face="Times New Roman">10/17/13
face=Arial>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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
THE PEOPLE,
Plaintiff and Respondent,
v.
QUADAIR TYSHAWN
COLVIN,
Defendant and Appellant.
E055199
(Super.Ct.No. RIF1103603)
OPINION
face="Times New Roman">
face="Times New Roman"> APPEAL
from the Superior
County. Becky Dugan,
Judge. Affirmed with directions.
face="Times New Roman"> Sara
A. Stockwell, under appointment by the Court of Appeal, for Defendant and
Appellant.
face="Times New Roman"> Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Teresa
Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
face="Times New Roman"> Defendant
Quadair Tyshawn Colvin appeals following a guilty plea to one felony count of
driving under the influence of alcohol with a blood-alcohol level of 0.15 or
more, causing great bodily injury,
and two related misdemeanor counts and various allegations. His original guilty plea, to one misdemeanor
count of driving under the influence, was set aside on motion of the
prosecution after the prosecutor belatedly realized that one victim, Ann G.,
had suffered a serious injury, specifically a broken arm.
filed a first amended complaint,
charging defendant with, among other charges, three felony counts of driving
under the influence while having a blood-alcohol level in excess of 0.15
percent, causing bodily injury to two victims and causing great bodily injury
to one victim. (Veh. Code,
§§ 23153, subds. (a), (b), 23578, counts 1-3; Pen. Code, §§ 12022.7, subd.
(a), 1192.7, subd. (c)(8), counts 1 & 2.)
Defendant ultimately pleaded guilty to one felony and two misdemeanors. (Further details of the first amended
complaint and the plea are set forth below.)
misdemeanor plea reinstated or his second guilty plea vacated because the
second plea was not knowing, intelligent and voluntary due to ineffective
assistance of counsel, and because the trial court was without jurisdiction to
enter the second plea because it lacked jurisdiction to vacate the original
plea.
with directions.
PROCEDURAL HISTORY
misdemeanor counts of driving under the influence of alcohol, causing bodily
injury (Veh. Code, § 23153, subds. (a), (b), counts 1 & 2), driving with a
blood-alcohol concentration of 0.15 percent or more (Veh. Code, § 23578, counts
1 & 2) and misdemeanor hit and run (Veh. Code, § 20002, subd. (a),
count 3). Defendant pleaded guilty
to counts 2 and 3 and admitted a prior conviction for driving under the
influence pursuant to a plea agreement which provided for probation. Count 1 was dismissed. Before defendant was sentenced, the district
attorney learned that a third victim had suffered a serious injury and moved to
vacate the plea in order to charge defendant with felony driving under the
influence. The motion was granted, and a
first amended complaint was filed.
charged with felony driving under the influence and driving while having a
blood-alcohol level of 0.15 percent or more, causing great bodily injury to Ann
G. (Veh. Code, §§ 23153, subds. (a), (b), 23578; Pen. Code, § 12022.7, subd.
(a), counts 1 & 2), rendering those counts serious offenses within the
meaning of Penal Code section 1192.7, subdivision (c)(8). He was also charged with felony driving under
the influence and driving while having a blood-alcohol level of 0.15 percent or
more, causing bodily injury to Scott G. and Kailya G. (Veh. Code, §§ 23153,
subd. (a), 23578, count 3) and alternatively with misdemeanor driving under the
influence and driving while having a blood-alcohol level of 0.15 percent or
more, causing bodily injury to Scott G. and Kailya G. (Veh. Code, §§ 23153, subd. (b), 23578,
count 4.) Additionally, he was
charged with misdemeanor hit and run.
(Veh. Code, § 20002, subd. (a), count 5.) The first amended complaint also alleged
prior convictions for violating Vehicle Code section 23152, subdivisions (a)
and (b), and a prior felony prison term, within the meaning of Penal Code section
667.5, subdivision (b).
driving under the influence (count 1), to one misdemeanor count of driving
under the influence causing bodily injury (count 4), and to one misdemeanor
count of hit and run (count 5). He
admitted driving with a blood-alcohol level of 0.15 percent or more, admitted
the great bodily injury allegation, and admitted the prior conviction for
driving under the influence. Pursuant to
a plea agreement, the sentence for the great bodily injury enhancement was
stayed and defendant was sentenced to two years in state prison with concurrent
terms of 180 days in county jail for each of the misdemeanors.
appeal and obtained a certificate of probable cause.
