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People v. Emerson11/18/2004
Defendant Robert Francis Emerson was arrested after driving erratically and failing field sobriety tests. He subsequently was convicted of driving under the influence of alcohol and driving on a suspended license.
On appeal, defendant contends that the court erred in imposing the upper term of three years on the principal offense of driving under the influence (DUI) with a prior DUI conviction in the previous 10 years. We disagree and affirm the judgment.
FACTS AND PROCEEDINGS
A jury found defendant guilty of driving under the influence (Veh .Code, §§ 23152, subd. (a), 23550.5--count one), and driving with a blood-alcohol level in excess of .08 percent, with a prior felony DUI conviction (Veh.Code, §§ 23152, subd. (b), 23550.5--count two).
Before trial, defendant pleaded no contest to two counts of misdemeanor driving on a suspended license arising from the same incident: for driving when his license had been suspended for a prior DUI (Veh.Code, § 14601.2, subd. (a)--count three) and driving when his license had been suspended or revoked for other reasons (Veh.Code, § 14601.1, subd. (a)--count four). Following the jury verdicts, defendant admitted allegations he suffered a prior prison term and a prior felony DUI conviction in 2000.
On parole at the time of these offenses defendant has an extensive criminal history. The probation report prepared prior to sentencing shows that, not only was his driver's license suspended or revoked on nine occasions for driving under the influence of alcohol or drugs between 1985 and 2003 (the instant offenses), but defendant was convicted in 1975 of grand theft; in 1976 of burglary and receiving stolen property; in 1977 of driving under the influence (a wet/reckless); in 1978 of theft; in 1979 of trespassing; in 1980 of possessing marijuana for sale; in 1992 of felony driving under the influence; twice in 2000 of felony driving under the influence.
The probation report recommended the court select count one as the principal offense, and that it impose the applicable upper term of three years (Pen.Code, § 18) in view of the aggravating circumstances that defendant "has a significant prior record of criminal conduct involving a pattern of driving under the influence of alcohol, as well as property-related offenses" (Cal. Rules of Court, rule 4.421(b)(2); further references to rules are to the California Rules of Court); has served three prior prison terms (rule 4.421(b)(3)); was on parole for felony driving under the influence when he committed the instant offenses (rule 4.421(b)(4)); and his prior performance on probation and/or parole "was unsatisfactory" (rule 4.421(b)(5)). No circumstances in mitigation were identified in the probation report.
At the sentencing hearing, defense counsel urged the court to impose the middle term, noting that "much of [defendant's] prior felony record is made up of DUI's, and to some extent that is already taken into account by virtue of the fact that he has been charged with a felony. If he didn't have that record, he would be charged with a misdemeanor. So to some extent, he's already been punished for that.... [ ] ... [ ] It may be tempting to look at the prior DUI's and say he deserves high term, but once again I believe that already is taken into the equation."
The court rejected counsel's argument, explaining: "[T]urn[ing] to the aggravating factors opposed to the mitigating factors as listed in the report at page 30[:][ ] It talks about facts relating to the defendant. [Defense counsel] points out that the prior convictions, many--well, some of them were listed as the basis for the felony DUI, although in reviewing the report I do note starting back in 1975 with grand theft, receiving stolen property, there were many other offenses there, many thef
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