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People v. Cortez6/26/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Roger Cortez entered a negotiated guilty plea to causing bodily injury while driving under the influence of alcohol and running a red light (Veh. Code, § 23153, subd. (a)) and admitted personally inflicting great bodily injury (GBI) (Pen. Code, §§ 12022.7, subd. (a), 1192.7, subd. (c)(8)) and causing bodily injury to more than one victim (Veh. Code, § 23558). The court sentenced him to five years in prison: the two-year middle term for driving under the influence and three years for personally inflicting GBI. Cortez appeals, contending his sentence amounts to cruel and unusual punishment and a denial of equal protection because it is harsher than that for vehicular manslaughter (Pen. Code, § 192, subd. (c)(3)).
BACKGROUND
As a factual basis, Cortez's change of plea form contains the following handwritten statement: "Drove a vehicle upon a highway & ran a red light, causing a collision that injured 2 people. Their injuries included a broken leg on one person and a broken clavicle on another. I was under the influence of alcohol at the time with a Blood Alcohol level of .20%." At the outset of the change of plea hearing, the following occurred:
"THE COURT: In this matter, the defendant is pleading guilty to count 1 of the information, alleging a violation of Vehicle Code section 23153, [subdivision (a)], driving under the influence of alcohol and causing injury, as a felony. Further, he's admitting the allegation under the provisions of Penal Code section 12022.7, [subdivision (a)], pertaining to his having inflicted in this offense, the effect of which is to add a three-year enhancement to be served consecutively to the base term, and also which causes this offense to be both a serious felony and a violent felony. Further, he's admitting the allegation --[Penal Code, section] 1192.7[, subdivision] (c)(8) pertaining to injury. That's the same thing. Further, he's admitting the allegation under the provisions of Vehicle Code section 23558, pertaining to there having been more than one victim who suffered injury. The effect of that allegation is to add one year for the additional victim. He would face a maximum of three years on count 1, plus three years for the infliction of , plus one year for the additional victim, a total of seven years in state prison.
"The People have agreed to request a sentence not to exceed five years, so five years would be the maximum sentence that could be imposed. If he is sentenced with the allegation, then he would have to serve not less than 85 percent of whatever prison sentence was imposed as compared to the 50 percent that he would otherwise ordinarily serve.[ ] The remaining counts and allegations will be dismissed.
"He is presumably ineligible for probation, but he has no prior record[,] [ ] . . . [ ] o a finding that it is an unusual case can probably be made. That is not to say that he will or will not be granted probation, but even though he's presumptively ineligible, indications are that it is an unusual case.
"Does that accurately state the agreement, Mr. Cortez?
"THE DEFENDANT: Yes, Your Honor."
Later at the hearing, the following occurred:
"THE COURT: Do you understand if you admit the allegation, under the provision of Penal Code section 12022.7, pertaining to having inflicted in this
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