Filed 10/31/14 P. v. Martin CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.



                                                       COPY

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                      (El Dorado)
                                                            ----




THE PEOPLE,                                                                                  C074597

                   Plaintiff and Respondent,                                  (Super. Ct. Nos. P12CRF0186,
                                                                                     P12CRF0186A)
         v.

JAMES PRESTON MARTIN,

                   Defendant and Appellant.




         A jury found defendant James Preston Martin guilty of various charges related to
driving while under the influence of alcohol (counts 1 through 4) and one charge of
driving on a suspended license (count 5). In a bifurcated proceeding, the trial court found
true an on-bail allegation and four of five prior prison term allegations. The court denied
probation and sentenced defendant to nine years eight months in state prison, plus one
year in county jail (for count 5) with credit for time served.



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       On appeal, defendant contends the sentence for count 5 violates Penal Code
section 654 (unless otherwise set forth, statutory references that follow are to the Penal
Code). Defendant further contends the abstract of judgment requires correction with
respect to the enhancements imposed. The People concede both errors. We accept the
People’s concession and modify the judgment accordingly.

                                 FACTS AND PROCEEDINGS

       The following is a summary of events occurring on January 24, 2012, and
August 3, 2012, culminating in charges that were consolidated for purposes of trial.

       1.     January 24, 2012

       On the evening of January 24, 2012, while at a gas station in Georgetown, Max
and Gail Archer observed defendant as he pumped gas into his white Ford Explorer and
then attempted to find his missing keys. The Archers called 911 because defendant was
mumbling, acting “erratic,” and staggering a bit, and appeared to be intoxicated.
According to Jim Miller, the owner of the gas station, defendant seemed “a little shaky,”
had “slurred speech,” and smelled of alcohol.
       El Dorado County Deputy Sheriff Eddie Freas was sent to the gas station and
arrived at approximately 7:30 p.m. He spoke with defendant, who had bloodshot, watery
eyes and slurred speech and was “extremely unsteady on his feet,” nearly losing his
balance and falling as he walked outside of the station to talk with Freas.
       California Highway Patrol Officer Kevin Bliss arrived at the gas station at
approximately 8:15 p.m. He noticed defendant had red, watery eyes and a strong odor of
alcohol on his breath, and was unstable on his feet.
       Defendant attempted to perform several field sobriety tests properly but was
unsuccessful. Portable breath alcohol tests conducted at the gas station indicated
defendant’s blood-alcohol content was .204 percent at 8:34 p.m., and .214 percent at
8:35 p.m.


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       Defendant was arrested and taken to county jail. Breath alcohol tests conducted
there indicated defendant had a blood-alcohol content of .18 percent at 10:02 p.m., and
.17 percent at 10:06 p.m.

       2.     August 3, 2012

       In the early morning hours of August 3, 2012, emergency personnel were notified
of an automobile collision on Highway 193. Paramedic Robin Poselez arrived there and
discovered a white Ford Explorer perched precariously on a steep, cliff-like slope some
25 feet off the road. Defendant, who was seated in the passenger seat, had some minor
injuries to his face and hand. He initially told Poselez he was the passenger and did not
know where the driver was, but eventually confessed that he was the driver and the only
person in the vehicle. Defendant was able to climb out of the Explorer and up the hill,
where Poselez noticed the odor of alcohol on his breath. Defendant was taken to the
hospital at approximately 2:00 a.m. and treated for his injuries.
       California Highway Patrol Officer John George was sent to the site of the
accident. After completing his investigation there, he went to the hospital, arriving there
at approximately 3:15 a.m. Officer George noticed defendant’s clothes were bloody and
disheveled, he had abrasions on his face, his eyes were red, and his speech was slurred.
Officer George also detected the smell of alcohol on defendant’s breath and emanating
from his body. Defendant eventually admitted having consumed “two beers and a pint”
and taken Hydrocodone.
       Defendant was arrested. A blood sample taken at approximately 3:40 a.m.
revealed defendant had a blood-alcohol content of .16 percent.
       The parties stipulated that, at the time of his arrest on August 3, 2012, defendant’s
driver’s license had been suspended for “drunk driving or drugs.”




