Petition for Writ of Certiorari — Treadaway v. California (No. 08-665)

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Supreme Court, U.S.

() FILED

Vv Now@8-___a9_¢65 NOV 18 2008

OFFICE OF THE CLERK

Wittam K. Suter, Cterk

In The

Supreme Court of the Anited States

MICHAEL TREADWAY,

Petitioner,

PEOPLE OF THE STATE OF CALIFORNIA,

Respondents.

On Petition For Writ Of Certiorari

To The Court Of Appeal Of The State Of California

Fourth Appellate District, Division Three

PETITION FOR WRIT OF CERTIORARI

LAW OFFICE OF BARRY T. SIMONS

BARRY T. SIMONS*

RONALD L. MOORE

260 Saint Ann’s Drive

Laguna Beach, CA 92651

(949) 497-1729

Counsel for Petitioner

“Counsel of Record

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

(1) DOES CALIFORNIA VEHICLE CODE §23550

OFFEND THE EX POST FACTO CLAUSE OF THE

UNITED STATES CONSTITUTION AS INTER-

PRETED IN STOGNER V. CALIFORNIA WHEN

APPLIED TO A “WASHED OUT” PRIOR OFFENSE

WHOSE PERIOD OF DISABILITY EXPIRED BE-

FORE THE EFFECTIVE DATE OF AN AMEND-

MENT EXTENDING PRIORABILITY FROM SEVEN

TO TEN YEARS?

(2) IS DUE PROCESS VIOLATED WHEN CALI-

FORNIA EXTENDS A PERIOD OF PRIORABILITY

BEYOND THAT SPECIFIED IN A PLEA AGREE-

MENT SUBJECTING PETITIONER TO FELONY

DUI PROSECUTION?

TABLE OF CONTENTS

Page

Ss LIONS. PRESEN TED .........00:cccccccssescssseseses i

Ms SO FA CITI ELGG 5..,..0ccvecenccvveccnvosousenees lV

EE MR DOT 655 cnicenavdses <suvaversvenveansseeueveneueee 1

I OI isc sxveseinnasvaceuvayedeveehyersesexsatapneweene 1

CONSTITUTIONAL AND STATUTORY PRO-

ii as, hanisciveiunwravy sucuveauiaisivaudlteer ea een 1

STATEMENT OF THE CASE...........0.000 2

REASONS FOR GRANTING THE PETITION ..... 9

I. THE DECISION BELOW CONFLICTS

WITH EX POST FACTO DOCTRINE....... 9

A. The Controlling Federal Ex Post

PCTS TOOT cccsicsireccosssasmismumnunes 9

B. California’s Erroneous Interpretation .... 14

1. California Vehicle Code §23550

Acts as a Statute of Limitations..... 15

2. The Change to California Vehicle

Code §23550 Was a Substantive

Change in the Law ........................- 18

3. California Vehicle Code §23550

PCG TET ORCLIVONG 6c cctccsecnestcerne 19

C. California Vehicle Code §23550 Vio-

lates Calder Category II...................... 22

D. California Vehicle Code §23550 Vio-

lates Calder Category IV..................... 26

11]

TABLE OF CONTENTS -— Continued

Page

Il. THE DECISION BELOW IS IN CON-

FLICT WITH THE PRINCIPLES OF

DUE PROCESS UNDER THE 14TH

AMENDMENT OF THE UNITED

STATES CONSTITUTION BY VIOLAT-

ING THE PETITIONER’S RIGHT TO

SPECIFIC PERFORMANCE OF HIS

PRR PAS EIRINS vvicssnssicncersnssyncassxenvvavens 31

CAG hi RN iste vintadaynsiasivaninsvaadciwanesaensasaberan: 38

APPENDIX

June 3, 2008 Opinion of the California Court of

Appeal, Fourth Appellate District-Division 3... App. 1

August 20, 2008 Supreme Court Order Deny-

ing Petition for Review ...............0..ccsscsssssseeees App. 15

Defendant’s Waiver of Constitutional Rights for

Guilty Plea to Section 23152 and Other Se-

lected Vehicle Code Sections and Addendum

to Defendant’s Waiver of Constitutional

Rights Form-Terms of Probation-DUI (First

ES kes oiinrncacie epee ni eeeen en teeen App. 16

TABLE OF AUTHORITIES

Page

CASES

300 DeHaro Street Investors v. Department of

Housing and Urban Development (2008) 161

Ce eh SI oa iets rateiveciansaetetan 34, 37

Boykin v. Alabama (1969) 395 U.S. 238 ................0... 31

Rrady v. United States (1970) 397 U.S. 742 .............. 31

Calder v. Bull (1798) 3 U.S. 386 ..............cc0ccceees passim

Carmell v. Texas (2000) 529 US. 513 .....0..00000.. 7, 20, 20

Castillo v. Express Escrow Co. (2007) 146

Ra ME CE ive cistininsncsnsieoamsrctoenninetaciecendouviats 34

Collins v. Youngblood (1990) 497 U.S. 37 .............0. 19

Cummings v. Missouri (1866) 71 U.S. 277 .......... 13, 19

El Escorial Owners Association v. DLC Plaster-

ing, Inc. (2007) 154 Cal. App.4th 1337......ccccccccee. 34

Falter v. United States (2nd Cir. 1928) 23 F.2d

EE RAS RAN SSR EERE OE NN OPO CAR Wits ia ae itaruaanaicao 6, 7

Forrester v. California (2008) __ U.S. __, 129

OR EE suite tcncyascunmaateeatans tna tetecnapesetededvancoaiineaal oe 17

Gryger v. Burke (1948) 334 U.S. 728..................ccceeess 15

Hair v. State of California (1991) 2 Cal.App.4th

eet £8) Ree | Ee) ner 31

Mabry v. Johnson (2007) 467 U.S. 504.......... 31, 33, 35

Malloy v. South Carolina (1915) 237 U.S. 180............ 9

Marbury v. Madison (1803) 5 U.S. 137..................00 10

TABLE OF AUTHORITIES — Continued

Page

McCulloch v. Maryland (1819) 17 U.S. 316............... 13

Miller v. Florida (1987) 482 U.S. 423 .................. 19, 38

People v. Casillas (2001) 92 Cal.App.4th 171............ 28

People v. Forrester (2007) 156 Cal.App.4th

a vais dices Os LES ee 17, 18, 35, 36

People v. Gipson (2004) 117 Cal.App.4th 1065.......... 34

People v. Nguyen (1993) 13 Cal.App.4th 114............. 33

People v. Shelton (2006) 37 Cal.4th 759 .................... 33

People v. Sweet (1989) 207 Cal.App.3d

Nee id is nswennenwncenees 17, 18, 19, 23

People v. Toscano (2004) 124 Cal.App.4th 340 .......... 33

People v. Treadway (2008) 163 Cal.App.4th

eat disnvanienevasscccacnseweenesecsees passim

Ricketts v. Adamson (1987) 483 U.S. 1............0.....02.. 32

Santobello v. New York (1971) 404 U.S. 257.............. 31

Save Our Sunol, Inc. v. Mission Valley Rock Co.

fee? Be <en pp. 40h 276.....................0..cccecc0eese 37

Stogner v. California (2003) 539 U.S. 607 ......... passim

Trop v. Dulles (1958) 356 U.S. 86...........................000: 22

United States v. Marion (1971) 404 U.S. 307...... 26, 29

U.S. v. De La Fuente (9th Cir. 1993) 8 F.3d

Neen eee eon ccanensaneeneeuvucoesnuesvares 33

Weaver v. Graham (1981) 450 U.S. 24 ....... passim

TABLE OF AUTHORITIES — Continued

Page

Wolf v. Superior Court (2004) 114 Cal.App.4th

rind ce la daupdds tnganednveresssinesivnseveness 34

Wood v. Carpenter (1879) 101 U.S. 135, 25

ee aicceatcinvy cdadnnevteviuienevevevawes 26

CONSTITUTIONAL AND STATUTORY PROVISIONS

RE a Oe 1 ES passim

U.S. Const., 14th Amend., Sec. 1 ................... 2.4.8. 3}

ee es vvovcescusndusevesnocsivaveesseveceeces 23

savy ube vebusavecssetecesveecevesees 24

NONE I RE, OE BET. 0. .cceccscnecccnescecscessosvecsesensess 24

RE I BU, OE BO, onesies cccsceseccsscsesecsesvcenncesenscesens 24

cg RE OS 23

ee S|) 2, 3, 23, 24, 25

ae passim

OTHER AUTHORITIES

Black’s Law Dictionary, Abridged 6th Edition,

Teen specie aceiesewexsaipavasy senses 16

H. Black, American Constitutional Law $266,

i civvcussycnuncuvevsvsessuvsvsseuceseesvesees 14

Hearing Notes of Senate Comm. on Public

Safety (April 20, 2004) SB 1694 .......... 10

Vill

TABLE OF AUTHORITIES — Continued

Page

Orange County’s 2006 Uniform Bail Schedule

(Felony and Misdemeanor) available at

http://www.occourts.org/criminal/bailsched. pdf;

accessed November 14, 2008) ..........0000cc eee.

Wharton, Criminal Pleading and Practice §316,

i, ee ae Es einer detec venscean vad axcreedbeeneenn) 16

Wharton, 1 Criminal Law §444a, at 347-348 ............

OPINION BELOW

The opinion of the California Court of Appeal,

Fourth District, Division 3 is reported at 163

Cal.App.4th 689 (2008). A copy of the opinion is

attached as App. 1-14. The California Supreme Court

issued a one page order denying discretionary review

on August 20, 2008. A copy of the order is attached as

App. 15.

JURISDICTION

The decision of the California Court of Appeal

Fourth Appellate District, Division 3 affirming the

ruling of the Superior Court of the State of California,

Harbor Justice Center was filed on June 3, 2008. A

timely Petition for Review in the California Supreme

Court was denied on August 20, 2008. This Court has

jurisdiction pursuant to 28 U.S.C. 1257(a).

CONSTITUTIONAL AND

STATUTORY PROVISIONS

A. Federal Constitutional Provisions

United States Constitution, Article I, Sec. 10:

“No state shall... pass any ... ex post facto

law, or law impairing the obligation of con-

tracts... .*

U.S. Const., 14th Amend., Sec. 1:

“([Njor shall any state deprive any person of

life, liberty, or property, without due process

oflaw...”

B. State Statutes:

California Vehicle Code §23550 (1997) (Stats.

