Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCS228725, Alvin E. Green, Jr., Judge.
HALLER, J.
Ekaete Daniel Udoh entered a negotiated guilty plea to gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)) (count1); driving under the influence of alcohol and causing bodily injury (Veh. Code, § 23153, subd. (a)) with personal infliction of great bodily injury (§ 12022.7, subd. (a)) (count 2); and driving with a blood alcohol of.08 percent or more and causing bodily injury (Veh. Code, § 23153, subd. (b)) with personal infliction of great bodily injury (§ 12022.7, subd. (a)) (count 3). The plea bargain provided for a six-year "lid." The court sentenced Udoh to five years in prison: the two-year middle term on count 2 plus three years for the personal infliction of great bodily injury enhancement. The court stayed execution of a six-year middle term sentence on count 1, a two-year middle term sentence on count 3 and a three-year term for the enhancement on count 3 (§ 654). Udoh appeals.
Further statutory references are to the Penal Code unless otherwise specified.
Udoh contends the convictions on counts 2 and 3 must be reversed as lesser included offenses of count 1 and his sentence on count 1 cannot exceed four years. The People concede the lesser included offense analysis, but contend the claim is waived as a result of the plea bargain. Udoh additionally argues the case must be remanded for resentencing because the probation officer, the prosecutor and the court erroneously believed that Udoh was presumptively ineligible for probation.
We reject both of Udoh's sentencing contentions and affirm.
I
FACTUAL BACKGROUND
Around 2:00 a.m. on April 12, 2009, Udoh drove his BMW on a freeway at speeds between 76 and 83 miles per hour. He veered off the road and drove up an embankment. The BMW traveled back down the hill, rolled at least twice and landed on the freeway. Udoh's passenger, his girlfriend Dusha Flowers, was ejected as the BMW rolled. She suffered severe head injury and died immediately. According to the probation officer's report, blood samples taken from Udoh at 5:25 a.m. revealed a blood alcohol content of 0.13 percent.
Aside from the statement that Flowers was Udoh's girlfriend and the statement regarding Udoh's blood alcohol content, this factual background is derived from the preliminary hearing transcript which served as the factual basis for the plea.
II
DISCUSSION
A. Lesser Included Offenses
Udoh correctly asserts that counts 2 and 3 are lesser included offenses of count 1. Driving under the influence of alcohol and causing bodily injury (Veh. Code, § 23153, subd. (a)) (count 2) and driving with a blood alcohol of.08 percent or more and causing bodily injury (Veh. Code, § 23153, subd. (b)) (count 3) are necessarily lesser included offenses of gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)) (count 1). (See People v. Miranda (1994) 21 Cal.App.4th 1464, 1466-1468 [Veh. Code, § 23153, subd. (a) is a necessarily lesser included offense of § 191.5, subd. (a)]; People v. Binkerd (2007) 155 Cal.App.4th 1143, 1145-1150 [Veh. Code, § 23153, subd. (a) is a necessarily lesser included offense of former § 192, subd. (c)(3), now § 191.5, subd. (b)].) Although People v. Miranda, supra, at page 1464 and People v. Binkerd, supra, at page 1143 concern only subdivision (a) of Vehicle Code section 23153, and not subdivision (b), the reasoning in those cases applies equally to the latter subdivision. (People v. Miranda, supra, at pp. 1467-1468; People v. Binkerd, supra, at pp. 1147-1150.) However, applying People v. Hester (2000) 22 Cal.4th 290and In re Giovani M. (2000) 81 Cal.App.4th 1061, we reject Udoh's assertion that his convictions on counts 2 and 3 must be reversed and the matter remanded for a sentence not to exceed four years.
In Hester the defendant pleaded no contest to five substantive counts and a personal use allegation in return for a stipulated four-year sentence. (People v. Hester, supra, 22 Cal.4th at p. 293.) The court sentenced him to a stipulated four-year prison term with concurrent three-year terms for two other felonies and concurrent jail terms for misdemeanor counts. On appeal, Hester argued the sentence was unauthorized, contending that the sentencing court should have stayed a concurrent three-year term pursuant to section 654, which "precludes multiple punishments for a single act or indivisible course of conduct." (People v. Hester, supra, at p. 294.)
