Monday, January 14, 2008

Multiple DUI cases in California cause multiple problems

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Filed 1/14/08 P. v. Plotczyk CA4/2


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.




Plaintiff and Respondent,



Defendant and Appellant.
(Super.Ct.No. FMB008193)


APPEAL from the Superior Court of San Bernardino County. Bert L. Swift, Judge. Affirmed in part and reversed in part with directions.

Eugene B. Stillman for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Deana L. Bohenek, Deputy Attorney General, for Plaintiff and Respondent.

Defendant pled guilty to two counts of felony driving under the influence (DUI) (Veh. Code, § 23152, subd. (a))1 (counts 1 & 3) and two counts of driving while having a 0.08 percent or higher blood alcohol level (§ 23152, subd. (b)) (counts 2 & 4) as alleged in case Nos. FMB8193 and FBV4102. In addition, defendant admitted that he had sustained five prior misdemeanor DUI convictions within the meaning of sections 23550 and 23550.5 and that he was out on bail in case No. FBV4102 when he committed counts 1 and 2 (case No. FMB8193). Defendant was sentenced to a total term of five years eight months in state prison; however, execution of the sentence was suspended, and defendant was placed on probation for five years on various terms and conditions, including that he spend one year in a residential alcohol treatment facility, followed by one year of electronic monitoring.

On appeal, defendant contends (1) that his two prior 1996 convictions for DUI (Veh. Code, § 23152, subd. (a)) were time barred and could not be used in the present case to enhance his sentence or to render his current convictions felonies; and (2) the trial court erred when it applied Penal Code section 12022.1, because his bail had been exonerated as a matter of law pursuant to Penal Code section 1303. We agree that the court erred in applying the on-bail enhancement allegation pursuant to Penal Code section 12022.1 but reject the remaining contention.



A. Ex Post Facto

The relevant procedural and factual background is as follows: Both amended felony complaints (case Nos. FBV4102 & FMB8193) alleged four prior misdemeanor DUI convictions pursuant to sections 23550 and 23550.5. All four convictions were pursuant to section 23152, subdivision (a) or (b) and were alleged as follows: (1) offense date of September 29, 1996 (case No. 063679); (2) offense date of December 2, 1996 (case No. 66309); (3) offense date of August 24, 2001 (case No. TMB020771); and (4) offense date of December 19, 2003 (case No. 143177).

On July 11, 2006, defendant admitted all of the prior convictions. However, prior to entering his plea, defendant’s trial counsel objected on relevance grounds to the two 1996 prior convictions on the basis that they were time barred. Counsel claimed that reviving them for the purpose of prosecution in the instant matter was a violation of the ex post facto law. The court overruled defense counsel’s objection and found that it would consider both 1996 convictions for the purpose of sentencing.

Defendant contends that use of his prior 1996 convictions to make the instant DUI offenses felonies violates the ex post facto clauses of the United States and California Constitutions.

As explained in People v. Munoz (2002) 102 Cal.App.4th 12 (Munoz), “[w]e begin with a brief history of the legislation that allows recidivist drunk drivers to be treated as felons. In 1983, when former section 23175 was first enacted, the section allowed for enhanced penalties for driving under the influence if the offender had three or more prior offenses for driving under the influence within five years of the current offense. Due to the use of the word ‘prior,’ the statute sometimes resulted in uneven application where a defendant had his cases resolved out of order. An individual who had his fourth driving under the influence conviction resolved before his third could not have either offense elevated to a felony. When the fourth was resolved, there were only two prior offenses — the first and second. When the third was resolved, again there were only two prior offenses as the fourth offense was subsequent, not prior, to the others.

“As a result of this unequal treatment, the Legislature in 1984 amended former section 23175 to provide that individuals who committed four or more ‘separate violations’ of DUI laws within a five-year period of the current offense would be subject to felony treatment. At the same time, the Legislature amended several other DUI recidivist statutes, and it added section 23217, which set forth the legislative intent in enacting the changes.” (Munoz, supra, 102 Cal.App.4th at pp. 16-17, fn. omitted.)