FACTS
was driving in the eastbound carpool lane of Highway 91 near the
Club Drive
Kailya G. and his wife, Ann G. A
car hit Scott’s car from the right. The
impact pushed Scott’s car into the concrete median and onto the median
wall. His car collided with a metal
signpost and landed in the westbound carpool lane. It hit the center median before coming to
rest. The other car did not stop.
vehicle with major collision damage to the entire left side, with a person
asleep inside. When the officers found
the car, they observed that the driver’s side window was shattered and both
left tires were missing. There were
imbedded grooves in the asphalt from the eastbound Highway 91 off-ramp at
Club Drive
the vehicle was parked. Officers found
defendant asleep in the driver’s seat with the car keys in his lap. Several small pieces of glass were visible in
the left side of defendant’s hair. When
an officer woke him, he appeared disoriented.
at the time of the collision. He said he
had lent the car to a friend, Matt, and that a female friend had told him that
Matt had crashed the car. He got a ride
to the car’s location. He said he did
not notice the damage to the car but decided to sleep in the car until morning
and then call a tow truck.
defendant’s breath. Defendant was
uncooperative and failed to perform field sobriety tests as directed. A breath test device was used and yielded
results of 0.197 percent, 0.218 percent and 0.209 percent blood-alcohol
content. Defendant was arrested and
booked into custody.
treated at the scene for a laceration to her finger and Ann G. was transported
to a hospital by ambulance due to complaints of pain in her arm, the side of
her head and her lower back. She later
reported that she had suffered a broken arm, a concussion, whiplash and vertigo
in the accident.
DISCUSSION
1.
WAIVER OF APPEAL RIGHTS
face="Times New Roman"> In
his opening brief, defendant asserted three grounds for vacating his guilty
plea: That the court lacked the
authority to grant the prosecution’s motion to withdraw from the original plea
bargain; that the court erred in denying his Marsden
after the prosecution’s withdrawal from the original plea bargain; and that his
attorney provided ineffective assistance during the process leading up to
defendant’s second guilty plea, rendering his plea not voluntary. Defendant obtained a
these issues on appeal.
In his
second plea agreement, defendant waived his right to appeal. In her response brief, the Attorney General
asserted that defendant’s waiver of his appeal rights barred his contention
that the trial court improperly denied his Marsden motion. We asked the parties to provide supplemental
briefing addressing the question whether this waiver operated to bar review of
all of the issues raised in defendant’s opening brief. Both parties filed supplemental briefs
addressing this issue. We will address the effect of the waiver on each of the
issues in turn.
face="Times New Roman">
Original Plea Agreement.
bargain. (People v.
Panizzon (1996) 13 Cal.4th 68, 80.)
A nonspecific waiver such as the one contained in defendant’s plea
the waiver. Because waiver is the
relinquishment of a known right, a nonspecific waiver does not bar appeal of
future errors which the defendant could not have contemplated when he or she
executed the waiver. (
Vargas (1993) 13 Cal.App.4th 1653, 1662 [Fourth Dist., Div. Two].)
Here,
when defendant executed the second plea agreement, the order setting aside the
original plea agreement had, obviously, already occurred, and the validity of
that order was therefore within defendant’s contemplation when he executed the
waiver. Defendant contends that the
waiver nevertheless does not preclude review because “the unilateral setting
aside of [defendant’s] plea agreement goes to the very heart of the legality of
the subsequent proceedings.†He contends
that if the trial court was without authority to set aside the original plea
agreement, the court also lacked jurisdiction to enter the subsequent plea,
rendering the second plea agreement and its waiver of appeal void.
not without jurisdiction either to set aside the original plea agreement or to
accept the second plea agreement and to enter defendant’s guilty plea. Defendant fails to distinguish between lack
of fundamental jurisdiction and an act in excess of a court’s
jurisdiction. “A lack of jurisdiction in
its fundamental or strict sense results in an entire absence of power to hear
or determine the case, an absence of authority over the subject matter or the
parties. [Citation.] On the other hand, a court may have
jurisdiction in the strict sense but nevertheless lack jurisdiction (or power)
to act except in a particular manner, or to give certain kinds of relief, or to
act without the occurrence of certain procedural prerequisites. [Citation.]
When a court fails to conduct itself in the manner prescribed, it is
said to have acted in excess of jurisdiction.â€
(People v. Lara (2010) 48 Cal.4th 216,
224-225, internal quotation marks omitted.) While an act which is beyond the
court’s fundamental jurisdiction is void ab initio, an
act in excess of jurisdiction is valid until it is set aside, and “parties may
be precluded from setting it aside by such things as waiver, estoppel, or the
passage of time.†(Id.
at p. 225, internal quotation marks omitted.)
