Opinion
F075011
02-01-2018
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL ZARAGOSA, Defendant and Appellant.
Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or reiving on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. PCF323504)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Gary M. Johnson, Judge. Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
Before Peña, Acting P.J., Smith, J. and Meehan, J.
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Miguel Zaragosa (appellant) appeals from the judgment entered after he committed a violation of probation. Appellant's sole contention on appeal is that Penal Code section 654 barred the imposition of multiple punishment for his felony conviction of driving while having 0.08 percent or higher blood-alcohol and his misdemeanor conviction of driving when driving privilege suspended or revoked. Finding merit in appellant's contention, which the People concede, we will modify the judgment to stay, pursuant to section 654, the sentence imposed for appellant's conviction of driving when driving privilege suspended or revoked. In all other respects, we will affirm the judgment.
All statutory references are to the Penal Code unless otherwise noted. --------
FACTUAL AND PROCEDUAL BACKGROUND
On August 14, 2015, appellant swerved and crossed the centerline of the road on which he was driving, causing a California Highway Patrol officer traveling in the opposite direction to swerve to avoid a collision. The officer stopped appellant and observed an open 24-ounce beer container in the cup holder of the central console of appellant's car. Unable to perform a field sobriety test, appellant was transported to a hospital, where a blood test revealed his blood-alcohol concentration was 0.36 percent.
On September 15, 2015, appellant pled no contest to one felony count of driving while having 0.08 percent or higher blood-alcohol (Veh. Code, § 23152, subd. (b); count 2) and one misdemeanor count of driving when driving privilege suspended or revoked (Veh. Code, § 14601.1, subd. (a); count 3). Appellant also admitted the special allegation in count 2, that he had suffered four prior convictions for driving under the influence within 10 years (Veh. Code, § 23550). On October 7, 2015, the trial court placed appellant on three years' probation, subject to certain terms and conditions, including that appellant complete an 18-month "driving under-the-influence program."
After appellant, twice, violated his probation and was excluded from the requisite 18-month program, the trial court, on November 29, 2016, terminated appellant's probation and sentenced him to serve the upper term of three years in county jail for count 2, and a concurrent five-day jail term for count 3. The court also imposed various fines and fees.
DISCUSSION
Appellant contends his offenses of driving while having 0.08 percent or higher blood-alcohol (count 2) and driving when driving privilege suspended or revoked (count 3) arose out of his single act of driving on August 14, 2015, and, therefore, the trial court erred in sentencing him to a concurrent term for count 3. The People concede the court should have stayed the sentence imposed for count 3 pursuant to section 654. We accept the People's concession.
Section 654, subdivision (a), provides that "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Section 654 prohibits punishment for more than one offense arising from the same act or from an indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335.)
"It is well settled ... that the court acts in 'excess of its jurisdiction' and imposes an 'unauthorized' sentence when it ... fails to stay execution of a sentence under section 654" (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17), as the trial court did here. Accordingly, we will modify the judgment to stay the sentence imposed for count 3, pursuant to section 654. (Scott, at p. 354 [an unauthorized sentence is subject to correction when it comes to the attention of the reviewing court]; People v. Ross (1994) 28 Cal.App.4th 1151, 1160 [remand is not necessary where there is no need for the trial court to exercise discretion].)
DISPOSITION
The judgment is modified to stay the sentence imposed for appellant's conviction of driving when driving privilege suspended or revoked (count 3) pursuant to section 654. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting this modification and to forward a certified copy to the appropriate authorities.