P. v. Gilbert

Filed 8/28/08 P. v. Gilbert 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

I. INTRODUCTION

Defendant Rene Joseph Gilbert was convicted after jury trial of driving under the influence of alcohol (DUI) (Veh. Code, 23152; count 1), DUI with a blood alcohol level of 0.08 percent or more (Veh. Code, 23152; count 2), and driving with a suspended or revoked license (Veh. Code, 14601.2, subd. (a); count 3). The trial court found all prior allegations in the information to be true, including that defendant had a prior strike (Pen. Code, 667, subd. (b)-(i), 1170.12)[1] and three prison priors ( 667.5, subd. (b)). Defendant was sentenced to seven years in state prison: in count 1, the felony DUI, the midterm of two years, doubled to four years pursuant to the strike prior; consecutive one-year terms for the each of the three prison priors; and in count 3, driving with a suspended or revoked license, a concurrent sentence of 90 days in county jail. The prison term for the felony DUI with a blood alcohol level of 0.08 percent or more (count 2) was stayed pursuant to section 654. The court also imposed, among other amounts, a restitution fine of $2,800 ( 1202.4), a suspended parole revocation restitution fine in the same amount ( 1202.45), and a court security fee of $20 ( 1465.8).

On appeal, defendant contends the trial court erred in calculating the restitution fine by considering the count for which punishment was stayed and that the correct amount of the restitution fine is $1,400. He argues that his counsels failure to object to the calculation error constituted ineffective assistance. The People concede the calculation error. We agree with the People and, after correcting a clerical error,[2] we will affirm the judgment as modified.

II. BACKGROUND

The Information

On March 16, 2006, defendant was charged by information with felony DUI with a prior specified felony (Veh. Code, 23152, 23550.5, subd. (a); count 1); felony DUI with a blood alcohol level of 0.08 percent or more with a prior specified felony (Veh. Code, 23152, 23550.5, subd. (a); count 2); and misdemeanor driving with a license suspended or revoked due to a prior DUI conviction (Veh. Code, 14601.2, subd. (a); count 3). The information further alleged in counts 1 and 2 that defendant had a separate, prior DUI conviction (Veh. Code, 23152). The information also alleged that defendant had one prior strike (Pen. Code, 667, subds. (b)-(i), 1170.12), and that he had served three prior prison terms (Pen. Code, 667.5, subd. (b)).

Defendant waived a jury trial on the allegations of prior convictions in counts 1 and 2 and the allegations of a strike prior and prison priors.

The Prosecutions Case

On January 9, 2006, about 9:30 p.m., defendant and three other motorists were involved in multiple collisions on the connector ramp from southbound U.S. Highway 101 to Interstate 680. The ramp from U.S. Highway 101 splits to the left to connect to Interstate 680 and to the right to connect to Interstate 280. Brandie Dressel, a California Highway Patrol Officer, was dispatched to the scene along with other officers. Based on her investigation, Dressel, an expert on accident reconstruction, determined that the first collision occurred when defendants Ford pickup truck hit the concrete bridge rail on the left side of the connector ramp to Interstate 680.

Dressel further determined that defendant got out of the truck and walked into the number two lane, or right lane, of the connector ramp, where he was struck by a vehicle driven by Wendy Kay. Kay testified that she saw a Ford truck parked on the left side of the Interstate 680 ramp as she was traveling in the number two lane. Shortly thereafter, she felt an impact on the drivers side of her car, but she did not know what had happened.

Officer Dressel determined that a vehicle driven by Aleksandr Smirnov subsequently hit defendants truck, causing the truck to face oncoming traffic. Smirnov testified that he was driving in the number one lane on the Interstate 680 ramp when he saw the car in front of him brake and swerve. He then saw a vehicle in front of him, which was parked basically perpendicular to his lane. Unable to swerve out of the way, Smirnov slammed on the brakes and hit the vehicle. After Smirnov pulled over, he saw defendant on the shoulder of the ramp and called 911. While waiting for police, he saw other cars swerving to avoid defendants truck and witnessed another vehicle hit the truck.

Officer Dressel determined that Linda Frost was driving the next vehicle that hit defendants truck. Frost testified that she was driving in the number one lane on the ramp to Interstate 680 and then was in a whirl, . . . not knowing what was happening. She then remembers a man pulling her out of her car. As Frost was believed to have critical injuries, Officer Dressel spoke to her only briefly before she was taken to the hospital.

Susan York, an emergency medical technician, was driving near the scene when she heard two booms and screeching from brakes. She stopped and rendered aid to defendant, who was mumbling and had the smell of alcohol on his breath.

Officer Dressel did not find anyone else, besides those associated with their respective vehicles, at the scene of the collisions. She determined that the seat in defendants truck was adjusted to someone of the same height as defendant. When she subsequently saw him at the hospital, she observed abrasions across his stomach region and considered them to be consistent with a person who had been wearing a seat belt in a traffic collision. She observed his eyes to be [r]ed and watery, and she smelled a strong odor of alcohol coming from him. She testified that defendant exhibited signs consistent with being under the influence of alcohol. While at the hospital, she also noticed that defendants set of keys included a key that she believed was associated with his Ford truck. The set of keys that she later received from the defense investigator did not include that key. Officer Dressel eventually concluded that defendant was driving under the influence of alcohol and was involved in a traffic collision.

