IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
May 10, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JOSE MANUEL CUELLAR, DEFENDANT AND APPELLANT.
(Super. Ct. No. 10F01474)
The opinion of the court was delivered by: Hoch, J.
P. v. Cuellar
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Wallace v. Municipal Court (1983) 140 Cal.App.3d 100 (Wallace), this court held Vehicle Code section 23152, subdivision (a) (section 23152(a)), driving under the influence, and Vehicle Code section 23152, subdivision (b) (section 23152(b)), driving with a certain blood alcohol level, are separate offenses. This holding has been cited with approval by the California Supreme Court (Burg v. Municipal Court (1983) 35 Cal.3d 257, 265 (Burg)) and followed by other appellate courts. Notwithstanding the established nature of the proposition that subdivisions (a) and (b) of Vehicle Code section 23152 are separate offenses, defendant contends that where one act of driving violates both subdivisions there is only one offense and one of his convictions must be vacated. He contends Wallace was wrongly decided because it conflicts with People v. Craig (1941) 17 Cal.2d 453 (Craig) as to the test for determining whether a single act constitutes one or more offenses. We disagree and affirm defendant's convictions under section 23152 (a) and (b).
On the morning of March 7, 2010, California Highway Patrol Officer Kevin Ward saw defendant driving a black Ford Expedition down 47th Avenue. The Expedition was going at least 70 miles per hour in a 40 mile-an-hour zone. Ward made a U-turn and followed, intending to make a traffic stop. Instead, defendant lead Ward on a high speed chase, onto Highway 99 and ending in a residential neighborhood where defendant's parents lived.
During the chase, Ward activated his lights and siren. Defendant went over 100 miles an hour on the highway and up to 50 miles an hour on surface streets. He ran through two stop signs and four red lights.
When he finally stopped at his parent's house, defendant was lethargic, clumsy, and slow. He smelled of alcohol, his eyes were red and watery, and his speech was slurred. His behavior was erratic; defendant was alternatively quiet and cooperative, and belligerent and out of control. Based on these symptoms and defendant's poor performance on a horizontal gaze nystagmus test, Ward believed defendant was under the influence of alcohol.
At the station defendant was given a choice of chemical tests and chose a blood test. The test showed defendant had a blood alcohol concentration of .21 percent. The criminalist determined that when defendant was driving an hour and a half earlier, his blood alcohol level was .24 percent.
A jury convicted defendant of evading an officer while driving recklessly (Veh. Code, § 2800.2), driving under the influence (§ 23152(a)), and driving with a blood alcohol level of .08 percent or higher (§ 23152(b)). Defendant pled guilty to driving when his license had been suspended due to driving with a certain blood alcohol level. (Veh. Code, § 14601.5, subd. (a).) The trial court denied defendant probation and sentenced him to two years in prison.
I. Subdivisions (a) and (b) of Vehicle Code Section 23152 Define Separate Offenses
Defendant contends, "One act of driving that simultaneously violates both subdivisions (a) and (b) of section 23152 necessarily resolves into one identical offense."*fn1 He contends California Supreme Court precedent requires an analysis that looks not only to whether separate proofs are necessary, but also whether the different subdivisions protect different victims, are violated at different times, and are animated by different legislative purposes. Recognizing that case law has found section 23152(a) and section 23152(b) define separate offenses, he asks this court to reconsider the question in light of Craig, supra, 17 Cal.2d 453 and People v. Ryan (2006) 138 Cal.App.4th 360 (Ryan).
Both Craig and Ryan considered whether different subdivisions of a statute constitute separate offenses or only separate means of committing the same offense. In Craig, defendant was convicted of two counts of rape for a single act of forcible intercourse with a 16-year-old. At that time, forcible rape and rape of a minor were proscribed by different subdivisions of Penal Code section 261. (Craig, supra, 17 Cal.2d at p. 455.) The Supreme Court found the two subdivisions were one punishable offense of rape, although the offense could be accomplished in more than one way. The conclusion of a single offense was supported by Penal Code section 263 that declares, "The essential guilt of rape consists in the outrage to the person and feelings of the [victim of the rape]." There was only one outrage and therefore only one rape. (Ibid.)
