1 Filed 10/31/13 P. v. Colvin CA4/2 Opinion following order vacating prior opinion NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 APPELL ATE 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 Ri verside 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, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Atto rney General, Barry Carlton and Teresa Torreblanca, Deputy Attorneys Genera l, for Plaintiff and Respondent.2 INTRODUCTION Defendant Quadair Tyshawn Colvin appeals following a guilty plea to one felony count of driving under the in fluence of alcohol with a bl ood-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 afte r the prosecutor belatedly realized that one victim, Ann G., had suffere d a serious injury, specifically a broken arm. After the motion was granted, the prosec ution 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 bo dily 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 ultim ately 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 orig inal misdemeanor plea reinstated or his second guilty plea vacated because the second plea was not knowing, intelligent and voluntary due to ineffective assi stance of counsel, and because the trial court was without jurisdiction to enter the second plea because it lacked jurisdic tion to vacate the original plea. We will affirm the judgment in pa rt and remand with directions.3 PROCEDURAL HISTORY Defendant was originally ch arged with two misdemeanor counts of driving under the influence of alcohol, cau sing bodily injury (Veh. Co de, § 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 misdem eanor hit and run (V eh. Code, § 20002, subd. (a), count 3). Defendant pleaded guilty to counts 2 and 3 and admitted a prior conviction for driving under the influence purs uant to a plea agreement which provided for probation. Count 1 was dismissed. Be fore defendant was sentenced, the district attorney learned that a third victim had suffe red a serious injury and moved to vacate the plea in order to charge defe ndant with felony dr iving under the influence. The motion was granted, and a first am ended 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), rend ering those counts serious offenses within the meaning of Penal Code section 1192.7, su bdivision (c)(8). He was also charged with felony driving under the influe nce 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 alternativ ely with misdemeanor driving under the influence and driving while having a blood-alcoh ol 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 wa s charged with misdemeanor hit and run. (Veh. Code,4 § 20002, subd. (a), count 5.) The first amende d complaint also alle ged prior convictions for violating Vehicle Code section 23152, su bdivisions (a) and (b), and a prior felony prison term, within the meaning of Pe nal Code section 667.5, subdivision (b). Defendant pleaded guilty to one felony count of dr iving under the influence (count 1), to one misdemeanor count of drivi ng under the influence ca using 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 prio r conviction for driving under th e 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 conc urrent 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 dism iss 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 th at 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 sentenci ng minutes read, “Court orders Prior(s) 2 Stricken.” The reporter’s transcript reflec ts 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 ar e 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 Febr uary 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 Sc ott’s car from the right. The impact pushed

Scott’s car into the concrete median and onto the median wa ll. His car collided with a metal signpost and landed in the westbound carp ool 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 wi ndow 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 vehi cle 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 hai r. When an officer woke him, he appeared

disoriented.

Defendant stated that he wa s not driving the car at the time of the collision. He said he had lent the car to a friend, Matt, a nd that a female friend had told him that Matt had crashed the car. He got a ride to the ca r’s location. He said he did not notice the damage to the car but decided to sleep in th e car until morning and then call a tow truck.6 Officers smelled the odor of alcohol on defendant’s breath. Defendant was uncooperative and failed to perform field sobrie ty tests as directed. A breath test device was used and yielded results of 0.197 percent, 0.218 per cent and 0.209 percent bloodalcohol content. Defendant was a rrested and booked into custody. According to the police report, Kailya G. was treated at the sc ene 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 he r lower back. She later reported that she had suffered a broken arm, a concussion, wh iplash and vertigo in the accident.

DISCUSSION

1.

WAIVER OF APPEAL RIGHTS In his opening brief, defenda nt asserted three grounds for vacating his guilty plea:

That the court lacked the au thority to grant the prosecu tion’s motion to withdraw from the original plea bargain; that the court erred in denying his Marsden 2 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. Defend ant obtained a certificate of probable cause to address these issues on appeal.

2 People v. Marsden (1970) 2 Cal.3d 118.7 In his second plea agreement, defendant waived his right to appeal. In her response brief, the Attorney General asserted th at defendant’s waiver of his appeal rights

barred his contention that the tr ial court improperly denied his Marsden motion. We asked the parties to provide supplemental br iefing addressing the qu estion whether this waiver operated to bar review of all of th e issues raised in defendant’s opening brief. Both parties filed supplemental briefs addressi ng 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 app eal as part of a plea bargain. ( People v. Panizzon (1996) 13 Cal.4th 68, 80.) A nonspecifi c 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 kno wn right, a nonspecific waiver does not bar appeal of future errors whic h 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 [Fou rth Dist., Div. Two].) Here, when defendant executed the second plea agreement, the order setting aside the original plea agreement had, obviously, alre ady occurred, and the validity of that order was therefore within defendant’s contemplati on 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 goe s to the very heart of the legality of the subsequent proceedings.” He c ontends that if the trial cour t was without authority to set8 aside the original plea agreement, the court also lacked jurisd iction to enter the subsequent plea, rendering the second plea agreemen t and its waiver of appeal void. We reject that contention be cause the court was not without jurisdiction either to set aside the original plea agr eement 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 resu lts in an entire absence of po wer 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 ex cept in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certa in 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 jurisdicti on is valid until it is set aside, and “parties may be precluded from setting it as ide 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. Accord ingly, even if the9 court acted in excess of its ju risdiction when it set aside the original plea agreement, it did not lack fundamental jurisd iction to do so or to enter defendant’s subsequent plea. 3

