P. v. Ramirez

Filed 6/26/07 P. v. Ramirez CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Steven P. Sanora, Judge. Affirmed with directions.

Alan Siraco, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, and Lauren E. Dana, Deputy Attorney General, for Plaintiff and Respondent.

________________________________________

Luis Ramirez appeals from the judgment entered following his plea of no contest to allegations of gross vehicular manslaughter while intoxicated, driving under the influence causing injury, and inflicting great bodily injury. He contends that imposition of an upper-term sentence violated Cunningham v. California (2007) ___U.S. ___ [127 S.Ct. 856] (Cunningham) and constituted an abuse of discretion, and that enhancements for great bodily injury were improperly imposed. We agree that the enhancements were improperly imposed, order that the judgment be modified to strike them, conclude that the Cunningham error is harmless, and affirm the judgment as modified.

BACKGROUND

In the early morning hours of November 27, 2005, defendant, who was driving while intoxicated, crossed over the divider on Rosemead Boulevard in Los Angeles County and collided with a car that had six occupants. All of the occupants were injured in the crash, one fatally.

Defendant was charged by information with nine felonies involving five occupants of the victims car. Count 1 alleged the gross vehicular manslaughter of Roca Hipolo while defendant was intoxicated, in violation of Penal Code section 191.5, subdivision (a). In counts 2 and 3 defendant was charged respectively with driving under the influence causing injury (Veh. Code,  23153, subd. (a)) and driving under the influence of 0.08 percent or more of blood alcohol causing injury (Veh. Code,  23153, subd. (b)) to Linda Granados.^[1] Counts 4 and 5, 6 and 7, and 8 and 9, respectively, charged the same two crimes as to victims Jose Granados, Linda Garcia, and Margarita Hipolo. The information further alleged that defendant had inflicted great bodily injury in counts 2, 3, and 4 (Pen. Code,  12022.7, subd. (a))^[2]and had previously been convicted of driving under the influence of alcohol.

At a hearing on February 27, 2006, the court stated it understood that defendant would be pleading to counts 1, 2, 4, and 6, which carry a maximum term of 21 years in state prison. The prosecutor noted that there were additional victims and that the maximum term could have been 28 years. Defendant personally acknowledged that he understood this to be the situation. He then entered pleas of no contest to counts 1, 2, 4, and 6, and admitted the great bodily injury allegations of counts 2, 4, and 6.^[3]

Defendant was sentenced on April 20, 2006. In a written sentencing memorandum, defendant argued for [a] term of imprisonment of 9-12 years (midterm of 6 years and consecutive sentence of one or two allegations of great bodily injury). The transcript of the sentencing hearing reveals that it was preceded by a discussion in chambers that does not appear on the record. Defense counsel argued at the hearing that an appropriate sentence in this case is 16 years, eight months based upon mid term, on the manslaughter, three counts of great bodily injury. [] And in that instance, I think the court would be free to impose the eight months consecutive. I know what the courts indicated, what the court will do, and I understand that.

The court, with no reasons given for its choices, sentenced defendant to the upper term of 10 years for vehicular manslaughter (count 1) and imposed but stayed a consecutive term of 8 months on count 2. The court next imposed three enhancements for great bodily injury of 3 years each, for a total unstayed term of 19 years.^[4] Finally, counts 4 and 6 were dismissed in furtherance of justice.

DISCUSSION

In his third argument, defendant contends, and the Attorney General aptly concedes, that the three enhancements for great bodily injury were improperly imposed. Count 1, to which the enhancements were attached in the abstract of judgment, did not allege great bodily injury. And sentence on count 2, which is the only other count that was not dismissed, was stayed.

A sentencing enhancement cannot be imposed on its own (see People v. Mustafaa (1994) 22 Cal.App.4th 1305, 13091311; People v. Smith (1985) 163 Cal.App.3d 908, 913914) nor can it be attached to a count on which sentence has been stayed (see People v. Bracamonte (2003) 106 Cal.App.4th 704, 708709; People v. Smith, supra, 163 Cal.App.3d at p. 914; People v. Guilford (1984) 151 Cal.App.3d 406, 410411). Accordingly, the great bodily injury enhancements must be stricken.

Defendant further contends imposition of the upper term for vehicular manslaughter violated Cunningham and also constituted an abuse of discretion because the factors in aggravation enumerated in the probation officers report (crime involved great bodily harm, cruelty or viciousness, taking of great monetary value, and multiple victims) either were unsupported by the record or improperly relied on dismissed counts. The Attorney General asserts there was no abuse of discretion and that defendant is barred from arguing the Cunningham issue because he did not raise it in the trial court or obtain a certificate of probable cause.

As noted, key discussions about defendants sentence took place off the record and the court gave no reasons for its sentencing choices. But given our order striking the great bodily injury enhancements, the record allows us to conclude that defendant was not prejudiced by any error in the trial courts selection of the upper term for gross vehicular manslaughter. (Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824]; Washington v. Recuenco (2006) ___ U.S. ___ [126 S.Ct. 2546, 2553]; People v. Sengpadychith (2001) 26 Cal.4th 316, 327.)

Defendants plea of no contest to counts 1, 2, 4, and 6 demonstrates that he caused injury to multiple victims. Defendant argues that consideration for sentencing purposes of a victim other than the one involved in the vehicular manslaughter count would violate the rule of People v. Harvey (1979) 25 Cal.3d 754, 758. But even assuming that defendants sentence was the type of negotiated plea contemplated by Harvey, Harvey does not apply where, as here, the dismissed counts are transactionally related to the offense to which defendant pleaded. (Ibid.; see People v. Sturiale (2000) 82 Cal.App.4th 1308, 13141315; People v. Bradford (1995) 38 Cal.App.4th 1733, 17381739.) In addition, count 2, which involved a different victim than count 1, was not dismissed and was therefore independently available for aggravating sentence on the basis of multiple victims.

Because of the number of victims and injuries in this case, the trial court properly could, and beyond a reasonable doubt would, again impose the upper-term sentence for gross vehicular manslaughter if the matter were remanded for resentencing. Accordingly, no resentencing is necessary.

DISPOSITION

The trial court is ordered to modify the judgment by striking the three enhancements imposed pursuant to Penal Code section 12022.7, subdivision (a), and to forward a copy of the modified judgment to the Department of Corrections. As modified, the judgment is affirmed.

NOT TO BE PUBLISHED.

MALLANO, Acting P. J.

We concur:

VOGEL, J.

JACKSON, J.^*

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^[1]A misspelling in the information was corrected orally during court proceedings.

^[2]Although count 2 named Linda Granados as the victim of the crime, in an apparent clerical error it alleged that defendant inflicted great bodily injury on Linda Garcia. Similarly, count 3 also named Linda Granados as the victim of the crime but alleged that defendant inflicted great bodily injury on Jose Granados. Count 4 named Jose Granados as the victim of the crime and alleged that defendant inflicted great bodily injury on Linda Granados.

^[3]As stated above, the great bodily injury allegations were contained in counts 2, 3, and 4, not counts 2, 4, and 6.

^[4]The abstract of judgment makes no reference to count 2. The three great bodily injury enhancements are associated with count 1.

^*Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.