P. v. Garcia

Filed 1/15/10 P. v. Garcia CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(San Joaquin)

----

A jury convicted defendant Ben Garcia of four felony convictions: two counts of assault with force likely to produce great bodily harm (Pen. Code,  245, subd. (a)(1)),[1] one count of driving under the influence of alcohol and causing injury (Veh. Code,  23153, subd. (a)) and one count of driving with a blood-alcohol level of greater than 0.08 percent and causing injury (Veh. Code,  23153, subd. (b), collectively referred to as DUI with injury). On appeal he contends the trial court prejudicially erred in finding one of the victims of the assault unavailable as a witness and thereby allowing the introduction of the witnesss preliminary hearing testimony. We disagree. He also contends both Vehicle Code sections must be stayed under section 654. He goes on to argue that one of them must be stayed for all purposes. We agree as to the first contention, but not the second.

In bifurcated proceedings, two prior conviction enhancements were also found true. Defendant appeals those true findings as well, contending he gave no waivers whatsoever of his trial rights. On this point, we agree with defendant. We shall reverse and remand on these enhancement allegations.

FACTUAL BACKGROUND

Dorian Whittmore, his brother Daniel and his father were standing on a street in Stockton at 3:00 a.m., waiting to be picked up and taken to their job as farm laborers. Defendant was standing on a nearby corner. Dorian[2] saw defendant, who appeared to be stumbling and drunk, trying to break an empty beer bottle using a piece of metal. Some other men in the area told defendant to calm down, which apparently irritated defendant, so he challenged them to a fight. In preparation for the fisticuffs, defendant took off his shirt and shoes. The other men rose to defendants shirtless, shoeless challenge, jumped on him and chased him down the street. Defendant left his shirt and shoes behind as he fled. Dorian picked them up and moved them near the light pole.

Defendant returned to the corner and Dorian told him where his shirt and shoes were. It appeared as though he had been beaten up. Defendant thanked Dorian. Defendant was now swinging a set of keys on a rope. Dorian warned defendant he was going to hit someone and asked him to stop. Then defendant took his shirt off again, started swinging the keys again, hit Dorian in the face with them and issued another shirtless challenge to fight. Dorian, his brother and his father fought with defendant, then returned his things to him and told him to go sleep it off.

Defendant left, and about 15 to 20 minutes later, returned to the area in his car. Dorian was standing by a fence with Daniel, and their father was across the street. People started yelling for Dorian to get out of the way. Dorian tried to push his brother out of the way. Dorians father ran across the street to get his sons out of the way, and the car hit him on the elbow. The car veered toward Dorian and hit him in the knees. Dorian was upended and landed on the hood of the car. Daniel was pinned between the car and the fence, with his front pressed into the fence and his back on the hood of the car. Dorian pulled the car door off of the hinges and began hitting defendant. Dorians father came across the street and also started hitting defendant. Defendant backed up the car and tried to hit Daniel again.

At about this time, having received a shots fired call, officers arrived on the scene. When they arrived, they saw a car had been driven on the sidewalk and had hit several pedestrians. As they were arriving on the scene, the officers saw the car hit the chain link fence twice. Defendant, the driver of the car, tried to run from the scene, but the officers stopped him and arrested him. Defendant appeared intoxicated. He smelled of alcohol, had poor balance and was stumbling. The officers did not perform field sobriety tests on him. Defendant was taken to the hospital and a blood sample was taken. The blood-alcohol concentration was 0.11 percent. A forensic alcohol expert testified defendant could not safely operate a car with that level of blood alcohol.

Daniel was taken to the hospital in an ambulance, but Dorian and his father declined medical care. Daniel had a bruise on his leg and had to use a cane for a few months. Dorians father left his job because of the injuries and went on disability. Dorian had pain that disabled him from working for almost two years. Defendant also received medical care.

PROCEDURAL HISTORY

Defendant was charged with two counts of assault with a deadly weapon (counts 1 and 2), two counts of driving under the influence of alcohol and causing injury (counts 3 and 5), two counts of driving with a blood-alcohol concentration of greater than 0.08 percent and causing injury (counts 4 and 6) and driving with a suspended license (count 7). It was further alleged as to the two assault charges that defendant had personally inflicted great bodily injury, that as to all four of the drunken driving charges defendant had suffered a prior conviction and as to the driving without a license charge, defendant had previously been convicted of the same offense three times.

