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People v. Leahy10/4/2004
various terms and conditions, including that the defendant serve 364 days in jail. In 1994, after the defendant had successfully complied with the terms of his probation for three years, the trial court ruled defendant's 1991 conviction to be a misdemeanor for all purposes. In 1998, defendant was charged with violating section 23152, and it was further alleged that the current offense was a felony under former section 23175.5, now section 23550 .5. The defendant was ultimately convicted of the section 23152 offense and the court found true the allegation that the defendant had suffered a felony conviction under former section 23175.5. (Camarillo, supra, 84 Cal.App.4th at pp. 1388-1389.)
On appeal, the issue was whether the prior section 23153 conviction could still be charged as a prior felony conviction under former section 23175.5. (Id. at p. 1389.) Former section 23175 .5 provided that a new section 23152 conviction would be elevated to a felony if the defendant had a " 'prior violation ... that was punished as a felony.' " (Id. at p. 1390.) The appellate court agreed with the Attorney General that defendant's grant of felony probation indicated that he was originally "punished as a felony." (Id. at p. 1390.) However, after reviewing the legislative history of former section 23175.5, the appellate court found the Legislature intended the statute to differentiate between felony convictions and misdemeanor convictions, and to preclude the use of wobbler offenses that did not also result in felony convictions. Because the trial court in 1994 ruled that the defendant's 1991 conviction must be treated henceforth as a misdemeanor for all purposes, the prosecutor was precluded from using the 1991 offense to elevate the defendant's new conviction to a felony. (Id. at pp. 1392-1393.)
Current section 23550.5 creates a felony offense for a new section 23152 conviction within 10 years of a "prior violation of section 23153 punished as a felony." (§ 23550.5, subd. (a)(2).) Because defendant was granted felony probation for his prior Santa Cruz County section 23153 conviction, defendant's prior violation was punished as a felony, and it remained a felony for all purposes. Section 23550.5 replaced former section 23175.5, effective July 1, 1999, pursuant Senate Bill No. 1186. (Stats.1998, ch. 118, §§ 41.5, 84, 85.) The Legislative Counsel's Digest of Senate Bill No. 1186 states that the bill simply reorganized specified provisions relating to driving under the influence offenses but did not make any substantive changes to the law. (No. 4 West's Cal. Legis. Service, p. 539.) Thus, section 23550.5, like former section 23175.5, does not preclude the use of defendant's prior section 23153 offense to elevate defendant's new conviction to a felony just because he was granted felony probation for the prior offense.
*5 The trial court did not err in finding that defendant had a prior section 23153 conviction within the meaning of section 23550.5, subdivision (a). The documentary evidence presented by the prosecutor constitutes substantial evidence to support the trial court's finding that defendant had a prior section 23153 conviction within the meaning of section 23550.5, subdivision (a). As defendant's motion to withdraw his plea was based solely on his claim that he mistakenly believed that he had a prior section 23153 conviction within the meaning of section 23550.5, the trial court did not abuse its discretion in finding that defendant did not show good cause to withdraw his plea. (Pen.Code, § 1018; People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)
DISPOSITION
The judgment is affirmed.
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