People v. Escareno

Filed 5/24/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A160209
v.
FRANCISCO CARRILLO (Napa County Super Ct.
ESCARENO, No. 20CR000557)
Defendant and Appellant.
Francisco Carrillo Escareno pleaded no contest to two felonies, four
misdemeanors and an infraction arising from a single incident of driving
under the influence of alcohol and without a valid license. He contends the
trial court erred in refusing to dismiss the misdemeanor and infraction
counts pursuant to Vehicle Code section 41500 after sentencing him to prison
on the felony counts. We will affirm the judgment.
BACKGROUND
The following facts are taken from the preliminary hearing testimony
of Napa County Police Officer Kyle Cadena. About 10:07 p.m., on February
29, 2020, Napa dispatch broadcast a lookout for a possible drunk driver at
State Route 29 and Oak Knoll Avenue. A caller had reported a gold Toyota
Avalon with California license plate No. 8CUW108, driving at rapidly
alternating speeds, crossing the double line into opposing lanes of traffic and
the solid line at the shoulder of the road. About 40 minutes later, Cadena
was dispatched to Valle Verde and Shelter Creek, where the same vehicle
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had been observed parked, engine still running, with its lights on and the
driver apparently asleep and unresponsive to knocking on his window.
When Officer Cadena arrived at the scene, paramedics had taken the
keys from the driver. Cadena contacted the driver, appellant, once the
paramedics determined there was no medical emergency. Appellant
appeared impaired, likely due to alcohol: He was slurring his words,
repeating himself, and having difficulty balancing and walking steadily.
Appellant said he was driving home from work and had consumed 10 beers in
the last seven hours, having stopped drinking within the last hour. There
was an empty 12-ounce can of beer in plain view on the floorboard of the front
passenger seat. Appellant performed poorly on field sobriety tests, a
preliminary screening of a breath sample indicated the presence of alcohol,
and he was placed under arrest. A blood sample was taken at 12:33 a.m. and
subsequent testing found a blood alcohol level of .208. Appellant was on post
release community supervision (PRCS) with alcohol and testing terms, and
his driver’s license was suspended. He had terms on his driver’s license
requiring use of an ignition interlock device but the Avalon was not equipped
with one.
Appellant was charged by information filed on March 17, 2020, with
felony driving under the influence of alcohol after two prior felony convictions
for the same (Veh. Code,1 §§ 23152, subd. (a), 23550.5) (count 1); felony
driving with .08 percent or higher blood alcohol after two prior felony
convictions for the same (§§ 23152, subd. (b), 23550.5) (count 2); misdemeanor
unlawful operation of a vehicle not equipped with a functioning ignition
interlock device (§ 23247, subd. (e)) (count 3); misdemeanor driving when
1Further statutory references will be to the Vehicle Code except as
otherwise specified.
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privilege suspended for driving under the influence, with priors (§ 14601.2,
subd. (a)) (count 4); misdemeanor driving while license suspended or revoked,
with priors (§ 14601.5, subd. (a)) (count 5); misdemeanor driving without a
valid license (§ 12500, subd. (a)) (count 6); and possession of an open
container of alcoholic beverage while driving, an infraction (§ 23222,
subd. (a)) (count 7). It was alleged in connection with counts 1 and 2 that
appellant’s blood alcohol concentration was 0.15 percent by weight and more
within the meaning of section 23578.
On March 23, 2020, appellant entered pleas of no contest to all counts
and admitted the special allegations and prior convictions.
At sentencing on April 21, 2020, the court imposed the three-year
aggravated term on count 1 and the same sentence on count 2, stayed
pursuant to Penal Code section 654; the court imposed certain fees associated
with these felony counts and waived others. As the court turned to
sentencing on the misdemeanors and infraction, defense counsel interjected
that these counts had to be dismissed pursuant to section 41500 because the
court was sentencing appellant to prison. The prosecutor disagreed and the
court concurred, stating it did not read section 41500 as applying to charges
filed concurrently with a pending felony case. Proceeding with the
misdemeanor counts, the court imposed a sentence of 104 days in county jail
and a fine, both stayed pursuant to Penal Code section 654. The court also
stayed the fine on the infraction pursuant to Penal Code section 654.
This appeal followed.
DISCUSSION
Section 41500, subdivision (a), provides: “A person shall not be subject
to prosecution for a nonfelony offense arising out of the operation of a motor
vehicle . . . that is pending against him or her at the time of his or her
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commitment to the custody of the Secretary of the Department of Corrections
and Rehabilitation, the Division of Juvenile Justice in the Department of
Corrections and Rehabilitation, or to a county jail pursuant to subdivision (h)
of Section 1170 of the Penal Code.”
