THE PEOPLE v. WILLIAM TAFOYA RIVERA JR (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTS2

Pursuant to a plea agreement, appellant, William Tafoya Rivera, Jr., pled no contest to three counts of second degree murder (Pen.Code, §§ 187, subd. (a) and 189;  counts 1-3) and individual counts of driving with a blood alcohol content of .08 percent or more and causing injury (Veh.Code, § 23153, subd. (b);  count 4) ¹ and driving under the influence of alcohol and/or drugs and causing injury (§ 23153, subd. (a);  count 5).   In addition, appellant admitted an allegation made in connection with count 4 that he refused to take a blood alcohol content test (§ 23577), and he admitted allegations made in connection with each of counts 4 and 5 that he had a blood alcohol content of .15 percent or higher (§ 23578), he caused bodily injury to multiple victims (§ 23558), and he personally inflicted great bodily injury on four persons (Pen.Code, § 12022.7, subd. (a)).

The court imposed concur

rent indeterminate terms of 15 years to life on each of counts 1, 2 and 3. On each of counts 4 and 5, the court imposed concurrent 15-year determinate terms, consisting of three years on the substantive offense and three years on each of the four great bodily injury enhancements.

There is no indication in the record that appellant requested, or that the court issued, a certificate of probable cause (Pen.Code, § 1237.5).

Appellant's appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record.  (People v. Wende (1979) 25 Cal.3d 436.)   Appellant has not responded to this court's invitation to submit additional briefing.

We advised the parties, pursuant to Government Code section 68081, we had tentatively determined that were we to otherwise affirm the judgment, we would modify the judgment and direct the court to correct certain errors with respect to the issuance of abstracts of judgment.   Neither party responded to our invitation to submit supplemental briefing on these matters, which we discuss below.   We will modify the judgment and otherwise affirm.

On June 24, 2009, California Highway Patrol officers, investigating a report of a “wrong-way driver,” determined the following.   Appellant was driving a Chevrolet pickup truck at approximately 65 to 70 miles per hour, traveling westbound in the eastbound lane of Jensen Avenue in Fresno when a driver in a Ford, who was traveling in the eastbound lane at approximately 60 to 65 miles per hour, was forced to swerve in an attempt to avoid being hit by appellant.   However, appellant's pickup struck the front and right side of the Ford. The Ford rotated, rolled over and eventually came to rest on the side of the road.

Appellant continued on and collided with a Honda automobile, which had been directly behind the Ford and was also traveling eastbound.   The Honda rotated, and came to rest on its wheels.   Appellant's vehicle rolled over and traveled in a southeasterly direction, directly into a path of a Daewoo automobile.

The Daewoo collided with the Ford and came to rest on its wheels.   Appellant's car came to rest on its left side.

Three passengers in the Honda were killed.   The driver of the Honda suffered “major” injuries, including broken legs, internal bleeding and lacerations to his liver and spleen.

The driver of the Ford suffered “moderate” injuries, including lacerations and abrasions to both arms, bruises and abrasions to her shoulder and neck.   A passenger in the Ford also suffered “moderate” injuries, including lacerations and abrasions to both arms and his face.

The driver of the Daewoo suffered “minor” injuries, including lacerations and abrasions to her face and arms.

Officers made contact with appellant.   His eyes were red and watery and his speech was slurred.   He refused to submit to chemical tests of his blood.   It was later determined that appellant had a blood alcohol content of .25 percent.

DISCUSSION

Imposition of Concurrent Terms on Counts 4 and 5

As indicated above, the court imposed concurrent sentences on counts 4 and 5. However, those counts were based on the same “act,” within the meaning of Penal Code section 654.   Therefore, the court erred in imposing sentenced on both counts.  (People v. Deloza (1998) 18 Cal.4th 585, 592 [Penal Code section 654 does not allow multiple punishment for the same act, including concurrent sentences].)   We will order execution of the term imposed on count 5 stayed.³

Enhancements under Vehicle Code section 23558 and

Penal Code section 12022.7, subdivision (a)

