Return to CALJIC Part 9-12 – Contents
F 12.65 n1 DUI: Attempt Is Not A Prior Conviction (VC 23550 (former VC 23175)).
Although attempted driving under the influence is an offense (People v. Garcia (89) 214 CA3d Supp 1 [262 CR 915], an attempt may not be used as a prior for enhanced punishment under VC 23550 (former VC 23175). That section speaks only in terms of completed violations and makes no reference to attempts. Moreover, even if the statute could be considered ambiguous on this point, the defendant must receive the benefit of the more lenient construction. (See People v. Garfield (85) 40 C3d 192, 200 [219 CR 196].)
F 12.65 n2 DUI: Prior Stipulation/Bifurcation (VC 23550 (former VC 23175), VC 23152).
a. Stipulation: In People v. Bouzas (91) 53 C3d 467, 480 [279 CR 847], the Supreme Court held that the prior conviction aspect of PC 666 related to punishment, and was not an element of the offense that had to be determined by a jury, and therefore, the defendant had a right to stipulate to the prior. (Bouzas at 480.) In People v. Weathington (91) 231 CA3d 69 [282 CR 170], the court discussed several factors addressed by Bouzas to conclude that the prior offender status per VC 23550 (former VC 23175) is not an element of the DUI offense (and therefore not mandated by Prop 8 to be proven in open court). The factors included: (1) whether the statute historically, and by its language, specifies penalties rather than defining the crime; (2) whether a charge under the statute merely places a defendant on notice that if he is convicted of the substantive offense and if the priors are found true, he faces enhanced punishment at the time of sentencing; and (3) whether the conduct proscribed by the statute is malum in se such that the jury need not know about the prior offender status in order to decide the question of guilt. (Weathington 231 CA3d at 86-90.)
b. Bifurcation: [See FORECITE EA II(B).] In light of Bouzas, the prior offender status of VC 23550 (former VC 23175) is not an element of a crime, but an enhancement. (See People v. Weathington (91) 231 CA3d 69, 90 [282 CR 170].) Therefore, in the discretion of the trial court, the defendant may obtain a separate trial upon the prior conviction. (See People v. Calderon (94) 9 C4th 69, 78 [36 CR2d 333] [disapproving People v. Bracamonte (81) 119 CA3d 644 [174 CR 191] and holding that bifurcation is a matter of discretion rather than an absolute right.]
(See FORECITE EA V(B) – EA V(D).)
F 12.65 n3 DUI Recidivist Statute: Subsequent Offenses Cannot Be Used To Increase Penalty For Prior Offense.
VC 23550 (former VC 23175) permits subsequent offenses and convictions to be used to increase the penalty for a first offense. (People v. Snook (97) 16 C4th 1210 [69 CR2d 615] [legislative intent of VC 23550 (former VC 23175) was to punish repeat offenders with enhanced penalties, regardless of the order in which the offenses were committed or the convictions obtained].) Snook held that the imposition of an enhanced penalty on a fourth DUI conviction for an offense predating the triggering violations does not contravene the proscription against ex post facto laws as long as the commission of the underlying VC 23550(a) (former VC 23175(a)) offense occurred after the statute’s 1984 amendment became effective.
CITATION NOTE: Re: People v. Snook (97) 16 C4th 1210 [69 CR2d 615]. Following the Supreme Court’s decision in Snook, the matter was remanded and decided again by the Court of Appeal. A new petition for review was granted as to this subsequent opinion and transferred back to the Court of Appeal again. This action as to the second Petition for Review vacates the second court of appeal decision but not the earlier Supreme Court decision. Notwithstanding an indication in LEXIS that the original Supreme Court opinion is “not citable, superseded by a grant of review,” the opinion is fully citable authority. (See Rule 8.1105(a) (formerly Rule 976a, California Rules of Court.) (FORECITE has confirmed this with the Reporter of Decisions.)
F 12.65 n4 Improper To Refer To The Prosecution as “The People.”
Reference to the prosecution as “The People” may implicate the defendant’s state and federal constitutional rights to due process and fair trial by jury. (See FORECITE F 0.50d.) Any reference to “The People” should be changed to “The Prosecution.”