Hence, prior to 1986, section 23175, subdivision (a) provided for increased sanctions for DUI offenders who had previously been convicted of DUI offenses within five years. (People v. Snook (1997) 16 Cal.4th 1210, 1217-1218, fn. 1.) In 1986, the Legislature amended former section 23175 and section 23217 to increase the period to seven years. (Stats 1986, ch. 1117, §§ 6, 13, pp. 3934, 3937.)

In 2005, the time was increased again to 10 years. As such, section 23550 [multiple offenses; punishment], currently provides, in pertinent part: “(a) If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years of three or more separate violations of Section 23103, as specified in Section 23103.5, or Section 23152 or 23153, or any combination thereof, that resulted in convictions, that person shall be punished by imprisonment in the state prison . . . .” (Italics added.)

Defendant was arrested on the instant charges for violating section 23152 (DUI) on December 30, 2005, and April 6, 2006. Four prior DUI convictions were alleged, two occurring on September 29, 1996, and December 2, 1996, when the term for increased punishment, under section 23550, was seven years. Therefore, if the law at the time of the current convictions still provided for the seven-year window, defendant’s 1996 convictions were time barred and could not be used in the present case to enhance his sentence or to render his current convictions felonies. The convictions would have expired or been “washed out” in 2003. However, since the law changed in 2005 to 10 years, defendant’s prior 1996 convictions were not time barred to increase his penalty. Rather, since the convictions were sustained in 1996, they would not expire until September 29, 2006, and December 2, 2006, respectively, both dates dating after his current offenses.

Defendant claims that his 1996 convictions do not mandate felony status for his current DUI offenses because the 1996 convictions had been washed out by the original five-year statutory period and could not be revived under the new 10-year amended statute. He argues that sentencing him according to the revision of sections 23550 and 23550.5 violated the ex post facto clauses of the United States and California Constitutions.

The ex post facto clauses of the federal and state Constitutions prohibit the imposition of increased punishment after the commission of a crime. (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9; Collins v. Youngblood (1990) 497 U.S. 37, 41; Tapia v. Superior Court (1991) 53 Cal.3d 282, 288.) As our state’s high court has explained, “the policy behind the ex post facto clauses” is “that criminal laws must give fair warning to those who may fall within their ambit.” (In re Ramirez (1985) 39 Cal.3d 931, 938, citing Weaver v. Graham (1981) 450 U.S. 24, 28 (Weaver).) Thus “one of the primary purposes of the ex post facto clause” is “to prevent unforeseeable punishment.” (People v. Snook, supra, 16 Cal.4th at p. 1221.) “Critical to relief under the Ex Post Facto Clause is not an individual’s right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.” (Weaver, at p. 30.)

As the California Supreme Court recently explained, “no statute falls within the ex post facto prohibition unless ‘two critical elements’ exist. [Citations.] First, the law must be retroactive.” (John L. v. Superior Court (2004) 33 Cal.4th 158, 172.) “Second, only certain changes in the statutory effect of past criminal conduct implicate ex post facto concerns.” (Ibid.)

As to the first element, a law is unconstitutionally retroactive “if it defines past conduct as a crime, increases the punishment for such conduct, or eliminates a defense to a criminal charge based on such conduct.” (Tapia v. Superior Court, supra, 53 Cal.3d at p. 288.) As to the second element, to implicate ex post facto concerns, the statutory change “must disadvantage the offender affected by it.” (Weaver, supra, 450 U.S. at p. 29, fn. omitted.) However, no ex post facto violation occurs if the change is merely procedural. (Miller v. Florida (1987) 482 U.S. 423, 430.)

We disagree with defendant’s contention that use of his prior 1996 convictions to make the instant offenses felonies violates the ex post facto clauses of the United States and California Constitutions. (U.S. Const., art. I, § 9, cl. 3; Cal. Const., art. I, § 9.)

