Opinion
Certified for Partial Publication
Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of parts IV, V, and VI.
Review Granted March 14, 1991.
Review Dismissed July 11, 1991.
Previously published at 226 Cal.App.3d 1
John G. Wurm, under appointment by the Court of Appeal, for defendant and appellant.
John Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Louis R. Hanoian, Supervising Deputy Atty. Gen., and Esteban Hernandez, Deputy Atty. Gen., for plaintiff and respondent.
OPINION
HOLLENHORST, Acting Presiding Justice.
In this case, we are required to decide whether the trial court erred in refusing to bifurcate for trial the issues of guilt and the validity of the prior convictions when defendant was charged with driving under the influence of alcohol (Veh.Code, § 23152) with six prior convictions for driving under the influence of alcohol (Veh.Code, § 23175).
Unless otherwise indicated, all statutory references are to the Vehicle Code.
I
FACTS
Defendant Donald French was arrested on May 25, 1989, for driving under the influence of alcohol after he failed to stop for a stop sign and nearly hit a highway patrol car. The officer followed Mr. French's van across a bridge and saw the van weaving and hitting the curb as it crossed the bridge. The officer stopped the van and Mr. French stumbled out. There was a strong odor of alcohol, Mr. French's eyes appeared red and watery, his speech was slurred, his clothes were disheveled, and he could barely stand up. Another officer gave Mr. French a field sobriety test. Mr. French flunked the test and was arrested. A breath test showed readings of .16, .14 and .14. A blood test was taken and the resulting blood alcohol level was .15. Mr. French took the stand and admitted drinking two-thirds of a one-fifth bottle of wine immediately before he was stopped. His expert gave an opinion that, based on these facts, Mr. French's blood alcohol level was .06-.07 lower at the time of driving than it was at the time of the tests an hour later.
II
ELEMENTS OF THE OFFENSE
Defendant first contends that the jury should not have been told about his prior convictions. He argues that the issue of guilt should have been separated from the The trial court refused to apply Bracamonte because it found that the prior convictions were an element of the offense charged. The prosecution and the trial court relied on People v. Johnson (1988) 199 Cal.App.3d 868, 245 Cal.Rptr. 242.
The parties agree that the first issue is whether the prior offenses charged were an element of the crime or enhancements.
In the information, the charge was set out as follows: "On or about May 25, 1989, in the County of San Bernardino, State of California, the crime of FELONY DRIVING UNDER THE INFLUENCE OF ALCOHOL OR DRUGS, in violation of VEHICLE CODE SECTION 23152(a), a Felony, was committed by DONALD EUGENE FRENCH, who did willfully and unlawfully, while under the influence of an alcoholic beverage and a drug and their combined influence, drive a vehicle. It is further alleged that pursuant to Vehicle Code section 23175 the defendant suffered the following prior convictions: [six prior convictions of violation of section 23152 alleged]." Count 2 alleged the crime of "FELONY DRIVING WHILE HAVING 0.10 OR HIGHER BLOOD ALCOHOL, in violation of VEHICLE CODE SECTION 23152(b), a Felony." The same six prior convictions were alleged as part of count 2.
Section 23152, subdivision (a) states: "It is unlawful for any person who is under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug, to drive a vehicle." Without the prior convictions, this section refers to a misdemeanor offense. (§ 40000.15; CALJIC No. 16.830; 2 Witkin & Epstein, Cal.Criminal Law (2d ed. 1988) Crimes Against Public Peace and Welfare, § 923, pp. 1045-1046.) The more serious crime, driving under the influence and causing bodily injury to another person, is a felony. (§ 23153; CALJIC No. 12.60.)
Section 23175 provides: "If any person is convicted of a violation of Section 23152 and the offense occurred within seven years of three or more [prior driving under the influence violations], that person shall be punished by imprisonment in the state prison...." (2 Witkin & Epstein, op. cit. supra, Crimes Against Public Peace and Welfare, § 926, pp. 1049-1050.)
Defendant contends that sections 23152 and 23175, when charged together, allege a misdemeanor, driving under the influence of alcohol, that is enhanced with additional penalties for the prior convictions. Plaintiff contends that, when charged together, the two sections constitute a separate crime (felony driving under the influence), and the prior convictions are therefore an element of that crime.
