Filed 1/8/18 P. v. Hoddick CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

KENNETH ALAN HODDICK,

Defendant and Appellant.


E068536

(Super.Ct.No. SWF1403272)

OPINION


APPEAL from the Superior Court of Riverside County. John M. Davis, Judge. Affirmed.
Kenneth Alan Hoddick, in pro. per.; Anita P. Jog, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Kenneth Alan Hoddick killed a man by driving into him head-on while drunk. Defendant appeals from his second-degree murder conviction and sentence of 15 years to life, which he received after pleading guilty. We affirm.
FACTS AND PROCEDURE
On December 6, 2014, at about 5:35 p.m., defendant was observed to be driving his Chevrolet Silverado pickup truck erratically on State Route 371, weaving within his lane and crossing over into the opposing lanes at least twice. Defendant crossed over into the opposing lanes once more, hitting the victim head-on. As set forth in the probation officer’s report, defendant’s vehicle “continued right through the victim and his motorcycle before traveling onto the right shoulder of the northbound lane where it collided with a steep dirt embankment.” The victim was pronounced dead at the scene at 5:56 p.m. At the hospital, defendant’s eyes were bloodshot and watery, he smelled of alcohol, and his speech was slurred. Ninety minutes after the accident, defendant’s blood-alcohol level was 0.18 percent. Defendant had prior convictions for driving under the influence (DUI) in 1997, 1998, and 2006. Defendant told the investigator that he had also been arrested for DUI in 2012 and was required to attend 18 months of DUI education classes. The classes included the dangers of driving while under the influence. Defendant stated, “they talked about how something like this could happen. I could kill somebody.”
The record contains a “notice to appear” traffic citation issued December 6, 2014, at 9:20 p.m. The notice lists the violations as felony DUI (Veh. Code, § 23153, subds. (a) & (b)), murder (Pen. Code, § 187, subd. (a)), and attempted felony hit and run (Pen. Code, § 664/Veh. Code, § 20001, subd. (a)).
On June 5, 2015, the People filed an information charging defendant in count 1 with murder (§ 187, subd. (a)) and in count 2 with gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)). As to count 2, the People alleged defendant had a prior DUI conviction. (§ 191.5, subd. (d).)
On March 28, 2017, defendant pled guilty to count 1. The felony plea form indicated defendant’s maximum exposure was 15 years to life, but did not specify a floor. In the blank space for writing in what “[t]he custody term will be,” a single vertical line is written, which appears to be a “1.” At the change of plea hearing, the parties and court did not directly discuss sentencing. However, as the parties and the court considered the amount of time to set aside for the sentencing hearing, the People noted, “[g]iven the nature of plea bargain, there shouldn’t be sentencing issues to argue about.” When it took the plea, the court asked defendant, “The maximum possible sentence in your case is 15 years to life, I believe; is that correct?” to which defense counsel, the prosecutor, and defendant each answered “Yes.” The court ordered a report and sentencing recommendation from the probation department and set sentencing for May 12, 2017. The minute order for March 28 states: “Specification of Plea: 15 years to Life (Indeterminate).”
On May 11, 2017, defense counsel filed a sentencing report asking for probation and a suspended sentence. On May 12, 2017, the probation department filed its report. Under the section, “specification of plea,” the report states: “The plea agreement indicates probation will be denied and the custody commitment will be 15 years to life in state prison.” The recommendation is that probation be denied and defendant sentenced to 15 years to life in prison. The report concludes: “The defendant is absolutely eligible for a grant of probation in the instant matter; however, considering the circumstances and loss of life it does not appear to be appropriate.”
At the sentencing hearing on May 12, 2017, the court noted that the plea form “can be interpreted two different ways. One is that his exposure is 15 years to life, and one is that it is a 15-to-life agreement. [¶] . . . People felt like it was a 15-years-to-life plea because it was on the eve of trial. And you know, and the People would not accept anything less obviously. But from the defense perspective, the defense feels that this is a 15-year-to-life exposure and that probation is a possibility under the terms of this plea.” The court then allowed both sides to argue. Before pronouncing sentence, the court commented: “The probation report appears to me to be fair and accurate. And I’m going to follow the recommendation of the probation department. And the plea agreement, whether it had probation as an opportunity or not, I am not—wouldn’t consider probation in this case in any regard. So it doesn’t matter.” The court sentenced defendant to 15 years to life in prison.
This appeal followed. Defendant did not request a certificate of probable cause.
DISCUSSION
Upon defendant’s request, this court appointed counsel to represent him in this appeal. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth the facts, a statement of the case and potentially arguable issues. Counsel has also requested this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, and he has done so. In a neatly typed brief, defendant appears to argue: (1) he could not be charged with murder based on a traffic ticket; (2) he could not plead guilty to charges based on a traffic ticket; and (3) the People unlawfully placed the burden on him to rebut at trial the presumption of implied malice. Defendant’s arguments fail because, subsequent to the traffic ticket, the People properly charged him with murder and gross vehicular manslaughter by information, and there was no trial because defendant pled guilty.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ
P. J.
We concur:

McKINSTER
J.

MILLER
J.