Opinion
H044651
10-03-2018
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO MEDINA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS161221)
Defendant was convicted by jury of, among other things, felony driving under the influence of alcohol with three prior DUI convictions. Defendant argues on appeal that the trial court erred by using the same factual basis both to impose the upper term for the felony DUI and to impose the prior prison term enhancements. Defendant alternatively argues his trial counsel provided ineffective assistance by not preserving the issue at sentencing. Defendant also asserts three sentencing errors which the People concede. We will modify the judgment to correct the conceded sentencing errors and affirm the judgment as modified.
I. TRIAL COURT PROCEEDINGS
According to testimony at trial, a police officer pulled over the car defendant was driving after observing it cross over the double yellow dividing line on a city road. The officer immediately smelled alcohol when he approached the driver's window and noticed a passenger had an open 32-ounce bottle of beer. Defendant denied consuming any alcohol, but the officer suspected otherwise because of the alcohol odor, defendant's slurred speech, and his bloodshot and glossy eyes. Defendant did not present a driver's license to the officer and initially provided a false birth date. (Another officer later learned defendant's true birth date, and a third officer testified at trial that defendant's driver's license was suspended at the time of his arrest because of a prior DUI.) The officer instructed defendant to get out of the car and administered field sobriety tests. The officer's observation of horizontal gaze nystagmus in defendant's eyes during certain tests suggested intoxication. Defendant refused to complete further field sobriety tests, and refused to take a blood or breath test. He was arrested and his blood was drawn after the arresting officer obtained a warrant. A criminalist testified that defendant's blood was tested twice, with an average blood alcohol content of .171 percent.
Defendant was charged with driving under the influence of alcohol as a felony (Veh. Code, § 23152, subd. (a); count 1); driving with a blood alcohol level .08 percent or higher as a felony (Veh. Code, § 23152, subd. (b); count 2); driving with a suspended license due to a prior DUI (Veh. Code, § 14601.2, subd. (a); count 3); driving with a suspended or revoked license (Veh. Code, § 14601.5, subd. (a); count 4); providing false information to a peace officer (Veh. Code, § 31; count 5); and providing false identifying information to a peace officer (Pen. Code, § 148.9, subd. (a); count 6). For counts 1 and 2, the operative information alleged that defendant had two prior felony DUI convictions (Veh. Code, § 23550.5) and three or more DUI convictions within 10 years of the current charges (Veh. Code, § 23550); that defendant refused chemical testing (Veh. Code, § 23577, subd. (a)); and that defendant had served four prior prison terms (Pen. Code, § 667.5, subd. (b)).
The jury found defendant guilty as charged, and found all special allegations true. The trial court sentenced defendant to seven years six months in prison, consisting of the upper term of three years for count 1 (Veh. Code, §§ 23152, subd. (a), 23550.5, 23550, Pen. Code, § 1170, subd. (h)(1)); one year for each of the prison priors (Pen. Code, § 667.5, subd. (b)); and six months for count 5 (Veh. Code, § 31). The court imposed and stayed terms for the remaining counts under Penal Code section 654. As relevant to one of the conceded appellate issues, the court orally imposed a $180 Government Code section 70373 fee, but the abstract of judgment lists the fee as $480.
Though not addressed by defendant, the People note that the six-month term for count 5 was improperly included on the abstract of judgment because it is a consecutive misdemeanor sentence that defendant will serve in county jail after serving his felony sentence. (Citing In re Eric J. (1979) 25 Cal.3d 522, 537 [consecutive "misdemeanor terms ... are served in local detention facilities and are not part of a continuous period of imprisonment under the supervision of the same correctional officials"].) We will modify the judgment to correct this conceded error. --------
II. DISCUSSION
A. DUAL USE PROSCRIPTION
Defendant argues the trial court erred by relying on the fact of his prior DUI convictions both to impose the upper term for his current DUI conviction and to impose the prior prison term enhancements. But defendant forfeited the issue by failing to raise it during sentencing. (See People v. Scott (1994) 9 Cal.4th 331, 353 [forfeiture applies to "claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices"].) He therefore argues in the alternative that his trial counsel was ineffective for not objecting on that ground.