2004, ch. 550, §15, p. 3392)

“If a person is convicted of a violation of

§23152 and the offense occurred within 7

years of three or more separate violations of

... §238152 ... that resulted in convictions,

that person shall be punished by imprison-

ment in the state prison, or in county jail

”

California Vehicle Code §23550 (2005)

“If a person is convicted of a violation of

§$23152 and the offense occurred within 10

years of three or more separate violations of

... §23152 ... that resulted in convictions,

that person shall be punished by imprison-

ment in the state prison, or in county jail

STATEMENT OF THE CASE

In 1981, the California Legislature adopted a

limited form of habitual offender statute directed at

Driving Under the Influence (DUI) cases (see Stats.

1981, ch. 940). These statutes enhanced the punish-

ment for a subsequent DUI offense based on the

number of prior DUI convictions in the previous five

years. In 1986, the legislature extended the period of

priorability from five to seven years. In 2004, the

California Legislature again extended the period of

priorability of DUI cases from seven to ten years

(Stats. 2004, ch. 550). This statutory scheme differs

from most habitual offender statutes because it

places specific time limits on the use of a separate

violation.

Prior to January 1, 2005, the State of California

assured defendants convicted of Vehicle Code

§23152(a)&(b) they would only be subject to having a

DUI elevated from a misdemeanor to a felony were

they to have had three separate offenses, which

resulted in convictions, within seven years from the

date of a new offense. After the seven-year period

elapsed, they were no longer subject to having a mis-

demeanor DUI offense elevated to a felony. In other

words, they were able to come out from under a cloud

and walk in the sunshine. As of January 1, 2005, the

period of disability was extended to ten years.

Petitioner was charged with a DUI violation

which occurred on September 10, 2005. Three sepa-

rate convictions were alleged pursuant to Vehicle

Code §23550 with conviction dates of August 6, 1998,

August 6, 1998 and August 14, 2003. The date of

offense for the oldest alleged separate offense was

December 8, 1997. Thus, Petitioner’s period of dis-

ability expired on December 8, 2004, more than seven

years from the date of the oldest violation and prior to

the effective date of the Amendment to §23550.

When Petitioner entered his plea of guilty to his

December 8, 1997 DUI, he executed a plea agreement

(see App. 16-31). Petitioner initialed the various

provisions of the plea agreement some 70 times, and

signed it in three places. The second page of the form

also contains the statement from the Petitioner that

“I have personally initialed each of the above boxes

and understand each and every one of the rights

outlined above.” Petitioner initialed each term of the

agreement, including the priorability limits, to show

that he had read, understood, and agreed to each one

and signed the form under penalty of perjury.

Petitioner filed a Demurrer and Motion to Strike

the December 8, 1997 prior allegation on the grounds

that the use of this time-barred predicate offense

violated Article I, Sec. 10 of the United States Consti-

tution’s prohibition against ex post facto laws as

understood by this Court in Stogner v. California 539

U.S. 607 (2003) and that the use of the time barred

offense violated the 14th Amendment’s Due Process

Clause and was a breach of the plea agreement.

Petitioner’s Demurrer and Motion to Strike was

heard and denied on March 7, 2006 and Petitioner

thereafter entered his pleas of guilty to the charges

filed against him and reserved his right to appeal the

denial of his challenge to the use of the 1997 offense

to elevate the misdemeanor DUI to a felony.

Petitioner’s appeals followed and he pressed his

Federal Constitutional claims before the Court of

Appeal of the State of California and the California

Supreme Court.

Simply stated, the Court below held that in-

creased punishments for DUI recidivists attached to

the latest offense, not the prior offense, and as a

result, were not retroactive or ex post facto because

the increased punishment was for the new case which

occurred after the passage of the amendments to

Vehicle Code §23550. Some might call this sophistry.

Others might argue that the Treadway Court’s view

of ex post facto is myopically focused on punishment.

Petitioner relies on Justice Chase’s original charac-

terizations of what are ex post facto violations enu-

merated as Category (2) and Category (4) in Calder v.

Bull (1798) 3 U.S. (Dall.) 389 and not on Calder’s

Category (3) punishment categorization. These two

Categories of ex post facto were analyzed and ex-

plained in Stogner, 539 U.S. 607, which held that a

statute which revived a time-barred prosecution was

a violation of ex post facto because it (1) aggravated

the original crime and made it greater than it was

when committed because the defendant is subject to

“punishment that the courts lacked the power to

impose” before the amendment (Calder Category 2)

(Stogner, 539 U.S. at 615); and (2) it alters rules of

evidence, and receives less, or different testimony

“than the law required at the time of the commission

of the offense in order to convict the offender” (Calder

Category 4) (Stogner, 539 U.S. at 612).

As applied to Petitioner, the amending legislation

aggravated his original 1997 offense and made it

more burdensome because it extended the disability

period attached to it after it had expired, depriving

him of a vested defense.’

As applied to this Petitioner, the amending

legislation changed the quantum of evidence neces-

sary to establish the existence of a necessary quasi-

element of the felony offense, namely the existence of

a prior conviction for an offense which occurred

within the proscribed statutory period.

After December 8, 2004 and through December

31, 2004 the District Attorney could not have proven

that Petitioner’s prior DUI came within the meaning

of Vehicle Code §23550 because no “quantum of

evidence” could have provided the requisite proof.

Thus, the amending legislation which became effec-

tive on January 1, 2005 violates ex post facto rules if

applied retroactively.

As noted by the venerable Justice Learned Hand

in Falter v. United States (2nd Cir. 1928) 23 F.2d 420,

425-426, cert. denied, 277 U.S. 590:

Certainly it is one thing to revive a prosecu-

tion already dead, and another to give it a

longer lease of life. The question turns upon

how much violence is done to our instinctive

' Had Petitioner re-offended between December 9, 2004 and

December 31, 2004, he would not have been subject to a felony

DUI prosecution based upon his December 8, 1997 pnor offense.

feelings of justice and fair play. For the state

to assure a man that he has become safe

from its pursuit, and thereafter to withdraw

its assurance, seems to most of us unfair and

dishonest. But, while the chase is on, it does

not shock us to have it extended beyond the

time first set, or, if it does, the stake forgives

it. Id. at 426.

The same can be said for extending the period of

disability which subjects a citizen convicted of DUI to

felony prosecution for future violations. If the period

of disability has lapsed, it can no longer be legisla-

tively revived without violating the _ prohibition

against ex post facto laws.

The harm that would be manifested if the

amending legislation could be applied to Petitioner’s

December 8, 1997 DUI conviction is of the kind that

the Ex Post Facto Clause seeks to avoid. By “its own

rules” (see Carmell v. Texas (2000) 529 US. 513, 533),

the legislature advised Petitioner that his prior DUI

conviction could have an enhancement effect for

seven years. After that period, not before, the legisla-

ture changed those rules. Since the legislature

thereby acted after it had assured defendant that he

“had become safe from its pursuit,” the legislative

amendment would “seem ... unfair and dishonest.”

(Falter, 23 F.2d at 426.) Further, since it did not act

until the earlier limitations period had lapsed, the

legislature deprived defendant of “fair warning”

(Weaver v. Graham (1981) 450 U.S. 24, 28) of contin-

ued criminal liability after he could otherwise have

assumed he had left behind the disabilities associated

with his prior DUI conviction. As noted in Stogner,

“CA] Constitution that permits such an extension, by

allowing legislatures to pick and choose when to act

retroactively, risks both ‘arbitrary and potentially

vindictive legislation’ and erosion of the separation of

powers...” Id. at 612.

The Court of Appeal also rejected Petitioner’s

Federal Constitutional Due Process and Contract

challenges and found that there was no evidence that

Petitioner had relied upon the limitation and, even if he

had, that such reliance would have been unreasonable.

The Court further noted that there was no indication

that Petitioner had ever received any assurances

that the legislature would not change the seven year

limitation on pmiorability. People v. Treadway, 163

Cal.App.4th at 698.

California’s approach to this law has two major

problems: First, changing the law and applying it to

people who had escaped its grasp violates ex post

facto doctrine as previously explained by this Court in

Stogner. Second, such application violates Due Proc-

ess under the United States Constitution by not

giving the defendant proper benefit of the terms of his

plea agreement a contract which specifically includes

a provision limiting the length of priorability. In other

words, the State of California changed the rules of

the game after the game had been played.

REASONS FOR GRANTING THE PETITION

I. THE DECISION BELOW CONFLICTS WITH

EX POST FACTO DOCTRINE

At issue in the instant case is the jurisprudential

brick and mortar of the criminal justice system: The

people’s right to a government that abides by the laws

it both establishes and enforces. Constitutional

temperance requires that the repugnance of an

alleged crime cannot justify the departure from the

bedrock of the United States Constitution. The Ex

Post Facto Clause operates to constrain legislative

power by demanding fundamental fairness illumi-

nated by governmental restraint.

A. The Controlling Federal Ex Post Facto

Doctrine

The Ex Post Facto Clause relevant to the States

is embodied in Art. I, §10, Cl. 1 of the United States

Constitution. It is an express restraint upon the

power of the state legiz!atures that prohibits arbi-

trary or vindictive retroactive legislation. Malloy uv.

South Carolina (1915) 237 U.S. 180, 183. It upholds

separation of powers by confining the legislature to

penal decisions with prospective effect and the judici-

ary and executive branches to application of existing

penal laws. Weaver v. Graham (1981) 450 U.S. 24, 29,

n.10. The determination of whether a law falls

within the ex post facto prohibition centers on an

analysis of the purpose for the subject legislation.

Weaver, 450 U.S. at 30-31.°

Five years prior to Marbury v. Madison (1803) 5

U.S. 137, establishing the province of the judiciary to

declare what acts of the legislature are and are not

congruent with the dictates of the Constitution,

Calder v. Bull, 3 U.S. (Dall.) 389, broke uncharted

ground when it construed the meaning and breadth of

the Ex Post Facto Clause. Justice Chase delineated

four bright-line categories of facially ex post facto

laws, while noting tha! “all these and similar laws”

are ex post facto. Calder, 3 U.S. at 390-91.

Justice Chase divided ex post facto laws into four

categories:

I will state what laws I consider ex post facto

laws, within the words and the intent of the

prohibition. lst. Every law that makes an ac-

tion done before the passing of the law, and

which was innocent when done, criminal;

and punishes such action. 2d. Every law that

aggravates a crime, or makes it greater than

it was, when committed. 3d. Every law that

* This bill originally sought to remove any and all wash-out

periods from DUI recidivist statutes and make priors lifetime.

