People v. Claire

• Decision Date: 23 April 1991
• Docket Number: No. A049704,A049704
• Citation: 280 Cal.Rptr. 269,229 Cal.App.3d 647
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff/Respondent, v. Kevin CLAIRE, Defendant/Appellant.

Page 269

280 Cal.Rptr. 269

229 Cal.App.3d 647

The PEOPLE, Plaintiff/Respondent, v. Kevin CLAIRE, Defendant/Appellant.

No. A049704.

Court of Appeal, First District, Division 2, California.

April 23, 1991.

Review Denied Aug. 1, 1991.

Patricia L. Watkins, San Mateo, for defendant/appellant Kevin Claire.

Daniel E. Lungren, California Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Stan M. Helfman, Supervising Deputy Atty. Gen., Violet M. Lee, Deputy Atty. Gen., Attorney General's Office, San Francisco, for plaintiff/respondent People.

PETERSON, Associate Justice.

Appellant contends two of his four prior convictions were improperly used to increase his sentence for drunk driving, because the prosecutor failed during prior plea proceedings to state facts indicating appellant's intoxication on previous occasions. We reject this contention and affirm.

I. FACTS AND PROCEDURAL HISTORY

Appellant was charged with drunk driving, and with having recently suffered three or more prior convictions for similar conduct. (VEH.CODE, §§ 23152¹, subd. (a); 23175, subd. (a).) It was also alleged that appellant had refused to submit to testing for alcohol intoxication, and had been driving while his license had been suspended and revoked for driving under the influence of alcohol.

Appellant ultimately entered a plea of guilty, and did not dispute the prosecution's position that two of the prior convictions could properly be used to increase his sentence. He also admitted he suffered two other priors, but reserved his right to challenge their use for these purposes, on the grounds that the prosecutor at the time of appellant's guilty pleas to those charges did not state facts for the record indicating appellant had been abusing alcohol at the time of the offense.

The trial court ruled the two priors in question could properly be used to increase the sentence. Appellant timely appealed.

II. DISCUSSION

The only issue on appeal is whether the trial court correctly ruled the two challenged prior convictions for reckless driving could properly be used to increase the sentence. We affirm the ruling of the trial court since appellant was specifically warned at the time of the prior plea proceedings that the convictions would be so used.

The governing statute here is section 23103.5. This section governs attempts to plea-bargain a charge of driving under the influence of alcohol, in violation of section 23152, into a simple reckless driving charge under section 23103. Section 23103.5 provides, in pertinent part: "(a) When the prosecution agrees to a plea of guilty or nolo contendere to a charge of a violation of Section 23103 [reckless driving] in satisfaction of, or as a substitute for, an original charge of a violation of Section 23152 [driving under the influence], the prosecution shall state for the record a factual basis for the satisfaction or substitution, including whether or not there had been consumption of any alcoholic beverage.... The statement shall set forth the facts which show whether or not there was a consumption of any alcoholic beverage ... in connection with the offense. [p] (b) The court shall advise the defendant, prior to the acceptance of the plea ..., of the consequences of a conviction ... as set forth in subdivision (c). [p] (c) If the court accepts the defendant's plea ... and the prosecutor's statement under subdivision (a) states that there was consumption of any alcoholic beverage ..., the resulting conviction shall be a prior offense for the purposes of Section ... 23175 [relating to enhanced punishment for those with three or more prior offenses within the past seven years]...."

Thus, section 23103.5, enacted in 1981 as part of a comprehensive strengthening of the penalties for drunk driving, closes a former loophole which had allowed repeat drunk drivers to avoid the increased penalties for recidivism by pleading guilty to reckless driving rather than drunk driving. When a drunk driving charge is reduced to a " 'wet reckless' " driving charge under section 23103.5, the resulting conviction is the same as one of drunk driving for purposes of the penalties imposed upon recidivists. ²

Appellant admits the two convictions in issue here were wet reckless pleas, in the sense that he pleaded guilty to reckless driving after the prosecutor reduced drunk driving charges to reckless driving charges pursuant to section 23103.5. However, raising an inventive if hypertechnical issue of apparent first impression, he contends the prosecutor's failure at the time of the plea to orally state the facts tending to prove intoxication means that this particular type of wet reckless conviction cannot be used to increase his sentence. We disagree.

Where as here the defendant is properly advised of the consequences of a plea to a wet reckless charge, the resulting conviction may be used for the purpose of enhancing subsequent penalties for recidivism, despite the prosecutor's failure to orate such words as "breath test," "objective symptoms," or "odor of alcohol" in the factual statement which section 23103.5 specifies.

