Wednesday, January 9, 2008

California DUI / drunk driving case - 270 days jail

California DUI lawyer case

Filed 1/9/08 P. v. Taylor CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,
Plaintiff and Respondent,

v.

JONATHAN LOUIS TAYLOR,

Defendant and Appellant.

F052807
(Super. Ct. No. F06906696)

O P I N I O N


APPEAL from orders of the Superior Court of Fresno County. Houry A. Sanderson and James R. Oppliger, Judges.

William Davies, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION AND FACTS

Appellant Jonathan Louis Taylor was charged in a four-count complaint with unlawfully driving or taking a vehicle, resisting an executive officer and drunk driving. He accepted a negotiated plea agreement and pled guilty to unlawfully driving or taking a vehicle and to driving with a 0.08 percent or higher blood alcohol level. (Veh. Code, §§ 10851, subd. (a); 23152, subd. (b).)1 The remaining counts were dismissed. At the change of plea hearing, the parties stipulated to a blood alcohol level of 0.08 percent.

On October 25, 2006, appellant was sentenced by Judge Houry Sanderson. The court suspended imposition of judgment for two years and placed appellant on formal probation for this period of time. The court ordered that appellant’s driving privileges be revoked pursuant to section 23578 as a term and condition of probation.2 Other probation conditions required completion of an alcohol-related education program and forbade association with gang members. In response to the court’s question whether appellant understood “your terms and conditions of your felony probation,” appellant replied, “Yes, ma’am.” Revocation of appellant’s driving privileges pursuant to section 23578 appears as probation condition number 34 on the document entitled “fresno county courts [¶] probation department recommendations [¶] and [¶] court orders” (original boldface) and this condition is marked with an “X” by the probation officer and the court to indicate that that it applies to appellant. Revocation of appellant’s driving privileges is listed as a condition of probation on page 8 of the probation report.

Appellant did not object to any of the probation conditions during the sentencing hearing and he did not file an appeal within 60 days after he was sentenced.

On April 4, 2007, appellant admitted in a hearing conducted by Judge James Oppliger that he violated the conditions of his probation by failing to enroll in “a DUI First Offender Program.” The People dropped an allegation that appellant violated his parole by associating with gang members. The parties agreed on imposition of 270 days in county jail. The court asked counsel, “All right. So the court is simply going to find the violation, revoke and reinstate with the same terms and conditions, save and except the period of time that we will modify that to 270 days with time credits ….” Defense counsel agreed but also stated that appellant objected “… to the condition of the gang enhancements as we do not feel like this is a gang-related case. We’re asking for a probation modification in Ms. Sanderson’s courtroom.” The court responded that “… this argument needs to be made in front of the judge who imposed the condition.” Thereafter, Judge Oppliger ordered probation to be reinstated on the same terms and conditions. As an additional probation condition, appellant was ordered to serve 270 days in county jail; he was awarded 232 days’ custody credits.

On April 27, 2007, Judge Sanderson heard and denied appellant’s request that his probation be modified to lift the restriction against association with gang members.

On April 30, 2007, appellant filed a notice of appeal. The notice states that he is appealing from the “sentence 10/25/06” and “probation modif 4/27/07.” The request for notice of probable cause states that appellant seeks to challenge the probation condition restricting his “constitutional right to free association.” However, appellant’s briefing neither challenged the constitutionality of the probation condition forbidding association with gang members nor contested the denial of his request to modify the conditions of his probation. Instead, he challenges the condition of probation revoking his driving privileges. Appellant argues that this condition is unauthorized because it was stipulated that his blood alcohol level was 0.08 percent and section 23578 grants the court discretion to impose additional punishment or conditions of probation when the defendant’s blood alcohol level is 0.15 percent or higher.

As we will explain, appellant’s challenge to the probation condition revoking his driving privileges is properly rejected because his appeal from the October 25, 2006, sentencing order is untimely. The October 25, 2006, sentencing order is final. Appellant cannot belatedly challenge the conditions of probation in a direct appeal from subsequent orders concerning an unrelated violation of parole and denial of an unrelated modification motion. (People v. Preyer (1985) 164 Cal.App.3d 568, 576 (Preyer).)

DISCUSSION

The appeal of the October 25, 2006, sentencing order is untimely.

California Rules of Court, rule 8.308(a) and Preyer, supra, 164 Cal.App.3d 568 guide our resolution of this issue.

