Opinion
E055420
06-22-2012
THE PEOPLE, Plaintiff and Respondent, v. ANDREAS ZEPEDA LUNA, Defendant and Appellant.
Allison K. Simkin, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. INF063621)
OPINION
APPEAL from the Superior Court of Riverside County. Ronald L. Johnson, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Allison K. Simkin, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
On May 7, 2009, an information charged defendant and appellant Andreas Zepeda Luna with: (1) murder under Penal Code section 187, subdivision (a) (counts 1, 2, 3, 4); (2) willfully and unlawfully killing another without malice but with gross negligence while driving under the influence of alcohol under Penal Code section 191.5, subdivision (a) (counts 5, 6, 7, 8); (3) unlawfully driving a vehicle while under the influence of alcohol under Vehicle Code section 23153, subdivision (a), causing death and bodily injury, with the additional enhancement that defendant personally inflicted great bodily injury upon the victim under Penal Code sections 12022.7, subdivision (a) and 1192.7, subdivision (c)(8), as well as that defendant had a blood alcohol concentration of 0.15 or more under Vehicle Code section 23578 (counts 9, 11, 13, 15, 17); and (4) unlawfully driving a vehicle while having more than 0.08 percent blood alcohol level under Vehicle Code section 23153, subdivision (b), and in doing so inflicted great bodily injury under Penal Code sections 12022.7, subdivision (a), and 1192.7, subdivision (c)(8), as well as that defendant had a blood alcohol concentration of 0.15 or more under Vehicle Code section 23578 (counts 10, 12, 14, 16, 18).
The enhancements under Penal Code section 12022.7, involving the younger deceased victim, invoked subdivision (d) instead of subdivision (a), which carried a greater sentence because the victim was under the age of 4 (counts 11 & 12).
Defendant agreed to enter into a plea agreement admitting to one principal count and several enhancements. The People filed a consolidated amended information to reflect the conditional plea agreement. Defendant pled guilty to the consolidated amended information as follows: (1) count 1—willfully and unlawfully killing another without malice but with gross negligence while driving under the influence of alcohol under Penal Code section 191.5, subdivision (a), as to victim Oralia Casarez; (2) an enhancement under Penal Code sections 12022.7, subdivision (d), and 1192.7, subdivision (c)(8), for the younger victim; and (3) three enhancements under Penal Code sections 12022.7, subdivision (a), and 1192.7, subdivision (c)(8), for each of the three remaining victims. The remaining counts were dismissed pursuant to the plea agreement.
The trial court sentenced defendant to 25 years, pursuant to the terms of the plea agreement, as follows: the upper term of 10 years on the principal count; six years for the enhancement regarding the youngest victim, who was under five years of age; and three years for each of the remaining three enhancements. All enhancements were to run consecutive to the principal count and to one another. The court awarded 1,269 days credit for time served, 1,104 actual days, in addition to 165 days under section 2933.
The trial court awarded restitution of $7,701.56 to the victim, as well as the following fees and fines: state restitution fine of $200 under Penal Code section 1202.4, subdivision (b); probation revocation fine of $200 under Penal Code section 1202.45, subdivision (b), stayed pending successful completion of probation; $40 court security fee under Penal Code section 1465.8; and $30 conviction assessment fee under Government Code section 70373.
Defendant filed a timely notice of appeal, and the trial court granted defendant's request for a certificate of probable cause.
STATEMENT OF FACTS
Defendant was involved in a car accident at approximately 1:00 a.m. on October 26, 2008, in Riverside County. Defendant, who was driving at a high rate of speed that was above the legal speed limit, crashed into another vehicle when he failed to stop for a traffic signal. A blood draw taken from defendant within three hours of the accident indicated that defendant's blood alcohol level was 0.18 percent. Defendant admitted that he was driving under the influence of alcohol when his vehicle crashed.
The impact of the crash caused the death of the driver of the other vehicle, Oralia Casarez, as well as her three children in the back seat, 10-month old Guadalupe Feliz, Jesus Casarez, and Jose Felix. Defendant admitted that his actions caused the death of the mother and children, as well as great bodily injury to all three children. Defendant further admitted to seriously injuring the front seat passenger of the other vehicle, Jose Felix Baraza, who survived the accident.
ANALYSIS
After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, and he has done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error.
In his two-page handwritten supplemental brief, defendant essentially argues that the verdict is not supported by substantial evidence because (1) he did not consume alcohol prior to the accident; (2) the blood sample taken from him was inaccurate or got lost; (3) he did not know what he was saying at the time he was interviewed because of his injuries and because he had not slept or eaten for a long period of time. Defendant also appears to assert that the officer taking his report "could of [sic] easily altered the report"; and (4) the translations of witness statements from Spanish to English were inaccurate. Defendant, however, waived such evidentiary assertions by pleading guilty. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.) As provided above, at the hearing wherein defendant pled guilty, defendant admitted to driving under the influence of an alcoholic beverage, and "that as a result of a blood test being taken within three hours of the driving," his blood alcohol level was 0.18 percent.
We have now concluded our independent review of the record and found no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MCKINSTER
J.
We concur:
RAMIREZ
P.J.
KING
J.