Here, the court had jurisdiction over the subject matter and over the
parties. Accordingly, even if the court
acted in excess of its jurisdiction when it set aside the original plea
agreement, it did not lack fundamental jurisdiction to do so or to enter
defendant’s subsequent plea.
certificate of probable cause renders
the issue cognizable on appeal.
opening brief. However, in his reply
brief, defendant made the same argument in response to the Attorney General’s
contention that defendant waived the right to appeal the denial of his
There, he cited People v. Panizzon,
appealable because it implicated his constitutional right to counsel and
because he obtained a certificate of probable cause. Panizzon does
not support the contention that a certificate of probable cause vitiates a
valid waiver of appeal in a plea agreement, however.
waived his right to appeal in his plea agreement and did not obtain a
certificate of probable cause to assert that the sentence, which was a
negotiated term of the plea agreement, was constitutionally
disproportionate. The Supreme Court held
that the waiver and the absence of a certificate of probable cause each
independently barred the appeal. The
court did not hold that Panizzon would have been able to maintain the appeal
despite the waiver if he had obtained a certificate of probable cause. Rather, after concluding that the appeal was
barred by the absence of a certificate of probable cause, the court went on to
discuss waiver as an alternative basis for concluding that the appeal was
barred. (Id.
at pp. 79-89.) The court stated its
conclusion as follows: “Although
defendant maintains he is not contesting the validity of his bargained plea, he
seeks to challenge the very sentence he negotiated as part of the plea. . .
. [W]e conclude that such a claim is, in
substance, an attack on the validity of the plea which is not reviewable on
appeal because defendant failed to seek and obtain a certificate of probable
cause. [Citation.] Further, even if it is assumed that
defendant’s claim does not challenge the validity of the plea, the claim still
is not reviewable on appeal because the terms of the plea bargain [i.e., the
waiver] preclude any appeal of the negotiated sentence.â€
(
consistent with earlier rulings holding that an issue which is not otherwise
cognizable on appeal does not become so merely because the court issues a
certificate of probable cause. (
also People v. Lovings (2004) 118 Cal.App.4th
1305, 1310-1311.)
affect the voluntariness of the plea may be cognizable on appeal despite a waiver
of appeal in the plea agreement.
However, defendant does not contend that setting aside his original plea
agreement rendered his subsequent plea, the agreement or the waiver not
voluntary. Accordingly, the issue is not
cognizable despite the certificate of probable cause.
can challenge the denial of his Marsden motion
because it implicates his constitutional right to counsel and because he
obtained a certificate of probable cause to raise that issue on appeal.
does not survive a guilty plea, even without a waiver of appeal rights, unless
the defendant asserts that counsel’s ineffectiveness, as alleged in the
intelligently and voluntarily made.†(
proceedings. (Ibid.) And, if the Marsden
motion does not go to the legality of the proceedings, issuance of a
certificate of probable cause does not confer cognizability. (People v. Lovings,
Cal.App.4th at p. 1311.)
trial attorney which he raised in his Marsden motion
“influenced†his decision to plead guilty because he was ignorant of the truth
of the great bodily injury allegation as a result of his attorney’s “complete
lack of preparation.†However, the
denial of the motion did not directly affect the validity of the waiver or of
the plea. At the Marsden
hearing, defendant sought to have his attorney replaced because the attorney
had failed to obtain discovery which would establish that Ann G. had suffered
great bodily injury in the accident defendant caused. However, the attorney’s advice could have
directly affected the validity of the subsequent plea only if the attorney
continued to provide ineffective assistance after the
denial of the Marsden motion. The record does not reflect that this was the
case. After the motion was denied,
defendant had further opportunity to discuss with his attorney whether the
prosecution could most likely prove the great bodily injury allegation. And, as we discuss below, the record reflects
that defendant evaluated his options with knowledge that the prosecution could
probably prove the great bodily injury allegation, and that he knowingly and
intelligently decided that the plea was to his benefit, despite any misgivings
he may have had. Accordingly, any error
in the denial of the Marsden motion
did not survive defendant’s subsequent plea and waiver.
Voluntary Because Defendant Received Ineffective Assistance of Counsel Survives
the Waiver.
assistance of counsel (IAC) claim is cognizable on appeal, despite the waiver,
because defendant contends that his trial attorney’s failure to determine
whether the prosecution could prove that Ann G. suffered injuries amounting to
great bodily injury rendered his plea not knowing, intelligent and
voluntary. We agree as well. Although we have not found any California
authority directly on point, the decisions holding that the denial of a
that the attorney’s failings rendered the plea not knowing and voluntary
provide a useful analogy, where the IAC claim is likewise asserted to have
affected the voluntariness of the plea.
(See People v. Lobaugh, supra,
188 Cal.App.3d at p. 786; People v. Lovings,
Cal.App.4th at p. 1311.) And, federal
courts which have addressed the question have held that an IAC claim survives a
guilty plea with a waiver of appeal rights if the IAC is alleged to have
directly affected the plea or the waiver and to have rendered the plea or the
waiver itself unknowing or involuntary.
