Filed 5/7/13 In re Friend CA4/3




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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE



In re BRANDON GREGORY FRIEND                                           G046216

     on Habeas Corpus.                                                 (Super. Ct. No. 04HF1205)

                                                                       OPINION


                   Original proceeding; petition for a writ of habeas corpus to challenge an
order of the Superior Court of Orange County, James A. Stotler, Judge. Petition granted.
                   Law Offices of Correen W. Ferrentino; Correen W. Ferrentino; Law
Offices of Mark W. Frederick and Mark W. Frederick for Petitioner.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, James D. Dutton and
Stephanie H. Chow, Deputy Attorneys General, for Respondent.


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              This is the third time this case has been before us. In the first case
petitioner Brandon Gregory Friend appealed his convictions for two counts of vehicular
manslaughter with gross negligence while intoxicated (Pen. Code, § 191.5, subd. (a);
counts 1 and 2); driving under the influence, causing bodily injury to three victims,
George Macchiorola and Debbie Scannell, who died, and Anthony Orozco, who was
injured (Veh. Code, § 23153, subd. (a); count 3; all further statutory references are to this
code unless otherwise stated); driving with a blood alcohol level over .08 percent and
causing injury to those three victims (§ 23153, subd. (b); count 4); and hit and run
causing the death of two victims (§ 20001, subds. (a), (b)(2); count 5); he pleaded guilty
to driving on a suspended license (§ 14601.2, subd. (a); count 6). The jury also found
true petitioner caused bodily injury to more than one person (§ 23558), personally
inflicted great bodily injury on two different people, Macchiorola and Scannell (Pen.
Code, § 12022.7, subd. (a)), and fled the scene of the accident (§ 20001, subd. (c)).
              Petitioner raised several grounds on appeal, discussion of which is set out at
length in our opinion in People v. Friend (Mar. 11, 2010, G039675 [nonpub. opn.]). We
affirmed the judgment but vacated the sentence for count 5, hit and run causing death,
and remanded for resentencing, ordering that the sentence be stayed under Penal Code
section 654. (People v. Friend, supra, G039675 at p. 2.)
              The second appeal concerned the resentence. As set out in that opinion
(People v. Friend (May 31, 2012, G044473) [nonpub. opn.]), on remand, in addition to
arguing the resentence on count 5, defendant asked the trial court to rule the crimes
charged in counts 3 and 4 were nonviolent. The court refused to do so, determining its
powers on remand were limited to the resentencing on count 5. (Id. at p. 2.)
              On appeal, petitioner did not challenge the resentence but argued the trial
court had improperly limited his sentencing credits to 15 percent because it treated his
convictions for vehicular manslaughter while under the influence as violent felonies



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based on the enhancements for great bodily injury. He sought to have us rule they were
not violent felonies under Penal Code section 667.5. (People v. Friend, supra, G044473
at p. 2.) We concluded the argument was not before us because the order on remand was
limited (id. at p. 3) and because the issue was waived due to defendant‟s failure to argue
this issue in the first appeal (id. at p. 4). Petitioner maintained he was free to raise it in
the second appeal because it was an illegal sentence, which can be challenged at any
time. (Id. at p. 5). We rejected that argument. (Id. at pp. 5, 6.) Defendant also claimed
ineffective assistance of counsel. We declined to consider it, both because it was argued
for the first time in the reply brief and because it should have been raised in a habeas
petition. (Id. at p. 7.)
               Shortly after petitioner filed his opening brief in the second appeal, he also
filed this habeas petition. He argued that in the first appeal, it was not apparent the
findings of great bodily injury affected the sentence because they did not add to the
length of the sentence and there was no determination the sentence was based on a
finding of a serious felony as related to credits. He also argued that if there was a finding
the purported illegal sentence had to be raised in the first appeal, petitioner‟s appellate
counsel provided ineffective assistance because he failed to do so.
               Accompanying the petition was the declaration of petitioner‟s appellate
counsel. He confirmed that in the first appeal he had not argued that petitioner was guilty
of a serious or violent felony that would limit his credits to 15 percent instead of 50
percent or that the 15 percent limit was erroneous. With commendable candor, he
acknowledged that if the issue should have been raised in the first appeal, his
representation was “deficient” as defined by the test for ineffective assistance of counsel.
               In his informal reply to the answer petitioner also argued, among other
things, that driving while intoxicated causing bodily injury (count 3) and driving with a




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blood alcohol level of 8 percent and causing bodily injury (count 4) are lesser included
offenses of gross vehicular manslaughter while intoxicated (counts 1 and 2).
              In the return the Attorney General agreed with the argument. Therefore we
are granting the relief petitioner requested.
              The facts are not in dispute and we need not recite them.