The Hearings further noted that this legislation was intended to

deter recidivism in DUI cases by eliminating the wash-out

period. The bill in its final form extended the disability period

from (7) to (10) years evidencing their intent to limit the period

of disability which flowed from a DUI offense. See, Hearing

Notes of Senate Comm. on Public Safety (April 20, 2004) SB

1694.

changes the punishment, and inflicts a

greater punishment, than the law annexed to

the crime, when committed. 4th. Every law

that alters the legal rules of evidence, and

receives less, or different, testimony, than

the law required at the time of the commis-

sion of the offense, in order to convict the of-

fender. All these, and similar laws, are

manifestly unjust and oppressive. Id. at 390.

Calder, however, did not limit the categorization

of ex post facto laws exclusively to those categories

borne out by colonial experience. Justice Chase

expounded upon what other types of laws would fall

within the ex post facto prohibition, stating that he

considered laws taking away or impairing rights to be

ex post facto, but not laws that “mollified” or assuaged

the rigor of the criminal law.

Thus the origins of ex post facto analysis exposes

whether “extending a period of disability” offends the

Constitution. Justice Chase clearly indicated that it is

acceptable to “save” time from the statute of limita-

tions because such legislation mollifies or assuages

the rigor of the criminal law and therefore, does not

offend the ex post facto prohibition. Calder, 3 U.S. at

391. Hence the converse is equally clear — that to

“extend a period of disability” is to unconstitutionally

increase the rigor of the criminal law in violation of

the ex post facto prohibition.

Justice Chase explained that the prohibition was

intended to be “an additional bulwark in favour of the

personal security of the subject, to protect his person

from punishment by legislative acts, having a retro-

spective operation.” /d. at 390. He continued his

analysis noting that “the restriction not to pass any

ex post facto law, was to secure the person of the

subject from injury, or punishment, in consequence of

such law.” Id. Justice Chase then analyzed what

antecedent facts the Ex Post Facto Clause applied to

and noted:

The prohibition, in the letter, is not to

pass any law concerning, and after the fact;

but the plain and obvious meaning and in-

tention of the prohibition is this; that the

Legislatures of the several states, shall not

pass laws, after a fact done by a subject, or

citizen, which shall have relation to such

fact, and shall punish him for having done

it. Calder, 3 U.S. at 390 (emphasis added).

Thus, if the statute in question relates back to

acts done before its enactment and changes the law in

a way that aggravates that offense so as to inflict

punishments that were no longer available it is ex

post facto. Stogner v. California (2003) 539 U.S. 607.

Ex post facto analysis is not a talismanic exer-

cise. It encompasses considerations of fundamental

fairness and critical examination of the propriety of

the subject legislation for the purpose of guarding

against the legislative tyranny that prompted The

Framers to twice include the prohibition in the

original Constitution — what Chief Justice Marshall

called “A bill of rights for the people of each State.”

Cummings v. Missouri (1866) 71 U.S. 277. This analysis

requires that the subject legislation be gauged by the

evils the Ex Post Facto Clause was designed to guard

against because The Framers could hardly anticipate

every conceivable act of invidious legislative ingenuity

for centuries to come. Cf. McCulloch v. Maryland (1819)

17 U.S. 316, 407 (“Its nature, therefore, requires, that

only its great outlines should be marked, its impor-

tant objects designated, and the minor ingredients

which compose those objects, be deduced from the

nature of the objects themselves.”).

In Stogner v. California this Court struck down a

California statute that allowed the revival of sexual

assault charges otherwise past the statute of limita-

tions. Stogner noted that the law in question ex-

tended the time within which prosecution was

allowed, authorizing prosecutions that the passage of

time had previousl; barred, and became effective

after prior limitations periods for these alleged of-

fenses expired. The Court noted that “these features

of the law, when taken together produced the kind of

retroactivity that the constitution forbids.” Stogner,

539 U.S. at 610. It relied heavily on Calder v. Bull, 3

U.S. 389, and reiterated Justice Chase’s four catego-

ries. The Stogner Court also stated that an expired

statute of limitations, such as we have in the instant

case, should not be revived:

[Wle agree that the State’s interest in prose-

cuting child abuse cases is an important one,

but there is also a predominating constitu-

tional interest in forbidding the State to

revive a long-forbidden prosecution. And to

hold that such a law is ex post facto does not

prevent the State from extending time limits

for the prosecution of future offenses, or for

prosecutions not yet time barred. Jd. at 632

Stogner noted that since the original statute of limi-

tations had expired, a party such as Stogner was not

“liable to any punishment.” California’s new statute

therefore “aggravated” Stogner’s alleged crime, or

made it “greater than it was, when committed.” See

also H. Biack, American Constitutional Law §266, p.

700 (4th ed. 1927) (hereinafter Black, American

Constitutional Law) (“[Aln act condoned by the expi-

ration of the statute of limitations is no longer a

punishable offense.”).

B. California’s Erroneous Interpretation

Now that the controlling doctrine has been

elucidated, the errors in California’s approach will

become apparent. Not only do California’s courts deny

that the law in question violates ex post facto, but

they first attempt to take the question out of ex post

facto jurisprudence by denying that the law in ques-

tion; (1) acts as a statute of limitations; (2) that the

extension of the time barred disability is not a sub-

stantive change in the law and (3) that the statute

acts retroactively. However, on these three prelimi-

nary issues, California’s interpretation is also con-

trary to the Federal precedent.

1. California Vehicle Code §23550 Acts

as a Statute of Limitations

Vehicle Code §23550 represents a special form of

habitual offender statute, one which contains a

provision that limits, in time, its application. While

the legislature had the power to enact the more

traditional habitual offender statute for DUI without

limiting the period of priorability, they chose not to.

In fact, they considered and rejected” such a proposal

choosing instead to limit the amendment to an in-

crease in the period of priorability of any separate

offense from seven years to ten years. While it may be

true that a statute is not retroactive in operation

merely because it draws upon facts antecedent to its

enactment for its operation Gryger v. Bruke, 334 U.S.

728 (1948) it is a retroactive law if its operation

creates a different legal effect than that which

occurred before its passage and that effect is disad-

vantageous to a criminal defendant. In this case, the

law at issue is both retrospective and retroactive. It is

retrospective in that it refers in its operation to

events, specifically separate DUI offenses, which

occurred in the past. It is retroactive, at least in the

limited case of Appellant in that it changes the length

of time that a DUI offense which results in a convic-

tion can be used to elevate a future offense from a

misdemeanor to a felony by including time barred

offenses which have expired prior to the amendment

* The first draft of the bill called for life-time use of sepa-

rate offenses in DUI cases. See footnote 2, supra.

to Vehicle Code §23550. The legislature elected to

include time limits on the priorability of a DUI. That

distinguishes §23550 from typical habitual offender

statutes which have no sunset provision and that is

why application of the extension of that period of

priorability to a time barred separate offense is ex

post facto since it aggravates that offense under

Calder’s Category Two.

A statute of limitations is a time period after

which a particular action may no longer be brought or

rights enforced. “In criminal cases, however, a statute

of limitations is an act of grace, a surrendering by the

sovereign of its right to prosecute.” Black’s Law

Dictionary, Abridged 6th Edition, West, 1991. The

legislature essentially creates an amnesty, preventing

the government from prosecuting. Wharton, Criminal

Pleading and Practice §316, p. 210 (8th ed. 1880)

(“The statute [of limitations] is ... an amnesty ...

and repeal of an amnesty is an ex post facto violation).

Stogner, 539 U.S. at 617. It is a self imposed limita-

tion on the power of the state as noted by Francis

Wharton in 1874 when he emphasized the historic

role of statutes of limitations as “acts of grace or

oblivion, and not of process,” “extinguishling] all

future prosecution” and making an offense unable to

“be again called into existence at the caprice of the

prince.” Wharton, 1 Criminal Law §444a, at 347-348,

n. b.; Stogner, 539 U.S. at 619. Wharton’s comments

hold particular significance in this instance where the

State must call back into existence and exhume,

Lazarus — like, the moribund prior.

The Court of Appeal rejected Petitioner’s argu-

ments that Stogner controlled and relied on People v.

Forrester 207 Cal.App.4th 1021 (2007) (cert. denied),

Forrester v. California, _U.S. __, 129 S.Ct. 94 (2008)

which held that there was a “difference between

reviving a prosecution in its entirety after the statute

of limitations has run, and enhancing the sentence in

a new criminal prosecution stemming from new

criminal conduct” Forrester, 207 Cal.App.4th at 1025.

The Court of Appeal agreed with Forrester and held

that Stogner did not apply because the amendment

extending the period of disability became effective

more than a year before the date of Treadway’s new

arrest and he was therefore on notice of the possible

consequences of a new violation. Finally, the Court

held that Petitioner had not been deprived of a

“vested defense” because the statute extending the

maximum period of prior offenses was enacted before

Petitioner’s most current offense. Treadway, 163

Cal.App.4th at 697-8.

The reliance on Forrester is misplaced because

Forrester reads Stogner too narrowly. The court in

Forrester continues to perpetuate the flawed analysis

of People v. Sweet, 207 Cal.App.3d 78 (1989) by stub-

bornly insisting that the retroactive increase in the

period of disability does not change the effect of the

original predicate offense making its terms more

onerous for a criminal defendant. The Court simply

focused on an analytical paradigm that stops with the

assumption that there is no retroactivity because

Petitioner was only being punished for his new

offense and he had notice of the change in the law. A

punishment oriented analysis may be appropriate for

analyzing whether the amendment violated Calder’s

Category Three, but it does not answer Petitioner’s

claims that the amendment violated Calder’s Cate-

gory Two ex post facto because it aggravated his 1997

offense and required less and different proof to hold

him to answer for a felony offense at a preliminary

hearing in violation of Calder’s Category Four.

The Court below adopted the reasoning in Forres-

ter that Stogner was distinguishable because “Unlike

Stogner, [the defendant] has not been charged with a

crime for which the statute of limitations has run.”

Treadway, 163 Cal.App.4th at 698 (quoting People v.

Forrester, 156 Cal.App.4th at 1025) This reasoning

fails to recognize that Treadway’s period of disability

had extinguished prior to the amendment of §23550

and had “run” just like the period of limitations in

Stogner.

2. The Change to California Vehicle

Code §23550 Was a Substantive

Change in the Law

Courts in California have held that ex post facto

applies only to substantive changes in the law and

not those which are merely procedural. The Court

below relied upon People v. Sweet, 207 Cal.App.3d 78,

83-84 (1989) which reflected that “[t]he extension of a

period of limitations is a change in procedure only, to

which the ex post facto doctrine does not apply. The

Sweet Court added that “[o|nly where the limitations

period has already expired, barring prosecution, will

an amendment effectively extending the statutory

period not apply to an offense committed before the

legislative change.” Sweet, 207 Cal.App.4th at 83.

Petitioner agrees!

