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Filed 5/24/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

FRANCISCO CARRILLO 

ESCARENO,

Defendant and Appellant.

 A160209

 (Napa County Super Ct.

 No. 20CR000557)

Francisco Carrillo Escareno pleaded no contest to two felonies, four 

misdemeanors and an infraction arising from a single incident of driving 

under the influence of alcohol and without a valid license. He contends the 

trial court erred in refusing to dismiss the misdemeanor and infraction 

counts pursuant to Vehicle Code section 41500 after sentencing him to prison 

on the felony counts. We will affirm the judgment.

BACKGROUND

The following facts are taken from the preliminary hearing testimony 

of Napa County Police Officer Kyle Cadena. About 10:07 p.m., on February 

29, 2020, Napa dispatch broadcast a lookout for a possible drunk driver at 

State Route 29 and Oak Knoll Avenue. A caller had reported a gold Toyota 

Avalon with California license plate No. 8CUW108, driving at rapidly 

alternating speeds, crossing the double line into opposing lanes of traffic and 

the solid line at the shoulder of the road. About 40 minutes later, Cadena 

was dispatched to Valle Verde and Shelter Creek, where the same vehicle
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had been observed parked, engine still running, with its lights on and the 

driver apparently asleep and unresponsive to knocking on his window.

When Officer Cadena arrived at the scene, paramedics had taken the 

keys from the driver. Cadena contacted the driver, appellant, once the 

paramedics determined there was no medical emergency. Appellant

appeared impaired, likely due to alcohol: He was slurring his words, 

repeating himself, and having difficulty balancing and walking steadily. 

Appellant said he was driving home from work and had consumed 10 beers in 

the last seven hours, having stopped drinking within the last hour. There 

was an empty 12-ounce can of beer in plain view on the floorboard of the front 

passenger seat. Appellant performed poorly on field sobriety tests, a 

preliminary screening of a breath sample indicated the presence of alcohol,

and he was placed under arrest. A blood sample was taken at 12:33 a.m. and 

subsequent testing found a blood alcohol level of .208. Appellant was on post

release community supervision (PRCS) with alcohol and testing terms, and 

his driver’s license was suspended. He had terms on his driver’s license 

requiring use of an ignition interlock device but the Avalon was not equipped 

with one.

Appellant was charged by information filed on March 17, 2020, with

felony driving under the influence of alcohol after two prior felony convictions 

for the same (Veh. Code,1 §§ 23152, subd. (a), 23550.5) (count 1); felony 

driving with .08 percent or higher blood alcohol after two prior felony 

convictions for the same (§§ 23152, subd. (b), 23550.5) (count 2); misdemeanor 

unlawful operation of a vehicle not equipped with a functioning ignition 

interlock device (§ 23247, subd. (e)) (count 3); misdemeanor driving when 

1 Further statutory references will be to the Vehicle Code except as 

otherwise specified.
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privilege suspended for driving under the influence, with priors (§ 14601.2, 

subd. (a)) (count 4); misdemeanor driving while license suspended or revoked, 

with priors (§ 14601.5, subd. (a)) (count 5); misdemeanor driving without a 

valid license (§ 12500, subd. (a)) (count 6); and possession of an open 

container of alcoholic beverage while driving, an infraction (§ 23222, 

subd. (a)) (count 7). It was alleged in connection with counts 1 and 2 that 

appellant’s blood alcohol concentration was 0.15 percent by weight and more 

within the meaning of section 23578. 

On March 23, 2020, appellant entered pleas of no contest to all counts 

and admitted the special allegations and prior convictions. 

At sentencing on April 21, 2020, the court imposed the three-year 

aggravated term on count 1 and the same sentence on count 2, stayed 

pursuant to Penal Code section 654; the court imposed certain fees associated 

with these felony counts and waived others. As the court turned to 

sentencing on the misdemeanors and infraction, defense counsel interjected 

that these counts had to be dismissed pursuant to section 41500 because the 

court was sentencing appellant to prison. The prosecutor disagreed and the 

court concurred, stating it did not read section 41500 as applying to charges 

filed concurrently with a pending felony case. Proceeding with the 

misdemeanor counts, the court imposed a sentence of 104 days in county jail 

and a fine, both stayed pursuant to Penal Code section 654. The court also 

stayed the fine on the infraction pursuant to Penal Code section 654. 

This appeal followed.

DISCUSSION

Section 41500, subdivision (a), provides: “A person shall not be subject 

to prosecution for a nonfelony offense arising out of the operation of a motor 

vehicle . . . that is pending against him or her at the time of his or her 
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commitment to the custody of the Secretary of the Department of Corrections 

and Rehabilitation, the Division of Juvenile Justice in the Department of 

Corrections and Rehabilitation, or to a county jail pursuant to subdivision (h) 

of Section 1170 of the Penal Code.” 

