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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Guy Edward SNOOK, Defendant and Appellant.

No. D021913.

Decided: September 12, 1996

Susan Bookout, under appointment by the Court of Appeal, Alpine, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Janelle B. Davis, Supervising Attorney General, and Demetra P. Lewis, Deputy Attorney General, for Plaintiff and Respondent.

In an information filed on April 27, 1994, appellant Guy Edward Snook (Snook) was charged with violations on April 6, 1992, of (1) Vehicle Code 2 section 23152, subdivision (a) (driving a vehicle under the influence of alcoholic beverages), (2) section 23152, subdivision (b) (driving a vehicle while having .08 percent or more blood alcohol), and (3) section 14601.1, subdivision (a) (driving a vehicle while his driver's license was suspended).   The information also alleged with regard to counts 1 and 2 that Snook had within seven years of the charged offenses been previously convicted three times of driving a vehicle under the influence of alcohol.   The alleged convictions were on October 2, 1992 (date of offense June 11, 1992), January 25, 1994 (date of offense September 23, 1993), and February 25, 1994 (date of offense October 25, 1993).   The effect of a true finding of the allegations is to elevate the offenses charged in counts 1 and 2 from misdemeanors to felonies. (§ 23175.)

On May 25, 1994, Snook filed a motion to dismiss the action, claiming he had been denied the right to a speedy trial guaranteed by Penal Code section 686, subdivision 1 and the Sixth Amendment to the United States Constitution.   The motion was denied by the trial court.   Snook then waived his right to a jury trial.   On July 26, 1994, Snook admitted the section 23175 allegations, and the charges against Snook were tried by the court.   The trial court convicted Snook on all three counts.

Imposition of sentence was suspended and Snook was placed on three years' probation on condition that he spend 365 days in local custody.   Over the objection of Snook a condition of probation was imposed requiring Snook to waive his Fourth Amendment rights against unreasonable searches.   Snook then timely filed this appeal.

Snook asserts prejudicial error by the (1) denial of his motion to dismiss for lack of a speedy trial, (2) acceptance of his admission through counsel of prior convictions, and (3) imposition of a Fourth Amendment waiver as a condition to probation.   We requested and have reviewed supplemental briefs on the additional issue of whether the section 23175, subdivision (a) allegations constituted ex post facto or other impermissible application of law because the offenses and convictions occurred after the April 6, 1992 charged offenses.3


A *



Section 23175 provides in part:

“(a) If any person is convicted of a violation of Section 23152 and the offense occurred within seven years of three or more separate violations of ․ Section 23152 ․, which resulted in convictions, that person shall be punished by imprisonment in the state prison․”

In apparent explanation of the purpose of section 23175, section 23217 was enacted which provides in part:

“The Legislature finds ․ that some repeat offenders of the prohibition against driving under the influence of alcohol ․ may be escaping the intent of the Legislature to punish the offender with progressively greater severity if the offense is repeated one or more times within a seven-year period.   This situation may occur when a conviction for a subsequent offense occurs before a conviction is obtained on an earlier offense.

“The Legislature further finds ․ that the timing of court proceedings should not permit a person to avoid aggravated mandatory minimum penalties for multiple separate offenses occurring within a seven-year period.   It is the intent of the Legislature to provide that a person be subject to enhanced mandatory minimum penalties for multiple offenses within a period of seven years, regardless of whether the convictions are obtained in the same sequence as the offenses had been committed.”

Based on the trial court's interpretation of sections 23175 and 23217, Snook's first offense on April 6, 1992, was elevated from a misdemeanor to a felony as a result of three subsequent offenses and convictions.   The People contend this is exactly the result intended by the Legislature.   Snook, on the other hand, contends section 23175 is a recidivist statute intended by the Legislature to increase the penalty for subsequent offenses of repeat offenders.   To increase the penalty for a prior offense based on subsequent offenses and convictions does not and cannot address the issue of recidivism.

