People v. Cummings

61 Cal.App.5th 603

275 Cal.Rptr.3d 829

The PEOPLE, Plaintiff and Respondent,

v.Tanya Marie CUMMINGS, Defendant and Appellant.

C084505

Court of Appeal, Third District, California.

Filed March 3, 2021

As Modified on Denial of Rehearing March 24, 2021

Certified for Partial Publication.^*

Jill Klein, Pasedena, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Michael P. Farrell, Senior Assistant Attorney General, Daniel B. Bernstein, Kevin M. Cornwall, Catherine Chatman and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.

MURRAY, J.

After entering 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, defendant Tanya Marie Cummings was granted five years of formal probation.

Defendant appeals, contending that (1) attempted DUI, even with two prior felony DUI convictions, is a misdemeanor under the plain terms of section 23550.5 (2) the trial court erred by ordering her to pay for the cost of her court appointed counsel without a finding of ability to pay or a showing of the actual costs incurred, and in supplemental briefing (3) based on People v. Dueñas (2019) 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268 (Dueñas ), the imposition of the various assessments imposed by the trial court without an ability to pay determination was unconstitutional.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On March 16, 2016, a deputy dispatched to a vehicle collision found a vehicle that had crashed through a park fence into a play structure in a playground. Defendant, who was exhibiting objective signs of intoxication, was found nearby. Defendant acknowledged the vehicle was hers but said she loaned it to her cousin and after he called her to inform her of the crash, she walked to the playground. She said she tried to back the vehicle out of the playground, but the wheels were stuck in the wood chips.

Defendant was originally charged with two DUI counts ( § 23152, subds. (a), (b) (counts 1 & 2, respectively).) Additionally, it was alleged under section 23550.5 that defendant had two qualifying prior DUI convictions within 10 years, one for violating section 23152, the other for violating section 23153. Prior to trial, the People filed an amended information adding two counts of attempted DUI with prior DUI convictions (Pen. Code, § 664/ Veh. Code, § 23152, subds. (a), (b), § 23550.5 (counts 3 & 4, respectively)), based on defendant's statement to law enforcement that she tried to drive out of the playground, but was unable to move her vehicle.

On the day of trial, the court was informed the parties had arrived at a negotiated resolution, which involved a plea to an attempted DUI count in the proposed amended information. However, counsel for defendant objected to the amendment and informed the court she was not joining in the plea.

Counsel argued that attempted DUI is not listed under section 23550.5. Counsel asserted: "We know that the [L]egislature adds attempt when they want to. We know that because we look at the strikes law, and we see that attempt is specifically enum[ ]erated, so it's my position that a 664 slash 23152 is a misdemeanor, and I don't believe that it's a felony."

After defendant indicated she nevertheless wished to accept the plea offer, counsel reiterated her legal objection, stated that she had advised defendant not to enter the plea, and declined to join in the plea.

The prosecutor replied: "The People's position is that this is a felony given the theory behind People v[.] Garcia [(1989) 214 Cal.App.3d Supp. 1, 262 Cal.Rptr. 915 ( Garcia )]. The People also look to Mitchell v[.] California Department of Corrections and Rehabilitation at 2011, US District Lexus 112916[,] ... [in which] a prior attempted DUI was viewed as a felony, in that the court saw and noted that the defendant in that case went to state prison, which seems to suggest that it was a felony. [¶] The People further argue that this is a felony because in that case priors were used in that way, and here there is nothing that is different in the charging scheme that allows [defendant] to be charged as a felony except for the fact that there may be a question as to driving. It doesn't change that fact that she has two prior felony DUIs which is what is looked at to determine whether the next offense would be a felony."

The trial court stated: "And I have added as well that I reviewed ... Penal Code Section 664, which by its own terms applies to every felony, and I find no more specific statutes that ... limits the operation of 664."

Defense counsel noted that the issue of whether a felony conviction for attempted DUI was valid had not been raised in the unpublished federal district court case.

The trial court replied: "Well I will say this, I have considered that case, but even if I were to delete that case from my consideration, I would make the same findings." The court then formally took defendant's plea to count 4 as a felony and, on the motion of the prosecution, dismissed the remaining counts in the interest of justice in light of the plea.

DISCUSSION

I. Attempted DUI with Priors

A. Defendant's Contention

Relying on "the plain language" of section 23550.5 in isolation and case law construing statutes that allow punishment to be added to the usual punishment specified in a statutory sentencing range, defendant contends that attempted DUI cannot be a felony under section 23550.5 because that statute mentions only completed crimes. As we shall discuss, the case law defendant relies on is inapposite based on the reasoning in 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. Defendant's argument ignores the distinction discussed in Epperson 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.)

B. Analysis

Section 23550.5 provides in pertinent part: "(a) A person is guilty of a public offense, punishable by imprisonment in the state prison² 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." (Italics added.)

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. ( Ibid . ) Here, there is no dispute that attempted DUI is an offense. The question we must resolve is whether that crime is a felony when the defendant has a qualifying DUI prior.

We begin with Penal Code section 664. 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.’ " ( Ibid . ) 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, and defendant does not cite any authority so construing section 23550.5. Consequently, the fact that section 23550.5 does not mention attempts does not mean that attempted DUI is excluded from its scope. To the contrary,...