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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     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.




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