Filed 3/25/15 P. v. Billings CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065383

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCS263109)

ANDREA J. BILLINGS,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Edward P.

Allard III, Judge. Affirmed.

         John E. Edwards, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Charles C.

Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
                  FACTUAL AND PROCEDURAL BACKGROUND1

       On February 27, 2013 at approximately 6:00 p.m., deputy sheriffs arrived at the

scene of a multi-vehicle traffic collision in Imperial Beach. The preliminary

investigation revealed that a Caucasian female had driven a silver Jetta into the rear of a

car in front of her, causing several vehicles to collide with one another. One of the

victims told the deputies the driver of the Jetta drove around the stopped cars and

proceeded south on Third Street. Shortly thereafter, the deputies located a silver Jetta

with front end damage parked in a driveway on Third Street. They made contact with

appellant Andrea Billings, who smelled of alcohol and admitted she might have been in a

collision. She declined to submit to a field sobriety test or a preliminary alcohol

screening and was arrested.

       Subsequent investigation revealed three individuals had been injured in the

accident, one suffering a hairline fracture of her tailbone. Appellant's blood alcohol

content was .36 percent.

       Appellant was charged in a first amended complaint with driving under the

influence causing injury (Veh. Code,2 § 23153, subd. (a)) along with several

enhancements (count 1); driving with .08 or greater blood alcohol level causing injury

(§ 23153, subd. (b)) along with several enhancements (count 2); and hit-and-run driving

(§ 20002, subd. (a)) (count 3).



1      The factual background is taken from the probation report.

2      Subsequent unspecified statutory references are to the Vehicle Code.
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       As part of a plea agreement, on April 17 appellant pleaded guilty to count 1 and

admitted she caused bodily injury to multiple victims (§ 23558) and personally inflicted

great bodily injury on a person not an accomplice (Pen. Code, § 12022.7, subd. (a)). She

also admitted two prior convictions in 2008 for driving with a .08 or greater blood

alcohol level. The guilty plea form reflected the sentence would be left to the court and

the sentence would "wrap" with the probation violations related to the two prior

convictions. The guilty plea form stated her maximum potential sentence was seven

years, and that in return for her guilty plea, the remaining charges would be dismissed.

       In addition to initialing and signing her change of plea form, appellant also

initialed and signed a DUI Addendum form that stated the sentence for count 1 was two,

three, or four years and her blood alcohol reading was .36 percent. After confirming

appellant had read both forms, discussed them in detail with her attorney, signed and

initialed them and understood them, the court found appellant knowingly, intelligently

and voluntarily entered her guilty plea and waived her constitutional rights and that there

was a factual basis for the guilty plea and the admissions.

       When appellant appeared for sentencing on July 12, several issues arose before the

court imposed judgment. Relevant here, the court informed the appellant and counsel

that the plea form erroneously stated appellant's maximum sentence was seven years,

when in fact it was eight years. The court opined the error occurred because the

complaint indicated a sentence triad of 16 months, two years, or three years for count 1,

but failed to reflect that, due to appellant's current section 23153 conviction and two prior

alcohol related convictions within 10 years, the authorized sentence was two, three, or

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four years under section 23566. After the court, defense counsel and the prosecutor

discussed this issue (along with others not raised on appeal), the court called a recess to

allow defense counsel and the prosecutor to research the sentence triad that applied to

appellant's case. The court also directed defense counsel to talk with appellant about the

"maximum punishment" she was facing and "any additional consequences that she may

not have been aware of [when she entered the plea agreement] and . . . to see whether or

not she understands those, accepts those and still adopts her plea."

       Following the recess, the court confirmed the parties agreed the authorized

sentence was "2/3/4." The court then spoke directly to appellant, questioning her under

oath, to confirm she understood the consequences of her plea, knew her maximum

penalty was eight years, and still wanted to "stand by [her] previous plea of guilty." As

part of this discourse, the court explained why the sentence for the section 23153

violation in her case was "2/3/4", not "16 [months]/2/3" and asked if she understood the

court's explanation. She stated she did. The court then asked if she intended to "stand by

[her] previous plea and she stated "Yes." The court found appellant's plea was

"knowingly, intentionally and voluntarily entered into, understanding the consequences

of her plea" and her counsel concurred "with that." The court pronounced its sentence

and imposed a prison term of five years.3




3      The court selected the low term of two years for the section 23153 violation and
three years for the great bodily injury enhancement, and dismissed the multiple victims
enhancement.
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       On April 1, 2014, the trial court denied appellant's request for a certificate of

probable cause. In response to appellant's request that this court issue a certificate of

probable cause, we issued an order permitting the appeal but limiting the appeal "to

sentencing questions or other matters occurring after the plea. . . ."

                                       DISCUSSION

       On appeal, appellant challenges the court's sentence on several grounds. She

claims the court abused its discretion because it used the two-, three-, or four-year triad

contained in section 23566 despite the fact (1) neither that section, nor the triad, were

reflected in the first amended complaint; (2) there was no motion to amend the complaint;

(3) the court did not consider whether an amendment should be allowed; and (4) no

amended complaint was filed. She also claims the court abused its discretion by

reforming the plea agreement to include a new sentencing triad without (1) a motion to

do so by either party and (2) considering whether to simply enforce the plea agreement

initially executed by the parties. There was no error.

       It is well settled that "[o]nce the trial court approves the plea bargain, it cannot

change the agreement without the consent of the parties" as "[t]he court lacks jurisdiction

to alter the terms and must impose a sentence within the limits of the bargain." (People v.

Superior Court (Sanchez) 223 Cal.App.4th 567, 573.) Here, as the statement of facts

makes clear, after the court brought the error about the maximum sentence set forth in the

change of plea form to the parties' attention; the court and the attorneys engaged in a

thoughtful discussion about the correct sentencing triad, defense counsel and the

appellant had a full opportunity to discuss the implications of this issue during a recess in

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the proceedings; and, after the recess, the court carefully questioned the appellant about

the consequences of this modification and following that inquiry concluded appellant

understood the change in her initial plea bargain and stood by her previous guilty plea.

        The cases appellant relies upon in support of her claim of sentencing error are

premised, in part, on the claim an amended complaint was required before the court could

proceed with sentencing and the court was obligated to approve the filing of the amended

charging document. (See People v. Lettice (2013) 221 Cal.App.4th 139, 141, 149.) The

due process concerns raised in Lettice—which arose from the prosecution filing an

amended pleading to add a strike prior after the plea was entered—are inapplicable in this

case.

        Here, no new charges or enhancements were being added to the complaint and

appellant is not claiming she had inadequate notice of the applicable sentencing triad or

that the reference to a seven-year maximum sentence, instead of eight years, would have

affected her decisions with respect to plea bargaining. The DUI Addendum form

appellant signed and acknowledged she understood on the day she entered her plea set

forth the controlling sentencing triad in this case and the record makes clear the court

would not have proceeded with sentencing unless it was satisfied appellant knew the

consequences of her plea and did not wish to withdraw her plea.

        In short, an amended pleading was not required under the circumstances of this

case, appellant consented to the change in the terms of the plea bargain, and the court did

not abuse its discretion in the manner in which it proceeded after the sentencing error was

discovered.

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                                  DISPOSITION

      The judgment is affirmed.




                                                HALLER, J.

WE CONCUR:



NARES, Acting P. J.



MCINTYRE, J.




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