Opinion
B193957
5-22-2008
THE PEOPLE, Plaintiff and Respondent, v. JOHN HERNANDEZ LOPEZ, Defendant and Appellant.
Roberta Simon, 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, Steven D. Matthews and Ryan B. McCarroll, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
I. INTRODUCTION
In People v. French (2008) 43 Cal.4th 36, 52-55, our Supreme Court explained in some detail the problems with finding harmless error in a determinate sentencing case when an accused pleads guilty or no contest, receives the upper term, but the aggravating factors are found by a judge and not a jury. In French, our Supreme Court found that the failure to have a jury find the aggravating factors after the defendant pled no contest was not harmless beyond a reasonable doubt. (Id. at pp. 42, 52-55.) Faced with a materially different showing, we conclude that the trial courts decision to impose the upper term based on two aggravating circumstances which were not found to exist by a jury was harmless beyond a reasonable doubt.
Defendant appeals after he was convicted of two counts of gross vehicular manslaughter in violation of Penal Code section 191.5, subdivision (a) and he admitted more than one victim was killed during one instance of driving. (Veh. Code, § 23558.) He contends: imposition of the upper term based upon facts found by the court violated his Fourteenth Amendment due process rights; the sentence violates Penal Code section 654, subdivision (a); and the consecutive sentences were based on an improper factor and violated due process. We affirm.
Penal Code section 191.5, subdivision (a) provides, "Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence."
Vehicle Code section 23558 states: "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." All future references are to the Vehicle Code unless otherwise noted.
II. PRELIMINARY HEARING TESTIMONY
Josie Flores testified that on December 22, 2005, at 4:45 p.m. she was in her car at the corner of 7th Street and Daisy in Long Beach waiting to turn on to a freeway onramp. She heard a screeching or skidding sound and a sudden "bang." She saw two cars collide. Ms. Flores testified defendant was driving one of the cars. Defendant got out of his car, said, "`Help me, help me," fell to the ground, and then rolled over next to a curb. Defendant had been driving westbound on Seventh Street and drove through a red light. Ms. Flores testified she heard the screeching shortly after the light changed. Ms. Flores walked over to defendant and covered him. Defendant said he had argued with "his girlfriend" and had been drinking. There were three people in the car defendants automobile struck. Two women remained in the car and a "young girl" was sitting on the curb. Of the two people in the car, Ms. Flores testified one looked dead and the other "looked pretty bad." When the police arrived, defendant said: `"Its my fault. Its my fault. . . . Help them."
Long Beach Police Officer Joseph J. Johnson testified that there were two victims in a badly damaged Kia automobile—Rosa Ochoa and Maria Garcia. Paramedics were treating them. The fire department personnel were cutting off the front passenger door in an effort to extricate the two victims. None of the two victims in the car were conscious while Officer Johnson was present.
Officer Johnson interviewed a witness named George Vance. Mr. Vance said the Honda ran the red light and struck the Kia. Another witness, Luis Pedraza, stated that the Honda ran the red light and struck the Kia containing the two victims. Thereafter, Officer Johnson went to Saint Marys Hospital. The two victims were being treated by teams of medical staff. After the two victims were pronounced dead, they were taken to a room and then to the morgue.
Long Beach Police Officer Joseph Paul Seminara interviewed defendant at Long Beach Memorial Hospital. Defendant, who was in "quite a bit of pain," was being attended to by doctors and nurses. Officer Seminara testified he saw objective symptoms of intoxication: "I detected a strong odor of alcoholic beverage coming from his breath. I could see his eyes were bloodshot. And when he answered my questions, he slurred his words." When questioned, defendant admitted: he had been drinking; he "drank a 40-ounce can of malt liquor beer and then he said he had three double shots of tequila"; he was drunk; the accident was his fault; and he caused the accident. Officer Seminara described defendants description of the accident thusly: "[H]e was driving westbound on 7th in the number 2 lane. He said he was driving fast, but he didnt how fast he was driving. . . . He said he ran the red light, the first red light at 7th and Magnolia and he got through that intersection he said without crashing into anybody. [¶] He then continued westbound in the number 2 lane on 7th where he approached Daisy. When he got to the intersection, he said the light was red and he clearly ran the red light. When he was going through the intersection, he immediately saw a vehicle southbound on Daisy." Defendant said he "hit his brakes" and tried to swerve to avoid an accident. Defendant then said he "crashed" into the other car. After their conversation at the hospital, Officer Seminara concluded defendant was under the influence of alcohol. A sample taken from defendant at the hospital indicated his blood alcohol level was .19.
III. POST-PRELIMINARY HEARING PROCEEDINGS LEADING TO DEFENDANTS NOLO CONTENDERE PLEA AND ADMISSION OF THE SPECIAL ALLEGATIONS
After defendant was held to answer, on March 13, 2006, he was charged in the information with two counts of gross vehicular manslaughter in violation of Penal Code section 191.5, subdivision (a). The victim in count 1 was alleged to be Ms. Ochoa. The victim in count 2 was alleged to be Ms. Garcia. In both counts, defendant was alleged to have violated sections 23140, 21352, and 23153. Finally, both counts the information contained a multiple victim allegation which alleged, "It is further alleged . . . that the defendant, in violation of . . . section 23558, proximately caused bodily injury and death to Erika Ochoa." On the same date, defendant pled not guilty.
As will be noted, Erika Ochoa is Ms. Garcias daughter, the victim in count 1 of the amended petition. For purposes of clarity, and not out of any disrespect, Erika will be referred to by her first name.
MOSK, J., Dissenting
I dissent.
A. Harmless Error
People v. Sandoval (2007) 41 Cal.4th 825 and People v. French (2008) 43 Cal.4th 36 (French) caution against the usurpation of the jurys factfinding function by appellate courts without putting the People to their burden of proving aggravating sentencing factors beyond a reasonable doubt, and without giving the defendant an opportunity to create a full and complete record. A fundamental question expressly left open by the Supreme Court in French, supra, 43 Cal.4th 36, and raised by the defendant in this case is, "whether Cunningham error ever can be found harmless in a case in which the defendant pleads guilty or no contest." (Id. at p. 53.) The Supreme Court did not resolve this question in French because it found that the error in that case was not harmless. (Ibid.) Merely distinguishing French on its facts does not determine that issue.
I question whether Cunningham error can ever be harmless beyond a reasonable doubt in a case in which the defendant pleads guilty or no contest if the aggravating facts are not expressly admitted by the defendant or related to defendants recidivism. The appellate court does not have a reliable record upon which to conclude beyond a reasonable doubt that the error was harmless. This case provides an example of why this is so. Neither the "evidence" adduced at the preliminary hearing, the information contained in the probation report, nor the information presented at the sentencing hearing is an adequate substitute for a fully developed trial record.
