Filed 3/19/15 P. v. Wilson CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H040608
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C9922421)

         v.

RICK J. WILSON,

         Defendant and Appellant.



         A jury found defendant Rick J. Wilson guilty of driving under the influence of
alcohol (DUI). (Veh. Code, § 23152, subd. (a).) In a bench trial, the court found true an
allegation of a prior conviction for gross vehicular manslaughter. (Veh. Code, § 23152,
subd. (a), former Veh. Code, § 23175.5, subd. (a)(3), repealed and reenacted as Veh.
Code, § 23550.5, subd. (b) [Stats. 1998, ch. 118, § 84]). Defendant also pleaded guilty to
three misdemeanor violations: driving while his privileges were suspended for reckless
driving, driving while his privileges were suspended for a prior DUI, and driving while
his privileges were suspended for refusing to submit to a blood test. (Veh. Code,
§§ 14601, subd. (a), 14601.2, subd. (a), 14601.5, subd. (a).) The trial court maintained
defendant’s DUI conviction as a felony and sentenced him to the upper term of three
years. The court also imposed three concurrent 90-day sentences for the misdemeanor
convictions.
       On appeal, defendant argues that the trial court abused its discretion in sentencing
him to three years for the felony DUI conviction because the record fails to support
imposition of the aggravated term. He further argues that imposition of the three
misdemeanor sentences violated Penal Code section 654.
       We conclude that the trial court did not abuse its discretion in sentencing
defendant to the upper term for his felony conviction. Additionally, the Attorney General
concedes, and we agree, that section 654 requires that the sentences for defendant’s
misdemeanor convictions be stayed. Accordingly, we will stay the misdemeanor
sentences and affirm the judgment as modified.
                      I. FACTUAL AND PROCEDURAL BACKGROUND
       This is defendant’s third appeal in this matter. The factual and procedural
background for the previous two appeals is set forth in detail in our prior opinion. (See
People v. Wilson (2013) 219 Cal.App.4th 500, 504-508.)1
       In 1999, defendant was convicted of felony DUI (Veh. Code, § 23152, subd. (a)),
with a prior conviction for gross vehicular manslaughter (former Veh. Code, § 23175.5,
subd. (a)(3), repealed and reenacted as Veh. Code, § 23550.5, subd. (b) [Stats. 1998,
ch. 118, § 84]). The trial court found two prior “serious felonies” qualifying as strikes, or
“strike priors” under the Three Strikes law. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.)
Accordingly, the court sentenced defendant as a third strike offender to a prison term of
25 years to life. In 2002, this court affirmed the judgment. (People v. Wilson (Dec. 23,
2002, H021472) [nonpub. opn.].)
       In 2011, defendant successfully challenged his sentence under Apprendi v. New
Jersey (2000) 530 U.S. 466 (Apprendi) in a federal habeas corpus proceeding. (Wilson v.
Knowles (9th Cir. 2011) 638 F.3d 1213.) The Ninth Circuit vacated his life sentence and
the federal district court remanded the matter to state court for resentencing. On remand,

       1
        We take judicial notice of the record in the prior appeal. (Evid. Code, §§ 452,
subd. (d), 459, subd. (a).)

                                              2
the trial court struck the first strike, left the second strike intact, and sentenced defendant
as a second strike offender to a six year prison term (double the three-year upper term for
felony DUI).
       In defendant’s second appeal, this court held that the trial court had violated
federal law under Apprendi and state law under People v. McGee (2006) 38 Cal.4th 682.
The matter was once again remanded for resentencing. (People v. Wilson, supra,
219 Cal.App.4th at p. 520.)
       At resentencing on December 20, 2013, the trial court dismissed the remaining
strike allegation for insufficient evidence. This left defendant with a DUI conviction with
a prior conviction for gross vehicular manslaughter while intoxicated. The trial court
maintained the DUI as a felony and imposed the upper or aggravated term of three years
based on a finding that defendant suffered from “excessive high blood alcohol, and [that]
there was also an unsafe vehicle violation of a red light involved.” Defense counsel
objected “based on the claim that there are no facts or information in the record to legally
justify imposition of the aggravated term.” In response, the court cited the Romero2
motion defendant filed in his original proceeding as the factual basis supporting
imposition of the upper term. The court further imposed concurrent 90-day terms on
three admitted misdemeanors for: (1) driving when privileges were suspended for
reckless driving (Veh. Code, § 14601, subd. (a), Count Two); (2) driving when
privileges were suspended for a prior DUI (Veh. Code, § 14601.2, subd. (a), Count
Three); and (3) driving when privileges were suspended for refusing to submit to a blood
test (Veh. Code, § 14601.5, subd. (a), Count Four). The court deemed defendant’s
sentences served, and released him from custody.