(See discussion in United States v. White
(5th Cir. 2002) 307 F.3d 336, 339, 341-344, and cases cited therein.) We agree with the reasoning of these cases,
and we conclude that because defendant’s IAC claim, if well founded, would
render his plea agreement not intelligent and voluntary, the claim cannot be
defeated by the waiver.
2.
DEFENDANT’S PLEA WAS VOLUNTARY,
KNOWING AND INTELLIGENT
and intelligent because he “never knew the truth†of the great bodily injury
allegation and that it was not voluntary because his decision to plead guilty
was influenced by his trial attorney’s lack of preparation, in that his
attorney had not investigated or obtained discovery concerning the great bodily
injury allegation. We disagree.
of law reviewed de novo. (Marshall v. Lonberger (1983) 459 U.S. 422,
431.) “The determination of
whether there has been an intelligent waiver . . . must depend, in each case,
upon the particular facts and circumstances surrounding that case, including
the background, experience and conduct of the accused.†(Johnson v. Zerbst
(1938) 304 U.S. 458, 464.) A plea is
valid only if the record affirmatively shows that it is voluntary under the
totality of the circumstances. (
defendant considered his options with full knowledge of the relevant facts and
made an intelligent choice among the options available to him.
and the change of plea hearing, defendant asked intelligent questions
reflecting his understanding of the charges against him, the consequences and
the process. During the
court about the belated addition of the great bodily injury allegation and
about whether the allegation would result in limitation of his credits to 15
percent, and he was very articulate as to both concerns. With respect to the great bodily injury
allegation, it was clear that defendant had read the probation report, in which
the probation officer reported that Ann G. said that she had suffered a broken
arm, a concussion, whiplash and vertigo in the accident. He was not satisfied that his attorney had
not yet obtained medical records supporting the victim’s statement;
nevertheless, he knew the basis for the great bodily injury allegation, and he
considered whether to risk going to trial, where he expected to lose, or accept
the offer. He was told that he did not
have to accept the offer and that he could choose to proceed with the
preliminary hearing and go to trial.
that his sentence would be subject to the 15 percent credit limitation because
the great bodily injury allegation purportedly made count 1 a violent
felony. He stated that he would accept
the offer if it was “two years with half.â€
At that point, the judge thought he would get half-time credits, while
defendant’s attorney believed that because the great bodily injury allegation
made his offense a strike, defendant would serve 85 percent of the
sentence. The matter was not resolved at
the Marsden hearing. However, at the change of plea hearing, the
court explained to defendant that he would serve 85 percent of the sentence
because the great bodily injury allegation made his offense a strike. Defendant stated that he understood. After acknowledging that his attorney had
explained his rights, defendant pled guilty to count 1.
that defendant weighed his options and knowingly and intelligently chose what
he deemed to be the best option available to him. He was fully advised of his constitutional
rights, the consequences of the guilty plea, and any possible defenses. Accordingly, any failure of his trial
attorney to obtain further proof of the victim’s injuries did not render
defendant’s guilty plea invalid. And,
even if the trial court was incorrect in stating that defendant would serve 85
percent of his sentence, this does not invalidate the plea. On the contrary, defendant was aware that he
would not receive half-time credits but still chose to plead guilty.
DISPOSITION
dismissing the Penal Code section 667.5, subdivision (b), enhancement
allegation in accordance with the plea agreement. The trial court is directed to dismiss the
allegation within 30 days after the finality of this opinion and to provide
copies of amended sentencing minutes reflecting the dismissal to the parties
and to the Department of Corrections and
Rehabilitation. The judgment is
otherwise affirmed.
face="Times New Roman">McKINSTER
face="Times New Roman"> Acting P. J.
We concur:
RICHLI
J.
CODRINGTON
J.
prosecutor will dismiss any charges and enhancements that defendant did not
admit. Defendant did not admit the Penal
Code section 667.5, subdivision (b), prior prison term enhancement as part of
the plea agreement. However, although
the prosecutor moved to dismiss the remaining counts, she did not move to dismiss
that enhancement, and the court did not dismiss it. We will remand the matter with directions to
the trial court to dismiss the enhancement.
Parenthetically, we note that the sentencing
minutes read, “Court orders Prior(s) 2 Stricken.†The reporter’s transcript reflects that the
court did not dismiss the Penal Code section 667.5, subdivision (b), prior
prison term enhancement. The oral
pronouncement of judgment prevails over the clerk’s minutes, and if there is
any discrepancy between the two, the minutes are presumed to reflect a clerical
error. (People v.
Mesa (1975) 14 Cal.3d 466, 471; People v. Mitchell
(2001) 26 Cal.4th 181, 184-185.)
(1970) 2 Cal.3d 118.
