People v. Dibacco

12 Cal.Rptr.3d 258 (2004) 117 Cal.App.4th Supp. 1 The PEOPLE, Plaintiff and Respondent,

v.

Richard A. DIBACCO, Defendant and Appellant.

No. CR.A. 3989. Appellate Division, Superior Court, San Bernardino County.

March 9, 2004. [259] Bruce A. Arneson, Esq., Victorville, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

PER CURIAM OPINION

THE COURT:

This appeal is taken from convictions for exceeding 100 miles per hour and reckless driving. Appellant contends the court erred in reducing the reckless driving charge from a misdemeanor to an infraction. He also contends the conviction for speeding is improper because that charge was a lesser included offense to reckless driving. Finally, he asserts that being sentenced for both infractions amounts to dual punishment in violation of Penal Code section 654. We reverse the reckless driving conviction, finding the court had no jurisdiction to reduce the charge to an infraction, affirm the speeding conviction, and remand for further proceedings.

FACTS[1]

On May 10, 2003, appellant, Richard A. Dibacco, was cited for reckless driving, a misdemeanor (count 1; Veh.Code 23103) and for driving in excess of 100 miles per hour, an infraction (count 2; Veh.Code 22348, subd. (b)). Appellant appeared for arraignment without counsel. The court advised him it was reducing the reckless driving charge to an infraction.

A court trial commenced on August 19, 2003. San Bernardino County Sheriffs Deputy M. Ramirez testified that on May 10, 2003, at approximately 8:54 a.m., he was driving an unmarked police car northbound on Interstate 15, traveling 70 to 75 miles per hour. In his rearview mirror, the officer saw appellants vehicle rapidly approaching in the No. 1 lane. Even when Officer Ramirez accelerated to 90 miles per hour, appellant continued to gain on him.

Appellant zigzagged from the No. 1 to the No. 2 lane, back to the No. 1, and even onto the shoulder. He passed other vehicles, forcing some to change lanes. After appellant passed Officer Ramirez, the officer accelerated to 105 miles per hour, but appellant was still pulling away. At Bear Valley Road, appellant cut off more vehicles.