PEOPLE v. GREENWALT

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Court of Appeal, Second District, Division 6, California.

The PEOPLE, Plaintiff and Respondent, v. Mark Raymond GREENWALT, Defendant and Appellant.

Crim. B017888.

Decided: October 21, 1986

Tony L. Cogliandro, Torrance, under appointment by the Court of Appeal, for defendant and appellant. John Van de Kamp, Atty. Gen., Donald E. deNichola, Supervising Deputy Atty. Gen., for plaintiff and respondent.

OPINION ON REHEARING

The sole issue presented by this appeal is whether a sentencing court is required by Penal Code section 654, or otherwise, to permanently stay penal and administrative use of appellant's conviction of Vehicle Code section 23153, subdivision (b) after imposition of an unstayed term on his contemporaneous conviction of Vehicle Code section 23153, subdivision (a).   We find the issue whether future use is permissible is not presently ripe for review and we affirm.

Appellant was convicted upon his plea of nolo contendere of one count of driving under the influence causing injury (Veh.Code, § 23153, subd. (a)) and one count of driving with a blood alcohol content of .10 or greater causing injury.  (Veh.Code, § 23153, subd. (b).)  Both counts alleged the same victims and arose from the same incident.   He was sentenced to the maximum term of three years on each count.   Execution of the sentence imposed on the subdivision (b) count was stayed pursuant to Penal Code section 654 until completion of service of the term on the other count at which time the stay of execution was to become permanent.

Appellant contends for the first time on appeal the court was obligated to order a permanent stay of the use of the conviction for any penal or administrative purpose.   We find no merit in this contention.

First, appellant failed to raise this issue below.  Penal Code section 1259 permits review on appeal only of orders to which an objection was made and considered in the lower court with an exception not here applicable.   Appellant's failure to raise this objection waives any defect.   It is not the function of an appellate court to litigate questions of law in the first instance.

 Another reason for our affirmance is that issues relating to future use of the present conviction are not presently ripe for review.   Consequently we cannot agree with the conclusions in People v. Conner (1986) 176 Cal.App.3d 716, 222 Cal.Rptr. 311 and in People v. Duarte (1984) 161 Cal.App.3d 438, 448, 207 Cal.Rptr. 615, that the sentencing court is required to order the permanent stay of use of the conviction for penal and administrative purposes.   The apparent purpose of these rulings was to avoid some future use of the conviction to enhance punishment on a new offense, or to effect the appellant's driver's license privilege.

 Penal Code section 654 provides in pertinent part as follows:  “An act ․ which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one․”  Both on its face and as applied (see People v. Miller (1977) 18 Cal.3d 873, 885, 135 Cal.Rptr. 654, 558 P.2d 552) the section is concerned only with punishment.   The use of the prior conviction to increase punishment upon a second or subsequent offense punishes the subsequent offense and not the original one.  (Cf., People v. Jackson (1985) 37 Cal.3d 826, 833, 210 Cal.Rptr. 623, 694 P.2d 736.)

We do not here decide whether the stayed conviction can be used for any administrative or penal purpose in the future.   The court in People v. Duarte, supra, 161 Cal.App.3d at page 448, 207 Cal.Rptr. 615, found it appropriate to limit future punishment arising from dual convictions.

The court in People v. Duarte, supra, 161 Cal.App.3d at page 448, 207 Cal.Rptr. 615, also stated:  “In this case the sentencing court could have resolved the issue (without leaving it for another court) simply by adding an order staying the use of one conviction for penal and administrative purposes․”

The issue of whether a stayed conviction is a prior conviction should be left to a future forum where, if ever, such a contention is made.   We find it not only should but that it must be left to future litigation.  (Cf., Poe v. Ullman (1961), 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989;  Laird v. Tatum (1972) 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154;  and In re Cregler (1961) 56 Cal.2d 308, 313, 14 Cal.Rptr. 289, 363 P.2d 305.)   If both convictions are ever alleged, adjudication will be necessary and can be fully and fairly litigated by the parties with an actual and immediate stake in the outcome who have notice and an opportunity to be heard.

Whether any future prosecution for a new offense will ever occur and, if so, whether this conviction as well as the unstayed one will be alleged as a prior for purposes of additional enhancement are at best speculative.   To attempt to decide what use a nonparty (i.e., the Department of Motor Vehicles) or a future party might be able to make of such conviction is merely to pronounce an advisory opinion applicable only to a hypothetical case.   Such ruling would be unfair to future parties assuming they would be bound thereby.   It would also be unwise.1

Whether a conviction will have any future effect and, if so, to what extent is at least in the first instance a question of legislative determination.  (See e.g., Pen.Code, §§ 667, 667.5, 667.51 and 667.6 and Veh.Code §§ 23165, 23170 and 23175;  People v. Pearson (1986) 42 Cal.3d 351, 361–363, 228 Cal.Rptr. 509, 721 P.2d 595.)   As with all statutory schemes, recidivist statutes are subject to change over time.  (See e.g., former Veh.Code, §§ 23101 and 23102.)   Consequently, it is impossible to determine what effect, if any, a present conviction may have on future punishment.   Such a determination will depend on legislation in effect at the time any new violation occurs.   We therefore express no view whether the stayed conviction may be used to enhance punishment if appellant is ever again convicted of a similar offense.

Nothing in the admitted dicta in the recent Supreme Court decision, People v. Pearson, supra, 42 Cal.3d 351, 358, 228 Cal.Rptr. 509, 721 P.2d 595 et seq., (hereafter Pearson ) affects this resolution.   First, it notes the issue is “premature.”   Second, although the court there quotes both Duarte and Conner, supra, it does not modify the judgment in accord with those opinions.   Rather it affirms the judgment which imposed a stay exactly like that imposed here.   Consequently, it cannot be seen to require a permanent stay of penal or administrative use.2

The stay imposed here complies with the applicable requirement under Penal Code section 654 and the court rules relating thereto.  (Cal.Rules of Court, rule 449;  People v. Beamon (1973) 8 Cal.3d 625, 640, 105 Cal.Rptr. 681, 504 P.2d 905.)

The judgment is affirmed.

FOOTNOTES

1.   For example, under the rationale of Duarte and Conner, prior to the enactment of Penal code section 667, a court should have imposed a permanent stay of use of convictions for future enhancement where terms were imposed upon multiple convictions in a single proceeding for offenses qualifying under section 667.5 on the ground they would not constitute prior, separate prison terms in the future.   Subsequent to the enactment of section 667, such stays would have involved considerable litigation since some convictions qualify under both sections and section 667 does not limit qualifying offenses to those where a prior prison term has been served.

2.   In fact in Pearson at footnote 4 the court recommends the convictions which are presently stayed under section 654 be formally dismissed by the sentencing court after the defendant has completed sentence and parole on the unstayed offense.   Unless notified by the defendant, the sentencing court would not know this information.   No jurisdictional basis is suggested under which such a dismissal is appropriate.Additionally, the court acknowledges the right of the Legislature to provide for enhancement based on prior stayed convictions.   It would appear inappropriate to judicially dismiss such convictions or permanently stay them and thereby presumably terminate their availability for enhancement even if the Legislature should so provide.

ABBE, Associate Justice.

STONE, P.J., and GILBERT, J., concur.