Filed 8/1/17 P. v. Rohl CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

THOMAS JOHN ROHL,

Defendant and Appellant.
D071050



(Super. Ct. No. SCN342837)

APPEAL from a judgment of the Superior Court of San Diego County, Carlos O. Armour, Judge. Affirmed.

Neil Auwarter, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant Thomas Rohl pleaded guilty to driving under the influence of alcohol causing bodily injury (Veh. Code, § 23153, subd. (a); count 1), and driving with .08 percent or more blood alcohol causing bodily injury (id., subd. (b); count 2). Defendant also pleaded guilty to four special allegations accompanying each count: great bodily injury to victim Mark Alva (Pen. Code, § 12022.7, subd. (a)); great bodily injury to victim Mike Alva (ibid.); blood alcohol of .15 percent or more (Veh. Code, § 23578); and bodily injury to more than one victim (Veh. Code, § 23558). The court sentenced defendant to five years in state prison. On appeal, defendant proceeds in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende). Affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
On October 16, 2014, at about 10:24 a.m., defendant was driving his 2004 BMW sedan at a high rate of speed on State Route 78. Defendant crossed over the centerline of the highway into oncoming traffic. Defendant's car first struck the driver's side of victim Sean Chapman's Ford F-250 pickup truck. Sean's two-year-old son was sitting in a car seat in the rear of the cab. Sean's truck sustained " 'heavy' damage," as the left side of the truck was "sheared off" and the windows of the truck were shattered, "sending glass into the cab and cutting [Sean] and his son."
Defendant continued eastbound in the westbound lanes, next colliding head-on with a sedan driven by Mike Alva. On impact, the sedan rolled over and came to rest on its roof, against a guardrail. The front and rear driver's side wheels were sheared off in the crash. Mike was severely injured, "suffering three broken ribs, internal bleeding, and a broken left hand." Mike was hospitalized for 11 days.
Mike's son Mark was a passenger in the sedan. Mark was hospitalized for more than three weeks, suffering five broken ribs, broken vertebra in his lower back, and a "shattered arm from the elbow up" that required multiple surgeries. At the time of sentencing, Mark reported that his injuries from the crash were "ongoing" and required "routine hospital visits"; that initially hospital staff recommended his arm be amputated until he " 'begged' " them not to do so; and that he had 19 bolts and screws and two titanium plates in his arm. Mark further reported that he needed help bathing and using the restroom, and that he was constantly in pain as a result of the crash.
When officers arrived on scene, they did not immediately locate defendant or his car. Instead, nearby motorists informed officers of another car located further down the road. On inspection, officers were unable to locate that car. However, as officers continued their search, other motorists informed them that a car had run off the road, down an embankment, and into a deep "ravine," where it came to rest. "Defendant was found unconscious and belted into the driver's seat of the twisted wreck of his car. Emergency personnel had to cut [d]efendant out of his car in a process that took one hour. He was airlifted to the hospital for treatment."
Defendant was contacted by law enforcement at the hospital at about 12:30 p.m., a little more than two hours after the collision. Defendant then showed "objective symptoms of intoxication including: slurred speech [and] bloodshot eyes." Officers smelled the odor of alcohol coming from defendant, who refused to submit to a preliminary alcohol screening test. At 12:40 p.m., defendant was placed under arrest and a minute later his blood was drawn by a trained phlebotomist. Defendant's blood alcohol was measured at .31 percent, or about four times the .08 percent threshold.
On July 14, 2015, the record shows defendant pleaded guilty to count 1 and admitted all four special allegations accompanying that count in exchange for the dismissal of count 2 and a stipulated prison term of 5 years four months. Prior to sentencing and after defendant substituted in new counsel, he filed a motion to withdraw his guilty plea based on "new" information he learned pertaining to his arrest and blood draw, which the court granted on November 5, 2015.
The record further shows defendant pleaded guilty a second time on April 19, 2016, as noted, ante. The guilty plea form shows defendant initialed the boxes acknowledging both the waiver of his constitutional rights and the consequences of his plea, including, as relevant here, giving up his right to appeal "1) denial of [his] [Penal Code section] 1538.5 motion, 2) issues related to strike priors (under [Pen. Code, §§ 667[, subds. ](b)-(i) [&] 1170.12), and 3) any sentence stipulated herein." The preliminary hearing transcript served as the factual basis for defendant's plea. The plea form was signed and dated by defendant.
The plea form was also signed by defendant's attorney, who confirmed that he had explained to defendant the "entire contents" of the plea including the accompanying DUI addendum form; that he also had discussed with defendant "all charges and possible defenses" in the case; and that he personally witnessed defendant "fill in and initial each item, or read and initial each item to acknowledge his . . . understanding and waivers."
The record shows the prosecutor also signed the plea form, concurring with defendant's guilty plea. The court also signed the form, accepting defendant's plea and admissions. In so doing, the court found: "The defendant understands and voluntarily and intelligently waives his . . . constitutional rights; the defendant's plea and admissions are freely and voluntarily made; the defendant understands the nature of the charges and the consequences of the plea and admissions; and there is a factual basis for same."
What's more, the record shows after defendant was duly sworn and before he pleaded guilty (the second time), the court extensively questioned him at the plea hearing; that defendant acknowledged he was pleading to "the sheet," namely to "all of the counts and allegations [in] the information"; that defendant understood, that unlike his initial guilty plea, there was "no agreement with the district attorney" concerning sentencing; but that the court indicated defendant "would probably be looking at between four years, four months to five years and four months in state prison." The record shows the court also told defendant it would "keep an open mind as to everything," including "reasonable alternatives to that range."