At the preliminary hearing in this case, there was testimony that probably would have been admissible at trial from one percipient witness regarding the accident and from a police officer regarding defendants intoxication and defendants admissions that he had been drinking, had been "driving fast" (but not how fast) and had run two red lights. Another police officer, however, gave hearsay testimony regarding statements by two other percipient witnesses that would not have been admissible at a trial and should not be considered in a harmless error analysis. That testimony should not be relied upon. Moreover, preliminary hearing testimony may be unreliable for purposes of harmless error analysis even if it might have been admissible at trial. The standard of proof at a preliminary hearing is lower than at trial, and defense counsels strategy for cross-examining witnesses and presenting affirmative evidence at a preliminary hearing is nearly always materially different than it would be when trying an issue to the ultimate trier of fact under a beyond-a-reasonable-doubt standard of proof. (See French, supra, 43 Cal.4th at pp. 53-54.)
With respect to the probation report, the Supreme Court in French, supra, 43 Cal.4th 36, appears to have concluded that hearsay statements in a probation report are not a proper basis for a finding of harmless error because they are not "evidence of the type that would have been admissible had the issue been tried to a jury." (Id. at p. 54.) The court in French dismissed reliance on the probation report in that case because it "recited the facts of the offenses based on multiple hearsay . . . ." (Ibid.) In this case, although the probation report contains some admissions attributed to defendant that might be considered party admissions—for example, a statement that defendant had been "drinking malt liquor and tequila" at his girlfriends house—the probation officer who prepared the report was not subject to cross-examination regarding the accuracy of the report of those statements. As in French, hearsay statements in the probation report should not be relied upon in the harmless error analysis. Thus, such statements, including the probation officers statements that defendant was an uninsured motorist and was driving with an expired license, should not be relied upon. The same is true as to the double hearsay statement attributed in the probation report to a percipient witness named Lisa that defendant "was driving at a high rate of speed" and "was flying."
Furthermore, the Supreme Court has suggested that information produced at a sentencing hearing is of questionable reliability for purposes of harmless error analysis. "`[A]lthough defendant did have an incentive and opportunity at the sentencing hearing to contest any aggravating circumstances mentioned in the probation report or in the prosecutors statement in aggravation, that incentive and opportunity were not necessarily the same as they would have been had the aggravating circumstances been tried to a jury. First, the standard of proof at the sentencing hearing was lower; the trial court was required to make a finding of one or more aggravating circumstances only by a preponderance of the evidence. (Cal. Rules of Court, rule 4.420(b).) Second, because the trial court had broad discretion in imposing sentence, a finding by the court concerning whether or not any particular aggravating circumstance existed reasonably might have been viewed by defense counsel as less significant than the courts overall assessment of defendants history and conduct. Counsels strategy might have been different had the aggravating circumstances been tried under a beyond-a-reasonable-doubt standard of proof to a trier of fact that was responsible only for determining whether such circumstances were proved (and not for making the ultimate sentencing decision). Accordingly, a reviewing court cannot always be confident that the factual record would have been the same had aggravating circumstances been charged and tried to the jury. (Sandoval, supra, 41 Cal.4th at pp. 839-840.)" (French, supra, 43 Cal.4th at pp. 53-54.)
To say that there can be reliance on information from the sentencing hearing because defendant had the motive and opportunity to present evidence on the aggravating and mitigating circumstances of the offense is not accurate in this case. The trial court did not state until it pronounced sentence what aggravating factors it was relying upon in imposing the upper term. Moreover, victim vulnerability was not reported as an aggravating circumstance in the probation report and was not at issue in the preliminary hearing. There should be no reliance on the defendants failure to dispute an issue which he had no opportunity or reason to dispute.
Also inaccurate is any suggestion that it is without dispute that Ms. Ochoa and Ms. Garcia reasonably expected they could enter the intersection without having their Kia Spectra rammed by an intoxicated speeder who drove through two successive intersections against red lights. That issue was never raised by the prosecutor or probation officer, and no evidence regarding the reasonable expectations of the victims was presented to the trial court. We do not know—and have no basis to speculate about—what the record might show had the issue of victim vulnerability been tried to a fact finder under a beyond-a-reasonable-doubt standard of proof. Defendant might have attempted, for example, to adduce evidence from one or more of the five known eyewitnesses to the accident that Rosa Ochoa was driving negligently. Although such evidence would not exonerate defendant of vehicular manslaughter, it could raise a reasonable doubt whether the victims were particularly vulnerable because it might tend to show that Rosa Ochoa could have avoided the accident had she exercised due care.
Moreover, even if Cunningham error is subject to harmless error analysis in a cases in which the defendant pleads guilty or no contest, the error in this case was not harmless. Notwithstanding any professed clairvoyance as to what a jury might do in this case, I do not agree that it can be concluded "beyond a reasonable doubt" that a jury unquestionably would have found true at least a single aggravating circumstance. (People v. Sandoval, supra, 41 Cal.4th at p. 839.) In imposing the high term the trial court relied upon the only two factors that were applicable: the victims were "particularly vulnerable" (Cal. Rules of Court, rule 4.421(a)(3)) and the conduct evidenced a "high degree of cruelty, viciousness, or callousness." (Rule 4.421(a)(1).) The record reveals disputed factual issues with respect to both of these factors.
"As used in the context of rule 4.421(a)(3), a `particularly vulnerable victim is one who is vulnerable `in a special or unusual degree, to an extent greater than in other cases. Vulnerability means defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendants criminal act. . . . [Citation.]" (People v. Bloom (1983) 142 Cal.App.3d 310, 321, italics added.) There is no evidence, however, that the victims in this case were more vulnerable to a collision with a drunk driver than any other motorist or pedestrian on public streets. "There are few individuals as `defenseless, unguarded, unprotected, accessible, assailable and susceptible as those who have the misfortune of being in the wrong place at the wrong time when a drunk driver takes to the road. All victims of drunk drivers are `vulnerable victims, but it is precisely because they are all vulnerable that [the victim in this case] cannot be considered to be vulnerable `in a special or unusual degree, to an extent greater than in other cases. [Citation.]" (Ibid.; see also People v. Piceno (1987) 195 Cal. App. 3d 1353, 1358 ["The element of vulnerability is inherent in the very crime of vehicular manslaughter caused by a driver under the influence of alcohol, and to use that factor to aggravate the term is improper, absent `extraordinary circumstances"].) I cannot say beyond a reasonable doubt that a properly instructed jury would conclude that the victims in this case were particularly vulnerable.
