People v. Superior Court

Opinion

BEDSWORTH, J. The Orange County District Attorney seeks extraordinary relief from the trial court’s order sustaining Rodolfo Najera Blanquel’s demurrer to felony charges of Vehicle Code section 23152, subdivisions (a) and (b). (All further statutory references are to this code unless otherwise specified.) The information alleges that Blanquel’s offenses are felonies because he “was previously convicted of a [felony] violation of [sjection 23152[,] [subdivision (a)] ... on [or] about [the] 21st day of October[] 1992, within the meaning of . . . [sjection 23550.5.”

Section 23550.5 was signed into law on July 3, 1998, and took effect on July 1, 1999. On its effective date, the statute provided: “(a) A person is guilty of a public offense, punishable by imprisonment in the state prison or 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 [s]ection 23152 or 23153, and the offense occurred within 10 years of any of the following: [ft] (1) A prior violation of [s]ection 23152 that was punished as a felony under [sjection 23550 or this section, or both . . . .”

[771]Blanquel’s alleged new offenses occurred on July 31, 1999—after this new law took effect. However, because section 23550.5 was new, his 1992 prior conviction for driving under the influence of alcohol could not have been “punished as a felony under [s]ection 23550 or this section, or both . . . .” (§ 23550.5.) Rather, it was punished pursuant to former section 23175 or section 23175.5, which had the same substantive content. Because the statute in effect on the day Blanquel allegedly committed his new offenses—section 23550.5—did not expressly indicate that prior offenses punished pursuant to these former code sections were included, the trial court sustained Blanquel’s demurrer on March 24, 2000, transmuting his offenses into misdemeanors as a matter of law.

Effective October 10, 1999, the Legislature amended section 23550.5 to provide that current offenses under section 23152 are felonies if the defendant has previously been convicted of an offense which “was punished as a felony under [sjection 23550 or this section, or both, or under former [s]ection 23175 or former [s]ection 23175.5, or both.” (Italics added.) The district attorney contends this enactment demonstrates that the omission of former sections 23175 and 23175.5 from the original version of section 23550.5 was nothing more than a scrivener’s error. Having considered his petition, the responses thereto, oral argument from counsel, and the legislative history of section 23550.5, we agree.