This statute “is an exception to the rule that all criminal offenses are
subject to prosecution.” (Joseph v. Superior Court (1992) 9 Cal.App.4th 498,
503.) “ ‘[T]here is . . . strong public policy that allows felons sentenced to
state institutions to obtain relief from detainers that might render their
release date uncertain and thus adversely affect their eventual
rehabilitation.’ ” (People v. Lopez (2013) 218 Cal.App.4th Supp. 6, 11 (Lopez),
quoting People v. Freeman (1987) 225 Cal.App.3d Supp. 1, 4 (Freeman).) “A
prisoner serving time often faces other charges or proceedings when his term
of imprisonment is completed. These are sometimes referred to as ‘detainers’
or ‘holds.’ They render the prisoner’s final date of release into the community
uncertain, and often adversely affect his security classification thereby
preventing his participation in various programs otherwise available to
prisoners.” (Freeman, at p. Supp. 4, fn. 2.)
The policy favoring relief from detainers “ ‘was expressly adverted to by
the Legislature in the enactment of section 41500. In amending the section
in 1972, the Legislature noted that the purpose of section 41500 is to allow
prisoners to leave prison with a clean record. [Citation.] The Legislature
further noted in 1975, when the section was amended to extend coverage to
Youth Authority wards, that the rehabilitative process is aided by
eliminating the interruptions due to arrest and prosecution for nonfelony
traffic violations . . . ,’ ” which occurred prior to commitment to the Youth
Authority. (Lopez, supra, 218 Cal.App.4th at p. Supp. 11, quoting Freeman,
supra, 225 Cal.App.3d at p. Supp. 4.) Furthermore, it is in the public interest
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that courts not be burdened with the prosecution of minor cases where the
defendant has already been sentenced to serve a long term in prison or in the
Youth Authority, and the additional prosecution will not substantially
increase that term. (Freeman, at p. Supp. 4.)
In appellant’s view, at the point he was sentenced to prison on the
felony offenses, the nonfelony charges were pending against him because
sentence had not yet been imposed on them. He characterizes the issue on
this appeal as whether these “pending” misdemeanor charges and infraction
were subject to the section 41500, subdivision (a), ban on prosecution, or were
exempt from that ban pursuant to the statutory exception stated in section
41500, subdivision (d). Subdivision (d) provides: “The provisions of this
section shall not apply to a nonfelony offense if the department is required by
this code to immediately revoke or suspend the privilege of a person to drive
a motor vehicle upon receipt of a duly certified abstract of the record of a
court showing that the person has been convicted of that nonfelony offense.”
Appellant contends none of the nonfelony offenses come within the
subdivision (d) exception and, therefore, they should have been dismissed.
Respondent, by contrast, views section 41500, subdivision (a), as
inapplicable to the present case because the misdemeanors and infraction
were charged and prosecuted together with the felonies as part of a single,
unitary proceeding. As part of this argument, respondent maintains the
nonfelony offenses were not “pending” at the time of sentencing because they
had been resolved. Respondent notes the observation of the court in Joseph
v. Superior Court, supra, 9 Cal.App.4th at page 505, that “sentencing occurs
at the end of proceedings, not during their pendency.”
Countering the suggestion that criminal charges are no longer pending
once guilt or innocence has been determined—i.e., after conviction—appellant
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relies upon McAlpine v. Superior Court (1989) 209 Cal.App.3d 1 (McAlpine) to
argue that criminal charges remain pending until judgment. In a criminal
case, the pronouncement of sentence is the judgment. (Id. at p. 7; People v.
Villatoro (2020) 44 Cal.App.5th 365, 369.) McAlpine involved Government
Code section 945.3, which tolls the statute of limitations on civil actions for
police misconduct while related criminal “charges are pending” against the
plaintiff. The plaintiff was shot by a police officer who had stopped him for
questioning about a reported robbery and was subsequently convicted of
robbery; meanwhile, he filed a tort claim against the city, the denial of which
triggered the six-month statute of limitations for filing a civil action.
(McAlpine. at p. 4.) The question in McAlpine was whether the criminal
proceedings that served to toll the statute of limitations were “pending” only
until conviction—in which case the complaint was untimely—or remained
“pending” until judgment was entered at sentencing.
Relying on a dictionary definition of “pending” as “ ‘[b]egun, but not yet
completed; during; before the conclusion of; prior to the completion of;
unsettled; undetermined; in process of settlement or adjustment’ (Black’s
Law Dict. (5th ed. 1979) p. 1021, col. 1),” the city argued that “charges” are
pending only until resolved by plea or verdict. (McAlpine, supra, 209
Cal.App.3d at p. 6.) The court rejected this view on the basis of two factors:
Code of Civil Procedure section 1049, which states that an “ ‘action is deemed
to be pending from the time of its commencement until its final
determination upon appeal . . . ,’ ” and language in Government Code section
945.3 stating, “ ‘[f]or the purposes of this section, charges pending before a
justice, municipal, or superior court do not include appeals . . . .’ ” Combined
with the definition of “pending” in Code of Civil Procedure section 1049, the
court reasoned, the express exclusion of appeals in Government Code section
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945.3, showed “the Legislature intended the term ‘pending’ to include all
proceedings leading to judgment.” (McAlpine, at p. 6.)