Finding no direct authority, the trial court relied on People v. Johnson, supra, 199 Cal.App.3d 868, 245 Cal.Rptr. 242. The crime charged in Johnson was a violation of Penal Code section 484, petty theft, with a prior petty theft under Penal Code section 666. The court said: "Because the prior conviction for petty theft is an element of the principal crime charged and triable at the time the principal crime is tried, Johnson had no right to a bifurcated proceeding." (Id., at p. 871, 245 Cal.Rptr. 242.) Accordingly, the court found that the bifurcated procedure in Bracamonte was not available to the defendant, citing People v. Shippey (1985) 168 Cal.App.3d 879, 214 Cal.Rptr. 553.
The court that decided Johnson reexamined and approved it in People v. Church (1989) 215 Cal.App.3d 1151, 264 Cal.Rptr. 49.
Shippey was also a case involving petty theft with a prior petty theft conviction. The court found the Bracamonte rule to be inapplicable because the prior conviction was itself an element of the underlying charge. (People v. Shippey, supra, 168 Cal.App.3d 879, 890, 214 Cal.Rptr. 553.)
Other possible analogies include the charge of an ex-felon in possession of a firearm (Pen.Code, § 12021). Under that section, the prior felony conviction has been held to be an essential element of the Penal Code section 12025 (carrying a concealed weapon) also is a misdemeanor that becomes a felony if the person carrying the concealed weapon has previously been convicted of a felony. Similarly, Penal Code section 12031 (carrying a loaded firearm) imposes a stricter sentence if the person has previously been convicted of a similar offense. (See CALJIC Nos. 16.470, 17.23.)
Penal Code section 647 (disorderly conduct) provides that it is a misdemeanor to solicit an act of prostitution but that, if there have been prior convictions, "each such previous conviction shall be charged in the accusatory pleading; and, if two or more of such previous convictions are found to be true by the jury, upon a jury trial ... or are admitted by the defendant, the defendant shall be imprisoned in the county jail...."
Conversely, when an attempt is charged (Pen.Code, § 664), the elements of the crime are a specific intent to commit the crime and a direct but ineffectual act done towards its commission. (CALJIC No. 6.00) The crime is defined in Penal Code section 664 even though the punishments are also specified in that section.
This analogy tends to support plaintiff's contention that, even though section 23175 is primarily a punishment provision, it also defines a crime of driving under the influence by certain repeat offenders. The vitality of the analogy is weakened by the legislative history discussed below.
We agree with defendant that the basic offense charged, violation of section 23152, consists of only two elements, being under the influence of alcohol or drugs and driving a vehicle. (CALJIC No. 16.830.) Nevertheless, we agree with the trial court and plaintiff that a third element, having the requisite number of prior convictions within a certain time period must be charged and proven when the prosecution elects to charge the offense as a felony. (PEN.CODE, § 1025. ) Since the defendant here was charged with a felony, the prosecution had the burden of proving that the prior convictions were true as an element of the crime charged. The analogies to other statutes and the case law support plaintiff's contention that the prior convictions become an element of the offense when so charged.
Penal Code section 1025 requires the prior convictions to be properly charged and, if they are in issue, requires that the jury determine the validity of those convictions. While it also provides that the prior convictions should not be disclosed to the jury when, as here, they are admitted, that provision has been found inapplicable when the prior convictions are an element of the offense charged. (People v. Robles (1970) 2 Cal.3d 205, 213, 85 Cal.Rptr. 166, 466 P.2d 710; People v. Gallinger (1963) 212 Cal.App.2d 851, 28 Cal.Rptr. 472; People v. Forrester (1931) 116 Cal.App. 240, 2 P.2d 558; cf. People v. Sherren (1979) 89 Cal.App.3d 752, 152 Cal.Rptr. 828.)
In this case, as in Johnson and Shippey, the status of prior convictions is directly related to the substantive issue of guilt because it is an element of the offense charged. Accordingly, bifurcation is not required under Bracamonte. (People v. Valentine, supra, 42 Cal.3d 170, 181-182, 228 Cal.Rptr. 25.)
