Opinion
A149204
08-10-2017
THE PEOPLE, Plaintiff and Respondent, v. GABRIEL CHASKA RAY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. Nos. SCUK-CRCR15-80416 & SCUK-CRCR15-80538)
Appellant Gabriel Chaska Ray appeals from a judgment following his no contest pleas to one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and one count of driving with a .08 or greater blood alcohol level (DUI) causing injury (Veh. Code, § 23153, subd. (b)). Appellant's counsel has raised no issue on appeal and asks this court for an independent review of the record to determine whether there are any arguable issues. (Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) Appellate counsel advised appellant of his right to file a supplementary brief to bring to this court's attention any issue he believes deserves review. (People v. Kelly (2006) 40 Cal.4th 106.) Appellant has not filed such a brief. We have reviewed the record and find no arguable issues. We modify the judgment to correct a fine error, and affirm the judgment as modified.
All undesignated section references are to the Vehicle Code.
BACKGROUND
In Mendocino County Superior Court case number SCUK-CRCR15-80538 (hereafter, case 80538), appellant was charged by information with three counts of assault with a deadly weapon, an automobile (Pen. Code, § 245, subd. (a)(1)), DUI causing injury (§ 23153, subd. (b)), and misdemeanor unlicensed driving (§ 12500, subd. (a)). As to the assault and DUI counts, the information alleged five great bodily injury enhancements (Pen. Code, § 12022.7, subd. (a)) and four multiple victim enhancements (§ 23558). According to the preliminary hearing transcript, appellant struck and injured five bicyclists while driving drunk.
In Mendocino County Superior Court case number SCUK-CRCR15-80416 (hereafter, case 80416), appellant and a co-defendant were charged by information with assault with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4)), and a criminal gang enhancement (Pen. Code, § 186.22, subd. (b)(1)). According to the preliminary hearing transcript, appellant and an accomplice assaulted two men. Appellant was carrying a knife during the assault.
In May 2016, the parties informed the court they had reached a plea agreement resolving both cases. Before appellant entered his no contest plea, it became clear that appellant's trial counsel mistakenly thought the plea agreement only required appellant to plead to one strike, not two. Appellant indicated he did not want to plead to two strikes. The trial court continued the hearing until the following day. At the continued hearing, appellant asked the court to confirm that the two strikes would not double his sentence for the instant offenses and, when the court did so, appellant proceeded with the plea.
In case 80538, appellant pled no contest to DUI causing injury, admitted two great bodily injury enhancements, and admitted one multiple victim enhancement. In case 80416, on the People's motion the information was amended to add a charge of assault with a deadly weapon, a knife (Pen. Code, § 245, subd. (a)(1)), and appellant pled no contest to that charge without admitting a factual basis for the plea. The remaining counts and allegations in both cases were dismissed.
" '[A] plea of nolo contendere, not admitting a factual basis for the plea,' . . . also referred to as an Alford plea, based on North Carolina. v. Alford (1970) 400 U.S. 25, 37-38, allows a defendant to plead guilty in order to take advantage of a plea bargain while still asserting his or her innocence." (People v. Rauen (2011) 201 Cal.App.4th 421, 424, fn. omitted.)
In accordance with the terms of the plea agreement, the trial court sentenced appellant to an aggregate term of 11 years in prison, consisting of a three-year term on the DUI charge, two consecutive three-year terms on the great bodily injury enhancements, and one consecutive one-year term on the multiple victim enhancement in case 80538, and a one-year term (one-third of the midterm) on the assault charge in case 80416. The court awarded credits and imposed fines and fees.
Appellant filed a notice of appeal in both cases and did not seek a certificate of probable cause.
DISCUSSION
Because appellant pled no contest to the offenses and did not file a motion to suppress below, the scope of the reviewable issues is restricted to matters based on constitutional, jurisdictional, or other grounds going to the legality of the proceedings resulting in the plea, and post-plea sentencing issues. (People v. DeVaughan (1977) 18 Cal.3d 889, 895-896; People v. Shelton (2006) 37 Cal.4th 759, 766.)
Appellant was adequately represented by legal counsel throughout the proceedings. Appellant completed a plea form that described the constitutional rights he was waiving by entering a no contest plea, the trial court confirmed appellant understood those rights, and the court found defendant freely and intelligently waived those rights. Defense counsel stipulated there was a factual basis for the plea in case 80538. Although appellant did not stipulate to a factual basis in case 80416, a factual basis appears in the preliminary hearing transcript. Appellant was properly advised of the consequences of his plea by the written plea form and the trial court.
The sentence was consistent with the plea agreement. The sentencing credits and fees were proper. However, the trial court imposed a fine of $3,193 pursuant to section 23554. Section 23554 provides the punishment for a first violation of section 23153 shall include "a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000)." The maximum fine allowed by section 23554 is $1,000 and we shall modify the judgment accordingly.
Appellant has forfeited any argument regarding his ability to pay the probation investigation fee (§ 1203.1b) by failing to object below. (People v. Trujillo (2015) 60 Cal.4th 850, 858-859 [finding forfeiture based on failure to object in the trial court to § 1203.1b fee].)
DISPOSITION
The judgment is modified to provide the fine imposed pursuant to Vehicle Code section 23554 is $1,000. The trial court is ordered to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment that has been modified accordingly. As so modified, the judgment is affirmed.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
BRUINIERS, J.