P. v. Andrade

Filed 7/18/07 P. v. Andrade CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Gregory T. Fain, Judge.

R. Bruce Finch, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Jose Guadalupe Andrade contends he was not adequately advised of the penal consequences of his admission of a prior conviction. We will affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

The morning of May 14, 2004, Andrade was driving a vehicle when it swerved into oncoming traffic, hitting a truck driven by Mizael Perales. Perales suffered serious injuries as a result of the crash. Andrade was found to have a blood alcohol level of at least .13 percent at the time of the crash.

Andrade was charged in count 1 with a felony violation of Vehicle Code section 23153, subdivision (a), driving while under the influence and causing great bodily injury, within the meaning of Penal Code section 12022.7, subdivision (a).^[1] Count 2 charged a felony violation of Vehicle Code section 23153, subdivision (b), driving with a blood alcohol level in excess of .08 percent and causing injury. It also was alleged that Andrade had suffered a prior conviction in 1996, within the meaning of section 667, subdivisions (b) through (i), and section 1170.12, subdivisions (a) through (d).

At the start of trial, the People sought to amend the information to add an enhancement pursuant to section 667, subdivision (a), noting it pertained to the 1996 conviction. The trial court granted leave to amend and trial commenced.

While the jury was deliberating, the trial court asked if Andrade wanted to provisionally admit the prior conviction allegations. The trial court stated that a provisional admission would have no effect if the jury found Andrade not guilty, or if the jury convicted him of a misdemeanor. The admission would have an effect if the jury convicted Andrade of a felony and it was not stricken at sentencing.

After consulting with counsel, Andrade stated he was willing to provisionally admit the strike conviction. The trial court then went through the list of advisements, including that the effect of having one strike is to double the sentencing. The trial court also advised Andrade that if he should be convicted of a third felony, he would be facing 25 years to life in prison.

The trial court again noted that the admission to the prior conviction doubled the sentence if the jury found Andrade guilty of a felony. The trial court further stated, [T]he 667(a) is a five-year enhancement potentially.

Andrade was asked if he wanted more time with his attorney before admitting the prior conviction; he responded, No. Andrades admission to the prior conviction was accepted, with the trial court again clarifying that it was a provisional admission, of no force and effect unless the jury convicted Andrade of a felony.

The jury found Andrade guilty on both counts as charged. At sentencing, Andrade made a motion to dismiss the prior conviction in the interests of justice; the motion was denied.

The trial court imposed the midterm of four years for the count 1 felony conviction, a consecutive three-year term for the great bodily injury enhancement, and a five-year consecutive term for the section 667, subdivision (a) enhancement, for a total term of 12 years. The term for the count 2 conviction was stayed pursuant to section 654.

DISCUSSION

Andrade contends he was misled into admitting his prior conviction because the trial court stated it would potentially result in an additional five-year term. This contention is without merit.

It is apparent from a review of the record, in particular the exchange prior to acceptance of the admission, that Andrade has taken this remark out of context. Prior to accepting the admission, the trial court clearly informed Andrade that admitting the prior conviction could add five years to his sentence if the jury convicted him of a felony in the present case. It is clear from the discussion that the use of the term potentially related to the contingency of whether or not the jury returned a verdict of guilty of a felony.

Furthermore, the discussion at the time the information was amended to include the section 667, subdivision (a) enhancement makes clear that the five-year enhancement must be imposed if Andrade were convicted of a felony in count 1. The People specifically stated that if Andrade were found guilty of a felony violation in count 1 and the great bodily injury enhancement were found true, then a true finding on the section 667, subdivision (a) enhancement would result in an additional five years imprisonment. Defense counsel argued against the People being allowed to amend the information, noting in part that if it were allowed, Andrade would be subject to an additional five years in prison.

When viewed in context with the entire discussion leading up to the admission, in conjunction with the discussion at the time of the amendment to allege the enhancement, combined with Andrade being given ample opportunity to discuss the matter further with counsel before admitting the prior, we conclude Andrade was adequately informed of the penal consequences of his admission.

Regardless, the advisement of the penal consequences of admitting a prior conviction is a judicially declared rule of criminal procedure. (People v. Wrice (1995) 38 Cal.App.4th 767, 770.) Therefore, any claim of error in failing to advise a defendant of the penal consequences of an admission is forfeited if not raised at sentencing. (Id. at pp. 771-771; People v. Walker (1991) 54 Cal.3d 1013, 1023.) Andrade did not raise this issue at sentencing; therefore, it is forfeited.

DISPOSITION

The judgment is affirmed.

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^* Before Vartabedian, Acting P.J., Cornell, J. and Gomes, J.

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