This statute “is an exception to the rule that all criminal offenses are 

subject to prosecution.” (Joseph v. Superior Court (1992) 9 Cal.App.4th 498, 

503.) “ ‘[T]here is . . . strong public policy that allows felons sentenced to 

state institutions to obtain relief from detainers that might render their 

release date uncertain and thus adversely affect their eventual 

rehabilitation.’ ” (People v. Lopez (2013) 218 Cal.App.4th Supp. 6, 11 (Lopez), 

quoting People v. Freeman (1987) 225 Cal.App.3d Supp. 1, 4 (Freeman).) “A 

prisoner serving time often faces other charges or proceedings when his term 

of imprisonment is completed. These are sometimes referred to as ‘detainers’

or ‘holds.’ They render the prisoner’s final date of release into the community 

uncertain, and often adversely affect his security classification thereby 

preventing his participation in various programs otherwise available to 

prisoners.” (Freeman, at p. Supp. 4, fn. 2.)

The policy favoring relief from detainers “ ‘was expressly adverted to by 

the Legislature in the enactment of section 41500. In amending the section 

in 1972, the Legislature noted that the purpose of section 41500 is to allow 

prisoners to leave prison with a clean record. [Citation.] The Legislature 

further noted in 1975, when the section was amended to extend coverage to 

Youth Authority wards, that the rehabilitative process is aided by 

eliminating the interruptions due to arrest and prosecution for nonfelony 

traffic violations . . . ,’ ” which occurred prior to commitment to the Youth 

Authority. (Lopez, supra, 218 Cal.App.4th at p. Supp. 11, quoting Freeman,

supra, 225 Cal.App.3d at p. Supp. 4.) Furthermore, it is in the public interest 
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that courts not be burdened with the prosecution of minor cases where the 

defendant has already been sentenced to serve a long term in prison or in the 

Youth Authority, and the additional prosecution will not substantially 

increase that term. (Freeman, at p. Supp. 4.)

In appellant’s view, at the point he was sentenced to prison on the 

felony offenses, the nonfelony charges were pending against him because 

sentence had not yet been imposed on them. He characterizes the issue on 

this appeal as whether these “pending” misdemeanor charges and infraction

were subject to the section 41500, subdivision (a), ban on prosecution, or were 

exempt from that ban pursuant to the statutory exception stated in section 

41500, subdivision (d). Subdivision (d) provides: “The provisions of this 

section shall not apply to a nonfelony offense if the department is required by 

this code to immediately revoke or suspend the privilege of a person to drive 

a motor vehicle upon receipt of a duly certified abstract of the record of a 

court showing that the person has been convicted of that nonfelony offense.” 

Appellant contends none of the nonfelony offenses come within the 

subdivision (d) exception and, therefore, they should have been dismissed.

Respondent, by contrast, views section 41500, subdivision (a), as 

inapplicable to the present case because the misdemeanors and infraction 

were charged and prosecuted together with the felonies as part of a single, 

unitary proceeding. As part of this argument, respondent maintains the 

nonfelony offenses were not “pending” at the time of sentencing because they 

had been resolved. Respondent notes the observation of the court in Joseph

v. Superior Court, supra, 9 Cal.App.4th at page 505, that “sentencing occurs 

at the end of proceedings, not during their pendency.” 

Countering the suggestion that criminal charges are no longer pending 

once guilt or innocence has been determined—i.e., after conviction—appellant
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relies upon McAlpine v. Superior Court (1989) 209 Cal.App.3d 1 (McAlpine) to

argue that criminal charges remain pending until judgment. In a criminal 

case, the pronouncement of sentence is the judgment. (Id. at p. 7; People v. 

Villatoro (2020) 44 Cal.App.5th 365, 369.) McAlpine involved Government 

Code section 945.3, which tolls the statute of limitations on civil actions for 

police misconduct while related criminal “charges are pending” against the 

plaintiff. The plaintiff was shot by a police officer who had stopped him for 

questioning about a reported robbery and was subsequently convicted of 

robbery; meanwhile, he filed a tort claim against the city, the denial of which 

triggered the six-month statute of limitations for filing a civil action. 

(McAlpine. at p. 4.) The question in McAlpine was whether the criminal 

proceedings that served to toll the statute of limitations were “pending” only 

until conviction—in which case the complaint was untimely—or remained 

“pending” until judgment was entered at sentencing.

Relying on a dictionary definition of “pending” as “ ‘[b]egun, but not yet 

completed; during; before the conclusion of; prior to the completion of; 

unsettled; undetermined; in process of settlement or adjustment’ (Black’s 

Law Dict. (5th ed. 1979) p. 1021, col. 1),” the city argued that “charges” are 

pending only until resolved by plea or verdict. (McAlpine, supra, 209 

Cal.App.3d at p. 6.) The court rejected this view on the basis of two factors: 

Code of Civil Procedure section 1049, which states that an “ ‘action is deemed 

to be pending from the time of its commencement until its final 

determination upon appeal . . . ,’ ” and language in Government Code section 

945.3 stating, “ ‘[f]or the purposes of this section, charges pending before a 

justice, municipal, or superior court do not include appeals . . . .’ ” Combined 

with the definition of “pending” in Code of Civil Procedure section 1049, the 

court reasoned, the express exclusion of appeals in Government Code section 
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945.3, showed “the Legislature intended the term ‘pending’ to include all 

proceedings leading to judgment.” (McAlpine, at p. 6.)

