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People v. Gutierrez6/28/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Appellant Ernesto Carranza Gutierrez is a non-citizen, lawful resident of the United States. In 1999, he pleaded guilty to driving under the influence of alcohol (DUI) and was placed on three years' probation conditioned on serving one year in county jail. New DUI charges were brought against appellant in 2000, arising from an injury accident. After waiving a jury trial, he was convicted of the new charges and his 1999 probation was revoked for the same conduct. Appellant was sentenced to concurrent prison terms, both exceeding one year, for the 1999 and 2000 offenses.
Appellant contends that he was deprived of effective assistance of counsel in connection with both the 1999 and 2000 proceedings because his appointed counsel failed to warn him that a sentence of one year or more for his offenses would subject him to mandatory deportation under federal immigration law. We find that appellant's 1999 conviction is no longer subject to appellate review, and affirm the judgments resulting from appellant's 2000 offenses.
BACKGROUND
Appellant's DUI Convictions
In March 1999, appellant was charged by information with driving under the influence of alcohol (DUI) and driving a vehicle with a .08 percent or higher blood alcohol level. The information included allegations in connection with both counts that appellant had previously suffered a DUI conviction in August 1993. On May 11, 1999, under a plea agreement, appellant pleaded guilty to the DUI count and admitted the prior conviction. In return, the second count was dismissed on motion of the district attorney, and appellant received a sentence of three years' probation with one year in county jail as a condition of probation and 76 days' credit for time served. Appellant took no appeal from his 1999 DUI conviction.
In June 2000, appellant was charged with six more DUI-related counts arising from a March 18, 2000 injury accident: DUI causing bodily injury with two prior convictions and driving with a blood alcohol level above .08 percent with same priors (counts 1 and 2); DUI with prior felony DUI convictions and driving with a blood alcohol level above .08 percent with same prior felonies (counts 3 and 4); leaving the scene of an injury accident (count five); and driving a vehicle with a suspended license (count 6). The information further alleged as an enhancement pursuant to Vehicle Code section 23558 that appellant's offenses caused injury to three persons. Appellant pleaded not guilty to all charges, and denied the enhancing allegations and prior convictions.
After the preliminary examination held on the 2000 DUI charges, the trial court found that appellant had violated his probation in the 1999 case. He received a two-year sentence in state prison on the probation violation, with 596 days of presentence custody credit, which included credit for the one-year county jail term he served as part of his 1999 probation. After an assurance that he would receive a state prison sentence of no more than 16 months if found guilty, appellant waived his right to a jury trial and agreed to have the trial court determine his guilt or innocence based on the preliminary hearing transcript and his own testimony. The trial court found appellant guilty on all counts and sentenced him to 16 months in state prison to run concurrently with his two-year prob
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