Metropolitan News-Enterprise


Tuesday, September 11, 2001


Page 3


Court of Appeal Restricts Felony Prosecutions of Drunken Driving


By KENNETH OFGANG, Staff Writer/Appellate Courts


A fourth drunk-driving offense within seven years cannot be tried as a felony unless proof of the prior convictions has been presented at the preliminary hearing, the Fifth District Court of Appeal ruled yesterday.

“Our analysis of California’s historical framework for charging a felony by information persuades us that pleading and proof at the preliminary hearing of three ‘separate violations … which resulted in convictions’ of DUI is a constitutional and statutory condition precedent to prosecution and punishment of a fourth DUI as a felony,” Judge Gene Gomes wrote for the court.

Gomes is a Fresno Superior Court judge, sitting on assignment.

The appellate panel agreed with Kings Superior Court Judge Peter M. Schultz that the failure to charge Casimero C. Casillas’ prior convictions as an element of the preliminary hearing proof was a fatal defect requiring dismissal of the felony charge under Penal Code Sec. 995.

 Casillas was charged with a felony under Penal Code Sec. 23550. The statute makes drunk driving a wobbler if the defendant has three convictions within a sever-year period.

Because the law refers to “separate,” rather than “prior,” convictions, a conviction for an offense which occurred after that with which the defendant is currently charged may be counted.

Gomes noted that the Penal Code provides that the magistrate “shall” dismiss “if there is not sufficient cause to believe the defendant guilty of a public offense,” and that a defendant is entitled to the benefit of any reasonable interpretation of an ambiguous statute.

The state Constitution, the jurist noted, requires the filing of an information or indictment before a crime may be prosecuted as a felony Absent a showing of probable cause, Gomes added, there can be no prosecution by information.

The jurist also noted that in 1927, the Legislature enacted Penal Code Sec. 969a,  which relieves prosecutors of the duty of pleading and proving prior felony convictions at a preliminary hearing. No equivalent statute exists for misdemeanor convictions, Gomes pointed out.

Gomes acknowledged prosecutors’ concern that the panel’s interpretation would reward a defendant’s ability to commit drunk-driving offenses “faster than his convictions can be processed by the courts.” But the problem is curable, the jurist said, because the district attorney can file a misdemeanor complaint and later move to amend it to charge a felony on the basis of an intervening conviction.

“If the Legislature were to choose to address the Attorney General’s concern in other ways, that is the branch of government with the authority to initiate the necessary enactments, constitutional or statutory or both,” Gomes wrote.

The case is People v. Casillas, 01 S.O.S. 4614.


Copyright 2001, Metropolitan News Company