APPEAL from the Superior Court of Riverside County. David B. Downing, Judge. Affirmed. (Super. Ct. No. INF057013).
The opinion of the court was delivered by: Ramirez, P.J.
CERTIFIED FOR PUBLICATION
Defendant, Frank Darrell Hernandez, pled guilty to driving under the influence of alcohol (Veh. Code, § 23152, subd. (a))*fn1 and driving with a blood alcohol level in excess of 0.08 percent (§ 23152, subd. (b)), and he admitted that during the latter, he had a blood alcohol level of 0.15 percent or greater (§ 23578). He was granted probation and appeals, claiming the trial court lacked jurisdiction to enter a judgment against him and Penal Code section 1387, subdivision (a) barred the refilling of the misdemeanor information against him. The facts of this case are not relevant to the issues raised.
In November 2006, defendant was charged by misdemeanor complaint with a violation of section 23152, subdivision (a) as a misdemeanor, a violation of section 23152, subdivision (b) as a misdemeanor and enhancements under section 23578 as to both offenses.*fn2 According to the People's moving papers below, "On January 17, 2007, the People moved to dismiss the misdemeanor case under Penal Code section 1385 . . . [¶] . . . [¶] . . . once [defendant's] three prior convictions [for violations of section 23152, subd. (b)] became apparent. Vehicle Code section 23550 allows for punishment of a fourth . . . conviction of section 23152 as either a misdemeanor or a felony."*fn3 "The misdemeanor complaint was dismissed for duplicative filing purposes as a standard practice whenever there is an . . . active felony[,]" the People stated. The People further asserted, "The motion [to dismiss the misdemeanor case] was granted. [¶] That same day, the People filed a felony complaint alleging felony violations of the same offenses . . . , along with the same allegation previously made as to both offenses. [Citation.]*fn4 The People further alleged that the defendant had sustained three prior convictions for driving with a B[lood] A[lcohol] C[ontent] of .08 percent or greater." Following a preliminary hearing, defendant was bound over and an information was filed on March 15, 2007, alleging that defendant had violated both section 23152, subdivision (a) and section 23152, subdivision (b), as felonies, with a section 23578 enhancement as to each, and had suffered three prior convictions of violating section 23152, subdivision (b). Later, the trial court ordered the Information be amended to include the dates of the commissions of the priors.*fn5
In December 2007, defendant moved to strike one of the priors on the basis that when he pled to it, he was expressly told that he would have only a seven year "look back" period, although he now faced a 10 year such period, and the prohibition on ex post facto laws prevented the application of the latter.*fn6 The People did not oppose defendant's motion, and it was granted by the trial court.*fn7 The absence of one of the three prior convictions rendered the current offenses misdemeanors. The records before this court contain no new charging document and the People asserted below that they did not "re- file `another misdemeanor complaint'" but, rather, "re-filed the case as a felony."*fn8 The record before this court contains only the March 15, 2007 information and we note that at the taking of the plea that was the document used by the court and the parties.*fn9
Defendant unsuccessfully sought dismissal of the information on the basis that the trial court lacked jurisdiction because it was now a misdemeanor case. Defendant then unsuccessfully sought dismissal of the information on the basis that the People had dismissed the misdemeanor complaint, and, under Penal Code section 1387, subdivision (a) they were precluded from proceeding on the information. Defendant then pled and admitted the allegation as noted above and received probation.
1. Jurisdiction of the Trial Court
In his second demurrer*fn10 to the information, defendant asserted that "the court does not have jurisdiction of the matter based on the face of the information, because, ex post facto principles properly applied, the prior conviction [which was ultimately dismissed] necessary to confer felony trial jurisdiction died for . . . use [as a prior] before the Legislature purported to resurrect it." He pointed out that this prior conviction occurred outside the seven year "look back" period that existed when that crime had been committed, although it had not occurred outside the 10 year "look back" period the Legislature enacted after it had been committed. He cited Stogner v. California (2003) 539 U.S. 607 (Stogner),*fn11 in asserting that the prior could not be used to further punish defendant when it had effectively ceased to be available as a trigger for prosecution of the charged crimes as felonies seven years after its commission.
The People responded that use of the ultimately dismissed prior was not a violation of ex post facto and it distinguished Stogner and cited People v. Sweet (1989) 207 Cal.App.3d 78 (Sweet),*fn12 which held that the Legislature's previous extension of the "look back" period from five to seven years was not a violation of ex post facto. During argument before the court on the demurrer, the prosecutor likened the extension of the "look back" period to legislation expanding the list of crimes that are considered strikes for purposes of the three strikes law, which, at the time they were committed, were not considered strikes. The trial court overruled defendant's demurrer.
Defendant then filed a motion to strike the ultimately dismissed prior on the ground that when he had pled guilty to it, he had believed it could be used only for seven years from the date of his conviction and not ten and that ex post facto principles prohibited its use here, repeating what he unsuccessfully asserted before on this subject. Additionally, defendant pointed out that the change of plea form he signed expressly stated that the prior could be used only for seven years from the date of his conviction. He asserted in an attached declaration that had he known this prior could have been used against him for more than seven years, he would not have pled guilty and he considered the seven year limitation to be a material part of the People's agreement with him. As noted above, the People did not object to the motion to strike this prior and the trial court granted it.
Defendant begins his attack on the jurisdiction of the trial court over this case by asserting, "This was an information that never had any legitimate felony component." To the extent that defendant is suggesting that the People did not, in good faith, charge him with these offenses as felonies,*fn13 he is incorrect. The People successfully argued against defendant's ex post facto contention concerning the ultimately dismissed prior and it was not until defendant pointed out that his change of plea form contained an express seven year limit on the use of the prior and he ...