 There are numerous canons of statutory interpretation designed to assist courts in the interpretation of legislative enactments.  (See People v. Coronado (1995) 12 Cal.4th 145, 151, 48 Cal.Rptr.2d 77, 906 P.2d 1232.)   Courts are instructed to divine the intent of the Legislature (Dyna–Med., Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386, 1387, 241 Cal.Rptr. 67, 743 P.2d 1323), “․ to effectuate the purpose of the law ․” (id. at p. 1386, 241 Cal.Rptr. 67, 743 P.2d 1323), to use the usual and ordinary meaning of the words (Brown v. Superior Court (1984) 37 Cal.3d 477, 485, 208 Cal.Rptr. 724, 691 P.2d 272), to give meaning to all words used (Rodriguez v. Superior Court (1993) 14 Cal.App.4th 1260, 1269, 18 Cal.Rptr.2d 120), to avoid making words surplusage (Dyna–Med, Inc., supra, at p. 1387, 241 Cal.Rptr. 67, 743 P.2d 1323), to harmonize conflicting provisions (ibid.), to consider consequences of the interpretation (Alford v. Pierno (1972) 27 Cal.App.3d 682, 688, 104 Cal.Rptr. 110), to consider legislative history (California Mfrs. Assn. v. P.U.C. (1979) 24 Cal.3d 836, 844, 157 Cal.Rptr. 676, 598 P.2d 836) and to preserve the constitutionality of the law (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 509, 53 Cal.Rptr.2d 789, 917 P.2d 628).   However, “․ [n]o single canon of statutory construction is an infallible guide to correct interpretation in all circumstances.”  (Knox v. City of Orland (1992) 4 Cal.4th 132, 152, 14 Cal.Rptr.2d 159, 841 P.2d 144, dis. opn. of Kennard, J.)

In the context of this case we consider the purpose of the legislation and its constitutional implications to be the controlling statutory interpretation guidelines.   We also emphasize that we are not asked to consider all applications and interpretations of section 23175;  we consider and interpret section 23175 only as it has been applied in this case.


Purpose of Statute

The stated purpose of section 23175 in the context of this case is “․ to punish the offender with progressively greater severity if the offense is repeated one or more times within a seven-year period” (§ 23217).   Section 23175 describes “․ a recidivist type crime․”  (People v. Forster (1994) 29 Cal.App.4th 1746, 1757, 35 Cal.Rptr.2d 705.)   As this court stated in People v. Rice (1988) 200 Cal.App.3d 647, 246 Cal.Rptr. 177 with regard to recidivist crimes:

“The purpose of imposing sanctions for prior convictions is to punish and deter recidivist behavior․  ‘The law is well established that ․ the increased penalty for a prior is attributable solely to the new, rather than the former, crime and its purpose is to discourage recidivist criminal conduct [citations]․’ ”  (Id. at p. 654, 246 Cal.Rptr. 177.)

Similarly, ․ “the increased punishment provided for subsequent offenders is not an additional disability attaching to the first offense, but an appropriate penalty for the person who, after conviction of one crime, commits another.”   (People v. Dutton (1937) 9 Cal.2d 505, 507, 71 P.2d 218, original italics.)

 In accordance with the purpose of a recidivist statute, an issue of statutory interpretation has been whether the subsequent offense must occur after the conviction on the prior offense or only after the commission of the prior offense.  (Compare People v. Albitre (1986) 184 Cal.App.3d 895, 897, 898, 229 Cal.Rptr. 289 with People v. Rojas (1988) 206 Cal.App.3d 795, 800, 253 Cal.Rptr. 786.)   In either event, both interpretations further the purpose of recidivist statutes because they increase penalties for subsequent offenses.   Conversely, increasing the penalty for the first offense because of subsequent offenses and convictions can have no effect on the person at the time of commission of the first offense.   A statutory scheme that does so does not further the purpose of the statute.   It is perhaps for this reason no authority has been cited to us, and we have been unable to find any authority that interprets a recidivist statute to increase the penalty for the first offense by reason of subsequent offenses.   As a result we are not inclined as a matter of statutory interpretation to presume the Legislature so intended by its enactment of sections 23175 and 23217.   Rather, we think it more persuasive that the Legislature intended section 23175 to adopt the rule that penalties for subsequent offenses can be increased based on earlier offenses even if the subsequent offenses occurred before conviction on the earlier offenses.   We therefore reject the People's interpretation of section 23175.

