People v. Harrison
People v. Harrison
02:10:2006
P. v. Harrison
Filed 2/2/06 P. v. Harrison CA4/2
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
CHARLENE ANNE HARRISON,
Defendant and Appellant.
E038120
(Super.Ct.No. INF048433)
OPINION
APPEAL from the Superior Court of Riverside County. Charles Everett Stafford, Jr., Judge. Reversed and remanded with directions.
Randall B. Bookout, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, and Robert M. Foster, Supervising Deputy Attorney General, for Plaintiff and Respondent.
Pursuant to a plea agreement, defendant pleaded guilty to one count of driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a)) (count 1) and one count of driving under the influence of alcohol with a blood-alcohol content exceeding 0.08 percent causing injury (Veh. Code, § 23153, subd. (b)) (count 2). Defendant also admitted the enhancement allegations that she had inflicted great bodily injury during a felony (Pen. Code, §§ 12022.7, subd. (a), 1192.7, subd. (c)(8))[1] and that she had caused great bodily injury to an additional victim (Veh. Code, § 23558). In exchange, the trial court promised that it would order a diagnostic evaluation from the Department of Corrections pursuant to section 1203.03 prior to her sentencing. Subsequently, without a diagnostic evaluation, the court sentenced defendant to a total term of six years in state prison as follows: a two-year middle term for count 1, a concurrent two-year middle term for count 2, a consecutive term of three years for the section 12022.7 enhancement, and a consecutive one-year term for the Vehicle Code section 23558 enhancement.
On appeal, defendant contends (1) she should receive a diagnostic evaluation and a new sentencing hearing, as the court violated the plea bargain by failing to order a diagnostic evaluation prior to her sentencing; (2) her trial counsel was ineffective for failing to object at the sentencing hearing when the court sentenced her without a diagnostic evaluation; and (3) her sentence on either count 1 or count 2 should be stayed pursuant to section 654, as the counts arose from a single incident. We agree with defendant's first contention and will remand the matter for a new sentencing hearing.
I
FACTUAL AND PROCEDURAL BACKGROUND[2]
On May 27, 2004, about 1:20 p.m., defendant was involved in a car accident at the intersection of East Palm Canyon and Golf Club Drive in Cathedral City. The Palm Springs police officer who responded to the scene smelled an alcoholic odor emanating from defendant.
A Cathedral City traffic investigator was dispatched to the scene and interviewed James Rutherford, the driver of the Ford truck that was hit head-on by defendant's Toyota 4Runner sports utility vehicle. Rutherford explained that he was driving east on Palm Canyon when he saw defendant traveling toward him at an excessive rate of speed. At the last minute, defendant veered into his lane; he then applied his brakes, almost coming to a complete stop before defendant's vehicle hit his truck head-on. Rutherford noted that there were no obstacles in the roadway that would have caused her to swerve into his lane. Rutherford's passenger, Gary Colby, corroborated Rutherford's recollection of the events. After both men were extricated from the truck, they were transported to Desert Regional Medical Center (DRMC).
Meanwhile, defendant was also transported to DRMC with a broken clavicle, broken nose, and lacerations to her face and knees. About 2:15 p.m., the traffic investigator interviewed defendant, who stated that she had eaten lunch at the Elks Club in Cathedral City and had consumed at least one glass of wine. She could not remember exactly how many glasses of wine she had had. After she left the Elks Club, she drove west on East Palm Canyon toward Palm Springs. She last remembered seeing a green traffic signal prior to the collision; she could not recall specific facts of the accident.
Because of the injuries defendant sustained in the accident, defendant did not undergo a field sobriety test, but a blood sample was taken at the hospital. Defendant's blood-alcohol concentration was later determined to be 0.14 percent.
On September 3, 2004, the traffic investigator learned that Rutherford sustained whiplash and a severe head injury, which resulted in a brain hemorrhage, due to the accident. In addition, the bones in his right foot were shattered. Colby sustained whiplash and lacerations to his face, and the little finger of his right hand was severely injured, requiring surgery.
The May 2004 accident recounted above occurred while defendant was on probation for a prior driving-under-the-influence incident on July 3, 2003. In that incident, defendant ran into a pillar in a parking structure in Palm Springs. The responding officer noted a strong alcoholic odor on defendant's breath. Additionally, defendant's speech was slurred, and she was unsteady when she attempted to walk. Defendant failed to complete several of the field sobriety tests.
On September 24, 2004, a complaint and notice of revocation of probation was filed, charging defendant with driving under the influence of alcohol causing injury and driving under the influence of alcohol with a blood-alcohol content exceeding 0.08 percent causing injury. The complaint also alleged that defendant had inflicted great bodily injury during a felony and that she had caused great bodily injury to an additional victim.
On March 10, 2005, defendant pleaded guilty to both counts and admitted the enhancement allegations. She also admitted that she had violated the terms and conditions of her probation in her prior case (case No. INM137914). No particular sentence was promised as a part of the plea; however, prior to her pleading guilty, the trial court promised defendant that it would order a diagnostic evaluation from the Department of Corrections so that it â€
02:10:2006
Filed 2/2/06 P. v. Harrison CA4/2
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
CHARLENE ANNE HARRISON,
Defendant and Appellant.