Although defendants conduct was indisputably reckless, a reasonable jury could also conclude that his conduct did not evidence the "high degree of cruelty, viciousness, or callousness" required by rule 4.421(a)(1). (See Sandoval, supra, 41 Cal.4th at p. 843.) To demonstrate a "high degree of . . . callousness" in the context of defendants crime, the evidence must show more than driving while intoxicated in a grossly negligent manner, resulting in the death of another—those facts are inherent in every violation of section 191.5 because they are elements of the offense. "Callous" is typically defined as "insensitive; indifferent; unsympathetic" (Dictionary.com Unabridged (v 1.1 Nov. 30, 2007) <http://dictionary.reference.com/browse/callousness>), as in "a callous indifference to the suffering of others" (American Heritage Dictionary of the English Language (4th ed. Nov.30, 2007) <http://dictionary.reference.com/browse/callousness>.) The degree of defendants intoxication, his choice to drive while so intoxicated, and his deliberate decision to run two red lights could support a finding of callousness in this case. There was, however, sufficient countervailing evidence to support a contrary conclusion. Defendant had never before been arrested or charged with any crime, and he had no history of driving under the influence or for any other alcohol or drug-related misconduct. Defendant did not attempt to flee the scene after the accident. There is no evidence that defendant callously ignored or sought to exacerbate the victims injuries. There was evidence that defendant himself was injured and disoriented after the collision; that defendant immediately admitted and continuously maintained that he was solely responsible; and that defendant displayed genuine remorse from the time of the accident to the day he was sentenced. Although his driving was reckless, there was no evidence or allegation that defendant deliberately intended to injure anyone; to the contrary, the amended information alleged that he acted without malice. Defendant did not, for example, intentionally ram an occupied vehicle, drive on the wrong side of the road, or mount the sidewalk in his vehicle, such that his conduct was substantially certain to cause injury. Further, although defendants drivers license had expired and he was uninsured, those facts do not necessarily indicate a "high degree of . . . callousness" toward the safety of others—there was no evidence that defendants license had been suspended or revoked, or that he otherwise had a significant history of unsafe driving. He might have been unable to afford the insurance premiums or licensing fee. Although that would not excuse defendants violation of the law, it might militate against the inference that defendants lack of insurance and a valid drivers license demonstrates callousness toward the safety of others. The point is, we do not know because the parties were not put to their proof. Therefore, I do not believe one can conclude "beyond a reasonable doubt" that a jury would find that defendant exhibited a "high degree of . . . callousness."
I wish to emphasize that I in no way intend to minimize defendants conduct. All I am saying is that under the authorities, I do not believe defendant should be denied his constitutional rights.
B. Section 654
Defendant argues that the trial court violated Penal Code section 654 (section 654) by imposing an additional one-year term for one of the multiple-victim enhancements (Veh. Code, § 23558) because the enhancement allegation for each count named as the additional victim the primary victim named in the other count—that is, count 1 charged the death of Rosa Ochoa, and specially alleged that Maria Garcia was the additional victim for purposes of the enhancement; count 2 charged the death of Maria Garcia, and specially alleged that Rosa Ochoa was the additional victim for purposes of the enhancement. As a result, defendant argues, defendant was punished twice for causing the death of one of the two victims, in violation of section 654. I agree.
Section 654 prohibits multiple punishments for the same act or omission. Subdivision (a) provides, in relevant part: "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." (§ 654, subd. (a).) Defendant in this case was convicted and sentenced separately under Penal Code section 191.5 for the death of each victim. The imposition of the multiple-victim enhancement punished defendant again for precisely the same act causing the same injury to the same victim. The trial court therefore erred by failing to stay the sentence on the multiple-victim enhancement. (See People v. Arndt (1999) 76 Cal.App.4th 387, 397 [section 654 barred imposition of multiple-victim enhancements under former Vehicle Code section 23182 (now Vehicle Code section 23558) in addition to great-bodily-injury enhancements for each victim pursuant to Penal Code section 12022.7].)
The People concede that defendants claim of error is "plausible," and do not contend that the trial court acted lawfully by imposing the one-year term for the multiple-victim enhancement. Instead, the People contend that defendant is estopped to assert the claim of error by rule 4.412(b), which provides, "By agreeing to a specified prison term personally and by counsel, a defendant who is sentenced to that term or a shorter one abandons any claim that a component of the sentence violates section 654s prohibition of double punishment, unless that claim is asserted at the time the agreement is recited on the record." Defendant in this case, however, did not "agree[] to a specified prison term." Rule 4.412(b) therefore does not apply. Furthermore, defendant expressly objected to imposition of the enhancement prior to the imposition of his sentence. He did not forfeit the error.
People v. McFarland (1989) 47 Cal.3d 798 supports defendants position as to the applicability of section 654. In that case the issue was whether section 654 barred a defendant from being sentenced for both vehicular manslaughter and felony drunk driving arising from the same accident. The Supreme Court held that section 654 did not bar punishment for both convictions when the accident kills one person and injures another. In the course of its discussion, the court noted that Vehicle Code section 23182 (now Vehicle Code section 23558) permitted "an enhancement of one year for each additional injured victim." The court qualified that statement in a footnote as follows: "Of course, a sentence enhancement imposed pursuant to Vehicle Code section 23182 [now section 23558] may not be based upon the same count for which a separate felony drunk driving sentence is imposed." (People v. McFarland, supra, 47 Cal.3d at p. 805, fn. 8, italics added.) In other words, a multiple-victim enhancement may not be added to a sentence for vehicular manslaughter for injury to a second victim when the injury to that second victim is the basis for a separate sentence for felony drunk driving. This seems to compel the conclusion that a multiple-victim enhancement may not be added to a sentence for vehicular manslaughter for injury to a second victim when the injury to that second victim is the basis for a separate vehicular manslaughter conviction. Although the footnote is dictum, "`[e]ven if properly characterized as dictum, statements of the Supreme Court should be considered persuasive. (Citation.) [Citation.] . . . [¶] When the Supreme Court has conducted a thorough analysis of the issues or reflects compelling logic, its dictum should be followed." (Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1169; accord, People ex rel. Totten v. Colonia Chiques (2007) 156 Cal.App.4th 31, 39, fn. 6; California Amplifier, Inc. v. RLI Ins. Co. (2001) 94 Cal.App.4th 102, 114 ["legal pronouncements by the Supreme Court are highly probative and, generally speaking, should be followed even if dictum"].)
