Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. 5-071080-6
RIVERA, J.
Kenneth Raymond Warren appeals from a judgment upon a jury verdict finding him guilty of four counts: (1) driving under the influence of alcohol (DUI) with a prior felony DUI conviction within 10 years (count one) (Veh. Code, §§ 23152, subd. (a), 23550.5); (2) driving with a blood-alcohol level of 0.08 percent or greater with a prior felony DUI conviction (count two) (§§ 23152, subd. (b), 23550.5); (3) DUI after having accumulated three or more DUI prior convictions within 10 years (count three) (§§ 23152, subd. (a), 23550); and (4) driving with a blood-alcohol level of 0.08 percent or greater after accumulating three or more prior DUI convictions within 10 years (count four) (§§ 23152, subd. (b), 23550). In a bifurcated proceeding, the trial court found true the allegations that defendant suffered three misdemeanor DUI convictions and one felony DUI conviction, but struck the alleged prior strike conviction. Defendant contends his convictions for counts three and four must be reversed because the counts are not different crimes but simply constitute sentencing provisions. The Attorney General concedes that reversal of counts three and four is warranted. We reverse the convictions on counts three and four, but otherwise affirm.
All undesignated statutory references are to the Vehicle Code.
I. FACTS
At approximately 11:50 p.m. on May 2, 2007, defendant, who was driving a Pontiac, collided with a motorcycle driven by Allan Choate at the intersection of Railroad Avenue and West 8th Street in Pittsburg. Defendant did not stop his car, and drove to a nearby parking lot. Choate pursued the vehicle and forced defendant to stop his car. Choate called 911.
Officer William Hatcher responded to the scene. Hatcher interviewed defendant and the female passenger who was with him. He found both of them to be under the influence of alcohol. Hatcher asked defendant to perform two field sobriety tests. Defendant refused to participate in the tests. Hatcher administered a preliminary alcohol screening which showed defendant’s blood-alcohol level to be 0.214 percent. In a search of defendant’s car, he found a full bottle of gin, a couple of empty cans of 24-ounce malt liquor, and an almost empty can of 24-ounce malt liquor. Hatcher took defendant to the police station where a blood test showed his alcohol level to be between 0.224 and 0.225 percent. A toxicologist testified that this level of intoxication would render someone of defendant’s weight impaired for the purposes of driving.
II. DISCUSSION
Defendant contends that counts three and four are duplicative of counts one and two and that they constitute sentencing provisions rather than describe different crimes. The Attorney General concedes that the difference between the two sets of counts is that counts three and four define a penalty provision rather than a separate offense. Citing People v. Muhammad (2007) 157 Cal.App.4th 484, 494 (Muhammad), the Attorney General, therefore, concludes that the convictions on counts three and four may be stricken since the counts do not define substantive crimes.
In Muhammad, the defendant was convicted of four counts of stalking, each violating a separate subdivision of Penal Code section 646.9. (Muhammad, supra, 157 Cal.App.4th at p. 486.) On appeal, he contended that he was erroneously convicted of three of the counts (Pen. Code, § 646.9, subds. (a), (b) & (c)(1)) because they describe alternate punishments rather than separate offenses of stalking. (Muhammad, at p. 486.) The court agreed, holding that “subdivisions (b), and (c)(1) and (2) of [Penal Code] section 646.9 are penalty provisions triggered when the offense of stalking as defined in subdivision (a) of that section is committed by a person with a specified history of misconduct.” (Id. at p. 494.) The court noted that the jury does not consider the truth of the penalty facts until it has reached a verdict on the substantive stalking offense. Thus, the defendant could be convicted of only one count of stalking even though his history of misconduct satisfied three separate penalty provisions. The court, therefore, vacated three of the four stalking convictions. (Ibid.)
It is well settled that a defendant may be convicted of both DUI (§ 23152, subd. (a)) and DUI with a blood alcohol level of 0.08 percent of more (id., subd. (b)). (People v. Duarte (1984) 161 Cal.App.3d 438, 446.) Hence, defendant’s convictions of counts one and two were proper. Counts three and four, however, do not create separate offenses but charge penalty provisions imposing a higher penalty based on defendant’s recidivism. (See Muhammad, supra, 157 Cal.App.4th at pp. 492-493.) They establish a higher base term for a DUI conviction under the particular prescribed conditions. Similar penalty provisions were attached to counts one and two. Counts three and four, however, do not state separate offenses, but charge another statutory provision that provides an alternative means for felony treatment of DUI offenders who have committed three separate specified violations of DUI within 10 years of a DUI conviction. (§ 23550, subd. (a).) As in Muhammad, sections 23550 and 23550.5 do not define substantive offenses but are penalty provisions establishing a higher base term for a DUI offender who has reoffended. Hence, as in Muhammad, where the single offense of stalking satisfied three separate penalty provisions, here, too, defendant’s two DUI offenses were subject to the penalty provisions of both sections 23550 and 23550.5 but defendant could be convicted of only the two substantive crimes. The two remaining counts charging violation of the separate penalty provision of section 23550 did not charge a new substantive offense, and must be vacated.
Counts one and two charged the penalty provision of section 23550.5 which provides as follows: “(a) A person is guilty of a public offense, punishable by imprisonment in the state prison or confinement in a county jail for not more than one year and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000) if that person is convicted of a violation of Section 23152 or 23153, and the offense occurred within 10 years of any of the following: [¶] (1) A prior violation of Section 23152 that was punished as a felony under Section 23550 or this section or both . . . .”
Counts three and four charged defendant with violating section 23550 which provides: “(a) If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years of three or more separate violations of Section 23103, as specified in Section 23103.5, or Section 23152 or 23153, or any combination thereof, that resulted in convictions, that person shall be punished by imprisonment in the state prison, or in a county jail for not less than 180 days nor more than one year, and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000). . . .”
III. DISPOSITION
The convictions on counts three and four are vacated. In all other respects, the judgment is affirmed.
We concur: RUVOLO, P.J., SEPULVEDA, J.