(Super. Ct. No. SCE302198) APPEAL from a judgment of the Superior Court of San Diego County, Patricia K. Cookson, Judge. Reversed in part, sentence vacated and remanded with directions.
The opinion of the court was delivered by: Mcintyre, J.
CERTIFIED FOR PUBLICATION
George Wesley Self appeals from a judgment arising from his arrest for driving under the influence of alcohol. He was convicted of multiple violations of the Vehicle Code and the court found true allegations that he had three prior driving under the influence convictions, two in California and one in Arizona. Based on the true findings, the court elevated his sentence from a misdemeanor to a felony under Vehicle Code section 23550, subdivision (a), which allows for sentence enhancement if the defendant had three or more qualifying convictions in the preceding ten years. (Undesignated statutory references are to the Vehicle Code.) He challenges the true findings on the Arizona conviction, contending: (1) it could not be used as a qualifying conviction for purposes of section 23550 because it did not rise to the level of a driving under the influence conviction under California law; and (2) the evidence was insufficient to establish beyond a reasonable doubt that the Arizona offense was a qualifying prior conviction. We agree that the Arizona conviction was not a qualifying conviction and reverse the true findings.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2010, San Diego County Deputy Sheriff Matthew Mays stopped Self for suspected drunk driving. Self was subsequently arrested and charged with driving under the influence of alcohol (count 1), driving with a blood alcohol content (BAC) of .08 percent or higher (count 2), disobeying a court order (count 3), driving while his license was suspended and revoked for a prior conviction (count 4), driving with a BAC of .01 percent or higher while on probation for a qualifying conviction (count 5), and failing to provide evidence of financial responsibility for the vehicle he was driving (count 6). In counts 1 and 2, the People also alleged that Self had California convictions in 2005 and 2009 for driving with a BAC of .08 percent or greater in violation of Vehicle Code section 23152, subdivision (b), and an Arizona conviction in 2007 for violating Arizona Revised Statutes (A.R.S.) section 28-1381, subdivision (A)(1).
At his preliminary hearing, Self moved to dismiss the special allegations regarding the Arizona conviction, arguing that the offense did not constitute a qualifying conviction in California because the Arizona statute criminalized driving while "impaired to the slightest degree" whereas a greater degree of impairment is required under California law. Based on handwritten notations on Self's Arizona judgment indicating BAC levels of .151 and .157 percent, the court found sufficient evidence to substantiate the Arizona conviction and denied the motion.
Self renewed his challenge to the Arizona conviction by filing a motion to dismiss under Penal Code section 995. He argued that the notations on the Arizona judgment regarding his BAC should not be considered because they were not a part of the record of conviction and constituted inadmissible hearsay. Finding that it was proper to consider the BAC notations on the judgment, the court denied the motion.
At trial, Self objected to the admission of the Arizona judgment and his related traffic ticket, which also had a handwritten BAC notation. The court overruled the objection in part, finding that it could consider the Arizona complaint, plea and judgment, and sustained it "as to some of the information contained in the actual traffic ticket." The court then admitted the complaint, plea, judgment and traffic ticket into evidence.
Following a bench trial, the court convicted Self on all counts and found true the prior conviction allegations. The court granted Self probation on the condition that he serve 365 days in county jail (with 261 days of credit for time served) and that he enroll in a residential treatment program for six months.
Self contends the trial court should not have used his Arizona conviction to enhance his sentence because the Arizona statute criminalizes a lower level of intoxication than is required for a driving under the influence conviction in California. He argues that in finding the Arizona conviction to be a qualifying offense, the trial court erred in considering notations on the judgment because they were (1) outside the record of conviction, and (2) constitute inadmissible hearsay. He also claims there was insufficient evidence to establish beyond a reasonable doubt that his Arizona conviction was a qualifying conviction in California. We conclude that in finding the Arizona offense to be a qualifying conviction, the trial court erred in relying on evidence outside the record of conviction and thus need not consider Self's remaining arguments.
Section 23152, subdivisions (a) and (b), make it unlawful for any person "who is under the influence of any alcoholic beverage" or has a BAC of .08 percent or greater to drive a vehicle. The sentence for a section 23152 conviction is enhanced if the defendant had three or more qualifying convictions under sections 23103 (reckless driving), 23152 (driving under the influence), or 23153 (driving under the influence resulting in bodily injury) in the preceding ten years. (§ 23550, subd. (a).) "A conviction of an offense in any state, territory, or possession of the United States . . . that, if committed in this state, would be a violation of Section 23152 . . . is a conviction of Section 23152 . . . for the purposes of [the Vehicle Code]." (§ 23626.)
The People must prove all elements of an alleged sentence enhancement beyond a reasonable doubt. (People v. Tenner (1993) 6 Cal.4th 559, 566.) This rule applies equally to California convictions and to those from foreign jurisdictions. (People v. Woodell (1998) 17 Cal.4th 448, 453.) To use a prior foreign conviction to elevate a section 23152 offense to a felony, the foreign statute must contain ...