Filed 11/25/13 P. v. Garcia CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E057766

v.                                                                       (Super.Ct.No. SWF1200349)

JOSE ELIAS GARCIA, JR.,                                                  OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Michael J. Rushton,

Judge. Affirmed.

         Neil Auwarter, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Stephanie

H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       Defendant and appellant Jose Elias Garcia, Jr., appeals from a felony judgment of

conviction of violating Vehicle Code sections 23152, subdivision (a), and 23152,

subdivision (b), claiming an improper “dual use” in calculating his sentence.1 We

disagree, and affirm.

                                 STATEMENT OF FACTS

       Because defendant pleaded guilty and challenges only his sentence, no detailed

recitation of the facts is necessary. According to the probation report,2 defendant was

stopped when a law enforcement officer observed his vehicle travelling over the speed

limit and crossing lane lines just before 11:00 o’clock in the morning. Defendant smelled

of alcohol, had bloodshot and glassy eyes, and his speech was slurred. Defendant

eventually admitted he had consumed six beers the previous evening. The results of a

preliminary blood alcohol screening were percentages of 0.156 and 0.161. After his

arrest, a breath test registered at 0.14 percent.

       As noted above, defendant pleaded guilty and admitted a prior conviction which

was alleged both as a “prior prison term” enhancement under Penal Code section 667.5,

subdivision (b), and a “strike” pursuant to Penal Code section 667, subdivisions (c) and




       1  The offenses were elevated to felonies due to defendant’s prior conviction
for gross vehicular manslaughter involving alcohol. (Pen. Code, § 191.5, subd. (a);
Veh. Code, § 23550.5, subd. (b).)

       2  Defendant waived his right to a preliminary hearing, so the probation report is
the sole available source of facts.


                                               2
(e)(1). This conviction occurred in 2006 and was for gross vehicular manslaughter while

intoxicated. (Pen. Code, § 191.5, subd. (a).)3

       There was no specified sentence. At sentencing, the trial court imposed the upper

term of six years (three years, doubled for the “strike” prior) for the conviction under

Vehicle Code section 23152, subdivision (a), and also imposed the one-year prior under

section 667.5, subdivision (b).4 In selecting the upper term, the court noted defendant’s

prior prison term, and the fact that while on parole for the prior conviction his parole had

been revoked for drinking. While the court noted in mitigation that defendant had

pleaded guilty (albeit on the day set for trial), the court was also concerned that defendant

admitted to the probation officer that he began drinking approximately a month after his

strict parole (which involved testing) terminated, and that he had been intoxicated several

times before the incident leading to his arrest. The court also commented that as

defendant had been driving a Hummer, any collision would likely have had serious

consequences and that he had been driving erratically.

       Defendant argues that his prior conviction under Penal Code section 191.5,

subdivision (a), was improperly used to elevate his offense to a felony, to justify the

upper term, and to impose the one-year enhancement. He is incorrect.




       3 Erroneously cited in the complaint as Vehicle Code section 191.5,
subdivision (a).

       4   The sentence on the other count ran concurrently.


                                              3
                                       DISCUSSION

       It is clear that “[t]he court may not impose an upper term by using the fact of any

enhancement upon which sentence is imposed under any provision of law.” (Pen. Code,

§ 1170, subd. (b).) It is similarly well-established that a fact that is an element of an

offense cannot be used to justify the upper term. (People v. Bowen (1992) 11

Cal.App.4th 102, 105.) Thus, defendant’s prior conviction for which a one-year

enhancement was imposed could not be used to impose the upper term for the current

conviction.

       However, a single aggravating factor is sufficient to support the selection of the

upper term. (People v. Black (2007) 41 Cal.4th 799, 815.) And the circumstances

surrounding the crime may be taken into account as long as they do not constitute legal

elements of the offense. (Cal. Rules of Court, rule 4.421(a); People v. Castorena (1996)

51 Cal.App.4th 558, 562; see also People v. Weaver (2007) 149 Cal.App.4th 1301,

1316-1317.) Here, the trial court expressly relied on defendant’s poor performance while

on parole (Cal. Rules of Court, rule 4.421(b)(5)); the speed at which he “fell off the

wagon” once released from parole supervision; and the fact that at the time of the offense,

he was sufficiently impaired to constitute a clear danger to other motorists. These factors

adequately supported the upper term without any need for reliance on the prior

conviction.

       Finally, even if a court lists both proper and improper factors to explain its

sentencing choice, reversal for resentencing is required only if it appears reasonably



                                              4
probable that the court would have chosen a lesser sentence had it known that one or

more of the factors upon which it relied were improper. (People v. Price (1991)

1 Cal.4th 324, 492.) Defendant argues that such a reasonable probability exists here, but

we disagree. Taken overall, it is apparent that the court here did not consider this a close

case, and was far more impressed by defendant’s conduct (or misconduct) after the prior

conviction than it was by the fact of that conviction alone. We entirely disagree with

defendant’s characterization of the conviction as the “dominant” factor; it was the fact

that defendant continued to drink, and drink and drive after that conviction, including

while on parole, that was the primary factor motivating the trial court’s decision.5

       Defendant also appears to argue that it was improper to use the prior conviction

both to elevate the current offense to a felony and to double the penalty as a “strike,” but

cites no authority on the point. Case law is to the contrary. (People v. White Eagle

(1996) 48 Cal.App.4th 1511, 1517-1519 (White Eagle) [holding that a prior robbery

conviction may be used 1) to elevate petty theft to a felony, 2) to sentence under the

“Three Strikes” law,6 and, 3) to impose a five-year enhancement under Penal Code

section 667]; see also People v. Murphy (2001) 25 Cal.4th 136, 156, citing White Eagle

on the point.)


       5 Defendant points out that the probation officer’s report recommended the
middle term. We respond that the trial court commented that “I don’t know if they are
crazy, but . . . the recommended sentence doesn’t seem to match up with the underlying
analysis.”

       6   Penal Code section 667, subdivisions (b)-(i).


                                              5
                                   DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                 HOLLENHORST
                                                           Acting P. J.
We concur:



KING
                         J.



MILLER
                         J.




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