The jury was instructed as follows: "When a prior conviction is an element of any felony offense, it shall be proven, or admitted, to the trier of fact in open court, only for the purpose of establishing the charge as a felony. The prior conviction is not to be considered to prove his or her guilt or innocence, [sic] on this specific occasion."
In our view, section 23175 is a penalty section that prescribes the base term punishment for a violation of section 23152 by specified repeat offenders. The alternative punishment of either state prison or county jail, with a fine, raises the misdemeanor defined in section 23152 to a felony. But the increased possible punishment is not an "enhancement" of the crime charged in section 23152. Section 23175 simply defines the range of terms for certain repeat offenders. Trial court sentencing thereunder is an election of the proper base term. It does not constitute enhancement of any sentence. An enhancement is an additional term of punishment added to the base term for the charged offense. (Cal.Rules of Court, rule 405(c).) The base term "is the determinate prison term selected from among the three possible terms prescribed by statute or the determinate prison term prescribed by law if a range of three possible terms is not prescribed." (Cal.Rules of Court, rule 405(b).) Since section 23175 does not describe three possible prison terms, the alternatives are sixteen months, two years, or three years. (Pen.Code, § 18.) The trial court here chose the aggravated term of three years, based on aggravating factors relating primarily to the defendant's prior record. The trial court therefore did not enhance a base term, but rather sentenced defendant to the aggravated base term for the offense defined in section 23152, which by reasons of the alleged and proven prior convictions was a felony.
Defendant contends that this decision constituted a prohibited dual use of facts. This contention is discussed below.
Defendant views the statutory scheme differently. He contends that the separate statutes that impose progressively greater punishment for driving under the influence with one to three or more prior convictions are enhancement statutes, not separate crimes. Thus, he argues that section 23165 does not create a separate crime of driving under the influence with one prior conviction, but is rather an enhanced penalty for having sustained a prior conviction. The statutory language supports his argument to some extent since the introductory language of sections 23165, 23170 and 23175 refers to persons "convicted of a violation of Section 23152," thus implying that the crime is the crime of driving under the influence, and the punishment for the crime is increased with the number of prior convictions. We agree with the implication, but all increased punishments are not enhancements.
Defendant's argument is strengthened by several cases that refer to the increased punishment under section 23170 as an enhancement. (See, e.g. People v. Lujan (1983) 141 Cal.App.3d Supp. 15, 29-30, 192 Cal.Rptr. 109, cited with approval in Burg v. Municipal Court (1983) 35 Cal.3d 257, 273, 198 Cal.Rptr. 145, 673 P.2d 732.) One recent case refers to these sections as both constituting an element of the offense and enhancing punishment. (People v. Sweet (1989) 207 Cal.App.3d 78, 81, 83, 254 Cal.Rptr. 567.) Nevertheless, an increase in punishment is accomplished by either an increase in the prison term, adding enhancements, or, as here, upgrading the offense from a misdemeanor to a felony. (Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 352, 211 Cal.Rptr. 742, 696 P.2d 134.)
In 1981, the Legislature revised the Vehicle Code sections dealing with driving under the influence of alcohol and drugs. (Stats.1981, ch. 939, 940, 941; 13 Pacific L.J. 787; 2 Witkin & Epstein, op. cit. supra, Crimes Against Public Peace and Welfare, §§ 916-923, pp. 1039-1046, § 926, pp. 1049-1050.) "As part of the 1981 reorganization ... the punishment provisions, which impose varying penalties depending on the number of prior convictions ... were placed in separate sections from those defining drunk driving offenses...." (2 Witkin & Epstein, op. cit. supra, Crimes Against Public Peace and Welfare, § 922, pp. 1043-1045.) Similarly, a contemporaneous discussion of the legislation refers to the new law as increasing the penalties for driving under the influence, not as creating new offenses. (13 Pacific L.J. 787-791.) We therefore disagree with plaintiff's contention that sections 23152 and 23175, charged together, define a new crime "felony driving under the influence with three or more prior convictions." The crime charged is driving under the influence (§ 23152) but the penalties are increased because of the prior convictions (§ 23175) and the degree of the crime is also changed from a misdemeanor to a felony by such prior convictions.
