People v. Freeman CA5

Filed 10/6/20 P. v. Freeman CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F077543
Plaintiff and Respondent,
(Stanislaus Super. Ct. Nos. 1431988,
v. 1491573 & 4003568)

PAUL MARK FREEMAN,
OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Stanislaus County. Thomas
D. Zeff, Judge.
Gabriel Bassan, 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, Louis M. Vasquez, Jennifer
Oleksa, and Cavan M. Cox, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
 INTRODUCTION
In 2012, appellant/defendant Paul Mark Freeman was placed on probation after
pleading no contest to felony driving under the influence (DUI) causing injury (Veh.
Code, § 23153, subd. (a)).1
In August 2015, someone rear-ended Amanda Gutierrez’s vehicle when she was
stopped at a traffic light and immediately drove away from the scene. Ms. Gutierrez
identified the subject vehicle as a Chrysler 300 with shiny rims. She later found a part
from a Chrysler 300 inside her own vehicle. Shortly after Ms. Gutierrez was hit, a
Chrysler 300 with similar rims crashed into a parked truck about a half-mile away from
scene of the traffic light collision. When the police arrived, defendant was sitting in the
driver’s seat of the Chrysler, and he was under the influence of alcohol. He was still on
probation. Defendant was arrested and released on his own recognizance (OR).
As a result of the August 2015 collision with Ms. Gutierrez, defendant was
charged with felony DUI causing injury and other vehicular offenses, with two special
allegations based on his 2012 conviction: (1) that he had a prior DUI conviction within
the prior 10 years, and (2) that same offense was a prior strike conviction. He was not
charged with any offenses from crashing into the parked truck.
While the new charges were pending, defendant failed to appear at a scheduled
hearing on whether to revoke his probation and increase bail, and a bench warrant was
issued. He was arrested five months later and remanded into custody for the duration of
the proceedings. He was also charged with failing to appear.
At defendant’s jury trial for the August 2015 traffic light collision, the defense
theory was that there was no evidence defendant was driving the car that hit Ms.
Gutierrez’s vehicle. The jury found defendant not guilty of the charged felonies for DUI
causing injury but convicted him of two misdemeanor DUI crimes as lesser included

1 All further statutory citations are to the Vehicle Code unless otherwise indicated.

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offenses. The court found the prior conviction allegations true. The court also found he
violated probation in the 2012 case, and defendant pleaded guilty to failing to appear.
At the sentencing hearing, the court treated the two misdemeanor DUI convictions
as felonies based on the existence of the prior felony DUI conviction and imposed an
aggregate term of eight years four months for all three cases.
On appeal, defendant contends his convictions for the lesser included offenses
based on the collision with Ms. Gutierrez must be reversed because he was never
identified as the driver of the car that hit her vehicle. Defendant argues that given the
absence of any identification evidence, the jury likely convicted him by improperly
relying on his admitted collision with the parked truck. Defendant asserts the jury
mistakenly believed it could find him guilty of the lesser included misdemeanor DUI
offenses based on hitting the parked truck, and the lack of notice of the facts for his
convictions violated his due process rights.
Defendant also argues the court improperly treated his two misdemeanor DUI
convictions as felonies for sentencing purposes, since the jury only convicted him of
misdemeanors as lesser included offenses of the charged DUI felonies for the traffic light
collision. Defendant asserts, while the court found the prior conviction allegations true, it
never found that the prior conviction from 2012 was a felony, which would have
permitted the court to treat the misdemeanor charges as felonies. We correct the abstract
of judgment and affirm.

FACTS

THE 2012 CONVICTION AND PROBATION
(Case No. 1431988)
On January 14, 2011, defendant was driving with his fiancée after leaving a bar.
Defendant lost control of the car, swerved, veered to the right, spun out, and hit a light
pole. Defendant and his fiancée were ejected. She suffered “significant injuries”
including fractures in two vertebrae, a fractured pelvis, and a “likely brain injury.”

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Defendant’s blood-alcohol content was determined to be 0.22 percent. Defendant
admitted drinking Red Bull and vodka.2
On May 1, 2012, a complaint was filed that charged defendant with count 1,
felony DUI causing injury (§ 23153, subd. (a)), and count 2, felony driving with a blood-
alcohol content of 0.08 percent or higher causing injury (§ 23153, subd. (b)), with special
allegations that his blood-alcohol level was 0.15 percent or higher (§ 23578), and the
victim suffered great bodily injury (Pen. Code, § 12022.7, subd. (a)).
On May 18, 2012, defendant pleaded no contest to count 1, felony DUI causing
injury (§ 23153, subd. (a)) and admitted the special allegations that his blood-alcohol
level was 0.15 percent or higher and the victim suffered great bodily injury. The court
dismissed the other allegations, suspended sentence, and placed him on felony probation
for five years subject to certain terms and conditions, including serving 180 days in jail,
obeying all laws, and not consuming alcohol.

THE COLLISION AT THE TRAFFIC LIGHT
(Case No. 1491573)
On the night of August 22, 2015, Ms. Gutierrez was driving on Burney Street in
Modesto in her Chrysler Town and Country van. She stopped at a red light at the corner
of G Street. There was a car in front of her that also stopped at the intersection.
At the moment the traffic light changed to green, the car in front of her drove
forward. Before Ms. Gutierrez could move forward, her vehicle was suddenly hit from
behind by another vehicle. The impact forced her knees to hit the steering column. She
felt immediate pain in her arms as she was pushed forward.
Ms. Gutierrez turned onto G Street and parked her vehicle. Ms. Gutierrez testified
it was dark, but the area was illuminated by streetlights. The driver of the second car also

2 The facts of case No. 1431988 are from the parties’ motions in case
No. 1491573. As we will explain, defendant’s conviction in this prior case was later
relied on by the court to treat his misdemeanor convictions as felonies for sentencing
purposes.

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turned onto G. Street, but the driver did not stop, roll down his window, or try to make
contact with Ms. Gutierrez. Instead, the vehicle drove around the driver’s side of Ms.
Gutierrez’s car and left the area. As the vehicle drove past her, Ms. Gutierrez determined
it was a dark-colored Chrysler 300 with “nice shiny rims.” She recognized the model
because she had been interested in buying that type of car.
As the Chrysler 300 drove by her, Ms. Gutierrez was also able to see the driver
“for a quick second” because he looked at her. She described a man with “darker hair”
and “not a dark complexion but not a light complexion either.” She saw the driver’s face
“very quickly” until the driver placed his hand over his face and obstructed her view.
As the Chrysler 300 drove away, Ms. Gutierrez tried to signal the driver by
honking her horn. He did not stop and kept driving, and he was going “too fast, like
swerving away.” He drove toward the La Loma area and never returned to the scene.
The initial investigation
At 10:50 p.m., Modesto Police Officer David Chamberlain received a dispatch to
respond to a hit and run collision at the intersection of Burney and G Street in the La
Loma area. At 11:09 p.m., Chamberlain arrived at the scene and contacted Ms.
Gutierrez.
Officer Chamberlain testified Ms. Gutierrez reported a dark car with chrome rims
hit her vehicle, and a dark-skinned male with short hair drove it.3 Chamberlain
determined her vehicle had minor damage from the rear-end collision. Chamberlain
reported the incident as a noninjury collision because Ms. Gutierrez did not appear
injured or ask for an ambulance.
Ms. Gutierrez was never asked to identify anyone as the driver and testified she
would not be able to do so.