Also, in People v. Arndt, supra, 76 Cal.App.4th at page 397, the court of appeal held that section 654 barred imposition of both a great bodily injury enhancement under Penal Code section 12022.7 and a multiple-victim enhancement under Vehicle Code section 23182 (now Vehicle Code section 23558) for the same victims. Though not directly on point, the holding in Arndt is inconsistent with the conclusion that section 23558 is an "exception" to section 654.
Neither People v. Chaffer (2003) 111 Cal.App.4th 1037, nor People v. Superior Court (Jiminez) (2002) 28 Cal.4th 798 governs in this case. People v. Chaffer holds that section 654 does not bar applying a great bodily injury enhancement (Pen. Code, § 12022.7) to a sentence for felony spousal abuse. The court reasoned, "If we were to apply the general provisions of section 654 to the more specific GBI enhancement, it would nullify section 12022.7 because the enhancement and underlying offense always involve the same act. This cannot be what the Legislature intended, because, `"As a general rule of statutory construction . . . repeal by implication is disfavored." [Citation.]" (People v. Chaffer, supra, 111 Cal.App.4th at p. 1045.) That is not true in this case. Even if section 654 barred the enhancement in this case, the enhancement could still be applied in the vast majority of cases to which it was intended to apply—that is, to enhance sentences in felony drunk driving cases involving multiple injuries and vehicular manslaughter cases in which a second victim is injured, but whose injuries are not the basis of a separate conviction and sentence. In fact, the enhancement properly could have been applied in this case had the People alleged and defendant admitted that Erika Ochoa (the third passenger in the car who was injured) was the additional victim.
People v. Superior Court (Jiminez), supra, 28 Cal.4th 798 does not involve sentencing issues at all. Rather, that case held that prosecutors cannot "forum shop" when relitigating motions to suppress pursuant to Penal Code section 1538.5, subdivision (p) by peremptorily challenging, pursuant to Code of Civil Procedure section 170.6, the judge who had previously granted the motion. (People v. Superior Court (Jiminez), supra, 28 Cal.4th at p. 801.) Apparently, the relevance of that case is its statement of the general proposition that a more specific statute controls over a general statute. But all enhancement statutes are "specific" statutes. That is not a basis for not applying section 654 in this circumstance.
C. Dual Use
Defendant contends that the trial court violated rule 4.425(b)(2) by relying on the fact that there were multiple victims to support both the multiple-victim enhancement pursuant to Vehicle Code section 23558 and the imposition of consecutive sentences. (See People v. Calhoun (2007) 40 Cal.4th 398, 408.) Defendant, however, did not raise this contention below.
D. Conclusion
I would reverse defendants sentence and remand the matter to the trial court for resentencing consistent with Sandoval, supra, 41 Cal.4th 825, and the body of my opinion. In resentencing I would direct the trial court, pursuant to section 654, either to strike or to impose and stay defendants punishment for the multiple-victim enhancement under Vehicle Code, section 23558. Notes:
Cunningham v. California (2007) 549 U.S. 270 (Cunningham).
Reference to Rules are to the California Rules of Court.
I conclude only that the error was not harmless beyond a reasonable doubt, not that the victims were not particularly vulnerable as a matter of law. (Cf. People v. Weaver (2007) 149 Cal.App.4th 1301, 1314-1315 [affirming trial courts reliance on victim vulnerability to deny probation in vehicular manslaughter case under rule 4.414(a)(3); unlike rule 4.421(a)(3), rule 4.414(a)(3) does not include the qualifier "particularly"].)
The trial court did not specify whether it imposed the enhancement on count 1 or count 2, nor did the trial court explicitly strike or stay imposition of the enhancement with respect to either count. The trial court simply imposed an additional and consecutive one-year sentence pursuant to Vehicle Code section 23558.
The People do not contend in this case that section 654 does not apply to sentence enhancements. That issue is currently before the California Supreme Court in People v. Rodriguez, review granted March 12, 2008, S159497.
The justices in the majority appear to deviate from their often-expressed position that a matter not argued on appeal is forfeited.
I would also reject the Peoples request that this court "remand[] to allow the prosecutor to consider seeking additional amendments to the information" to allege that Erika Ochoa was an additional victim. The issue before us is whether defendant was lawfully sentenced on the plea he entered to the charges stated in the amended information. Defendant has not sought to withdraw his plea, nor has defendant challenged the validity of his plea. The Peoples request is therefore outside the scope of review in this case.
On April 4, 2006, defendant filed a Penal Code section 995 motion to dismiss the section 23558 multiple victim allegation. Also, defendant filed a Penal Code section 1538.5 suppression of evidence motion. On May 19, 2006, the first amended information was filed. In counts 1 and 2, defendant was charged with gross vehicular manslaughter while intoxicated. Count 1 charged that defendant caused the death of Ms. Ochoa. Ms. Garcia was identified as the person who was injured and killed within the meaning of section 23558 in count 1. Count 2 charged defendant with the death of Ms. Garcia. In the count 2 section 23558 multiple victim allegation, Ms. Ochoa was indentified as the individual was who was injured and killed by defendant. The first amended information expressly states the sentencing range for each count as 4, 6, or 10 years. In addition, the first amended information set forth the sentencing range for the Vehicle Code section 23558 allegations in both counts.
On May 22, 2006, defense counsel announced that defendant intended to enter an "open plea to the court." The trial court inquired as to whether defendants decision was in response to a proposed disposition proffered by the prosecution. Defense counsel responded, "No your honor, this is going to be an open plea to the court." The deputy district attorney said, "The people have not extended an offer to [defendant]." The trial court then indicated that it expected defendant to waive the right to appeal: "Before you do that, I just want to indicate, for purposes of future issues as part of an open plea, if you are going to plea open to the court, I would like to ask for a waiver for any appeal. That would be one of the issues, that I will not accept that plea, unless there is that waiver, unless we go into certain issues of probable cause and all those other issues." Defendant was advised, "The maximum time of confinement for these charges and the special allegation is 13 years in the state prison."
The deputy district attorney stated to defendant: "It is my understanding that you are pleading open to the court, meaning no plea agreement by us, the district attorneys office, and that you can be sentenced by the judge anywhere from probation up to the maximum time of confinement. Is that your understanding of what is going to happen and are you still going to be pleading open to the court?" Defendant responded, "Yes." After defendant waived the usual constitutional rights, the following occurred: "THE COURT: You also have a right to appeal any judgment of this case, because this is a plea, you give up your right to appeal." Defendant was the advised by the prosecutor, "You are going to be pleading to a felony and you could be sentenced anywhere from probation to parole." Defendant was then advised of the consequences of being placed on probation as well as being sent to prison. Before accepting the no contest pleas, the trial court asked defense counsel: "Do you understand, did you have time to [discuss] this matter with [defendant] including his rights and consequences and do you believe that he understands these matters?" Defense counsel responded, "Yes." Defendant, with the concurrence of defense counsel, pled no contest and admitted the special allegations.