This Court has recognized that “by simply label-

ing a law ‘procedural,’ a legislature does not thereby

immunize it from scrutiny under the Ex Post Facto

Clause. Subtle ex post facto violations are no more

permissible than overt ones.” Collins, 497 U.S. at 46.

The Ex Post Facto Clause “cannot be evaded by the

form in which the power of the State is exerted.”

Cummings v. Missourt (1867) 4 Wall. 277, 329.

Therefore, Petitioner has clearly demonstrated

that changing the sunset provision of Vehicle Code

§23550 was a substantive change in the law, to which

ex post facto doctrine definitely applies.

3. California Vehicle Code §23550 Acts

Retroactively

In interpreting the kx Post Facto Clause of our

founding documents, this Court has determined that

there are two key prerequisites, two “critical ele-

ments,” that must be present in order to find that a

statute violates the ex post facto doctrine. Miller uv.

Florida (1987) 482 U.S. 423, 430 (Miller); Weaver v.

Graham (1981) 450 U.S. 24, 29 (Weaver).

First, it is important to distinguish between a

retrospective law and a retroactive law. A retrospec-

tive law is one which refers in its operation to events

that occurred in the past. All recidivist statutes are

by nature retrospective, in that they refer to prior

conduct of the defendant. This does not make them

retroactive.

Justice Chase set forth his clear view of what he

deemed to be retroactive and what was merely retro-

spective. He noted:

“In my opinion, the true distinction is be-

tween ex post facto laws, and retrospective

laws. Every ex post facto law must necessar-

ily be retrospective; but every retrospective

law is not an ex post facto law: The former,

only, are prohibited. Every law that takes

away, or impairs, rights vested, agreea-

bly to existing laws, is retrospective,

and is generally unjust; and may be op-

pressive; and it is a good general rule,

that a law should have no retrospect:

but there are cases in which laws may justly,

and for the benefit of the community, and

also of individuals, relate to a time antece-

dent to their commencement; as statutes of

oblivion, or of pardon. They are certainly ret-

rospective, and literally both concerning, and

after, the facts committed. But I do not con-

sider any law ex post facto, within the prohi-

bition, that mollifies the rigor of the criminal

law; but only those that create, or aggravate,

the crime; or encrease [sic] the punishment,

or change the rules of evidence, for the pur-

pose of conviction.” Calder, 3 U.S. at 389.

Vehicle Code §23550 is retroactive because it is

dependent upon facts antecedent to its enactment

which alters the legal consequences from those in

effect at the time of the act since §23550 not only

requires proof of the separate DUI offense but also

requires that the separate offense occurred within a

specified period of time from the new offense. It is the

extension of the period of disability accomplished

retroactively to time barred separate offenses that

offends ex post facto.

In Weaver, 450 U.S. 24, the Court addressed

whether a change to prisoners’ abilities to earn good

time credits could be applied, not to deprive prisoners

of good time credits already earned, but to affect the

reciprocity of inmates’ good time credits as reward for

good behavior after the law’s effective date. The Court

distilled from the web of ex post facto jurisprudence

the essence of the inquiry, to wit: “The critical ques-

tion is whether the law changes the legal conse-

quences of acts completed before its effective date.”

Id. at 31.

Stated another way, the Court wrote that the

“critical question ... is whether the new provision

imposes greater punishment after the commission of

the offense, not merely whether it increases a crimi-

nal sentence.” Jd. at 32. Here, Vehicle Code §23550

uses prior convictions, not merely as sentencing

enhancements for recidivist offenders, but also as an

element of a hybrid offense — felony DUI. Conse-

quently, the terms of §23550 necessarily attach to the

triggering prior conviction when it is entered because

it is by virtue of the triggering prior conviction that

the defendant who reoffends within the prescribed

time is introduced to the harsher process attending a

felony charge (much like a defendant who violates

probation). In effect, §23550 operates as a penal

disability, imposing a kind of “probation” to deter

defendants from being arrested for a fourth DUI

within a set period of time under penalty of a subse-

quent arrest being transcended to a felony charge. Cf.

Trop v. Dulles (1958) 356 U.S. 86, 96-7 (“If the statute

imposes a disability for the purposes of punishment —

that is, to reprimand the wrongdoer, to deter others,

etc., it has been considered penal.” (Internal footnotes

omitted)).

C. California Vehicle Code §23550 Vio-

lates Calder Category Il

Calder’s second category encompasses “[e]very

law that aggravates a crime, or makes it greater than

it was, when committed.” Calder, 3 U.S. at 390;

accord, Stogner, 539 U.S. 607. As applied to defen-

dant, the amending legislation subjected defendant to

an additional period of disability for his December 8,

1997 DUI after the original seven year term had

expired. The disability period expired on December 8,

2004 and the amendment to §23550 became effective

January 1, 2005. Application of the amendment to

Petitioner’s 1997 offense would subject Petitioner to

“punishment that courts lacked the power to impose”

before the amendment, thus, the amending legisla-

tion violates that facet of the ex post facto prohibition.

(Stogner, 539 U.S. at 615.)

The January 1, 2005 amendment to Vehicle Code

§23550 further “aggravates” Petitioner’s 1997 offense

because of the additional “burdensome” process that

Petitioner was subjected to when his 1997 offense

was resurrected to elevate his September 10, 2005

offense into a felony.

Sweet’s premise that §23550 is nothing more

than a recidivist sentencing statute that is not trig-

gered unless a subsequent DUI conviction is entered

is factually and legally inaccurate. §23550 is not

triggered by a subsequent conviction, it is triggered

by a subsequent arvest. Pursuant to Penal Code §§17-

19, §23550 changes the classification of the later

offense from a misdemeanor to a felony and the

§23550 arrestee is subject to, inter alia, bail that is at

least more than three (3) times what it would other-

wise be.

Penal Code §1269b(b) provides that bail shall be

set “pursuant to the uniform countywide schedule of

bail for the county in which the defendant is required

to appear.” Orange County’s bail schedule provides

that a 23550 arrestee must be held subject to bail of

$50,000. “onversely, an individual arrested for a

misdemeanor violation of §23152 is held subject to

bail of $2,500; bail for a second offense is set at

$10,000, and the third offense is set at $15,000. (Sze

Appellant’s Request for Judicial Notice; Orange

County’s 2006 Uniform Bail Schedule (Felony and

Misdemeanor) available at http://www.occourts.org/

criminal/bailsched.pdf; accessed November 14, 2008).

The 23550 arrestee is also required to provide

fingerprint, palm print, blood, and other bodily fluid

samples for inclusion in a DNA database. See Penal

Code §296.1 which requires that “buccal swab sam-

ples and thumb and paim print impressions and any

blood or other specimens required ... [be taken]

immediately following arrest, or during the book-

ing or intake or reception center process or as soon as

administratively practicable after arrest, but, in any

case, prior to release on bail or pending trial or

any physical release from confinement or cus-

tody.” (emphasis added).

The 23550 arrestee is subjected to the foregoing

requirements before he is even allowed to leave the

police station. The more stringent procedures con-

tinue once the case settles into a courtroom. Compare

Penal Code §858, et seg. (Chapter 7, “Preliminary

Examination, Discharge, or Holding to Answer” —

establishing the post-arrest process for individuals

arrested on a felony charge), «ith Penal Code §853.6,

et seq. (Chapter 5C, “Citations for Misdemeanors

under State Law” — delineating, inter alia, the infor-

mal process for releasing arrestees charged with

misdemeanors).

An individual with prior 23152 arrests, but no

prior 23152 convictions, would not be subjected to any

of the harsher foregoing infringements on his liberty

and liberty interests. Thus it becomes clear that

§23550 is triggered by a subsequent arrest within the

prescribed time of the last prior triggering offense

which resulted in a conviction. Accordingly, the date

at which §23550’s disability is annexed to a crime

must be the date of the prior triggering offense be-

cause the prior triggering violation is an ingredient of

the substantive hybrid offense. See Vehicle Code,

§23550(a) (“If any person is convicted of a violation of

§23152 and the offense occurred within seven years of

three or more separate violations ... which resulted

in convictions, that person shall be punished by

imprisonment... .”); Weaver v. Graham, 450 U.S. at

31 (“(I]t is the effect, not the form, of the law that

determines whether it is ex post facto. The critical

question is whether the law changes the legal conse-

quences of acts completed before its effective date.”

(Footnote omitted)).

From the foregoing, it is clear that application of

§23550 to Petitioner is not just additional punish-

ment for his latest crime, but acts to aggravate his

prior crime in a way which offends our constitution.

Not only is the punishment for his latest crime more

severe, but a disability that was attached to his

initial crime has been made worse, by extending it

longer in time, after it had, by its own terms, expired.

As laudable as it is to deter DUI offenders with

increased liability for future offences, that cannot be

done by stepping back in time and changing the

conditions attached to the prior crimes, at least not

after those conditions have been met and terminated.

D. California Vehicle Code §23550 Violates

Calder Category IV

In Stogner, Justice Breyer noted that the retroactive

revival of a time barred prosecution also implicated

the Fourth Category of Calder’s ex post facto analysis:

In finding that California’s law falls within

the literal terms of Justice Chase’s second

category, we do not deny that it may fall

within another category as well. Justice

Chase’s fourth category, for example, in-

cludes any “law that alters the legal rules of

evidence, and receives less, or different, tes-

timony, than the law required at the time of

the commission of the offense, in order to

convict the offender.” Calder, supra, at 390, 1

L.Ed. 648. This Court has described that

category as including laws that diminish “the

quantum of evidence required to convict.”

Carmell, supra, at 532, 120 S.Ct. 1620. Sig-

nificantly, a statute of limitations reflects a

legislative judgment that, after a certain

time, no quantum of evidence is suffi-

cient to convict. See United States v.

Marion, 404 U.S. 307, 322, 92 S.Ct. 455, 30

L.Ed.2d 468 (1971)... . [This] Court once de-

scribed statutes of limitations as creating “a

presumption which renders proof unneces-

sary.” Wood v. Carpenter, 101 U.S. 135, 139,

25 L.Ed. 807 (1879).

Consequently, to resurrect a prosecution

after the relevant statute of limitations has

expired is to eliminate a currently existing

conclusive presumption forbidding prosecu-

tion, and thereby to permit conviction on a

quantum of evidence where that quantum, at

the time the new law is enacted, would have

been legally insufficient. And, in that sense,

the new law would “violate” previous evi-

dence-related legal rules by authorizing the

courts to “‘receiv[e] evidence ... which the

courts of justice would not [previously have]

admit[ted]’” as sufficient proof of a crime,

supra, at 2450. Stogner, 539 U.S. at 615-6.

