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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

v. 

QUADAIR TYSHAWN COLVIN, 

 Defendant and Appellant. 

 E055199 

 (Super.Ct.No. RIF1103603) 

 OPINION 

 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. 
2

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. 
3

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, 
4

§ 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.) 
5

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. 
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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 bloodalcohol 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. 
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 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 
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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 
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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. 
10

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.) 
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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 
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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 
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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. 
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(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 
15

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.) 
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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.