3 At trial, Ms. Gutierrez testified she never said the driver was dark skinned. Ms.
Gutierrez further testified she told the officer the subject vehicle was a Chrysler 300, and
the driver could have been “a lighter-skinned Hispanic gentleman or he could have been a
white male, but not blonde or blue-eyed kind of white male.”
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Ms. Gutierrez’s injuries
Ms. Gutierrez testified she suffered bruises on her chest from the seat belt. She
did not go to the hospital that night. A few days after the crash, Ms. Gutierrez felt
bursitis in her right hip from being forced against the seat belt. Her legs started to hurt
and swell, and she had trouble walking. She went to her physician and received cortisone
shots. At the time of trial, she limped and continued to have leg and hip pain. Ms.
Gutierrez’s physician testified the bursitis in her hip was unlikely to improve over time
and could lead to arthritis.
Defendant’s collision with the parked truck
On the same night, Shelley Farmer was at her home in Modesto. Her husband’s
unoccupied white truck was parked on the street in front of their house. Ms. Farmer
heard a big crash. She looked outside and saw that a black or dark blue vehicle had just
hit her husband’s truck with such force that the truck had been pushed forward by two
houses, veered right, and ended up on a neighbor’s lawn. The truck was totaled.
Ms. Farmer testified the vehicle that hit the truck was a “really nice car” with
“nice rims,” and it was “in pieces” because of the collision.
Ms. Farmer told her family to call 911 and ran out to the car that caused the
collision. The driver was the only occupant, and he was sitting in the car. He had dark
hair.
Ms. Farmer asked the driver if he was okay. The driver, later identified as
defendant, was “really, really confused. He said he was being chased and that’s why he
was going so fast. They wanted his rims. I did ask if he was drinking because I could
smell it. He said he did have a couple of drinks, and I asked if he had car insurance, and
he said yes.”
Tim McDonald, another neighbor, approached the car and talked to defendant,
who was still in the driver’s seat. He seemed calm but was searching around the interior
for his belongings. McDonald asked if he was okay. Defendant said he was alright, but

6.
also said he was being chased by someone in a green car. McDonald asked if the
neighborhood residents were safe from whoever was chasing him, and defendant said it
was okay.
Arrest of defendant
At 10:45 p.m., Modesto Police Officer David Wallace received a dispatch to
respond to Ms. Farmer’s house about a collision.4 Ms. Farmer’s house was in the La
Loma residential area, and between a quarter to a half-mile from the intersection of
Burney and G Street, where Ms. Gutierrez’s vehicle had been hit. Wallace had heard on
the radio about another collision nearby.
Ms. Farmer’s house was also about a mile from a large music event known as
“X Fest 2015” that was happening in downtown Modesto that night. The annual event
required extra police presence and roving DUI patrols because of the high number of
drunk drivers leaving the event.
Officer Wallace arrived at Ms. Farmer’s house and found defendant sitting in the
driver’s seat of a 2007 black Chrysler 300. Wallace testified defendant seemed impaired.
His eyes were bloodshot and watery, the odor of alcohol was on his breath, and his
speech was slurred. Defendant was argumentative and staggering.
Ceres Police Officer Keith Kitcher was on patrol as part of that night’s extra DUI
enforcement and received a dispatch at 10:50 p.m. to respond to Ms. Farmer’s house.
When he spoke to defendant, he immediately noticed defendant’s eyes were red and
watery, detected the relatively strong odor of an alcoholic beverage on his breath, and
believed he was impaired.
Officer Kitcher conducted two field sobriety tests and defendant’s reactions were
consistent with being under the influence.

4 Ms. Farmer testified that when she heard the sound of the collision, she had just
arrived home after picking up her daughter from work and believed it happened just
before 10:00 p.m. but could not give a specific time.

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 Defendant was arrested. Defendant submitted two breath tests at the scene. The
first test was given at 11:20 p.m. and the second was given about five minutes later. Both
tests showed that defendant had a 0.35 percent blood-alcohol level. Officer Kitcher
testified it would not have been safe for a person to drive at that level.
A criminalist testified a person with a 0.35 percent blood-alcohol content at
11:30 p.m. would have reached that level after consuming 16 to 17 standard alcoholic
beverages, and he would not have been able to safely drive. The same person’s blood-
alcohol level would have been 0.36 percent at 10:00 p.m. or 10:30 p.m., and he would
have been too impaired to drive.
The Chrysler 300 part found in Ms. Gutierrez’s vehicle
Ms. Gutierrez testified that the day after the collision, she found a piece of the
vehicle that hit her in her own vehicle.
Edgar Alcala, who worked for the parts department at Central Valley Chrysler,
examined the vehicle piece recovered from Ms. Gutierrez’s van. Mr. Alcala was familiar
with Chrysler models, and testified the piece was from a Chrysler based on its emblem,
and the part number on the piece was consistent with being from either a Chrysler 300
LX or a Charger.
Mr. Alcala looked at photographs of defendant’s car, and testified it was a
Chrysler 300 LX. The car’s rims were not standard and had been purchased and installed
“after market.” He had never seen a Chrysler that had been outfitted with those types of
rims.
PROCEDURAL BACKGROUND
Case No. 1491573
On September 18, 2015, a felony complaint was filed against defendant in case
No. 1491573, charging him with two counts for driving under the influence based on the
traffic light collision with Ms. Gutierrez.

