Filed 10/31/13 P. v. Colvin CA4/2
Opinion following order vacating prior opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E055199
v. (Super.Ct.No. RIF1103603)
QUADAIR TYSHAWN COLVIN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Affirmed with directions.
Sara A. Stockwell, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Teresa
Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
1
INTRODUCTION
Defendant Quadair Tyshawn Colvin appeals following a guilty plea to one felony
count of driving under the influence of alcohol with a blood-alcohol level of 0.15 or
more, causing great bodily injury, and two related misdemeanor counts and various
allegations. His original guilty plea, to one misdemeanor count of driving under the
influence, was set aside on motion of the prosecution after the prosecutor belatedly
realized that one victim, Ann G., had suffered a serious injury, specifically a broken arm.
After the motion was granted, the prosecution filed a first amended complaint,
charging defendant with, among other charges, three felony counts of driving under the
influence while having a blood-alcohol level in excess of 0.15 percent, causing bodily
injury to two victims and causing great bodily injury to one victim. (Veh. Code,
§§ 23153, subds. (a), (b), 23578, counts 1-3; Pen. Code, §§ 12022.7, subd. (a), 1192.7,
subd. (c)(8), counts 1 & 2.) Defendant ultimately pleaded guilty to one felony and two
misdemeanors. (Further details of the first amended complaint and the plea are set forth
below.)
Defendant now seeks either to have his original misdemeanor plea reinstated or his
second guilty plea vacated because the second plea was not knowing, intelligent and
voluntary due to ineffective assistance of counsel, and because the trial court was without
jurisdiction to enter the second plea because it lacked jurisdiction to vacate the original
plea.
We will affirm the judgment in part and remand with directions.
2
PROCEDURAL HISTORY
Defendant was originally charged with two misdemeanor counts of driving under
the influence of alcohol, causing bodily injury (Veh. Code, § 23153, subds. (a), (b),
counts 1 & 2), driving with a blood-alcohol concentration of 0.15 percent or more (Veh.
Code, § 23578, counts 1 & 2) and misdemeanor hit and run (Veh. Code, § 20002,
subd. (a), count 3). Defendant pleaded guilty to counts 2 and 3 and admitted a prior
conviction for driving under the influence pursuant to a plea agreement which provided
for probation. Count 1 was dismissed. Before defendant was sentenced, the district
attorney learned that a third victim had suffered a serious injury and moved to vacate the
plea in order to charge defendant with felony driving under the influence. The motion
was granted, and a first amended complaint was filed.
In the first amended complaint, defendant was charged with felony driving under
the influence and driving while having a blood-alcohol level of 0.15 percent or more,
causing great bodily injury to Ann G. (Veh. Code, §§ 23153, subds. (a), (b), 23578; Pen.
Code, § 12022.7, subd. (a), counts 1 & 2), rendering those counts serious offenses within
the meaning of Penal Code section 1192.7, subdivision (c)(8). He was also charged with
felony driving under the influence and driving while having a blood-alcohol level of 0.15
percent or more, causing bodily injury to Scott G. and Kailya G. (Veh. Code, §§ 23153,
subd. (a), 23578, count 3) and alternatively with misdemeanor driving under the
influence and driving while having a blood-alcohol level of 0.15 percent or more, causing
bodily injury to Scott G. and Kailya G. (Veh. Code, §§ 23153, subd. (b), 23578,
count 4.) Additionally, he was charged with misdemeanor hit and run. (Veh. Code,
3
§ 20002, subd. (a), count 5.) The first amended complaint also alleged prior convictions
for violating Vehicle Code section 23152, subdivisions (a) and (b), and a prior felony
prison term, within the meaning of Penal Code section 667.5, subdivision (b).
Defendant pleaded guilty to one felony count of driving under the influence
(count 1), to one misdemeanor count of driving under the influence causing bodily injury
(count 4), and to one misdemeanor count of hit and run (count 5). He admitted driving
with a blood-alcohol level of 0.15 percent or more, admitted the great bodily injury
allegation, and admitted the prior conviction for driving under the influence. Pursuant to
a plea agreement, the sentence for the great bodily injury enhancement was stayed and
defendant was sentenced to two years in state prison with concurrent terms of 180 days in
county jail for each of the misdemeanors.1
Defendant filed a timely amended notice of appeal and obtained a certificate of
probable cause.
