Opinion
B226196
08-30-2011
THE PEOPLE, Plaintiff and Respondent, v. VILSON KHANZETYAN, Defendant and Appellant.
James Koester, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA367784)
APPEAL from a judgment of the Superior Court of Los Angeles County. Charlaine F. Olmedo, Judge. Convictions affirmed; sentence vacated in part and remanded.
James Koester, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Vilson Khanzetyan of driving under the influence of alcohol and driving with a blood alcohol level of 0.08 percent or more (Veh. Code § 23152, subds. (a) and (b)). Khanzetyan's principal contention on appeal is that he cannot be convicted of both crimes because driving under the influence is a lesser included offense of driving with a 0.08 percent blood alcohol level. This contention lacks merit.
Khanzetyan further contends, and the People concur, that the court committed several sentencing errors that require the matter be remanded for resentencing. We agree.
FACTS AND PROCEEDINGS BELOW
A police officer observed Khanzetyan driving erratically and noticed smoke was coming from the engine compartment of the car, the car had front-end damage and the driver's side air bag had been deployed. The officer stopped the car and when he approached he smelled alcohol. Two breath tests performed in the field showed a blood-alcohol level of 0.086 and 0.096. Khanzetyan was arrested and taken to a police station where additional breath tests were performed. These tests showed blood alcohol levels of 0.10 and 0.09.
A jury found Khanzetyan guilty of driving under the influence of alcohol or drugs (Veh. Code § 23152, subd. (a)) (count one) and driving with a blood-alcohol level of 0.08 or more (§ 23152, subd. (b)) (count two). Following these convictions, Khanzetyan admitted to prior drunk driving convictions and a prior prison term in exchange for the low term 16-month sentence on one of the counts. The court imposed sentence on one count but not the other and stayed, rather than struck, the prior prison term enhancement.
All statutory references are to the Vehicle Code except where otherwise specified.
Khanzetyan filed a timely appeal.
DISCUSSION
Section 23152, subdivision (a) states: "It is unlawful for any person who is under the influence of any alcoholic beverage or drug . . . to drive a vehicle." Section 23152, subdivision (b) states: "It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle." Under section 23610, subdivision (a), if a person was driving a vehicle with a 0.08 or greater blood-alcohol level a jury may infer that the person was driving "under the influence" for purposes of section 23152, subdivision (a).
Khanzetyan contends that in light of the permissive inference of section 23610, driving under the influence is a lesser included offense of driving with a 0.08 percent blood-alcohol level because a person cannot commit the latter without committing the former. We disagree.
The flaw in Khanzetyan's argument is that even if the prosecution proves beyond a reasonable doubt that the defendant's blood-alcohol was 0.08 or more, to convict him of driving under the influence, it still must prove that the defendant "was actually impaired by his drinking." (People v. McNeal (2009) 46 Cal.4th 1183, 1193 [explaining the difference between the offenses defined in section 23152, subdivision (a) and subdivision (b)].) Granted, section 23610 allows the jury to infer that the defendant was "under the influence" if his blood-alcohol level was 0.08 or greater but the jury is not required to draw that inference. In conformity with this rule of evidence the court in this case instructed the jury under CALCRIM No. 2110 that: "If the People have proved beyond a reasonable doubt that the defendant's blood-alcohol level was 0.08 percent or more at the time of the chemical analysis, you may, but are not required to, conclude that the defendant was under the influence of an alcoholic beverage at the time of the alleged offense." Thus, despite the enactment of section 23610 it is still possible for a defendant to drive a vehicle with a blood-alcohol level of 0.08 or more, thus violating section 23152, subdivision (b) without driving "under the influence" thus not violating section 23152, subdivision (a).
As to the court's sentencing errors, the augmented record shows that the court has now stricken the prior prison term enhancement under Penal Code section 667.5, subdivision (b) so that error is cured. We agree with the parties that the court erroneously failed to impose sentence on one of the two counts.
DISPOSITION
The judgment of conviction is affirmed. The sentence on counts one and two is vacated the cause is remand to the trial court with directions to impose a sentence on the base count and impose then stay the sentence on the subordinate count. The court shall then forward a corrected abstract of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
ROTHSCHILD, J.
We concur:
MALLANO, P. J.
CHANEY, J.