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THE PEOPLE, Plaintiff and Respondent,
MARIO DARREL GLASS, Defendant and Appellant.

No. A147083.

Court of Appeals of California, First District, Division One.
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Filed January 31, 2017.

Appeal from the Contra Costa County, Superior Court No. 5-150511-4.
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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.115.
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On March 13, 2015, the District Attorney of Contra Costa County filed an information charging appellant with four felonies: count 1, driving under the influence of alcohol (DUI) with a designated prior conviction within 10 years (Veh. Code,[1] §§ 23152, subd. (a), 23550.5); count 2, driving with a 0.08 percent or higher blood-alcohol level with designated prior conviction within 10 years (§§ 23152, subd. (b), 23550.5); count 3, DUI with three prior convictions (§§ 23152, subd. (a), 23550), and count 4, driving with a 0.08 percent or higher blood-alcohol level with three prior convictions (§§ 23152, subd. (b), 23550). In addition, the information alleged appellant was previously convicted of the following felonies: (1) first degree residential burglary (Pen. Code, §§ 459, 460, subd. (b)), a serious felony; and (2) driving under the influence of alcohol with three prior convictions, a felony.
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On August 24, 2015, a jury found appellant guilty of all four felony charges in the information. On November 20, 2015, the trial court placed appellant on probation for a period of five years. Regarding the prior conviction allegations, appellant waived his right to a jury trial and the court found them all true. He was directed to serve 365 days in the county jail, with appropriate credits not challenged in the appeal.

Appellant timely filed his notice of appeal on December 14, 2015.
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On May 1, 2013, officer Craig Hirsch of the Brentwood Police Department was on street patrol in a police vehicle. Around 11:53 p.m., the officer was travelling on Balfour Road nearing Brentwood Boulevard. Hirsch noticed two vehicles, one a green Honda, the other a blue Chevrolet, stopped at the light. Both were on Brentwood Boulevard facing south. The light for the two cars was green. Each of the cars waited a few seconds before moving. Under the Vehicle Code, when a light becomes green, a car previously stopped must proceed forward or turn right or left. As Hirsch tailed the two cars, the green Honda was in the number two lane on the right side of the road. The Chevrolet was on the left side of the Honda. As each vehicle proceeded into the intersection, the Honda turned on its left turn signal and moved into the lane containing the Chevrolet. This sudden movement caused the Chevrolet to hit its brakes, dipping the front end of the blue car. Hirsch believed the Honda had not safely changed lanes within the proper distance, indicating a Vehicle Code violation.
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The officer turned on his warning lights to stop the Honda. However, the driver of the car proceeded approximately one-tenth of a mile before turning off onto Valdry Court, parking on the right curb. Appellant was in the driver's seat as Hirsch approached. Another male was in the passenger's seat. Hirsch noticed appellant's eyes were red and glassy. He smelled of alcohol and was noticeably slow in answering the officer's questions. Appellant identified himself as Marcus Dwayne Glass, but a California identification card found in the car indicated his name was Mario Darrel Glass.
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Shortly after the stop, Detective Jaclyn Veillette arrived. She was also employed by the Brentwood Police Department. Veillette noticed two unopened beer cans fall to the floor as appellant exited the car. She also noticed appellant's eyes were red and watery and there was an odor of alcohol. Veillette administered the field sobriety tests to appellant. The results of the horizontal gaze nystagmus test were consistent with a person under the influence. In performing the heel-to-toe test, appellant missed the fifth step and then failed to do an about-face. The two officers told appellant how to do the test for a second try. He missed the first, second, and fifth steps. Overall, his performance was consistent with a person under the influence of alcohol. When asked to stand on one leg for a count of 30, appellant was observed swaying as he stood. A preliminary screening for alcohol was administered and appellant's results were consistent with the use of alcohol.

After being transported to the police department, appellant elected to take a breath test. There Veillette administered the test and twice appellant blew into the machine. In both instances the test showed a blood-alcohol level of .21 percent.
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A forensic witness, Richard Bowden of the crime laboratory in Contra Costa County, testified as an expert on alcohol in the body. He opined a male weighing appellant's weight of 210 pounds and having a breath test of .21 percent would have approximately 11 drinks in his system. Bowden believed appellant, based on the breath test and his performance in the field tests, was under the influence of alcohol and could not safely drive a car.

