People v. Martinez

Filed 11/23/05 P. v. Martinez CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

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THE PEOPLE, Plaintiff and Respondent, v. JOSE FILADELFO MARTINEZ, Defendant and Appellant.

C049273 (Super. Ct. No. 046140)

Defendant Jose Filadelfo Martinez appeals from the sentence imposed following his plea of guilty to driving with a blood alcohol level of 0.08 percent or higher and causing bodily injury. (Veh. Code, § 23153, subd. (b).)^[1] On appeal, defendant contends the trial court erred in ordering him to serve 120 days in county jail as a condition of probation as it did not understand it had discretion to impose a lesser term and that the order revoking defendant’s license for three years was unauthorized because a one-year suspension is expressly mandated by statute. The record demonstrates both portions of this sentence were as a result of the trial court believing the sentence was mandatory. Accordingly, we shall vacate the sentence and remand to the trial court for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

On August 22, 2004, defendant collided with a vehicle driven by Adrian Inguanzo. Inguanzo was rendered unconscious and sustained injuries to the left side of his body including a sprained foot, ankle, hip, shoulder and arm. Defendant was driving with a blood alcohol content of 0.16 percent.

Defendant was charged with driving under the influence of alcohol and causing injury (§ 23153, subd. (a)‑‑count 1) and driving with a blood alcohol level at 0.08 percent or above and causing injury (§ 23153, subd. (b)‑‑count 2). Defendant pleaded no contest to count 2 and count 1 was dismissed.

The court suspended imposition of sentence and placed defendant on four years’ felony probation. As a condition of probation, defendant was ordered to serve 120 days in the county jail and his driving privileges were revoked for three years.

The probation report noted defendant had “incurred a second DUI within three months of the present case.” This was apparently a misdemeanor conviction for driving under the influence. (§ 23152, subd. (a).) In imposing defendant’s sentence, the court relied on this “second DUI” and indicated “As I read [section] 23252(b) [sic], I think it is, or maybe it is 262(b) [sic],^[2] the mandatory minimum for a conviction such as this when the defendant has suffered another conviction for driving under the influence within five years is 120 days. So I think that 120 days is the statutory minimum.” The court also indicated “this conviction shall result in a three-year license revocation.”

DISCUSSION

I

Defendant contends the trial court was erroneously “under the impression that it was required to order [him] to serve a minimum of 120 days in local custody as a condition of probation.”

As defendant correctly argues, the provisions under section 23562 “do not define a substantive offense, but rather result in increased punishment for a current conviction” under section 23153. (People v. Coronado (1995) 12 Cal.4th 145, 152, fn. 5; see also Burris v. Superior Court (2005) 34 Cal.4th 1012, 1016, fn. 3.) “[W]hen a prior conviction is relied upon as a means of empowering a court to impose increased criminal penalties, the indictment or complaint must allege the prior conviction and, unless admitted, it must be proven.” (Pollack v. Department of Motor Vehicles (1985) 38 Cal.3d 367, 372-373 (Pollack).) Thus, defendant’s second DUI conviction had to be pleaded and proven by the People before it could be used to enhance defendant’s sentence. (Pen. Code, § 1170.1, subd. (e).) It was not.

Defendant was charged in this case on September 28, 2004. Apparently on November 14, 2004, he incurred a second DUI. He was apparently convicted on the second DUI on December 6, 2004. He pleaded no contest in this case on January 25, 2005. Thus, there was an opportunity for the People to amend the complaint in this case to reflect the other DUI conviction prior to defendant entering his plea on this charge.

In addition to the pleading problem, there is a problem of proof. The only mention in the record of another DUI conviction is in the probation report for the present offense. This is not evidence of a prior or subsequent conviction sufficient to support a sentencing enhancement.

In determining whether a prior conviction qualifies for use in enhancing a defendant’s sentence, “the trier of fact may look to the entire record of conviction. [Citation.] The ‘record of conviction’ includes the charging document and court records reflecting defendant’s admission, no contest plea, or guilty plea. [Citation.] It also includes those portions of a probation officer’s report which contain the defendant’s admissions.” (People v. Gonzales (2005) 131 Cal.App.4th 767, 773.)