1 The plea agreement provides that the prosecutor will dismiss any charges and
enhancements that defendant did not admit. Defendant did not admit the Penal Code
section 667.5, subdivision (b), prior prison term enhancement as part of the plea
agreement. However, although the prosecutor moved to dismiss the remaining counts,
she did not move to dismiss that enhancement, and the court did not dismiss it. We will
remand the matter with directions to the trial court to dismiss the enhancement.
Parenthetically, we note that the sentencing minutes read, “Court orders Prior(s)
2 Stricken.” The reporter’s transcript reflects that the court did not dismiss the Penal
Code section 667.5, subdivision (b), prior prison term enhancement. The oral
pronouncement of judgment prevails over the clerk’s minutes, and if there is any
discrepancy between the two, the minutes are presumed to reflect a clerical error.
(People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Mitchell (2001) 26 Cal.4th 181,
184-185.)
4
FACTS
According to the probation report, on February 12, 2011, Scott G. was driving in
the eastbound carpool lane of Highway 91 near the Serfas Club Drive exit, with
Kailya G. and his wife, Ann G. A car hit Scott’s car from the right. The impact pushed
Scott’s car into the concrete median and onto the median wall. His car collided with a
metal signpost and landed in the westbound carpool lane. It hit the center median before
coming to rest. The other car did not stop.
Officers received a dispatch indicating a parked vehicle with major collision
damage to the entire left side, with a person asleep inside. When the officers found the
car, they observed that the driver’s side window was shattered and both left tires were
missing. There were imbedded grooves in the asphalt from the eastbound Highway 91
off-ramp at Serfas Club Drive to where the vehicle was parked. Officers found defendant
asleep in the driver’s seat with the car keys in his lap. Several small pieces of glass were
visible in the left side of defendant’s hair. When an officer woke him, he appeared
disoriented.
Defendant stated that he was not driving the car at the time of the collision. He
said he had lent the car to a friend, Matt, and that a female friend had told him that Matt
had crashed the car. He got a ride to the car’s location. He said he did not notice the
damage to the car but decided to sleep in the car until morning and then call a tow truck.
5
Officers smelled the odor of alcohol on defendant’s breath. Defendant was
uncooperative and failed to perform field sobriety tests as directed. A breath test device
was used and yielded results of 0.197 percent, 0.218 percent and 0.209 percent blood-
alcohol content. Defendant was arrested and booked into custody.
According to the police report, Kailya G. was treated at the scene for a laceration
to her finger and Ann G. was transported to a hospital by ambulance due to complaints of
pain in her arm, the side of her head and her lower back. She later reported that she had
suffered a broken arm, a concussion, whiplash and vertigo in the accident.
DISCUSSION
1.
WAIVER OF APPEAL RIGHTS
In his opening brief, defendant asserted three grounds for vacating his guilty plea:
That the court lacked the authority to grant the prosecution’s motion to withdraw from
the original plea bargain; that the court erred in denying his Marsden2 motion made after
the prosecution’s withdrawal from the original plea bargain; and that his attorney
provided ineffective assistance during the process leading up to defendant’s second guilty
plea, rendering his plea not voluntary. Defendant obtained a certificate of probable cause
to address these issues on appeal.
2 People v. Marsden (1970) 2 Cal.3d 118.
6
In his second plea agreement, defendant waived his right to appeal. In her
response brief, the Attorney General asserted that defendant’s waiver of his appeal rights
barred his contention that the trial court improperly denied his Marsden motion. We
asked the parties to provide supplemental briefing addressing the question whether this
waiver operated to bar review of all of the issues raised in defendant’s opening brief.
Both parties filed supplemental briefs addressing this issue. We will address the effect of
the waiver on each of the issues in turn.
1. Order Setting Aside the Original Plea Agreement.
A defendant may waive the right to appeal as part of a plea bargain. (People v.
Panizzon (1996) 13 Cal.4th 68, 80.) A nonspecific waiver such as the one contained in
defendant’s plea agreement generally applies to all matters which predate the waiver.
Because waiver is the relinquishment of a known right, a nonspecific waiver does not bar
appeal of future errors which the defendant could not have contemplated when he or she
executed the waiver. (Id. at pp. 84-86, 85 & fn. 11; People v. Vargas (1993) 13
Cal.App.4th 1653, 1662 [Fourth Dist., Div. Two].)
Here, when defendant executed the second plea agreement, the order setting aside
the original plea agreement had, obviously, already occurred, and the validity of that order
was therefore within defendant’s contemplation when he executed the waiver. Defendant
contends that the waiver nevertheless does not preclude review because “the unilateral
setting aside of [defendant’s] plea agreement goes to the very heart of the legality of the
subsequent proceedings.” He contends that if the trial court was without authority to set
7
aside the original plea agreement, the court also lacked jurisdiction to enter the subsequent
plea, rendering the second plea agreement and its waiver of appeal void.