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 Defendant was never charged with any offenses from hitting the parked truck in
front of Ms. Farmer’s house.
On January 6, 2016, the People filed an amended complaint that alleged additional
charges in the traffic light collision, including a prior strike conviction based on his 2012
DUI case. The People also requested a hearing to increase bail.
On January 12, 2016, the People filed a motion to revoke defendant’s probation
and set bail at $250,000.
On January 27, 2016, the court convened a hearing on the People’s pending
motions. Defendant failed to appear. Defense counsel stated defendant had been in the
courthouse earlier that day, and counsel advised defendant that the People were trying to
set bail at $250,000. Counsel said defendant seemed surprised, and he had not heard
from defendant since that time. The court revoked defendant’s probation and his OR
release and issued a bench warrant, but stayed it until the next hearing on February 3,
2016. On that date, however, defendant again failed to appear, and the court lifted the
stay on the warrant.
On May 3, 2016, defendant was arrested on the bench warrant. Defendant was
remanded into custody and the court set bail at $150,000. He remained in custody for the
duration of the proceedings.
Case No. 1431988; violation of probation
On February 16, 2017, the court conducted the preliminary hearing and held
defendant to answer in the traffic light collision case (No. 1491573).
The court also found defendant violated probation in case No. 1431988, and
deferred sentencing in that case until after resolution of currently charged offenses.
Case No. 1491573; information
On March 2, 2017, an information was filed in case No. 1491573 that charged
defendant with committing the following offenses based on hitting Ms. Gutierrez’s
vehicle at the traffic light:

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 Count 1: felony DUI causing injury (§ 23153, subd. (a));

Count 2: felony driving with a blood-alcohol content of 0.08 percent or
more causing injury, and that his blood-alcohol content was 0.35 percent
(§ 23153, subd. (b));

Count 3: felony hit and run resulting in an accident causing injury
(§ 20001, subd. (a));

Count 4: misdemeanor driving with a suspended or revoked license
(§ 14601.1, subd. (a)); and

Count 5: felony failure to appear while on OR release on January 27, 2016
in case No. 1491573 (Pen. Code, § 1320, subd. (b)) with an enhancement
for committing the offense while subject to OR release (Pen. Code,
§ 12022.1).
As to counts 1 and 2, it was alleged that appellant’s blood-alcohol content in the
instant offenses was 0.15 percent or higher (§ 23578), and that within the preceding 10
years, he had a prior conviction for violating section 23153, subdivision (a) in case
No. 1431988 in 2012 (the probation violation case).5
As to the four felony counts, it was further alleged defendant personally inflicted
great bodily injury (Pen. Code, § 12022.7, subd. (a)); and his 2012 offense (the probation
violation case) was a prior strike conviction. (Pen. Code, § 667, subd. (d)). Defendant
pleaded not guilty.
Case No. 4003568; failure to appear
On May 16, 2017, the court granted defendant’s motion to sever count 5, failure to
appear in case No. 1491573 and the attached allegations, from his trial on the four DUI
counts. On June 15, 2017, the court granted defendant’s motion to set aside count 5 and
the attached allegations.

5 As we will discuss in issue II, post, section 23550.5 provides that a conviction
for violating either section 23152 (DUI) or section 23153 (DUI causing injury) may be
punished as a felony if the defendant has a prior felony conviction for violating section
23153 within the prior 10 years. (§ 23550.5, subd. (a)(2).)

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 On June 16, 2017, a new criminal complaint was filed as case No. 4003568,
alleging defendant’s failure to appear in case No. 1491573, with the OR enhancement
and the prior strike allegation. The matter was trailed pending his jury trial in the main
case.
THE JURY VERDICTS IN THE TRAFFIC LIGHT CASE
On March 5, 2018, defendant’s trial began in case No. 1491573 for charges based
on the traffic light collision with Ms. Gutierrez; the court trailed defendant’s other two
cases for the probation violation and failure to appear.
The court granted the People’s motion to dismiss count 4, misdemeanor driving
without a license. The court granted defendant’s motion to bifurcate the special
allegations for his prior strike conviction and his prior DUI conviction. Thereafter,
defendant’s jury trial began on the three remaining felony counts from the collision with
Ms. Gutierrez: count 1, DUI causing injury; count 2, driving with a blood-alcohol level
of 0.08 percent or more causing injury, and count 3, hit and run causing injury.
On March 8, 2018, while the jury was deliberating, defendant waived his right to a
jury trial on the prior conviction allegations and the court conducted a bench trial. The
court received documentary evidence on defendant’s prior conviction from 2012 and took
the matter under submission pending the jury’s verdict.
Later, on March 8, 2018, the jury found defendant not guilty of the three charged
felony offenses.
As to counts 1 and 2 only, the jury found defendant guilty of the lesser included
misdemeanor offenses of, respectively, driving under the influence of alcohol (§ 23152,
subd. (a)) and driving with a blood-alcohol content of 0.08 percent or above (§ 23152,
subd. (b)).
Thereafter, the court found defendant’s prior conviction allegations were true,
based on his prior DUI offense in 2012.

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The first sentencing hearing
On March 19, 2018, defendant pleaded guilty to the pending charge of failing to
appear and admitted the OR enhancement and the prior strike conviction based on the
2012 offense. The court had already found he had violated probation in the 2012 case.
On May 15, 2018, the court held the sentencing hearing for the three cases. The
court stated that based on the existence of the prior DUI conviction in 2012, it would treat
the two misdemeanor convictions from the jury trial as felony offenses for sentencing
purposes.6
Defendant was sentenced to an aggregate second strike term of eight years four
months as follows.
The court selected case No. 1431988, the probation revocation case, as the
principal term, terminated probation, and imposed the midterm of two years for his
felony conviction in 2012 for violating section 23153, subdivision (a), DUI causing
injury, plus three years for the great bodily injury enhancement.
In case No. 1491573, the convictions from the jury trial, the court again stated that
it would treat count 1 as a felony based on his prior felony DUI conviction in 2012. The
court imposed a consecutive second strike term of one year four months (double one-
third the midterm) for driving under the influence of alcohol (§ 23152, subd. (a)); with a
consecutive term of 16 months for count 2, stayed pursuant to section Penal Code section
654.
In case No. 4003568, failure to appear, the court imposed a concurrent midterm of
one year, doubled to two years as the second strike term (Pen. Code, § 1320, subd. (b)),
plus a full term of two years for the OR enhancement.
Finally, the court advised defendant: “If you were to kill somebody while driving
under the influence of alcohol, you could be charged with murder.”

6In issue II, post, we will discuss the court’s decision to treat the misdemeanor
convictions as felonies.

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 On May 21, 2018, defendant filed a timely notice of appeal.
The second sentencing hearing
On September 24, 2018, the court conducted another sentencing hearing after the
California Department of Corrections and Rehabilitation reported an error in the court’s
calculation of defendant’s term. The court again imposed an aggregate term of eight
years four months but in a different manner as follows:
In case No. 1431988, the probation case, the court again imposed midterm of two
years for DUI causing injury in 2012, plus three years for the great bodily injury
enhancement.
In case No. 4003568, failure to appear, the court decided to dismiss the prior strike
conviction; it imposed a consecutive term of eight months (one-third the midterm) plus
two years for the OR enhancement.
In case No. 1491573, the jury verdicts, the court also dismissed the prior strike
conviction but again treated count 1 as a felony, and imposed a consecutive term of eight
months (one-third the midterm) for DUI; plus a consecutive term of eight months for
count 2 that was stayed under Penal Code section 654.
DISCUSSION
I. Defendant was Properly Convicted of the Lesser Included Offenses
Defendant contends his convictions on the lesser included offenses for counts 1
and 2 must be reversed because he never received notice of the facts upon which these
convictions were based in violation of his due process rights. Defendant’s argument is
based on the following premise.
Based on the collision with Ms. Gutierrez’s vehicle, defendant was charged with
count 1, felony driving under the influence causing injury (§ 23153, subd. (a)); count 2,
felony driving with a blood-alcohol level of 0.08 percent or more causing injury
(§ 23153, subd. (b)); and count 3, felony hit-and-run resulting in injury; he was not
charged with any offenses for hitting the parked truck. At trial, defendant did not testify,