On the first day of jury trial, the prior conviction allegations were ordered bifurcated. The trial court also granted the Peoples motion to dismiss the great bodily injury enhancement alleged as to count 1 and to dismiss counts 3, 4 and 7. The information was renumbered. Count 5, charging defendant with driving under the influence of alcohol causing injury to Dorian Whittmore, was renumbered to count 3. Count 6, charging defendant with driving with a blood-alcohol content of 0.08 percent or greater and causing injury to Dorian Whittmore, was renumbered to count 4.

The jury found defendant guilty of all countscharged, but found the great bodily injury enhancement allegation not true. The parties then agreed defendant would admit the allegations attendant to the DUI with injury counts 3 and 4, that he had previously been convicted of a driving under the influence offense.

The court denied probation and sentenced defendant to an aggregate term of three years eight months in prison, consisting of the middle term of three years on count 1, a concurrent three years on count 2, eight months on count 3, and a concurrent eight months on count 4. The eight-month terms for counts 3 and 4 were to be served consecutively with the three-year terms for counts 1 and 2. Various fines and fees were also imposed.

DISCUSSION

I.

Defendant contends the convictions must be reversed because the trial court prejudicially erred in admitting Dorian Whittmores preliminary hearing testimony in lieu of live testimony. Specifically, defendant contends there was an insufficient showing that the prosecution had exercised reasonable diligence in looking for Dorian Whittmore before trial. We disagree.

Factual Background - Declaration Of Dorian as an Unavailable Witness

The facts underlying the declaration of Dorian as an unavailable witness are undisputed. Dorian Whittmore was the prosecutions primary witness in this case. Trial was initially set for September 17, 2007. The matter was trailed until September 24, 2007.

District Attorney Investigator Cantrell went to Dorians mothers home to serve Dorian with a subpoena. He advised Dorians mother that Dorian was obliged to testify, provided his business card and instructions to call him if necessary. Dorians mother advised Cantrell that Dorian was in jail, and no longer lived at the home.

On September 12, 2007, Dorian was served with a subpoena by Cantrell, directing him to appear in court on September 18, 2007. Dorian was in jail on unrelated charges at the time he was served. Dorian did not appear in court as required.

The assistant district attorney notified Cantrell that Dorian had not appeared in court, so the investigator tried to locate him. Cantrell returned to Dorians mothers home, and no one was there. He went to the address listed on the warrant where Dorian had been arrested and no one answered the door. Cantrell checked every law enforcement system he could, including CJIS and CLETS to determine whether Dorian was back in custody and possible contacts with probation he might make. The law enforcement systems indicated Dorian was on active probation, was scheduled to meet with his probation officer in October, and was not currently in custody. The prosecutor also noted Dorians cell phone number had been disconnected.

On September 21, 2007, the prosecution advised the court Dorian could not be located. On September 24, 2007, following jury selection, the prosecution made a motion to have Dorian declared unavailable and to admit his preliminary hearing testimony. The court found Dorian unavailable and granted the motion to admit his preliminary hearing testimony.

Standard of Review

To establish unavailability under Evidence Code section 240, the proponent of the evidence must show the declarant is absent from the hearing and that the proponent has exercised reasonable diligence (often referred to as due diligence), but has been unable to procure the witnesss attendance by the courts process. (Evid. Code,  240, subd. (a)(5); People v. Wilson (2005) 36 Cal.4th 309, 341; People v. Smith (2003) 30 Cal.4th 581, 609.) Whether a party exercised reasonable diligence to locate a missing witness is a mixed question of law and fact. (People v. Cromer (2001) 24 Cal.4th 889, 900-901.) When, as here, the facts regarding the prosecutions efforts to locate the witness are undisputed, we evaluate the question of due diligence independently. (People v. Valencia (2008) 43 Cal.4th 268, 292;People v. Smith, supra, at p. 610.)

Due diligence is not susceptible to a mechanical definition, but connotes persevering application, untiring efforts in good earnest, efforts of a substantial character. (People v. Sanders (1995)11 Cal.4th 475, 523.) Whether due diligence is shown depends upon the totality of efforts used to locate the witness. (Ibid.) Relevant considerations include the character of the prosecutions efforts; whether the search was timely begun; the importance of the witnesss testimony; whether leads were competently explored; whether the proponent of the evidence reasonably believed prior to trial that the witness would appear willingly and therefore did not subpoena the witness when he or she was available; and whether the witness would have been produced if reasonable diligence had been exercised. (People v. Valencia, supra, 43 Cal.4th at pp. 292; People v. Sanders, supra, 11 Cal.4th at p. 523.)

