Opinion
F075672
05-01-2018
THE PEOPLE, Plaintiff and Respondent, v. BRITTANY LEANN PEREZ, Defendant and Appellant.
Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15CM0781)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kings County. Michael J. Reinhart, Judge. Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Detjen, J. and Meehan, J.
-ooOoo-
Appellant Brittany Leann Perez stands convicted of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)/count 1), driving under the influence and causing bodily injury (Veh. Code, § 23153, subd. (a)/count 2), and failure of a driver of a vehicle involved in an accident to stop at the scene of an accident (§ 20001, subd. (a)/count 4). It was also found true appellant fled the scene after committing a violation of Penal Code section 191.5 within the meaning of section 20001, subdivision (c).
All future statutory references are to the Vehicle Code unless otherwise noted. --------
Appellant appealed her conviction and appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, asking this court to review the record to determine whether there are any arguable issues on appeal. We sent a letter to appellant advising her of her right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from appellant. Finding no arguable error that would result in a disposition more favorable to appellant, we affirm the judgment.
STATEMENT OF THE CASE AND FACTS
According to the probation report, on October 26, 2014, appellant was driving a vehicle while under the influence of alcohol and at a high rate of speed. Victims Patsy Jo Perez (Patsy Jo), appellant's mother, and Pedro Tafolla, Patsy's fiancé, were passengers in the vehicle. Appellant lost control of the vehicle and the vehicle started rolling over a cotton field. Patsy Jo was ejected from the vehicle. Following the accident, appellant attempted to flee the scene by taking the truck of a witness at the scene. Unable to start the truck, she fled on foot. She was found in the backyard of a nearby home on her cell phone hiding behind some eucalyptus trees. Patsy Jo died as a result of the crash and Tafolla suffered injuries.
PROCEDURAL SUMMARY
The district attorney filed a complaint on February 27, 2015, charging appellant as follows:
Count 1, gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a));
Count 2, driving under the influence and causing bodily injury (§ 23153, subd. (a));
Count 3, driving under the influence and causing bodily injury with a blood-alcohol level of greater than 0.08 percent (§ 23153, subd. (b));
Count 4, failure of a driver of a vehicle involved in an accident to stop at the scene of an accident (§ 20001, subd. (a)); and
Count 5, attempted taking of a vehicle (Pen. Code, § 664; § 10851, subd. (a)).
As to counts 1 through 3, it was alleged that appellant proximately caused injury or death to more than one person (§ 23558). As to counts 2 and 3, it was alleged appellant caused great bodily injury or death in the commission of the offenses (Pen. Code, § 12022.7, subd. (a)) and had a blood alcohol level exceeding 0.15 percent (§ 23578). As to count 4, it was alleged appellant fled the scene (§ 20001, subd. (c)).
On September 23, 2016, appellant waived her right to a preliminary hearing and her right to trial and pleaded no contest to counts 1, 2 and 4. Appellant further admitted the enhancement attached to count 4 (§ 20001, subd. (c)). Counts 3 and 5, and the remaining allegations, were dismissed.
On December 16, 2016, the trial court denied probation and sentenced appellant as follows: the low term of four years on count 1, plus a consecutive eight months (one-third the midterm) on count 2, a consecutive one year (one-third the midterm) on count 4, and five years for the enhancement attached to count 4, for a total term of 10 years eight months. The court ordered appellant to pay a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)), a $300 suspended probation fine (Pen. Code, § 1202.45), a $40 court operations assessment (Pen. Code, § 1465.8) and a $30 conviction assessment (Gov. Code, § 70373).
Appellant filed a notice of appeal from sentencing in the Kings County Superior Court on February 14, 2017, in case No. F075150.
On January 23, 2017, the trial court received a letter from the Department of Corrections and Rehabilitation (CDCR), noting that the court had imposed a full five-year term on the enhancement attached to count 4, and advising the court that pursuant to Penal Code section 1170.1, subdivision (a), the term of an enhancement attached to a subordinate term must be one-third of the term selected. The letter stated that because the CDCR had identified a potentially illegal sentence, the trial court was entitled to reconsider all sentencing choices. (People v. Hill (1986) 185 Cal.App.3d 831, 834.)
On February 14, 2017, the trial court held a hearing and recalled the sentence. The court set a hearing for resentencing for March 27, 2017.
On March 27, 2017, the district attorney filed a first amended complaint. The first amended complaint alleged a violation of section 20001, subdivision (c) enhancement as to count 1, in addition to counts 2 through 4. On that same date, the trial court held a hearing on resentencing. The parties stipulated that appellant's previously entered pleas would be maintained and applicable to the first amended complaint. The parties further stipulated that the sentence on count 4 would be stayed pursuant to Penal Code section 654, for a total term of nine years eight months.
Appellant filed a timely notice of appeal from sentencing on May 22, 2017, in case No. F075672.
Following an independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.