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but defense counsel contested his identity as the person who drove the vehicle that
collided with Ms. Gutierrez at the traffic light. Counsel conceded Ms. Gutierrez suffered
injury as a result of that incident. Counsel also conceded defendant was driving the car
that hit the unoccupied parked truck and he was intoxicated. The jury found defendant
not guilty of all three charged felonies. As to counts 1 and 2, however, the jury found
him guilty of the lesser included offenses that it had been instructed with: misdemeanor
simple driving under the influence (§ 23152, subd. (a)), and misdemeanor driving with a
blood-alcohol level of 0.08 percent or more (§ 23152, subd. (b)).
Defendant further asserts that since he conceded all the elements of the charged
DUI felonies for colliding with Ms. Gutierrez, except his identity as the driver, the jury
found him not guilty of the three charged felonies because it decided he was not the
driver, and it never should have considered the lesser included offenses.
Defendant further asserts the only way the jury convicted him of the lesser
included misdemeanor DUI offenses for counts 1 and 2 was because it improperly relied
on the prosecution’s evidence that he crashed into the unoccupied parked truck while
intoxicated. Defendant argues the jury’s likely reliance on the parked truck collision was
consistent with finding him guilty of the lesser included misdemeanor offenses of DUI
without finding anyone was injured: “The only explanation for the verdicts is that they
were based on the second accident with the parked [truck]. That conduct was not part of
the facts of the ‘Gutierrez’ accident and, thus, could not legally form the basis for
convictions of the lesser included offenses. The jury was not instructed that they could
not base their verdict on the ‘parked-car’ accident.” Defendant further asserts: “As far as
the jury knew, either accident was available for its consideration and could constitute the
factual basis for conviction on the lesser offenses.”
As we will explain, the entirety of the record refutes defendant’s assumptions and
speculation about the jury’s verdicts on the lesser included offenses.

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 A. Lesser Included Offenses
“[A]n offense expressly alleged in an accusatory pleading may necessarily include
one or more lesser offenses.” (People v. Birks (1998) 19 Cal.4th 108, 117.) “A
defendant may be convicted of an uncharged crime if, but only if, the uncharged crime is
necessarily included in the charged crime. [Citations.] The reason for this rule is settled.
‘ “This reasoning rests upon a constitutional basis: ‘Due process of law requires that an
accused be advised of the charges against him in order that he may have a reasonable
opportunity to prepare and present his defense and not be taken by surprise by evidence
offered at his trial.’ [Citation.]” ’ [Citation.] The required notice is provided as to any
charged offense and any lesser offense that is necessarily committed when the charged
offense is committed. [Citation.]” (People v. Reed (2006) 38 Cal.4th 1224, 1227.)
The trial court has a sua sponte duty to instruct on lesser included offenses when
the evidence raises a question whether all of the elements of the charged offense were
present. (People v. Breverman (1998) 19 Cal.4th 142, 154, 162; People v. Eid (2014) 59
Cal.4th 650, 656.) “[A] lesser offense is necessarily included in a greater offense if either
the statutory elements of the greater offense, or the facts actually alleged in the
accusatory pleading, include all the elements of the lesser offense, such that the greater
cannot be committed without also committing the lesser. [Citations.]” (People v. Birks,
supra, 19 Cal.4th at pp. 117–118, fn. omitted.)
As relevant to this case, subdivision (a) in both section 23152 and section 23153
prohibit individuals from driving while under the influence. Similarly, subdivision (b) in
both section 23152 and section 23153 prohibit individuals from driving with a blood-
alcohol level of 0.08 percent or more. In addition to these elements, a conviction for
violating either subdivision of section 23153 requires the prosecution to prove the
defendant “concurrently [did] any act forbidden by law, or neglect[ed] any duty imposed
by law in driving the vehicle, which act or neglect proximately causes bodily injury to
any person other than the driver.” (§ 23153, subds. (a), (b).) These additional elements

15.
are not required to prove a violation of either subdivision of section 23152. (§ 23152,
subds. (a), (b).)
Based on the statutory elements, simple driving under the influence in violation of
section 23152, subdivision (a), is a lesser included offense of driving under the influence
causing injury in violation of section 23153, subdivision (a). The same is true for
section 23152, subdivision (b) and section 23153, subdivision (b). (See, e.g., People v.
Capetillo (1990) 220 Cal.App.3d 211, 220–221; People v. Subramani (1985) 173
Cal.App.3d 1106, 1111.)
B. Instructions
In this case, the jury was instructed that the prosecution had the burden of proving
the elements of the charged offenses beyond a reasonable doubt. As to count 1, the jury
received CALCRIM No. 2100 on the elements of driving under the influence causing
injury to another person in violation of section 23153, subdivision (a): (1) the defendant
drove a vehicle; (2) he was driving under the influence of an alcoholic beverage;
(3) while driving under the influence he also committed an illegal act, alleged as driving
at a speed endangering the safety of persons or property (§ 22350); and (4) defendant’s
illegal act caused bodily injury to another person.
The jury was also instructed on the elements for one lesser included offense for
count 1: “Driving under the influence of an alcoholic beverage in violation of …
§ 23152(a) is a lesser crime of causing injury to another person while driving a vehicle
under the influence of an alcoholic beverage in violation of … § 23153(a), the charge in
Count I.” The elements were (1) the defendant drove a vehicle; and (2) when he drove,
he was under the influence of an alcoholic beverage. In contrast to the greater offense,
the elements did not include the commission of an illegal act or causing bodily injury to
another person.
As to count 2, the jury was instructed with CALCRIM No. 2101 on the elements
of the charged offense of driving with a 0.08 percent blood-alcohol level causing injury

