Opinion
F053614
9-4-2008
THE PEOPLE, Plaintiff and Respondent, v. SANTOS CHAPA QUINTERO, Defendant and Appellant.
Gordon B. Scott, under appointment by the Court of Appeal, for Plaintiff and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
OPINION
THE COURT
Before Ardaiz, P.J., Vartabedian, J. and Cornell, J.
All further references are to the Vehicle Code unless otherwise stated.
Appellant Santos Chapa Quintero was charged with driving under the influence of alcohol (Veh. Code, § 23152, subd. (a); count 1), driving with a blood alcohol level of 0.08 or higher (Veh. Code, § 23152, subd. (b); count 2), and driving with a suspended or revoked license (Veh. Code, § 14601.5, subd. (a); count 3). Counts 1 and 2 also included special allegations of three prior convictions for driving with a blood alcohol level of 0.08 or higher (Veh. Code, §§ 23550 & 23550.5), and of driving with a blood alcohol level of 0.15 percent or higher (Veh. Code, § 23578). In a plea deal, he entered a plea of guilty to the count 2 charge of driving with a blood alcohol level of 0.08 or higher (Veh. Code, § 23152,(b)).1 The court sentenced him to a term of two years in state prison, ordered his drivers license suspended, imposed various fines and penalty assessments, and further pronounced "under Section 13386 subdivision (a) of the Vehicle Code that the defendant be ordered to install an interlock device in his vehicle under his custody and control when he resumes his — when he — if he obtains a restoration of his license status." When appellants counsel informed the court he believed that the interlock device requirement could be ordered for a period of time of "up to three" years, the court stated: "Because of his long history I think the three year term would be appropriate if he — when he gets his drivers license back." The abstract of judgment states in pertinent part: "Pursuant to 13386(a) VC, defendant ordered to install the interlock device on any vehicle under his custody and control for a period of 3 years." It is this last portion of the sentence that is the subject of this appeal. Appellant contends that the court had authority to order the installation and utilization of an interlock device only for a period of time not to exceed three years from the date sentence was pronounced, regardless of when appellant might once again become licensed to drive. Respondent concedes the error. As we shall explain, respondents concession is well taken, and we will direct the superior court to modify its judgment accordingly.
VEHICLE CODE SECTION 23575
The probation officers report recommended that "pursuant to Section 13386(a) of the Vehicle Code, the defendant be ordered to install the interlock device on any vehicle under his custody and control." The court adopted this recommendation. Section 13386 does not, however, pertain to the installation of interlock devices. It is a statute pertaining the Department of Motor Vehicles certification of those devices. Appellant and respondent both point out that it is section 23575 which pertains to court-mandated use of an ignition interlock device. Subdivision (a) of the statute permits the court, and under certain circumstances requires the court, to require a person convicted of specified violations to install an ignition interlock device on any vehicle the person owns or operates and to prohibit that person from operating a motor vehicle unless the vehicle is equipped with a functioning, certified ignition interlock device. That subdivision also provides that the term of the restriction "shall be determined by the court for a period not to exceed three years from the date of conviction." (§ 23575, subd. (a)(1).) None of the subdivision (a) circumstances ("a first offense violation of Section 23152 or 21153" (§ 23575, subd. (a)(1)) or "a violation of Section 14601.2" (§ 23575, subd. (a)(2))) exists in the case presently before us. Subdivision (l) of section 23575, however, states:
"This section does not restrict a court from requiring installation of an ignition interlock device and prohibiting operation of a motor vehicle unless that vehicle is equipped with a functioning, certified ignition interlock device for a person to whom subdivision (a) or (b) does not apply. The term of the restriction shall be determined by the court for a period not to exceed three years from the date of conviction. The court shall notify the Department of Motor Vehicles, as specified in subdivision (a) of Section 1803, of the terms of the restrictions in accordance with subdivision (a) of Section 1804. The Department of Motor Vehicles shall place the restriction in the persons records in the Department of Motor Vehicles."
The parties agree that subdivision (l) of section 23575 (not § 13386) authorized the court to impose the interlock device restriction "for a period not to exceed three years from the date of conviction." (§ 23575, subd. (l).) We will therefore direct the court to modify its judgment accordingly. (See "Disposition" below.)
DISPOSITION
The superior court is directed to modify the abstract of judgment in the following manner. The court shall delete the sentence stating "Pursuant to 13386(a) VC, defendant ordered to install the interlock device on any vehicle under his custody and control for a period of 3 years" and shall replace the deleted sentence with: "Defendant is ordered to install a certified interlock device on any vehicle he owns or operates, and is prohibited from operating a motor vehicle unless that vehicle is equipped with a functioning, certified ignition interlock device. This court-ordered restriction shall expire on July 12, 2010. Nothing in this court-ordered restriction is intended to limit or purports to limit the authority of the Department of Motor Vehicles to impose any licensing restriction it is otherwise authorized by law to impose. Installation of an ignition interlock device on a vehicle does not allow defendant to drive without a valid drivers license. (Vehicle Code §23575(c).)" In all other respects, the judgment is affirmed.