P. v. Baltazar









Filed 9/27/11 P. v. Baltazar CA6




NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. JAVIER BALTAZAR, Defendant and Appellant.

H036593 (Santa Cruz County Super. Ct. No. F19696)

Defendant Javier Baltazar[1] was convicted after jury trial of driving under the influence of alcohol (DUI) causing injury (Veh. Code, § 23153, subd. (a)),[2] driving with a blood alcohol content of .08 or more causing injury (§ 23153, subd. (b)), leaving the scene of an accident (§ 20001, subd. (a)), driving with a suspended license (§ 14601.2, subd. (a), a misdemeanor), and giving false information to a police officer (Pen. Code, § 148.9, subd. (a), a misdemeanor). The jury further found true allegations that defendant personally inflicted great bodily injury upon two victims (§ 23558; Pen. Code, §§ 12022.7, subd. (a)). The jury found not true an allegation that defendant refused to take a chemical test (§ 23577). The court found that defendant admitted allegations that he had two prior convictions for DUI. (§ 23566.) It sentenced defendant to seven years in state prison.
On appeal, defendant contends that the trial court violated his constitutional rights by imposing an enhanced sentence under section 23566, subdivision (b), after it failed to hold a hearing on the alleged priors. He further contends that the court failed to calculate and award him presentence credits and failed to pronounce a lawful sentence on the section 23153, subdivision (b) count. The Attorney General concedes that the matter must be remanded because the court erred in imposing sentence based on the prior conviction enhancements, but argues that defendant’s other contentions are moot. As we find that the matter must be remanded for a trial on the prior allegations and for resentencing, we will reverse the judgment and remand the matter for that limited purpose.
BACKGROUND
Defendant was charged by first amended information with driving under the influence of alcohol causing injury (§ 23153, subd. (a); count 1), driving with a .08 blood alcohol causing injury (§ 23153, subd. (b); count 2), leaving the scene of an accident (§ 20001, subd. (a); count 3), misdemeanor driving with a license suspended due to a prior DUI conviction (§ 14601.2, subd. (a); count 4), and misdemeanor giving false information to a police officer (Pen. Code, § 148.9, subd. (a); count 5). The information further alleged as to counts 1 and 2 that defendant had two prior section 23152, subdivision (b) convictions (§ 23566, subd. (b)), that he personally inflicted great bodily injury upon two victims (§ 23558; Pen. Code, §§ 12022.7, subd. (a), 1192.7, subd. (c)(8)), and that he refused to complete a chemical test (§ 23577); and alleged as to count 4 that defendant had a prior section 14601.2 conviction.
Defendant moved in limine to bifurcate trial on the alleged priors. The court ruled as follows: “I’m going to deny the bifurcation request. I’m going to grant the motion to the extent it requires sanitation [or] a stipulation, either one, whichever the parties agree upon. There will be no mention in front of the jury that [defendant] has previous DUI convictions unless that becomes relevant.”
The Prosecution’s Case
Around 9:40 p.m. on August 28, 2010, Elizabeth Anguiano was driving her sister Anabel Anguiano[3] home from a friend’s house in their mother’s black Honda Civic. When they were on Holohan Road, a white Acura Legend crossed over into their lane after coming out of a curve. Elizabeth tried to swerve to avoid being hit, but her car was hit head on. The driver of the car behind Elizabeth’s called 911. That driver described the driver of the Acura to responding officers as having a dark complexion and a shaved head, and as wearing a white shirt. The driver of the Acura was not in or around the vehicle when the responding officers arrived. The area around the scene of the collision is agricultural land.
The vehicle registration in the Acura had the name Jose Duarte Velazco and an address on Doering Lane in Watsonville. A sheriff’s deputy was dispatched to that address around 10:15 p.m. When the deputy turned onto Doering, he saw defendant running down the street towards the address. Defendant had a shaved head and was wearing jeans, work boots, and a white T-shirt. The deputy contacted defendant, and subsequently learned that defendant’s address matched the address on the registration found in the Acura, that his description matched the reported description of the Acura’s driver, and that his name matched the name on two receipts found in the Acura’s glove box. The name on the ID in defendant’s wallet was Javier Baltazar-Murillo.
Defendant was “[h]eavily intoxicated,” and smelled of alcohol. He was handcuffed and placed in a patrol car. He subsequently denied being involved in a collision. He told an investigating officer that he did not own a vehicle and that he had been out running after work at nearby Pinto Lake Park. He said that his name was Hugo Guzman, and he denied that the ID card found in his wallet was his. However, he admitted that he had previously identified himself as the person in the ID card.
Defendant also denied that he had been drinking. His clothes were very dirty, and he had fresh minor abrasions on his knees and a diagonal abrasion down his chest and hips consistent with a driver’s side seat belt abrasion. The officer asked defendant to take a breathalyzer test, but defendant was uncooperative during five attempts to complete the test. Based on the officer’s observations and defendant’s performance on field sobriety tests, the officer arrested defendant for DUI and fleeing the scene of an accident causing injuries.
Defendant stated that he would not submit to a chemical test because he had not been driving, but he did not resist when a blood sample was taken from him at a hospital at 12:17 a.m. The sample had a blood alcohol level of .19. Three beer bottles containing a small amount of beer were found on the rear passenger floorboard of the Acura. Nine broken beer bottles, some containing a small amount of beer, were found in the trunk.
Elizabeth sustained a fractured right ankle and bruising on her shoulder, chest, face, neck, hips, and wrist as a result of the collision. Anabel sustained a fractured clavicle, and bruising on her hips and foot.
Jose Duarte Velazco testified that he lives with defendant and has known him for a long time. Velazco sold the white Acura to defendant’s brother, Cruz Baltazar, but defendant drove it to work every day and Velazco had never seen anyone other than defendant drive the car. The parties stipulated that “on the date and time of the head-on collision in this case Mr. Javier Baltazar had a suspended driver’s license in violation of the Vehicle Code.”