California Rules of Court, rule 8.308(a) provides that a “notice of appeal must be filed within 60 days after the rendition of the judgment or the making of the order being appealed. Except as provided in rule 8.66, no court may extend the time to file a notice of appeal.”

In Preyer, defendant pled guilty in two different cases to two charges and related enhancement allegations. In December 1982, the trial court sentenced defendant to the upper term of five years in the first case and four years in the second case. Execution of the sentences was suspended and he was placed on probation for five years. Appellant did not appeal from the sentencing order. One month later, defendant was arrested for robbery. After a probation revocation hearing, defendant was found in violation of probation. In August 1983, the court imposed the two suspended prison terms and ordered them to run consecutively. Defendant appealed from the probation revocation order. (Id. at pp. 571-572.) In relevant part, defendant challenged imposition of the upper term for one of the cases on the ground that the court failed to state a reason for selection of this term on the record when it was imposed at the original sentencing hearing. The appellate court summarily rejected this challenge, as follows:

“When a defendant is sentenced originally, the judge must state reasons for the imposition of upper or lower terms. [Citations.] If the judge did not state reasons for imposing the upper term in December of 1982, appellant could have appealed at that time. He did not do so then, and cannot do so now. That judgment is now final. [Citations.] There was no error.” (Preyer, supra, 164 Cal.App.3d at p. 576.)

Likewise, in this case the condition of probation revoking appellant’s driving privileges was imposed on October 25, 2006. Appellant could have challenged the legality of this probation condition in an appeal taken from the October 25, 2006, sentencing order. Appellant had adequate notice of this probation condition. It is contained in the probation report and the judge orally set forth this condition during the sentencing hearing.3 Appellant stated that he understood the terms and conditions of his probation. Appellant failed to appeal his sentence within the time prescribed by law and it is now final. Thus, the appeal of the October 25, 2006, sentencing order is untimely. (Preyer, supra, 164 Cal.App.3d at p. 576; cf. People v. Senior (1995) 33 Cal.App.4th 531, 538 [direct appellate review of an issue is forfeited in a subsequent appeal if appellant could have, but failed to, raise the issue in an earlier appeal]; see also People v. Murphy (2001) 88 Cal.App.4th 392, 395-396 [same].)

The appeal of the April 2007 orders is timely. However, the probation condition revoking appellant’s driving privileges was not raised in or relevant to either of these proceedings. The April 4, 2007, order followed appellant’s admission of an unrelated probation violation (failure to enroll in a mandatory education program) and reflected an agreement that appellant would be readmitted to probation with service of 270 days in jail. The April 27, 2007, order denied appellant’s motion to modify the terms of his probation to remove the condition proscribing association with gang members. Neither of these orders created an independent basis to appeal the previously imposed probation condition revoking appellant’s driving privileges. (Preyer, supra, 164 Cal.App.3d at p. 576.)

Appellant argues that he is entitled to relief because an unauthorized sentence may be corrected at any time. This contention fails because we have not concluded that the sentence is not amenable to correction. We merely determined that the October 25, 2006, sentencing order is final and that a direct appeal cannot be taken from it. Appellant may obtain judicial consideration of his challenge to the probation condition revoking his driving privileges either by filing in the superior court a motion to modify the terms of his probation or a petition for writ of habeas corpus.

DISPOSITION

The appeal from the October 25, 2006, sentencing order is dismissed. The orders filed on April 4, 2007, and April 27, 2007, are affirmed.

_________________________

Levy, Acting P.J.

WE CONCUR:

_______________________________

Cornell, J.

_______________________________

Hill, J.



1 Unless otherwise specified all statutory references are to the Vehicle Code.



2 Section 23578 provides:

“In addition to any other provision of this code, if a person is convicted of a violation of Section 23152 or 23153, the court shall consider a concentration of alcohol in the person’s blood of 0.15 percent or more, by weight, or the refusal of the person to take a chemical test, as a special factor that may justify enhancing the penalties in sentencing, in determining whether to grant probation, and, if probation is granted, in determining additional or enhanced terms and condition of probation.”



3 We summarily reject appellant’s contention that the revocation of his driving privileges is not a probation condition because it does not have a defined term. The record clearly demonstrates that the revocation of appellant’s driving privileges was ordered as a condition of probation. Obviously, probation conditions apply during the prescribed period of probation. When appellant completes his two-year term of probation, he may take whatever steps are necessary to apply for reinstatement of his driving privileges.