In Pollack v. Department of Motor Vehicles (1985) 38 Cal.3d 367, 374, 211 Cal.Rptr. 748, 696 P.2d 141, our Supreme Court aptly analyzed the statutory scheme in issue here as follows: "In 1981, the Legislature effected a comprehensive reorganization of the Vehicle Code. These 1981 amendments amended and reenacted most of the code provisions relating to driving under the influence of intoxicating liquor and drugs. This legislation was evidently prompted by increasing public concern over the problem of intoxicated drivers. [Citation.] In general terms, the amended statutes made it more difficult to avoid a criminal conviction for the offense of driving under the influence and increased the criminal penalties to be imposed upon conviction. [Citation.] The ability of the courts to avoid imposition of mandatory jail sentences and fines was restricted. [Citation.] In addition, more stringent mandatory probation provisions were imposed. [Citation.] Throughout these amendments, the Legislature's attempt to banish intoxicated drivers from our highways is obvious."

In accord with this general plan, section 23103.5 makes it more difficult to avoid a drunk driving charge by pleading to reckless driving; for purposes of the punishment for recidivists, a wet reckless conviction under section 23103.5 is equivalent to a conviction for drunk driving under section 23152. (See, e.g., Curl v. Superior Court (1990) 51 Cal.3d 1292, 1306, fn. 8, 276 Cal.Rptr. 49, 801 P.2d 292 ["Contrary to defendant's assertion, the prior driving-under-the-influence conviction charged in such a proceeding is not an 'element' of the new violation, but rather an enhancement factor."]; Pitman v. City of Oakland (1988) 197 Cal.App.3d 1037, 1041, fn. 2, 243 Cal.Rptr. 306; cf. People v. Wohl (1990) 226 Cal.App.3d 270, 276 Cal.Rptr. 35.)

The trial court ruled that the prosecutor's failure to orally state facts showing intoxication in the two plea proceedings in question did not preclude the use of those convictions as priors, since in fact appellant received the full benefit of his plea bargain; further, he was explicitly warned in writing that the convictions would be used as priors upon subsequent conviction: "It seems to me the purpose of that [section 23103.5] provision is not so a defendant can come into court later where they've been totally apprised that this is validly an alcohol related offense, and say, uh-huh, the District Attorney failed to put on the record and tell the judge, in compliance with subdivision [ (a) ], that this offense is alcohol related. I don't think that's necessary. I think you have to read these statutes in a common sense manner. And based upon the information that's [been] brought to my attention, I think my duty is ... to use some common sense in interpreting what your client was apprised of and whether or not he was validly convicted of a [section] 23103.5 alcohol related offense. [p] I find that he was[,] based upon the totality of circumstances, specifically Exhibits 4 and 5 [which are plea documents signed by appellant indicating he was informed the convictions would be used as priors upon a subsequent conviction]. And I find that there was substantial compliance with that statute based upon the balance of the exhibits which I have seen, which bring to my attention in no uncertain terms that your client was well aware of what he plead[ed] to. And I find that he plead[ed] to a [section] 23103/23103.5 alcohol related offense as exhibited in [Exhibits] 4 and 5.... [p] [Appellant's Counsel:] That's a finding of guilt on the priors, correct? [p] The Court: Yes. [p] [Appellant's Counsel:] Okay. This is an issue I think of some merit. Well, we're prepared for sentence now. [p] The Court: Okay. I ... know that you want to go somewhere with it and I'm going to give you time to do that. [p] [Appellant's Counsel:] Thank you. I've spoken to ... the DA about that and [an appeal] might resolve a lot of matters in the future."

The legislative history of section 23103.5 supports the trial court's ruling. ³ The relevant Conference Committee Report contains a legislative analysis which aptly summarizes the purpose of the statute: "The author points out that the main purpose of the bill is to address abuses associated with current practices of reducing drunk driving charges to reckless driving through plea bargaining. The overwhelming majority of reckless driving convictions result from drunk driving charges which are reduced through plea bargaining. Under current [i.e., pre-1981] law, reckless driving does not count as a prior for purposes of enhancing penalties for a subsequent DUI conviction." (Conf.Com.Rep. on Assem.Bill No. 348, No. 019894 (1981-1982 Reg.Sess.) p. 3.)

Thus, the purpose of the statute is to ensure that a conviction of reckless driving under ...