As also indicated above, as to each of counts 4 and 5, appellant admitted four great bodily injury enhancement allegations under Penal Code section 12022.7, subdivision (a), based on injuries to four separate victims, and an enhancement allegation under section 23558 (causing bodily injury to multiple victims in a single instance of violating section 23153), based on injuries to the same victims.   Under these circumstances, a trial court, if it does not strike the section 23558 enhancement, must stay execution of sentence on that enhancement under Penal Code section 654.  (See People v. Bradley (1998) 64 Cal.App.4th 386, 391 [“The failure to impose or strike an enhancement is a legally unauthorized sentence subject to correction for the first time on appeal”];  People v. Arndt (1999) 76 Cal.App.4th 387, 397 [Penal Code section 654 barred imposition of multiple-victim enhancements under former section 23182 (now section 23558) in addition to great bodily injury enhancements for each victim pursuant to Penal Code section 12022.7].) The trial court made no mention of the section 23558 enhancements at sentencing.   Accordingly, we will order the section 23558 enhancements on counts 4 and 5 stayed, and we will order the count 5 section 23558 enhancement stayed for the additional reason that, as indicated above, sentence on the count 5 substantive offense must be stayed.  (People v. Bracamonte (2003) 106 Cal.App.4th 704, 711, disapproved on another ground in People v. Gonzales (2008) 43 Cal.4th 1118, 1130, fn. 8, [“ ‘an enhancement must necessarily be stayed where the sentence on the count to which it is added is required to be stayed [under section 654]’ ”].)

Abstracts of Judgment

Although the court imposed both indeterminate and determinate terms, the trial court issued a single abstract of judgment, utilizing form CR-292, the abstract of judgment form applicable when the court imposes one or more indeterminate terms.   The form indicates a term was imposed on count 4 and, as indicated above, that on count 5 a term was stayed pursuant to section 654, but the form does not indicate the length of those terms.   Box 7 on the abstract of judgment form, the marking of which indicates that determinate terms were imposed in addition to the indeterminate terms, and that those determinate terms are indicated on the abstract of judgment form designed for indicating determinate terms (CR-290), is not checked.

We will direct the trial court to prepare an amended “Abstract of Judgment-Prison Commitment-Indeterminate” (CR-292) which indicates the indeterminate terms imposed and that additional determinate terms were imposed and indicated on form CR-290.   We will further direct the trial court to issue an “Abstract of Judgment-Prison Commitment-Determinate” (form CR- 290) indicating the determinate terms imposed, including the modifications to those terms discussed above.

Other Issues

Following independent review of the record, we have concluded that no other reasonably arguable legal or factual issues exist.

DISPOSITION

The judgment is modified as follows:  (1) the term imposed on count 5 is stayed pursuant to Penal Code section 654 pending completion of the term imposed on count 4, the stay then to become permanent;  (2) the term imposed on the count 4 Vehicle Code section 23558 enhancement is stayed pursuant to Penal Code section 654 pending completion of the term imposed on the count 4 Penal Code section 12022.7, subdivision (a) enhancement, the stay then to become permanent;  and (3) the term imposed on the count 5 Vehicle Code section 23558 enhancement is stayed pursuant to Penal Code section 654 pending completion of the term imposed on the count 5 Penal Code section 12022.7, subdivision (a) enhancement, the stay then to become permanent.   The trial court is directed to prepare an amended abstract of judgment indicating the indeterminate terms (CR-292) and an abstract of judgment indicating the determinate terms (CR-290), consistent with the views expressed in this opinion.   As modified, the judgment is affirmed.

FOOTNOTES

FOOTNOTE.  FN*.  Before Wiseman, Acting P.J., Levy, J., and Cornell, J.

FN1. Except as otherwise indicated, all further statutory references are to the Vehicle Code..  FN1. Except as otherwise indicated, all further statutory references are to the Vehicle Code.

FN2. Our factual statement is taken from the factual summary set forth in the report of the probation officer, which is in turn taken from a California Highway Patrol report..  FN2. Our factual statement is taken from the factual summary set forth in the report of the probation officer, which is in turn taken from a California Highway Patrol report.

FN3. We note that the abstract of judgment indicates the sentence on count 5 was stayed pursuant to Penal Code section 654..  FN3. We note that the abstract of judgment indicates the sentence on count 5 was stayed pursuant to Penal Code section 654.

THE COURT *