In People v. Sweet (1989) 207 Cal.App.3d 78 (Sweet), the defendant’s drunk driving sentence was enhanced by the use of prior convictions entered within seven years of the offense. At the time the prior convictions were entered, the maximum period of use for that purpose was five years. The Court of Appeal upheld the enhanced sentence against the defendant’s ex post facto challenge, stating that “a statute does not function retroactively ‘merely because it draws upon facts antecedent to its enactment for its operation. [Citation.]’” (Id. at p. 83.)

The Sweet court explained: “Both section 23152 and the enhancement statutes, sections 23165 (one prior conviction), 23170 (two prior convictions), and 23175 (three or more prior convictions), were in force before appellants’ present convictions and apprised them of the possible consequences of a new violation. [Citation.] Without their acts after passage of the new legislation, the enhanced punishment of these statutes would not come into play. [Citations.]” (Sweet, supra, 207 Cal.App.3d at p. 83.) Accordingly, crimes for which defendants are punished are not the earlier convictions, but the subsequent offense of which the prior conviction constitutes only one element. (Ibid.) “The sentence imposed upon an habitual offender is not an additional punishment for the earlier crime, but ‘a stiffened penalty for the latest crime,’ which is considered aggravated because of its repetitive nature. [Citations.]” (Ibid.)

Likewise, here, as in Snook, faced with a “self-inflicted change in defendant’s status as a repeat offender,” it was “defendant’s own conduct that ultimately increased his punishment.” (People v. Snook, supra, 16 Cal.4th at p. 1221.)

In conclusion, the Sweet court stated: “Even assuming that the former five-year and current seven-year provisions constitute ‘wash out’ periods such as those established in Penal Code section 667.5, subdivisions (a) and (b) [citation], we see no reason why the Legislature may not change the length of period so long as the change is not enacted after the current offense that triggers the habitual offender statute.” (Sweet, supra, 207 Cal.App.3d at pp. 84-85, fn. omitted; accord, People v. Wohl (1990) 226 Cal.App.3d 270 [ex post facto clauses of United States and California Constitutions were not violated when the defendant was charged with felony upon fourth offense, even though convictions for three prior offenses occurred before amendment making the fourth offense a felony].)

Defendant’s reliance on Stogner v. California (2003) 539 U.S. 607, 610, which held that a statute reviving time-barred sex crimes was unconstitutional, is inapplicable to the present case.3

We reach a similar conclusion regarding defendant’s implicit due process claim. Sweet considered and rejected a due process challenge arising from a similar sequence of events. As noted previously, in Sweet, the defendants were subject to a habitual offender statute that provided increased penalties if the defendants reoffended within a specified period of time. (Sweet, supra, 207 Cal.App.3d at p. 81.) More than five years after the defendants’ prior convictions, and before the current convictions, the window for use of prior offenses was lengthened from five years to seven years. (Ibid.) The defendants argued, among other things, that application of the statute constituted a due process violation in light of their plea agreements. (Id. at pp. 82, 85-86.) The Sweet court found no fundamental unfairness in application of the revised statute, stating that because “the ultimate punishment imposed is for the new offense, so long as the statute considering one’s status as a repeat offender is in force at the time of the subsequent crime the offender is on constructive notice that habitual offenders face aggravated penalties and there is no due process violation.” (Id. at pp. 86-87.)

Like the court in Sweet, we find no violations of the ex post facto or due process clauses in the instant matter. Defendant was on constructive notice of the increased penalty at the time of his current offenses. Therefore, the use of defendant’s prior 1996 DUI convictions to both enhance his penalties and to elevate his current DUI charges to felonies was proper.

B. “Out on Bail” Enhancement

Defendant contends the trial court erred when it applied Penal Code section 12022.1, because his bail had been exonerated as a matter of law pursuant to Penal Code section 1303.

Defendant was arrested for DUI on December 30, 2005. He claims that he posted bail in the amount of $15,000 and was then released from custody. He thereafter appeared for his arraignment as he was directed. Defendant further explains that the court had taken his case off calendar, as a complaint had not been filed, and therefore he was not ordered back. Fifteen days went by following the arraignment date with no complaint being filed against defendant. A complaint was subsequently filed on April 17, 2006, in which defendant was charged for the conduct associated with his December 2005 arrest (case No. FBV4102).

