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Attempted DUI with priors is a felony

People v. Cummings (Cal. Ct. App., Mar. 3, 2021, No. C084505) 2021 WL 803686, at *1–5

Summary:Cummings entered a plea of no contest to attempted driving with a blood alcohol-level of 0.08 percent or more within 10 years of a felony conviction for driving under the influence (DUI) (Pen. Code, § 664/Veh. Code, §§ 23152, subd. (b), 23550.51) and admitting two prior DUI convictions.

Cummings was granted five years of formal probation.

Cummings appealed claiming attempted DUI, even with two prior felony DUI convictions, is a misdemeanor under the plain terms of section 23550.5.

Attempted DUI with Priors

Cummings contends that attempted DUI cannot be a felony under section 23550.5 because that statute mentions only completed crimes. However, People v. Epperson (2017) 7 Cal.App.5th 385, 212 Cal.Rptr.3d 584 (Epperson), which addressed a felony statute involving a specific sentencing range, makes the distinction between a statute providing for additional punishment or collateral consequences and a statute setting forth a sentencing range to which section 664 applies by default. (Epperson, at pp. 388, 390-391, 212 Cal.Rptr.3d 584.)

Section 23550.5 and Penal Code Section 664

Section 23550.5 provides in pertinent part: “(a) A person is guilty of a public offense, punishable by imprisonment in the state prison or confinement in a county jail for not more than one year … if that person is convicted of a violation of Section 23152 or 23153, and the offense occurred within 10 years of any of the following: (1) A separate violation of Section 23152 that was punished as a felony under Section 23550 or this section, or both, or under former Section 23175 or former Section 23175.5, or both.  (2) A separate violation of Section 23153 that was punished as a felony. (3) A separate violation of paragraph (1) of subdivision (c) of Section 192 of the Penal Code that was punished as a felony.”

Penal Code Section 664 provides in pertinent part: “Every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration, shall be punished where no provision is made by law for the punishment of those attempts, as follows:  (a) If the crime attempted is punishable by imprisonment in the state prison, or by imprisonment pursuant to subdivision (h) of Section 1170, the person guilty of the attempt shall be punished by imprisonment in the state prison or in a county jail, respectively, for one-half the term of imprisonment prescribed upon a conviction of the offense attempted.”

Though not specifically made punishable by any provision of the Penal Code, attempted DUI is an offense under California law pursuant to sections 664 and 1159, which provide that the trier of fact may find the defendant guilty of an attempt to commit any offense charged or necessarily included within the charged offense. (Garcia, supra, 214 Cal.App.3d Supp. at p. 4, 262 Cal.Rptr. 915.) Penal Code section 664 and 1159 “clearly apply to attempted crimes that are not specifically made punishable by provisions of the Penal Code.” (Garcia, at p. 2, 262 Cal.Rptr. 915.) However, in Garcia, the attempted DUI was charged as a misdemeanor and the issue addressed by the appellate division was whether attempted DUI is an offense under California law.

Issue: The issue is whether attempted DUI is a felony when the defendant has a qualifying DUI prior.

Under section 664, “[a]n attempt to commit a felony is a felony punishable by imprisonment ‘for one-half the term of imprisonment prescribed upon a conviction of the offense attempted.’ ” (People v. Duran (2004) 124 Cal.App.4th 666, 671, 21 Cal.Rptr.3d 495 (Duran).) As the express terms of section 664 indicate, that statute “pertains, in theory, to ‘any crime.’ ” On the other hand, the Legislature can render section 664 inapplicable to a particular crime by enacting a more specific statute pertaining to that crime. (In re Maria D. (2011) 199 Cal.App.4th 109, 115, 131 Cal.Rptr.3d 21 (Maria D.), citing Duran, at pp. 670-674, 21 Cal.Rptr.3d 495.) But where the Legislature has not done so, section 664 must be read together with the statute defining the crime or the punishment therefor and determines the punishment for an attempt to commit that crime. (Cf. Maria D., at pp. 115-116, 131 Cal.Rptr.3d 21.)

Section 23550.5, which sets forth a felony sentencing range for completed DUI offenses (§§ 23152 and 23153) under the conditions specified therein, does not contain any language that on its face would render section 664 inapplicable to attempted DUIs. The fact that section 23550.5 does not mention attempts does not mean that attempted DUI is excluded from its scope. To the contrary, it means that attempts are covered in section 23550.5 when read together with section 664. (Maria D., supra, 199 Cal.App.4th at pp. 115-116, 131 Cal.Rptr.3d 21; Duran, supra, 124 Cal.App.4th at p. 671, 21 Cal.Rptr.3d 495.)

Where the conditions specified in section 23550.5 are satisfied — that is, where a defendant has sustained a qualifying prior felony DUI conviction within 10 years, as has defendant, — the commission of attempted DUI is a felony, subject to one-half the felony punishment for the completed crime under section 664.

Like the statute construed in Epperson, the statute at issue in the instant case does not authorize “an additional penalty or collateral consequence for … enumerated offenses.” (Epperson, supra, 7 Cal.App.5th at p. 390, 212 Cal.Rptr.3d 584.) Rather, it “sets forth the sentencing range” (ibid.) for DUIs committed by defendants with prior DUI convictions by declaring that they are to be sentenced as felonies (or as “wobblers”) – 16 months, two or three years, or by not more than one year in the county jail. Where a statute performs that function, but mentions only completed crimes, it must be read together with section 664 to determine the appropriate sentence for attempts. (Epperson, at p. 388, 212 Cal.Rptr.3d 584; Maria D., supra, 199 Cal.App.4th at pp. 115-116, 131 Cal.Rptr.3d 21; Duran, supra, 124 Cal.App.4th at p. 671, 21 Cal.Rptr.3d 495.) In other words, section 23550.5 does not omit attempts, as defendant argues; it includes them pursuant to section 664.

Section 23550.5 does not add additional time to a sentencing range; it establishes a sentencing range for defendants with qualifying prior DUI convictions. And there was no reason for the Legislature to mention attempts in the section 23550.5 sentencing range because the default sentencing range for attempts is set forth in Penal Code section 664. As noted, Penal Code section 664, subdivision (a) provides that attempts “shall be punished where no provision is made by law for the punishment of those attempts, as follows” and goes on to specify that “[i]f the crime attempted is punishable by imprisonment in the state prison, or by imprisonment pursuant to subdivision (h) of Section 1170, the person guilty of the attempt shall be punished by imprisonment in the state prison or in a county jail, respectively, for one-half the term of imprisonment prescribed upon a conviction of the offense attempted.”

 

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