The Defense Case
Defendant testified in his own defense that he works on a ranch picking berries. On August 28, 2010, he drove to work in his brother’s white Acura. While finishing up, he retrieved from the car two cans of beer and drank one them where he was working. After he finished work at 6:00 p.m., he went back to get the car but it was not there. He had left the keys to the car on the car seat, but he did not know who took the car. He drank the other can of beer and then starting walking. He stopped at a store, bought another beer, and drank it as he continued walking. When he got to another store, he bought another beer and drank it. When he arrived home, nobody was there, so he went to a house where he used to live. Nobody was there either, so he headed back home. It was then that the officer stopped him. He doesn’t remember very well what happened after that. He does remember that he told an officer that his name was Hugo Guzman, and admitted that that was a lie. He also remembers saying that he had had nothing to drink, and admitted that that was also a lie.
Verdicts, Findings on the Priors, and Sentencing
On December 3, 2010, the jury found defendant guilty of DUI causing injury (§ 23153, subd. (a); count 1), driving with a blood alcohol of .08 or more (§ 23153, subd. (b); count 2), leaving the scene of an accident (§ 20001, subd. (a); count 3), driving with a suspended license (§ 14601.2, subd. (a); count 4, a misdemeanor), and giving false information to a police officer (Pen. Code, § 148.9, subd. (a); count 5, a misdemeanor). The jury also found true the special allegations as to counts 1 and 2 that defendant personally inflicted great bodily injury upon two victims (§ 23558; Pen. Code, § 12022.7, subd. (a)). The jury found not true the allegation that defendant refused to take a chemical test. (§ 23577.)
After the court polled the jurors, the court gave a final instruction, thanked them for their service, and stated, “You are now excused.” A juror asked the court a question, and the court responded to it. It then stated, “Just one moment. [Defense Counsel], there was another jury issue. Are you waiving the jury for the next issue‌” Counsel responded, “Yes, Your Honor. May I confirm‌” The court replied, “Yes, please do.” Another juror asked the court a question, and the court responded to it. The court then stated, “Yes‌” Defense counsel responded, “The jury is free to leave.” The court told the jurors that it was going to set a sentencing hearing date, and that those who were interested could know it before they left. After setting the sentencing date, the court asked the jurors, “Does anyone have any further questions‌ [¶] All right. Thank you very much. You are excused. Thank you so much for your service.” After all jurors had left, the following occurred:
“THE COURT: All right. There was a further special allegation. Specifically, it’s alleged that Mr. Baltazar has been convicted on two previous occasions of DUI. One was November 8th, 2008 in Monterey and once was April 23rd, 2008 in Monterey. [¶] [Defense counsel], is it correct that your client admits to these prior convictions, please‌
“[DEFENSE COUNSEL]: Yes.
“THE COURT: All right. Thank you. And there’s an allegation of a previous conviction of driving while his license was suspended or revoked. That is alleged to have been December 8th, 2008 also in Monterey. And is there an admi[ss]ion to that, please‌
“[DEFENSE COUNSEL]: Yes.
“THE DEFENDANT: Yes
“THE COURT: All right. Thank you. This is a matter where we’ll have sentencing. Mr. Baltazar, a probation officer is going to come and speak with you because they’re going to give me a recommendation of what the appropriate sentence is. I do encourage you to speak with that probation officer and provide whatever information might be helpful for me to make that decision. [¶] All right. Thank you. We’re in recess.”
