P. v. Bowen















Filed 9/14/10 P. v. Bowen CA4/3















NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



FOURTH APPELLATE
DISTRICT



DIVISION THREE




>

THE PEOPLE, Plaintiff and Respondent, v. WILLIAM JOSEPH BOWEN, Defendant and Appellant.

G042730 (Super. Ct. No. 08NF3418) O P I N I O N

Appeal from a judgment
of the Superior Court
of Orange
County, James Edward Rogan, Judge. Affirmed.

Richard Schwartzberg,
under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for
Plaintiff and Respondent.

* *
*

Defendant
William Joseph Bowen was charged in a first amended criminal complaint with: Felony driving under the influence of alcohol
or drugs (DUI) with a prior felony DUI violation within ten years of the current
offense (Veh. Code, §§ 23152, subd. (a), 23550.5, subd. (a) -- count 1);[1]
felony driving with a blood alcohol concentration of 0.08 percent or more with
three or more separate DUI violations within 10 years of the current offense;
(§§ 23152, subd. (b), 23550, subd. (a) -- count 2); misdemeanor driving on a
suspended license with a prior conviction (§ 14601.2, subd. (a) -- count
3); and misdemeanor driving on a suspended license (§ 14601.5, subd.
(a) -- count 4). The People
also alleged defendant had suffered three prior DUI convictions, two prior
convictions for driving on a suspended license, one prior strike (Pen. Code,
§ 667.5, subds. (d), (e)), and one prior conviction resulting in
imprisonment (Pen. Code, § 667.5, subd. (b)).

Defendant pleaded guilty
before the magistrate (Pen. Code, § 859a) to counts 1 and 2 as felonies and
admitted the truth of the strike prior and the prior prison commitment
allegations. Immediately after taking
defendant's guilty plea, but before sentencing, the prosecutor moved to amend
count 1 of the complaint nunc pro tunc by alleging three prior DUI misdemeanors
within 10 years, rather than one prior DUI felony within 10 years. The prior misdemeanor convictions were
already alleged in the complaint as prior convictions, but had not been
expressly alleged in count 1. The court
inquired whether defendant had any objection to the nunc pro tunc amendment and
whether he wished to have his plea stand.
Defendant voiced no objection.
Defendant agreed to a sentence of three years, and the court struck the
prior strike and prior prison commitment for purposes of sentencing. On motion of the People, counts 3 and 4 were
dismissed. Accordingly, defendant was
sentenced to a three-year state prison term on count 2. The court also imposed a three-year prison
term on count 1, but stayed execution of the sentence pursuant to Penal Code
section 654.

Defendant appealed, and
obtained a certificate of probable cause
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