P. v. Madani

Filed 4/27/07 P. v. Madani 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

When a person has been convicted of felony assault with a deadly weapon (Pen. Code, 245) by means of a vehicle, and the Department of Motor Vehicles (DMV) receives a certified abstract of judgment which shows these facts, it must revoke that persons drivers license for life. (Veh. Code, 13351.5 (section 13351.5).)^[1] The statute makes it absolutely clear that the DMV may revoke the license only if the abstract of judgment conveys all the required information. The statute also makes clear that it is the DMV, not the trial court, which is to revoke the license.

In this case, after a negotiated no contest plea to two felony violations of Penal Code section 245 which did not include vehicle-use allegations, the trial court purported to revoke defendants license under section 13351.5 on its own motion, rather than referring the matter to the DMV. Moreover, the abstract of judgment does not show that the statutes criteria were satisfied -- and could not have done so under the express terms of the plea bargain. Therefore, the courts act amounted to an unauthorized sentence and violated the plea bargain. We shall vacate defendants sentence and remand with directions that defendant be permitted to withdraw the plea.

FACTS

The charged offenses

According to the probation report, defendant, driving an SUV and carrying passengers, had a verbal altercation with three persons walking to a store. He drove away, then returned. The two groups threw objects at each other; defendant again drove away, then returned. This time, defendant drove onto the sidewalk at 20 or 25 miles per hour, aiming straight for the other group. The vehicle struck one member of the group, seriously injuring him, and narrowly missed the others. Defendant drove away again.

Defendant was charged with three counts of assault with a deadly weapon, a motor vehicle, with force likely to cause great bodily injury (Pen. Code, 245, subd. (a)(1)), and one count of leaving the scene of an accident (Veh. Code, 20001, subd. (a)). As to count 1, defendant was charged with inflicting great bodily injury in the commission of the offense. (Pen. Code, 12022.7, subd. (a).)

The probation report

The probation report, filed before the trial court accepted defendants no contest plea, recommended a seven-year prison sentence and the revocation of defendants drivers license under section 13351.5.^[2]

The plea bargain

The trial court and the parties entered into a negotiated plea agreement on the record, as follows: (1) The complaint was amended to strike the allegations that a motor vehicle was used as a deadly weapon as to counts 1 and 2 (assault with a deadly weapon). (2) Defendant pled no contest to those counts and to inflicting great bodily injury as to count 1; count 3 (assault with a deadly weapon) and count 4 (leaving the scene of an accident) were dismissed with a Harvey waiver.^[3] (3) Defendant would receive a sentence of not more than five years in state prison.

Sentencing

At the sentencing hearing, the trial court rejected defense counsels argument for probation, stating among other things: The concern I have with this case is that not only did [defendant] hit the three children -- hit Mr. Abbot on the sidewalk but that he did so with an SUV. So he took the vehicle off the roadway and he w[e]nt on to the sidewalk and there struck Mr. Abbot because Mr. Abbot was unable to get out of the way.

The court imposed a five-year prison sentence, consisting of two years (the low term) on count 1, enhanced by three years for the infliction of great bodily injury, with two years on count 2 run concurrently. At the tail end of its sentencing statement, the court said: Your license will also be revoked. Defendant did not object.

The abstract of judgment

The abstract of judgment shows that defendant was sentenced to two years in prison on count 1, described as P[enal] C[ode] [section] 245(a)(1) ASSAULT w/DEADLY WEAPON w/LIKELYHOOD [sic] OF GRET [sic] BODILY HARM[,] and to an additional three years for the great bodily injury enhancement to count 1, with count 2 (described only as ASSAULT w/DEADLY WEAPON) sentenced concurrently. Consistent with the plea bargain, it does not mention the use of a vehicle as to counts 1 and 2; nor does it mention the dismissed count 3.

Under [o]ther orders, the abstract shows: CDL REVOKED.

DISCUSSION

I

Under the circumstances, license revocation was an unauthorized sentence, and defendants failure to object does not forfeit his claim of error

When the conditions of section 13351.5 are satisfied, the DMV must revoke the defendants license. (In re Grayden N. (1997) 55 Cal.App.4th 598, 603.) But the statute does not authorize the trial court to revoke the license itself. (People v. Linares (2003) 105 Cal.App.4th 1196, 1199, fn. 2.) That is the case here.