The typical habitual offender statute only re-

quires the prosecution to establish that crime (A) was

committed, and that defendant had a separate or

prior offense — crime (B). A special limited statute

such as Vehicle Code §23550 requires proof of element

(C): Proof that offense (B) occurred within a defined

period of time from offense (A). The 2005 Amendment

to Vehicle Code §23550 changed element (C) from

seven years to ten years, not only aggravating Crime

(B) by extending the time it could be used to elevate a

misdemeanor DUI into a felony and subjecting Feti-

tioner to a felony prosecution, but also changing the

amount and character of evidence necessary to con-

vict. This express legislatively granted limitation

creates an entirely different paradigm from which to

judge the constitutionality of a change in that time

limit since it implicates Calder’s Category Four,

which classified laws which changed the rules of

evidence or the quantum of evidence to make it easier

to convict. On December 8, 2004, Petitioner’s 1997

separate offense became legally irrelevant and could

not have been used as evidence to elevate a new sepa-

rate offense to a felony based upon the 1997 conviction.

In a felony prosecution under Vehicle Code

§23550, the prosecution is required to plead and

prove, at a preliminary hearing, the necessary quasi-

element of three separate DUI convictions for of-

fenses which occurred within a proscribed time period

in order to hold the Petitioner to answer for a felony.

People v. Casillas (2001) 92 Cal.App.4th 171, 184-5.

In Petitioner’s case, the oldest qualifying offense was

committed in 1997. At that time, an offense which

resulted in a conviction was priorable for seven years.

In Petitioner’s case his limited period of priorability

for his 1997 case expired on December 9, 2004, prior

to the effective date of the extension of priorability to

ten years found in the amendment to §23550. Thus,

as of December 9, 2004, proof of Petitioner’s 1997

DUI offense would have been insufficient as a matter

of law to not only convict Petitioner of a felony DUI,

but to even hold him to answer for trial after a pre-

liminary examination. The Court of Appeal’s Opinion

is flawed for failing to address this pivotal distinction

that results in a retroactive change in the quantum of

proof required to support a felony prosecution.

In Petitioner’s case, the retroactive application of

the January 1, 2005 amendment to Vehicle Code

§23550 impermissibly allows a necessary element of a

felony offense to be established with evidence that

would have previously been insufficient as a matter of

law.

The key to Category Four is defining what quan-

tum of evidence was required to convict both before

and after the change in §23550. Before amendment of

§23550, Petitioner could not have been charged with

a felony DUI. To be charged with felony DUI, the

prosecution would have been required to plead and

prove the existence of three separate prior convictions

for DUI offenses committed within seven years. After

December 8th, 2004, the existence of his three prior

offenses within seven years could not have been

established by any amount of evidence because the

1997 prior offense has passed beyond that period and

was unreachable by the state. In essence, no quan-

tum of evidence existed which could make Petitioner

guilty of Felony DUI based on prior offenses. By an

act of grace of the legislature, the limitation on usage

of Petitioner’s earliest prior offence had become

effective. The state itself had put that first conviction

out of reach. The court must recognize that “a statute

of limitations reflects a legislative judgment that,

after a certain time, no quantum of evidence is suffi-

cient to convict.” See United States v. Marion (1971)

404 U.S. 307, 322.

After the effective date of the amendment to

§23550, the state asserts that it can now reach back

ten years. What it could not do before (prove up

sufficient prior convictions to charge Petitioner with a

felony), the state now say. that it can. Prior to the

state’s attempted application of the new §23550 to

Petitioner, no evidence in the universe was available

that was sufficient to charge him with a felony.

Changing the rules of evidence in this way falls

squarely within the examples of prohibited ex post

facto legislation, such as the case of Sir John Fen-

wick. In Fenwick’s case, the British Crown sought to

prosecute him under a law which required the testi-

mony of two witnesses. After Fenwick convinced one

of the two available witnesses to abscond, the Crown

changed to rules of evidence to allow conviction based

on the testimony of only one witness, changing the

quantum of evidence required for conviction. This

was ex post facto! Calder, supra at 389. See also

Carmell v. Texas, 529 U.S. at 526-30.

Here, the state requires the testimony of essen-

tially three witnesses (prior convictions) in order to

convict Petitioner of a felony. One of those witnesses

has become unavailable. The state would otherwise

be unable to prove its case, but it seeks to change its

own rules. It seeks, rather than lessening the number

of prior convictions, to make the prior convictions

apply longer, but in essence it has the same effect. A

prosecution that could not have proceeded before, can

now proceed. The government cannot change the

quantum of evidence required to convict, in order to

make conviction easier. Thus, in this case, it would go

against firmly established precedent to extend a

sunset period which had already expired. As was

reiterated in Stogner v. California, where the court

noted that “the expiration of a statute of limitations

is irrevocable. .. .” Stogner, 539 U.S. at 620.

II. THE DECISION BELOW IS IN CONFLICT

WITH THE PRINCIPLES OF DUE PROC-

ESS UNDER THE 14TH AMENDMENT OF

THE UNITED STATES CONSTITUTION

BY VIOLATING THE PETITIONER’S

RIGHT TO SPECIFIC PERFORMANCE OF

HIS PLEA AGREEMENT

United States Supreme Court precedent has

established that a criminal defendant has a due

process right to enforce the terms of his plea agrec-

ment. Santobello v. New York (1971) 404 U.S. 257. To

be valid, a plea agreement must be voluntary and

intelligent. Mabry v. Johnson (1984) 467 U.S. 504.

The court must be satisfied that the defendant un-

derstands the “nature of the charge and the “onse-

quences of the plea.” Brady v. United States (1970)

397 U.S. 742, 744. “[I]f a defendant’s guilty plea is not

equally voluntary and knowing, it has been obtained

in violation of due process and is therefore void.”

Boykin v. Alabama (1969) 395 U.S. 238, 243. There-

fore, the courts must determine that the defendant

“has a full understanding of what the plea connotes

and of its consequence.” Jd. at 244.

In California, this is accomplished by recording

the terms of the plea agreement and the defendant’s

waiver of rights and acknowledgments on a written

form, often denoted a “Tahl Form.” Jn re Tahl (1969) 1

Cal.3d 122 (decided by the California Supreme Court

just after, and in response to, Boykin v. Alabama

(1969) 395 U.S. 238).

Petitioner completed just such a form in this

case. The first page of the agreement states “READ

THE FOLLOWING. IF YOU UNDERSTAND AND

AGREE TO EACH PROVISION, INITIAL EACH

BOX, AND DATE AND SIGN AT THE END OF THE

FORM.” Petitioner initialed some 70 times the vari-

ous provisions of the plea agreement, and signed it in

three places. The second page of the form also con-

tains the statement from the Petitioner that “I have

personally initialed each of the above boxes and

understand each and every one of the rights outlined

above.”

In addition, the plea agreement on the first page,

paragraph 6, reads “I understand that if I am charged

and convicted of a similar offence in the future that

the plea of guilty/nolo contendere I now enter may be

used to increase my punishment, the consequences of

which have been explained to me on pages 3 and 4 of

this form.” Pages 3 and 4 are a chart entitled “Conse-

quences of Plea of Guilty/nolo contendere to Section

23152 and Other Selected Vehicle Code Sections.”

Sections 1 (b), (c), (d) each contain the provision that

the charge “may be alleged as separate violations for

7 years.”

The construction and interpretation of plea

agreements is a matter of state law. Ricketts v.

Adamson, 483 U.S. 1 (1987). Under California law, a

* Atrue and correct copy of this form is attached hereto and

incorporated herein by reference as Appendix C.

plea agreement is a form of contract, and is inter-

preted according to general contract principles. People

v. Shelton (2006) 37 Cal.4th 759, People v. Nguyen

(1993) 13 Cal.App.4th 114. Therefore, where Califor-

nia’s highest court fails to analyze a plea agreement

under California contract law, it violates the due

process rights of the defendant under the 14th

Amendment, giving rise to this Court’s jurisdiction

under 28 U.S.C. 1257(b).

Subsequent interpretations of a plea agree-

ment/contract must be based on an objective standard

in which the defendant’s “reasonable beliefs” control.

People v. Toscano (2004) 124 Cal.App.4th 340, 345,

citing U.S. v. De La Fuente (9th Cir. 1993) 8 F.3d

1333, 1337, and Mabry v. Johnson (2007) 467 U.S.

504, 507-11. In interpreting the plea agreement,

courts look to the specific language of the bargain.

Nguyen, 13 Cal.App.4th at 122. Here, the only rea-

sonable inference which follows from the combina-

tions of statements concerning future offenses on the

first page, line 6 (which petitioner initialed), and the

Consequences of the Guilty Plea (which petitioner

initialed on every line of page 3 and 4), is that the

current offense could be used to enhance the punish-

ment of future offenses for only seven years. A rea-

sonable person, looking at the language of the plea

agreement, would believe that the agreement limited

the use of the conviction for enhancing the punish-

ment or elevating a misdemeanor charge to a felony

for any future offenses to seven years. That’s what

the document says.

Even if a Court were to consider the seven-year

enhancement provision ambiguous, courts must

interpret that language from what the promisor

would have believed the promisee understood the

language meant at the time of making it. Wolf v.

Superior Court (Cal.App. 2004) 114 Cal.App.4th 1348,

using the standard of “what a reasonable person

would believe” the parties intended, El Escorial

Owners Association v. DLC Plastering, Inc. (Cal.App.

2007) 154 Cal.App.4th 1337.

In addition, there is nothing in the plea agree-

ment that suggests that this term is subject to change

if the law changes. In fact, that would be contrary to

the principle of California contract law that all laws

in existence when the agreement was made become

part of the contract. Castillo v. Express Escrow Co.

(2007) 146 Cal.App.4th 1301. The existing applicable

law is part of every contract, the same as if expressly

referred to or incorporated in its terms. People v.

Gipson (2004) 117 Cal.App.4th 1065. In fact, “when

statutory language is included in a contract, it as-

sumes a new legal identity; that of contractual lan-

guage.” 300 DeHaro Street Investors v. Department of

Housing and Urban Development (2008) 161

Cal.App.4th 1240. Therefore, rather than merely

being advisory, by being included as part “of this

form” the language of the chart becomes an enforce-

able term of the contract. This provides certainty in

the contract. It assures the intent of the parties is

effectuated under the law at the time and is not

subject to the uncertainty of later statutory changes.

The parties have agreed to the law that will govern

the agreement.

As this Court has noted in Mabry v. Johnson

(1984) 467 U.S. 504, 511: |Petitioner] “was fully

aware of the likely consequences when he pled guilty;

it is not unfair to expect him to live with those conse-

quences now.” By the same token, it is not unfair to

expect the government to live with them too.

