People v. Mitchell

California Court of Appeal Nov 1, 2000 No. B123823Published

Before: Neal

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Holding. The court held that a defendant cannot be punished for both drunk driving and driving with excess blood alcohol arising from the same act, and that no appeal lies from an erroneous abstract of judgment. Additionally, the court affirmed that prior convictions arising from a single incident may be counted as separate strikes under the Three Strikes law.

Issues

Whether a defendant may be punished for both drunk driving and driving with excess blood alcohol arising from the same incident.
Whether prior convictions arising from a single incident may be counted as separate strikes under the Three Strikes law.
Whether the People may appeal an erroneous abstract of judgment.

Disposition. affirmed

Quotations verified verbatim against the opinion

“He cannot be punished twice for different convictions arising from the same criminal acts. (Pen.Code, § 654).”

“An error in the abstract of judgment is not appealable.”

“The Legislature had the power to treat as separate "strikes" convictions for which separate punishment would be barred under section 654”

97 Cal.Rptr.2d 794 (2000) 82 Cal.App.4th 55 The PEOPLE, Plaintiff and Respondent,

Willie Ross MITCHELL, Defendant and Appellant.

No. B123823. Court of Appeal, Second District, Division Seven.

July 10, 2000. As Modified on Denial of Rehearing August 9, 2000. Review Granted November 1, 2000. [795] Linn Davis, under appointment by the Court of Appeal, for defendant and appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General and Russell A. Lehman, Deputy Attorney General, for plaintiff and respondent.

NEAL, J.

In this criminal appeal, a stay is imposed on one of two life sentences imposed for the same criminal conduct. The People's request for correction of the abstract of judgment is refused, as no appeal lies from an erroneous abstract.

An information charged that appellant Willie Ross Mitchell in February 1997 committed the crime of felony drunk driving (Veh.Code, § 23152, subd. (a)), and also on the same occasion committed the separate felony of driving with blood alcohol over .08 percent (Veh.Code, § 23152, subd. (b)). A second information charged him with felony drunk driving in June 1997. Each information alleged that appellant had suffered three prior drunk driving convictions within the past five years, exposing him to punishment of at least 180 days in jail and revocation of his driver's license. The informations further alleged that appellant had been convicted in 1983 of arson of an inhabited structure (Pen.Code, § 451, subd. (a)) and arson of a structure (Pen.Code, § 451, subd. (c)), convictions which were "violent felonies" and hence sentence-enhancing "strikes" under the Three Strikes law.

The informations were consolidated for trial, and the jury convicted appellant of all three crimes charged. Thereafter the court found true the allegations concerning his prior drunk driving and arson convictions.

A probation report prepared prior to sentencing revealed that appellant, age 46 at the time, had a 27-year criminal history. This included (in addition to the three prior drunk driving misdemeanors): convictions in 1983 on two counts of arson, for which appellant was sentenced to state prison; a 1993 felony perjury conviction resulting in a prison sentence; and misdemeanor convictions for disturbing the

People v. Mitchell

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NEAL, J.

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