The legislative scheme behind the Vehicle Code amendments shows that the Legislature is aware of the difference between the increased punishments and sentence enhancements because section 23159 specifically provides for sentence enhancements for refusal to submit to chemical, blood, breath or urine tests pursuant to section 23157. Greater enhancements are provided for repeat offenders. The parallel scheme for the more serious offense defined in section 23153 carries the punishment for first offenders specified in section 23180. If there are previous convictions, section 23185 provides for increased penalties. However, this offense specifically contains an enhancement for multiple victims (§ 23182), thus showing that the Legislature considered the enhancement to be different from the increased punishment for prior convictions. Thus, even though increased punishment for prior convictions is normally enhancements (see, e.g. 3 Witkin and Epstein, op. cit. supra, Punishment for Crime, § 1473, pp. 1749-1751, § 1511, pp. 1798-1799), here they are part of the base term itself.
Accordingly, since the prior convictions had to be proven as an element of the offense, defendant was not entitled to a bifurcated trial under the Bracamonte rule, and the trial court did not err in denying his motion for separation. (People v. Bracamonte, supra, 119 Cal.App.3d 644, 174 Cal.Rptr. 191.)
Even if we ruled otherwise, we would agree with plaintiff's further contention that any error was harmless in view of the overwhelming evidence of guilt. Defendant was undoubtedly convicted on the clear evidence before the jury, and would have been convicted even if the jury was not aware of his deplorable prior record.
III
EFFECT OF PROPOSITION 8
In addition to analogies from other statutes, plaintiff contends that defendant's prior convictions and their nature had to be proven in open court because of the provisions of Proposition 8 (Cal. Const., art. I, § 28, subd. (f)): "Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding. When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court."
Although the prior convictions here were misdemeanors, not felonies, plaintiff urges us to apply the constitutional provision as if it included nonfelony prior convictions. A similar argument was rejected in People v. Shippey, supra, 168 Cal.App.3d 879, 891, 214 Cal.Rptr. 553 because the language of California Constitution, article I, section 28, subdivision (f) clearly and unambiguously applies only to prior felonies, not prior misdemeanors. Although our Supreme Court has labeled this distinction "entirely inadvertent" (People v. Valentine, supra, 42 Cal.3d 170, 181, fn. 5, 228 Cal.Rptr. 25), we agree with Shippey that the clear words do not allow a contrary interpretation. (People v. Callegri (1984) 154 Cal.App.3d 856, 866-867, 202 Cal.Rptr. 109.) "Had the drafters of Proposition 8 intended otherwise, they would have crafted the disputed provision differently (e.g., 'When a prior conviction is an element....'), as they were surely aware of the well-established rule for section 666 priors when they acted to supersede the holding in Hall." (People v. Ancira (1985) 164 Cal.App.3d 378, 381, 210 Cal.Rptr. 527.)
In People v. Bennett (1987) 188 Cal.App.3d 911, 233 Cal.Rptr. 729, the defendant offered to stipulate to his prior grand theft conviction for purposes of a Penal Code section 666 (petty theft with a prior conviction) charge. The court held that the trial court did not err in allowing the prosecutor to prove the prior grand theft conviction to the jury. Although grand theft could be either a felony or a misdemeanor, the court relied on California Constitution, article I, section 28, subdivision (f) to hold that the defendant could not avoid that section by stipulating to the theft related prior conviction. (Id., at p. 915, 233 Cal.Rptr. 729.) The court rejected the reasoning of Ancira but did not expressly extend California Constitution, article I, section 28, subdivision (f) to misdemeanors. We find, however, that section 28, subdivision (f) is plainly inapplicable when the prior conviction is a misdemeanor. IV-VI
See footnote *, ante.
VII
DISPOSITION
The judgment is modified to show that the sentence on count 2 is eight months, that said sentence is stayed pursuant to Penal Code section 654, and the use of the conviction on count 2 for sentencing and administrative use is stayed, conditioned upon the continuing validity of the conviction on count 1. Upon defendant's completion of his sentence on count 1, the stay shall be permanent. The trial court is directed to prepare and forward to the proper authorities an amended abstract of judgment showing these changes. As so modified, the judgment is affirmed.
TIMLIN and McDANIEL , JJ., concur.