To establish ineffectiveness of trial counsel under the Sixth Amendment to the United States Constitution, a defendant must show both that counsel's performance was deficient and that he was prejudiced by the deficiency. (People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) To prove prejudice, a defendant must affirmatively show a reasonable probability that, but for his trial counsel's errors, the result would have been different. (Id. at pp. 217-218.) "[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." (Strickland v. Washington (1984) 466 U.S. 668, 697.)
1. Factual Background
The probation report detailed defendant's extensive drunk driving history. The report listed seven prior confirmed DUI convictions dating back to 1996, plus two DUI arrests for which the probation department did not have disposition information. Three of the seven DUI convictions were felonies. The four prior prison terms were served for the three felony DUI convictions listed in the probation report plus a fourth felony DUI conviction not included in the report. Two of those felonies and one of the prior misdemeanor convictions formed the basis for the special allegations under Vehicle Code sections 23550 and 23550.5. A probation officer stated at the sentencing hearing that the department had received information after preparing the report suggesting defendant had been convicted of several DUIs in addition to those in the report.
In imposing the upper term here, the trial court noted defendant had tried to evade detection by using a different date of birth. The court also summarized aggravating factors: "your prior convictions are numerous, you've served prior prison terms, you were on PRCS when the [current] crime was committed, [and] your prior performance on probation or parole has been unsatisfactory." The court was blunt in its assessment of defendant: "You are a danger to society, and the court is going to impose every single day at its disposal to incarcerate you to keep you off the roads for the safety of the rest of society."
2. Defendant Has Not Shown Prejudice from Any Dual Use
Penal Code section 1170, subdivision (b) provides that a trial court "may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law." Defendant argues the trial court erred because it "imposed the upper term based mainly on the fact appellant had prior DUIs and had served prior prison terms"—i.e., the same facts that formed the basis for both the prior prison term enhancements and the prior offenses supporting the felony DUI charges under Vehicle Code sections 23550 and 23550.5. But as defendant acknowledges, the trial court provided an independently adequate basis for the upper term: that defendant committed the current DUI while on postrelease community supervision. (See California Rules of Court, rule 4.421(b)(4); People v. Black (2007) 41 Cal.4th 799, 813 ["[T]he existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term."].) And defendant's criminal history included not only the four convictions underlying the prior prison term enhancements but at least three other DUI convictions which would also support imposing an upper term. Given those aggravating factors—and the trial court's stated intention to "impose every single day at its disposal to incarcerate" defendant—it is not reasonably probable that the trial court would have imposed a lower sentence had his trial counsel objected.
B. CONCEDED SENTENCING ERRORS
The parties agree that the judgment must be modified to correct certain sentencing errors.
The trial court imposed a concurrent six-month sentence for driving with a suspended license (count 3), which must be stayed under Penal Code section 654 because it arose from the same act or series of acts as count 1. (People v. Soto (2016) 245 Cal.App.4th 1219, 1234-1235 [applying Penal Code section 654 to convictions for driving with a suspended license and violating Vehicle Code section 23152, subdivision (b)].) We will order the judgment modified to stay the sentence for count 3.
The abstract of judgment did not include the statutory bases for the penalty assessments or their individual amounts, which must be added. (People v. Hamed (2013) 221 Cal.App.4th 928, 940 [requiring "court clerk to list the amount and statutory basis for each base fine and the amount and statutory basis for each penalty assessment in the abstract of judgment"].) We will order the judgment modified to provide the amounts and statutory bases for the penalty assessments.
The abstract of judgment includes a $480 Government Code section 70373 fee even though the trial court orally imposed a fee in the correct amount of $180. We will order the judgment modified to conform to the trial court's oral pronouncement.
III. DISPOSITION
The trial court is directed to prepare an amended abstract of judgment reflecting the following modifications to the judgment: (1) stay the sentence for count 3 (Pen. Code, § 654); (2) modify the total time to seven years in prison, with a notation that defendant will then be transferred to county jail to serve a 180-day misdemeanor sentence for count 5; (3) include the amounts and statutory bases for all penalty assessments; and (4) reflect the correct Government Code section 70373 fee of $180. The trial court is further directed to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Greenwood, P. J. /s/_________
Premo, J.