As we have noted, for license revocation under section 13351.5 to occur, the DMV must receive a certified abstract of judgment which shows not only that the defendant was convicted under Penal Code section 245, but also that the trial court found defendant used a vehicle as the deadly weapon or instrument in committing the offense. ( 13351.5, subd. (a).) Here, the abstract does not show this: in keeping with defendants plea bargain, it does not mention the use of a vehicle at all. Thus, even if furnished to the DMV, it would give the DMV no basis to act against defendants license.^[4]

Furthermore, the Legislature plainly did not intend the trial court to revoke a drivers license under section 13351.5, as the court purported to do here. Division 6 of the Vehicle Code, which deals with drivers licenses (Veh. Code, 12500 et seq.), contains a chapter covering suspension or revocation of licenses on all possible grounds (ch. 2; Veh. Code, 13100 et seq.). This chapter consists mostly of two articles: article 2 (Suspension or Revocation by Court; Veh. Code, 13200-13209) and article 3 (Suspension and Revocation by Department; Veh. Code, 13350-13392). We must presume that the Legislature put each suspension and revocation proceeding into one or the other article deliberately. Thus, where, as here, the Legislature has said the DMV is to suspend or revoke a license, we may not conclude that the Legislature really meant the court to do it or did not care who did it.^[5] [T]he DMV, not the court, is empowered to revoke a drivers license. [Citation.] (People v. Linares, supra, 105 Cal.App.4th at p. 1199.)

Because the trial court neither referred the matter to the DMV nor made the finding in the abstract of judgment which would mandate the DMV to revoke defendants license, the courts purported license revocation was an unauthorized sentence under section 13351.5. (See People v. Linares, supra, 105 Cal.App.4th at pp. 1199-1200 & fn. 2.) For this reason, defendants failure to object at the time of sentencing does not forfeit his claim of error. (People v. Smith (2001) 24 Cal.4th 849, 852; People v. Scott (1994) 9 Cal.4th 331, 354.)

II

The trial courts order also violated the plea bargain, entitling defendant to withdraw his plea^[6]

Defendant successfully bargained to enter a plea that would not reflect the use of a vehicle to commit the alleged crimes. Although the record does not explicitly show why defendant insisted on these terms, we cannot conceive any purpose other than to prevent the revoking of his license. Penal Code section 245 on its face does not indicate any other way in which a plea to assault with a deadly weapon, a motor vehicle would differ in its consequences from a plea to the bare offense, and the parties have not cited authority which would show any other difference.

After accepting defendants plea on the record, the trial court, disregarding defendants evident purpose in bargaining for the agreed terms, purported to impose the very condition he had sought to avoid. Regardless of whether license revocation is a direct consequence of a plea to assault with a deadly weapon, a vehicle, as to which a defendant must be advised before entering the plea (see Corley v. Department of Motor Vehicles (1990) 222 Cal.App.3d 72, 76 (Corley)), it is not supposed to be a consequence at all where the plea is simply to assault with a deadly weapon.

Where the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this Section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea. (Pen. Code, 1192.5; italics added.)

[W]here the defendants plea was entered pursuant to a plea bargain, and sentence is imposed in excess of the bargained for term, he is entitled to withdraw the plea of guilty or nolo contendre and enter a new plea of not guilty to the charged offense. (Corley, supra, 222 Cal.App.3d at p. 77.)

In Corley, the defendant entered a plea to two drunk driving offenses and was not advised that the plea would subject him to the mandatory suspension of his license by the DMV. After the DMV notified him of the suspension, the appellate court held that because he had not been advised of this direct consequence of his plea, he was entitled to withdraw it. (Id. at pp. 74-78.)

The situation here is analogous to that in Corey, supra, 222 Cal.App.3d 72. Although the probation report gave defendant notice that his license would be revoked on conviction of the charged offenses, it did not notify him that the trial court might impose that penalty after accepting a plea which removed the vehicle-use allegations.

By purporting to revoke defendants license, the court proceed[ed] as to the plea other than as specified in the plea and violated the spirit of the plea bargain. (Pen. Code,  1192.5.)^[7]Therefore, now that defendant is on notice that the court considers his case an appropriate one for license revocation despite his plea, he should be permitted to withdraw the plea. (See Corley, supra, 222 Cal.App.3d at pp. 74-78.)

III

Defendant is not entitled to specific performance of the plea bargain

Defendant requests in the alternative that we strike the purported license revocation order so as to give defendant the remedy of specific performance of his plea bargain. (See People v. Mancheno (1982) 32 Cal.3d 855, 860-861 (Mancheno).) We conclude that he is not entitled to this relief because it would bind the trial court to a sentence the court probably thinks inappropriate.

In Mancheno, our Supreme Court explained how to decide whether the proper remedy for a trial courts violation of a plea bargain is to permit the defendant to withdraw his plea or to order specific performance of the plea bargain. The goal in providing a remedy for breach of the bargain is to redress the harm caused by the violation without prejudicing either party or curtailing the normal sentencing discretion of the trial judge. The remedy chosen will vary depending on the circumstances of the case. Factors to be considered include who broke the bargain and whether the violation was deliberate or inadvertent, whether circumstances have changed between entry of the plea and the time of sentencing, and whether additional information has been obtained that, if not considered, would constrain the court to a disposition that it determines to be inappropriate. Due process does not compel that a particular remedy be applied in all cases. [Citation.] []  The usual remedies for violation of a plea bargain are to allow defendant to withdraw the plea and go to trial on the original charges, or to specifically enforce the plea bargain. Courts find withdrawal of the plea to be the appropriate remedy when specifically enforcing the bargain would have limited the judges sentencing discretion in light of the development of additional information or changed circumstances between acceptance of the plea and sentencing. Specific enforcement is appropriate when it will implement the reasonable expectations of the parties without binding the trial judge to a disposition that he or she considers unsuitable under all the circumstances. (Mancheno, supra, 32 Cal.3d at pp. 860-861; italics added.)