We acknowledge there is some legislative history indicating that section 23175 was amended to close a perceived “loophole” in the imposition of increased penalties for repeat drunk drivers.   The perceived “loophole” contemplates two drunk driving offenses—a guilty plea to the second preceding a conviction on the first.   Before amendment to section 23175, the first offense could not be alleged as a prior offense to the second because there had not been a conviction;  the second offense could not be used to enhance the penalty for the first because it was not a prior offense.  Section 23175 was, it is argued, therefore amended to refer to penalty enhancements based on “separate” offenses rather than “prior” offenses.   The purpose of the amendment was “to prevent a person from being able to circumvent the enhanced penalties for repeat DUI offenses by manipulating the timing of court proceedings.”  (AB 3833 Assem.   Criminal Law & Pub. Safety Com. Staff Comments;  Sen. Com. on Judiciary Rep. on AB 3833.)   Significantly, the assembly report also stated:  “It can be argued that this bill impermissibly allows increased punishments for subsequent acts.   On the other hand, the purpose and effect of the bill only is to provide the same punishment to a person who suffers multiple offenses regardless of the timing of the convictions.”  (AB 3833 Assem.   Criminal Law & Pub. Safety Com. Staff Comments, supra.)

We find this legislative history to be ambiguous and inconclusive.   It refers to increased penalties for repeat offenders;  it does not refer to increased penalties for first offenders.   It also refers to the timing of the convictions, an issue which is resolved by our interpretation that section 23175 permits increased penalties for a subsequent offense even if there has been no conviction on the prior offense at the time of the subsequent offense.

The premise expressed in the legislative history is also subject to some dispute.   It is the prosecution and the courts, not the defendant, which generally control the timing of court proceedings.   We perceive as unusual the manipulation of the timing of court proceedings by the defendant to accelerate disposition of his case.   Certainly in this case Snook was not manipulating the timing.   The prosecution could have brought him to trial at any time following his first offense.   It did not do so because of either negligence or indifference.   It is somewhat unseemly for the People to argue court manipulation by the defendant in support of its statutory interpretation when it was within the prosecution's power entirely to avoid the section 23175 issue in this case by timely prosecution of Snook's first offense.


Constitutional Ex Post Facto Considerations

At the time of Snook's offenses, April 6, 1992, the offenses were misdemeanors punishable by incarceration in the county jail for not more than six months. (§§ 23152, subd. (a), 23152, subd. (b), 23160.)   At the time of Snook's conviction for those offenses, the offenses were charged as felonies punishable by incarceration in state prison for not more than three years (§ 23175;  People v. Coronado, supra, 12 Cal.4th at p. 150, fn. 3, 48 Cal.Rptr.2d 77, 906 P.2d 1232.) In our view the interpretation of section 23175 which permits this result would make section 23175 as so applied unconstitutional as an ex post facto law.

 Both the United States Constitution and the California Constitution prohibit ex post facto laws.  (U.S. Const., art. I, § 10;  Cal. Const., art. I, § 9)  There is no substantive distinction between the two constitutional provisions and they are interpreted to provide the same protection.  (Tapia v. Superior Court (1991) 53 Cal.3d 282, 295, 279 Cal.Rptr. 592, 807 P.2d 434.)   The current formulation of the ex post facto law is stated in Beazell v. Ohio (1925) 269 U.S. 167, 169–170, 46 S.Ct. 68, 68, 70 L.Ed. 216:

“It is settled, by decisions of this court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done;  which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.”

 This formulation of the law has most recently been confirmed by the United States Supreme Court in Collins v. Youngblood (1990) 497 U.S. 37, 41, 43, 110 S.Ct. 2715, 2718–19, 2719–20, 111 L.Ed.2d 30 and has been accepted by the courts of this state.  (Tapia v. Superior Court, supra, 53 Cal.3d at pp. 293, 294, 279 Cal.Rptr. 592, 807 P.2d 434;  In re Arafiles (1992) 6 Cal.App.4th 1467, 1481–1483, 8 Cal.Rptr.2d 492.)