Appellant presented no evidence at the trial in his defense.
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In this appeal, appellant claims counts 1 and 2 should be vacated to avoid multiple convictions for the same crime in violation of the double jeopardy clause and Penal Code sections 654 and 1023. He claims counts 1 and 2 are duplicate to counts 3 and 4, respectively, because each pair of crimes differs only with respect to the alleged prior convictions necessary to make them separate offenses.
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Generally, section 23152 is a misdemeanor. Sections 23550 and 23550.5 punish as a felony or misdemeanor a DUI violation of section 23152 if within 10 years of the commission of the misdemeanor there have been certain prior convictions. Under section 23550, a new violation of 23152 occurring within 10 years of three or more convictions of specific qualifying offenses involving the Vehicle Code, whether the previous convictions were misdemeanors or felonies, is a felony. Section 23550 focuses on the number of prior DUI convictions within a limited period of 10 years. On the other hand, section 23550.5 punishes a person who is guilty of section 23152 or 23153 and has within the previous 10 years sustained a felony conviction of sections 23152 or 23153. While each of these felony statutes focus on recidivism of DUI-like offenses, they individually address distinct prior occurrences of these Vehicle Code criminal acts that are recidivistic in nature.

In our case, appellant was found guilty of the particular criteria controlling a conviction of sections 23550 and 23550.5. He had numerous prior DUI convictions and he had a prior DUI felony conviction. If violations of both statutes are found true beyond a reasonable doubt, neither has to be stricken for appellate review purposes. It is not a violation of double jeopardy to be convicted in a unitary trial of DUI after sustaining multiple prior DUI convictions and a DUI after sustaining one prior felony DUI conviction. (See People v. Izaguirre (2007) 42 Cal.4th 126, 133-134.) While each criminal statute focuses on the same act, the felonious nature of sections 23550 and 23550.5 arises because of the Legislature's concern for particular recidivist behavior leading up to the current pending criminal offense of DUI. Simply stated, a person arrested for misdemeanor DUI can only be charged with violations of sections 23550 and/or 23550.5 if she or he satisfies the prior conviction(s) element for each of the two statutes. Most arrested DUI individuals do not have this concern. Appellant did.
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Appellant violated California's basic DUI law in two ways: he was driving under the influence of alcohol and he had a blood-alcohol volume of 0.08 percent or higher. Each of the ways he violated the basic DUI law became a felony because he also had a prior felony conviction for DUI (section 23550.5) and because he had three prior convictions for DUI (section 23550), each taking place within the past 10 years.

Because appellant's prosecution for the single of act of DUI involved separate violations of sections 23550 and 23550.5, each with distinct and separate elements, there is no violation of double jeopardy, as he alleges on appeal. The traditional test is whether each statute requires proof of a fact that the other does not have. (Blockburger v. United States (1932) 284 U.S. 299, 303-304; Brown v. Ohio (1977) 432 U.S. 161, 166; Illinois v. Vitale (1980) 447 U.S. 410, 415-416.) Since the elements of each statute are different, one is not the lesser included offense of the other. The same rule holds true under Penal Code section 1023 in these convictions. (People v. Herrera (2006) 136 Cal.App.4th 1191, 1200; People v. Marshall (1957) 48 Cal.2d 394, 406-407; People v. Greer (1947) 30 Cal.2d 589, 596, overruled on another point in People v. Fields (1996) 13 Cal.4th 289, 308, fn. 6.)
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Appellant also challenges this conviction, based on Penal Code section 654. That statute provides an "act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other." For the review of this issue on appeal, we also consider Penal Code section 954, which states: "An accusatory pleading may charge . . . different statements of the same offense" and "the defendant may be convicted of any number of the offenses charged. . . ."

In our case, appellant was convicted after a jury trial of the crimes described above, each involving separate elements. While he was charged and convicted of these offenses, he may not be punished for all because of Penal Code section 654 principles. As the Attorney General correctly points out, appellant was given probation. To date he has not been found in violation of probation. If that situation arises in the future, the trial court would have to consider the impact of Penal Code section 654. But that issue has not arisen, and at this time there is no issue of multiple punishment for the same particular criminal act detailed in this case. As our Supreme Court has noted, "a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct." (People v. Reed (2006) 38 Cal.4th 1224, 1226.) In California, "a single act or course of conduct" by a defendant can lead to conviction "`of any number of the offenses charged.'" (People v. Ortega (1998) 19 Cal.4th 686, 692.) While Penal Code section 954 normally permits multiple convictions, Penal Code section 654 deals with punishment issues, which have not arisen because of the probationary sentence at this time.
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The Attorney General agrees that because of Penal Code section 654, appellant can only be punished once for his four convictions. However, since he was placed on probation, there is yet no evidence appellant has been punished for Penal Code section 654 purposes. (People v. Wittig (1984) 158 Cal.App.3d 124, 137.) Furthermore, on November 20, 2015, the trial court struck the probation ineligibility clause found true by the jury. We believe the issue is not ripe at this time. (Ibid.)

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For the reasons stated above, we find there is no violation of double jeopardy in this case. We also determine the criminal statutes involved in this case, though arising out of a single act, were properly charged pursuant to Penal Code section 954, and at the present time, there is no issue regarding Penal Code section 654.

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We affirm the judgment.

Humes, P. J. and Banke, J., concurs.
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[1] All code references are to the Vehicle Code unless otherwise stated.