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People v. Smith6/23/2004
Donald Smith (defendant) asserts that his conviction for felony driving under the influence was barred by the double jeopardy clauses of the state and federal Constitutions. We agree, and we therefore reverse his felony conviction and reinstate his conviction on a misdemeanor charge arising out of the same incident.
FACTUAL AND PROCEDURAL HISTORY
On June 27, 2002, defendant was arrested for driving under the influence of alcohol and was cited for misdemeanor violations of Vehicle Code section 23152, subdivisions (a) and (b) (case No. TBA043452). On December 11, 2002, defense counsel entered defendant's plea of nolo contendere to count two of the citation, a violation of Vehicle Code section 23152, subdivision (b). Defendant had entered into a plea bargain for a sentence of 30 days in jail, with credit for 30 days already served for the offense as a parole violation. The court immediately imposed sentence.
Later the same day, "it came to the DA's attention" that defendant had a prior driving under the influence conviction in Iowa, thus rendering his current offense a felony. (Veh. Code, § 23550.5.) The court purported to void and set aside defendant's plea to the misdemeanor, and set the arraignment on the felony complaint for December 12, 2002. The felony complaint also charged violations of Vehicle Code section 23152, subdivisions (a) and (b), and was based on the same incident as the misdemeanor complaint.
On December 12, 2002, defendant entered pleas of double jeopardy and not guilty to the felony complaint. He objected to the arraignment on grounds of double jeopardy. The court entered both pleas and overruled the objection to the arraignment.
On December 17, 2002, defendant entered a plea of nolo contendere to count 2 of the felony complaint (Veh. Code, § 23152, subd. (b)), pursuant to a written plea agreement. He was sentenced to the low term of 16 months, as agreed. The court gave him credit for 257 days served and dismissed the remaining felony count. The court dismissed the misdemeanor complaint as "subassumed by the felony case."
Defendant filed a timely notice of appeal from the felony judgment, and the court issued a certificate of probable cause.
DISCUSSION
"The Fifth Amendment to the United States Constitution provides that ` o person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . . ' This guarantee is applicable to the states through the Fourteenth Amendment. (Benton v. Maryland (1969) 395 U.S. 784, 794 [23 L.Ed.2d 707, 715-716, 89 S.Ct. 2056], overruling Palko v. Connecticut (1937) 302 U.S. 319 [82 L.Ed.2d 288, 58 S.Ct. 149].) Similarly, article I, section 15, of the California Constitution provides: `Persons may not twice be put in jeopardy for the same offense . . . .'" (People v. Saunders (1993) 5 Cal.4th 580, 592-593.) Double jeopardy applies both to multiple convictions and to multiple punishments for the same criminal act. (See generally People v. Hernandez (2003) 30 Cal.4th 1, 8, and cases cited therein.)
Defendant contends that because jeopardy attached upon the entry of the nolo contendere plea to the misdemeanor, the court's actions in voiding the plea and proceeding on the felony complaint violated his constitutional right not to be put twice in jeopardy. Defendant also contends that double jeopardy principles forbid increasing a sentence once execution of the sentence has commenced. Respondent contends that defendant waived or abandoned the double jeopardy defense. Respondent also argues that jeopardy did not attach because the nolo contendere plea in the misdemeanor case had not yet been entered in the minutes
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