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THE PEOPLE, Plaintiff and Respondent,
v.
LINDOL M. ATKINS, III, Defendant and Appellant.

No. G055294.

Court of Appeals of California, Fourth District, Division Three.
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Filed January 31, 2019.

Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 15HF0138, Karen, L. Robinson, Judge. Affirmed in part, reversed in part and remanded with directions.
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Kendall Dawson Wasley, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Kristine Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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OPINION

BEDSWORTH, J.
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Appellant was convicted by jury of two counts of drunk driving. In a bifurcated proceeding, the trial court found appellant had suffered two prior felony convictions for drunk driving, a finding that elevated his current offenses to felonies. Appellant contends there is insufficient evidence to support the court's true findings on the prior felony conviction allegations, and respondent agrees, albeit for different reasons. We therefore reverse those findings, vacate appellant's sentence and remand for further proceedings. In all other respects, we affirm the judgment.

PROCEDURAL BACKGROUND
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In 2015, appellant was charged with driving under the influence (DUI) and driving with a blood alcohol content of .08 percent or higher. (Veh. Code, §§ 23152, subds. (a) & (b).)[1] It was also alleged he had sustained two prior felony convictions for DUI within 10 years (§ 23550.5, subd. (a)(1)) and served prison terms for those convictions (Pen. Code, 667.5, subd. (b)).

Following appellant's conviction on the underlying charges, the trial court held a hearing to determine the truth of the prior allegations. At the hearing, the prosecution presented evidence that in 2007, and then again in 2011, appellant was convicted by guilty plea in Vermont for DUI, with three prior convictions for that offense. The record of appellant's 2007 and 2011 convictions does not reveal the factual basis for his guilty pleas. But it does show he pleaded guilty to the separate offense of negligently operating a vehicle as part of his 2007 case.
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After scrutinizing the 2007 and 2011 convictions, the trial court was unable to determine whether appellant actually served time in prison for them. It therefore found the prior prison term allegations not true. However, the court was convinced beyond a reasonable doubt the prior felony conviction allegations were true, and based on that finding, it treated appellant's current convictions as felonies. The court sentenced appellant to three years in prison on the DUI count and stayed sentencing on the remaining count pursuant to Penal Code section 654.

DISCUSSION
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The parties agree there is insufficient evidence to support the trial court's true findings on the prior felony conviction allegations, but they disagree as to why that is so. Because the precise reason for the insufficiency is important for purposes of the proceedings on remand, we will examine that issue in some detail.

Appellant was convicted in the present case of DUI and driving with a blood alcohol content of .08 percent or higher. (§§ 23152, subds. (a) & (b).) Those crimes are punishable as misdemeanors for first-time offenders. (§ 23536, subd. (a).) However, they can be punished as a felonies if, within 10 years of their commission, the defendant suffered a prior felony conviction for DUI. (§ 23550.5, subd. (a)(1).) For purposes of this sentencing scheme, the prosecution must prove the defendant's prior DUI conviction was actually "punished as a felony." (Ibid.) And, if the prior occurred in another state, it must satisfy all the elements for DUI under California law. (§ 23626; People v. Crane (2006) 142 Cal.App.4th 425, 433 (Crane).)
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With respect to the second requirement, the record shows that in his 2007 and 2011 cases, appellant pleaded guilty to DUI pursuant to 23 Vermont Statutes Annotated section 1201. Under that statute, a person is under the influence of alcohol if it impairs their faculties to the slightest degree. (State v. Perley (2015) 200 Vt. 84, 93.) In comparison, the California DUI law requires impairment to an appreciable degree, meaning it is narrower than the crime to which appellant pleaded guilty. (Crane, supra, 142 Cal.App.4th at p. 432.) That being the case, the simple fact appellant was convicted of violating 23 Vermont Statutes Annotated section 1201 is insufficient to prove those convictions qualified as DUI's under California law. (Ibid.) The Attorney General concedes this point and admits it mandates reversal of the trial court's true finding on the 2011 prior felony conviction allegation.

The analysis of appellant's 2007 DUI conviction is a bit more complicated, due to the accompanying charges to which appellant pleaded guilty in that case. Those charges are relevant because, in determining whether a foreign DUI conviction meets the requirements for a DUI conviction in California, the trial court may consider the entire record of conviction, including the pertinent charging documents. (Crane, supra, 142 Cal.App.4th at p. 433; People v. Gonzales (2005) 131 Cal.App.4th 767, 773.) In so doing, the court is not entitled to engage in judicial factfinding. Indeed, such factfinding violates the constitution because "`[t]he Sixth Amendment contemplates that a jury — not a sentencing court — will find' the facts giving rise to a conviction, when those facts lead to the imposition of additional punishment under a recidivist sentencing scheme. [Citation.]" (People v. Gallardo (2017) 4 Cal.5th 120, 134 [error for trial court to interpret facts from preliminary hearing in deciding whether appellant's prior conviction constituted a serious felony].) But the sentencing court may consider any and all facts encompassed in the defendant's guilty plea. (Id. at pp. 136-138.)
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The latter point is important here because when appellant pleaded guilty to DUI in Vermont in 2007, he also pleaded guilty to negligently operating a vehicle on the same day as his DUI offense. (23 V.S.A. § 1091, subd. (a).) Although the factual basis for those pleas is not disclosed in the record, the pleas themselves, when considered in conjunction with one another, establish appellant was unable to exercise reasonable care while driving under the influence of alcohol, which satisfies the California standard for DUI. (Crane, supra, 142 Cal.App.4th at p. 432.) Contrary to appellant's claim, this conclusion does not require any judicial factfinding, which, as noted, is prohibited under the Sixth Amendment. Rather, it is plainly evident from the very charges appellant admitted as part of his plea bargain. (See generally People v. Turner (1985) 171 Cal.App.3d 116, 125 [by pleading guilty, the defendant admits as true every element of the charged offense].)

Nevertheless, the Attorney General acknowledges there is an unrelated problem surrounding appellant's 2007 DUI conviction: The lack of evidence that such conviction amounted to a felony, either in the sense it resulted in appellant being sentenced to at least a year in prison, or it occurred after three prior DUI's that qualified as such under California law. (See §§ 23550.5, subd. (a)(1), 23550, subd. (a).) Therefore, the true finding on the 2007 DUI allegation cannot stand either.
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Because proof of a prior conviction allegation is not subject to double jeopardy principles (Monge v. California (1998) 524 U.S. 721, 734; People v. Monge (1997) 16 Cal.4th 826, 845; People v. Barragan (2004) 32 Cal.4th 236, 239-241; People v. Fielder (2004) 114 Cal.App.4th 1221, 1234), we will remand the matter to give the prosecution the chance to retry the prior felony conviction allegations. On remand, the trial court shall review the record of conviction in the prior proceedings to determine what facts were necessarily found or admitted therein, and based on those facts, make a new determination on the prior felony conviction allegations. (People v. Gallardo, supra, 4 Cal.5th at pp. 138-140.)

DISPOSITION
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The trial court's true findings on the prior felony conviction allegations are reversed, appellant's sentence is vacated, and the matter is remanded to allow the prosecution the opportunity to prove the allegations beyond a reasonable doubt. If the prosecution declines that opportunity, or is unable to prove the allegations, the trial court shall resentence appellant accordingly.

O'LEARY, P. J. and IKOLA, J., concurs.
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[1] Unless noted otherwise, all further statutory references are to the California Vehicle Code.