The People v. Casillas

• Citation: 111 Cal.Rptr.2d 651,92 Cal.App.4th 171
• Court: California Court of Appeals
• Decision Date: 10 September 2001
• Parties: (Cal.App. 5 Dist. 2001) THE PEOPLE, Plaintiff and Appellant, v. CASIMERO CARLOS CASILLAS, Defendant and Respondent. F034666 FIFTH APPELLATE DISTRICT Filed

111 Cal.Rptr.2d 651 (Cal.App. 5 Dist. 2001)

THE PEOPLE, Plaintiff and Appellant, v. CASIMERO CARLOS CASILLAS, Defendant and Respondent.

F034666

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

Filed 9/10/01

(Super. Ct. No. 99CM5977)

APPEAL from an order of the Superior Court of Kings County. Peter M. Schultz, Judge.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Stan Cross and Patrick J. Whalen, Deputy Attorneys General, for Plaintiff and Appellant.

Shama H. Mesiwala, under appointment by the Court of Appeal, for Defendant and Respondent.

CERTIFIED FOR PUBLICATION

OPINION

Gomes, J.^*

The criminal law often punishes more harshly an accused who already has a criminal conviction than an accused who has none. The three strikes law is one example. (Pen. Code, 667, subds. (b)-(i), 1170.12, subds. (b)-(e).) Petty theft with a prior is another. (Pen. Code, 666.) Vehicle Code sections 23152 and 23550 constitute yet another.¹ Normally punishable as a misdemeanor, an offense of driving under the influence (DUI) is punishable as a felony if an accused has three "separate violations ... which resulted in convictions" of DUI. ( 23152, 23536, 23540, 23546, 23550.²

At the time of the preliminary hearing of Casimero Carlos Casillas (defendant) on his fourth DUI, he had a pending DUI complaint and two "separate violations ... which resulted in convictions" of DUI. The magistrate held him to answer, but the superior court found "no evidence" of three "separate violations ... which resulted in convictions" of DUI and set aside the ensuing information. (Pen. Code, 995.³ A timely People's appeal followed. (Pen. Code, 1238, subd. (a)(1).)

The issue on appeal is whether pleading and proof at the preliminary hearing of three "separate violations ... which resulted in convictions" of DUI is necessary to prosecute and punish a fourth DUI as a felony. Defendant argues it is necessary. The Attorney General argues it is not. In the alternative, the Attorney General argues pleading and proof at the preliminary hearing of a pending DUI complaint and two "separate violations ... which resulted in convictions" of DUI is adequate if three "separate violations ... which resulted in convictions" of DUI will exist by the time of conviction of a fourth DUI.

Our analysis of California's historical framework for charging a felony by information persuades us that pleading and proof at the preliminary hearing of three "separate violations ... which resulted in convictions" of DUI is a constitutional and statutory condition precedent to prosecution and punishment of a fourth DUI as a felony. We affirm the superior court order setting aside the information.

DISCUSSION

(1)Legislative history of section 23550

The "fundamental task of statutory construction is to 'ascertain the intent of the lawmakers so as to effectuate the purpose of the law.'" (People v. Cruz (1996) 13 Cal.4th 764, 774-775.) If the language is clear, the plain meaning of the words is determinative, and there is ordinarily no need to look beyond the statute itself. (People v. Benson (1998) 18 Cal.4th 24, 30.) If the language is ambiguous, the courts may "resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history." (People v. Coronado (1995) 12 Cal.4th 145, 151.)

Section 23550 authorizes felony punishment of a fourth DUI that occurs within seven years of commission of three "separate violations ... which resulted in convictions" of DUI, but the statute does not specify when pleading and proof of those conditions precedent to felony punishment shall occur. ( 23550, subd. (a).) The Attorney General argues the opening words of the statute"If any person is convicted of a violation of Section 23152" -show pleading and proof of the three "separate violations ... which resulted in convictions" of DUI is not necessary at the preliminary hearing since "the time at which to inquire about any other convictions is the point at which the defendant is convicted, and not earlier."

A legislative intent to impose harsher penalties for successive DUI's is readily inferable from section 23550's legislative history. The statute originally authorized a harsher misdemeanor penalty for a fourth DUI within five years of three "prior offenses which resulted in convictions" of DUI. (Stats. 1983, ch. 637, 3.) By subsequent amendment, the statute applied to three "separate violations ... which resulted in convictions" of DUI without regard to whether they were priors (Stats. 1984, ch. 1205, 3, ch. 1417, 2.5), then changed from five years to seven years the time between the new offense and the three "separate violations ... which resulted in convictions" of DUI (Stats. 1986, ch. 1117, 6), then authorized felony punishment by evolving from a misdemeanor to a wobbler (Stats. 1988, ch. 599, 1, ch. 1553, 2⁴, and then moved from former section 23175 to section 23550 with no significant change in text (Stats. 1998, ch. 118, 41, 84). Nowhere in the legislative history, however, do we find an intent to authorize a prosecution leading to harsher recidivist penalties before three "separate violations ... which resulted in convictions" of DUI exist.

