 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
People v. Benitez4/6/2004
THE COURT
A jury convicted appellant, Roberto Mejia Benitez, of one count each of driving under the influence of alcohol (count I/Veh. Code, § 23152, subd. (a)), and driving with a blood alcohol content of .08 percent or greater (count II/§ 23152, subd. (b)). In a separate proceeding, Benitez admitted allegations pursuant to section 23550.5 that on July 11, 2001, he was convicted of driving with a blood alcohol content of .08 percent or more causing injury in violation of section 23153, subdivision (b). On April 17, 2003, the court sentenced Benitez to the aggravated term of three years on count I, a concurrent three-year term on count II, and a concurrent two-year term in case No. 1026087. On appeal, Benitez contends: 1) the evidence is insufficient to sustain the court's finding that he had a prior conviction within the meaning of section 23550.5, and 2) his sentence violates Penal Code section 654's prohibition against multiple punishment. We will find merit to this last contention. In all other respects we will affirm.
FACTS
The evidence at trial established that on December 28, 2002, the car Benitez was driving struck another car in Turlock. Benitez had a blood alcohol content of .27 percent at the time.
DISCUSSION
The Sufficiency of Evidence Issue
Ordinarily, driving under the influence in violation of section 23152, subdivisions (a) or (b) is punishable only as a misdemeanor. (§ 23536/Pen. Code, § 17.) However, section 23550.5, in pertinent part, allows a section 23152 violation to be elevated to a felony if the 23152 violation occurred within 10 years of a "prior violation of Section 23153 that was punished as a felony. . . ." (Emphasis added.)
Benitez's convictions were elevated to felonies because he admitted allegations pursuant to section 23550.5 that he had a prior conviction for violating section 23153, subdivision (b), i.e., driving with a blood alcohol content of .08 or greater causing injury.
Benitez contends that there was no evidence that his prior conviction for violating section 23153, subdivision (b) was punished as a felony or that it maintained that status at the time of his present convictions. Thus, according to Benitez, since there was no evidence that this offense was punished as a felony, as required by section 23550.5, his current convictions for violating section 23152, subdivisions (a) and (b) must be reduced to misdemeanors. We will reject these contentions.
On March 17, 2003, prior to the taking of testimony, the following colloquy occurred when the court took Benitez's admission of the prior conviction allegations:
"THE COURT: Do you admit or deny that on July 11th, 2001, that you were convicted of a Vehicle Code violation 23153 (b) which is driving while - with .08 percent or more of blood alcohol in your system and causing injury to another person, do you admit or deny that conviction?
"[PROSECUTOR]: Your Honor, I think it has to be on the record that it's a felony.
"THE COURT: Okay. It's a felony conviction. [ ] . . . [ ]
"[THE DEFENDANT]: I admit."
"In reviewing a criminal conviction challenged as lacking evidentiary support, ` "the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." ' [Citation.] The same standard of review applies to cases in which the prosecution relies mainly on circumstantial evidence [citation], and t
Page 1 2 California DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|