16.
in violation of section 23153, subdivision (b): (1) defendant drove a vehicle; (2) his
blood-alcohol level was 0.08 percent or more; (3) he committed an illegal act while
driving with that blood-alcohol level, again defined as driving at a speed which endangers
persons or property in violation of section 22350; and (4) defendant’s illegal act caused
bodily injury to another person.
The jury was instructed with CALCRIM No. 2111 about one lesser included
offense for count 2: “Driving with a blood alcohol level of 0.08 percent or more, in
violation of … §23152(b), is a lesser crime of causing injury to another person while
driving with a blood alcohol level of 0.08 percent or more, in violation of … § 23153(b),
the charge in Count II.” The elements were: (1) the defendant drove a vehicle; and
(2) when he was driving, his blood-alcohol level was 0.08 percent or more. Again, in
contrast to the greater offense, the elements did not include an illegal act or causing
bodily injury to another person.
As to counts 1 and 2, the jury was further instructed the “illegal act” alleged as an
element of both charged offenses was that “[a] person must drive at a reasonable speed.
Whether a particular speed is reasonable depends on the circumstances, such as traffic,
weather, visibility, and road conditions. Drivers must not drive so fast that they create a
danger to people or property. [¶] If the People have proved [defendant] was not driving
at a reasonable speed at the time of the alleged accident, then the defendant violated …
section 22350.”
Finally, the jury was instructed on the elements of the third charged felony
offense, count 3, hit and run, where the driver “knew that he had been involved in an
accident that injured another person.” The jury was not given any lesser included
offenses for count 3.
C. Closing Arguments
In his closing argument, the prosecutor clearly stated that the charged offenses
were based on the incident where Ms. Gutierrez’s vehicle was hit at the intersection and

17.
the responsible driver left the scene. The prosecutor argued it was reasonable to assume
defendant was driving the car that hit Ms. Gutierrez because she said it was a dark
colored Chrysler 300 with shiny rims, a part from that type of car was later found in her
own vehicle, the car left the scene and headed toward the La Loma area, and defendant
was found inside the same type of car with shiny rims a few minutes later, after he
crashed into the parked truck in front of Ms. Farmer’s house in the nearby La Loma area.
The prosecutor reviewed the circumstances of defendant’s collision with the
parked truck while intoxicated. He argued it was reasonable to conclude that he was
driving the same car that hit Ms. Gutierrez’s vehicle earlier that night, and he was also
intoxicated when he did so. The prosecutor noted that Ms. Gutierrez testified that the
driver who hit her left the scene at a high rate of speed. He further noted that defendant
was driving very fast when he hit the parked truck based on the force that pushed and
totaled the truck. Defendant told the witnesses at the scene that he had been chased by
someone who wanted to steal his rims. The prosecutor asserted that defendant was
driving fast when he hit the truck because he was afraid since he had just hit Ms.
Gutierrez and left the scene.
The prosecutor further argued the two collisions occurred close in time, since
Sergeant Chamberlain was dispatched at 10:50 p.m. to Ms. Gutierrez’s incident, and
Officer Wallace was dispatched to Ms. Farmer’s house at 10:45 p.m. “These are minutes
apart.”
Defense counsel’s closing argument also addressed the collision with Ms.
Gutierrez as the basis for the charged offenses. The defense theory was that the
prosecution failed to prove beyond a reasonable doubt that defendant was driving the car
that hit her at the traffic light. Counsel said Ms. Gutierrez “walked away from that
accident having some injuries and those injuries have persisted.” Counsel conceded
defendant was very drunk when he hit the parked truck, but there was no way to know if
he was lying when he claimed that someone had been chasing him. Counsel focused on

18.
Ms. Gutierrez’s inability to specifically describe or identify anyone as the driver of the
car that hit her.
Defense counsel also argued no one saw defendant driving a car that night, and
raised the possibility that someone else was driving the car that hit the parked truck, and
“there was enough time for that person to bail out” and for defendant to slide into the
driver’s seat. Counsel further argued there was no definite evidence on the time that each
collision occurred. As for count 3, hit and run causing injury, counsel argued that even a
sober person could not have known that Ms. Gutierrez was injured in any way after the
collision.
D. Verdicts
As explained above, the jury found defendant not guilty of count 1, DUI causing
injury, count 2, driving with a blood-alcohol level of 0.08 percent or more causing injury,
and count 3, hit and run causing injury.
As to count 1, he was convicted of the lesser offense of simple DUI, and as to
count 2, the lesser offense of driving with a blood-alcohol level of 0.08 percent or more.
E. Analysis
Defendant argues the jury convicted him of the lesser included misdemeanor
offenses solely based on the prosecution’s evidence about his intoxicated collision with
the unoccupied parked truck, even though he was never charged with any offenses based
on that collision, the jury was never instructed that it could not rely on the parked truck
collision to convict him of the lesser offenses, and his convictions for the two
misdemeanors must be reversed because he never received notice of the allegations that
the jury relied on. Defendant asserts there was structural error that requires automatic
reversal.
Defendant was properly convicted of the misdemeanor lesser included offenses of
counts 1 and 2, and those convictions were based on the traffic light collision with
Ms. Gutierrez.

19.
 First, defendant never objected to the prosecution’s introduction of evidence that
he crashed into the unoccupied parked truck and that he was intoxicated at the time, even
though defendant was never charged with any offenses based on that incident. The
prosecution may introduce evidence of the defendant’s uncharged acts that occurred after
the charged offense if the evidence is relevant to prove some fact other than the
defendant’s criminal disposition, such as motive, opportunity, intent, preparation,
common design or plan, or identity. (Evid. Code, § 1101, subds. (a) & (b); People v.
Balcom (1994) 7 Cal.4th 414, 425–426.) “Evidence of identity is admissible where it is
conceded or assumed that the charged offense was committed by someone, in order to
prove that the defendant was the perpetrator.” (People v. Ewoldt (1994) 7 Cal.4th 380,
394, fn. 2.) The greatest degree of similarity is required to prove identity. (Id. at p. 403.)
“For identity to be established, the uncharged misconduct and the charged offense must
share common features that are sufficiently distinctive so as to support the inference that
the same person committed both acts. [Citation.]” (Ibid.; People v. Carter (2005) 36
Cal.4th 1114, 1148.)
Defendant’s uncharged act of crashing into the unoccupied parked truck while
intoxicated was relevant to the disputed fact of whether he was the driver who also
collided with Ms. Gutierrez. Both incidents involved a man who was driving a dark-
colored Chrysler 300 with shiny rims, they occurred within a short period of time, and the
scenes were a quarter to a half-mile of each other. The driver who hit Ms. Gutierrez left
the scene and headed at a fast speed toward the La Loma area. Defendant was driving at
a fast speed when he crashed into the truck parked in front of a house in the La Loma
residential area. The evidence about the parked truck was properly admitted. (People v.
Linkenauger (1995) 32 Cal.App.4th 1603, 1613–1614.)
Next, the jury was clearly advised that counts 1, 2, and 3 were based on the traffic
light collision with Ms. Gutierrez. Both the prosecutor and defense counsel addressed the
elements of the charged offenses in their closing arguments, and their arguments focused