On further questioning by the court, defendant acknowledged that, despite the plea, the "district attorney [was] open to argue for the maximum [punishment in] this case." The court informed defendant he could be sentenced up to 10 years in prison, pay a $10,000 fine, and receive four years on parole. The court also informed defendant that if he was to be "fully" sentenced on all charges and enhancements alleged in the information, he was looking at two strikes because of victims Mike and his son Mark, who each sustained great bodily injury. The court then explained to defendant the significance of potentially having two strikes on his record should defendant engage in any future criminal conduct, including a serious or violent felony.
At defendant's sentencing, the record shows the court acknowledged it had read the probation officer's report, which recommended a nine-year prison term; defendant's statement and mitigation; and other "packets of information" including "numerous letters and exchange of e-mails and texts with the wife of one of the alleged victims in the case." Defendant sought leniency from the court, noting the night before the collision, he and his wife had argued; the following morning, after taking his children to school, he returned home and was unable to face his wife; and shortly thereafter, he had a lapse in judgment and began "binge drinking," then left the house and found a bar, where he drank even more until he "lost the day."
In denying defendant's request for probation, the court indicated it had taken defendant's file home and "read it for a couple hours" because it wanted to be "fully informed as to the content of all the reports and letters." The court praised defendant for the job he had done raising his children as a single parent and recognized defendant's family was "very dedicated" to defendant.
The court then announced defendant's sentence as follows: "I will give substantial amount of weight to the mitigating factors in this case, which basically revolve around [defendant's] crime-free life before this offense, and the fact that he did accept early responsibility for the offense. Although, not to go through the procedural history of the case, it was [i.e., the initial guilty plea] withdrawn and then reaccepted. And I think there is nothing—I don't hold that against him. But his activities on the date in question here, whether he was conscious—and to me when I read the facts of the case, the way he was driving at the date, at the time that he was driving and the observations by the victim, it wasn't like he's slowly weaving or other indications of driving under the influence that we normally see in reports from the highway patrol. He's just barreling down the road at a speed which was certain that he was going to cause death or great bodily injury to someone. And as the [deputy district attorney] said, this is a case that could have been a lot worse, as bad as it is.
"But on balance from looking at all the factors in this case, the Court is not going to grant probation. This is not a probation case. There is a presumption against probation. There is nothing about the defendant's behavior, the result of his behavior, that compel the Court to grant probation. So I'm going to deny probation in this case. The question is, reviewing the probation officer's report, they justify nine years, and the court could impose nine years in this case. I'm also not going to impose the upper term of everything and the nine years. But I am going to select the [midterm] of two years on the . . . [section] 23153[, subdivision] (b) count [i.e., number 2] . . . . [¶] . . . [¶]
"On the issue of the [section] 12022.7[, subdivision] (a) allegation, the great bodily injury allegation, this case, especially as to the victim Mr. Mark Alva and his father, but certainly to the victim Mark Alva, falls well within great bodily injury. And the [deputy district attorney], I think, maybe downplayed a little bit the injuries to Mr. Alva, but when he rolled out of that car and he tried to push himself up, the injury to that arm, it appears to me there w[ere] bones sticking out, and the rest of his arm was dangling down. His surgery, which he had undergone for his arm and back, his surgeries have been substantial, certainly painful. He has still not recovered. He will never recover the use of his body as he had before this incident. He has 19 bolts and screws, two titanium plates just in his arm. He can't go to the bathroom by himself. He can't shower by himself. He has little use of his right arm, and that is the direct consequence of this defendant's actions. [¶] So the court, to the [midterm] of two years on Count 2 will add three years on the victim Mark Alva."
The record shows the court struck the great bodily injury allegation as it pertained to victim Mike Alva and the multiple victim allegation, which would have added an additional year to defendant's sentence. The court imposed the midterm of two years on count 1 but stayed that sentence pursuant to section 654, subdivision (a). Although the court recognized it "could have imposed the additional time pursuant to the law since it was a separate victim," it nonetheless sentenced defendant to five years in prison, noting that term met the "sentencing parameters for the behaviors and the impact on the victims of this defendant's activity on that date." The court also ordered defendant to pay various fines including a restitution fine of $5,400 (Pen. Code, § 1202.4, subd. (b)) and a stayed parole restitution fine in that same amount (Id., § 1202.45).
DISCUSSION
Based on defendant's waiver of his appellate rights in his plea agreement and the unambiguous evidence in the record showing that waiver was voluntary and knowing (see People v. Brooks (2017) 3 Cal.5th 1, 57), the issues that can be raised on appeal are limited to matters occurring after the plea. As noted, defendant's appellate counsel filed a brief indicating that counsel was unable to identify any argument for reversal. Counsel requested this court review the record for error as mandated by Wende, but did not identify one or more issues as possible, but not arguable, under Anders v. California (1967) 386 U.S. 738. In connection with this court's review under Wende, defendant was advised he could file a supplemental brief, which defendant chose not to do.
We have reviewed the record in accordance with Wende and have not found any reasonably arguable appellate issues for reversal on appeal. Thus, we are satisfied that defendant's appointed counsel has fully complied with counsel's responsibilities and that no arguable issues exist. (See Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgment of conviction is affirmed.


BENKE, Acting P. J.

WE CONCUR:




AARON, J.




DATO, J.