The court below did not properly analyze the

contract questions presented by petitioner’s case. The

court’s entire treatment of the issue fit in one para-

graph:

The guilty plea form stated, in paragraph 6

thereof: “I understand that if I am charged

and convicted of a similar offense in the fu-

ture that the plea of guilty/nolo contendere I

now enter may be used to increase my pun-

ishment, the consequences of which have

been explained to me on pagels] 3 and 4 of

this form.” Attached as pages 3 and 4 of the

form was a chart providing a synopsis of cer-

tain then current Vehicle Code provisions af-

fecting the length of sentence for habitual

offenders. As stated in People v. Forrester,

supra, 156 Cal.App.4th 1021: “The chart

simply provide|d] information concerning the

relevant law at that time. No language in the

plea agreement, nor any evidence supports

the contention that [defendant] relied on the

information in the chart in entering his plea.

Nor would such reliance have been reason-

able.” Ud. at p. 1025.) Indeed, defendant has

made no assertion that it was represented

to him that the Legislature would never

change any of the laws pertaining to the sen-

tencing of habitual offenders. Treadway, 163

Cal.App.4th at 698.

The Court of Appeal’s reliance on People v. For-

rester (2007) 156 Cal.App.4th 1021 is misplaced

because the plea agreement in Forrester was not as

specific as the one used in Treadway. The Court in

Forrester specifically noted that the form contained a

chart listing penalties for DUI convictions depending

upon the number of prior DUI offenses committed

within the previous seven years. Jd. at 1025. By

contrast, the form in Treadway required that Tread-

way acknowledge his understanding and agreement

to every provision in the agreement including the

advisement of the ‘ength of the period of priorability

(see App. 16-31). In analyzing the reasonableness of

Treadway’s belief that the seven year sunset provi-

sions contained in his plea agreement limited the use

of this offense to the express term of seven years

courts must admit the full scope of the Jaw to which

Petitioner would have notice. This notice would

include the rules of statutory construction that

inform him that the amended statute would not act

to change the conditions attached to his previous

offenses, at least the ones for which his disability

had lapsed. Petitioner would presumably be on

notice that under the rules of statutory construction

in California, the appellate court must construe an

enactment to preserve its constitutional validity, and

the court presumes that the enactors understood the

constitutional limits on their power and intended the

enactment to respect those limits and act prospec-

tively only in the absence of a specific provision to the

contrary. Save Our Sunol, Inc. v. Mission Valley Rock

Co. (2004) 124 Cal.App.4th 276. Thus, it would be

reasonable for Treadway to believe that any subse-

quent changes in the law would act prospectively only

and not alter the plea agreement that he entered into.

The Court of Appeal seemed to suggest that the

chart containing the 7 year term was not actually

part of the plea agreement. While the chart does set

out the law current at that time, that is not simply all

it does. As discussed above, by incorporating the 7

year term into the agreement, it becomes part of the

contract. 300 DeHaro Street Investors v. Department

of Housing and Urban Development, 161 Cal.App.4th

1240 (Cal.App. 2008).

The Court of Appeal implies that there is no

evidence that Petitioner relied on this term in enter-

ing into his agreement. How would such evidence

have looked? Petitioner was advised of the term, and

found it an acceptable part of the agreement. Indeed,

he personally initialed the form stating that he both

understood and agreed to the provision that his plea

could be used to aggravate a future violation for a

term of seven years. There was no need to negotiate

over the term. At that time there was no indication

that the term would change, or that Petitioner should

expect it to change. Furthermore, by agreeing to the

term, Petitioner would not expect any change in the

term to apply to him. Ilis agreement limited the

priorability of the term to 7 years. This is in strong

contrast to Hair v. State of California, 2 Cal.App.4th

321, 328-29, the case relied upon in Forrester to

support its lack of reliance argument. Hair simply

held that the holder of a winning lottery ticket could

not rely upon representations on a cigarette manufac-

turer’s poster in market which erroneously stated the

terms of the pay-out for winning lottery tickets.

This Court’s decision in Miller, 482 U.S. at 423,

makes it clear that it is reasonable for a defendant to

rely upon the express provisions of a plea agreement

which limit, in time, the use of that current case to

enhance penalties and elevate misdemeanors to

felonies in the future. Indeed, in Miller, this Court

noted in an ex post facto challenge, that constitutional

problems are not “avoided merely by adding to a law

notice that it might be changed.” (/d.)

CONCLUSION

The Petition for Writ of Certiorari should be

granted.

Respectfully submitted,

Barry T. SIMONS

Attorney for Petitioner

Michael Treadway

App. l

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, G038824

Plaintiff and Respondent, (Super. Ct. No.

y O5HF1852)

MICHAEL DEAN TREADWAY, |OPINION

Defendant and Appellant. (Filed Jun. 3, 2008)

Appeal from a judgment of the Superior Court of

Orange County, Brett London, Judge. Affirmed.

Request for judicial notice granted.

Law Office of Barry T. Simons, Barry T. Simons

and Ronald L. Moore for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane

R. Gillette, Chief Assistant Attorney General, Gary

W. Schons, Assistant Attorney General, Steve Oet-

ting, Robin Derman and Emily R. Hanks, Deputy

Attorneys General, for Plaintiff and Respondent.

“# # Be

Defendant Michael Dean Treadway (defendant)

was sentenced pursuant to Vehicle Code section

23550 for suffering a fourth drunk driving conviction

App. 2

within a 10-year period.’ He appeals from the order

overruling his demurrer and denying his motion to

strike prior conviction. Section 23550 was amended in

2004 to extend the “look-back” period pertaining to

prior convictions from the seven-year period formerly

in effect to the 10-year period currently in effect.

Defendant claims that current section 23550, as

applied to him, constitutes an ex post facto law, and

violates both his due process rights and the principles

of estoppel. These arguments are based on the fact

that the oldest of his four offenses was more than

seven, although less than 10, years old at the time

the amended statute went into effect.

Although defendant acknowledges that there are

two cases almost precisely on point, i.e., People v.

Sweet (1989) 207 Cal.App.3d 78 and People v. Forres-

ter (2007) 156 Cal.App.4th 1021, he observes that

both of those cases were written by the same court,

and says that they were wrongly decided. Defendant

contends that they are contrary to the Supreme Court

precedent of Stogner v. California (2003) 539 US.

607. We disagree with defendant’s assertions. Noth-

ing in Stogner v. California, supra, 539 U.S. 607,

which addressed an expired statute of limitations,

casts doubt on either People v. Sweet, supra, 207

Cal.App.3d 78 or People vu. Forrester, supra, 15

Cal.App.4th 1021, neither of which pertained to a

' All subsequent statutory references are to the Vehicle

Code unless otherwise expressly provided.

App. 3

revival of an expired statute of limitations. People uv.

Sweet, supra, 207 Cal.App.3d 78 and People v. Forres-

ter, supra, 156 Cal.App.4th 1021 remain good law. We

grant defendant’s request for judicial notice, but

reject his substantive arguments, and affirm.

FACTS

Defendant was arrested for drunk driving on

September 10, 2005. The Orange County District

Attorney thereafter filed a five-count felony complaint

alleging defendant: (1) violated section 23152, subdi-

vision (a), driving under the influence of alcohol, and

pursuant to section 23550, committed the offense

within 10 years of three prior convictions; (2) violated

section 23152, subdivision (b), driving with a blood

alcohol content of at least .08 percent, and pursuant

to section 23550, committed the offense within 10

years of three prior convictions; (3) violated section

14601.2, subdivision (a), driving on a suspended

license; (4) violated section 31, providing false infor-

mation to a peace officer; and (5) violated Penal Code

section 148.9, subdivision (a), falsely representing

identity to a peace officer. It was further alleged,

pursuant to section 23578, that defendant’s blood

alcohol concentration exceeded .20 percent, and,

pursuant to section 23577, subdivision (a)(5) and

section 23578, that defendant willfully and unlaw-

fully refused to submit to a chemical test. In addition,

the complaint alleged three prior convictions: (1) an

App. 4

August 6, 1998 conviction in People v. Treadway

(Super. Ct. Orange County, 1998, No. 98SM41824)

arising out of a violation of section 23152, subdivi-

sions (a) and (b); (2) an August 6, 1998 conviction in

People v. Treadway (Super. Ct. Orange County, 1998,

No. 985M44303) arising out of a violation of section

23152, subdivision (a); and (3) an August 14, 2003

conviction in People v. Treadway (Super. Ct. Orange

County, 2003, No. 02SM04138) arising out of a viola-

tion of section 23152, subdivisions (a) and (b).

Defendant filed a demurrer and motion to dis-

miss prior allegation, an amended demurrer and

motion to dismiss prior allegation, and an amended

demurrer and motion to strike prior allegation. He

asserted that at least one of the August 6, 1998

convictions arose out of a violation occurring on

December 8, 1997, and that the application of the 10-

year look-back provision of section 23550 to include

that prior conviction constituted the application of an

ex post facto law, an impairment of contract, and a

violation of due process of law. In addition, he argued

that the doctrine of estoppel barred the application of

the 10-year look-back provision. The court overruled

the demurrer.

Defendant pleaded guilty to each of the charges

and admitted all of the enhancements, including the

three prior convictions. He did not, however, waive

his right to appeal, and the court issued a certificate

of probable cause.

App. 5

On May 4, 2006, the court sentenced defendant

to 365 days in the Santa Ana Jail, 180 days of which

would be stayed on the condition he spend 180 days

in a sober living facility. Defendant was also sen-

tenced to 3 years’ formal probation, the payment of

certain fines, and a four-year driver’s license revoca-

tion. Defendant appeals.

DISCUSSION

A. REQUEST FOR JUDICIAL NOTICE:

As a preliminary matter, we address defendant's

pending request for judicial notice. Defendant re-

quests that we take notice of his guilty plea form in

the matter of People v. Treadway (Super. Ct. Orange

County, 1998, No. 98SM41824). The People have filed

no opposition. The request is granted. (Evid. Code,

§ 452, subd. (d).)