The Hester court rejected the claim, concluding that although a defendant may challenge an unauthorized sentence on appeal even if he failed to object below, that principle is inapplicable where the defendant pleaded guilty in return for a specified sentence. The court explained that "appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction." It reasoned "that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process. [Citations.] While failure to object is not an implicit waiver of section 654 rights, acceptance of the plea bargain here was. 'When a defendant maintains that the trial court's sentence violates rules which would have required the imposition of a more lenient sentence, yet the defendant avoided a potentially harsher sentence by entering into the plea bargain, it may be implied that the defendant waived any rights under such rules by choosing to accept the plea bargain.' [Citation.]" (People v. Hester, supra, 22 Cal.4th at p. 295.)
The court rejected the defendant's contention that California Rules of Court, former rule 412(b) (now rule 4.412(b)) conflicted with section 654. (People v. Hester, supra, 22 Cal.4th at pp. 293, 295.) The rule provides: "By agreeing to a specified prison term personally and by counsel, a defendant who is sentenced to that term or a shorter one abandons any claim that a component of the sentence violates section 654's prohibition of double punishment, unless that claim is asserted at the time the agreement is recited on the record." (Cal. Rules of Court, rule 4.412(b).)
In In re Giovani M., supra, 81 Cal.App.4th at p. 1061, the reviewing court expanded the Hester court's rationale to a claimed sentencing error that involved a maximum term and lesser included offenses, rather than the stipulated term and section 654 issue considered in Hester. There, the minor entered a negotiated admission to two counts of a delinquency petition in return for the dismissal of other counts and a maximum term of five years two months. This maximum term (i.e., the sentencing "lid") was substantially less than the potential maximum term of more than 14 years, and the plea bargain included the dismissal of a potential strike offense. (In re Giovani M., supra, at pp. 1063 & fn. 1, 1065.)
On appeal, the minor contended the court erred by accepting his admission because one of the admitted counts was a lesser included offense of the remaining admitted count. (In re Giovani M., supra, 81 Cal.App.4th at pp. 1064-1065.) The minor argued that his admission to the lesser included offense should be set aside and the matter remanded for a new dispositional hearing. (Id. at p. 1065.) Giovani M. rejected this contention, noting "that when the minor chose to accept the bargain... in order to avoid a longer maximum period of confinement, the minor waived any right to claim that the court was precluded from sustaining the petition on [the necessarily included offense] even if it could be viewed as an act in excess of jurisdiction.... This rule is necessary because a person who has received the benefit of their bargain should not be allowed to 'trifle with the courts' by attempting to better the bargain through the appellate process." (Id at p. 1065.)
We agree with the conclusions reached in People v. Hester, supra, 22 Cal.4th at page 290 and In re Giovani M., supra, 81 Cal.App.4th at page 1061 and the two fundamental principles underlying these cases: (1) Because a plea bargain is, in essence, a contract, both parties are entitled to enforcement of the terms of the bargain (People v. Daugherty (1981) 123 Cal.App.3d 314, 321; People v. Ames (1989) 213 Cal.App.3d 1214, 1217-1218); and (2) having received the benefit of a bargain that protects against a harsher sentence, the defendant is precluded from attempting to better the bargain on appeal.
Udoh is attempting to do precisely what Hester and Giovani rejected—improve his plea bargain on appeal. Udoh entered a guilty plea to three counts, two of which are lesser included offenses of the third. The plea bargain included a six-year lid, a term substantially lower than the maximum punishment of 10 years. In compliance with the plea bargain, Udoh received a sentence of five years. He now complains that because counts 2 and 3 are lesser included offenses of count 1, counts 2 and 3 must be reversed and at resentencing on count 1 he cannot be sentenced more severely than the five-year sentence he received. (People v. Hanson (2000) 23 Cal.4th 355, 357 ["When a defendant successfully appeals a criminal conviction, California's constitutional prohibition against double jeopardy precludes the imposition of more severe punishment on resentencing"].) Because the possible prison terms on count 1 are four, six and ten years (§ 191.5, subd. (c)(1)), Udoh concludes the only authorized sentence is the four-year lower term.