IV. SENTENCING REPORTS
A. The Probation Officers Report
The probation officers report related the facts which were the subject of the preliminary hearing testimony. Further, the report describes defendants admission of events leading up to the deaths of the two victims: "When asked where he had come from, he stated he had come from his girlfriends house. . . . He went on to say that he had been drinking malt liquor and tequila at his girlfriends house . . . . When they got into an argument, he became angry and left his vehicle." The report added though that defendant was driving with an expired drivers license. The report stated that at the scene of the accident, defendant complained of lacerations on his left arm and pain to his cheek, stomach, and right ankle. Defendant stated several times that the accident was his fault and, `"I deserve the full punishment."
Erika suffered a chin laceration, a shoulder abrasion, and "numerous" cuts and scrapes on her arms and hands. The three occupants of the Kia Spectra had left their residence to go Christmas shopping. Ms. Ochoa was driving and Ms. Garcia was in the passenger seat. At the intersection where the fatal accident occurred, Ms. Ochoa drove into the intersection when the light turned green. The report described what happened next, "After negotiating the turn, Erika heard both her sister and mother scream as another vehicle struck the drivers side of the car." After Erika was pulled from the car, the report states: "[H]er Uncle Manuel arrived on the scene. He became very upset about what the vehicle looked like and began crying when he saw the wreckage and her mother and sister unconscious in the front seat. She called her brother Jesus and told [him] about the accident, since he was waiting for them at the Lakewood Mall." Both of the victims were in full cardiac arrest when they were taken by paramedics to St. Marys Hospital where they were pronounced dead.
The report also details the observations of a witness, identified only as Lisa, who did not testify at the preliminary hearing. Lisa saw the incident and related: defendant was driving at a high rate of speed; the light for the traffic coming from Daisy was "solid green"; defendant immediately admitted he was at fault; defendant appeared to her to be "drunk." When asked how fast defendant was driving, the woman named Lisa stated, `"He was flying[.]" According to Javier Ochoa, Ms. Ochoas brother, the funeral expenses for the two victims totaled $27,000.
Defendant had no prior misdemeanor or felony convictions. His drivers license had expired on December 7, 2005. He had previously been convicted of speeding in violation of Vehicle Code section 22349, subdivision (a). Defendant claimed that he drank beer twice monthly. Defendant denied drinking hard liquor and would generally only drink "one 40-ounce" beer at a time. The probation officers report states, "He recently turned 21 years of age and was not able to buy beer until recently." When he killed Ms. Ochoa and Ms. Garcia, defendant worked only every other week earning $400 per month doing "clean up" at construction sites. The probation officer described defendants work history as unstable. Defendant was driving without insurance when he killed Ms. Ochoa and Ms. Garcia and injured Erika.
A Long Beach police detective stated that although defendant was cooperative, leniency was unwarranted due to the fact two people were killed. The probation officer concluded: "Although the defendant does not have a history of this type of behavior and does not appear to have a criminal record . . . the victims who died and their family must be considered. Unfortunately, the defendant . . . drove through a red light and hit the victims vehicle, killing them. That in itself cannot be ignored." The probation officer: recommend defendant be sentenced to prison; identified no aggravating circumstances; and found as a mitigating circumstance defendant had no, or an insignificant, prior record. Attached to the probation officers report were seven letters from family members of Ms. Ochoa and Ms. Garcia. The letters spoke to the losses experienced as a result of the killing of Ms. Ochoa and Ms. Garcia.
B. Defendants Report
Prior to the probation and sentencing hearing, defendant submitted a report prepared by Nancy Clark. The report, which was not under oath, states: the man who lived with defendants mother, Juan Santiago, was an alcoholic; defendants mother was beaten "on virtually a nightly basis" by Mr. Santiago; eventually, "to deal with the painful parameters of her life"; defendants mother began using alcohol to excess; one day, Mr. Santiago "beat her severely"; locked her in a room; and took the five children illegally into the United States.
According to Ms. Clarks report, eventually defendants mother and Mr. Santiago reunited in Mexico until they were involved in a fight in a bar. Defendants father intervened and defeated Mr. Santiago in a fistfight. Thereafter, defendants mother and father began a relationship. Defendants father was "problem drinker" who worked only sporadically. Defendant was born in Torrance on December 7, 1984, and was hospitalized several times because of unspecified serious illnesses.
Because of marital infidelity related issues, defendants mother and father eventually parted. Defendants mother began a new relationship with a narcotics trafficker. Eventually, defendant and his mother moved after a home invasion robbery resulted in her being stabbed. Defendant enrolled in kindergarten and experienced `"one of the happiest times" in his life but was hurt because he did not have a father. When defendant was in third grade, his mother rented out a spare bedroom to two gay men. One of the men ultimately forcibly sodomized defendant. Defendant was further upset and confused but excited when he found out from his mother he had five half-siblings. Upon entering high school, he got a job as "on a janitorial crew" and his relationship with a young woman, identified only as "Kim," ended causing him to become "enormously" depressed. Eventually, defendant became sexually involved with another male, Mike Terry. Defendant felt "like a prostitute" and was filled with "shame and embarrassment" while the sexual relationship with Mr. Terry lasted three years according to Ms. Clarks report.
In the tenth grade, defendant began to frequently use alcohol and marijuana, Defendant attempted suicide "a couple of times" when he was "drunk" and dropped out of the tenth grade. After reenrolling in high school, defendant eventually dropped out two months before graduation. Throughout this time period, defendant dated a young woman identified only as `"Lluvia" and, at the same time, continued to see Mr. Terry. Eventually, defendant saw Mr. Terry "picking up a younger boy" and their relationship ended. When defendant told the young woman named Lluvia about the sexual liaison with Mr. Terry, she broke off their relationship. When defendant revealed his gay relationship to his mother in May 2003, she cried.
Eventually, defendant began to work in a Burger King and met Daisy Lopez. When defendant and Ms. Lopez began to date, his spirits improved. Mr. Terry gave defendant a 1995 Honda although they never resumed their sexual relationship. In April 2004, defendant "took a job" at the Hyatt Hotel in Huntington Beach. Because of his drinking, he was fired and he experienced suicidal thoughts.
After revealing his sexual past to a sister, defendant began receiving counseling with Evelin Barragan-Edwards. Defendant reported the sexual conduct he experienced as a minor to the police. In December 2005, defendant attended forklift driving school and received a certified license. Although he made a mental commitment to stop using narcotics and alcohol, defendant was involved in the fatal accident. Ms. Clarks report concluded, "Unfortunately, the present accident occurred and all his aspirations were put on hold."
