People v. Ramirez

¶1I respectfully dissent.

¶2The complaint to which appellant entered his pleas was clear and specific: count 1 charged a violation of Penal Code1 section 191.5, subdivision (a) (gross vehicular manslaughter while intoxicated); count 2 charged a violation of Vehicle Code section 20001, subdivision (a) (leaving the scene of an accident resulting in injury or death). The determinate prison sentence for count 1 is four, six or 10 years (§ 191.5, subd. (c)). Count 2 carries a determinate sentence of two, three or four years (Veh. Code, § 20001, subd. (b)(2)). Under the determinate sentencing law the maximum aggregate term of imprisonment for the charged offenses is 11 years. (§ 1170.1, subd. (a).) Reference to the additional term of five years provided for under Vehicle Code section 20001, subdivision (c) is contained in the written statement of negotiated disposition, but the enhancement was never alleged and it was *1003never admitted. The reference by the majority to appellant’s entry of a guilty plea to this section is unsupported in the record and not countenanced in the law. (People v. Mancebo (2002) 27 Cal.4th 735, 744-745 [117 Cal.Rptr.2d 550, 41 P.3d 556].) None of this discussion, however, would be necessary, had the district attorney both properly charged the case and elicited a valid plea and a valid admission. (People v. Garcia (1996) 45 Cal.App.4th 1242, 1249 [53 Cal.Rptr.2d 256] (conc. opn. of Woods, J.).)

¶3Vehicle Code Section 20001, Subdivision (c) Is an Enhancement

¶4Vehicle Code section 20001, subdivision (c), by its own terms, is an enhancement for, among other charges, a violation of section 191.5, subdivision (a). (§ 1170.11.) To be subject to its additional five-year term, Vehicle Code section 20001, subdivision (c) requires that the allegation be “charged in the accusatory pleading and admitted by the defendant or found to be true by the trier of fact.” This pleading requirement is repeated in section 1170.11, which includes Vehicle Code section 20001, subdivision (c) in its list of specific enhancements, and in section 1170.1, subdivision (e)’s requirement that “All enhancements shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.” Of course, none of this happened in the present case. On the contrary, appellant pled to a substantive offense with defined elements and specific consequences.2

¶5This pleading flaw is dismissed by the majority as being of no consequence since the elements of the enhancement are found in the text of the complaint, even if not specifically alleged as such. Contrary to the majority, I believe that Manceborequires that the allegation be specifically set forth. Manceboconcerned the term of imprisonment to be imposed under the “one strike” sentencing scheme for certain violent sex offenses. One of the scenarios for which a term of 25 years to life could be imposed requires that there be multiple victims. In Mancebothe prosecution contended that the additional term mandated by section 667.61, subdivision (e)(5) was effectively pleaded since multiple victims were alleged as substantive counts in *1004the information, essentially the position of the majority in the instant matter. Our Supreme Court rejected this position, noting that the aggravated term of 25 years to life would apply only when the circumstances required by the statute are “ ‘pled and proved.’ ” (People v. Mancebo, supra,27 Cal.4th at pp. 744-745.)

¶6Were it otherwise, we would be creating a new allegation, one which, at the election of the prosecutor or the court, could be deemed either a substantive charge or an enhancement. In the instant matter this means that the sentence could be either a subordinate term of one year or an additional term of five years. But neither the complaint nor the district attorney’s allocution at the time of the taking of the plea so informed appellant. The record in this case only serves to underscore the point. At the arraignment, appellant was served with a complaint that made no mention of Vehicle Code section 20001, subdivision (c). At a subsequent appearance, the deputy taking the plea inquired:

“[DEPUTY DISTRICT ATTORNEY]: As to Count 2, sir, it’s alleged that on or about February 14th, 2002, you committed the crime of leaving the scene of an accident, a felony in violation of Vehicle Code Section 20001(a). How do you plead to Count 2, sir? Guilty or not guilty?

“THE DEFENDANT: Guilty.”

