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People v. Madrigal4/29/2005
Jose Almanza Madrigal (defendant) appeals his conviction arguing that 1) the evidence was insufficient to sustain a felony charge under Vehicle Code section 23550 based on the fact that there is no evidence in the record that one of the alleged prior DUI violations occurred within seven years of the conviction in this case; 2) he was denied due process when the trial court relied on an unpled prior to support his sentence pursuant to Vehicle Code section 23550; and 3) his sentence to the upper term violates Blakely v. Washington (2004) 124 S.Ct. 2531 because the court's finding that defendant had prior convictions was not made by a jury. We affirm.
PROCEDURAL BACKGROUND
On July 2, 2003, an information was filed in Tulare County Superior Court alleging that defendant committed the following crimes: 1) driving a vehicle while under the influence of alcohol with three prior driving-under-the-influence convictions (Veh. Code, §§ 23152, subd. (a) & 23550) (count one); 2) driving a vehicle with a blood alcohol level of .08 or higher, also with three prior driving-under-the-influence convictions (Veh. Code, §§ 23152, subd. (b) & 23550) (count two); and 3) driving with a suspended license for prior convictions of driving under the influence with three prior convictions of driving without a license (Veh. Code, § 14601.2) (count three). The information also alleged that, with respect to counts one and two, defendant was ineligible for probation pursuant to Penal Code section 1203, subdivision (e)(4), and that, as enhancements, defendant had served two prior prison terms for felony convictions of driving under the influence pursuant to Penal Code section 667.5, subdivision (b).
The three prior prison terms alleged with respect to counts one and two were as follows: 1) a conviction on April 4, 2001, in Tulare County, case No. 70587; 2) a conviction on August 17, 1998, in Tulare County, case No. 92154; and 3) a conviction on November 26, 1996, in Tulare County, case No. 84065.
Defendant was found guilty by a jury on all three counts. A bench trial on the prior convictions resulted in the court finding the prior convictions and special allegations to be true. Later, the court denied defendant probation and sentenced him to a term of five years in state prison.
FACTUAL BACKGROUND
The facts of this case are not in dispute and are drawn from the probation report, which states: "Records of the Porterville Police Department indicate [that] on May 10, 2003, at approximately 9:11 p.m., officers responded to a call regarding a reckless driver in the area. The witness indicated she observed the defendant speeding, losing control and nearly hitting her parked car. Officers contacted the defendant who displayed objective signs of being under the influence of alcohol, and after a search of his vehicle officers located an open beer container, as well as an unopened beer container. A breath test confirmed the defendant's blood alcohol content was .19%."
DISCUSSION
I. Evidence of prior convictions
On appeal, defendant contends there was insufficient evidence to establish that he suffered three prior convictions within seven years of his present conviction. Specifically, he notes that his DUI offense in this case occurred on May 10, 2003, and consequently, pursuant to Vehicle Code section 23550, his three prior DUI convictions must have occurred no earlier than May 10, 1996. However, one of the priors alleged in the information (case No. 84065) does not have a date of offense, but only a date of conviction November 26, 1996. Defendant argues that because the People failed to provide any information about th
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