Attached to the report are numerous letters. The upshot of the letters are that defendant is a good person and he should be treated leniently. The rape crisis counselor, Ms. Barragan-Edwards, indicated defendant was in the acute stage of post traumatic stress disorder which included symptoms of "low energy, irritability and unusual anger, flashbacks, self-blame, and fear" apparently as a result of his homosexual experiences. Defendant attended seven counseling sessions at the Sexual Assault Crisis Center between August 1 and September 15, 2005. Attached to Ms. Clarks report is a recommendation which argues defendant should receive probation with drug and alcohol testing or, if sent to prison, only a "relatively minimal term of imprisonment" should be imposed.
V. THE PROBATION AND SENTENCE HEARING
At the probation and sentence hearing, Erika stated: "Its not fair that he took both my mom and my sister and I am barely 15, to go on without my mom. And its not fair that every day I still think about him and what he did to us. And I have nobody because the biggest part of my life, and I just think he was a mistake and everything and now I have nothing to look forward to because of him. [¶] I cant have regular birthdays because he took them away. Just after Christmas it will be so hard and I still have to go on every day just because of him, not knowing what to do without them." Erikas brother stated: "This guy just took everything away from me that day. I was waiting for Christmas. They called me and everything, they called me that day that the accident happened. I didnt know what happened because I was on my way to go shop too and I was supposed to meet them over there. And this guy just what he did, you just cant take it back. Man, just take a couple of beers and go drive to show somebody that he is mad or something, that makes no sense to me. [¶] 13 years for me is nothing. Its a lifetime right there. I was waiting for her to be — to see my kids grow up, but Im not going to see that no more because this guy right here took a couple of beers and drives fast for no reason. [¶] I feel that 13 years is never going to take that back and I hope you give more years. 13 years is nothing, six years in prison is nothing for me."
The trial court denied defendants probation request. The trial court ordered that consecutive sentences be imposed. In selecting the upper term, the trial court stated: "California Rules of Court, rule 4.423(b)(1). One of the factors is that defendant has no prior record or an insignificant record of criminal conduct, consider[ing] the recen[cy] and frequency of prior crimes. Here the court incorporates all of the content of the report of Clark and Associates." The trial court continued: "California Rules of Court, rule 4.423(b) is another factor in mitigation. The defendant voluntarily acknowledged wrongdoing prior to arrest or at an early stage of the criminal process." The trial court referred to defendants admission at the scene of the incident that he was at fault and deserved the full punishment.
In terms of aggravating factors, the trial court found: "In circumstances in aggravation the court takes a look at California Rules of Court, rule 4.421(a)(1), that whether the crime involves great violence, great bodily harm, threat of great bodily harm, or other acts disclosing cruelty, viciousness, or callousness. [¶] Here as set forth in his pretrial report, the defendant admitted that he was drinking in his girlfriends home before getting into the car. [¶] He drove the car knowing he did not have a valid drivers license, and the vehicle he was driving was uninsured. He ran the red light knowing that the light was red. Specifically, as the defendant approached the intersection . . ., he noticed the light was red. He decided [to] drive across the red light anyway. An independent third party named Lisa described the defendants car speed before the collision as follows, quote `He was flying, close quote. [¶] The defendant was almost two and a half times the legal limit of 0.08 when he registered a 0.19 in the breathalyzer test. And two people died from his conduct. [¶] Therefore, in this factor the following facts disclose defendants callousness that resulted in two deaths: [¶] A. He drove while being about two and a half times the legal limit of alcohol allowed by law; [¶] B. He drove while he was not allowed to lawfully drive. That is, he did not have a license at the time; [¶] C. He drove while the vehicle was uninsured; and [¶] D. He knew the light was red and decided to fly across the intersection anyway."
Additionally, the trial court found that the victims were particularly vulnerable within the meaning of California Rules of Court, rule 4.421(a)(3). The trial court found: "Here the victim car where the two decedents were occupied were lawfully driving through an intersection with a green light in their favor. There is no reason to suspect that anything would happen to the decedents other than safe passage through the intersection. They trusted all the motorists would follow the law. In doing so, they make themselves vulnerable at the intersection to anyone who chooses not to follow the law, and the consequences befell upon them."
The trial court ruled that the aggravating circumstances outweighed the mitigating circumstances. As to count 1, defendant received the upper term of 10 years. Defendant also received one-third of the middle term—two years in prison. Defendant also received an additional one year in custody pursuant to section 23558.
VI. DISCUSSION
A. Absence Of A Probable Cause Certificate
The Attorney General argues that the appeal must be dismissed because defendant failed to secure a probable cause certificate. However, the notice of appeal expressly states defendant was appealing from the sentence. There is no requirement that a defendant secure a probable cause certificate to challenge rulings after the entry of the plea. (Pen. Code, § 1237.5; People v. Lloyd (1998) 17 Cal.4th 658, 666; People v. Panizzon (1996) 13 Cal.4th 68, 85-86.)
B. Defendant Is Not Entitled To Resentencing
Defendant contends his due process to right to a jury trial was violated when the trial court found the two aggravating factors of great callousness and victim vulnerability to be true. Defendant argues he is entitled to resentencing pursuant to Cunningham v. California (2007) 549 U.S. 270, ___-___ [127 S.Ct. 856, 863-864]. But as the Attorney General correctly notes, any error was harmless beyond a reasonable doubt. If the failure to allow a jury to engage in fact-finding is harmless beyond a reasonable doubt, a defendant is not entitled to resentencing. (Washington v. Recuenco (2006) 548 U.S. 212, ___ [126 S.Ct. 2546, 2553]; People v. Sandoval (2007) 41 Cal.4th 825, 839.)
In People v. Sandoval, supra, 41 Cal.4th at page 838, our Supreme Court explained a reviewing courts duty while conducting Chapman v. California (1967) 386 U.S. 18, 22 harmless error analysis where aggravating factors were found by a judge after a jury trial: "[W]e must determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jurys verdict would have authorized the upper term . . . . [I]f a reviewing concludes, beyond a reasonable doubt, that the jury, applying a beyond-a-reasonable-doubt standard, unquestionably would have found at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless." (People v. Sandoval, supra, 41 Cal.4th at pp. 838-839.) In Sandoval, our Supreme Court described the inherent problems confronting a reviewing court conducting Chapman harmless error analysis after a jury trial where the aggravating circumstances were not litigated. To begin with, our Supreme Court described the difficulty when a reviewing court relies on a trial transcript to conduct harmless error review: "[T]he reviewing court cannot necessarily assume that the record reflects all of the evidence that would have been presented had aggravating circumstances been submitted to the jury. Although the aggravating circumstances found by the trial court were based upon the evidence presented at trial, they were not part of the charge and were not directly at issue in the trial. Aggravating circumstances are based upon facts that are not elements of the crime. (Cal. Rules of Court, rule 4.420(d).) Defendant thus did not necessarily have reason-or the opportunity-during trial to challenge the evidence supporting these aggravating circumstances unless such a challenge also would have tended to undermine proof of an element of an alleged offense." (People v. Sandoval, supra, 41 Cal.4th at p. 839.)
