Opinion
H044214
12-21-2018
THE PEOPLE, Plaintiff and Respondent, v. ADRIAN MONTES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1629054)
Defendant Adrian Montes ran a red light while driving under the influence of alcohol. His vehicle collided with another vehicle, seriously injuring its two occupants. Defendant pleaded guilty to two counts of driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a)) and admitted allegations that he inflicted great bodily injury on one victim (Pen. Code, § 12022.7, subd. (a)) and inflicted great bodily injury on a second victim, who become comatose due to brain injury (§ 12022.7, subd. (b)). The trial court sentenced defendant to a three-year term. On appeal, defendant seeks to have one of his convictions dismissed, noting that one incident of driving under the influence can give rise to only a single violation of Vehicle Code section 23153, regardless of the number of victims. Defendant also argues the trial court erred in failing to conduct a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) and with respect to its award of conduct credits. We shall affirm.
Further statutory references are to the Penal Code unless otherwise indicated.
I. BACKGROUND
The facts are taken from the probation report.
At approximately 11:34 p.m. on October 13, 2015, defendant ran a red light at a high rate of speed in San Jose. His vehicle hit a Volkswagen Jetta in the intersection. One of the occupants of the Volkswagen, a 13-year-old girl, sustained a severe brain injury and was comatose upon arriving at the hospital. Her father, who was driving the Volkswagen at the time of the collision, suffered several injures, including broken teeth, bruising, scrapes, burns, and cuts. Defendant also sustained serious injuries in the crash, including a broken neck. Responding officers smelled alcohol on defendant's breath but could not conduct field sobriety tests due to his injuries. Eight hours after the accident, defendant's blood alcohol content was 0.03 percent.
B. Procedural History
A complaint filed on January 14, 2016 alleged that defendant committed two counts of driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a))—one count for each victim of the October 13, 2015 collision. As to count 1, the complaint alleged that defendant inflicted great bodily injury on the victim, who become comatose due to brain injury (§ 12022.7, subd. (b)). As to count 2, the complaint alleged that defendant inflicted great bodily injury on the victim (§ 12022.7, subd. (a)).
On April 12, 2016, defendant pleaded guilty to both counts and admitted the associated great bodily injury allegations in exchange for an indicated maximum sentence of six years four months. Defendant acknowledged in his plea form that he otherwise faced a maximum sentence of nine years eight months. Prior to accepting defendant's plea, the court noted that the plea form erroneously indicated that only count 1 was a strike. Defense counsel acknowledged that both counts were strikes and the trial court paused the proceedings to allow defense counsel to consult with defendant. The trial court then explained that defendant was pleading to two strike offenses within the meaning of the Three Strikes law, meaning "in a future case [his] sentence could be doubled or even extended to life in prison." Defendant acknowledged that he understood those consequences of his plea.
Defendant later moved to withdraw his plea, arguing that he was not properly informed that the counts were strikes, he was not advised as to the maximum sentence, and there was insufficient evidence that he was at fault for the accident. The trial court denied that motion on September 12, 2016.
The trial court sentenced defendant to three years in prison on October 5, 2016. The court imposed the upper term of three years on each count, to run concurrently, and struck the punishment associated with the great bodily injury enhancements. The court awarded defendant a total of 261 days of presentence credits, consisting of 227 days of actual custody and 34 days of credits under section 2933.1.
Defendant timely appealed. He also sought and obtained a certificate of probable cause based on his claim that he did not understand the strike consequences of his plea agreement.
II. DISCUSSION
A. Defendant is Estopped From Challenging His Second Conviction
More than three decades ago, our Supreme Court held that "one instance of driving under the influence which causes injury to several persons is chargeable as only one count of driving under the influence." (Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 353, superseded by statute on other grounds as stated in People v. Elder (2017) 11 Cal.App.5th. 123, 139.) Based on that rule of law, defendant seeks dismissal of one of his two driving under the influence convictions, both of which were based on a single incident. The Attorney General argues that defendant, having pleaded guilty to two counts and having reaped the benefits of his plea agreement, is estopped from asserting error now. We agree.