                                       DISCUSSION


1. Convictions For Lesser Included Offenses
              There is no dispute that a defendant cannot be convicted of both a greater
offense and a lesser included offense. (People v. Reed (2006) 38 Cal.4th 1224, 1227.)
Convictions under section 23153, subdivision (a) for driving under the influence and
under section 23153, subdivision (b) for driving with a blood alcohol content of .08
percent and causing bodily injury are necessarily included in a conviction under Penal
Code section 191, subdivision (a) for gross vehicular manslaughter. (People v. Binkerd
(2007) 155 Cal.App.4th 1143, 1147-1150; People v. Miranda (1994) 21 Cal.App.4th
1464, 1467-1468 [§ 23153, subd. (a) is necessarily included offense of Pen. Code,
§ 191.5, subd. (a)].)
              In Miranda, the defendant was convicted of gross vehicular manslaughter
while under the influence, driving while intoxicated causing injury, vehicular
manslaughter, and hit and run. On appeal, the court reversed the conviction for driving
while intoxicated causing bodily injury, and vehicular manslaughter and struck an
enhancement for driving while intoxicated and causing injury since they were lesser
included offenses of gross vehicular manslaughter while under the influence. (People v.
Miranda, supra, 21 Cal.App.4th at pp. 1468-1469.)




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               The same is true here. Counts 3 and 4 for driving under the influence
causing bodily injury and for driving with a blood alcohol content of .08 percent and
causing bodily injury are lesser included offenses of counts 1 and 2, gross vehicular
manslaughter while intoxicated. The personal infliction of great bodily injury for those
counts as to Macciorola and Scannell are also necessarily included in the convictions for
counts 1 and 2. (People v. Binkerd, supra, 155 Cal.App.4th at p. 1150.) These must all
be stricken.


2. Custody Credits
               Penal Code section 2933.1, subdivision (a) limits custody credits to 15
percent for conviction of a felony listed in Penal Code section 667.5, subdivision (c),
which includes a felony in which a defendant “inflicts great bodily injury on any person”
as set out in Penal Code section 12022.7, subdivision (a). (Pen. Code, § 667.5, subd.
(c)(8).) But the Penal Code section 12022.7, subdivision (a) enhancement does not apply
where an element of the crime is infliction of great bodily injury. (Pen. Code, § 12022.7,
subd. (g).) Once counts 3 and 4 and their accompanying enhancements are stricken,
petitioner‟s custody credits cannot be limited to 15 percent.


3. Ineffective Assistance of Counsel
               The standard for determining ineffective assistance of counsel is well
settled. To prevail, a defendant must show that, viewing it objectively, counsel‟s
performance fell below prevailing professional standards and was prejudicial.
(Strickland v. Washington (1984) 466 U.S. 668, 687-688, 690 [104 S.Ct. 2052, 80
L.Ed.2d 674].) To prove prejudice, the defendant must demonstrate there is a
“„reasonable probability that, but for counsel‟s unprofessional errors, the result of the
proceeding would have been different.‟” (People v. Ledesma (1987) 43 Cal.3d 171, 217-



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218.) “„“A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” [Citations.]‟” (People v. Weaver (2001) 26 Cal.4th 876, 925.)
                 Here both criteria were satisfied. The law prohibiting convictions for lesser
included offenses is clear and well-established and thus should have been raised in the
first appeal. Because counsel failed to do so, defendant lost the opportunity to challenge
the more limited custody credits. (In re Smith (1970) 3 Cal.3d 192, 202-203 [counsel‟s
failure to argue issues on appeal that could have led to reversal deemed ineffective
assistance].) There is no question the error was prejudicial. Instead of 50 percent
conduct credits, petitioner was limited to 15 percent. This substantially affects the time
he will serve.
                 Because we decide the petition on this issue, we need not discuss any of the
other arguments raised.


                                         DISPOSITION


                 The matter is remanded to the trial court to reverse the convictions for
driving under the influence causing bodily injury to George Macchiorola and Debbie
Scannell (count 3) and driving with a blood alcohol level over .08 percent and causing
bodily injury to George Macchiorola and Debbie Scannell (count 4) and to reverse the
enhancements for personally inflicting great bodily injury to those two victims. The
court shall resentence defendant and recalculate the credits as necessary. The court is
ordered to prepare an amended abstract of judgment reflecting these modifications and
forward a copy to the Department of Corrections and Rehabilitation.
                 Upon finality of this opinion and in compliance with Business and
Professions Code section 6086.7, subdivision (a)(2), the clerk of this court shall remit a
copy of this opinion to the State Bar of California. (In re Jones (1996) 13 Cal.4th 552,



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589, fn. 9.) In compliance with Business and Professions Code section 6086.7,
subdivision (b), we are separately notifying the attorney that the matter has been referred
to the State Bar of California.




                                                 RYLAARSDAM, ACTING P. J.

WE CONCUR:



BEDSWORTH, J.



FYBEL, J.




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