A blood sample was taken from defendant at the hospital at 12:12 a.m. following the collisions. Karina Patel, a criminalist and forensic alcohol supervisor at the county crime lab, testified that the blood sample showed defendants blood alcohol content to be 0.12 percent. She estimated that defendants blood alcohol content was between 0.15 and 0.16 percent at 9:30 p.m., the approximate time of the collisions. Taking into account the results of the alcohol analysis, among other things, Patel opined that the individual would be impaired to operate a motor vehicle safely.

The parties stipulated that defendants drivers license was suspended at the time of the incident and that he had knowledge of the suspension.

The Defense Case

Defendants father, Rene Machado Gilbert, testified that approximately two weeks after the accident, a hospital security guard gave him a sealed plastic bag that included defendants keys. At some point, defendant told his father that there were no keys for the truck. Defendants father testified that he never opened the bag and did not remove any keys. He stated that the keys remained in his possession for about a month until an investigator from the public defenders office took them.

Dan Kuh, an investigator for the public defenders office, testified that he obtained a plastic bag containing keys from defendants father. Kuh recalled that the plastic bag had some sort of a ziplock kind of feature to it.

Defendant testified that he bought the Ford truck from his brother a few days before the accident and that he intended to sell it. According to defendant, the truck did not come with keys, so he installed a toggle switch to turn the starter on and off. At trial, defendant was presented with an exhibit containing images or outlines of keys, three of which had been identified by Officer Dressel as resembling the Ford key that she believed was in defendants possession after the collisions. Defendant asserted that the keys identified by Officer Dressel were consistent with a Ford automobile key but not a Ford truck key.

Defendant admitted that during the afternoon and early evening of January 9, 2006, he drank a lot of alcohol. He testified that it was mostly beer and that he assumes he had somewhere between 10 to 12 beers because there was only a 12-pack in the ice chest.

Defendant testified that after he started drinking, an individual, whom he believes was named Arthur, called him in the afternoon about a truck that he was selling. The man later arrived at defendants residence about 8:00 p.m. to look at the Ford truck. Defendant testified that he stopped drinking right about the time the man came over to look at the truck and that he stopped drinking [b]ecause [he] was feeling a little bit of buzz.

Defendant testified that after inspecting the truck, the man took the truck for a drive on the freeway, with defendant in the passenger seat. The man wanted to show the truck to a relative, so the two proceeded to a duplex. After they left the duplex, defendant testified that the man drove onto U.S. Highway 101 and proceeded towards the Interstate 280 connector ramp. Defendant testified that he was not wearing a seat belt at the time. According to defendant, the truck suddenly pitched to the left. Defendant testified that he tried to readjust himself, he leaned up against the door, the door opened, and he fell out of the truck. He then tried to stand up. He remembers seeing headlights and then waking up in the hospital a few days later. Defendant denied driving under the influence or causing the accident that evening.

Defendant admitted being convicted in 1996 of felony DUI and reckless evading. He also admitted being convicted of robbery, driving or taking an automobile without the owners permission, and perjury on an application to the Department of Motor Vehicles.

Defendant acknowledged that he and his parents hired a civil attorney to sue Wendy Kay, the motorist who felt an impact on the side of her vehicle, for the injuries he suffered.

The Verdicts, Findings on the Prior Allegations, and Sentencing

On May 25, 2006, the jury found defendant guilty of felony DUI, felony DUI with a blood alcohol level of 0.08 percent or more, and misdemeanor driving with a suspended or revoked license. The next day, following a court trial, the court found all prior allegations in the information to be true.

Defendant retained private counsel who entered an appearance before the sentencing hearing. The trial court thereupon relieved the public defender and ordered defendant to pay $1,500 in attorneys fees. (Pen. Code,  987.8, subd. (b).)

Defendant subsequently filed a motion for a new trial and a Romero[3] motion. During the hearing on the Romero motion, defendant stated under oath that Ravinder Singh, an acquaintance, was driving the vehicle at the time of the accident. The trial court denied both motions on June 8, 2007.

At the sentencing hearing on June 8, 2007, the court sentenced defendant to seven years in state prison: in count 1, the felony DUI, the midterm of two years, doubled to four years pursuant to the strike prior; consecutive one-year terms for the each of the three prison priors; and in count 3, driving with a suspended or revoked license, a concurrent sentence of 90 days in county jail. The prison term for the felony DUI with a blood alcohol level of 0.08 percent or more (count 2) was stayed pursuant to section 654. Defendant was awarded a total of 774 days credit.

The court also imposed, among other amounts, a restitution fine of $2,800, a suspended parole revocation restitution fine in the same amount, and a court security fee of $20. The court made a general order of restitution. The court also stated, No attorney fees at this point; however, I previously awarded $1500 attorney fees to the Public Defenders Office.