Where a trial court with fundamental jurisdiction acts in excess of its statutory jurisdiction, a defendant who sought or consented to that act in excess of jurisdiction may be estopped to complain of it later. (People v. Ellis (1987) 195 Cal.App.3d 334, 343 (Ellis); People v. Beebe (1989) 216 Cal.App.3d 927, 932-933.) "Whether a defendant who has sought action in excess of the trial court's jurisdiction is estopped to complain of that action depends on various considerations of public policy." (People v. Soriano (1992) 4 Cal.App.4th 781, 785.) Competing public policies are at play when a defendant has admitted an offense or enhancement that is unauthorized by statute. On the one hand, "strong public policy countenances against allowing defendants to plead guilty to crimes they did not commit." (Ellis, supra, at p. 345.) On the other hand, "the law also has a strong interest in seeing to it that defendants do not unfairly manipulate the system to obtain punishment far less than that called for by the statutes applicable to their conduct." (Ibid.) "The facts are not in dispute and we review the application of the estoppel doctrine de novo, as a question of law." (People v. Miller (2012) 202 Cal.App.4th 1450, 1456.)
In Ellis, the defendant pleaded guilty to two counts of a 13-count information and admitted that her prior federal bank robbery conviction was a serious felony within the meaning of former section 667 (now section 667, subdivision (a)). (Ellis, supra, 195 Cal.App.3d at p. 337.) In exchange, the prosecutor agreed to dismiss the remaining 11 counts. (Ibid.) The plea agreement further provided that the defendant would be sentenced to no more than nine years in prison. (Ibid.) On appeal, the defendant contended, and our colleagues in the Third Appellate District agreed, that the prior conviction for federal bank robbery did not qualify as a serious felony as a matter of law. But the court concluded that the defendant was estopped from challenging her sentence, which included a five-year enhancement for the admitted prior serious felony. The court reasoned that, while not a "serious felony" under California law, "the federal felony offense involve[d] serious, dangerous conduct." (Id. at p. 346.) And, in the court's view, the defendant had a plausible tactical reason for improperly admitting the serious felony—obtaining an agreement reducing her maximum exposure from 12 years to nine years with the possibility of further reducing her sentence on appeal by challenging the five-year prior serious felony enhancement, thereby " ' "having it both ways." ' " (Id. at p. 347.)
Here too, defendant had a plausible tactical reason for pleading to two counts when his conduct supported only a single conviction. Had defendant been charged with only a single count of driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a)) with two great bodily injury allegations (§ 12022.7, subds. (a) & (b)), his maximum exposure would have been 11 years. That is one year four months higher than his maximum sentence of nine years eight months on both counts with the enhancements. Defendant may have opted to plead to two strikes to obtain an agreement capping his exposure at six years four months with the possibility of eliminating one of the strikes on appeal, thereby " ' "having it both ways." ' " (Ellis, supra, 195 Cal.App.3d at p. 347.) That defendant does not seek to withdraw his plea, but rather to have one conviction dismissed, further supports the inference that he wants it both ways. Accordingly, we conclude that defendant is estopped from challenging his second conviction.
In that scenario, defendant could have been sentenced to the upper term of three years for violating Vehicle Code section 23153, plus a consecutive three years for the section 12022.7, subdivision (a) enhancement, plus a consecutive five years for the section 12022.7, subdivision (b) enhancement. (See People v. Arndt (1999) 76 Cal.App.4th 387, 396-397 [rejecting argument that § 654 prohibits imposing more than one enhancement under § 12022.7, in a case involving multiple victims].)
The maximum sentence of nine years eight months is calculated as follows: the upper term of three years on count 1, plus a consecutive five years for the section 12022.7, subdivision (b) enhancement on count 1, plus eight months (one-third of the middle term of two years) on count 2, plus one year (one-third of the three-year enhancement) for the section 12022.7, subdivision (a) enhancement on count 2. (See People v. Felix (2000) 22 Cal.4th 651, 654-655 [describing the calculation of sentences under the Determinate Sentencing Act].)