20.
on whether defendant was driving the car that hit Ms. Gutierrez at the intersection.
Neither party discussed the collision with the parked truck as the basis for the charged
offenses.
Third, the jury was instructed that the misdemeanor offenses were lesser included
offenses of the charged offenses of counts 1 and 2 – the traffic light collision with
Ms. Gutierrez; the jury was not instructed on any lesser included offenses for count 3.
Fourth, the jury’s verdicts that found defendant not guilty on the three charged
felony offenses did not mean that it found defendant was not driving the car that hit
Ms. Gutierrez at the traffic light. In addition, the not guilty verdicts do not raise the
inference the jury relied on the collision with the parked truck to convict him of the lesser
included offenses for counts 1 and 2. As to all counts, the jury was instructed that the
prosecution had the burden to prove the charged felony offenses beyond a reasonable
doubt. As to counts 1 and 2, the elements were that defendant was driving under the
influence or with a blood-alcohol level of .08 percent or more, plus that he “concurrently
[did] any act forbidden by law, or neglect[ed] any duty imposed by law in driving the
vehicle, which act or neglect proximately causes bodily injury to any person other than
the driver” and that illegal act was not driving at a reasonable speed. (§ 23153,
subds. (a), (b); § 22350.) As to count 3, felony hit and run, the prosecution had the
burden to prove the additional element that defendant left the scene knowing that the
collision resulted in injury. (§ 20001, subd. (a).)
Defendant asserts that since he conceded in closing argument that Ms. Gutierrez
was injured during the traffic light collision, the jury’s not guilty verdicts for the three
felony offenses necessarily meant that it found defendant was not the driver of the car
that hit Ms. Gutierrez and it relied on the truck collision instead. To the contrary, while
defense counsel said in closing argument that Ms. Gutierrez realized a few days later that
she was injured in the collision at the traffic light, defendant never entered into a
stipulation to remove that element from the jury’s consideration of the three charged

21.
felony offenses. The prosecution still had the burden to prove every element of the
charged offenses beyond a reasonable doubt, including whether Ms. Gutierrez was
injured; if the driver who hit Ms. Gutierrez performed the illegal act of not driving at a
reasonable speed within the meaning of section 22350 for counts 1 and 2; and for
count 3, that the driver of the responsible vehicle knew the other party was injured.7
The jury’s verdicts that defendant was not guilty of the three felonies was based on
its failure to reach a unanimous verdict that the prosecution met their burden of proof on
all the elements of the charged offenses. The jury may have decided that the People’s
evidence about Ms. Gutierrez’s bruises and bursitis was insufficient to prove that element
for counts 1 and 2. As to count 3, there is no question that defendant hit Ms. Gutierrez’s
vehicle and immediately drove away, but the jury likely found he was not guilty of that
offense because the prosecution failed to prove the required element that he left the scene
knowing that the collision resulted in injury to Ms. Gutierrez; there was no lesser
included offense alleged as to count 3.
In addition, the prosecution never introduced any evidence about how fast
defendant was driving when he hit Ms. Gutierrez, which was another critical element of
counts 1 and 2. Ms. Gutierrez testified her vehicle was hit moments after the traffic light
turned green, and the car in front of her had already proceeded into the intersection. In
contrast to the major damage to the parked truck that was consistent with being hit at a
high rate of speed, Officer Chamberlain testified that Ms. Gutierrez’s vehicle had minor
damage from the rear-end collision. The jury may have found defendant was the driver
who hit Ms. Gutierrez, but it also may have concluded the prosecution failed to prove the
element that defendant was not driving at a reasonable speed when the collision occurred.

7 Defendant also cites to arguments in the prosecution’s postverdict sentencing
brief as suggesting the People realize the verdicts on the lesser included offenses were
based on the parked truck collision. The People’s postverdict arguments in the
sentencing motion are not relevant to the evidence and instructions that were before the
jury.
22.
 Defendant further argues the evidence is insufficient to support his convictions
because of discrepancies between when officers responded to the traffic light collision
with Ms. Gutierrez, compared to when police were dispatched after defendant crashed
into the parked truck in front of Ms. Farmer’s house. Defendant argues the timeline
refutes the prosecution’s theory that defendant hit Ms. Gutierrez’s vehicle and then
crashed into the parked truck, and suggests the evidence instead shows the two incidents
were unrelated, and Ms. Gutierrez’s vehicle was hit after the crash in front of Ms.
Farmer’s house.
The record refutes these arguments. Ms. Gutierrez testified that after her vehicle
was hit from behind, the car that had been in front of her “came around” to make sure she
was okay. Ms. Gutierrez then turned right to the cross street and parked at the curb,
apparently expecting the suspect vehicle to stop and contact her. Instead, the suspect
vehicle drove past the driver’s side of her vehicle, the driver tried to conceal his face, and
then the suspect vehicle accelerated away and headed toward the La Loma area. Ms.
Gutierrez testified she repeatedly honked the horn on her vehicle to get the driver’s
attention, but the suspect vehicle swerved away. Ms. Gutierrez further testified she got
out and looked around her vehicle to see the damage. At 10:50 p.m., Officer
Chamberlain received the dispatch to respond to the intersection and arrived at 11:09
p.m. and met Ms. Gutierrez. Based on Ms. Gutierrez’s description of the incident, there
was obviously some delay between the actual collision at the traffic light and when she
realized she had to call law enforcement after the suspect vehicle left the scene.
Ms. Farmer’s house was a quarter- to a half-mile from the intersection where Ms.
Gutierrez had been hit. While Ms. Farmer believed the collision into the parked truck in
front of her house occurred around 10:00 p.m., she also testified that she ran outside
within seconds of hearing the sounds of the collision and immediately told her family to
call 911. At 10:45 p.m., Officer Wallace received the dispatch to respond to Ms.
Farmer’s house about the collision into the parked truck; Wallace testified he had heard

23.
on his radio about another collision nearby. Officer Kitcher received the dispatch about
the truck collision at 10:50 p.m.
The entirety of the evidence presents strong circumstantial evidence that there was
some delay between the suspect vehicle hitting Ms. Gutierrez’s vehicle at the stoplight,
and when she was able to call law enforcement. In contrast, Ms. Farmer directed her
family to call 911 within seconds of hearing the collision in front of her house. The
record does not undermine the prosecution’s theory that defendant hit Ms. Gutierrez’s
vehicle and then crashed into the parked truck in front of Ms. Farmer’s house.
We thus conclude it is not reasonably likely the jury convicted defendant of the
two lesser included offenses based on defendant’s collision with the parked truck. The
jury was properly instructed that the prosecution had the burden of proving every element
of the charged offenses beyond a reasonable doubt. The jury was well aware that
defendant was being tried for criminal offenses for hitting Ms. Gutierrez’s vehicle and
driving away from the scene; the prosecutor’s closing argument further advised the jury
that the prosecution relied on defendant’s uncharged misconduct of crashing into the
parked truck to prove that defendant was driving the same vehicle when it crashed into
Ms. Gutierrez earlier that night and not as the basis of any of the charged offenses; and
the instructions advised the jury to consider the misdemeanor offenses as lesser included
offenses of the crimes charged in counts 1 and 2. In the absence of any evidence of
confusion on the part of the jury, we presume the jurors followed the court’s instructions.
(People v. Sanchez (2001) 26 Cal.4th 834, 852.)
II. The Court’s Findings on the Prior Conviction Allegations
Defendant asserts the court improperly treated his two misdemeanor convictions
for the lesser included offenses in the traffic light collision case as felonies for purposes
of sentencing. Defendant concedes that the court could impose felony sentences for the
offenses based on section 23550.5 if he had a qualifying prior felony conviction.

