IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT San Joaquin
January 19, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
KEITH COLLIER, DEFENDANT AND APPELLANT.
(Super. Ct. No. SF111381A)
The opinion of the court was delivered by: Hull ,j.
P. v. Collier CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Based on an accident in which he injured a driver and the driver's young daughter, defendant Keith Collier entered a negotiated open plea of guilty to two counts each of "generic" and "per se" driving under the influence of alcohol (DUI) resulting in bodily injury to another (we make use of the shorthand terms employed in People v. McNeal (2009) 46 Cal.4th 1183, 1187), and one count of running a red light. He also admitted enhancements alleged in connection with the four DUI counts: infliction of great bodily injury, infliction of great bodily injury resulting in unconsciousness (as to the two counts involving the daughter), and the circumstance of multiple victims. In exchange, the court would strike all of the injury enhancements except as to one count, to prevent the remainder from qualifying as "serious" felonies under Penal Code section 1192.7, subdivision (c)(8) (undesignated section references will be to this code).
In October 2009, the trial court struck the enhancements for unadorned great bodily injury "for sentencing purposes only" and imposed the middle term for the generic DUI count that involved the daughter (with an unconsciousness enhancement), and a consecutive term for the generic DUI count that involved the father. It then imposed sentence but stayed execution for the two per se DUI counts, the other unconsciousness enhancement, and the multiple victim enhancements. (§ 654) The trial court subsequently issued an amended abstract of decision (after a hearing) in which it struck the second unconsciousness enhancement on the stayed per se DUI count "for sentencing purposes" as well, in order to foreclose its subsequent use as a serious felony.
Defendant sought a certificate of probable cause (CPC) on the issue of the validity of an unconsciousness enhancement based on a medically induced coma. The trial court denied the request.
On appeal, defendant now asserts for the first time that his sentence is unlawful, because under settled principles of law a single DUI injuring more than one victim cannot result in multiple convictions. (People v. Wilkoff (1985) 38 Cal.3d 345, 349 [noting, however, that a series of independent acts of DUI resulting in injury can be separately punished].) As framed, he asserts this issue does not require a CPC because it does not question the validity of his plea. In his next breath, he then asserts that in the interests of justice we should allow him to withdraw his plea, as it may have been based on the two extra charges that he was facing. Finally, he argues that trial counsel was ineffective in failing to recognize the impermissible splitting of his offense, and therefore he is entitled to withdraw his plea. The People do not focus on the merits of these arguments, asserting only that we must dismiss his appeal for want of a CPC. We agree with the People and will dismiss the appeal.
FACTS AND PROCEEDINGS
The recited factual basis for the plea indicates the accident occurred on March 21, 2009, at an intersection in Stockton. Defendant was driving with a blood-alcohol level of 0.21 percent. He ran a red light at the intersection, and caused a collision with a car that the father was driving. The father's leg required stitches; the daughter sustained severe brain injuries requiring an induced coma.
In People v. Emery (2006) 140 Cal.App.4th 560, we repeated the well-established principle that the focus in determining the viability of an appeal subject to the requirement of a CPC is on the substance of a defendant's arguments, not the manner in which the defendant chose to characterize them. "If the challenge is in substance an attack on the validity of the plea, [the] defendant must obtain a certificate of probable cause." (Id. at p. 565.)
Defendant is wrong that the substance of his first claim involves an unauthorized sentence for which he does not need a CPC. (People v. Corban (2006) 138 Cal.App.4th 1111, 1116-1117.) An unauthorized sentence involves error that exists independent of any facts. (People v. Scott (1994) 9 Cal.4th 331, 354.) If examined without references to the facts of his case, his sentence is not unlawful--it is based on his guilty pleas to all four counts of DUI. Rather, his argument requires consideration of the factual bases for his pleas (a single act of DUI causing injury to two victims), which is foreclosed in absence of a CPC. (People v. Thurman (2007) 157 Cal.App.4th 36, 43; People v. Borland (1996) 50 Cal.App.4th 124, 127, 129.)
His assertion that he should be allowed to withdraw his pleas also requires a CPC to be cognizable on appeal. (People v. Johnson (2009) 47 Cal.4th 668, 682 [CPC required for appeal "whose purpose is, ultimately, to invalidate a plea of guilty or no contest"].) He does not provide any authority or argument to the contrary.
Finally, his claim of ineffective assistance of counsel in connection with allowing him to plead to duplicative counts requires a CPC to be cognizable on appeal. (People v. Richardson (2007) 156 Cal.App.4th 574, 596 [claim of ineffective assistance of counsel requires CPC unless it involves proceedings held subsequent to guilty plea].) Again, he does not provide any authority or argument to the contrary.
We note that defendant's conviction for driving under the influence of alcohol resulting in the daughter's unconsciousness is a serious felony conviction which disqualifies defendant from the more favorable accrual rate for conduct credits under former section 4019 as amended in January 2010 (see § 4019, subds. (b)(2) & (c)(2); Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50]) or section 2933 as amended in September 2010 (see § 2933, subd. (e)(3); Stats. 2010, ch. 426, §§ 1, 5), even if the enactments had retroactive effect in his pending case.
The appeal is dismissed.
BLEASE, Acting P. J. ROBIE,J.
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