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Criminal Defense Attorneys

What Is Vehicle Code § 41500(a) for Those in Custody?

As the reader of this article may already be aware by virtue perhaps of using Google for Vehicle Code § 41500(a), this code section provides that “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 or her at the time of his or her commitment to the Secretary of the Department of Corrections and Rehabilitation, the Division of Juvenile Justice in the Department of Corrections and Rehabilitation, or to a county jail pursuant to subdivision (h) of Section 1170 of the Penal Code.”  There are certain exceptions to this, notably DUI.

This statute “is an exception to the rule that all criminal offenses are subject to prosecution.”  Joseph v. Superior Court (1992) 9 Cal. App. 4th 498, 503.

Consistent with the legislative intent behind this statute, one judge observed, “There is . . . strong public policy that allows felons sentenced to state institutions to obtain relief from detainers that might render their release date uncertain and thus adversely affect their eventual rehabilitation.”  People v. Lopez (2013) 218 Cal. App. 4th Supp. 6, 11 (Lopez), quoting People v. Freeman (1987) 225 Cal. App. 3d Supp. 1, 4 (Freeman). 

The Legislature noted that the purpose of section 41500 is to allow prisoners to leave prison with a clean record.

However, this article is not meant to be a dissertation on what a dry code section allows.  It is about what one judge surely regarded as misguided creativity in the context of 41500(a), so it is a good example of the code sections limitations.

On February 29, 2020, at about 10:00 p.m., Napa County Sheriff Police Officer Kyle Cadena was dispatched to be on the lookout for a possible drunk driver near State Route 29 and Oak Knoll Avenue.  A caller had reported a gold Toyota Avalon with a certain license plate number driving at an erratic speed and crossing the double yellow lines into opposing traffic and then onto the shoulder of the road.

About forty minutes later, Cadena found the vehicle parked, but with its engine still running and its lights on, with the driver asleep and unresponsive to tapping on the window.  Cadena suspected a medical emergency, but then upon opening the car, found just a very drunk man named Francisco Carrillo Escareno. 

A blood sample was taken about an hour later and his blood alcohol content was .206%.  Mr. Escareno told officers he had consumed ten beers in the last seven hours.

Escareno was on post release community supervision (PRCS) and his driver’s license was suspended.  He was not to drive without an ignition interlock device on his car and the Avalon did not have this installed.

Escareno was charged with felony DUI because he had two prior felony DUI convictions, misdemeanor operating a motor vehicle without a functioning ignition interlock device (Vehicle Code § 23247(e), driving with a suspended license due to a DUI (Vehicle Code § 14601.2(a).

Less than a week later, Escareno entered pleas of no contest to all counts and admitted the special allegations and prior convictions.  At sentencing, the judge, Elia Ortiz, imposed a three year prison sentence on the DUI.

Before sentencing on the misdemeanor offenses, defense counsel interjected and requested dismissal of the three misdemeanor counts based on Vehicle Code § 41500(a).  The judge denied the request, stating that it did not read 41500(a) as applying to misdemeanor charges filed concurrently with a felony charge.  The court then imposed certain county jail sentenced on the misdemeanors, staying imposition on each under Penal Code § 654.

Escareno appealed the judge’s ruling on 41500(a) to the First Appellate District Court in San Francisco, which affirmed Judge Ortiz.  The appeals court ruled that for purposes of § 41500(a), sentencing on the felony and misdemeanor charges in a single action is deemed to be simultaneous sentencing, so 41500(a) is not implicated.

We appreciate the creative argument by Escareno’s counsel, but we would not have made such an argument.  Otherwise, judges would be compelled to sentence on the misdemeanor charges first to avoid 41500(a) just to navigate around the situation Escareno argued did apply.  We think that kind of tactical sentencing promotes gamesmanship and adds an element of timing to sentencing that the Legislature did not intend when it passed 41500(a) to help those in prison upon their release.

For more information about custody credits, please click on the following articles:
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