B. The Trial Court Did Not Err in Failing to Hold a Marsden Hearing
Defendant contends that the trial court erred in failing to conduct a Marsden hearing. That claim lacks merit.
1. Factual Background
Defendant explained the bases for his motion to withdraw his plea in open court on August 23, 2016. He said that trial counsel "didn't explain" that he would be pleading to two strikes and "didn't explain . . . the enhancements of the GBI," which defendant clarified meant he did not understand the maximum punishment he was facing. Defendant now argues that the trial court should have understood from his complaints that he was seeking to withdraw his plea on ineffective assistance of counsel grounds and was requesting new counsel.
2. Legal Principles
"[C]riminal defendants are entitled under the Constitution to the assistance of court-appointed counsel if they are unable to employ private counsel." (Marsden, supra, 2 Cal.3d at p. 123.) In Marsden, our Supreme Court "explained that 'the decision whether to permit a defendant to discharge his appointed counsel and substitute another attorney during the trial is within the discretion of the trial court,' that 'a defendant has no absolute right to more than one appointed attorney,' and that a trial court is not bound to accede to a request for substitute counsel unless the defendant makes a ' " 'sufficient showing . . . that the right to the assistance of counsel would be substantially impaired' " ' if the original attorney continued to represent the defendant." (People v. Sanchez (2011) 53 Cal.4th 80, 87 (Sanchez) [quoting Marsden, at p. 123].)
In Sanchez, our Supreme Court held that "when a criminal defendant indicates after conviction a desire to withdraw his plea on the ground that his current counsel provided ineffective assistance," "a trial court is obligated to conduct a Marsden hearing . . . only when there is 'at least some clear indication by defendant,' either personally or through his current counsel, that defendant 'wants a substitute attorney.' " (Sanchez, supra, 53 Cal.4th at pp. 89-90.) In so holding, the Sanchez court expressly disapproved of prior appellate court decisions it concluded had "incorrectly implied that a Marsden motion can be triggered with something less than a clear indication by a defendant, either personally or through current counsel, that the defendant 'wants a substitute attorney.' " (Id. at p. 90, fn. 3.) Among those disapproved decisions was People v. Eastman (2007) 146 Cal.App.4th 688. In that case, the Fifth Appellate District held that the trial court erred by failing to hold a Marsden hearing when the defendant expressed a desire to withdraw his plea and provided the court with a letter alleging incompetence and misconduct by his appointed counsel. Thus, after Sanchez, seeking to withdraw a plea on ineffective assistance of counsel grounds alone is insufficient to trigger a Marsden hearing.
3. Analysis
Here, defendant merely sought to withdraw his plea and complained that counsel had failed to advise him in connection with the plea. Defendant's conduct is analogous to that of the defendant in Eastman, which the Sanchez court deemed "less than a clear indication . . . that the defendant 'want[ed] a substitute attorney.' " (Sanchez, supra, 53 Cal.4th at p. 90, fn. 3.) Thus, defendant's statements plainly were insufficient to trigger a Marsden hearing.
C. The Trial Court Did Not Err as to Defendant's Conduct Credits
Finally, defendant contends the trial court erred by awarding him presentence conduct credits under section 2933.1 as opposed to under section 4019. We find no error.
Generally, a person confined prior to sentencing may earn two days of conduct credit for every two days served under section 4019. (People v. McKenzie (2018) 25 Cal.App.5th 1207, 1212.) But section 2933.1, subdivision (c) sets forth an exception to that rule for those convicted of a violent felony within the meaning of section 667.5, subdivision (c). "[T]he maximum credit that [a person convicted of a violent felony] may . . . earn[] against a period of confinement in . . . a county jail . . . following arrest and prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement . . . ." (§ 2933.1, subd. (c).) "Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7" is a violent felony within the meaning of section 667.5, subdivision (c)(8).
