P. v. Hogg
Filed 5/8/06 P. v. Hogg CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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. ROBERT WILLIAM HOGG,* Defendant and Appellant. | E038383 (Super.Ct.No. INF046902) OPINION |
APPEAL from the Superior Court of Riverside County. Charles Everett Stafford, Jr., Judge. Affirmed as modified.
Laurel Nelson Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Lynne G. McGinnis, Deputy Attorney General, for Plaintiff and Respondent.
Pursuant to a plea agreement, defendant pleaded guilty to one count of vehicular manslaughter (Pen. Code, § 192, subd. (c)(1)) (count 1) with an enhancement for fleeing the scene (Veh. Code, § 20001, subd. (c)); one count of hit and run with death or injury (Veh. Code, § 20001, subd. (a)) (count 2); and four counts of misdemeanor reckless driving causing injury (Veh. Code, § 23104, subd. (a)) (counts 3-6). Defendant was sentenced to a total term of 11 years in state prison as follows: the upper term of six years on count 1, plus a five-year consecutive term for the enhancement attached to that count; a concurrent upper term of four years on count 2; and credit for time served on the remaining misdemeanor counts.
On appeal, defendant contends (1) the trial court erred in failing to award him presentence custody credits for the 161 days he spent in custody in Las Vegas, Nevada, awaiting extradition charges; (2) the trial court erred in sentencing him to the upper term on count 1; (3) he was deprived of his federal and state constitutional rights to a jury trial and due process under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) when the trial court imposed the upper term on count 1; (4) the prosecutor committed misconduct during the sentencing hearing by misrepresenting the facts and law; and (5) he was provided ineffective assistance of counsel if this court finds he waived the above contentions by failing to object below.[1] We agree that defendant is entitled to an additional 161 days of presentence custody credits; we reject his remaining contentions and affirm the judgment.
I
FACTUAL BACKGROUND[2]
On March 21, 2004, a few hours after sharing a pitcher of beer with a friend, defendant, driving a red Ford truck, ran a red light at the intersection of Fred Waring Road and Deep Canyon Drive in the City of Palm Desert. The Ford truck collided with a Jeep Wrangler that was crossing the intersection on the green light. Defendant's truck rotated counter clockwise, flipped in the air, and collided with a Chrysler Sebring. Defendant's truck continued out of control, rolled over 360 degrees, and collided with a fourth car, a Dodge Grand Caravan that was approaching the intersection.
As a result of the collision, the driver of the Chrysler Sebring, Maribel Rodriguez, was killed instantly. Her passenger, Russell Ward, suffered major head and internal injuries. One passenger in the Jeep Wrangler, Anthony Chavez, was ejected and suffered major head injuries. Wade Koch, the driver of the Jeep Wrangler, and his remaining two passengers, Mark Pitruzzella and Brianna Slater, were also injured and taken to Desert Regional Medical Center for treatment.
Defendant left the scene of the accident. His girlfriend initially denied knowledge of defendant's whereabouts and informed the police that defendant had told her he had been involved in a fight. Defendant eventually fled to Las Vegas. On March 30, 2004, U.S. Marshals arrested defendant in Las Vegas after an anonymous tip led them to his location.
After waiving his constitutional rights, defendant was interviewed in Las Vegas by Riverside County sheriff's deputies. Defendant stated he was approaching the light when he saw it turn yellow. He believed he could make it through the intersection, so he â€
