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People v. Reagan6/24/2002
he Vehicle Code, that did not change. Only the code section references were modified. The Legislature's failure to include former sections 23175 and 23175.5 in 23550.5 is, therefore, both surprising and ambiguous. Either the Legislature intended to immunize all individuals committing violations of section 23152 between July 1, 1999 and October 10, 1999 from felony treatment under section 23550.5, or it simply overlooked the fact that the former code sections needed to be included in the new provision." (People v. Superior Court (Blanquel), supra, 85 Cal.App.4th at p. 772.)
As the court stated, "It seems to us unlikely that the Legislature intended to turn into lottery winners offenders who happened to commit their offenses during a lucky 100-day window of time. And the legislative history confirms our impression . . . ." (People v. Superior Court (Blanquel), supra, 85 Cal.App.4th at p. 772.) The court then set out the legislative history of the enactment of section 23550.5, including the Legislative Counsel's Digest comment that "`Existing law makes it a crime to drive a vehicle under the influence of alcohol . . . . [ ] This bill, the provisions of which would become operative on July 1, 1999, would reorganize specified provisions relating to the above described driving under the influence offenses without making any substantive changes to those provisions.' [Citation.]" (Id. at p. 772.)
When section 23550.5 was amended to include former sections 23175 and 23175.5, the legislative counsel stated the amendment included "`technical changes' necessary to `correct cross-references to other provisions of law.' [Citation.] Thus, the legislative purpose is . . . pellucid: reorganization, not change." (People v. Superior Court (Blanquel), supra, 85 Cal.App.4th at p. 772.)
The court rejected the defendant's claims of violations of constitutional ex post facto proscriptions and due process right to fair notice. In this case, defendant essentially characterizes Blanquel reasoning as permitting the Legislature to create post-enactment ambiguity for the courts to apply, constituting no less a violation of ex post facto prohibitions than a legislative enactment explicitly stating an intent to retroactively change the law. As the Blanquel court observed, "We do not see it that way. [Defendant] cannot credibly claim he is surprised by our explication of the law. The existence of prior felony convictions has always been considered an aggravating factor when a new offense is committed. And, as we have indicated, there is simply no evidence to suggest a radical departure from that basic principle was intended here." (People v. Superior Court (Blanquel), supra, 85 Cal.App.4th at p. 772.)
Adopting the Blanquel court's reasoning, we reject defendant's claim that the originally enacted section 23550.5 was not ambiguous. (People v. Coronado (1995) 12 Cal.4th 145, 151 [if application of the normal rule of statutory construction would lead to an absurdity or thwart the Legislature's manifest will, courts must interpret the law in a way which avoids the absurdity and is consistent with the legislative design]; People v. Pieters (1991) 52 Cal.3d 894, 899 [a statute must be read with reference to the entire scheme of law of which it is a part in a manner which harmonizes the whole and retains its effectiveness].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
We concur:
SPENCER, P.J.
VOGEL (Miriam A.), J.
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