In re Friend CA4/3

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

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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