B. SUBSTANTIVE ISSUES:

(1) Introduction —

Vehicle Code section 23550 provides: “(a) If a

person is convicted of a violation of Section 23152 and

the offense occurred within 10 years of three or more

separate violations of Section 23103, as specified in

Section 23103.5, or Section 23152 or 23153, or any

combination thereof, that resulted in convictions, that

person shall be punished by imprisonment in the

state prison, or in a county jail for not less than 180

App. 6

days nor more than one year, and by a fine of not less

than three hundred ninety dollars ($390) nor more

than one thousand dollars ($1,000). The person’s

privilege to operate a motor vehicle shall be revoked

by the Department of Motor Vehicles pursuant to

paragraph (7) of subdivision (a) of Section 13352. The

court shall require the person to surrender the

driver’s license to the court in accordance with Sec-

tion 13550. [4] (b) A person convicted of a violation of

Section 23152 punishable under this section shall be

designated as a habitual traffic offender for a period

of three years, subsequent to the conviction. The

person shall be advised of this designation pursuant

to subdivision (b) of Section 13350.”

A former version of the statute contained a

seven-year look-back period with respect to the prior

convictions, but the period was extended to 10 years

when the statute was amended in 2004. (Stats. 2004,

ch. 550, § 15, p. 3392.) Defendant contends that under

the former version of the statute, the disability aris-

ing from his December 8, 1997 offense expired in

December 2004, which was before the effective date of

the amendment. Consequently, to impose punishment

under current section 23550 by including his Decem-

ber 8, 1997 offense as one of the three prior convic-

tions would be a violation of the prohibition against

ex post facto laws, of his due process rights, and of his

plea bargain agreement with respect to that first

conviction.

App. 7

(2) Case law —

Defendant concedes that People v. Sweet, supra,

207 Cal.App.3d 78 and People v. Forrester, supra, 156

Cal.App.4th 1021 have already addressed, under very

similar circumstances, the question of whether a

statutory amendment extending a look-back period

constitutes an unconstitutional ex post facto law, a

due process violation, or a violation of a plea bargain

agreement. However, defendant contends that these

cases were erroneously decided, particularly in light

of the Supreme Court decision in Stogner v. Califor-

nia, supra, 539 U.S. 607.

In People v. Sweet, supra, 207 Cal.App.3d 78, the

court, addressing several former Vehicle Code provi-

sions, considered whether “a statute which increases

punishment on a new drunk driving conviction where

the defendant has incurred prior convictions for that

offense within seven years [could] be applied to prior

convictions entered when five years was the maxi-

mum period in which prior convictions could be used

for that purpose|.|” (Ud. at p. 81.) The court stated

that the statute could be so applied, without consti-

tuting an ex post facto law, or violating either the

defendants’ due process rights or the terms of their

plea bargains. (/d. at pp. 82-83, 85-87.)

The Sweet court explained: “Statutes enacting

punishment for a defendant convicted of violating

section 23152 with prior convictions do not have the

effect of being ex post facto laws. |Citation.] It is the

law in effect at the time of commission of the offense

App. 8

which controls. [Citations.| Both section 23152 and

the enhancement statutes ... were in force before

appellants’ present convictions and apprised them of

the possible consequences of a new violation. [Cita-

tion.] Without their acts after passage of the new

legislation, the enhanced punishment of these stat-

utes would not come into play. [Citations.] [J] Conse-

quently, crimes for which appellants are punished are

not the earlier convictions, but the subsequent offense

of which the prior conviction constitutes only one

element. [Citation.] The sentence imposed upon an

habitual offender is not an additional punishment for

the earlier crime, but ‘a stiffened penalty for the

latest crime,’ which is considered aggravated because

of its repetitive nature. [Citations.]” (People v. Sweet,

supra, 207 Cal.App.3d at pp. 82-83.)

In addition, the Sweet court noted that the plea

records showed that the five-year period was men-

tioned “in the context of the general advisement of

possible penalties which could be imposed,” that is to

say, that the “[a]pellants were informed of the ‘habit-

ual offender’ ramifications,” and that neither the plea

forms nor the docket entries indicated that the appel-

lants entered “their pleas in reliance upon their

ability to commit future crimes after five years with-

out having their then current offenses come back to

haunt them.... [Citation.]” (People v. Sweet, supra,

207 Cal.App.3d at p. 85.) The court also rejected the

notion that the appellants had a vested right to rely

on the five-year look-back period as in effect at the

time of their prior convictions and stated that it found

App. 9

“no fundamental unfairness in subjecting them to the

increased period in which a court could consider their

prior convictions so long as that extended period was

enacted before the current offense.” (Jd. at p. 86.) Put

another way, “jsjince the ultimate punishment im-

posed is for the new offense, so long as the statute

considering one’s status as a repeat offender is in

force at the time of the subsequent crime the offender

is on constructive notice that habitual offenders face

aggravated penalties and there is no due process

violation. [Citation.]” Ud. at p. 87.)

Defendant insists that People v. Sweet, supra,

207 Cal.App.3d 78 was wrongly decided. He main-

tains that Stogner v. California, supra, 539 U.S. 607

is the controlling authority and that it unveils faulty

reasoning in People v. Sweet, supra, 207 Cal.App.3d

78.

In Stogner v. California, supra, 539 U.S. 607, the

Supreme Court described four categories of ex post

facto laws: “lst. Every law that makes an action done

before the passing of the law, and which was innocent

when done, criminal; and punishes such action. 2d.

Every law that aggravates a crime, or makes it greater

than it was, when committed. 3d. Every law that

changes the punishment, and inflicts a greater pun-

ishment, than the law annexed to the crime, when

committed. 4th. Every law that alters the legal rules of

evidence, and receives less, or different, testimony,

than the law required at the time of the commission of

the offence, in order to convict the offender. All these,

App. 10

and similar laws, are manifestly unjust and oppres-

sive.’ [Citation.]” (id. at p. 612.)

The Court in Stogner v. California, supra, 539

U.S. 607, held that a California statute violated the

constitutional prohibition against ex post facto laws

(U.S. Const., art. I, § 10, cl. 1). (Stogner v. California,

supra, 539 U.S. at p. 609.) The statute in question

permitted the prosecution of certain sex-related child

abuse crimes when the statute of limitations on those

crimes had already expired, provided the victim had

reported the abuse to the police, certain corroborating

evidence had been obtained, and the prosecution had

begun within a year of the report to the police. (bid. )

The Court held that the statute fell into the second

category of ex post facto laws described above. The

Court explained that the second category applies to a

statute that “‘inflict{s] punishments, where the party

was not, by law, liable to any punishment....’” (Id.

at p. 613.) It further explained that, in the case before

it, after the statute of limitations had expired, the

defendant was not subject to punishment, but that

the new statute made the crime “‘greater than it was,

when committed,’ in the sense that, and to the extent

that, it ‘inflicted punishment’ for past criminal con-

duct that (when the new law was enacted) did not

trigger any such liability. [Citation.]” ([bid.)

The Stogner Court also said that the California

statute might fall within the fourth category of ex

post facto laws as well. (Stogner v. California, supra,

539 U.S. at p. 615.) It stated that “a statute of limita-

tions reflects a legislative judgment that, after a

App. 1l

certain time, no quantum of evidence is sufficient to

convict. [Citation.]” (Jbid.) “Consequently, to resur-

rect a prosecution after the relevant statute of limita-

tions has expired is to eliminate a currently existing

conclusive presumption forbidding prosecution, and

thereby to permit conviction on a quantum of evi-

dence where that quantum, at the time the new law

is enacted, would have been legally insufficient. And,

in that sense, the new law would ‘violate’ previous

evidence-related legal rules by authorizing the courts

to ‘“receiv[e] evidence ... which the courts of justice

would not [previously have] admit[ted]”’ as sufficient

proof of a crime. [Citations.]” (/d. at p. 616.)

Defendant contends that Stogner v. California,

supra, 539 U.S. 607 dictates the outcome in the case

before us, because the seven-year look-back period in

effect at the time of his first offense was, in essence, a

statute of limitations. That is to say, once the seven-

year period expired, that conviction could no longer

be used against him as a prior conviction. The ex-

tended 10-year look-back period, he says, fell into the

second and fourth categories of ex post facto laws as

described in Stogner. Thus, application of the 10-year

look-back period to his first offense would be a viola-

tion of the prohibition against ex post facto laws.

This argument was rejected in People v. Forrester,

supra, 156 Cal.App.4th 1021. The defendant in that

case also argued that People v. Sweet, supra, 207

Cal.App.3d 78 was no longer good law after Stogner v.

California, supra, 539 U.S. 607. However, the Forres-

ter court, construing section 23540, reaffirmed the

App. 12

principles of People v. Sweet, supra, 207 Cal.App.3d

78. (People v. Forrester, supra, 156 Cal.Apn.4th at

p. 1023.) It noted that there is a “difference between

reviving a prosecution in its entirety after the statute

of limitations has run, and enhancing the sentence in

a new criminal prosecution stemming from new

criminal conduct.” Ud. at p. 1025.) The Forrester court

further explained: “Here [the defendant’s] prosecution

stems from a law that became effective more than one

year before the date of his arrest, and one that ap-

prised him of the possible consequences of a new

violation. Unlike Stogner, [the defendant] 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.|” (/bid.)

People v. Sweet, supra, 207 Cal.App.3d 78 and

People v. Forrester, supra, 156 Cal.App.4th 1021 are

dispositive of the outcome of this case. (See also

People v. Wohl (1990) 226 Cal.App.3d 270.) Here,

defendant is not being punished for the 1997 offense;

he is being punished for the 2005 offense. He was not

convicted for the 1997 offense based on a quantum of

evidence that would have been insufficient before

section 23550 was amended; he was long ago con-

victed of that offense. Simply put, defendant commit-

ted a new crime in 2005, after the 10-year look-back

period of section 23550 had come into effect. He was

on notice of the law and the fact that, if he committed

a new crime, all of his prior convictions within 10

App. 13

years would be counted for the purvoses of the stat-

ute.

In an effort to wriggle out of the application of

the 10-year provision, defendant says that “[w]hile it

is true that all citizens are on constructive notice of

all changes in the law and that ignorance of the law

is no defense, [he] received actual notice of the seven

years of priorability attached to his 1997 offense

when he read his guilty plea form....” The guilty

plea form stated, in paragraph 6 thereof: “I under-

stand that if I am charged and convicted of a similar

offense in the future that the plea of guilty/nolo

contendere I now enter may be used to increase my

punishment, the consequences of which have been

explained to me on page(s] 3 and 4 of this form.”

Attached as pages 3 and 4 of the form was a chart

providing a synopsis of certain then current Vehicle

Code provisions affecting the length of sentence for

habitual offenders. As stated in People v. Forrester,

supra, 156 Cal.App.4th 1021: “The chart simply

provide[d] information concerning the relevant law at

that time. No language in the plea agreement, nor

any evidence supports the contention that [defendant]

relied on the information in the chart in entering his

plea. Nor would such reliance have been reasonable.”