In addition, in Sandoval, our Supreme Court discussed the difficulty of a reviewing court making a harmless beyond a reasonable doubt assessment based on what occurred at a sentencing hearing after a jury trial. The court acknowledged at the probation and sentence hearing the defendant has the "incentive and opportunity" to challenge aggravating factors asserted in the probation officers report. (People v. Sandoval, supra, 41 Cal.4th at p. 839.) But our Supreme Court explained the incentive and opportunity were different from that present during a jury trial: "First, the standard of proof at the sentencing hearing was lower; the trial court was required to make a finding of one or more aggravating circumstances only by a preponderance of the evidence. (Cal. Rules of Court, rule 4.420(b).) Second, because the trial court had broad discretion in imposing sentence, a finding by the court concerning whether or not any particular aggravating circumstance existed reasonably might have been viewed by defense counsel as less significant than the courts overall assessment of defendants history and conduct. Counsels strategy might have been different had the aggravating circumstances been tried under a beyond-a-reasonable-doubt standard of proof to a trier of fact that was responsible only for determining whether such circumstances were proved (and not for making the ultimate sentencing decision)." (Id. at pp. 839-840.)
Finally, in Sandoval, our Supreme Court emphasized that when a potential aggravating circumstance rests on a "somewhat vague or subjective standard," it is more difficult for a reviewing court to find the denial of the jury trial right was harmless beyond a reasonable doubt. Our Supreme Court noted: "Many of the aggravating circumstances described in the rules require an imprecise quantitative or comparative evaluation of the facts. For example, aggravating circumstances set forth in the sentencing rules call for a determination as to whether `[t]he victim was `particularly vulnerable, whether the crime `involved a . . . taking or damage of great monetary value, or whether the `quantity of contraband involved was `large (Cal. Rules of Court, rule 4.421(a)(3), (9) [&] (10), italics added)." (People v. Sandoval, supra, 41 Cal.4th at p. 840.) To further complicate matters, a sentencing court could consider factors not set forth in the sentencing records. Such an aggravating factor need only be "`reasonably related" to the sentencing decision. (Id. at p. 840, citing Cal. Rules of Court, rule 4.408(a).) In Sandoval, in the context of a case tried to a jury, our Supreme Court held the denial of the jury trial right was not harmless beyond a reasonable doubt. (People v. Sandoval, supra, 41 Cal.4th at p. 840.)
In French, our Supreme Court reiterated its view that harmless error analysis is "problematic" because a reviewing court cannot necessarily assume the record reflects all of the evidence that would have been presented had the alleged aggravating circumstance been submitted to the jury. (People v. French, supra, 43 Cal.4th at p. 53.) And, in the context of a judgment resulting from a guilty, no contest, or nolo contendere plea, the prejudice assessment is even more difficult: "When a defendant pleads guilty or no contest, a prejudice assessment is even more problematic, because the record generally does not contain a full presentation of evidence concerning the circumstances of the offense. The statutory scheme that governs a sentencing proceeding does not require an evidentiary hearing; rather, it permits the trial court to base its sentencing decision on `the record in the case, the probation officers report, other reports . . . and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, and any further evidence introduced at the sentencing hearing. (§ 1170, subd. (b).)" (People v. French, supra, 43 Cal.4th at p. 54.)
In French, the defendant pled no contest to six counts of lewd and lascivious conduct with a child under the age of 14 years with the understanding he would receive no more than 18 years in prison. (Pen. Code, § 288, subd. (a).) There were three aspects to the evidence supporting the imposition of the upper term in French. First, there was a somewhat vague factual basis for the plea identified by the prosecutor: "The prosecutor set forth the factual basis for the plea by briefly describing the acts underlying these six counts. When the court inquired of defense counsel whether she believed there was a sufficient factual basis for the plea, counsel stated, `I believe the People have witnesses lined up for this trial that will support what the D.A. read in terms of the factual basis . . . ." (People v. French, supra, 43 Cal.4th at p. 42.)
The second aspect of the evidence relating to the upper term were the contents of the presentence report: "A presentence report, based upon police reports, indicated that the victims had been charges at an in-home daycare center run by defendants daughter, whom defendant sometimes assisted in the operation of the center. When interviewed by the probation officer who prepared the report, defendant denied committing the offenses." (People v. French, supra, 43 Cal.4th at p. 42.) Further, the report indicated the defendant had twice been convicted of misdemeanors for which he had served 50 days in county jail as a condition of three years probation. The presentence report identified three aggravating circumstances: the defendants conduct involved planning (Cal. Rules of Court, rule 4.421(a)(8); the defendant took advantage of a position of trust or confidence (Cal. Rules of Court, rule 4.421(a)(11)); and there were multiple victims. (Cal. Rules of Court, rule 4.408.) The report identified a single mitigating circumstance—the defendants prior record did not involve significant criminal conduct within the meaning of California Rules of Court, rule 4.423(b)(1). (People v. French, supra, 43 Cal.4th at p. 43.) Third, at the sentencing hearing, the defendants wife testified on his behalf and his friends submitted letters. A victims mother made a statement describing the impact of defendants conduct on her son. The prosecutor asked that the 18 year term be imposed based on the circumstances of the offenses including what had been described by the victims mother. (People v. French, supra, 43 Cal.4th at p. 43.)