We reject that contention because the court was not without jurisdiction either to
set aside the original plea agreement or to accept the second plea agreement and to enter
defendant’s guilty plea. Defendant fails to distinguish between lack of fundamental
jurisdiction and an act in excess of a court’s jurisdiction. “A lack of jurisdiction in its
fundamental or strict sense results in an entire absence of power to hear or determine the
case, an absence of authority over the subject matter or the parties. [Citation.] On the
other hand, a court may have jurisdiction in the strict sense but nevertheless lack
jurisdiction (or power) to act except in a particular manner, or to give certain kinds of
relief, or to act without the occurrence of certain procedural prerequisites. [Citation.]
When a court fails to conduct itself in the manner prescribed, it is said to have acted in
excess of jurisdiction.” (People v. Lara (2010) 48 Cal.4th 216, 224-225, internal
quotation marks omitted.) While an act which is beyond the court’s fundamental
jurisdiction is void ab initio, an act in excess of jurisdiction is valid until it is set aside,
and “parties may be precluded from setting it aside by such things as waiver, estoppel, or
the passage of time.” (Id. at p. 225, internal quotation marks omitted.) Here, the court
had jurisdiction over the subject matter and over the parties. Accordingly, even if the
8
court acted in excess of its jurisdiction when it set aside the original plea agreement, it
did not lack fundamental jurisdiction to do so or to enter defendant’s subsequent plea.3
Defendant also contends that the issuance of the certificate of probable cause
renders the issue cognizable on appeal.4 He cites no authority in his supplemental
opening brief. However, in his reply brief, defendant made the same argument in
response to the Attorney General’s contention that defendant waived the right to appeal
the denial of his Marsden motion. There, he cited People v. Panizzon, supra, 13 Cal.4th
68, arguing that the issue is necessarily appealable because it implicated his constitutional
right to counsel and because he obtained a certificate of probable cause. Panizzon does
not support the contention that a certificate of probable cause vitiates a valid waiver of
appeal in a plea agreement, however.
3 Defendant suggests that we review the setting aside of the original plea
agreement even if we find that appeal on that issue was barred by the waiver. He
suggests that as a matter of public policy, we should do so to promote the finality of plea
agreements and discourage prosecutors from trying to escape from plea agreements to
which defendants would be bound. However, upholding a waiver entered into voluntarily
by a defendant also promotes the policy favoring the finality and enforceability of plea
agreements. (See, generally, People v. Panizzon, supra, 13 Cal.4th at pp. 79-80.)
Moreover, if defendant had wished to challenge the order setting aside the plea
agreement, he could have reserved the right to appeal on that issue. (See People v.
Castro (1974) 42 Cal.App.3d 960, 963-965.) There is no indication in the record that he
sought to do so.
4 Penal Code section 1237.5 provides that an appeal may be taken following a
guilty plea only if the defendant has filed with the trial court “a written statement,
executed under oath or penalty of perjury showing reasonable constitutional,
jurisdictional, or other grounds going to the legality of the proceedings” and the trial
court has executed and filed a certificate of probable cause for the appeal.
9
In Panizzon, supra, 13 Cal.4th 68, the defendant waived his right to appeal in his
plea agreement and did not obtain a certificate of probable cause to assert that the
sentence, which was a negotiated term of the plea agreement, was constitutionally
disproportionate. The Supreme Court held that the waiver and the absence of a certificate
of probable cause each independently barred the appeal. The court did not hold that
Panizzon would have been able to maintain the appeal despite the waiver if he had
obtained a certificate of probable cause. Rather, after concluding that the appeal was
barred by the absence of a certificate of probable cause, the court went on to discuss
waiver as an alternative basis for concluding that the appeal was barred. (Id. at pp. 79-
89.) The court stated its conclusion as follows: “Although defendant maintains he is not
contesting the validity of his bargained plea, he seeks to challenge the very sentence he
negotiated as part of the plea. . . . [W]e conclude that such a claim is, in substance, an
attack on the validity of the plea which is not reviewable on appeal because defendant
failed to seek and obtain a certificate of probable cause. [Citation.] Further, even if it is
assumed that defendant’s claim does not challenge the validity of the plea, the claim still
is not reviewable on appeal because the terms of the plea bargain [i.e., the waiver]
preclude any appeal of the negotiated sentence.” (Id. at p. 89, italics added.) Thus,
Panizzon is consistent with earlier rulings holding that an issue which is not otherwise
cognizable on appeal does not become so merely because the court issues a certificate of
probable cause. (People v. Hoffard (1995) 10 Cal.4th 1170, 1178-1179; see also People
v. Lovings (2004) 118 Cal.App.4th 1305, 1310-1311.)
