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People v. Bamaca1/5/2005
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Juan Bamaca appeals from the sentence imposed following his plea of guilty to driving under the influence . He contends that we should remand for resentencing because the trial court did not understand that it had discretion to strike a one-year multiple victim enhancement. We agree, reverse, and remand for resentencing.
Procedural Background
On April 2, 2003, the Sonoma County District Attorney filed an information charging appellant Juan Bamaca with driving under the influence , causing bodily injury to Fabiola Hurtado and Adelina Villanueva (count one; Veh. Code, § 23153, subd. (a)); driving with a blood alcohol level of .08 percent or more, causing bodily injury to Hurtado and Villanueva (count two; § 23153, subd. (b)); and driving on a suspended license (count three; §14601.2, subd. (a)). As to counts one and two, the information alleged that appellant had a blood alcohol content of .20 percent or higher (§ 23578), that he proximately caused bodily injury to more than one victim (§ 23558), and that he had two prior convictions for driving under the influence.
In May, Bamaca pleaded guilty to count one, and admitted the multiple victim, blood alcohol, and prior conviction allegations. The trial court advised Bamaca that the maximum sentence he could receive would be four years in prison followed by a period of parole. In July, the trial court sentenced Bamaca to state prison for four years, consisting of the three-year upper term for driving under the influence , plus one year for the multiple victim enhancement. This appeal followed.
Factual Background
This summary is based on the preliminary hearing testimony and the presentence report.
Around 8:00 p.m. on March 3, 2003, California Highway Patrol Officer Jim Lemons was dispatched to a traffic collision. He spoke to Hurtado at the scene of the collision; she told him that she had been stopped at a red light when Bamaca's car rear-ended her and pushed her car into another vehicle, causing damage. Hurtado did not have any visible injuries, but she complained of "a pain to her neck as well as her back." Villaneuva, Hurtado's mother and passenger, claimed the same injuries to her back and neck. Lemons offered to call for medical services, but the offer was declined.
Lemons approached Bamaca and observed various signs of intoxication, including slurred speech, watery eyes, unsteadiness, and the odor of alcohol on Bamaca's breath. Bamaca failed field sobriety tests. Bamaca's blood alcohol level was later determined to be .33 percent.
Bamaca admitted to Lemons that he did not have a driver's license. Lemons ran a check on Bamaca and discovered that he had a suspended license based on prior driving under the influence convictions. Lemons placed Bamaca under arrest.
Neither victim returned calls from the Probation Department or made claim for restitution.
Discussion
Bamaca contends that the trial court failed to exercise its discretion in deciding whether to strike the one-year multiple victim enhancement, because the trial court failed to recognize that it had discretion to do so.
During the sentencing hearing, defense counsel asked the court to consider imposing a "concurrent" term for the Section 23558 enhancement, based on the injury to the second
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