People v. Andrade2/22/1983
California Appellate Department, Superior Court
Crim. A. No. 19879
190 Cal.Rptr. 738, 1983.CA.41056
February 22, 1983
THE PEOPLE, PLAINTIFF AND APPELLANT,
v.
PEDRO JAVIER ANDRADE, DEFENDANT AND RESPONDENT
Municipal Court for the Southeast Judicial District of Los Angeles County, No. M-97993, Russell F. Schooling, Judge.
Robert H. Philibosian, District Attorney, Donald J. Kaplan and Arnold T. Guminski, Deputy District Attorneys, for Plaintiff and Appellant.
Ira Reiner, City Attorney, and Jack L. Brown, Deputy City Attorney, as Amici Curiae on behalf of Plaintiff and Appellant.
Wilbur F. Littlefield, Public Defender, Laurence M. Sarnoff, Sharyn Sala and Albert J. Menaster, Deputy Public Defenders, for Defendant and Respondent.
Opinion by Rothman, J., with Foster, Acting P. J., and Jones, J., concurring.
Rothman
Defendant was accused of violating Vehicle Code section 23152, subdivision (a) (driving under the influence of an alcoholic beverage) on
January 9, 1982, with a prior conviction in 1980 of former Vehicle Code section 23102, subdivision (a). Defendant moved to strike the alleged prior conviction on the ground that Vehicle Code section 23102 did not constitute a valid prior conviction for purposes of enhanced punishment pursuant to Vehicle Code sections 23165 and 23166 and could not, therefore, be considered as such in the instant case. Based on this reasoning, the trial court declared the alleged 1980 prior conviction constitutionally invalid for the purpose of sentencing only, and the People have appealed.
In 1981 the Legislature enacted major revisions of the laws relating to drinking and driving (ch. 940, Stats. 1981), which revisions became effective on January 1, 1982. Significant alterations in many provisions of the Vehicle Code were made, and many sections were renumbered. Before the 1981 revisions, Vehicle Code section 23102 read as follows: "(a) It is unlawful for any person who is under the influence of intoxicating liquor, or under the combined influence of intoxicating liquor and any drug, to drive a vehicle upon any highway." Chapter 940 of the Statutes of 1981 caused this section to be renumbered as Vehicle Code section 23152 and slightly modified the wording to the following: "(a) It is unlawful for any person who is under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug, to drive a vehicle."
Accordingly, the offense embodied in Vehicle Code section 23102, subdivision (a) was not substantially changed by the legislative enactment in 1981 of Vehicle Code section 23152, subdivision (a).
In addition, the 1981 legislation made certain substantive changes. Before 1981, Vehicle Code section 23126 provided what has been called a rebuttable presumption of being under the influence of intoxicating liquor where a driver's blood alcohol was shown to be .10 percent or above. As a result of the legislation in 1981, the rebuttable presumption was eliminated, and it is now unlawful for a person to drive a vehicle with .10 per
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