The McAlpine court did not purport to define the term “pending” for all 

purposes, and relied upon statutory language specific to the Government 

Code section it was interpreting. Even accepting for purposes of argument 

that an offense remains “pending” after the defendant’s guilt has been 

resolved by conviction, the question in the present case is whether the 

reference in section 41500 to a “nonfelony offense . . . that is pending” against

a person “at the time of his or her commitment” to prison was intended to 

encompass offenses prosecuted in the same action as the offenses resulting in 

the prison sentence. 

On this point, respondent has the better argument. The concerns 

Freeman and Lopez described as underlying section 41500, subdivision (a), 

are not implicated where both felony and nonfelony offenses are charged and 

prosecuted in a single case. In this situation, prosecution of the nonfelony 

offenses threatens no detainer that might undermine the certainty of a 

defendant’s prison release date or interruption of the rehabilitative process. 

Instead, prosecution and sentencing of the nonfelony offenses is simultaneous 

with that of the felony offenses, and the sentence imposed is what the court 

deems appropriate for all the offenses together.2 Describing the nonfelony 

offenses in the present case as “pending” when appellant was sentenced to 

prison creates an artificial distinction that does not serve the legislative 

purpose behind section 41500, subdivision (a).

2 Here, as all the charged offenses arose from the same incident, the 

nonfelony offenses added neither custodial time nor financial penalty to the 

penal consequences of the felony offenses: The jail terms and fines for the 

nonfelony offenses were stayed pursuant to Penal Code section 654.
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“The main goal of statutory interpretation is to effectuate the 

Legislature’s intent. (See Riverside County Sheriff’s Dept. v. Stiglitz (2014) 

60 Cal.4th 624, 630.) Thus, ‘the “plain meaning” rule does not prohibit a 

court from determining whether the literal meaning of a statute comports 

with its purpose or whether such a construction of one provision is consistent 

with other provisions of the statute. . . . Literal construction should not 

prevail if it is contrary to the legislative intent apparent in the statute. The 

intent prevails over the letter, and the letter will, if possible, be so read as to 

conform to the spirit of the act.’ (Lungren v. Deukmejian (1988) 45 Cal.3d 

727, 735; Riverside County Sheriff’s Dept.[, at p.] 630; People v. Mullendore

(2014) 230 Cal.App.4th 848, 854.)” (People v. Henderson (2020) 46 

Cal.App.5th 533, 545.) 

In People v. Alwien (2017) 18 Cal.App.5th Supp. 9, a probationer who 

was temporarily placed in a California Department of Corrections and 

Rehabilitation diagnostic facility argued he was entitled to dismissal of traffic

offenses pursuant to section 41500, subdivision (a), because he was 

“commit[ted] to the custody of the Secretary of the Department of Corrections 

and Rehabilitation” as described in the statute. Rejecting this claim, Alwien

stated, “a literal construction, as appellant asserts, would not further the 

legislative goal behind the statute—to give people a fresh start for 

rehabilitation upon release from a lengthy term of incarceration. (People v. 

Lopez, supra, 218 Cal.App.4th at p. Supp. 6; . . . Freeman, supra, 

225 Cal.App.3rd at p. Supp. 4.)” The same is true here. Applying section 

41500 to a defendant being prosecuted in a single action for felony and 

nonfelony offenses arising out of a single incident would further none of the 

Legislature’s purposes in section 41500. To the contrary, it would offer a 

windfall to a defendant who committed multiple offenses, contrary to the 
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“strong public policy that drinking drivers, particularly repeating drinking 

drivers, not drive a vehicle for specified periods of time, and not until they 

have complied with certain corrective conditions.” (Freeman, at p. 4.)3

DISPOSITION

The judgment is affirmed.

3 Our resolution of this issue makes it unnecessary for us to consider 

whether the nonfelony offenses would come within section 41500, subdivision 

(d), as appellant contends.
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_________________________

Kline, P.J.

We concur:

_________________________

Richman, J.

_________________________

Stewart, J.

People v. Escareno (A160209)
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Trial Court: Napa County Superior Court

Trial Judge: Hon. Elia Ortiz

Attorney for Appellant: By Appointment of the Court of Appeal

First District Appellate Project

Stanley Dale Radtke

Attorneys for Respondent: Attorney General of California

Xavier Becerra

Lance E. Winters

Chief Assistant Attorney General

Jeffrey M. Laurence

Senior Assistant Attorney General

Catherine A. Rivlin

Supervising Deputy Attorney General

Rene A. Chacon

Supervising Deputy Attorney General