Filed 4/18/18 P. v. Saesee CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

ELIJAH SAESEE,

Defendant and Appellant.

F074456

(Tulare Super. Ct. No. VCF276799)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Brett R. Alldredge, Judge.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-

INTRODUCTION
Appellant/defendant Elijah Saesee pleaded no contest to driving under the influence while having 0.08 percent or more of blood-alcohol content, proximately causing bodily injury to five victims, and admitted several special allegations, including three enhancements for the personal infliction of great bodily injury. He was sentenced to seven years in prison.
On appeal, his appellate counsel has filed a brief which summarizes the facts with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Defendant submitted a letter brief and claims the court improperly ordered restitution for someone who was not a “victim” of his crime. We affirm.
FACTS
“[O]n December 14, 2012, at approximately 5:05 p.m., officers were dispatched to the area of Coelho Avenue and Cross Avenue in regards to a traffic collision with multiple injuries. Upon arrival, officers observed a GMC Yukon on its roof, a white Mercedes and a white GMC Sierra truck in the middle of the intersection. Officers observed an adult female lying on the ground with her legs still inside the passenger door of the upside down SUV. The female was later identified as victim E.H. Officers also observed a small female child in the backseat of the SUV who was bleeding from the mouth and was unresponsive. The child was later identified as M.H., and she was removed from the vehicle. Paramedics arrived and immediately transported M.H. and E.H. via ambulance to the [Kaweah] Delta Medical Center. The SUV sustained major damage on the left side and roof and the airbag was deployed.
“Officers observed a male pinned in the driver’s seat of the white Mercedes. The male was later identified as Elijah Saesee, the defendant, and he had two other males inside the vehicle. Fire personnel extracted the defendant from his vehicle. The defendant was unable to maintain his balance and officers could smell a strong odor of alcohol emitting from his breath and person. His eyes were red and watery and he appeared to be disoriented. Officers located several empty bottles of Bud Light Platinum inside the vehicle. The defendant and his two passengers were transported to the hospital for medical assistance. The defendant declined to provide a statement and, once he was medically cleared, he was transported to the Tulare County Main Jail for booking. The defendant’s vehicle sustained major front damage and both driver and passenger air bags deployed. According to the Mineral King Toxicology Report the defendant’s blood-alcohol was 0.18%.
“The driver of the GMC Sierra was later identified as victim J.M., and he was immediately transported to the [Kaweah] Delta Medical Center. His truck sustained major damage to the front and right side.
“An investigation revealed the defendant was heavily intoxicated and was driving at a high rate of speed. The defendant failed to stop at a posted stop sign and collided with J.M. and E.H.’s vehicle[s]. E.H’s vehicle rolled onto its roof and came to a stop.
“At approximately 7:00 p.m., assisting officers responded to the [Kaweah] Delta Medical Center to see how the victims were doing. Officers contacted J.R. who was seated in the backseat of the defendant’s vehicle. J.R. advised they were drinking alcoholic beverages at his girlfriend’s residence prior to the accident. He then became uncooperative and the interview was ended. Officer contacted D.S. who was the passenger in the defendant’s vehicle. D.S. indicated he did not remember what happened and continued to moan in pain. The police report did not specify the injuries J.R. and D.S. sustained.
“On December 17, 2012, three days after the accident, officers received a phone call from Dr. Mayo who advised M.H. was still on life support in critical condition. Dr. Mayo indicated M.H. had already undergone two surgeries, one of the surgeries they had to remove part of her skull to relieve the pressure on her brain from the swelling. M.H. required a special respirator to assist with her breathing due to her lungs being filled with fluid. M.H. and E.H. were subsequently transported to Community Regional Medical Trauma Center in Fresno.
