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The People v. Jose Manuel Cuellar

May 10, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JOSE MANUEL CUELLAR, DEFENDANT AND APPELLANT.



(Super. Ct. No. 10F01474)

The opinion of the court was delivered by: Hoch, J.

P. v. Cuellar

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 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).

FACTS

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.

DISCUSSION

I. Subdivisions (a) and (b) of Vehicle Code Section 23152 Define ...


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