P. v. Evers
Filed 2/28/07 P. v. Evers CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sutter)
----
THE PEOPLE, Plaintiff and Respondent, v. RICHARD ERNEST EVERS III, Defendant and Appellant. | C052725 (Super. Ct. No. CRF052725) |
After watching defendant Richard Ernest Evers III park his car, an officer approached, smelled the odor of alcohol, and noticed defendants eyes were bloodshot and watering. Thereafter, the officer discovered defendants driving license was suspended. Defendant was arrested and his blood was analyzed; the analysis showed he had a blood-alcohol level of 0.17 percent.
Defendant pled no contest to driving under the influence of alcohol while having three or more prior DUI convictions (Veh. Code, 23152, subd. (a), 23550 -- count 1); driving with a blood-alcohol level of 0.08 percent or higher while having three or more prior DUI convictions (Veh. Code, 23152, subd. (b), 23550 -- count 2); and misdemeanor driving on a suspended license (Veh. Code, 14601.2, subd. (a) -- count 3). The court sentenced him to the upper term of three years for each felony offense, to run concurrently.
On appeal, defendant contends (and the People correctly concede) that one of the two three-year upper term sentences should be stayed pursuant to Penal Code section 654. It is well settled that Vehicle Code section 23152, subdivisions (a) and (b), proscribe the same conduct, namely, driving under the influence of alcohol, and where a defendant is convicted of violating both statutes based on the same conduct, he may be punished for violating one statute, but not both. (People v. Subramani (1985) 173 Cal.App.3d 1106, 1110-1111.)
Defendant also asks that we specify that the stay include a permanent embargo on the use of one of the two convictions for penal and administrative purposes.[1]Defendant bases his argument on People v. Duarte (1984) 161 Cal.App.3d 438 (Duarte). In Duarte, the defendant was convicted, inter alia, of violating subdivisions (a) and (b) of Vehicle Code section 23153 (driving under the influence); both convictions arose from a single act of drunk driving. (Id. at pp. 440-441.) The Court of Appeal affirmed the convictions, but noted that although the defendants sentence on the second conviction was stayed in accordance with well-established Penal Code section 654 practice, the risk remained that both convictions might be used to enhance future punishment: Having suffered two convictions and one punishment, defendant remains exposed to the use of the two convictions to enhance future punishment. The Vehicle Code contains an increasing number of sections which penalize recidivism. These sections ordinarily refer to prior convictions without qualifying them to exclude multiple convictions arising from a single driving occasion. By only staying punishment on one of the two convictions, another court at another time may have to determine whether the defendant has one or two priors[.] (Id. at p. 447.) To avoid multiple enhancements based on a single act of illegal driving, the court modified the judgment by ordering that the use of the [second] conviction . . . as a prior conviction for penal and administrative purposes, be stayed . . . . (Id. at p. 448; see also People v. Pearson (1986) 42 Cal.3d 351, 362 (Pearson).)
We disagree that it is either necessary or appropriate to make an order purporting to govern the future use of the stayed conviction. Penal Code section 654 automatically precludes the use of a conviction for which the sentence was stayed pursuant to that section, unless the Legislature explicitly declares otherwise. (Pearson, supra, 42 Cal.3d at p. 363.) However, as the California Supreme Court recognized in People v. Pearson, and reiterated in People v. Benson (1998) 18 Cal.4th 24, legislation enacted after the date of a conviction can permit the use of a conviction for enhancement or other purposes in a subsequent prosecution, even if the sentence was stayed in the original proceeding.[2] (People v. Benson, supra, 18 Cal.4th at pp. 29-30, citing Pearson, supra, 42 Cal.3d at p. 361.)
Because the use of defendants current stayed conviction to enhance his sentence in any future prosecution or administrative proceeding depends upon the laws in effect at that time, we decline to order the trial court to stay the future use of that conviction.
DISPOSITION
The judgment is modified pursuant to Penal Code section 654 to stay the three-year prison term imposed for count 2. In all other respects, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect this modification and to forward a certified copy of the amended
abstract of judgment to the Director of the Department of Corrections and Rehabilitation.
SIMS , Acting P.J.
We concur:
BUTZ , J.
CANTIL-SAKAUYE , J.
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[1] The People do not respond to this contention.
[2] We note that in Pearson, the court did not order a stay on the use of the stayed counts. Rather, the court merely stated the rule that Penal Code section 654 precludes the use of a conviction as to which the sentence has been stayed, unless the Legislature expressly allows its use for enhancement or other purposes in a subsequent proceeding. (Pearson, supra, 42 Cal.3d at p. 363.)