(2)The section 23550 enhancement and an analogous enhancement

The cornerstone of the prosecutor's opposition to defendant's Penal Code section 995 motion in the superior court was People v. Snook (1997) 16 Cal.4th 1210. That case analyzed the legislative intent of section 23217, a statute the Legislature enacted while changing the trigger for harsher punishment of a DUI from three "prior offenses which resulted in convictions" of DUI to three "separate violations ... which resulted in convictions" of DUI without regard to whether they were priors.⁵ (People v. Snook, supra, at p. 1218; see Stats. 1984, ch. 1205, 3, 14, ch. 1417, 2.5.) Snook found a legislative intent to permit felony punishment "regardless of the order in which the offenses were committed and the convictions obtained." (People v. Snook, supra, at p. 1213.) On appeal, however, the Attorney General concedes neither Snook nor any other published case addresses the issue whether pleading and proof at the preliminary hearing of three "separate violations ... which resulted in convictions" of DUI is necessary to prosecute and punish a fourth DUI as a felony.

Both parties cite People v. Superior Court (Mendella) (1983) 33 Cal.3d 754 (Mendella), in which the Supreme Court announced, in the Attorney General's words, a "broad rule" making enhancement allegations subject to a Penal Code section 995 motion. (Mendella, supra, at pp. 758-763, superseded by statute on another point as stated in In re Jovan B. (1993) 6 Cal.4th 801, 814, fn. 8.) The three "separate violations ... which resulted in convictions" of DUI are enhancement allegations, not elements of the crime. (People v. Coronado, supra, 12 Cal.4th at p. 152, fn. 5; People v. Bowen (1992) 11 Cal.App.4th 102, 105-106; People v. Weathington (1991) 231 Cal.App.3d 69, 87-90.)

The prosecutor in Mendella filed a complaint that charged assault with a deadly weapon or by force likely to produce great bodily injury (GBI) but that alleged no GBI enhancement. (Mendella, supra, 33 Cal.3d at p. 757; Pen. Code, 245, subd. (a)(1), 12022.7, subd. (a).) Skeptical of the accused's denial of intent to cause injury, the magistrate held him to answer. (Mendella, supra, at p. 757.)

Once the ensuing information in Mendella added a GBI allegation to the original assault charge, the accused filed (1) a Penal Code section 995 motion on the ground the prosecutor adduced insufficient evidence of GBI at the preliminary hearing, and (2) a Penal Code section 739 motion on the ground an information can charge an offense, but cannot allege an enhancement, that was not in the complaint at the time of the preliminary hearing.⁶ (Mendella, supra, 33 Cal.3d at p. 757; Pen. Code, 12022.7, subd. (a).) The superior court granted the Penal Code section 739 motion, ruling that a Penal Code section 995 motion can challenge an offense but not an enhancement. (Mendella, supra, at pp. 758, 763.)

The Supreme Court in Mendella examined the transition from the indeterminate sentencing law (ISL) to the determinate sentencing law (DSL) and found nothing in the "history or form" of the DSL that intimated a legislative intent "to deprive the defendant of the opportunity" the ISL traditionally recognized "for pretrial challenges of enhancement allegations." (Mendella, supra, 33 Cal.3d at p. 763.) The court noted, too, that Penal Code section 995 draws no distinction between an offense and an enhancement and held that to allow the prosecutor "to indiscriminately charge enhancements without subjecting such allegations to judicial scrutiny under a Penal Code section 995 motion is to undermine" procedural guaranties that "implement the defendant's due process right to a pretrial determination of probable cause." (Mendella, supra, at pp. 758-759; see Ervin v. Superior Court (1981) 119 Cal.App.3d 78, 89.) The court vacated the order setting aside the enhancement under Penal Code section 739 since the record contained sufficient evidence of GBI to withstand a Penal Code section 995 motion. (Mendella, supra, at pp. 757-758, 765.)

(3)History of the requirement of pleading and proof at the preliminary hearing

Mendella fits squarely within the constitutional and statutory framework for charging a felony by information. Among the components of that framework are Penal Code sections 871 and 872. Penal Code section 871 provides: "If, after hearing the proofs, it appears either that no public offense has been committed or that there is not sufficient cause to believe the defendant guilty of a public offense, the magistrate shall order the complaint dismissed and the defendant to be discharged." (Italics added.) Penal Code section 872, subdivision (a) provides...