At the restitution hearing on August 3, 2007, the trial court ordered restitution to Frost in the amount of $59,823 and to Smirnov in the amount of $7,932.43.

On August 3, 2007, defendant filed a timely notice of appeal from the judgment entered on June 8, 2007.

III. DISCUSSION

At the sentencing hearing, the trial court stated that it was imposing a restitution fine of $2,800 pursuant to the formula under Penal Code [s]ection 1202.4 (b). On appeal, defendant argues that the trial court may not consider the count for which punishment had been stayed when calculating the restitution fine. If the court disregarded that count and utilized the formula set forth in section 1202.4, subdivision (b), defendant maintains that the restitution fine should be $1,400, and the corresponding parole revocation restitution fine should be reduced accordingly. He contends that his counsels failure to object to the courts calculation error constituted ineffective assistance.

The People appropriately concede the calculation error. Section 1202.4, subdivision (b), requires the imposition of a restitution fine unless compelling and extraordinary reasons exist. Section 1202.45 requires a suspended parole revocation restitution fine in the same amount.

The amount of the restitution fine under section 1202.4, subdivision (b), is discretionary but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony, and shall not be less than one hundred dollars ($100), and not more than one thousand dollars ($1,000), if the person is convicted of a misdemeanor. ( 1202.4, subd. (b)(1).) In setting the amount of the fine in excess of the $200 or $100 minimum, the court must consider any relevant factors . . . . ( 1202.4, subd. (d).) Section 1202.4, subdivision (b)(2), sets forth a formula that a court may use in setting a felony restitution fine: the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted.

Whether a felony conviction may be considered in calculating the restitution fine under section 1202.4, subdivision (b)(2), is affected by whether punishment has been stayed for that conviction under section 654. Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citations.] (People v. DeLoza (1998) 18 Cal.4th 585, 591-592.) In People v. Le (2006) 136 Cal.App.4th 925, we explained that a restitution fine calculated under the formula provided by section 1202.4, subdivision (b)(2), constitutes a criminal penalty, not a civil remedy. (Id. at p. 933.) We determined that the section 654 ban on multiple punishments is violated when the trial court considers a felony conviction for which the sentence should have been stayed pursuant to section 654 as part of the courts calculation of the restitution fine under the formula provided by section 1202.4, subdivision (b)(2). (Id. at p. 934.)

In this case, the trial court specifically stated that it was imposing a restitution fine of $2,800 pursuant to the formula under Penal Code [s]ection 1202.4 (b). We observe that the product of $200 multiplied by defendants seven-year term of imprisonment, multiplied by defendants two felony convictions, is $2,800. Because punishment under one of the two felony convictions was stayed pursuant to section 654, that felony conviction should not have been considered in calculating the restitution fine. (People v. Le, supra, 136 Cal.App.4th at p. 934.)

Defendant argues that his counsels failure to object to the courts calculation error constituted ineffective assistance.

To prevail on an ineffective assistance of counsel claim, the defendant must show that (1) counsels performance fell below a standard of reasonable competence and (2) prejudice resulted. (People v. Anderson (2001) 25 Cal.4th 543, 569; see Strickland v. Washington (1984) 466 U.S. 668, 687-688.) (People v. Le, supra, 136 Cal.App.4th at p. 935.) To show prejudice, the defendant must demonstrate there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Strickland v. Washington, supra, 466 U.S. at p. 694.)

As in People v. Le, supra, 136 Cal.App.4th at page 935, [w]e find it is reasonably probable that the trial court would have imposed a smaller restitution fine (and thus a smaller corresponding parole revocation fine) if trial counsel had objected . . . to the trial courts improper inclusion of the [conviction for which punishment was stayed] when the court calculated the restitution fine under the section 1202.4, subdivision (b)(2) formula. When omitting the conviction for which punishment was stayed, the calculation under section 1202.4, subdivision (b)(2), results in a restitution fine of $1,400 (the product of $200, multiplied by defendants seven-year prison term, multiplied by one felony conviction). Therefore, we will modify the judgment to reduce the restitution fine and parole revocation restitution fine to $1,400 each.

IV. DISPOSITION

The judgment is ordered modified by reducing the restitution fine ( 1202.4, subd. (b)) from $2,800 to $1,400, and the parole revocation restitution fine ( 1202.45) from $2,800 to $1,400. The abstract of judgment is amended to include the court security fee of $20. As so modified, the judgment is affirmed.

The clerk of the superior court shall modify the abstract of judgment as ordered herein and forward a copy of the modified abstract of judgment to the Department of Corrections and Rehabilitation.

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Bamattre-Manoukian, J.

WE CONCUR:

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PREMO, ACTING P.J.

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ELIA, J.

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[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] The trial court orally imposed a $20 court security fee, and the courts oral pronouncement is reflected in the clerks minutes. The abstract of judgment, however, does not include the ordered court security fee, and we will order the abstract amended accordingly.

[3]People v. Superior Court (Romero) (1996) 13 Cal.4th 497.