¶7But the majority tells us, “Any doubt appellant might have had concerning the applicability of section 20001, subdivision (c) should have dissipated when he read the written felony disposition statement which expressly stated that he was pleading guilty to leaving the scene of an accident and that subdivision (c) was implicated. It also noted that his maximum prison sentence would be 15 years, a sentence that could only be arrived at by imposing the 5-year term mandated by section 20001, subdivision (c).” (Maj. opn., ante, at p. 1000, in. omitted.) If this is so, how is it that the very deputy district attorney taking the plea submitted a statement in aggravation at the time of sentencing that sought a term of “11 years,” composed of the aggravated term of 10 years plus an additional term on count 2 of “1 year consecutive”? Such a term can only be arrived at by treating the count as a subordinate term and imposing one-third the midterm consecutive to the principal term of vehicular manslaughter, a sentence entirely consistent with the allegations of the accusatory pleading. If this is so, how is it that the deputy district attorney appearing at the sentencing hearing initially urged a term of 11 years and stated that Vehicle Code section 20001 is “not a special allegation. As I understand it, it’s a second count”?

¶8And how is appellant’s doubt “dissipated” when, at the sentencing hearing, defense counsel asked “the Court to impose the midterm of six years for *1005Count 1 and one and two-thirds years for Count 2”? In effect, this treated the allegation as a substantive offense for which a subordinate one-third term should be imposed.3

¶9It is upon this record that the majority concludes appellant could have no doubt of the consequences of his plea. I must respectfully disagree. “The record must affirmatively demonstrate that the plea was voluntary and intelligent under the totality of the circumstances.” (People v. Howard (1992) 1 Cal.4th 1132, 1178 [5 Cal.Rptr.2d 268, 824 P.2d 1315].) Three prosecutors and a defense attorney did not understand that the allegation was an enhancement and did not understand the term of imprisonment that accompanied its purported admission. I will not and cannot conclude that defendant did.

¶10Waiver

¶11The majority also concludes that, at best, the defect in this case is but a pleading irregularity to which, at a minimum, appellant ought to have lodged a demurrer. But to what was he to demur? Section 1004 specifies the grounds for demurrer, and none applies in the instant matter. Ramirez was charged with violations of section 191.5, subdivision (a), and Vehicle Code section 20001, subdivision (a). Each charge was sufficient on its face and each set forth a public offense pleaded in the statutory language. “Moreover, the purpose of the charging document is to provide the defendant with notice of the offense charged. (§ 952.) The charges thus must contain in substance a statement that the accused has committed some public offense, and may be phrased in the words of the enactment describing the offense or in any other words sufficient to afford notice to the accused of the offense charged, so that he or she may have a reasonable opportunity to prepare and present a defense. (See In re Hess (1955) 45 Cal.2d 171, 175 [288 P.2d 5]; 4 Witkin & Epstein, Cal. Criminal Law [(2d ed. 1989)] Proceedings Before Trial, § 2060, p. 2426; id., § 2061, pp. 2427-2428.)” (People v. Bright (1996) 12 Cal.4th 652, 670 [49 Cal.Rptr.2d 732, 909 P.2d 1354].) The problem is not that appellant did not know the charge, but that he knew precisely with what he was charged. It is just that he was sentenced for something else.

¶12Conclusion

¶13Unlike the majority, I cannot conclude that appellant’s position “shrinks to a pleading point” (maj. opn., ante, at p. 995). I concur with the majority in *1006its condemnation of the havoc wrought on society by “drunk drivers.” But the gravity of the offense and the substantial consequences that flow from it demand that a knowing and intelligent plea be entered by a defendant fairly and fully apprised of its consequences. There is little harm to the administration of justice to return this cause to the trial court to permit appellant to withdraw his pleas or his plea and his admission, if indeed that is what it is, and to then choose how he wishes to proceed once properly advised. There is great harm to the integrity of the system when an accused is sentenced to state prison and did not understand or appreciate the consequences of his plea. In sum: "What we’ve got here is a failure to communicate.”4

¶14A petition for a rehearing was denied June 30, 2003, and the opinion was modified to read as printed above. Appellant’s petition for review by the Supreme Court was denied September 10, 2003.