The Craig court set forth the applicable test. "The authorities have set down certain rules or tests whereby it may generally be determined whether one or more offenses result from a single act or transaction. Frequently, the test is stated to be 'the identity of the offenses as distinguished from the identity of the transactions from which they arise. A defendant may be convicted of two separate offenses arising out of the same transaction when each offense is stated in a separate count and when the two offenses differ in their necessary elements and one is not included within the other.' [Citation.] Where, as here, the charge and proof disclose a single act of intercourse resulting from force employed upon a minor, but one punishable rape is consummated, for the proof, though dual in character, necessarily crystallizes into one 'included' or identical offense." (Craig, supra, 17 Cal.2d at p. 457.)
In Ryan, supra, 138 Cal.App.4th 360, 364, the court found the different subdivisions of Penal Code section 470 set forth different ways to commit the single crime of forgery in reference to the same instrument, not separate crimes. The court focused on the history of the statute. Originally there were no subdivisions. The overhaul in dividing the statute into subdivisions was intended not to change the law, but to make it more "user friendly." (Id. at p. 365.)
The issue of the number of crimes arose in a different context in Wallace, supra, 140 Cal.App.3d 100. The question was whether section 23152(a) and section 23152(b) were different offenses for purposes of Penal Code section 853.6, subdivision (e)(3), which bars prosecution of a misdemeanor charged in a notice to appear if the prosecution fails to file the notice to appear or formal complaint within 25 days of arrest. This court held the two subdivisions are not the same offense. (Wallace, supra, 140 Cal.App.3d at p. 103.) "The general rule which can be distilled from these examples is that when the essence of the offense charged in a second action is the same as the essence of the offense in a previously dismissed action the second action will be barred. [Citation.] When the statutory scheme for the punishment of violations of Vehicle Code section 23152, subdivisions (a) and (b), is considered it is clear that they do not charge essentially the same violation." (Id. at p. 107.)
The Wallace court found sections 23152(a) and 23152(b) have different essences because 23152(a) requires proof the defendant drove under the influence of alcohol or drugs, that is, that his driving was impaired. Section 23152(b), on the other hand, required only proof of defendant's blood alcohol level, without regard to whether his driving was impaired. Because one could commit a violation of section 23152(b) even though his driving was not impaired, "[t]he essence of the two offenses is different." (Wallace, supra, at p. 109.)
The California Supreme Court cited Wallace with approval in Burg, supra, 35 Cal.3d 257, 265. Burg considered a constitutional challenge to section 23152(b). The court traced the history of the statute and, citing Wallace, stated section 23152(b) "established a new and separate offense." (Burg, supra, at p. 265.) Our high court has accepted this rule in other cases. (People v. McNeal (2009) 46 Cal.4th 1183, 1193 [in enacting section 23152(b), the Legislature created a new crime]; Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 349 ["one instance of drunk driving is chargeable as only one count of felony drunk driving (i.e., one count of § 23153, subd. (a) and one count of subd. (b)) even if more than one person is injured thereby"].)
Two published appellate court decisions have addressed the issue presented here, whether a defendant may be convicted of both sections 23152(a) and 23152(b) for one act of driving. Citing Burg, supra, 35 Cal.3d 257, both have found two convictions are proper because section 23152(b) established a "new and separate offense." (People v. Subramani (1985) 173 Cal.App.3d 1106, 1111; People v. Duarte (1984) 161 Cal.App.3d 438, 446.)
Given this history, we consider the analysis in Wallace, supra, 140 Cal.App.3d 100, adopted with approval in Burg, to be settled law. Even if, as defendant contends, the statement in Burg that section 23152(b) is a different offense is dictum, we find it persuasive. "[T]he dicta of our Supreme Court are highly persuasive." (Evans v. City of Bakersfield (1994) 22 Cal.App.4th 321, 328.) Long standing dicta that has been consistently followed can establish the rule. (See 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 511, p. 577; Estate of Sahlender (1948) 89 Cal.App.2d 329, 345.)