E038120
(Super.Ct.No. INF048433)
OPINION
APPEAL from the Superior Court of Riverside County. Charles Everett Stafford, Jr., Judge. Reversed and remanded with directions.
Randall B. Bookout, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, and Robert M. Foster, Supervising Deputy Attorney General, for Plaintiff and Respondent.
Pursuant to a plea agreement, defendant pleaded guilty to one count of driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a)) (count 1) and one count of driving under the influence of alcohol with a blood-alcohol content exceeding 0.08 percent causing injury (Veh. Code, § 23153, subd. (b)) (count 2). Defendant also admitted the enhancement allegations that she had inflicted great bodily injury during a felony (Pen. Code, §§ 12022.7, subd. (a), 1192.7, subd. (c)(8))[1] and that she had caused great bodily injury to an additional victim (Veh. Code, § 23558). In exchange, the trial court promised that it would order a diagnostic evaluation from the Department of Corrections pursuant to section 1203.03 prior to her sentencing. Subsequently, without a diagnostic evaluation, the court sentenced defendant to a total term of six years in state prison as follows: a two-year middle term for count 1, a concurrent two-year middle term for count 2, a consecutive term of three years for the section 12022.7 enhancement, and a consecutive one-year term for the Vehicle Code section 23558 enhancement.
On appeal, defendant contends (1) she should receive a diagnostic evaluation and a new sentencing hearing, as the court violated the plea bargain by failing to order a diagnostic evaluation prior to her sentencing; (2) her trial counsel was ineffective for failing to object at the sentencing hearing when the court sentenced her without a diagnostic evaluation; and (3) her sentence on either count 1 or count 2 should be stayed pursuant to section 654, as the counts arose from a single incident. We agree with defendant's first contention and will remand the matter for a new sentencing hearing.
I
FACTUAL AND PROCEDURAL BACKGROUND[2]
On May 27, 2004, about 1:20 p.m., defendant was involved in a car accident at the intersection of East Palm Canyon and Golf Club Drive in Cathedral City. The Palm Springs police officer who responded to the scene smelled an alcoholic odor emanating from defendant.
A Cathedral City traffic investigator was dispatched to the scene and interviewed James Rutherford, the driver of the Ford truck that was hit head-on by defendant's Toyota 4Runner sports utility vehicle. Rutherford explained that he was driving east on Palm Canyon when he saw defendant traveling toward him at an excessive rate of speed. At the last minute, defendant veered into his lane; he then applied his brakes, almost coming to a complete stop before defendant's vehicle hit his truck head-on. Rutherford noted that there were no obstacles in the roadway that would have caused her to swerve into his lane. Rutherford's passenger, Gary Colby, corroborated Rutherford's recollection of the events. After both men were extricated from the truck, they were transported to Desert Regional Medical Center (DRMC).
Meanwhile, defendant was also transported to DRMC with a broken clavicle, broken nose, and lacerations to her face and knees. About 2:15 p.m., the traffic investigator interviewed defendant, who stated that she had eaten lunch at the Elks Club in Cathedral City and had consumed at least one glass of wine. She could not remember exactly how many glasses of wine she had had. After she left the Elks Club, she drove west on East Palm Canyon toward Palm Springs. She last remembered seeing a green traffic signal prior to the collision; she could not recall specific facts of the accident.
Because of the injuries defendant sustained in the accident, defendant did not undergo a field sobriety test, but a blood sample was taken at the hospital. Defendant's blood-alcohol concentration was later determined to be 0.14 percent.
On September 3, 2004, the traffic investigator learned that Rutherford sustained whiplash and a severe head injury, which resulted in a brain hemorrhage, due to the accident. In addition, the bones in his right foot were shattered. Colby sustained whiplash and lacerations to his face, and the little finger of his right hand was severely injured, requiring surgery.
The May 2004 accident recounted above occurred while defendant was on probation for a prior driving-under-the-influence incident on July 3, 2003. In that incident, defendant ran into a pillar in a parking structure in Palm Springs. The responding officer noted a strong alcoholic odor on defendant's breath. Additionally, defendant's speech was slurred, and she was unsteady when she attempted to walk. Defendant failed to complete several of the field sobriety tests.
On September 24, 2004, a complaint and notice of revocation of probation was filed, charging defendant with driving under the influence of alcohol causing injury and driving under the influence of alcohol with a blood-alcohol content exceeding 0.08 percent causing injury. The complaint also alleged that defendant had inflicted great bodily injury during a felony and that she had caused great bodily injury to an additional victim.
On March 10, 2005, defendant pleaded guilty to both counts and admitted the enhancement allegations. She also admitted that she had violated the terms and conditions of her probation in her prior case (case No. INM137914). No particular sentence was promised as a part of the plea; however, prior to her pleading guilty, the trial court promised defendant that it would order a diagnostic evaluation from the Department of Corrections so that it â€
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