The McAlpine court did not purport to define the term “pending” for all
purposes, and relied upon statutory language specific to the Government
Code section it was interpreting. Even accepting for purposes of argument
that an offense remains “pending” after the defendant’s guilt has been
resolved by conviction, the question in the present case is whether the
reference in section 41500 to a “nonfelony offense . . . that is pending” against
a person “at the time of his or her commitment” to prison was intended to
encompass offenses prosecuted in the same action as the offenses resulting in
the prison sentence.
On this point, respondent has the better argument. The concerns
Freeman and Lopez described as underlying section 41500, subdivision (a),
are not implicated where both felony and nonfelony offenses are charged and
prosecuted in a single case. In this situation, prosecution of the nonfelony
offenses threatens no detainer that might undermine the certainty of a
defendant’s prison release date or interruption of the rehabilitative process.
Instead, prosecution and sentencing of the nonfelony offenses is simultaneous
with that of the felony offenses, and the sentence imposed is what the court
deems appropriate for all the offenses together.2 Describing the nonfelony
offenses in the present case as “pending” when appellant was sentenced to
prison creates an artificial distinction that does not serve the legislative
purpose behind section 41500, subdivision (a).
2Here, as all the charged offenses arose from the same incident, the
nonfelony offenses added neither custodial time nor financial penalty to the
penal consequences of the felony offenses: The jail terms and fines for the
nonfelony offenses were stayed pursuant to Penal Code section 654.
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“The main goal of statutory interpretation is to effectuate the
Legislature’s intent. (See Riverside County Sheriff’s Dept. v. Stiglitz (2014)
60 Cal.4th 624, 630.) Thus, ‘the “plain meaning” rule does not prohibit a
court from determining whether the literal meaning of a statute comports
with its purpose or whether such a construction of one provision is consistent
with other provisions of the statute. . . . Literal construction should not
prevail if it is contrary to the legislative intent apparent in the statute. The
intent prevails over the letter, and the letter will, if possible, be so read as to
conform to the spirit of the act.’ (Lungren v. Deukmejian (1988) 45 Cal.3d
727, 735; Riverside County Sheriff’s Dept.[, at p.] 630; People v. Mullendore
(2014) 230 Cal.App.4th 848, 854.)” (People v. Henderson (2020) 46
Cal.App.5th 533, 545.)
In People v. Alwien (2017) 18 Cal.App.5th Supp. 9, a probationer who
was temporarily placed in a California Department of Corrections and
Rehabilitation diagnostic facility argued he was entitled to dismissal of traffic
offenses pursuant to section 41500, subdivision (a), because he was
“commit[ted] to the custody of the Secretary of the Department of Corrections
and Rehabilitation” as described in the statute. Rejecting this claim, Alwien
stated, “a literal construction, as appellant asserts, would not further the
legislative goal behind the statute—to give people a fresh start for
rehabilitation upon release from a lengthy term of incarceration. (People v.
Lopez, supra, 218 Cal.App.4th at p. Supp. 6; . . . Freeman, supra,
225 Cal.App.3rd at p. Supp. 4.)” The same is true here. Applying section
41500 to a defendant being prosecuted in a single action for felony and
nonfelony offenses arising out of a single incident would further none of the
Legislature’s purposes in section 41500. To the contrary, it would offer a
windfall to a defendant who committed multiple offenses, contrary to the
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“strong public policy that drinking drivers, particularly repeating drinking
drivers, not drive a vehicle for specified periods of time, and not until they
have complied with certain corrective conditions.” (Freeman, at p. 4.)3
DISPOSITION
The judgment is affirmed.
3 Our resolution of this issue makes it unnecessary for us to consider
whether the nonfelony offenses would come within section 41500, subdivision
(d), as appellant contends.
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_________________________
Kline, P.J.
We concur:
_________________________
Richman, J.
_________________________
Stewart, J.
People v. Escareno (A160209)
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Trial Court: Napa County Superior Court
Trial Judge: Hon. Elia Ortiz
Attorney for Appellant: By Appointment of the Court of Appeal
First District Appellate Project
Stanley Dale Radtke
Attorneys for Respondent: Attorney General of California
Xavier Becerra
Lance E. Winters
Chief Assistant Attorney General
Jeffrey M. Laurence
Senior Assistant Attorney General
Catherine A. Rivlin
Supervising Deputy Attorney General
Rene A. Chacon
Supervising Deputy Attorney General
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