Here, the prosecution exercised due diligence in attempting to secure Dorians appearance at trial.

There is no question that Dorians testimony was important at trial. He was the only one of the Whittmore men, the victims of this crime, who was called to testify at the preliminary hearing and apparently the only one sought for this trial. But, Dorians testimony was not the only evidence against defendant. When the responding officers arrived on the scene, they saw that defendant had driven his car onto the sidewalk and hit a number of pedestrians. They saw him ram his car into the chain link fence twice and they saw him try to flee the scene. They saw that Daniel had to be taken to the hospital in an ambulance. They believed defendant was intoxicated, had him taken to the hospital and had his blood drawn. The forensic expert testified as to defendants 0.11 percent blood-alcohol level and his inability to safely drive a motor vehicle with that level of intoxication. Thus, while Dorians testimony was important, it was not the only evidence that defendant had assaulted the Whittmores with his car and was intoxicated while driving.

Dorian had previously appeared at the preliminary hearing and there was no indication Dorian would not continue to cooperate with the prosecution. A witnesss prior cooperation in appearing is a relevant prism through which to view the prosecutions efforts. (People v. Benjamin (1970) 3 Cal.App.3d 687, 696-698, disapproved on other grounds by People v. Brigham (1979) 25 Cal.3d 283, 292, fn. 14.) Even where the search efforts for a witness are slight and begun at a late date, the prior cooperation of a witness can justify the prosecutors assumption that the witness will be available at trial. (Benjamin, supra, at pp. 696-698.)

The efforts to have Dorian appear at trial were timely begun. Dorian was subpoenaed six days before he was required to appear in court and 12 days before the actual trial date. (See People v. Smith (1971) 22 Cal.App.3d 25, 31-32 [subpoena issued one week before trial date];People v. Benjamin, supra, 3 Cal.App.3d at pp. 696-697 [attempts to locate witness started four days before trial].)

Until Dorians failure to appear in court on September 18, 2007, the prosecution had no reason to believe Dorian would not continue to cooperate. Upon learning that Dorian had not appeared in court as expected on September 18, 2007, Cantrell went to both of his previous known addresses. He checked all of the available law enforcement systems to determine Dorians possible whereabouts. He tried to contact Dorian on his cell phone and learned it was disconnected. The prosecution explored all available leads as to Dorians whereabouts.

Defendant raises a number of claims about what additional measures the prosecution could have taken in trying to find Dorian. Specifically, that Cantrell could have left contact information and copies of the subpoena at both addresses, could have tried to go to the addresses at various times of the day and night, tried to call the residences, contact neighbors, contact the probation office, the post office to ascertain whether there was a forwarding address, local hospitals or the coroners office.

While it may be true the prosecution could have pursued additional avenues of investigation, this does not change our conclusion. The fact additional efforts might have been made or other lines of inquiry pursued does not affect [a finding of due diligence]. [Citation.] It is enough that the People used reasonable efforts to locate the witness. (People v. Cummings, supra, 4 Cal.4th at p. 1298; accord People v. Diaz (2002) 95 Cal.App.4th 695, 706; People v. Lopez (1998) 64 Cal.App.4th 1122, 1128.) We will not reverse a trial courts determination . . . simply because the defendant can conceive of some further step or avenue left unexplored by the prosecution. Where the record reveals, . . . that sustained and substantial good faith efforts were undertaken, the defendants ability to suggest additional steps (usually, as here, with the benefit of hindsight) does not automatically render the prosecutions efforts unreasonable. [Citations.] The law requires only reasonable efforts, not prescient perfection. [Citations.] (People v. Diaz, supra, at p. 706.) We believe the prosecutions efforts, while perhaps not perfect, were reasonable. Accordingly, the trial court properly declared Dorian an unavailable witness and admitted his preliminary hearing testimony.

II.

