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People v. Lujan2/18/1983
means of committing a public offense . . . . [Citations omitted]." (Italics added.)
The fact that a general intent criminal statute provides for a presumption of the requisite criminal intent merely from the doing of the act which the law declares to be a crime, (even though the defendant may not know that his act or conduct is unlawful), does not make such a statute a strict liability offense. Rather, such a statute simply shifts the criminal intent. Evidence Code section 668, provides that with regard to general criminal intent crimes, an unlawful intent is presumed from the doing of the unlawful act. Such presumption has the legal effect of being a conclusive presumption because it is settled that " constitute general criminal intent it is not necessary that there should exist an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent even though he may not know that his act or conduct is unlawful." (See CALJIC No. 3.30 (1979 Rev.).)
For these reasons, we have concluded that section 23152 is not an invalid strict liability criminal statute, but rather is a general intent statute. The statute
is valid even though it only describes the prohibited act without reference to any intent to do a further act or to achieve a future consequence.
C.
The appellants next contend that the new statute in itself does not inform a defendant that a prior conviction under former Vehicle Code section 23102(a) will be considered as a prior offense for the purpose of enhancement of penalty under sections 23152, 23165 and 23170. Therefore, the enhancement of penalty aspects of such statute constitutes an unconstitutional ex post facto law and also violates the due process requirement of the United States and California Constitutions as to notice.
The respondent answers those contentions by pointing out that when the Legislature enacted the new section 23152, along with sections 23165 and 23170, it also provided in pertinent part as follows:
"Any reference in the provisions of the Vehicle Code to a prior offense of section 23152 shall include a prior offense under 23102 or 23105, as those sections read prior to January 1, 1982." (Stats. 1981, ch. 940, § 45, subd. (b), p. 3582.)
The respondent argues that by enacting all of these various sections at the same time as a part of chapter 940 of the 1981 Statutes, the Legislature clearly demonstrated its intention to include prior section 23102(a) convictions for purposes of the enhancement aspects of sections 23152, 23165, and 23170. We agree. Any other conclusion would be ludicrous.
Former Vehicle Code section 23102, subdivision (b) provides for an enhancement of penalty for the conviction of a second or subsequent offense within seven years of a prior conviction whereby even if the defendant was granted probation on the second or subsequent offense, as a condition of probation, such defendant was required to be confined in jail for at least five days, but not more than one year and to also pay a fine of at least $250 but not more than $1,000.
The new Vehicle Code section 23152 does not in itself provide for any enhancement of penalty for any subsequent convictions of the same offense. However, the new Vehicle Code section 23165 does provide for an enhancement of penalty for subsequent convictions of violations of section 23152. Section 23165 provides that if a person is convicted of a violation of sect
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