People v. Berry4/15/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
I. Introduction
This is an appeal from a judgment and sentence following entry of a plea of no contest to a single count of causing bodily injury while driving under the influence of alcohol or drugs (Veh. Code, § 23153, subd. (a)). Appellant Frank Berry, Jr. principally contends on appeal that the trial court abused its discretion in ordering him to pay restitution of $5,400 to victim Harold Dronan and $18,000 to victim James Fry. Appellant also claims that, at the time of entering his plea, the trial court prejudicially failed to advise him that the payment of restitution was a direct consequence of that plea. We affirm.
II. Facts Surrounding the Plea and Sentence
A four-count felony complaint was filed by the Solano County District Attorney's Office charging appellant with causing bodily injury while driving under the influence of alcohol or drugs (DUI) (Veh. Code, § 23153, subd. (a)-count I); driving under the influence of alcohol (Veh. Code, § 23153, subd. (b)-count II); leaving the scene of an accident (Veh. Code, § 20001, subd. (a)-count III); and, driving when privileges are suspended for prior DUI (Veh. Code, § 14601, subd. (a)-count IV). As to counts I and II, the complaint also alleges that appellant had suffered three prior DUI convictions, two in 1997 and one in 1999.
After initially entering a plea of not guilty, appellant filed a change of plea form on January 8, 2002, in which he changed his plea to no contest as to count I. Among the rights waived as part of that plea, appellant acknowledged that he was giving up his right to appeal. It was also agreed that, in return for his plea as to count I, the remaining three counts alleged in the complaint would be dismissed. Further, if appellant was not amenable to probation, he could withdraw his no-contest plea. The matter was put over to January 29, 2002, for judgment and sentencing, and a presentence probation report was ordered. Because the probation report was received late, the matter was again continued to February 26, 2002.
In the meantime, appellant filed a motion to withdraw his no contest plea. The hearing on this motion was held on February 26, at which time appellant also made a Marsden motion seeking substitute counsel (People v. Marsden (1970) 2 Cal.3d 118). Both motions were denied. However, at the hearing the trial judge indicated that, as a result of having read the probation report, it was his intention to sentence appellant to state prison, and not to grant probation as he had originally indicated. Accordingly, under the plea agreement, the court continued judgment and sentencing for an additional week to allow appellant to decide whether he wished to withdraw his no contest plea.
After another continuance, the matter finally came on for judgment and sentencing on March 19, 2002. At that time, appellant indicated no desire to withdraw his plea, and he was sentenced to the midterm of three years in state prison on count I. He was also ordered to pay restitution of $5,400 to victim Harold Dronan and $18,000 to victim James Fry. The only objection raised by defense counsel to the restitution order was that defendant was unable to pay the amounts ordered (Pen. Code, § 1202.4, subd. (d)).
An application for probable cause was made by appellant in pro. per. on April 22, 2002, which was denied on
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