“Officers attempted to speak with E.H. who was in moderately stable condition; however, she appeared to be heavily medicated. E.H. indicated she was in a lot of pain, and she sustained multiple broken ribs on her left side, a tear in her liver that required surgery to repair, and she had to have her spleen removed due to the injuries she sustained from the collision. E.H. appeared to have multiple cuts and bruises on her face, arms and hands.
“Officers responded to J.M.’s hospital room where he was unconscious and hooked up to a breathing machine. Officers spoke with J.M.’s wife who advised he had a cracked sternum, three broken ribs on the right side of his body that were causing problems, two separate pelvic fractures, his spleen was removed during surgery and he had a spine injury. Officers spoke with a nurse who was tending to J.M. who confirmed all of his injuries. The nurse further advised J.M. was in critical but stable conditions.”
PROCEDURAL HISTORY
Felony complaint
On or about July 3, 2013, an amended felony complaint was filed in the Superior Court of Tulare County charging defendant with count 1, driving under the influence causing bodily injury to D.S. (Veh. Code, §§ 23153, subd. (a), 23560), with a prior conviction for driving under the influence (Veh. Code, § 23152, subd. (b)); count 2, driving under the influence while having 0.08 percent or more of blood-alcohol content causing bodily injury to D.S. (Veh. Code, §§ 23153, subd. (b); 23560), with a prior conviction for driving under the influence (Veh. Code, § 23152, subd. (b)).
As to both counts, it was further alleged that defendant caused bodily injury to more than one victim: J.M., M.H., E.H., and J.R. (Veh. Code, § 23558); his blood-alcohol concentration was 0.15 percent and more (Veh. Code, § 23578); he personally inflicted great bodily injury on another victim, M.H., causing that victim to become comatose due to a brain injury and suffer paralysis (Pen. Code, § 12022.7, subd. (b)); and three separate enhancements for the personal infliction of great bodily injury to victims E.H., J.M., and J.R. (§ 12022.7, subd. (a)).
Plea proceedings
On January 15, 2014, defendant entered into a negotiated disposition and pleaded no contest to count 2, driving under the influence while having 0.08 percent or more of blood-alcohol content, proximately causing bodily injury to the five victims: D.S., J.M., M.H., E.H., and J.R. (Veh. Code, § 23153, subd. (b)); and admitted the prior conviction for driving under the influence (Veh. Code, § 23152, subd. (b)).
Defendant admitted the special allegation that his blood-alcohol level was 0.18 percent, which was in excess of 0.15 percent (Veh. Code, § 23578); pleaded no contest to the allegation that he personally inflicted great bodily injury on the child M.H., causing that victim to become comatose due to a brain injury (§ 12022.7, subd. (b)), pursuant to People v. West (1970) 3 Cal.3d 595; and admitted three separate enhancements for the personal infliction of great bodily injury to victims E.H., J.M., and J.R. (§ 12022.7, subd. (a)).
Defendant entered his pleas for an indicated sentence of seven years; entered a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754, as to all the victims; and acknowledged the court’s advisement that he would be required to pay restitution to the victims if there was any restitution due to them.
In the course of advising defendant of his constitutional rights, the court also advised him about another consequence of his pleas and admissions:
“THE COURT: One other consequence that you need to be aware of, sir, is this is a violent felony, which means – serious and violent felony, which means that you're going to be required to serve 85 percent of your time. Do you understand that?
“DEFENDANT SAESEE: Yes.”
Sentencing hearing
On March 19, 2014, the court denied probation and sentenced defendant to the midterm of two years for count 2, plus a consecutive term of five years for the section 12022.7, subdivision (b) great bodily injury enhancement.
The court ordered defendant to pay a restitution fine of $1,400 pursuant to section 1202.4, and suspended a parole revocation fine.
The court ordered defendant to pay restitution of $28,277.33 pursuant to section 1202.4, subdivision (f), with interest to accrue, to be distributed to J.R. The court ordered restitution to remain open for the other victims and the Victims Compensation and Government Claims Board. The court granted the People’s motion to dismiss count 1.