In the meantime, defendant was arrested for DUI on April 6, 2006. A complaint stemming from his April arrest was filed on April 10, 2006 (case No. FBV4102), which included an allegation that defendant was on bail at the time he committed the April 2006 offenses within the meaning of Penal Code section 12022.1.

Defendant claims that since 15 days went by without a complaint being filed stemming from his December 2005 arrest, his bail bond was exonerated as a matter of law; therefore, he was not out on bail when he committed the April 2006 offenses, and the enhancement allegation pursuant to Penal Code section 12022.1 is inapplicable. Defendant is correct.

Subdivision (a) of Penal Code section 1305 provides, as relevant, that bail may be forfeited “if, without sufficient excuse, a defendant fails to appear for . . . [¶] . . . [¶] [a]ny . . . occasion prior to the pronouncement of judgment if the defendant’s presence in court is lawfully required. [¶] . . . [¶] However, the court shall not have jurisdiction to declare a forfeiture and the bail shall be released of all obligations under the bond if the case is dismissed or if no complaint is filed within 15 days from the date of arraignment.” (Italics added.) “To avoid forfeitures, the time limits imposed by the bond statutes must be strictly construed in favor of the surety, and the court has no jurisdiction to act beyond the times set by the Legislature. [Citations.]” (People v. Ranger Ins. Co. (2006) 145 Cal.App.4th 23, 27 (Ranger).)

Ranger supports defendant’s position. In that case, Ranger contended the trial court lacked jurisdiction to forfeit the bond on April 29, having lost it on February 6 when the bond was exonerated as a matter of law. Specifically, Ranger asserted that the defendant’s failure to appear on the arraignment date set by the jailor (January 22) deprived the court of jurisdiction to thereafter forfeit the bond because there were no court orders continuing the arraignment date (in short, the original arraignment date is the only date that matters, and the complaint was not filed within 15 days after that date). (Ranger, supra, 145 Cal.App.4th 23 at pp. 26-27.)

After analyzing the legislative history of Penal Code section 1305, the appellate court agreed, finding: “The legislative history of the 15-day provision supports Ranger’s position.” (Ranger, supra, 145 Cal.App.4th at p. 28.) The court concluded, “Because the complaint was not filed 15 days after January 22, and because the court did not continue the case on January 22 (or otherwise order [the defendant] to return on a later date), the bond was exonerated on February 6. As a result, the court had no jurisdiction to forfeit bail at the April 29 hearing.” (Id. at p. 30.) Ranger stands for the proposition that the 15-day time limit should be strictly applied.

Here, no complaint was filed against defendant within 15 days after his original arraignment date in case No. FBV4102 (the December 2005 DUI arrest). Indeed, the complaint was not filed until April 17, 2006, in which defendant was charged for the conduct associated with his December 2005 arrest (case No. FBV4102). Accordingly, the bail bond was exonerated as a matter of law, and the district attorney should have asked the court to issue a warrant to be served upon defendant by law enforcement in order to secure defendant’s presence in court. Defendant was therefore not out on bail when he was arrested on April 6, 2006, for committing yet another DUI.



The sentence and finding on the Penal Code section 12022.1 out-on-bail enhancement allegation is reversed. The matter is remanded for a further sentencing hearing in accordance with this opinion. In all other respects, the judgment is affirmed.



Acting P.J.

We concur:





1 All future statutory references are to the Vehicle Code unless otherwise stated.

2 The details of defendant’s criminal conduct are not relevant to the limited issues he raises in this appeal and we will not recount them here. Instead, we will recount only those facts that are pertinent to the issues we must resolve in this appeal.

3 Specifically, in Stogner v. California, supra, 539 U.S. 607, the United States Supreme Court held that Penal Code section 803, subdivision (g) is unconstitutional under the ex post facto clauses in the United States Constitution to the extent it “created a new criminal limitations period that extends the time in which prosecution is allowed,” “authorized criminal prosecutions that the passage of time had previously barred,” and “was enacted after prior limitations periods for [a defendant’s] alleged offenses had expired.” (Stogner, at p. 544.)