Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F5034
BUTZ, J.A jury convicted defendant Troy Allen Bennett of driving under the influence (DUI) offenses that resulted in a five-year sentence to state prison. On appeal, defendant asks us to order the trial court to modify its judgment to permanently stay future penal or administrative use of one count upon defendant’s completion of his sentence on a second count. We decline to do so and shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Following an accident in which defendant drove drunk and his passenger was thrown from the car, a jury convicted defendant of driving under the influence causing injury (Veh. Code, § 23153, subd. (a) count 1), and driving with a blood-alcohol level of or greater than 0.08 percent, causing injury (id., § 23153, subd. (b) count 2). The jury also found true allegations defendant personally inflicted great bodily injury upon the victim in connection with both counts (Pen. Code, § 12022.7), which elevated the offenses to serious felonies and strikes within the meaning of Penal Code section 1192.7, subdivision (c)(8). (Pen. Code, § 667, subd. (d).) Thereafter, the court found defendant had suffered a prior drunk driving conviction. (Veh. Code, §§ 23152, subd. (b), 23540.)
During trial, defendant pleaded no contest to misdemeanor driving without a license. (Veh. Code, § 12500, subd. (a) count 3.)
The trial court selected count 2 as the principal count, and sentenced defendant to the midterm of two years, plus a three-year enhancement for the great bodily injury allegation, for an aggregate sentence of five years in state prison. It imposed the identical sentence on count 1, but stayed execution of the sentence pursuant to Penal Code section 654.
It is well settled that a defendant may be convicted of both DUI (Veh. Code, § 23152, subd. (a)) and DUI with a blood-alcohol level of 0.08 percent or more (id., subd. (b)). (People v. Duarte (1984) 161 Cal.App.3d438, 446 (Duarte).) The same logic applies to convictions for DUI causing injury, under Vehicle Code section 23153, subdivisions (a) and (b).
DISCUSSION
In his sole contention on appeal, defendant complains that, notwithstanding the stay of his sentence on count 1, allowing both strike convictions to stand “expose[s] [him] to the potential of extremely harsh punishment 25 years to life in prison for a future offense that could be as trivial as petty theft all because of one act of drunken driving when [he] was 21 years old.” He asks that we direct the trial court, upon completion of his sentence on count 2, to (1) amend the judgment to prohibit the use of his sentence on count 1 in any criminal or administrative proceedings against him; or (2) dismiss his count 1 conviction altogether.
Defendant relies upon Duarte, supra, 161 Cal.App.3d438. In Duarte, the defendant was convicted of violating subdivisions (a) and (b) of Vehicle Code section 23153, stemming from one incident. Although his second conviction was stayed under Penal Code section 654, the Court of Appeal observed it was possible that both convictions might be used to enhance future punishment. “Having suffered two convictions and one punishment, defendant remains exposed to the use of the two convictions to enhance future punishment. The Vehicle Code contains an increasing number of sections which penalize recidivism. These sections ordinarily refer to prior ‘convictions’ without qualifying them to exclude multiple convictions arising from a single driving occasion. By only staying punishment on one of the two convictions, another court at another time may have to determine whether the defendant has one or two ‘priors’ arising from this prosecution.” (Duarte, supra,161 Cal.App.3d at p. 447.) To avoid such result, the Court of Appeal modified the judgment by ordering “the use of the [second] conviction... as a prior conviction for penal and administrative purposes, be stayed pending the finality of the judgment, the stay to become permanent when service of sentence is completed.” (Duarte, at p. 448; accord, People v. Conner (1986) 176 Cal.App.3d716, 718.)
To prevent future multiple enhancements based upon stayed convictions, the court in People v. Pearson (1986) 42 Cal.3d 351 (decided eight years prior to the 1994 enactment of the three strikes law) then developed the following rule: “Any subsequent sentences imposed on defendant can be enhanced on the basis of the convictions for which he served a sentence; but convictions for which service of sentence was stayed may not be so used unless the Legislature explicitly declares that subsequent penal or administrative action may be based on such stayed convictions. Without such a declaration, it is clear that [Penal Code] section 654 prohibits defendant from being disadvantaged in any way as a result of the stayed convictions.” (Pearson, at p. 361, italics added.) Thus, the Legislature is free to authorize the designation of such prior felony convictions as separate priors for purposes of determining the appropriate sentence following a subsequent conviction.
Considering the issue in the context of the three strikes law, the Supreme Court concluded the Legislature has made just such a determination, anticipated in Pearson. In People v. Benson (1998)18 Cal.4th 24, our high court held: “In our view, the language of [Penal Code] section 1170.12, subdivision (b)(1), unequivocally establishes that the electorate intended to qualify as separate strikes each prior conviction that a defendant incurred relating to the commission of a serious or violent felony, notwithstanding the circumstance that the trial court, in the earlier proceeding, may have stayed sentence on one or more of the serious or violent felonies under compulsion of the provisions of [Penal Code] section 654.” (Benson, at p. 31; see also id. at pp. 30-31; People v. Johnson (2002) 28 Cal.4th 240, 245, fn. 3; People v. Hester (2000) 22 Cal.4th 290, 296-297.)
We therefore decline to amend the abstract of judgment to prohibit all future use of the stayed conviction on count 1, leaving that determination to a future court in the event defendant reoffends and a subsequent sentence is imposed upon him. (People v. Ortega (2000) 84 Cal.App.4th 659, 667-668.)
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P. J. SIMS, J.