Opinion
NOT TO BE PUBLISHED
Super. Ct. No. ST035405A
NICHOLSON, J.
This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436.
On September 29, 2003, defendant Joseph Michael Azarcon drove a car after consuming several beers. He was pulled over after a sheriff’s deputy observed him driving erratically and was arrested after failing a field sobriety test. He had a blood-alcohol level of .12. At the time of his arrest, his license had been revoked as a result of a prior driving under the influence conviction, and the registration for the car he was driving had expired.
These facts are taken from the preliminary hearing transcript and probation report. In entering his guilty pleas, defendant agreed “[t]he sentencing [j]udge may consider my prior criminal history and the entire factual background of the case . . . when granting probation, ordering restitution or imposing sentence.”
The following day, defendant was released on his own recognizance. He subsequently failed to appear in court, and a bench warrant was issued. He was released at least two more times in January and February 2004, subsequently failed to appear, and was returned to custody.
As a result of the September 29, 2003, incident and defendant’s subsequent failures to appear, defendant was charged by amended information with driving under the influence with a prior (Veh. Code, §§ 23152, subd. (a), 23550.5 -- count 1), driving with a blood-alcohol level of .08 percent or higher with a prior (Veh. Code, §§ 23152, subd. (b), 23550.5 -- count 2), driving with a suspended or revoked license for a prior driving under the influence conviction, a misdemeanor (Veh. Code, § 14601.2, subd. (a) -- count 3), driving an unregistered vehicle, an infraction (Veh. Code, § 4000, subd. (a) -- count 4), and failing to appear, a felony (Pen. Code, § 1320, subd. (b) -- count 5). It was further alleged defendant served a prior prison term (Pen. Code, § 667.5, subd. (b)).
In November 2004, the trial court dismissed count 4 on its own motion; and defendant pleaded guilty to the remaining counts, admitted the prior prison term allegation, and agreed to waive “seven months good-time credit,” the bulk of which he purportedly accrued while in custody at an honor farm on a presumably unrelated matter, in exchange for five years formal probation. The trial court suspended imposition of sentence on counts 1, 2, and 5; placed defendant on five years formal probation on conditions, among others, he serve one year in county jail, plus a concurrent term of 106 days in county jail in lieu of fines, participate in a drug rehabilitation program, report to probation as directed, and keep probation advised at all times of his correct address; and revoked defendant’s license for “three to five years.”
Despite the trial court’s use of the term “good conduct,” it is clear from the reporter’s transcript that defendant agreed to waive any credit he had accrued up to the date of sentencing, including that spent in actual custody. Given defendant’s waiver, we need not consider whether defendant was entitled to such credit in the first instance.
Conditional probation was granted as to count 3.
In March 2006, defendant admitted violating the conditions of his probation by failing to “enroll and/or successfully complete the [c]ourt ordered treatment program,” obey the reasonable directions of probation, and report as directed by probation. His probation was revoked and reinstated on the additional condition he serve 60 days in jail.
In August 2006, defendant admitted violating the conditions of his probation by failing to report and/or notify probation of his correct living arrangements and to obey the reasonable directions of probation. His probation was revoked and reinstated on the additional condition he serve 60 days in jail.
In October 2006, defendant removed two drills, some drill bits, and a flashlight from a Wal-Mart store without paying for them.
In November 2006, defendant removed a package of diapers and various health and beauty products from a Wal-Mart store without paying for them. Defendant also failed to report to probation as directed and to obey the reasonable directions of probation.
In February 2007, defendant removed an iPod accessory from a Target store without paying for it.
In April 2007, the trial court denied defendant’s request for substitute counsel and found defendant was in violation of his probation based on the two Wal-Mart incidents, the Target incident, failing to report to probation as directed, and failing to obey the reasonable directions of probation.
In May 2007, the trial court terminated defendant’s probation and sentenced him to an aggregate term of two years in state prison, consisting of the middle term of two years on count 1 (driving under the influence with a prior), a concurrent middle term of two years on count 2 (driving with a blood-alcohol level of .08 percent or higher with a prior), a concurrent middle term of two years on count 5 (failing to appear), with credit for 234 days (156 actual and 78 good conduct); and imposed a $200 restitution fine (Pen. Code, § 1202.4), a $200 parole revocation fine (Pen. Code, § 1202.45), and a $20 court security fee (Pen. Code, § 1465.8). The court struck the prison prior.
The court terminated probation on count 3 (driving with a suspended or revoked license for a prior driving under the influence conviction, a misdemeanor) “in lieu of the two year state prison sentence.”
Defendant appeals. He did not obtain a certificate of probable cause. (Pen. Code, § 1237.5.)
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.
Having undertaken an examination of the entire record, we note the following errors.
First, defendant’s sentence for count 2 should have been stayed. “[Penal Code] [s]ection 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citations.] If, for example, a defendant suffers two convictions, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed. [Citation.] Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences. [Citation.]” (People v. Deloza (1998) 18 Cal.4th 585, 591.) Because counts 1 and 2 -- driving under the influence and driving with a blood-alcohol level of .08 percent or higher, respectively -- arose out of a single act or omission, defendant’s sentence on count 2 should have been stayed.
Second, defendant’s license should have been revoked for four years, not three to five. When the trial court initially granted probation in November 2004, it ordered defendant’s license be revoked “for three to five years.” In 2004 (and now), Vehicle Code section 23550.5, subdivision (c) provided in pertinent part: “The privilege to operate a motor vehicle of a person convicted of a violation that is punishable under subdivision (a) or (b) shall be revoked by the department under paragraph (7) of subdivision (a) of Section 13352 . . . .” In 2004 (and now), Vehicle Code section 13352, subdivision (a)(7) provided: “[U]pon a conviction or finding of a violation of [s]ection 23152 punishable under . . . [s]ection 23550.5[,] the privilege shall be revoked for a period of four years.” Insofar as defendant was convicted of violating Vehicle Code section 23152 punishable under Vehicle Code section 23550.5, his driver’s license should have been revoked for four years, not “three to five.”
We find no other arguable errors that would result in a disposition more favorable to defendant.
DISPOSITION
The sentence imposed on count 2 -- driving with a blood-alcohol level of .08 -- is stayed. Defendant’s license is suspended for four (not three to five) years. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect these modifications and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: SCOTLAND, P. J., CANTIL-SAKAUYE, J.