Ud. at p. 1025.) Indeed, defendant has made no

assertion that it was represented to him that the

Legislature would never change any of the laws

pertaining to the sentencing of habitual offenders.

App. 14

Iil

DISPOSITION

The request for judicial notice is granted. The

judgment is affirmed.

MOORE, J.

WE CONCUR:

SILLS, P. J.

O’LEARY, J.

App. 15

Court of Appeal, Fourth Appellate District,

Div. 3 — No. G038824

S165084

IN THE SUPREME COURT OF CALIFORNIA

En Banc

THE PEOPLE. Plaintiff and Respondent,

MICHAEL TREADWAY, Defendant and Appellant.

(Filed Aug. 20, 2008)

The petition for review is denied.

/s/ GEORGE

Chief Justice

App. 16

DEFENDANT’S WAIVER OF

CONSTITUTIONAL RIGHTS FOR GUILTY

PLEA TO SECTION 23152 AND OTHER

SELECTED VEHICLE CODE SECTIONS

Michael D. Treadway Todd Landgren 5H98SM41824

Defendant’s Name Attorneys Name Court Case No.

(Filed July 2, 1998)

DEFENDANT: READ THE FOLLOWING. IF YOU

UNDERSTAND AND AGREE TO

EACH PROVISION, INITIAL

EACH BOX, AND DATE AND

SIGN AT END OF FORM. [Defen-

dant Initialed After Each Entry]

I understand that I am charged with the offense

of 23152a/b cvc to which I intend to plead

guilty/nolo contendere. [A nolo contendere plea

has the same legal consequences as a guilty plea

in a criminal case. P.C. §1016]

I understand that I violated this section on

December 8, 1997 in Orange County by driving a

vehicle (factual basis):

while under the influence of an alcoholic

beverage

while alcohol in my blood was .08% or

more, by weight;

23206.1 cvc Enhancement

I understand the maximum and mandatory

minimum sentence for this offense is as subse-

quently set forth on this form.

App. 17

I do hereby specifically, intentionally, voluntar-

ily, and with full knowledge and understanding

thereof give up each and all of my following

rights:

To be represented by an attorney of my

own choice at all stages of the proceedings, or

if I cannot afford an attorney, to have the

Court appoint one to represent me, free of

charge subject to the Court’s requirement

that I pay the cost thereof at the conclusion

of these proceedings based upon my then fi-

nancial ability.

To a speedy trial that is: within 30 days of

the day of my arraignment if I am in custody

or within 45 days thereof if I am not in cus-

tody and to a dismissal of the charges

against me if I am not so tried.

To a public trial by a jury.

To subpoena witnesses for my defense

without expense to me.

To confront the witnesses against me in

trial and to cross-examine them myself or

through my attorney.

To testify in my own defense, or to re-

main silent if I so desire and te thereby re-

fuse to give evidence that may be used

against me.

To be sentenced in not less than 6 hours

or more than 5 days from the time of my plea

of guilty/nolo contendere.

App. 18

h. To appeal the denial of my Penal Code

Section 1538.5 Motion (suppression mo-

tion) even after pleading guilty/nolo conten-

dere.

I understand the nature of the charges against

me, the elements thereof and the available pleas

and defenses thereto.

I understand that if I am charged and convicted

of a similar offense in the future that the plea of

guilty/nolo contendere I now enter may be used

to increase my punishment, the consequences of

which have been explained to me on page 3 and 4

of this form.

I understand that if I receive probation and

violate any of the terms thereof, I may be re-

turned to Court and sentenced on this charge as

set forth in paragraph 3 above. Also, if I am pres-

ently on probation for any previous case, I under-

stand that my plea of guilty/nolo contendere may

cause me to be in violation of probation, and re-

sult in additional penalties and/or punishments.

I understand that if I am not a citizen of the

United States, the conviction for the offense may

have the consequences of deportation, exclusion

from the United States, or denial of naturaliza-

tion pursuant to the laws of the United States.

I have no cases pending against me and none for

which I have been convicted in the past 7 years

which charge violation of Vehicle Code sections

23101, 23102, 23152 and 23153 — “Drunk Driv-

ing,” or 23103 — “Reckless Driving” — which are

not alleged as separate convictions in this case

10.

App. 19

except as follows: (Give date, section and court.

Write NONE if none. This includes case against

me under any other name or birthdate. )

CH98SM44303 pending

I understand, agree and stipulate that if I have

not fully informed the court (and the district at-

torney) as required in #9 above, that this court

may re-sentence me at any time during the term

of my probation for this case and may take into

consideration any prior convictions I failed to dis-

close as required above. I stipulate not to object

to said re-sentencing and I will not attempt to

withdraw my plea of guilty.

I understand that the following sentence will be

recommended based on my truthful representa-

tion in #9 above, and if it is not so imposed that |

may withdraw my plea:

I.S.S. 3/5 years of informal probation (circle).

Violate no laws. Not to drive with a measur-

able amount of alcohol in my blood system.

Submit to chemical test of blood, breath, or

urine, on demand and as specified by a peace

officer or probation officer, with or without

probable cause. Not to drive without a valid

California driver’s license on person. Pay a

fine of $ plus penalty assesment. Pay

restitution fine of $ _—_—__—i to State Restitu-

tion Fund/perform community service as or-

dered (circle). ($1,000 maximum P.C. 1203.04)

If victim involved, pay restitution of $

or as ordered by court. Pay $ alcohol

abuse prevention penalty ($50 maximum

App. 20

V.C. 23196(a)). Pay Cost of Probation as

directed by probation officers 1203.1b P.C.

Serve days in Orange County Jail.

Credit days actual time served. Sur-

render car for impound of days. At-

tend and complete Alcohol Education/

Treatment program as ordered.

See Addendum

plea to court.

12. My plea of euilty/nolo contendere is entered

freely and voluntarily, and without any threats

or promises made to me except as to the recom-

mended sentence, if any.

DEFENDANT: I have personally initialed each of

the above boxes and understand each and every one

of the rights outlined above and I hereby waive and

give up each of them and enter my plea of euilty/nolo

contendere to the above charge. I understand that

each of the rights outlined above also apply to proving

the existence of separate convictions which are al-

leged. Said separate convictions are alleged to have

occurred on as alleged. I understand that I have a

right to a separate hearing to determine the constitu-

tional validity of said separate convictions. I also

App. 21

understand I have a right to a separate jury trial to

determine whether I suffered the alleged separate

convictions. I voluntarily, knowingly and intelligently

waive and give up each of these rights and admit

each of the separate convictions alleged in this com-

plaint.

PERJURY: I declare all the foregoing to be true and

correct under penalty of perjury.

DATED: 6-23-98, at IRVINE, CALIFORNIA

SIGNED x /s/ Michael Treadway, Defendant

DEFENDANT’S ATTORNEY: I[ am attorney of

record and I have explained each of the above rights

to the defendant, and having explored the facts with

him and studied his possible defenses to the

charge(s), I concur in his decision to waive the above

rights and to enter a plea of leuilty/nolo contendere. I

further stipulate that this document may be received

by the Court as evidence of defendant’s intelligent

waiver of these rights and that it shall be filed by the

Clerk as a permanent record to that waiver. I have

witnessed the reading of this form by the defendant

and his initialings and signature upon it.

ATTORNEY

DATED: 6-23-98 SIGNED: [Tllegible] _ OF RECORD

FOR THE PEOPLE:

DEPUTY

DATED: SIGNED: __ DIST. ATTY.

App. 22

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App. 28

People v. Michael Treadway Case No. SH98SM41824

ADDENDUM TO DEFENDANT'S WAIVER OF

CONSTITUTIONAL RIGHTS FORM —- TERMS OF

PROBATION —- (DUI FIRST OFFENSE)

DEFENDANT having been convicted for a violation of

VEHICLE CODE SECTION 23152(a)(b) and legal

cause being shown why judgement should not be

pronounced. IT IS ORDERED that the imposition of

sentence be suspended and that DEFENDANT be

placed on probation from this date on the following

terms and conditions:

i. [/s/ MT] Three (3) years informal probation.

2. [(/s/ MT] Pay a fine of $500 Plus a penalty

assessment of $850.00 for a total of

$1,350.00

Pay in full by /__/___, or Pay an

initial payment of $__ on or before

/__/__, and monthly payments

as set by the judicial assistant there-

after until paid in full, (payments

shall include all fines, penalties and

fees discussed herein).

3. [(/s/ MT] Serve __ days in Orange County

Jail. Credit for time served __ days

actual time or Serve __ weekends,

commencing ee at

am/pm and the next consecutive

weekends.

10.

[/s/

(/s/

App. 29

MT] Obey all laws, orders, rules and

regulations of the Probation Depart-

ment, Court and Jail.

MT] Pay restitution to the victim(s) as

directed by Victim-Witness.

MT] Pay $100.00 to the State Restitution

Fund on or before /_/

MT] Violate no law. Report in writing any

arrest or conviction of a crime to this

Court.

MT] Do not drive with a discernable

amount of alcohol in your blood

system. Submit to a_ blood-alcohol

test when requested by any po-

lice/peace officer. Said request may

be made with or without reasonable

cause or reasonable suspicion.

MT] Do not drive after the date of convic-

tion unless you have a valid Califor-

nia drivers license in your

possession.

MT] Do not drive after the date of conviction

unless you have lability insurance.

MT] Attend and successfully complete a

First Offender’s Alcohol Program,

level _. Enroll on or before

ee and provide proof to the

Court of your enrollment. Notify this

court in the event you are terminated

from the program or are absent from

more than 2 consecutive sessions of

the program.

11.

13.

14.

15.

16.

17.

18.

19.

20/

L/s/

[/s/

|/s/

App. 30

MT] Do not drive for Ninety (90) days

after conviction except (1) where

necessary to travel to and from your

place of employment (2) where neces-

sary to perform the duties of you

employment; and (3) to and from

your alcohol program.

MT] Pay Fifty Dollars ($50) alcohol abuse

prevention penalty pursuant to

VC23196(a).

MT] Pay additional alcohol penalty fee of

Thirty Seven Dollars ($37) per

PC1463.14(c).

MT] Attend on MADD panel and provide

proof of attendance prior to

/ /

f /

MT] Attend __ AA meetings at intervals

of ___ per week. Provide proof to the

Court of your’ attendance on

fj ¥§

MT] Pay booking fees in the amount of

$ through Victim-Witness.

MT] Consume no alcoholic beverages/do

not go where such are the chief item

of sale.

MT]

/ MT)

/ MT!

App. 31

I have read and understand these terms of Probation.

Dated: 6-23-98 Defendant /s/ Michael Treadway _

Def.

DDA: 6-2 _ Attorney (Illegible]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.