Defendant also contends that the issuan ce 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 brie f, 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 app ealable because it implicated his constitutional right to counsel and because he obtain ed 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, u pholding a waiver ente red into voluntarily by a defendant also promotes the policy favo ring 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 ri ght to appeal on that issue. (See People v. Castro (1974) 42 Cal.App.3d 960, 963-965.) There is no indica tion 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 pe nalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to th e 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 certificat e 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 indepe ndently 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. Ra ther, after concluding that the appeal was barred by the absence of a certificate of pr obable cause, the court went on to discuss

waiver as an alternative basis for conc luding 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 conc lude that such a claim is, in substance, an attack on the validity of the plea which is not reviewable on appe al 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 te rms 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.4t h 1305, 1310-1311.)11 As we discuss below, issues which direc tly 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 asid e his original plea agreement rendered his subsequent plea, the agreement or the waiver not voluntary. Accordingly, the issue is not cognizable despite the cer tificate of probable cause. 2. The Denial of the Marsden Motion. Defendant contends that despite the waiv er, he can challenge the denial of his

Marsden motion because it implicates his constituti onal right to counsel and because he obtained a certificate of probable caus e to raise that issue on appeal.

Denial of a Marsden motion does not surviv e a guilty plea, even without a waiver of appeal rights, unless the defendant asserts th at counsel’s ineffectiv eness, as alleged in

the Marsden motion, “result[ed] in the plea not bein g 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 lega lity 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 whic h he raised in his

Marsden motion “influenced” his decision to plea d 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 moti on did not directly affe ct the validity of the waiver or of the plea. At the Marsden hearing, defendant sought to have his attorney12 replaced because the atto rney had failed to obtain discov ery which would establish that Ann G. had suffered great bodily injury in th e accident defendant caused. However, the attorney’s advice could have directly affected the validity of the subsequent plea only if the attorney continued to pr ovide ineffec tive 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 opportun ity to discuss with his atto rney 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 knowledg e that the prosecution could probably prove the great bodily inju ry allegation, and th at he knowingly and intelligently decided that the pl ea 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 th e Second Plea Was Not Vo luntary Because Defendant Received Ineffective Assistance of Counsel Survives the Waiver. The parties agree that defendant’s ineffec tive assistance of counsel (IAC) claim is cognizable on appeal, despite the waiver, because defendant contends that his trial attorney’s failure to determin e 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 alle ges that the attorney’s fai lings rendered the plea not knowing and voluntary provide a useful an alogy, where the IAC claim is likewise13 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 questi on have held that an IAC claim survives a guilty plea with a waiver of appeal rights if th e IAC is alleged to have directly affected the plea or the waiver and to have rendered the plea or th e 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 agre e with the reasoning of these cases, and we

conclude that because defendant’s IAC clai m, if well founded, would render his plea agreement not intelligent and vo luntary, the claim cannot be defeated by the waiver.

2.

DEFENDANT’S PLEA WAS VOLUNTAR Y, 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 infl uenced by his trial attorney’s lack of preparation, in that his attorn ey had not investigated or ob tained 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, includi ng the background, e xperience 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 to tality of the circumstances.14 ( North Carolina v. Alford (1971) 400 U.S. 25, 31.) Here, the record unequivocally shows that defendant considered his options with fu ll 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 pl ea hearing, defendant asked intelligent questions reflecting his understa nding of the charges against him, the consequences and the pr ocess. During the Marsden hearing, defendant had a lengthy colloquy with the court about the belated add ition of the great bodily injury allegation and about whether the allegation would result in limitation of his cr edits to 15 percent, and he was very articulate as to both concerns. With resp ect 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. sa id that she had suffered a broken arm, a concussion, whiplash and vertigo in the acciden t. He was not satisfied that his attorney had not yet obtained medical records supporti ng the victim’s statement; nevertheless, he knew the basis for the great bod ily 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 ch oose to proceed with the preliminary hearing and go to trial. Defendant also clearly understood the po ssibility 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 th at because the great bodily injury allegation15 made his offense a strike, defendant would se rve 85 percent of the sentence. The matter

was not resolved at the Marsden hearing. However, at the ch ange of plea hearing, the court explained to defendant th at he would serve 85 percent of the sentence because the great bodily injury allegation made his offe nse a strike. Defenda nt stated that he understood. After acknowledging that his at torney 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 ch ose what he deemed to be the best option available to him. He was fully advised of his constituti onal 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 stati ng 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 conclu sion that defendant would earn only 15 percent credits is not clear to us. A prison er sentenced for a violent felony is limited to earning worktime credit at 15 percent of the cr edits otherwise available. (Pen. Code, § 2933.1.) Defendant was ch arged with and ad mitted to the commission of a serious felony (Pen. Code, § 1192.7, subd. (c)(8)), however, not a viol ent 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 th e offense a strike, as the trial court said, affect defendant’s credits. A person conv icted 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 convicte d of a qualifying subsequent offense. In any event, because defendant does not raise any issue concer ning his credits, we will assume that he has already addressed the issue in the trial court. (See Pen. Code, § 1237.1.)16 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 w ithin 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 Depart ment 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.