Opinion
H033522.
6-30-2009
THE PEOPLE, Plaintiff and Respondent, v. NATHANNIEL McCOWAN, Defendant and Appellant.
Not to be Published in Official Reports
On the afternoon of February 12, 2008, defendant Nathanniel McCowan was driving a Honda Accord approximately 90 miles per hour on Interstate 880. His vehicle collided with the rear of a Toyota Tundra that was traveling approximately 60 miles per hour. The impact caused the Toyota Tundra to roll over on the road and down an embankment before coming to rest on its roof. The driver and passenger in the Toyota were injured. Defendant continued driving until he was unable to negotiate a curve in the road. He rolled his vehicle onto its roof and down an embankment, whereupon he fled the scene.
As defendant was convicted by plea, the summary of facts is taken from the probation report.
That evening, defendant was located at his home and taken into custody. Initially he claimed that someone may have stolen his car, but he later admitted that he had been driving at the time of the incident. The police observed that defendant smelled of alcohol while being interviewed. Defendant denied drinking before the incident.
A one-count felony complaint was filed against defendant on February 14, 2008, followed by a first amended felony complaint on March 5, 2008. At the conclusion of the preliminary examination on June 6, 2008, defendant was held to answer on the charge of hit and run resulting in injury (Veh. Code, § 20001, subds. (a) & (b)(1)).
Defendant subsequently requested that his attorney be discharged, and on July 9, 2008, the trial court held a Marsden hearing. After hearing from defendant and his attorney, the court denied the motion.
People v. Marsden (1970) 2 Cal.3d 118.
Defendant made a second Marsden motion that was heard on August 11, 2008. The trial court denied the motion after hearing from defendant and his attorney. After the courts ruling, defendant stated that he would rather represent himself. The court set the matter for another hearing. On August 12, 2008, defendant indicated that he no longer wanted to represent himself.
On August 15, 2008, defendant was charged by information with felony hit and run resulting in injury (Veh. Code, § 20001, subds. (a) & (b)(1)). The information further alleged that defendant had three prior strikes (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and that he had served two prior prison terms (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise indicated.
Upon defendants request, the court held a trial regarding whether the allegations concerning the strikes and prison priors were true, before trying the currently charged offense. Defendant waived his right to a jury trial on the prior allegations, and the court trial was held on August 15, 2008. The court found that defendant had two prior strikes and two prison priors, but that the allegation of a third strike was not true. After the court stated its findings, defendant entered a plea of no contest to felony hit and run resulting in injury.
On October 9, 2008, defendant filed a motion requesting that the trial court reduce the offense to a misdemeanor pursuant to section 17 or dismiss at least one prior strike pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Defendant also argued that a "strike sentence" would be cruel and unusual punishment. The prosecutor filed opposition to the motion. Defendant subsequently filed a motion to withdraw his plea and to remove counsel.
On October 24, 2008, the trial court denied defendants motion to withdraw his plea and the Marsden motion. As to defendants Romero motion, the court struck one of defendants two prior strikes, explaining that defendant had successfully completed parole and suffers from "many medical conditions." With only one strike remaining, the court explained that under the circumstances, it did not believe that even the maximum sentence would constitute cruel and unusual punishment, and thus it rejected defendants argument in this regard. The court also denied defendants motion to reduce the offense to a misdemeanor. The court ultimately sentenced defendant to eight years in prison. The prison term was based on the upper term of three years, doubled under the Three Strikes law, plus one year for each of the two prison priors. The court explained that it had selected the upper term because of defendants recidivism, and it observed that defendant had seven prior felony convictions and 15 misdemeanor convictions. Defendant was ordered to pay various fines and fees, and the court made a general order of restitution. Defendant was granted a total of 384 days of custody credits.
Defendant filed a timely notice of appeal and we appointed counsel to represent him in this court. Appointed counsel has filed a brief that states the case and the facts but raises no issues. We notified defendant of his right to submit written argument in his own behalf within 30 days.
Defendant has filed a supplemental brief contending: (1) the prosecutor and the trial court withheld exculpatory and/or mitigating evidence regarding medical reports, (2) the trial court and defendants trial counsel "pressured [him] into entering a guilty plea," and (3) his trial counsel was ineffective for failing to properly investigate the case, subpoena medical reports, subpoena witnesses, and verify defendants whereabouts. Defendant requests that the judgment be vacated and that "his faulty plea bargain be withdrawn."
To the extent that defendants claims constitute an attack on the validity of his plea, defendant is precluded from challenging the validity of the plea he entered on August 15, 2008, because he has not sought and obtained a certificate of probable cause. (§ 1237.5; Cal. Rules of Court, rule 8.304(b); People v. Mendez (1999) 19 Cal.4th 1084, 1096.)
Pursuant to People v. Wende (1979) 25 Cal.3d 436, and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record. The abstract of judgment dated April 28, 2009, reflects that defendant was "convicted by" the "court" of "hit and run accident resulting in injury or death." (Capitalization omitted.) Although a court trial was held regarding the prior allegations, defendant pleaded no contest to the charge of hit and run resulting in injury. We will order the abstract amended to reflect defendants plea to the charge of hit and run resulting in injury (Veh. Code, § 20001, subds. (a) & (b)(1)). We have concluded that there is no other arguable issue on appeal.
The abstract of judgment dated April 28, 2009, is ordered amended to state that defendant was convicted by plea of Vehicle Code section 20001, subdivisions (a) and (b)(1), rather than by the court. As so modified, the judgment is affirmed. The clerk of the superior court shall modify the abstract of judgment as ordered herein and forward a copy of the modified abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR:
MIHARA, J.
DUFFY, J.