Filed 1/26/18 P. v. Pena 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Tehama)
----
| THE PEOPLE,
Plaintiff and Respondent,
v.
JUAN MANUEL LANGERICA PENA,
Defendant and Appellant.
| C084930
(Super. Ct. No. 16CR000967)
|
On January 10, 2017, defendant Juan Manuel Langerica Pena was charged with gross vehicular manslaughter while intoxicated and vehicular manslaughter with an allegation that he fled the scene of the crime. He was also charged with driving under the influence of alcohol causing injury within 10 years of a prior DUI offense and driving with a 0.08 percent blood-alcohol content causing injury within 10 years of a prior DUI offense, including an allegation that he personally caused great bodily injury to the victim.
On April 7, 2017, defendant pled guilty to vehicular manslaughter and admitted the allegation of fleeing the scene. All other charges and allegations were dismissed.
The police report, which provided the stipulated factual basis for the plea, stated that on December 3, 2016, around 5:15 p.m., defendant was driving his pickup under the influence of alcohol at around 40 miles per hour. Defendant came up behind the victim, who was stopped on his motorcycle while waiting to turn into his driveway. Defendant’s pickup struck the victim, pushing him forward and ejecting him from the motorcycle, which caused his death. Defendant stopped his pickup near the scene, then fled on foot without reporting the collision, checking on the victim, or providing any information. After checking the reported license plate of defendant’s pickup, California Highway Patrol officers went to defendant’s home, but he was not there. His wife called defendant, who arrived as a passenger in another vehicle. Asked about the collision, defendant denied being the driver and claimed he had given his pickup to a stranger to repair the day before; however, defendant had the only keys to the pickup on his person. His eyes were red and watery, and he smelled of alcohol. After performing poorly on field sobriety tests, he took a breath test approximately four hours after the collision, which showed a blood-alcohol level of 0.12 percent.
The trial court imposed a state prison sentence of 11 years, consisting of the upper term of six years on count 2 plus five years consecutive for the enhancement. The court awarded defendant 328 days of presentence custody credit (164 actual days and 164 conduct days). The court imposed a $1,200 restitution fine, a suspended parole revocation restitution fine in the same amount, a $40 court operations fee, a $30 criminal conviction assessment, and $1,817 in victim restitution. The court also purported to suspend defendant’s driver’s license for three years. [1]
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant. However, we have found an error that requires correction.
The trial court’s order suspending defendant’s driver’s license does not comport with the Vehicle Code provision on which the court relied. Vehicle Code section 13351 provides as relevant:
“(a) The department immediately shall revoke the privilege of a person to drive a motor vehicle upon receipt of a duly certified abstract of the record of a court showing that the person has been convicted of the following crimes or offenses:
“(1) Manslaughter resulting from the operation of a motor vehicle[.]
“[¶] . . . [¶]
“(b) The department shall not reinstate the privilege revoked under subdivision (a) until the expiration of three years after the date of revocation[.]” (Italics added.) In other words, it is the Department of Motor Vehicles (DMV), not the trial court, that acts on the defendant’s license under this provision. The court’s role is merely to give the DMV notice of the defendant’s conviction.
We therefore strike the order suspending defendant’s license. We remand the matter to the trial court with directions to prepare a corrected abstract of judgment omitting the statement that defendant’s license is suspended, and to furnish the DMV with a certified copy of that abstract, as called for by Vehicle Code section 13351, subdivision (a)(1).
DISPOSITION
The matter is remanded to the trial court for further proceedings consistent with this opinion. As modified, the judgment is affirmed.
/s/
Robie, J.
We concur:
/s/
Raye, P. J.
/s/
Duarte, J.
[1] The court stated: “Counsel, I’ll reserve jurisdiction on the issue of suspension. I am not sure that Probation has it right with respect to the three years. I know it doesn’t fall under the ten-year revocation for three or more; but, nonetheless, I am going to order the three years that was listed at [section] 13351[, subdivision] (a)(1), but it may actually be longer. Generally speaking, I think it is irrelevant anyway, because of the time that the defendant is going to spend in state prison.” The abstract of judgment shows a three-year suspension.