The trial court imposed the eight year upper term on count 1 and consecutive sentences. The sole ground for imposing the upper term was defendant "`took advantage of a position of trust and confidence" to commit the offenses within the meaning of California Rules of Court, rule 4.421(a)(11) (People v. French, supra, 43 Cal.4th at p. 43.) Confronted with the foregoing record, our Supreme Court held that failure to afford the defendant a jury trial on the sole aggravating circumstance relied upon by the trial court was not harmless beyond a reasonable doubt. Our Supreme Court explained: "The aggravating circumstance that defendant took advantage of a position of trust could have been established by evidence that defendant committed these offenses when taking care of victim . . . at his daughters daycare business. The record, however, contains no evidence of the type that would have been admissible had the issue been tried to a jury. Because there was no preliminary hearing, the record does not reflect how witnesses might have testified had there been a trial. The probation report recited the facts of the offenses based upon multiple hearsay: it contained information obtained from the police reports, which indicated that the mother of victim . . . told the authorities that her child was under the supervision of an at-home daycare center operated by defendants daughter, Lisa, and that the offenses occurred when defendant was helping to care for the children. [The victims] mother spoke at the sentencing hearing concerning the impact of the molestation upon her son and stated her view that he now was being punished `for trusting a person that was supposed to help take care of him, but she gave no specific facts regarding defendants role. Furthermore, she did not testify under oath and was not subject to cross-examination. On the record before us, we cannot conclude that the Sixth Amendment error was harmless beyond a reasonable doubt." (People v. French, supra, 43 Cal.4th at p. 54.)
This is an highly unusual case. Unlike French, here there was: a preliminary hearing which identifies admissible evidence concerning defendants callousness; a probation officers report identifying admissible evidence of defendants callousness; a probation and sentence proceeding where defendant had the motive and opportunity to present evidence on the aggravating and mitigating circumstances of the offense; and a probation and sentencing hearing where in fact defendant made a 131-page showing as to what was the appropriate sentence. At pages 8 and 9 of defendants report, the recitation of the facts does not contradict those adduced at the preliminary hearing and in the probation report. Nothing in defendants 131-page sentencing memorandum disputes what the trial court found based on what was admissible evidence including defendants admissions: he drove with a blood alcohol level in excess of twice the legal limit; he drove while unlicensed; he drove while the car was uninsured; he drove through an intersection against a red light; he then drove into a second intersection when he knew the light was red; and he drove at such a high rate of speed he was described by a witness as "flying" into the intersection. As to the first aggravating factor, the failure to submit the issue to the jury was harmless beyond a reasonable doubt.
As to the second aggravating factor, victim vulnerability, there is no dispute that Ms. Ochoa and Ms. Garcia reasonably expected they could enter the intersection without having their Kia Spectra rammed by a highly intoxicated speeder who drove through two successive intersections against red lights. Thus, the failure to submit the aggravating factors to the jury was harmless beyond a reasonable doubt. This is a horrific case—any error was harmless. We need not address the issue of whether defendant is estopped to challenge his sentence because of his waiver of his right to appeal. (People v. Aparicio (1999) 74 Cal.App.4th 286, 292; see People v. Nguyen (1993) 13 Cal.App.4th 114, 124.)
C. Enhancement
Defendant argues the trial court violated Penal Code section 654, subdivision (a) by imposing the one-year multiple victim enhancement pursuant to section 23558. First, defendant is estopped to raise his multiple punishment contention. He agreed when he pled nolo contendere and admitted the truth of the enhancement allegations he could receive a sentence of up to 13 years in prison. No multiple punishment contention was raised when defendant entered his nolo contendere pleas. Thus, he has forfeited any Penal Code section 654, subdivision (a) contention. (Cal. Rules of Court, rule 4.412(b); People v. Valenzuela (1993) 14 Cal.App.4th 837, 841.)
Second, section 23558, as applied to the two victims who died of their injuries, is not subject to Penal Code section 654, subdivision (a). Defendant argues that Ms. Garcia is named as the section 23558 multiple victim allegation in count 1 of amended information; the count in which Ms. Ochoa is alleged to be the gross vehicular manslaughter victim. In count 2, Ms. Ochoa is named section 23558 multiple victim allegation; the count which charges defendant with killing Ms. Garcia. Out of this, defendant argues the imposition of the additional section 23558 one-year term violates Penal Code section 654, subdivision (a). Section 23558 expressly requires that an additional one-year enhancement be imposed "for each additional injured victim" (see fn. 2, supra) which in this case the amended information alleged to be Ms. Garcia and Ms. Ochoa. By its very terms, section 23558 requires the imposition of the additional one-year term. The Legislature could not be clearer—when there was more than one victim, the potential term for gross vehicular manslaughter, as an example, increases from 10 to 11 years. Moreover, section 23558 is a more specific statute than section 654, subdivision (a). Thus, the section 23558 enhancement is not subject the general limitation on multiple punishments. (People v. Chaffer (2003) 111 Cal.App.4th 1037, 1045; see People v. Superior Court (Jimenez) (2002) 28 Cal.4th 798, 808.) For these reasons, section 23558 is not subject to the multiple sentencing prohibition in Penal Code section 654, subdivisions (a).
There is nothing in the dictum in People v. McFarland (1989) 47 Cal.3d 798, 805, footnote 8 relied upon by defendant which changes matters in terms of the Penal Code section 654, subdivision (a) issue. The present issue was not before our Supreme Court in McFarland and thus the dictum in footnote 8 in that opinion is not controlling. (People v. Scheid (1997) 16 Cal.4th 1, 17; Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2.) Moreover, in this case, the victim of the vehicular manslaughter charged in count 1, Ms. Ochoa, was different from the person named in the section 23558 enhancement, Ms. Garcia. The same is true in all respects in count 2. McFarland does not address the issue raised by defendant.
D. Consecutive Sentences
Defendant argues his consecutive sentences must be reversed because he did not receive a jury trial on the issue and the trial court relied on an improper factor, there were two victims, in making its sentence choice. First, there is no merit to defendants due process contention. (People v. Black (2007) 41 Cal.4th 799, 820-823; see People v. Flores (2007) 157 Cal.App.4th 216, 223.) Second, defendant has forfeited his state law claim based on a violation of the sentencing rules. (People v. Scott (1994) 9 Cal.4th 331, 352-353; People v. deSoto (1997) 54 Cal.App.4th 1, 8-9.) At the probation and sentence hearing, defense counsel stated he thought the trial court could not impose the section 23558 enhancement. But no specific objection was interposed on the ground that consecutive sentences could not lawfully be imposed. Nor did defense counsel interpose any objection that the trial court improperly relied on any factor in imposing consecutive sentences. Third, no error occurred. Defendant asserts that when the trial court stated it was relying on multiple victims to impose consecutive sentences, the reference was to Ms. Ochoa and Ms. Garcia. Defendant reasons that since a section 23558 multiple victim enhancement was imposed, the fact both Ms. Ochoa and Ms. Garcia were killed cannot be used as a basis for consecutive sentences. (Cal. Rules of Court, rule 4.425(b); People v. Flores (1981) 115 Cal.App.3d 67, 79.) However, Erika, who was in Kia Spectra, was injured as a result of defendants driving under the influence of alcohol.
VI. DISPOSITION
The judgment is affirmed.
I concur:
KRIEGLER, J.