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                               PROCEDURAL BACKGROUND

       Defendant was charged by consolidated information with driving while under the
influence of alcohol with a prior conviction alleged under Vehicle Code section 23550.5
(Veh. Code, § 23152, subd. (a)--count 1), two counts of driving with a blood-alcohol
content of .08 percent or higher with a prior conviction alleged under Vehicle Code
section 23550.5 (Veh. Code, § 23152, subd. (b)--counts 2 and 4), driving while under the
influence of alcohol with prior convictions (Veh. Code, § 23550.5--count 3), and
misdemeanor driving on a suspended license (Veh. Code, § 14601.2, subd. (a)--count 5).
The information alleged defendant suffered five prior felony convictions (§ 1203, subd.
(e)(4)) and five prior convictions for which he served separate prison terms (§ 667.5,
subd. (b)); at the time of commission of counts 3, 4, and 5, defendant was on bail or on
his own recognizance (§ 12022.1); and, as to all counts, defendant had a blood-alcohol
content of .15 percent or higher (Veh. Code, §§ 23575, 23578).
       At trial, the jury found defendant guilty on all counts and found true the
.15 percent or higher blood-alcohol allegation. In a bifurcated proceeding, the trial court
found true the on-bail allegation as to counts 3 and 4, and found four of the five prior
prison term allegations true as well.
       The court denied probation, pronounced defendant a habitual traffic offender
pursuant to Vehicle Code sections 13350 and 14601, subdivision (e)(3), and imposed an
aggregate sentence of nine years eight months, plus one year in county jail with credit for
time served, comprised as follows: Three years on count 4, plus a consecutive two-year
term for the on-bail enhancement, four consecutive one-year terms for the prior prison
term enhancements, and a consecutive eight-month term for count 2. As to count 5, the
court imposed a consecutive one-year term in county jail with credit for time served. As
to counts 1 and 3, the court imposed but stayed three-year terms pursuant to section 654.
The court also imposed various fees and fines and awarded presentence custody credits.



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                                       DISCUSSION

                                             I

       Defendant contends, and the People concede, the court erred when it failed to stay
the consecutive one-year term imposed for count 5. We agree.
       Section 654, subdivision (a), prohibits punishing any “act or omission that is
punishable in different ways by different” penal provisions. This means, at the least, that
“multiple punishment for a single physical act that violates different provisions of law” is
prohibited. (People v. Jones (2012) 54 Cal.4th 350, 358 (Jones).)
       “Whether multiple convictions are based upon a single act is determined by
examining the facts of the case.” (People v. Mesa (2012) 54 Cal.4th 191, 196.) “The
purpose of section 654 is to ensure that a defendant’s punishment will be commensurate
with his culpability.” (People v. Correa (2012) 54 Cal.4th 331, 341.)
       Here, as a result of the August 3, 2012, incident, defendant was charged with
driving under the influence of alcohol (count 3), driving with a blood-alcohol content of
.08 percent or higher (count 4), and driving on a suspended license (count 5). The parties
agree, and there can be no dispute based on the record before us, that all three crimes
were committed simultaneously and that they arose from the single physical act of
defendant driving his white Ford Explorer on August 3, 2012.
       The trial court imposed a three-year term for count 4 and a one-year term for count
5, and imposed but stayed a three-year term for count 3. We conclude the one-year
sentence for driving on a suspended license (count 5) punishes defendant for the same act
as does the three-year sentence for driving with a blood-alcohol content of .08 percent or
higher (count 4), thus violating Penal Code section 654. (Jones, supra, 54 Cal.4th at
p. 358.) Because the sentence for count 5 was unauthorized, we may correct it in the first
instance. (People v. Hester (2000) 22 Cal.4th 290, 295.) We will modify the judgment
accordingly.


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                                              II

       Defendant contends, and the People agree, that the abstract of judgment should be
corrected to accurately reflect the on-bail and prior prison term enhancements imposed by
the trial court. Again, we agree.
       Where there is a discrepancy between the oral pronouncement of judgment and the
abstract of judgment, the oral pronouncement controls. (People v. Mitchell (2001)
26 Cal.4th 181, 185-186; People v. Mesa (1975) 14 Cal.3d 466, 471.) Here, the trial
court imposed a two-year term for the on-bail enhancement (§ 12022.1) and four one-
year terms for the prior prison term enhancements (§ 667.5, subd. (b)). The abstract of
judgment, however, reflects a two-year term for the prior prison term enhancements
(§ 667.5, subd. (b)) and a four-year term for those same prior prison term enhancements.
When there is “an evident discrepancy between the abstract of judgment and the
judgment that the reporter’s transcript and the trial court’s minute order reflect, the
appellate court itself should order the trial court to correct the abstract of judgment.”
(People v. Mitchell (2001) 26 Cal.4th 181, 188.) We shall direct the trial court to make
this correction.




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                                       DISPOSITION

       The judgment is modified to stay the sentence imposed for count 5 (misdemeanor
driving on a suspended license). As modified, the judgment is affirmed. The trial court
is directed to correct the abstract of judgment to reflect a two-year enhancement pursuant
to section 12022.1, and a four-year enhancement pursuant to section 667.5, subdivision
(b). The trial court is further directed to prepare an amended abstract of judgment and to
forward a certified copy to the Department of Corrections and Rehabilitation.



                                                       HULL                  , J.



We concur:



      RAYE                  , P. J.



      DUARTE                , J.




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