It is evident not only from the trial judges purported license revocation order but from his sentencing statement that he would probably consider a disposition permitting defendant to drive after release from prison unsuitable under all the circumstances. (Mancheno, supra, 32 Cal.3d at p. 861.) Although there was no development of additional information or changed circumstances between acceptance of the plea and sentencing (ibid.), there is at least one piece of relevant information the judge lacked at the time of sentencing: a correct understanding of section 13351.5. Had the judge possessed that understanding, we doubt strongly that he would have accepted a plea on terms which barred him from finding, as the statute requires, that a vehicle was . . . the deadly weapon or instrument used to commit [the] offense[.] (Ibid.)

For all the above reasons, we find that specific performance of the plea bargain would be an improper remedy in this case.

DISPOSITION

Defendants sentence is vacated. The matter is remanded to the trial court with directions that the trial court determine whether to accept defendants plea bargain and that defendant be permitted to withdraw his plea, if he so chooses. Defendant shall file any motion to withdraw his plea within 30 days of the filing of our remittitur.

SIMS , Acting P.J.

We concur:

NICHOLSON , J.

MORRISON , J.

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^[1] Section 13351.5 provides as relevant:

(a) Upon receipt of a duly certified abstract of the record of any court showing that a person has been convicted of a felony for a violation of Section 245 of the Penal Code and that a vehicle was found by the court to constitute the deadly weapon or instrument used to commit that offense, the department immediately shall revoke the privilege of that person to drive a motor vehicle.

(b) The department shall not reinstate a privilege revoked under subdivision (a) under any circumstances.

^[2] A second probation report filed after the entry of defendants plea also recommended license revocation.

^[3]People v. Harvey (1979) 25 Cal.3d 754.

Defendant acknowledges that the Harvey waiver permitted the trial court to consider the underlying facts of the dismissed counts -- which included the vehicle-use allegation as to count 3, since that allegation was not stricken under the plea bargain. (Cf. People v. Beck (1993) 17 Cal.App.4th 209, 215.) Defendant asserts, however -- under the heading, The Facts Are Insufficient To Support The Imposition Of The License Revocation -- that the Harvey waiver cannot validate his license revocation because that judicial act amounted to an enhancement of his sentence based on facts not found true beyond a reasonable doubt by a jury, in violation of Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]. We reject this contention.

First, because it is not raised properly under its own heading, it is forfeited. (Cal. Rules of Court, rule 8.204(1)(B); Opdykv. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4 [Cal. Rules of Court, former rule 15(a)].) Second, it is wrong: license revocation is not a penal sanction but a civil administrative penalty (see Fearn v. Zolin (1992) 9 Cal.App.4th 1756, 1761-1762) and thus cannot be deemed a sentence enhancement.

^[4] Vehicle Code section 13550 provides: Whenever any person is convicted of any offense for which this code makes mandatory the revocation or suspension by the department of the privilege of the person to operate a motor vehicle, the privilege of the person to operate a motor vehicle is suspended or revoked until the department takes the action required by this code, and the court in which the conviction is had shall require the surrender to it of the drivers license or temporary permit issued to the person convicted and the court shall within 10 days after the conviction forward the same with the required report of the conviction to the department.

If the trial court had merely erred procedurally by purporting to revoke defendants license rather than referring the matter to the DMV, we could find the error harmless and remand with directions that the court follow Vehicle Code section 13550. But since the abstract of judgment prepared at sentencing does not make the finding required for DMV action, this remedy would be futile.

^[5] The People recognize that the trial court was empowered under section 13351.5 only to refer the matter to the DMV, not to revoke the license. Yet they begin the heading of their first argument: Appellants Drivers License Was Properly Revoked Pursuant To . . . Section 13351.5[.] If the statute does not authorize the court to revoke the license, it could not have been properly revoked by the court.

^[6] On March 2, 2006, defendant filed his timely notice of appeal based on a sentence or other matters occurring after the plea. Following application by appellate counsel that defendant be granted leave to obtain a tardy certificate of probable cause, on November 2, 2006, this court issued an order that the notice of appeal is deemed to include a certificate of probable cause for purpose of appellate review.

^[7] Thus, we need not decide whether the courts order also constituted a punishment more severe than that specified in the plea[.] (Pen. Code, 1192.5; see Fearn v. Zolin, supra, 9 Cal.App.4th at pp. 1761-1762 [license revocation not penal sanction]).