevrolet Blazer occupied by two students from Los Angeles Southwest College. Jackson appeared to be under the influence of alcohol at the scene of the accident and was taken to a hospital. A sample of Jacksons blood revealed a blood alcohol content of 0.29 percent.

As a result of the collision, the driver of the Blazer tore ligaments in her ankle, required crutches to walk for two and a half months and missed half of her college basketball season.

2. Sentencing considerations.

The jury found Jackson guilty of driving under the influence with injury but found a great bodily injury enhancement not true. The trial court found Jackson had three prior convictions within the meaning of the Three Strikes law.

At sentencing, the trial court indicated it was reluctant to impose a third strike term because Jackson was 60 years of age, the offense had not been intentional and the jury found the great bodily injury allegation not true. However, the trial court noted the injuries inflicted by Jackson had "severely impacted" the drivers "ability to participate in her normal activities."

The prosecutor indicated the People had offered nine years prior to trial in exchange for a plea to driving under the influence and an admission of the great bodily injury allegation. The trial court asked if there was "any way to revive" the great bodily injury enhancement and indicated "if I could give him nine or ten years, Id be happy to do it."

The prosecutor responded the maximum term for driving under the influence with injury was three years which would be doubled to six years if the trial court imposed a second strike term. The prosecutor also indicated Jackson had an open probation violation in a possession of a controlled substance case. The trial court observed that a consecutive term of 16 months, one-third the middle term of two years for each count, was available for the violation of probation if Jackson waived credit for custody he already had served in that case. The 16 months would bring the total term to seven years and four months.

The prosecutor noted that under Vehicle Code, section 23566, subdivision (a), the high term would be four years, which doubled would be eight years, if the accused has two prior convictions of driving under the influence within the previous seven years. The trial court observed the information did not allege the case came within section 23566 and asked if Jackson would be willing to admit a "special allegation amended to add that section" which would increase the maximum term by two years. The trial court indicated a term of eight years for driving under the influence with injury plus 16 months for the "probation violation would give us a reasonable sentence."

Subsequent unspecified statutory references are to the Vehicle Code.

After a recess, the trial court again indicated that if Jackson admitted an allegation under section 23566 and waived back time on the violation of probation, the trial court would impose a second strike sentence rather than a third strike term. The People then amended the information to allege a prior conviction of section 23153, subdivision (a), in 1995. After the trial court advised Jackson of his rights, Jackson answered affirmatively when the trial court asked if Jackson admitted the allegation was true.

The trial court then struck two of Jacksons prior serious or violent felony convictions and sentenced Jackson to the upper term of four years for driving under the influence causing injury, doubled to eight years on account of the strike, and imposed a consecutive term of 16 months in state prison for violation of probation in the possession case.

CONTENTIONS

Jackson contends the upper term for a conviction of driving under the influence with injury with one prior conviction is three years. Thus, the term imposed must be reduced by two years.

In the violation of probation case, appointed appellate counsel has filed an opening brief which raises no issues and which requested this court to conduct an independent review of the record. By notice filed August 11, 2003, the clerk of this court advised Jackson to submit any contention, ground of appeal or argument he wished this court to consider within 30 days. No response has been received to date.

DISCUSSION

1. Jackson is estopped from asserting sentence error.

Jackson contends the maximum term the trial court could have imposed for driving under the influence with injury is three years, not four, because section 23566, subdivision (a), requires two prior convictions within the preceding seven years and Jackson admitted only one. Jackson claims the trial court should have applied section 23560, which provides an upper term of three years for driving under the influence causing injury where the accused has one prior conviction of driving under the influence within the previous seven years. Jackson concludes the term imposed must be reduced by two years.

Section 23566, subdivision (a), provides in part: "If any person is convicted of a violation of Section 23153 and the offense occurred within seven years of two or more separate violations of Section 23103, as specified in Section 23103.5, or Section 23152 or 23153, or any combination of these violations, which resulted in convictions, that person shall be punished by imprisonment in the state prison for a term of two, three, or four years . . . ."

Section 23560, provides in part: "If any person is convicted of a violation of Section 23153 and the offense occurred within seven years of a separate violation of Section 23103, as specified in Section 23103.5, 23152, or 23153 which resulted in a conviction, that person shall be punished by imprisonment in the state prison, or in a county jail . . . ."

The People agree with Jackson but request the matter be remanded to permit the trial court to determine whether Jacksons prior conviction of driving under the influence was a misdemeanor or a felony.

The People note the report of the probation officer indicates the prior conviction was a misdemeanor whereas Jackson admitted a felony violation of section 23153, subdivision (a). The People suggest the trial court should obtain the superior court file in the prior conviction to determine the code section Jackson violated in 1995 and to allow the allegation to be pleaded properly before resentencing.

In the reply brief, Jackson urges he has not challenged the admission of the prior conviction as a felony and remand for resentencing is unnecessary because it is clear the trial court would impose the maximum term of three years.

We conclude it is appropriate to reject the Peoples concession and affirm the judgment as imposed. Based on the reporters transcript of the sentencing hearing, it is clear the trial court and the parties attempted to fashion an appropriate term without imposing a third strike term of 25 years to life in prison. Jackson assisted in this effort by waiving substantial back time credits and admitting a prior conviction of driving under the influence with injury. During discussions leading to the imposition of sentence, Jackson also answered affirmatively when the trial court inquired whether Jackson would be willing to admit a "special allegation" that would increase the upper term to four years. Jackson later waived his rights and admitted "the allegation."

Thus, Jackson bargained in the trial court for a second strike term. Accordingly, well-settled plea bargaining principles should apply. Specifically, where "defendants have pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction. The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process. [Citations.] . . . `When a defendant maintains that the trial courts sentence violates rules which would have required the imposition of a more lenient sentence, yet the defendant avoided a potentially harsher sentence by entering into the plea bargain, it may be implied that the defendant waived any rights under such rules by choosing to accept the plea bargain. [Citation.]" (People v. Hester (2000) 22 Cal.4th 290, 295; People v. Nguyen (1993) 13 Cal.App.4th 114, 122-123; People v. Beebe (1989) 216 Cal.App.3d 927, 932.)

Merely because Jackson only admitted one prior conviction of driving under the influence does not mean he cannot agree to be sentenced to a term normally reserved for individuals with two prior convictions. (See, e.g., People v. Jones (1989) 210 Cal.App.3d 124, 136-137 [two 5-year enhancements based on the same prior conviction]; People v. Otterstein (1987) 189 Cal.App.3d 1548, 1550-1552, [great bodily injury enhancement imposed on a count of battery with serious bodily injury even though Penal Code section 12022.7 precludes imposition of the enhancement where bodily injury is an element of the offense].)

As in the above cases, Jackson bargained for a sentence in excess of the trial courts jurisdiction in order to avoid an even harsher term under the Three Strikes law. He cannot now complain.

2. Review of record in the violation of probation case by this court.

We have examined the entire record in case No. B164520 and are satisfied Jacksons counsel has complied fully with counsels responsibilities. (People v. Wende (1979) 25 Cal.3d 436, 443.)

DISPOSITION

The judgments are affirmed.

We concur: CROSKEY, J. & KITCHING, J.


Summaries of

People v. Jackson

Court of Appeals of California, Second Appellate District, Division Three.
Nov 25, 2003
B164257 consolidated (Cal. Ct. App. Nov. 25, 2003)
Case details for

People v. Jackson

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ALFRED JACKSON, Defendant and…

Court:Court of Appeals of California, Second Appellate District, Division Three.

Date published: Nov 25, 2003

Citations

B164257 consolidated (Cal. Ct. App. Nov. 25, 2003)