People v. Escareno
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After hearing a dispatch broadcast about a possible drunk driver, Napa Officer Cadena arrived at a location where that vehicle had been observed parked, engine running, with the driver (Escareno) apparently asleep. Escareno appeared intoxicated. There was an empty can of beer in plain view. Escareno performed poorly on field sobriety tests. Subsequent testing found a blood alcohol level of .208.
Escareno entered a plea of no contest to felony DUI after two prior felony convictions for the same, felony driving with .08 percent or higher blood alcohol after two prior felony convictions for the same, misdemeanor unlawful operation of a vehicle not equipped with a functioning ignition interlock device, misdemeanor driving when privilege suspended for DUI, with priors, misdemeanor driving while license suspended or revoked, with priors, misdemeanor driving without a valid license, and possession of an open alcoholic beverage while driving, an infraction.
The court imposed the three-year aggravated term on felony count 1 and the same on felony count 2, stayed. The court rejected a defense argument that because Escarena was sentenced to prison, the misdemeanor and infraction counts had to be dismissed under section 41500: “A person shall not be subject to prosecution for a nonfelony offense arising out of the operation of a motor vehicle” that is pending against him at the time of his commitment” to custody and imposed a county jail sentence, stayed.
The court of appeal affirmed. Applying section 41500 to a defendant being prosecuted in a single action for felony and nonfelony offenses arising out of a single incident would offer a windfall to a defendant who committed multiple offenses.
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