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People v. Enriquez4/29/2004
Appellant, Arturo Macias Enriquez, pled guilty in the instant case (No. 1042009) to possession of heroin (Health & Saf.Code, § 11350), driving under the influence of alcohol and drugs (Veh.Code, § 23152, subd. (a)), being under the influence of heroin (Health & Saf.Code, § 11550, subd. (a)), and possession of a controlled substance pipe (Health & Saf., Code, § 11364). Enriquez also admitted an on-bail enhancement (Pen.Code, § 12022.1) [FN1] and allegations that he had three prior convictions within the meaning of the three strikes law (§ 667, subds.(b)-(i)). On appeal, Enriquez contends: 1) the court abused its discretion when it failed to place him on Proposition 36 probation; and 2) it erred in its award of presentence custody credit. Respondent contends the court abused its discretion when it struck two of Enriquez's prior strike convictions. We will find merit in Enriquez's second contention. In all other respects, we will affirm.
FN1. Unless otherwise indicated, all further statutory references are to the Penal Code.
FACTS
On May 14, 2002, Enriquez was driving a car in Modesto when he fell asleep and struck a concrete pole. Enriquez told the police officer who responded to the scene that he was driving home after smoking cocaine base and injecting heroin. The officer noticed that Enriquez's eyes were bloodshot and watery, his pupils were constricted, and his speech was slurred. The officer also found a found a glass pipe in the car's ashtray. While Enriquez waited to be transported to the hospital, a paramedic alerted the officer to a black substance lying on Enriquez's left leg next to a pack of cigarettes. The officer confiscated the substance, which was later determined to be .14 grams of black tar heroin. A blood test disclosed that Enriquez had a blood alcohol content of .03 percent and tested positive for the metabolites of heroin and cocaine.
On February 7, 2003, Enriquez's defense counsel made a motion to sever the driving under the influence charge from the other charges in order to make Enriquez eligible for probation pursuant to Proposition 36. However, after the court denied the motion, Enriquez entered his plea in this matter.
On March 28, 2003, the court struck two of Enriquez's strike convictions in the instant case.
On April 2, 2003, in a different case, No. 1040265, Enriquez pled guilty to possession of methamphetamine and driving with a revoked license and admitted allegations that he had three prior convictions within the meaning of the three strikes law. Further, after the court struck two of Enriquez's prior strike convictions in that case the court sentenced him to an aggregate term of seven years four months in both cases as follows: the middle term of two years on his possession of heroin conviction, doubled to four years because of the prior strike conviction, a consecutive sixteen-month term on his possession of methamphetamine conviction (one-third the middle term of two years doubled from eight months to sixteen months because of the prior strike conviction), a two-year on bail enhancement, and concurrent terms on the remaining counts.
DISCUSSION
The Failure to Place Enriquez on Proposition 36 Probation
*2 Enriquez contends that driving under the influence (DUI) is an offense "related to the use of drugs." Thus, according to Enriquez his conviction for that offense should not have precluded him from being placed on Proposition 36 probation. We disagree.
Proposition 36 was adopted by the voters of California in November 2000 and, in general, mandates probation without incarceration for specified drug offenses. Under Proposition 36, a trial court must grant probation to a defendant convicted of a "nonviolent drug possession offense[ ]" unless the defendant is disqualified from p
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