People v. Lopes

Filed 7/20/15 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Appellant, A142907 v. MERCEDES LOPES, (Sonoma County Super. Ct. No. SCR647251) Defendant and Respondent.

Does a juvenile adjudication qualify as a “prior violation . . . that was punished as a felony” so as to elevate a misdemeanor driving under the influence offense to a felony under Vehicle Code section 23550.5? 1 It does not. The trial court properly rejected the People’s attempt to elevate a drunk driving charge with a prior juvenile adjudication pursuant to section 23550.5, subdivision (a)(2), so we affirm. BACKGROUND In 2006, when Mercedes Lopes was 17 years old, she entered a plea of no contest to felony driving under the influence with injury under section 23153, subdivision (a).2 Lopes was detained as a ward of the court and committed to a DUI Youth Program with a maximum time of confinement of 38 months.

1 Unless otherwise noted, further statutory citations are to the Vehicle Code. 2 Section 23153, subdivision (a) provides that “It is unlawful for a person, while under the influence of any alcoholic beverage to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.” We take judicial notice of the contents of Lopes’ juvenile court file. (Evid. Code, § 452, subd. (d).) 1

In 2014, Lopes was charged with driving under the influence (§ 23152, subd. (a)) and driving with a blood alcohol content of 0.08 percent or more (§ 23152, subd. (b)). Both charges were alleged as felonies pursuant to section 23550.5 due to the prior juvenile adjudication. After waiving jury trial, Lopes admitted the 2006 adjudication but moved for acquittal on the section 23550.5 allegation. The court ruled that her juvenile adjudication could not be used to elevate the DUI to a felony and therefore granted the defense motion. Lopes then entered a plea of no contest to misdemeanor violations of section 23152, subdivisions (a) and (b). The People appeal from the court’s order striking the allegation of felony drunk driving due to the prior juvenile adjudication. DISCUSSION The sole issue in this appeal is whether Lopes’ 2006 juvenile adjudication qualifies as a “prior violation of Section 23153 that was punished as a felony” within the meaning of section 23550.5, subdivision (a), and can therefore elevate her current DUI charges to felonies. We agree with the trial court’s conclusion that it does not. At the time of Lopes’ plea, section 23550.5 provided in relevant part that: “(a) A person is guilty of a public offense, punishable by imprisonment in the state prison or confinement in a county jail for not more than one year and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000) if that person is convicted of a violation of Section 23152 or 23153, and the offense occurred within 10 years of any of the following: [¶] . . . [¶] (2) A prior violation of Section 23153 that was punished as a felony. [¶] . . . [¶] (b) Each person who, having previously been convicted of a violation of subdivision (a) of Section 191.5 of the Penal Code, a felony violation of subdivision (b) of Section 191.5, or a violation of subdivision (a) of Section 192.5 of the Penal Code, is subsequently convicted of a violation of Section 21352 or 23153 is guilty of a public offense punishable by imprisonment in the state prison or confinement in a county jail for not more than one year and by a fine . . . .”3