Here, defendant pleaded guilty to two counts of driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a)) and admitted, as to each count, an allegation that he inflicted great bodily injury on the victim under section 12022.7. Nevertheless, defendant says he was not "convicted" of violent felonies for purposes of section 2933.1 because the trial court struck the punishment associated with the great bodily injury enhancements. We are not persuaded.
Our Supreme Court considered and rejected a similar argument in In re Pope (2010) 50 Cal.4th 777 (Pope). There, the "[p]etitioner contend[ed] that because execution of sentence for his qualifying offenses was stayed pursuant to section 654 pending his completion of the longer term for the nonqualifying offense, he [was] not a person who ha[d] been convicted of a qualifying offense" for purposes of section 2933.1. (Pope, supra, at p. 782.) The court disagreed, reasoning that "[s]ection 654 prohibits multiple punishment, but it does not operate to bar multiple conviction. [Citation.] Although execution of the sentence for petitioner's credit-limiting offenses has been stayed under section 654, he still 'is convicted' of those offenses both as a formal matter, in the sense that the convictions have not been dismissed or stayed [citations], and as a practical matter, in the sense that, if the convictions for the nonqualifying offenses were reversed on appeal or vacated in a habeas corpus proceeding, he would be returned to the sentencing court for execution of the sentence imposed for the qualifying offenses—those for which execution of sentence previously had been stayed." (Id. at p. 784.)
Similarly, here, although the punishment associated with the great bodily injury enhancements was stricken, defendant's admissions that the great bodily injury allegations are true remain, such that he still "is convicted" of violent felonies. This and other courts previously have reached the same conclusion. (See In re Borlik (2011) 194 Cal.App.4th 30, 39 [holding the section 2933.1 credit-earning limitation applied "even though the court struck the punishment for the great bodily injury enhancement and the sentence on the qualifying offense was stayed pursuant to section 654"], fn. omitted; In re Pacheco (2007) 155 Cal.App.4th 1439, 1442 [section 2933.1 custody credit limitation held to apply where trial court struck the punishment associated with a great bodily injury enhancement, but "not the enhancement in its entirety"].)
Defendant argues that the application of section 2933.1 increases his time in prison, such that its application is inconsistent with the trial court's decision to strike the punishment associated with the great bodily injury enhancements. We disagree. The limitation on custody credits does not increase defendant's punishment, it limits the amount by which his punishment may be reduced. (People v. Lara (2012) 54 Cal.4th 896, 906 ["The very purpose of conduct credits is to foster constructive behavior in prison by reducing punishment"].) Weaver v. Graham (1981) 450 U.S. 24 (Weaver) and Lynce v. Mathis (1997) 519 U.S. 433 (Lynce), on which defendant relies, are not contrary. In those cases, the United States Supreme Court considered legislation reducing or eliminating credits inmates could earn against their sentences. The Court concluded that the retroactive application of such legislation to defendants who already had been sentenced violated the Ex Post Facto Clause of the Federal Constitution by lengthening the period that the defendant was required to spend in prison. (Lynce, supra, at p. 435 ["statute canceling [early release] credits for certain classes of offenders after they had been awarded—indeed, after they had resulted in the prisoners' release from custody—violates the Ex Post Facto Clause of the Federal Constitution"]; Weaver, supra, at pp. 35-36 [statute retroactively "constrict[ing] the inmate's opportunity to earn early release, and thereby mak[ing] more onerous the punishment for crimes committed before its enactment[,] . . . runs afoul of the prohibition against ex post facto laws"].) Here, section 2933.1 was operative at the time defendant pleaded guilty and was sentenced. Thus, its application to defendant does not increase his punishment.
III. DISPOSITION
The judgment of conviction is affirmed.
/s/_________
ELIA, J. WE CONCUR: /s/_________
GREENWOOD, P. J. /s/_________
GROVER, J.