10
As we discuss below, issues which directly affect the voluntariness of the plea
may be cognizable on appeal despite a waiver of appeal in the plea agreement. However,
defendant does not contend that setting aside his original plea agreement rendered his
subsequent plea, the agreement or the waiver not voluntary. Accordingly, the issue is not
cognizable despite the certificate of probable cause.
2. The Denial of the Marsden Motion.
Defendant contends that despite the waiver, he can challenge the denial of his
Marsden motion because it implicates his constitutional right to counsel and because he
obtained a certificate of probable cause to raise that issue on appeal.
Denial of a Marsden motion does not survive a guilty plea, even without a waiver
of appeal rights, unless the defendant asserts that counsel’s ineffectiveness, as alleged in
the Marsden motion, “result[ed] in the plea not being intelligently and voluntarily made.”
(People v. Lobaugh (1987) 188 Cal.App.3d 780, 786.) Otherwise, the denial of a
Marsden motion does not go to the legality of the proceedings. (Ibid.) And, if the
Marsden motion does not go to the legality of the proceedings, issuance of a certificate of
probable cause does not confer cognizability. (People v. Lovings, supra, 118 Cal.App.4th
at p. 1311.)
Here, defendant asserts that the failings of his trial attorney which he raised in his
Marsden motion “influenced” his decision to plead guilty because he was ignorant of the
truth of the great bodily injury allegation as a result of his attorney’s “complete lack of
preparation.” However, the denial of the motion did not directly affect the validity of the
waiver or of the plea. At the Marsden hearing, defendant sought to have his attorney
11
replaced because the attorney had failed to obtain discovery which would establish that
Ann G. had suffered great bodily injury in the accident defendant caused. However, the
attorney’s advice could have directly affected the validity of the subsequent plea only if
the attorney continued to provide ineffective assistance after the denial of the Marsden
motion. The record does not reflect that this was the case. After the motion was denied,
defendant had further opportunity to discuss with his attorney whether the prosecution
could most likely prove the great bodily injury allegation. And, as we discuss below, the
record reflects that defendant evaluated his options with knowledge that the prosecution
could probably prove the great bodily injury allegation, and that he knowingly and
intelligently decided that the plea was to his benefit, despite any misgivings he may have
had. Accordingly, any error in the denial of the Marsden motion did not survive
defendant’s subsequent plea and waiver.
3. The Contention That the Second Plea Was Not Voluntary Because Defendant
Received Ineffective Assistance of Counsel Survives the Waiver.
The parties agree that defendant’s ineffective assistance of counsel (IAC) claim is
cognizable on appeal, despite the waiver, because defendant contends that his trial
attorney’s failure to determine whether the prosecution could prove that Ann G. suffered
injuries amounting to great bodily injury rendered his plea not knowing, intelligent and
voluntary. We agree as well. Although we have not found any California authority
directly on point, the decisions holding that the denial of a Marsden motion survives a
guilty plea if the defendant alleges that the attorney’s failings rendered the plea not
knowing and voluntary provide a useful analogy, where the IAC claim is likewise
12
asserted to have affected the voluntariness of the plea. (See People v. Lobaugh, supra,
188 Cal.App.3d at p. 786; People v. Lovings, supra, 118 Cal.App.4th at p. 1311.) And,
federal courts which have addressed the question have held that an IAC claim survives a
guilty plea with a waiver of appeal rights if the IAC is alleged to have directly affected
the plea or the waiver and to have rendered the plea or the waiver itself unknowing or
involuntary. (See discussion in United States v. White (5th Cir. 2002) 307 F.3d 336, 339,
341-344, and cases cited therein.) We agree with the reasoning of these cases, and we
conclude that because defendant’s IAC claim, if well founded, would render his plea
agreement not intelligent and voluntary, the claim cannot be defeated by the waiver.
2.
DEFENDANT’S PLEA WAS VOLUNTARY, KNOWING AND INTELLIGENT
Defendant contends that his plea was not knowing and intelligent because he
“never knew the truth” of the great bodily injury allegation and that it was not voluntary
because his decision to plead guilty was influenced by his trial attorney’s lack of
preparation, in that his attorney had not investigated or obtained discovery concerning the
great bodily injury allegation. We disagree.