Defendant next contends the trial court erred in failing to stay the sentences for his DUI with injury convictions in counts 3 and 4, as they were part of the same conduct and involved the same victim, Dorian, as one of the assault with a deadly weapon counts. Defendant also contends that the use of one of the Vehicle Code convictions should be stayed for all purposes, because they were both based on a single act of drunk driving.The People concede that the sentence imposed for one of the Vehicle Code convictions should be stayed, but do not address defendants contentions that the sentence on both Vehicle Code convictions should be stayed or that the use of one of the Vehicle Code convictions should be stayed for all purposes.

We agree with defendant that both sentences imposed for the Vehicle Code convictions must be stayed. We disagree, however, that one of the convictions must be stayed for all purposes.

Penal Code section 654 prohibits multiple punishments for a single act or omission which may be punishable in different ways by different provisions of the Penal Code. Section 654 applies not only where there is but one act in the ordinary sense, but also where there is an indivisible course of conduct. [Citation.] Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. [Citations.] If, on the other hand, defendant harbored multiple criminal objectives, which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citation.] [Citation.] (People v. Kenefick (2009) 170 Cal.App.4th 114, 124-125.)

Defendant was charged in count two with assault with a deadly weapon (vehicle) causing great bodily injury to Dorian. The elements of this offense are operating a vehicle while knowing facts that would lead a reasonable person to realize a battery will probably and directly result and causing great bodily injury as a result of that vehicle operation. (See People v. Wright (2002) 100 Cal.App.4th 703, 706.)

In count 3, defendant was charged with driving under the influence of alcohol and concurrently causing injury to Dorian. In count 4, he was charged with driving with a blood-alcohol level over 0.08 percent and concurrently causing injury to Dorian. As to these offenses, the elements of the felony offense described by Vehicle Code section 23153, subdivision (a) are: (1) driving a vehicle while under the influence of an alcoholic beverage or drug (subd. (a)) or while having a 0.08 percent or more, by weight, of alcohol in his or her blood (subd. (b)); (2) concurrently committing some act which violates the law or is a failure to perform some duty required by law; and (3) as a proximate result of such violation of law or failure to perform a duty, another person was injured. To satisfy the second element, the evidence must show an unlawful act or neglect of duty in addition to driving under the influence. [Citation.] The unlawful act or omission need not relate to any specific section of the Vehicle Code, but instead may be satisfied by the defendants ordinary negligence. [Citations.] [Citation.] (People v. Weems (1997) 54 Cal.App.4th 854, 858.)

The intent to assault Dorian was the unlawful act which raised the driving under the influence and with a blood-alcohol level of greater than 0.08 percent convictions from misdemeanor offenses to felonies. There is no evidence that defendant committed any other unlawful act or omission which would support those felony DUI with injury convictions aside from his intent to assault Dorian. Thus, each of these contentions arose from a single act and a single objective--defendants driving while intoxicated with the intention of assaulting Dorian. Accordingly, we agree with defendant that the sentences on counts 3 and 4 must be stayed pursuant to section 654.

As to defendants additional contention that one of the Vehicle Code offenses must be stayed for all purposes, we disagree.

Defendant bases his argument on People v. Duarte (1984) 161 Cal.App.3d 438 (Duarte), in which the defendant was convicted, based on a single act of drunk driving, of violating subdivisions (a) and (b) of Vehicle Code section 23153. (Duarte, supra, at pp. 440-441.) While affirming the convictions, the court noted that although the defendants sentence on the second conviction was stayed in accordance with section 654, the risk remained that both convictions might be used to enhance future punishment: Having suffered two convictions and one punishment, defendant remains exposed to the use of the two convictions to enhance future punishment. The Vehicle Code contains an increasing number of sections which penalize recidivism. These sections ordinarily refer to prior convictions without qualifying them to exclude multiple convictions arising from a single driving occasion. By only staying punishment on one of the two convictions, another court at another time may have to determine whether the defendant has one or two priors. (Duarte, supra, at p. 447.) To avoid multiple enhancements based on a single act of illegal driving, the court modified the judgment by ordering that the use of the [second] conviction . . . as a prior conviction for penal and administrative purposes, be stayed . . . . (Id. at p. 448; see also People v. Pearson (1986) 42 Cal.3d 351, 362 (Pearson).)