Restitution hearing
On April 11, 2014, the court held a restitution hearing and ordered defendant to pay $4,379.45 to the Victims Compensation and Government Claims Board, in order to reimburse the victims’ claims for medical expenses.
Motion to modify restitution order
On May 12, 2016, the People filed a motion to modify the court’s restitution order pursuant to Penal Code section 1202.4.
The motion stated that the court had ordered restitution of $4,379.45 on April 11, 2014. The motion further stated that since that prior order, the Victims Compensation and Government Claims Board had paid “an addition $5,568.75 on behalf of the victims, identified as L.H., M.H., and E.H., for medical and mental health expenses. As such, the People request that the restitution order be modified to reflect the additional paid expenses for a total of $9,948.20,” to be paid to the Victim Compensation and Government Claims Board.
The motion was supported by a documentary exhibit, that the restitution request was from the Victim Compensation and Government Claims Board, for medical and mental health benefits paid for E.H. and M.H., and mental health benefits paid for L.H.
On July 18, 2016, defendant waived his right to be present at the restitution hearing.
The court’s order
On August 24, 2016, the court held a hearing on the People’s motion to modify the victim restitution order. Defense counsel submitted the matter. The court granted the motion and modified the victim restitution order to a total of $9,948.20 for medical and mental health expenses, payable to the Victim Compensation and Government Claims Board.
On September 18, 2016, the abstract of judgment for the modified restitution order was filed.
On September 30, 2016, defendant filed a timely notice of appeal.
DISCUSSION
As noted above, defendant’s counsel has filed a Wende brief with this court. The brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter on June 22, 2017, we invited defendant to submit additional briefing. In response, defendant filed a supplemental brief that raised two issues.
A. Modified Restitution Order
First, defendant challenges the court’s modification of the restitution order. Defendant asserts the order was invalid because it was based on a claim for mental health expenses for “L.H.,” who was not identified as a victim of the actual collision in either the amended complaint or defendant’s plea agreement. Defendant further asserts he did not waive this argument by failing to object at the restitution hearing because the court’s order was unauthorized.
Under section 1202.4, in every case in which a victim has suffered economic loss as a result of the defendant’s conduct, and the defendant is sentenced to prison, “the court shall require that the defendant make restitution to the victim or victims in an amount established by court order….” (§ 1202.4, subds. (a), (f); People v. Rahbari (2014) 232 Cal.App.4th 185, 190 [section 1202.4 controls the court’s restitution order when the defendant is sentenced to prison, and section 1203.1 controls if the defendant is placed on probation].)
Under the plain language of section 1202.4, “the court may order restitution only to a ‘victim.’ [Citation.]” (People v. Slattery (2008) 167 Cal.App.4th 1091, 1095.) Section 1202.4 defines a victim to include a person who sustained economic loss as a result of the crime and was the victim’s parent, grandparent, sibling, spouse, or grandchild; a family member previously living in the victim’s household for two years; another family member of the victim who witnessed the crime; the primary caretaker of a minor victim; or a person eligible to receive assistance from the restitution fund, as set forth in Government Code section 13950 et seq. (§ 1202.4, subds. (k)(3)(A)–(k)(3)(F).)
Section 1202.4, subdivision (f)(4)(A) states: “If, as a result of the defendant’s conduct, the Restitution Fund has provided assistance to or on behalf of a victim or derivative victim pursuant to Chapter 5 (commencing with Section 13950) of Part 4 of Division 3 of Title 2 of the Government Code, the amount of assistance provided shall be presumed to be a direct result of the defendant’s criminal conduct and shall be included in the amount of the restitution ordered.”