Moreover, we do not find the analysis in Wallace to be inconsistent with that in Craig. In finding only one offense of rape although committed under two subdivisions, the Craig court distinguished cases where two offenses were found, noting those cases involved two victims (one shot kills two), separate statutes (Still Act and Wright Act), different times (abortion and murder upon victim's subsequent death), or different public policies (rape and lewd conduct). (Craig, supra, at p. 457.) Defendant contends we must apply these tests, in addition to the test of whether "'each offense is stated in a separate count and when the two offenses differ in their necessary elements and one is not included within the other.'" (Ibid.)
We disagree that the illustrations in Craig of cases where there were two offenses require a different analysis than that employed by the Wallace court. Wallace focused on "the essence of the offense charged," and found the essences of sections 23152(a) and 23152(b) are different; one is impaired driving and the other is driving with a certain blood alcohol level, regardless of whether there is impairment. (Wallace, supra, at pp. 107, 109.) Defendant contends the two subdivisions of the rape statute at issue in Craig "had different 'essences' and would have been separate crimes." Defendant misreads Craig; its holding is that unlawful intercourse with a minor and unlawful forcible intercourse have the same essence. In Craig, the Supreme Court focused on the "essential guilt of rape," and found a single outrage and offense. (Craig, supra, at p. 455.) Although the proof varied under the different subdivisions of Penal Code section 261, "the sole punishable offense under any and all of them is the unlawful intercourse with the victim." (Id. at p. 458.) In both Wallace and Craig, the court's analysis focused on the essence of the offense. Whether there are different victims, separate statutes, different times or different public policies may be useful in determining whether the two statutory provisions state one or more offenses, but a finding of one of these distinguishing facts is not necessary to conclude the essence of the two offenses is different.
Sections 23152(a) and 23152(b) are separate offenses and defendant was properly convicted of both. (People v. Subramani, supra, 173 Cal.App.3d 1106, 1111; People v. Duarte, supra, 161 Cal.App.3d 438, 446.)
II. Defendant is Entitled to an Additional Day
of Presentence Credit
On September 28, 2010, as an urgency measure effective on that date, the Legislature enacted Senate Bill No. 76 (2009-10 Reg. Sess. (Sen. Bill No. 76); see Stats. 2010, ch. 426), which amended Penal Code section 2933, regarding presentence conduct credits for defendants sentenced to state prison. The amendment gives qualifying prisoners one day of presentence conduct credit for each day of actual presentence confinement served. (Sen. Bill No. 76, § 1; Pen. Code, § 2933, subd. (e)(1), (2), (3).) It also eliminates the loss of one day of presentence conduct credit under the rate specified by Senate Bill No. 18 (2009-10 3d Ex. Sess. (Sen. Bill No. X3 18); see Stats. 2009, ch. 28, § 50) when the person served an odd number of days in presentence custody, and it eliminates the directive in Penal Code section 4019 that no presentence conduct days are to be credited for commitments of fewer than four days. (Sen. Bill No. 76, § 1; Pen. Code, § 4019, subd. (g).)
The amendment does not state that it is to be applied prospectively only. Thus, we conclude it applies retroactively to all appeals pending as of September 28, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [statutory amendments lessening punishment for crimes apply "to acts committed before its passage provided the judgment convicting the defendant of the act is not final"]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to an amendment involving custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237 [applying the rule of Estrada to an amendment involving conduct credits].)*fn2
Defendant is entitled to an additional day of presentence credit under the Senate Bill No. 76 because he served an odd number of days in presentence custody. He was awarded presentence custody credit of 167 days of actual time and 166 days conduct credit, for a total of 333 days credit. He is entitled to 167 days of conduct credit, for a total presentence custody credit of 334 days.
The judgment is modified to award defendant an additional day of presentence conduct credit, for a total of 334 days of presentence custody credit. As so modified, the judgment is affirmed. The trial court is directed to amend its abstract of judgment to reflect this modification and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: BLEASE , Acting P. J. NICHOLSON , J.