The voluntariness of a guilty plea is a question of law reviewed de novo.
(Marshall v. Lonberger (1983) 459 U.S. 422, 431.) “The determination of whether there
has been an intelligent waiver . . . must depend, in each case, upon the particular facts and
circumstances surrounding that case, including the background, experience and conduct
of the accused.” (Johnson v. Zerbst (1938) 304 U.S. 458, 464.) A plea is valid only if
the record affirmatively shows that it is voluntary under the totality of the circumstances.
13
(North Carolina v. Alford (1971) 400 U.S. 25, 31.) Here, the record unequivocally shows
that defendant considered his options with full knowledge of the relevant facts and made
an intelligent choice among the options available to him.
During both the Marsden hearing and the change of plea hearing, defendant asked
intelligent questions reflecting his understanding of the charges against him, the
consequences and the process. During the Marsden hearing, defendant had a lengthy
colloquy with the court about the belated addition of the great bodily injury allegation
and about whether the allegation would result in limitation of his credits to 15 percent,
and he was very articulate as to both concerns. With respect to the great bodily injury
allegation, it was clear that defendant had read the probation report, in which the
probation officer reported that Ann G. said that she had suffered a broken arm, a
concussion, whiplash and vertigo in the accident. He was not satisfied that his attorney
had not yet obtained medical records supporting the victim’s statement; nevertheless, he
knew the basis for the great bodily injury allegation, and he considered whether to risk
going to trial, where he expected to lose, or accept the offer. He was told that he did not
have to accept the offer and that he could choose to proceed with the preliminary hearing
and go to trial.
Defendant also clearly understood the possibility that his sentence would be
subject to the 15 percent credit limitation because the great bodily injury allegation
purportedly made count 1 a violent felony. He stated that he would accept the offer if it
was “two years with half.” At that point, the judge thought he would get half-time
credits, while defendant’s attorney believed that because the great bodily injury allegation
14
made his offense a strike, defendant would serve 85 percent of the sentence. The matter
was not resolved at the Marsden hearing. However, at the change of plea hearing, the
court explained to defendant that he would serve 85 percent of the sentence because the
great bodily injury allegation made his offense a strike. Defendant stated that he
understood. After acknowledging that his attorney had explained his rights, defendant
pled guilty to count 1.5
The record of these two hearings makes it clear that defendant weighed his options
and knowingly and intelligently chose what he deemed to be the best option available to
him. He was fully advised of his constitutional rights, the consequences of the guilty
plea, and any possible defenses. Accordingly, any failure of his trial attorney to obtain
further proof of the victim’s injuries did not render defendant’s guilty plea invalid. And,
even if the trial court was incorrect in stating that defendant would serve 85 percent of his
sentence, this does not invalidate the plea. On the contrary, defendant was aware that he
would not receive half-time credits but still chose to plead guilty.
5 The basis for the trial court’s conclusion that defendant would earn only 15
percent credits is not clear to us. A prisoner sentenced for a violent felony is limited to
earning worktime credit at 15 percent of the credits otherwise available. (Pen. Code,
§ 2933.1.) Defendant was charged with and admitted to the commission of a serious
felony (Pen. Code, § 1192.7, subd. (c)(8)), however, not a violent felony. Section 2933.1
does not apply to serious felonies. (People v. Kimball (2008) 168 Cal.App.4th 904, 908.)
Nor does the fact that the allegation makes the offense a strike, as the trial court said,
affect defendant’s credits. A person convicted of a new offense with a strike prior is
limited to 20 percent credits. (Pen. Code, § 667, subd. (c)(5).) But defendant’s current
conviction will become a strike prior only if he is convicted of a qualifying subsequent
offense.
In any event, because defendant does not raise any issue concerning his credits, we
will assume that he has already addressed the issue in the trial court. (See Pen. Code,
§ 1237.1.)
15
DISPOSITION
The cause is remanded for the limited purpose of dismissing the Penal Code
section 667.5, subdivision (b), enhancement allegation in accordance with the plea
agreement. The trial court is directed to dismiss the allegation within 30 days after the
finality of this opinion and to provide copies of amended sentencing minutes reflecting
the dismissal to the parties and to the Department of Corrections and Rehabilitation. The
judgment is otherwise affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
RICHLI
J.
CODRINGTON
J.
16