People v. Wilson CA6

Filed 3/19/15 P. v. Wilson CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H040608 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C9922421)

v.

RICK J. WILSON,

Defendant and Appellant.

A jury found defendant Rick J. Wilson guilty of driving under the influence of alcohol (DUI). (Veh. Code, § 23152, subd. (a).) In a bench trial, the court found true an allegation of a prior conviction for gross vehicular manslaughter. (Veh. Code, § 23152, subd. (a), former Veh. Code, § 23175.5, subd. (a)(3), repealed and reenacted as Veh. Code, § 23550.5, subd. (b) [Stats. 1998, ch. 118, § 84]). Defendant also pleaded guilty to three misdemeanor violations: driving while his privileges were suspended for reckless driving, driving while his privileges were suspended for a prior DUI, and driving while his privileges were suspended for refusing to submit to a blood test. (Veh. Code, §§ 14601, subd. (a), 14601.2, subd. (a), 14601.5, subd. (a).) The trial court maintained defendant’s DUI conviction as a felony and sentenced him to the upper term of three years. The court also imposed three concurrent 90-day sentences for the misdemeanor convictions.

On appeal, defendant argues that the trial court abused its discretion in sentencing him to three years for the felony DUI conviction because the record fails to support imposition of the aggravated term. He further argues that imposition of the three misdemeanor sentences violated Penal Code section 654. We conclude that the trial court did not abuse its discretion in sentencing defendant to the upper term for his felony conviction. Additionally, the Attorney General concedes, and we agree, that section 654 requires that the sentences for defendant’s misdemeanor convictions be stayed. Accordingly, we will stay the misdemeanor sentences and affirm the judgment as modified. I. FACTUAL AND PROCEDURAL BACKGROUND This is defendant’s third appeal in this matter. The factual and procedural background for the previous two appeals is set forth in detail in our prior opinion. (See People v. Wilson (2013) 219 Cal.App.4th 500, 504-508.)1 In 1999, defendant was convicted of felony DUI (Veh. Code, § 23152, subd. (a)), with a prior conviction for gross vehicular manslaughter (former Veh. Code, § 23175.5, subd. (a)(3), repealed and reenacted as Veh. Code, § 23550.5, subd. (b) [Stats. 1998, ch. 118, § 84]). The trial court found two prior “serious felonies” qualifying as strikes, or “strike priors” under the Three Strikes law. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.) Accordingly, the court sentenced defendant as a third strike offender to a prison term of 25 years to life. In 2002, this court affirmed the judgment. (People v. Wilson (Dec. 23, 2002, H021472) [nonpub. opn.].) In 2011, defendant successfully challenged his sentence under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) in a federal habeas corpus proceeding. (Wilson v. Knowles (9th Cir. 2011) 638 F.3d 1213.) The Ninth Circuit vacated his life sentence and the federal district court remanded the matter to state court for resentencing. On remand,