       2
           People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

                                               3
                                         II. DISCUSSION
   A. The Trial Court Did Not Abuse Its Discretion When It Imposed the Upper Term
      for the Felony DUI Offense
       Penal Code section 1170, subdivision (b) provides in relevant part that “[w]hen a
judgment of imprisonment is to be imposed and the statute specifies three possible terms,
the choice of the appropriate term shall rest within the sound discretion of the court.”
(Pen. Code, § 1170, subd. (b).) In this case, the trial court had discretion to sentence
defendant to a term of 16 months, two years, or three years, depending on the relevant
mitigating or aggravating factors. (Pen. Code, § 18.)
       A trial court’s imposition of an upper or aggravated term is reviewed on appeal for
abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847). An abuse of
discretion is a ruling that is “so irrational or arbitrary that no reasonable person could
agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377.) But “the court’s
discretion is not unlimited . . . [r]ather, it must be exercised within the confines of the
applicable legal principles.” (Sargon Enterprises, Inc. v. University of Southern
California (2012) 55 Cal.4th 747, 773.) When exercising its discretion, a trial court “may
consider the record in the case, the probation officer’s report, other reports . . . statements
in aggravation or mitigation submitted by the prosecution, [or] the defendant . . . and any
further evidence introduced at the sentencing hearing.” (Pen. Code, § 1170, subd. (b).)
The sentencing court is also required to “set forth on the record the reasons for imposing
the term selected.” (Pen. Code, § 1170, subd. (b).)
       At defendant’s most recent sentencing, the trial court based its decision on
findings that defendant suffered from “excessive high blood alcohol,” and that there was
“an unsafe vehicle violation of a red light involved.” Defendant argues that the “record
on appeal fails to support the court’s determination that there was any . . . such finding in
either respect.” Citing the California Rules of Court, rule 4.420(b), defendant asserts that



                                               4
because any evidence to support the trial court’s decision falls short of a jury finding, the
sentence should be deemed arbitrary.
       This argument is misguided. California Rules of Court, rule 4.420(b) provides, in
relevant part, that “the sentencing judge may consider circumstances in aggravation or
mitigation, and any other factor reasonably related to the sentencing decision. The
relevant circumstances may be obtained from the case record . . . .” (California Rules of
Court, rule 4.420(b) (emphasis added).) Moreover, Penal Code section 1170, subdivision
(b) “permits the court, when imposing the upper term, to rely on aggravating facts that
have not been found true by the jury.” (People v. Black (2007) 41 Cal.4th 799, 808.)
       Here, the record contains a number of references to defendant’s red light violation.
The Romero motion referenced by the trial court, filed on March 2, 2000, notes that
defendant “was stopped for making a U-turn against a red light.” The record also
contains trial testimony from Officer Christopher Gene Perilli who stated that defendant
“was traveling at a high rate of speed and then ran a red light.” Officer Perilli further
explained that defendant “was traveling eastbound; pulled into the left turn lane . . .
continued through the red light, which was a red arrow; made a U-turn; and then
continued westbound.” And the previous opinion issued by this court states that “a police
officer stopped defendant after he ran a red light at high speed.” Accordingly, the trial
court properly relied upon defendant’s “unsafe red light violation” in support of its
imposition of the upper term.
       In contrast, we find no basis in the record that defendant had an excessively high
blood alcohol level, the second aggravating factor cited by the trial court. As highlighted
in our previous opinion in this case, after Officer Perilli arrested defendant, he “became
belligerent and refused to take a blood test.” Thus, there is no evidence to support the
trial court’s conclusion that defendant “suffered a finding of an excessive high blood
alcohol.”



                                              5
       This leaves one proper, and one improper, aggravating factor as the bases for the
trial court’s sentencing decision. “When a trial court has given both proper and improper
reasons for a sentence choice, a reviewing court will set aside the sentence only if it is
reasonably probable that the trial court would have chosen a lesser sentence had it known
that some of its reasons were improper.” (People v. Price (1991) 1 Cal.4th 324, 492.)
       Based on our reading of the record, there is no reasonable probability that the trial
court would have opted for a lesser sentence had it been aware that defendant did not
suffer a finding of excessive blood alcohol. The trial court did not hesitate to sentence
defendant to the aggravated term, nor did it waver when defense counsel objected to the
sentence imposed. Furthermore, considering that even one factor in aggravation is a
sufficient basis for imposing the upper term, it is not reasonably probable the court would
have chosen a lesser sentence had it known that defendant refused to submit to a blood
test at the time of his arrest. (People v. Steele (2000) 83 Cal.App.4th 212, 226.)
   B. The Misdemeanor Sentences Violate Section 654
       The trial court also sentenced defendant to three concurrent 90-day sentences for
three separate misdemeanor violations. Defendant argues, and the Attorney General
concedes, that the sentencing court’s imposition of these sentences violated Penal Code
section 654.
       Penal Code section 654, subdivision (a) proscribes multiple punishment for “[a]n
act or omission that is punishable in different ways by different provisions of law . . .”
(Pen. Code § 654, subd. (a).) The California Supreme Court has interpreted section 654
to prohibit multiple punishment for a “single physical act.” (People v. Jones (2012)
54 Cal.4th 350, 358.) Further, it is well established that “ ‘the imposition of concurrent
sentences is precluded by section 654 [citations] because the defendant is deemed to be
subjected to the term of both sentences although they are served simultaneously.’ ” (Id.
at p. 353, emphasis in original.)



                                              6
       “Whether section 654 applies in a given case is a question of fact for the trial
court, which is vested with broad latitude in making its determination.” (People v. Jones
(2002) 103 Cal.App.4th 1139, 1143.) The trial court’s “findings will not be reversed on
appeal if there is any substantial evidence to support them.” (Ibid.) “We review the trial
court’s determination in the light most favorable to the respondent and presume the
existence of every fact the trial court could reasonably deduce from the evidence.” (Ibid.)
       Defendant’s misdemeanor convictions stem from the same physical act of driving
that resulted in his felony DUI conviction. Therefore, under Penal Code section 654,
defendant’s misdemeanor sentences must be stayed. (Pen. Code, § 654; Jones, supra,
103 Cal.App.4th at p. 1143.)
                                     III.   DISPOSITION
       The three 90-day sentences imposed for defendant’s misdemeanor convictions on
Counts Two, Three, and Four are stayed. As modified, the judgment is affirmed.




                                             7
                      _______________________________
                      Márquez, J.




WE CONCUR:




_____________________________________
 Rushing, P. J.




______________________________________
 Premo, J.