 In this case we are of course concerned with the aspect of the ex post facto law prohibiting a legislative enactment which increases the penalty for a crime after the offense was committed.   It is true that sections 23175 and 23217 were enacted prior to Snook's April 6, 1992 offenses.   Under these circumstances it has been held that convictions obtained prior to the enactment of section 23175 may be considered when charging offenses committed following its enactment.  (People v. Sweet (1989) 207 Cal.App.3d 78, 82, 83, 254 Cal.Rptr. 567.)   As stated in Sweet at page 83, 254 Cal.Rptr. 567, “[t]here is no constitutional bar preventing application of the statute to later offenses solely because the prior conviction which serves as a basis for enhancement was committed before the habitual offender statute was enacted.   [Citations.]”  (See also People v. Wohl (1990) 226 Cal.App.3d 270, 273, 274, 276 Cal.Rptr. 35.)   The holding of Sweet is applicable whether the prior convictions under section 23175 are considered facts enhancing the punishment or elements of the crime.  (People v. Wohl, supra, at p. 274, 276 Cal.Rptr. 35;  People v. Bowen (1992) 11 Cal.App.4th 102, 106, 14 Cal.Rptr.2d 40 [holding that prior convictions are not elements of the crime].)

However, there is a crucial difference between Sweet and Wohl and the instant case.   In Sweet and Wohl, as with all other reported authorities of which we are aware rejecting ex post facto challenges to recidivist or habitual criminal statutes, it is the latest offense which is being prosecuted with prior convictions for prior offenses being alleged as sentence enhancements.   In the instant case it is the first offense which is being prosecuted with prior convictions for subsequent offenses being alleged as sentence enhancements.   Under these circumstances the rationale of the authorities rejecting ex post facto challenges to recidivist and habitual criminal statutes is inapplicable.   The justification set forth in Sweet was stated to be:

“Consequently, crimes for which appellants are punished are not the earlier convictions, but the subsequent offense of which the prior conviction constitutes only one element.  [Citations.]  The sentence imposed upon an habitual offender is not an additional punishment for the earlier crime, but a ‘stiffened penalty for the latest crime,’ which is considered aggravated because of its repetitive nature․”  (People v. Sweet, supra, 207 Cal.App.3d at p. 83, 254 Cal.Rptr. 567.)

In the instant case it is the earlier crime, not the latest crime, for which the penalty is being “stiffened.”   It is this difference between Sweet, Wohl and other cases upholding recidivist statutes and the instant case which places this case squarely within the ex post facto prohibition of increasing the penalty for a crime because of events occurring subsequent to the crime.

 It is argued that section 23175 was enacted before Snook's first offense and therefore as applied to Snook cannot be an invalid ex post facto law;  only a law enacted after the commission of the crime can potentially be invalid as an ex post facto law.  (See People v. Sweet, supra, 207 Cal.App.3d at pp. 82, 83, 254 Cal.Rptr. 567.)   We do not agree with this narrow interpretation even though in most circumstances it is no doubt correct.  “․ Subtle ex post facto violations are no more permissible than overt ones.   In Beazell ․ we said that the constitutional prohibition is addressed to laws, ‘whatever their form,’ which make innocent acts criminal, alter the nature of the offense, or increase the punishment.  [Citation.]”  (Collins v. Youngblood, supra, 497 U.S. at p. 46, 110 S.Ct. at p. 2721.)

 The application of an existing law in a manner inconsistent with the principles of the ex post facto prohibitions is an invalid application of the law even though the law may have been enacted before the offense.   This principle compels our view that the application of section 23175 to Snook's first offense would violate the ex post facto prohibitions of the United States and California Constitutions.   We do not hold section 23175 to be invalid.   Rather, we hold that it was not intended to be applied in the manner applied here, because we must seek an interpretation of its applicability that will preserve its validity.

 We therefore find that section 23175 does not permit subsequent offenses and convictions to be used to increase the penalty for the first offense.   To hold otherwise would be inconsistent with the purpose of this recidivist statute and would result in its unconstitutional application.   The allegations of prior convictions in this case must be stricken.   We reverse the judgment and remand the matter to the trial court for resentencing without the enhancing allegations.

C–D **


The allegations and true findings of three or more prior convictions under section 23175 are stricken and the matter is remanded to the trial court for resentencing in accordance with this opinion.   In all other respects the judgment is affirmed.


FN2. All statutory references are to the Vehicle Code unless otherwise specified..  FN2. All statutory references are to the Vehicle Code unless otherwise specified.

3.   This argument was unsuccessfully made by Snook in the trial court but was not initially raised on appeal.

FOOTNOTE.   See footnote 1, ante.

FOOTNOTE.   See footnote 1, ante.

McDONALD, Associate Justice.

WORK, Acting P.J., and BENKE, J., concur.

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