We reject Udoh's request that this court in effect change his plea bargain. Although the five-year sentence was "unauthorized" because of the law pertaining to lesser included offenses, the court did not lack fundamental jurisdiction to impose it and Udoh received the benefit of his bargain. " '[T]he law... 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.' " (People v. Beebe, supra, 216 Cal.App.3d at p. 933.)
Udoh does not suggest or request that we permit him to vacate the plea bargain. (People v. Hester, supra, 22 Cal.4th at p. 296; In re Giovani M., supra, 81 Cal.App.4th at p. 1065, fn. 3; People v. Beebe (1989) 216 Cal.App.3d 927, 935.)
B. Presumptive Ineligibility for Probation
Udoh also claims that at sentencing the trial court improperly assumed that he was ineligible for probation. The change of plea form stated that "[p]resumptive prison" was a possible consequence of Udoh's guilty plea, and the court repeated this statement at the change of plea hearing. The probation officer's report and the People's statement in aggravation presented at sentencing both stated that Udoh was presumptively ineligible for probation pursuant to section 1203, subdivision (e)(3) and asked the court to deny probation. The prosecutor repeated this statement at the hearing, and defense counsel did not address the issue.
Citing the prosecutor's arguments, the court found that Udoh was presumptively ineligible for probation. The court told Udoh, "As much as you have accumulated a life history that under any other circumstances would be acknowledged and would place you in a position of receiving probation on this case, under these circumstances, with the harm that you have caused, you are not going to receive probation.... I just don't find that it is the unusual case that warrants probation."
Section 1203, subdivision (e) states: "Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any... [¶]... [¶]... person who willfully inflicted great bodily injury... in the perpetration of the crime of which he or she has been convicted." Udoh contends the case must be remanded for resentencing because the probation officer, the prosecutor and the court erroneously believed that Udoh was presumptively ineligible for probation simply because his conduct resulted in great bodily injury, with no evidence or finding of willfulness as required by section 1203, subdivision (e)(3).
Although the parties and the court did not mention willfulness, we conclude remand is not required as it is not reasonably probable that the court would have granted probation even if it had been aware of the willfulness component of section 1203, subdivision (e)(3). (People v. Coelho (2001) 89 Cal.App.4th 861, 889-890.) On this record and taking into account the court's comments at sentencing, the court made clear it considered prison the appropriate sentence.
Six years was the maximum sentence allowed under the terms of the plea bargain. The court's tentative sentence was a six-year middle prison term on count 1, gross vehicular manslaughter while intoxicated. After hearing argument, the court chose as the principal term count 2, driving under the influence of alcohol and causing bodily injury. In explaining this change, the court noted that by virtue of the fact that count 2 is a violent felony due to the admitted great bodily injury enhancement, and count 1 was not, Udoh would serve more time in prison if sentenced on count 2.
A felony committed with personal infliction of great bodily injury is defined as a violent felony subject to a 15 percent maximum accrual of worktime credit, rather than the usual 50 percent maximum accrual of worktime credit. (§§ 667.5, subd. (c)(8), 2933.1, subd. (a); see In re Pope (2010) 50 Cal.4th 777, 779, 781.)
In imposing the prison sentence, the court acknowledged Udoh's accomplishments and the large number of letters of support filed by Udoh's attorney. However, the court found those positive factors were outweighed by numerous negative factors. Udoh and Flowers were dating and had been arguing before the collision. Udoh was in the military, which prohibited driving under the influence, and he had medical training. Flowers was a particularly vulnerable victim and Udoh violated a position of trust. Udoh's driving speed ranged from 76 to 83 miles per hour. His blood alcohol content at the time of the collision was much higher than the.13 percent measured some three hours later. Udoh showed little remorse at the time of the incident and delayed in accepting responsibility and pleading guilty.
One year elapsed between arraignment and the change of plea proceedings.
In view of the court's evaluation of the positive and negative factors impacting his sentencing choices and the court's decision to sentence on count 2 instead of count 1 to ensure a longer actual time in prison, it is evident that the court viewed this as a prison case, not one where probation should be granted.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., McINTYRE, J.