We disagree that it is either necessary or appropriate to make an order purporting to govern the future use of the stayed conviction. Section 654 automatically precludes the use of a conviction for which the sentence was stayed pursuant to that section, unless the Legislature explicitly declares otherwise. (Pearson, supra, 42 Cal.3d at p. 363.) However, as the California Supreme Court recognized in Pearson, and reiterated in People v. Benson (1998) 18 Cal.4th 24, legislation enacted after the date of a conviction can permit the use of a conviction for enhancement or other purposes in a subsequent prosecution, even if the sentence was stayed in the original proceeding. (People v. Benson, supra, at pp. 29-30, citing Pearson, supra, 42 Cal.3d at p. 361.)

The use of defendants stayed convictions to enhance his sentence in any future prosecution or administrative proceeding depends upon the laws in effect at that time. Accordingly, we decline to order the trial court to stay the future use of that conviction.

III.

Defendants final contention is that the enhancements in counts 3 and 4 alleging defendant had sustained prior driving under the influence convictions must be reversed because he did not give any waivers before admitting those prior convictions. The People admit that the reporters transcript reflects an insufficient admission of the enhancement, but claim the clerks transcript indicates defendant was appropriately advised of his rights and knowingly and voluntarily waived them. They argue the clerks transcript may be used, because the reporters transcript is incomplete. We disagree with their characterization of the reporters transcript.

[B]efore accepting a criminal defendants admission of a prior conviction, the trial court must advise the defendant and obtain waivers of (1) the right to a trial to determine the fact of the prior conviction, (2) the right to remain silent, and (3) the right to confront adverse witnesses. [Citation.] Proper advisement and waivers of these rights in the record establish a defendants voluntary and intelligent admission of the prior conviction. [Citations.] (People v. Mosby (2004) 33 Cal.4th 353, 356 (Mosby).) Additionally, the trial court should also tell the defendant the effect which a determination of habitual criminality will have on the punishment and other sanctions to be imposed upon the accuseds conviction of the substantive crime charged. (In re Yurko (1974) 10 Cal.3d 857, 864 (Yurko).) However, a defective Boykin-Tahl-Yurko[3] advisement does not require automatic reversal. (Mosby, supra, at pp. 360-361.) When a defendant does not expressly waive these rights, a reviewing court examines the entire record to determine whether the admission was voluntary and intelligent under the totality of the circumstances. (Id. at p. 360.) The focus is not on whether [the allegations] would have been found true, but on whether the defendant knew of his constitutional rights and the consequences of his admissions. (People v. Stills (1994) 29 Cal.App.4th 1766, 1770.)

Here, the reporters transcript reflects that after the jury had returned with its verdicts, but before they were dismissed, the parties attempted to resolve the enhancement allegations. The entirety of the exchange regarding that plea is as follows:

THE COURT: Counsel, its my understanding that after reviewing the situation, [defendant], you have determined that you are going to plead guilty to the priors charged in this matter that are set forth in the information. And counsel, if you could help me to get me there as quickly as possible.

[DISTRICT ATTORNEY]: I dont have my Information, your Honor, but it should be --

THE COURT: I believe its count --

[DISTRICT ATTORNEY]: 3. 4 should be the enhancement of the Vehicle Code.

THE COURT: Its the Vehicle Code 23540 in the Information which alleges that within ten years of the commission of the above offense, that you committed a violation of Vehicle Code section 23152(B), and that you were duly convicted thereof on or about 10/29, 2003, in the Superior Court of San Joaquin County.

[DEFENSE COUNSEL]: And he will admit that, Your Honor and my understanding --

THE COURT: [Defendant], is that correct?

THE DEFENDANT: Yes, Your Honor.

THE COURT: All right. Counsel, is it appropriate to bring the jury back in?

[DEFENSE COUNSEL]: I believe it is Your Honor.

[DISTRICT ATTORNEY]: Yes.

THE COURT: All right.

Clearly, there is neither an admonition of Boykin-Tahl rights nor a waiver of those rights contained in this transcript. However, the clerks transcript indicates the admonitions were given and defendant waived those rights prior to defendant entering his admissions.

As a general rule, a record that is in conflict will be harmonized if possible. (People v. Smith (1983) 33 Cal.3d 596, 599.) If it cannot be harmonized, whether one portion of the record should prevail as against contrary statements in another portion of the record will depend on the circumstances of each particular case. (People v. Harrison (2005) 35 Cal.4th 208, 226.) (People v. Lawrence (2009) 46 Cal.4th 186, 194, fn. 4.)