24.
Defendant argues the court failed to find his prior conviction in 2012 was a felony
offense to permit sentencing under section 23550.5.
A. Prior DUI Convictions and Section 23550.5
Section 23152 prohibits driving under the influence of alcohol or driving with a
blood-alcohol level of 0.08 percent or more. (§ 23152, subds. (a), (b).) A first-time
violation of section 23152 is normally a misdemeanor. (§ 23536; People v. Baez (2008)
167 Cal.App.4th 197, 199; People v. Doyle (2013) 220 Cal.App.4th 1251, 1257.)
Section 23153 prohibits driving under the influence of alcohol or driving with a
blood-alcohol level of 0.08 percent or more, when the person performs an illegal act that
causes injury. (§ 23153, subds. (a), (b).) A first-time violation of section 23153 is a
“wobbler” offense, punishable as either a felony or a misdemeanor. (§ 23554.)
Section 23550.5 provides for more severe penalties for recidivist DUI offenders.
(People v. Guillen (2013) 212 Cal.App.4th 992, 995.) As relevant to this case, section
23550.5, subdivision (a) states:

“(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 separate violation of Section 23152 that was punished as a
felony under Section 23550 or this section, or both, or under former Section
23175 or former Section 23175.5, or both.

“(2) A separate violation of Section 23153 that was punished as a
felony.

“(3) A separate violation of paragraph (1) of subdivision (c) of
Section 192 of the Penal Code that was punished as a felony.” (Italics
added.)
Section 23550.5 thus permits a current violation of section 23152 (normally a
misdemeanor) or section 23153 (a misdemeanor or a felony) to be treated as a felony if

25.
the defendant has been convicted within the last 10 years of a specified prior DUI
conviction that was punished as a felony, including a violation of section 23153.
(§ 23550.5, subd. (a)(1)–(a)(3); People v. Baez, supra, 167 Cal.App.4th at pp. 199–200.)
B. The Allegations
As set forth above, defendant was charged in case No. 1431988 with count 1,
felony DUI causing injury on January 14, 2011 in violation of section 23153,
subdivision (a), based on the incident when he lost control of his vehicle, and his fiancée
was ejected and injured. He pleaded no contest to that felony offense in 2012. The court
placed him on felony probation for five years.
In the current case, the information alleged counts 1 and 2, felony violations of
section 23153, subdivisions (a) and (b). As to those two counts, it was further alleged
that within the preceding 10 years, “defendant committed a violation of … Section
23153(a) on or about the 14th day of January, 2011, and was duly convicted in the
Superior Court, County of Stanislaus, State of California. (Docket #1431988).”
As to all the felony charges, it was further alleged defendant was “convicted of a
serious felony” within the meaning of the three strikes law (Pen. Code, § 667, subd. (d)),
based on the same prior DUI conviction in case No. 1431988 in 2012.
Prior to defendant’s jury trial, the court granted his motion to bifurcate the two
special allegations based on his 2012 prior DUI conviction.
C. The Court’s Trial on the Prior Conviction Allegations
On March 8, 2018, while the jury was deliberating on the charged offenses,
defendant waived his right to a jury trial on the prior conviction allegations and the court
conducted a bench trial. The prosecutor introduced documentary evidence to prove
defendant suffered the prior DUI conviction in 2012 that was the basis for both the prior
DUI allegation and the prior strike conviction. The court granted the prosecutor’s request
to take judicial notice of the superior court file for case No. 1431988, that consisted of
certified copies of the complaint, the minute orders for the plea and sentencing in 2012,

26.
the terms and conditions of probation, and documents to prove defendant’s identity.
Defense counsel did not object to the evidence.
After admitting the exhibits, the court took the prior conviction evidence under
submission pending the jury’s verdicts.
As set forth in the factual statement above, the documentary exhibits show that on
May 18, 2012, defendant pleaded no contest in case No. 1431988 to count 1, felony
driving under the influence of alcohol causing injury on January 14, 2011 (§ 23153,
subd. (a)) and admitted the special allegations that his blood-alcohol level was 0.15
percent or higher (§ 23578) and the victim suffered great bodily injury (Pen. Code,
§ 12022.7, subd. (a)), as alleged in the felony complaint, and the court placed him on
felony probation for five years.
D. The Court’s Findings
Later on March 8, 2018, the jury found defendant not guilty of the charged felony
offenses in counts 1, 2 and 3, and convicted him of the lesser included misdemeanor DUI
offenses for counts 1 and 2.
After the court received the verdicts and excused the jury, it stated that it still had
to decide “with regard to the prior as it relates to the findings of guilt with regard to the
misdemeanors,” and it had received “a number of exhibits which were previously
identified and received.” The court asked the parties if they had anything to add.
Defense counsel reminded the court there could be errors in the paperwork and the
prosecution had the burden to prove the prior conviction beyond a reasonable doubt.
The court stated:

“It appears to me beyond a reasonable doubt that the defendant’s prior for a
separate violation [on] January 14, 2011, arising out of a violation on
§ 23153(a), Stanislaus County Docket Number 1431988, has been proven
to the satisfaction of the Court. [The] Court finds it is a valid and
constitutional conviction of a prior violation.”

27.
 The prosecutor asked the court about its findings, and the following exchange
occurred:

“[THE PROSECUTOR]: [W]e, in the course of this trial, we’ve
sanitized the trial for the purposes of any mention of a prior. So we were
talking about [section] 23153(a) or (b). But, again, given this was a
[section] 23152(a) and (b) within ten years of the previous.

“THE COURT: I found that that is a valid constitutional prior.

“[THE PROSECUTOR]: I have nothing further then.

“THE COURT: It applies to what he was found guilty of.”
(Italics added.)
E. The Sentencing Briefs
At a subsequent hearing, the court asked the parties for briefing on whether it
could treat his two misdemeanor convictions as felony offenses pursuant to section
23550.5, based on the existence of the prior felony DUI conviction in 2012 that it found
true for the two special allegations.
Defendant argued that his convictions for the lesser included offenses could still
be treated as wobbler offenses, even though the court found the prior DUI conviction
true. Defendant further argued that once the jury found him guilty of the lesser included
misdemeanor offenses, and the court recorded the verdicts, “double jeopardy prevents
conviction on the greater offense. Here, a misdemeanor verdict was returned and
recorded, and [defendant] may no longer be sentenced to a felony.” Defendant argued a
conviction of a lesser included misdemeanor offense barred a subsequent “conviction” of
a “great offense” under double jeopardy principles.

