Sunday, May 11, 2008

How Sweet is Forrester? California DUI case

California DUI lawyer news

May 10, 2008

People v. Forrester (2007) , Cal.App.4th

In People v. Sweet (1989) 207 Cal.App.3d 78 ( Sweet ), defendant
pled guilty to driving under the influence of alcohol (DUI). At the
time of his plea, a defendant convicted of a subsequent DUI offense
within five years receives increased punishment. After Sweet's plea,
the Legislature amended the statute to extend the five years to seven
years. Sweet reoffended more than five but less than seven years
later. In Sweet , we held that the statute may constitutionally be
applied to prior DUI convictions entered when five years was the
maximum period in which prior convictions could be used for increased
sentence. ( Id. at p. 83.)

Jason Michael Forrester is in a similar predicament. The statute was
again amended to extend the seven years to ten years. (Veh. Code, §§
23540 & 23546.) fn. 1 Faced with the seemingly insuperable Sweet
precedent, Forrester asks us to reexamine our holding in light of
Stogner v. California (2003) 539 U.S. 607. We have, and conclude {Slip
Opn. Page 2} nothing has changed. Forrester's enhanced sentence does
not violate ex post facto or due process principles. We affirm the
judgment.

Factual and Procedural Background

Forrester suffered two DUI convictions, one in 1997 and another in
2001. In 1997, sections 23540 and 23546 provided that DUI-related
convictions increase punishment for subsequent DUI convictions
occurring within seven years. Effective January 1, 2005, the
California Legislature amended these statutes to extend the period to
10 years. fn. 2

In March 2006, Forrester was again charged with DUI offenses. (§§
23152, subd. (a) & 23152, subd. (b).) The People alleged his two prior
convictions to enhance his sentence.

Forrester moved to strike his prior 1997 conviction. He argues, as did
defendant Sweet, that to enhance his sentence with this prior
conviction violates the ex post facto clause. The trial court denied
the motion and Forrester pled no contest to a violation of section
23152, subdivision (b), and admitted the two prior convictions. He was
sentenced to confinement in county jail. The trial court stayed
execution of his sentence pending appeal and granted him a certificate
of probable cause.

The Appellate Division of the Superior Court affirmed. It concluded
that use of the 1997 prior conviction to enhance Forrester's sentence
does not violate ex post facto principles. We granted Forrester's
request to transfer the case here for resolution of the constitutional
issues. {Slip Opn. Page 3}

Ex Post Facto Clause and Due Process

Forrester acknowledges our analysis in Sweet and other precedent. Ex
post facto laws (1) criminalize formerly innocent actions after their
commission; (2) aggravate a crime after its commission; (3) increase
the punishment associated with the crime after its commission; or (4)
alter the legal rules of evidence required to convict the offender. (
Miller v. Florida (1987) 482 U.S. 423, 429; Sweet , supra , 207
Cal.App.3d at p. 82.) "Statutes enacting punishment for a defendant
convicted of violating section 23152 with prior convictions do not
have the effect of being ex post facto laws. [Citations.] It is the
law in effect at the time of commission of the offense which controls.
[Citations.]" ( Sweet , at p. 82.)

In 2006, when Forrester committed the current DUI offense, the law
provided that an individual with prior section 23103.5 convictions
within the last 10 years would be subject to enhanced punishment if
convicted of violating section 23152, subdivision (a). (§§ 23540,
23546 & 23550.) "There is no constitutional bar preventing application
of the statute to later offenses solely because the prior conviction
which serves as a basis for enhancement was committed before the
habitual offender statute was enacted." ( Sweet , supra , 207
Cal.App.3d at p. 83.) The crime Forrester is punished for is not the
prior conviction, "but the subsequent offense of which the prior
conviction constitutes only one element. [Citation.]" ( Ibid .)

Courts have routinely rejected ex post facto challenges to statutes
that increase penalties for recidivism. Courts reason that the
sentence imposed upon a habitual offender is not an additional
punishment for the earlier crime, but a punishment for the later
crime, which is aggravated because of its repetitive nature. (See,
e.g., Gryger v. Burke (1948) 334 U.S. 728, 732; People v. Snook (1997)
16 Cal.4th 1210 , 1221; People v. Eribarne (2004) 124 Cal.App.4th 1463
, 1469 [three strikes law]; People v. Wohl (1991) 226 Cal.App.3d 270 ,
273 [rejecting ex post facto contention where DUI conviction is
elevated to felony on fourth conviction].). Additionally, it is well
established that even expungement of a conviction will not eliminate
all consequences associated with that conviction. ( People v. Jacob
(1985) 174 Cal.App.3d 1166 , 1173.) {Slip Opn. Page 4}

Forrester argues that Sweet is no longer good law because Stogner v.
California, supra, 539 U.S. 607, compels a different result. In
Stogner , the State of California attempted to revive the statute of
limitations for the crime of child molestation after the original
statute of limitations had expired. The United States Supreme Court
held that California was barred from doing so because the new statute
of limitations attached criminal liability "'. . . where the party was
not, by law, liable to any punishment .'" ( Id. at p. 613.)

The Appellate Division correctly noted the difference between reviving
a prosecution in its entirety after the statute of limitations has
run, and enhancing the sentence in a new criminal prosecution stemming
from new criminal conduct. Here Forrester's prosecution stems from a
law that became effective more than one year before the date of his
arrest, and one that apprised him of the possible consequences of a
new violation. Unlike Stogner , Forrester has not been charged with a
crime for which the statute of limitations has run. He has not been
deprived of a "vested defense" because the statute extending the
maximum period of prior offenses was enacted before the current
offense. (See Sweet , supra , 207 Cal.App.3d at pp. 82, 86.)

Violation of Forrester's 1997 Plea Agreement and Estoppel

Forrester next contends that the plea agreement he signed in 1997 is a
contract in which the district attorney promised he would receive an
enhanced sentence only for DUI offenses committed within seven years.
He relies on language in the plea form stating that the court and
counsel advised him of the elements of the offense, the possible
defenses, and the direct consequences of his plea, including the
minimum and maximum sentences listed on a chart appearing on the
second page of the plea form. A chart lists the penalties for DUI
convictions effective January 1, 1994, depending upon the number of
prior DUI offenses committed within the previous seven years. The
chart simply provides information concerning the relevant law at that
time. No language in the plea agreement, nor any evidence supports the
contention that Forrester relied on the information in the chart in
entering his plea. Nor would such reliance have been reasonable. {Slip
Opn. Page 5}

For these reasons, there is no merit to Forrester's contention the
state is estopped from using his 1997 conviction. (See Hair v. State
of California (1991) 2 Cal.App.4th 321 , 328-329.)

The judgment is affirmed.

Yegan, J., and Coffee, J., concurred.

­ FN 1. All statutory references are to the Vehicle Code.

­ FN 2. Section 23540 currently provides in part: "If a person is
convicted of a violation of Section 23152 and the offense occurred
within 10 years of a separate violation of Section 23103, as specified
in Section 23103.5, 23152, or 23153, that resulted in a conviction,
that person shall be punished by imprisonment in the county jail for
not less than 90 days nor more than one year and by a fine of not less
than ($390) nor more than ($1000)." Section 23546 provides for
additional punishment if a person has two prior qualifying convictions
(e.g., "wet reckless" driving convictions).


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