The People argue the reporters transcript is incomplete and the clerks transcript provides definitive evidence that the proper waivers were taken. The People rely on People v. Malabag (1997) 51 Cal.App.4th 1419 (Malabag), to support their characterization of the reporters transcript as incomplete. This reliance on Malabag is misplaced. In Malabag there was evidence that the reporters transcript was incomplete. The reporters transcript began in the middle of the proceedings and contained only the sentencing orders. (Id. at p. 1422.) It was in that context that the court found the reporters transcript was incomplete and the clerks transcript could be used to demonstrate that the advisements had been given. It was also in the context of an apparently incomplete reporters transcript that the court suggested it was defendants burden to have sought a settled statement. (Id. at p. 1423.)

In this case, there is nothing which suggests the reporters transcript is in any way incomplete. With the exception of the admonishment and waivers, and a read back of testimony at the beginning of the day, the reporters transcript reflects everything done in court on October 3, 2007, that the clerks minutes reflect. Specifically, the reporters transcript and clerks minutes each reflect the discussions held regarding a question from the jury, the response given to that jury question, the verdict reached by the jury, the reading of the verdict, the waiver of juror polling and reading of the verdict as recorded, a bench conference held outside the presence of the jury and not reported, the parties agreement to a disposition on the prior convictions, the concluding instructions given to the jury, the excusal of the jury, the referral of defendant to the probation department, and the date of the next hearing. There is nothing in the record of these proceedings which suggests the court reporter was not present or did not report all of the proceedings related to the admission of the prior convictions. We cannot find on this record that the reporters transcript was incomplete or has a gap. Accordingly, Malabag is not persuasive. Under the circumstances of this case, we find the reporters transcript is entitled to greater credence.

Mosby separated the cases involving flawed Boykin-Tahl procedures into two categories: (1) truly silent record cases, those in which the record showed no express advisement and waiver of the Boykin-Tahl rights before a defendants admission of a prior conviction (Mosby, supra, 33 Cal.4th at p. 361); and (2) incomplete Boykin-Tahl advisement cases, those in which the defendants had been advised of their right to a jury trial, but not of the other two constitutional rights. (Id. at pp. 362-364.) (People v. Christian (2005) 125 Cal.App.4th 688, 695.)

Because there are no advisements and no waivers on the record here, we have a truly silent record case. With regard to the truly silent record cases [citations], Mosby concluded the appellate courts were correct in holding that the defendants admissions were not voluntary and knowing: In all of [the silent record cases,] a jury trial on a substantive offense preceded the defendants admissions of prior convictions. These defendants were not told on the record of their right to trial to determine the truth of a prior conviction allegation. Nor did they expressly waive their right to trial. In such cases, in which the defendant was not advised of the right to have a trial on an alleged prior conviction, [it] cannot [be inferred] that in admitting the prior the defendant has knowingly and intelligently waived that right as well as the associated rights to silence and confrontation of witnesses. (Mosby, supra, 33 Cal.4th at p. 362.) (People v. Christian, supra, 125 Cal.App.4th at p. 695.)

In this case, as with the other silent record cases, there is nothing in this record from which we can infer that defendant knowingly, intelligently and voluntarily waived his rights before entering his admissions to the prior convictions.

Accordingly, we must reverse and remand for further proceedings on the prior convictions.

DISPOSITION

The judgments of conviction on the assault with a deadly weapon (counts 1 and 2), driving under the influence of alcohol and causing injury (count 3) and driving with a blood-alcohol level of 0.08 percent or over and causing injury (count 4) are affirmed. The judgment is modified pursuant to section 654 to stay the eight-month prison terms imposed on both count 3 and count 4. The trial courts true findings on the prior conviction allegations are reversed and the sentence is vacated. The matter is remanded for further proceedings regarding the prior conviction allegations and for resentencing. In all other respects, the judgment is affirmed.

CANTIL-SAKAUYE , J.

We concur:

NICHOLSON , Acting P. J.

RAYE , J.

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[1] Hereafter, undesignated statutory references are to the Penal Code, unless otherwise indicated.

[2] Because many of the witnesses are family members with the same surname, we will use first names to avoid confusion.

[3]Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274]; In re Tahl (1969) 1 Cal.3d 122.