The probation officer’s report, which was prepared for the original sentencing date of January 25, 2011, stated that defendant was entitled to 151 days of custody credit (as he had been in custody since August 28, 2010), and recommended that he be sentenced to eight years in prison. Handwritten on the copy of the report in the record on appeal is a recalculation of the custody credit as 164 days for the rescheduled sentencing hearing on February 7, 2011.
At the sentencing hearing, the court stated: “I am going to sentence Mr. Baltazar to seven years in state prison. [¶] And, Madam Clerk, here is how I arrive at that number: [¶] Count 1, the Court will select the middle term of three years. [¶] With respect to the enhancement, 12022.7, the Court will impose one three-year GBI enhancement, and that’s consecutive to Count 1. [¶] With respect to 23558 – that’s the allegation of doing injury to more than one person – the Court will impose one year, and that is consecutive. [¶] So that is a seven-year term. [¶] With respect to Count 2, the hit-and-run [sic], the Court will select the mid term of two years, but that will be concurrent to the seven-year sentence. [¶] With respect to the driving while suspended, . . . I think it’s quite academic: The Court will impose six months. [¶] False name to a police officer, the Court will impose six months. [¶] These are concurrent to the time that he’s presently serving.”
After the court discussed other sentencing and restitution issues with the parties, the court asked, “Is there anything I’ve neglected that you’d like me to consider, please‌” The parties answered negatively, but the clerk responded, “Judge, the appeal rights.” The court informed defendant of his appeal rights, and then stated, “All right. Thank you. Good luck to you, Mr. Baltazar.”
The minutes of the sentencing hearing and the abstract of judgment both indicate that two-year sentences on both count 2 (§ 23153, subd. (b)) and count 3 (§ 20001, subd. (a)) were imposed concurrent to the sentence imposed on count 1 (§ 23153, subd. (a)). Both the minutes and the abstract of judgment also indicate that 164 days of custody credits were awarded for defendant’s actual time in custody, and that this is an “85% credit case.” However, no number was included in the “total credits” box of the abstract of judgment.
DISCUSSION
Defendant contends, and the Attorney General concedes, that the trial court erred by not holding a court trial on, or requiring his personal waiver of a court trial and his admission of, the prior conviction allegations. We agree that a remand is required.
The information alleged as to counts 1 and 2 (§ 23153, subds. (a) & (b); Pen Code, § 12022.7) pursuant to section 23566, subdivision (b), that defendant had two prior DUI (§ 23152) convictions in 2008. Section 23566, subdivision (b), provides that, “[i]f a person is convicted of a violation of Section 23153, and the act or neglect proximately causes great bodily injury, as defined in Section 12022.7 of the Penal Code, to any person other than the driver, and the offense occurred within 10 years of two or more separate violations of . . . Section 23152, . . . that resulted in convictions, that person shall be punished by imprisonment in the state prison for a term of two, three, or four years . . . .” As sections 23554 and 23560 provide that punishment for a first and second DUI-causing-injury conviction within 10 years is a “wobbler” (see In re Manzy W. (1997) 14 Cal.4th 1199, 1201; Pen. Code, § 17), section 23566, subdivision (b), requires enhancement of a defendant’s sentence due to prior qualifying convictions.
“The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. [Citations.]” (People v. Black (2007) 41 Cal.4th 799, 818.) In California, “a defendant’s right to have a jury determine the truth of the prior conviction allegation is derived from statute.” (People v. Vera (1997) 15 Cal.4th 269, 274; see Pen. Code, §§ 1025, 1158.) “[T]he deprivation of the statutory right to jury trial on the prior [conviction] allegations does not implicate the state or federal constitutional right to jury trial. Absent an objection to the discharge of the jury or commencement of court trial, defendant is precluded from asserting on appeal a claim of ineffectual waiver of the statutory right to jury trial of prior [conviction] allegations.” (Vera, supra, at p. 278.)
