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People v. Reed11/16/2004
for all purposes, including use as a prior conviction." Defendant was convicted of both driving under the influence of alcohol and causing bodily injury (Veh.Code, § 23153, subd. (a)), and driving with a blood-alcohol level of .08 percent or greater and causing injury (Veh.Code, § 23153, subd. (b)), based upon the same act or occurrence. The trial court stayed the upper term imposed on Count 3 pursuant to Penal Code section 654, but defendant maintains that the abstract of judgment must be amended to reflect that the stay must be "for all purposes" to prevent "possible future use of Count 3." The Attorney General concedes the error and the necessity of amendment of the abstract of judgment. While we agree that pursuant to Penal Code section 654 a conviction that has been stayed to prevent multiple punishment generally cannot be used to enhance any future sentence imposed upon the defendant or for any other punitive purpose, a critical exception to the rule has been recognized: the Legislature may "explicitly" declare or authorize "the designation of such prior felony convictions as separate priors for purposes of determining the appropriate sentence following a subsequent conviction." (People v. Benson (1998) 18 Cal.4th 24, 29; see also People v.. Sanchez (2001) 24 Cal.4th 983, 993; People v. Pearson (1986) 42 Cal.3d 351, 361; People v. Haney (1994) 26 Cal.App.4th 472, 476-477; People v. Duarte (1984) 161 Cal.App.3d 438, 447.) [FN11] We therefore decline to amend the abstract of judgment to prohibit all future use of the stayed conviction on Count 3, leaving that determination to a "future court" in the event defendant reoffends and a subsequent sentence is imposed upon him. (People v. Ortega (2000) 84 Cal.App.4th 659, 667-668.)
FN11. Thus, the court in People v. Benson, supra, 18 Cal.4th 24, 31, concluded: "In our view, the language of section 1170.12, subdivision (b)(1), unequivocally establishes that the electorate intended to qualify as separate strikes each prior conviction that a defendant incurred relating to the commission of a serious or violent felony, notwithstanding the circumstance that the trial court, in the earlier proceeding, may have stayed sentence on one or more of the serious or violent felonies under compulsion of the provisions of section 654." (See also People v. Johnson (2002) 28 Cal.4th 240, 245, fn. 3; People v. Hester (2000) 22 Cal.4th 290, 296-297.)
IV. The Imposition of Upper and Consecutive Terms.
In a supplemental brief, defendant argues that under the recent United States Supreme Court decision in Blakely v. Washington (2004) 542 U.S. --- [159 L.Ed.2d 403, 124 S.Ct. 2531] (Blakely ), the trial court erred by imposing upper and consecutive terms on the basis of neither admissions by him nor findings made by the jury beyond a reasonable doubt. He maintains that for purposes of the Blakely opinion the "statutory maximum" sentence which cannot be exceeded without a finding by the jury and proof beyond a reasonable doubt is limited to middle or concurrent terms of imprisonment. Therefore, he complains that imposition of upper and consecutive terms upon him violated his constitutional rights as defined in Blakely. [FN12]
FN12. We are of course aware that the effect of Blakely, supra, 124 S.Ct. 2531, on California sentencing law is already before the California Supreme Court in People v. Black, S126182, and People v. Towne, S125677.
We first dispose of respondent's contention that defendant waived any claim of Blakely error by failing to "request a jury determination or otherwise object to the reasons the court gave for the sentence." "Claims of error relating to sentences 'which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner' are waived
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