“To the extent that felony Driving under the Influence could have been
offered to the jury in this case and was not, the state double jeopardy cause
prevents conviction on a greater offense once the verdict has been recorded.
Generally, a jury must acquit the defendant of a greater offense before
proceeding on to a verdict on a lesser included offense. A jury which
attempts to return a verdict on a lesser without disposing of the greater
offense may be admonished by [the] court, and if they persist, the
prosecution may move for a mistrial. [Citation.] However, if the jury is
28.
 allowed to return the verdict of guilty on a lesser included offense, and the
verdict is accepted and recorded, then the defendant stands convicted of the
lesser only. [Citation.]”
The People replied that the information alleged defendant had a prior DUI
conviction within the prior 10 years that would elevate the charged offenses to felonies.
While section 23152 was a misdemeanor, the court’s finding that he had the prior felony
DUI conviction in 2012 elevated the offenses to felonies. The People further argued that
while the verdict forms stated the lesser included offenses were misdemeanors, the jury’s
verdicts were not dispositive for sentencing purposes and did not prevent the court from
imposing felony sentences.
F. The Sentencing Hearing
On May 15, 2018, the court held the sentencing hearing for the three cases.
The court began with the “threshold issue” of whether it could treat defendant’s
misdemeanor convictions for violating section 23152, subdivisions (a) and (b) as felonies
after it had “recorded” the convictions, because it found that he suffered a prior
conviction for driving under the influence causing injury within the prior 10 years.
The court held defendant “may be sentenced to either a misdemeanor or felony as
the offense is a wobbler.” The court rejected the defense argument that treating the
misdemeanors as felonies for sentencing purposes violated double jeopardy provisions.
“It is the Court’s belief that the fact that the misdemeanor convictions were recorded,
simply means that he was convicted of a misdemeanor, which becomes elevated to a
potential felony after the Court found his priors to be true.”

“In our case, [defendant] was found not guilty of the felonies and was
found guilty of the misdemeanors, which then by operation of law, because
of his priors which were found true, gives the Court the discretion to
impose a felon or a misdemeanor. And in this case the Court will be
imposing a felony.”
Thereafter, the court imposed felony sentences for the misdemeanor lesser
included offenses.

29.
 G. Analysis
Defendant renews the argument he raised at the sentencing hearing and asserts the
decision to treat his misdemeanor convictions as felonies violated the constitutional
prohibition against double jeopardy since the jury found him guilty of misdemeanor
offenses.
Defendant’s arguments are refuted by the court. As to counts 1 and 2, the
information pleaded, and the prosecution proved, that defendant had a prior conviction
for violating section 23153, subdivision (a) in 2012. While the jury found defendant
guilty of misdemeanor DUI offenses in violation of section 23152, subdivisions (a) and
(b), the court was statutorily authorized by section 23550.5 to treat those misdemeanor
convictions as felonies for purposes of sentencing.
As noted by the trial court, the designation of the lesser included offenses as
misdemeanors on the verdict forms was not dispositive, and the court’s receipt and
recording of the jury’s verdict did not implicate double jeopardy. Section 23550.5 is a
penalty provision and a “ ‘sentence-enhancing statute and not a substantive offense
statute.’ [Citations.]” (Dietrick v. Superior Court (2013) 220 Cal.App.4th 1472, 1476.)
Defendant acknowledges that section 23350.5 permits the court to impose felony
sentences for his misdemeanor convictions if it found he had a prior felony conviction for
driving under the influence causing injury within the previous 10 years. Defendant
further acknowledges that the court found he was convicted of such an offense in 2012.
However, defendant asserts the court never found his prior conviction in 2012 was a
“felony” offense that would have allowed it to impose felony sentences for his
misdemeanor convictions under section 23350.5.
The record again refutes defendant’s arguments. The information alleged that
defendant’s prior conviction in case No. 1431988 in 2012 was a DUI offense that
occurred within 10 years of the current offenses, and also a serious felony within the
meaning of the “Three Strikes” law. Defendant moved to bifurcate the prior conviction

30.
allegations from the jury trial. Defendant then waived a jury trial on the prior conviction
allegations and the court conducted a bench trial. The prosecution introduced
documentary evidence from case No. 1431988 that showed defendant had been charged
with a felony violation of section 23153, subdivision (a), he pleaded guilty to that felony
charge in 2012, and the court placed him on felony probation. Defendant did not object
to the prosecution’s evidence.
After the jury returned the verdicts on the lesser included offenses, the court
returned to the prior conviction allegations and found that defendant had suffered the
prior conviction alleged in the information. While the court did not state that the prior
DUI conviction from 2012 was a felony offense, it found true the allegations in the
information that he suffered that conviction in case No. 1431988, and it is undisputed that
the evidence showed that conviction was a felony. The court properly imposed felony
sentences in this case.8
III. Correction of Abstract of Judgment
As explained in the procedural background, the court sentenced defendant to eight
years four months in prison. At the first sentencing hearing, as to case No. 1491573, the
court treated the two misdemeanor offenses as felonies, and imposed a consecutive
second strike term of one year four months (double one-third the midterm) for count 1,
driving under the influence of alcohol (§ 23152, subd. (a)); and a consecutive term of one
year four months for count 2, stayed pursuant to Penal Code section 654.
Thereafter, the California Department of Corrections and Rehabilitation sent a
letter to the court that the sentence had been improperly calculated. On September 24,
2018, the court conducted a second sentencing hearing and again imposed the aggregate
term of eight year four months calculating the sentence in a different manner. In case

8 We further note that when defendant pleaded guilty to the separate complaint for
failing to appear, he admitted the special allegation that he had a prior strike conviction
based on his felony DUI offense in 2012.

31.
No. 1491573, the court dismissed the prior strike conviction, again treated count 1 as a
felony, and imposed eight months (one-third the midterm); and imposed a consecutive
term of eight months for count 2 and stayed it pursuant to Penal Code section 654.
As noted by the People, the abstract of judgment for the second sentencing hearing
on September 24, 2018, fails to state defendant’s conviction and the stayed sentence
imposed for count 2 in case No. 1491573.
DISPOSITION
The abstract of judgment must be corrected as to case No. 1491573, to reflect
defendant’s conviction in count 2 of driving with a blood-alcohol level of 0.08 or greater
in violation of section 23152, subdivision (b), and that the consecutive sentence of eight
months was stayed pursuant Penal Code section 654. The trial court shall prepare and
forward to the Department of Corrections and Rehabilitation and all appropriate parties a
certified copy of an amended abstract of judgment.
In all other respects, the judgment is affirmed.

POOCHIGIAN, Acting, P.J.

WE CONCUR:

MEEHAN, J.

SNAUFFER, J.

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