“A major dilemma in considering ‘the entire record’ in proving an enhancement is that some portions of it, particularly probation reports, contain hearsay statements. Under Evidence Code section 1200 hearsay cannot be admitted into evidence unless it falls within one of the established exceptions to the hearsay rule.” (People v. Williams (1990) 222 Cal.App.3d 911, 916.)

Here, “[t]he [probation] report fragment does not identify the declarant or declarants from whose statements the probation officer drew his factual summary. There is no evidence the excerpt was based on defendant’s own admissions to the officer, so as to fall within the hearsay exception for party admissions. [Citations.] Nor does any other exception to the hearsay rule appear applicable. [¶] We conclude the excerpt from the probation officer’s report was inadmissible hearsay. (Accord, People v. Williams[, supra,] 222 Cal.App.3d [at p.] 917.)” (People v. Reed (1996) 13 Cal.4th 217, 230-231.)

Accordingly, the court was not authorized to sentence defendant as a second-time offender in accordance with sections 23562 and 23560, which together provide a sentencing enhancement for defendants who have suffered two DUI convictions in seven years.^[3] Rather, defendant should have been sentenced under the terms of section 23556.

Section 23556, subdivision (a) provides in pertinent part, “the court shall impose as a condition of probation that the person be confined in the county jail for at least five days but not more than one year.” Thus, under this section the trial court could have sentenced defendant to 120 days in county jail but it was not the statutory minimum as the court believed. It is clear from the record the court was unaware it had this discretion.

Furthermore, even under section 23562, the 120-day county jail sentence was not mandatory. Section 23562 provides that a defendant granted probation after being convicted of a second DUI within seven years shall be sentenced to 120 days in county jail (§ 23562, subd. (a)) or shall be sentenced to between 30 days to one year if other things are also ordered, such as participation in a DUI program. (§ 23562, subd. (b)(1), (4)(A) & (4)(B).)

“Defendants are entitled to sentencing decisions made in the exercise of the ‘informed discretion’ of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that ‘informed discretion’ than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record.” (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.)

Where a trial court imposes sentence without an accurate understanding of its sentencing discretion, remand for resentencing is appropriate. (People v. Rodriguez (1998) 17 Cal.4th 253, 257.)

II

Defendant next contends the trial court imposed an unauthorized sentence when it revoked his license for three years.

Section 13352 details the Department of Motor Vehicles’ duties to suspend or revoke driving privileges of a driver who has been convicted of violating section 23152 or 23153. Upon receipt of an abstract showing a first conviction of section 23153, defendant’s driving “privilege shall be suspended for a period of one year.” (§ 13352, subd. (a)(2).) Upon receipt of an abstract showing a second DUI conviction within seven years, “the privilege shall be revoked for a period of three years.” (§ 13352, subd. (a)(4).)

From the record before us, it appears the trial court believed it was required to revoke defendant’s license for a period of three years based on the second DUI conviction. As above, because of the prosecution’s failure to plead and prove the December 2004 conviction, the court was not authorized to sentence defendant as a second-time offender. (See Pollack, supra, 38 Cal.3d at p. 373.)

However, we note that irrespective of the sentence the court imposes in this regard, the Department of Motor Vehicles is required “to suspend the license of a twice convicted drunk driver, even if the prior conviction is neither alleged nor proven in the criminal proceeding. (Pollack, supra, 38 Cal.3d at pp. 371, 377.)” (Baldwin v. Department of Motor Vehicles (1995) 35 Cal.App.4th 1630, 1635.) Thus, although we shall remand this matter for resentencing, it appears unlikely defendant will obtain any actual relief as to this latter point.

DISPOSITION

Defendant’s sentence is vacated. The matter is remanded to the trial court for resentencing to permit the court to exercise its discretion.

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^[1] Undesignated statutory references are to the Vehicle Code.

^[2] The statute the court was referring to is actually section 23562, not 23252 or 23262.

^[3] At the time of sentencing in this case, section 23560 provided for the sentence enhancements when the DUI convictions had been suffered within seven years of each other. It has since been amended to provide the enhancements apply when the convictions have occurred within 10 years of each other.