Government Code section 13955 provides that a person shall be eligible to recover expenses from the state restitution fund if that person is a victim or derivative victim. (Gov. Code, § 13955, subd. (a).) A victim is defined as an individual “who sustains injury or death as a direct result of a crime….” (Gov. Code, § 13951, subd. (g).) A derivative victim is someone who “sustains pecuniary loss as a result of injury or death to a victim.” (Gov. Code, § 13951, subd. (c).) A pecuniary loss means “an economic loss or expense resulting from an injury or death to a victim of crime that has not been and will not be reimbursed from any other source.” (Gov. Code, § 13951, subd. (e).)
The Government Code further defines a “derivative victim” to include any person who, at the time of the crime, was the victim’s parent, grandparent, sibling, spouse, child, or grandchild; living in the victim’s household at the time of the crime; a person who had previously lived in the victim’s household for two years in a family relationship; another family member who witnessed the crime; or the primary caretaker of a minor victim, but was not the primary caretaker at the time of the crime. (Gov. Code, § 13955, subds. (c)(1)–(c)(5).)
Section 1202.4’s definition of a “victim” is virtually identical with the Government Code’s definition of a “derivative victim.”
Even if defendant did not forfeit review of this issue, we note that E.H. and M.H. were identified as two people who were injured in the collision proximately caused by defendant, who was driving while intoxicated. M.H. was identified as a minor child and E.H. was the child’s mother. Both E.H. and M.H. were critically injured and required hospitalization. While “L.H.” was not identified as someone in one of the vehicles at the scene, the record fairly implies that L.H. was related to M.H. and E.H., and the modified restitution provided for reimbursement for mental health expenses for L.H.
If, as a result of the defendant’s conduct, the restitution fund provided assistance to a victim or a derivative victim, including mental health counseling, “the amount of assistance provided shall be presumed to be a direct result of the defendant’s criminal conduct and shall be included in the amount of restitution ordered.” (§ 1202.4, subds. (f)(3)(C), (f)(4)(A).) While L.H. was not physically injured in the collision, the court was statutorily authorized to order restitution for mental health treatment for a member of M.H.’s family as a derivative victim of defendant’s criminal acts. (People v. O’Neal (2004) 122 Cal.App.4th 817, 821.) Defense counsel did not object to the court’s order, or challenge L.H.’s status as a victim or derivative victim.
B. Calculation of credits
Defendant contends the court miscalculated his presentence custody credits based on the erroneous belief that he entered a plea to a “violent” felony. Defendant argues that his plea in count 2 to “driving under the influence” was not to a violent felony, “notwithstanding the general ‘violent’ classification of the enhancement.”
As set forth above, the court advised defendant that he was entering his plea and admissions to “a serious and violent felony,” which affected the calculation of his custody credits. Contrary to defendant’s claim, the court correctly warned him that he was entering his plea to an offense defined as both a serious and violent felony.
Defendant pleaded no contest to count 2, a violation of Vehicle Code section 23153, subdivision (b), driving under the influence while having 0.08 percent or more of blood-alcohol content, proximately causing bodily injury. This offense is not defined as either a serious or violent felony. (See, e.g., § 1192.7, subd. (c) [serious felonies], § 667.5, subd. (c) [violent felonies].)
However, defendant also admitted three enhancements for the personal infliction of great bodily injury to the victims, pursuant to section 12022.7, subdivision (a), and these enhancements define the substantive offense as both a serious and violent felony.
Section 1192.7, subdivision (c)(8) defines a serious felony to include “any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice ….” Section 1192.8, subdivision (a) states that “[f]or purposes of subdivision (c) of Section 1192.7, ‘serious felony’ also means any violation of … Section 23153 of the Vehicle Code,” when the offense involves “the personal infliction of great bodily injury on any person other than an accomplice … within the meaning of paragraph (8) … of subdivision (c) of Section 1192.7.”
Similarly, section 667.5, subdivision (c)(8) defines a violent felony to include “[a]ny felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7 ….”
Contrary to his appellate argument, defendant cannot escape these definitions by excluding the great bodily injury enhancements from consideration of his plea to the substantive offense.
After independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.