The statutory right to trial encompasses the constitutional rights to remain silent and to confront witnesses. (People v. Mosby (2004) 33 Cal.4th 353, 360.) Although explicit admonitions on each of the three rights is not required (ibid.), the record must affirmatively show that admission of the priors “ ‘ “represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” ’ [Citation.]” (Id. at p. 361.) “ ‘[T]he record must affirmatively demonstrate that the plea [that is, the admission of a prior conviction] was voluntary and intelligent under the totality of the circumstances.’ ” (People v. Allen (1999) 21 Cal.4th 424, 438.)
Here, the record affirmatively demonstrates that defendant was aware of and chose to waive his right to a jury trial on the prior allegations. Defense counsel informed the court that it could excuse the jury after counsel consulted with defendant on whether he was “waiving the jury for the next issue,” and defendant did not raise an objection prior to the excusal of the jury. However, we cannot say that the record affirmatively demonstrates that defendant was aware of and voluntarily and intelligently waived his statutory right to a court trial or his constitutional rights to remain silent and to confront witnesses. Accordingly, we agree with the Attorney General that the matter must be remanded to provide defendant with the opportunity to have, or to voluntarily waive, a trial on the prior allegations. (Pen. Code, § 1025.)
Even if the prior convictions are found to be true after a trial, or defendant voluntarily admits them, the sentence previously imposed by the court cannot be reinstated. Defendant contends that the trial court failed to orally calculate and award any presentence custody credits, and that the record is in conflict as to what sentences the court imposed on counts 2 and 3, and we agree with both contentions. The court did not mention presentence credits during the sentencing hearing (contrary to the written statements in the minutes and abstract of judgment), and the abstract of judgment does not include the total number of days to be credited to defendant. (Pen. Code, § 2900.5, subd. (d) [it is the duty of the sentencing court to calculate and include in the abstract of judgment the total number of days to be credited].) And, although the court stated that it was sentencing defendant to the two-year concurrent middle term on count two, it described that offense as a “hit and run.” (§ 20001, subd. (a).) The middle term for a felony violation of section 20001, subdivision (a) is two years (Pen. Code, § 18). However, the section 20001 offense was count 3; count 2 was the section 23153, subdivision (b) offense, for which the middle term is three years (§ 23566, subd. (b)); and the sentence on count 2 should have been stayed pursuant to Penal Code section 654 once the court pronounced sentence on count 1. (People v. Subramani (1985) 173 Cal.App.3d 1106, 1111; People v. Duarte (1984) 161 Cal.App.3d 438, 447-448.) Accordingly, when resentencing defendant, the court should stay the sentence on count 2 once it imposes sentence on count 1, and it should calculate and award defendant the total amount of presentence credits to which he is entitled. (Pen. Code, §§ 654, 2900.5, 2933, 2933.1, subd. (a).)
DISPOSITION
The judgment is reversed. The matter is remanded to the trial court for the limited purposes of conducting a new trial on the allegations of defendant’s prior convictions, and of resentencing consistent with the views expressed herein.

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Bamattre-Manoukian, ACTING P. J.





WE CONCUR:




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DUFFY, J.







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WALSH, J.*

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