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Filed 9/30/08 P. v. Piper CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
DONALD SEAN PIPER,
Defendant and Appellant.
A117164
(Contra Costa County Super. Ct.
Nos. 02-288050-8, 02-290066-0)
Donald Sean Piper appeals from a judgment imposed upon his plea of no contest to driving under the influence of alcohol (DUI) with prior convictions (Veh. Code, §§ 23152, subd. (a), 23550).) He contends that application of the amended version of section 23550 violates the ex post facto clause of the federal Constitution. We affirm.
I. FACTUAL BACKGROUND
A criminal complaint in case No. 02-288050-8 was filed on September 2, 2005, charging defendant with two counts of DUI with three prior convictions, and alleging that the underlying DUI was committed within seven years of the prior convictions within the meaning of section 23550. The complaint alleged that the current DUI was committed on June 28, 2005, while the three priors were committed on July 8, 1996, July 22, 1996, and March 3, 1997. On January 10, 2006, the complaint was amended to allege that the new DUI was committed within 10 years of the prior convictions. The trial court dismissed this complaint, after striking the prior conviction allegations on the ground that applying section 23550, as amended, violated ex post facto principles.
On February 2, 2006, a new complaint, case No. 02-290066-0 was filed alleging the same charges as in the prior complaint. This complaint alleged that defendant committed the underlying DUI within 10 years of the prior convictions. On April 11, 2006, the court granted defendant's demurrer and dismissed the complaint. The district attorney subsequently moved to reinstate the complaint pursuant to Penal Code section 871.5. The trial court granted the motion.
On January 11, 2007, pursuant to a negotiated disposition, defendant pled no contest to one count of DUI with prior convictions. The trial court thereafter granted a certificate of probable cause.
II. DISCUSSION
Defendant contends that application of amended section 23550 to his current offense violates the federal constitutional bar against ex post facto laws. He argues that his three prior convictions were more than seven years old at the time the amended statute went into effect on January 1, 2005. The Courts of Appeal have consistently rejected this argument.
In People v. Forrester (2007) 156 Cal.App.4th 1021, 1023, the court addressed section 23540 which provides for an enhanced punishment if a defendant commits another DUI within 10 years of a current offense. The court rejected the defendant's claim that the new statute violated ex post facto principles, relying on well-settled law that "the sentence imposed upon a habitual offender is not an additional punishment for the earlier crime, but a punishment for the later crime . . . ." (Forrester, at p. 1024.) " ‘There is no constitutional bar preventing application of [sections 23540, 23546, 23550] to later offenses solely because the prior conviction which serves as a basis for enhancement was committed before the habitual offender statute was enacted.' " (Ibid., quoting People v. Sweet (1989) 207 Cal.App.3d 78, 83.)
The Forrester court distinguished Stogner v. California (2003) 539 U.S. 607 upon which defendant relies. In Stogner, the court held that a California statute violated the constitutional prohibition against ex post facto laws because it permitted the prosecution of certain child sexual abuse crimes when the statute of limitations for those crimes had already expired. (Id. at p. 609.) "Unlike [the defendant in Stogner, defendant here] has not been charged with a crime for which the statute of limitations has run. He has not been deprived of a ‘vested defense' because the statute extending the maximum period of prior offenses was enacted before the current offense. [Citation.]" (Forrester, supra, 156 Cal.App.4th at p. 1025.)
Forrester is dispositive of defendant's claim. Here, as well, defendant's current offense occurred on June 28, 2005, after the effective date of amended section 23550. His offense was subject to the law in effect at the time of the commission of the offense. (Forrester, supra, 156 Cal.App.4th at pp. 1024-1025; see also Treadway, supra, 163 Cal.App.4th at p. 698 [no ex post facto violation as defendant committed new offense in 2005 after the 10-year period of section 23550 came into effect].)
III. DISPOSITION
The judgment is affirmed.
________________________
RIVERA, J.
We concur:
___________________________
REARDON, Acting P.J.
___________________________
SEPULVEDA, J.
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