Trial court erred in concluding defendant’s driving under the influence (DUI) charges could be elevated to felonies where defendant had not suffered a qualifying sentence-enhancing prior conviction listed in Vehicle Code section 23550.5, subdivision (b). Under Vehicle Code section 23550.5, subdivision (b), a conviction for driving under the influence (DUI) in violation of Vehicle Code section 23152 is elevated from a misdemeanor to a felony if the defendant was previously convicted of violating specified provisions of the Penal Code, including gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)). Here, defendant drove his motorcycle while intoxicated. The People brought felony DUI charges (Veh. Code, § 23152) based on his 1981 prior convictions for vehicular manslaughter (former Pen. Code, § 192, subd. 3(a)) and DUI (former Veh. Code, § 23101, subd. (a)), which the trial court agreed could be considered together to constitute gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)). Held: Remanded for resentencing. Under the plain language of section 23550.5, the only prior convictions that can be used to elevate misdemeanor DUI charges to felonies are prior violations of Penal Code section 191.5, subdivisions (a) or (b), or Penal Code section 192.5, subdivision (a). Defendant was never convicted of violating any of these sections, and his 1981 prior convictions predated the enactment of both section 191.5 and 192.5. Without legislative authorization, there is no basis for the court to “cobble together the elements of older California convictions and treat them as if they were a violation of a Penal Code provision that was not enacted until years later.” The case was remanded with directions to resentence defendant to misdemeanor violations of Vehicle Code section 23152, subdivisions (a) and (b).
Case Summaries
