¶1May a single prior felony conviction for driving under the influence (Veh. Code, § 23152, subd. (a); hereafter DUI) be used both to elevate a new DUI offense from a misdemeanor to a felony and to support a prior prison term enhancement (that is, the imposition of an additional and consecutive prison term when the person committing a felony has previously served a term in state prison)? The majority holds that it may. I agree.
¶2In my dissent in the companion case of People v. Baird (1995) 12 Cal.4th 126, 136 [48 Cal.Rptr.2d 65, 906 P.2d 1220] I explain that there is a general rule of statutory construction, based on a reasonable inference of legislative intent, that a single fact may not be used both to prove a crime and to increase the punishment for that crime. And I explain there that this inference of legislative intent is strongest when the fact that is an element of the offense will, in every instance, also satisfy the requirements for the increased punishment. The inference becomes weaker, and the rule ceases to apply, if the fact that is an element of the offense does not frequently or typically also satisfy the requirements for the increased punishment.
¶3Here, the majority persuades me that persons convicted of DUI do not frequently or typically serve prison terms for this offense. (Maj. opn., ante, at pp. 154-155.) Therefore, I agree that we should not infer a legislative intent to preclude use of a single prior DUI conviction both to elevate a new DUI offense from a misdemeanor to a felony and to support a prior prison term enhancement.
¶4I also agree, for the reasons stated by the majority, that using a single prior DUI conviction for these two distinct purposes does not violate the multiple punishment proscription of Penal Code section 654.
¶5Accordingly, I concur in the judgment.
¶6I dissent. The majority’s result amounts to a form of triple jeopardy.
¶7Unquestionably, driving a motor vehicle while voluntarily under the influence of intoxicants is a serious offense. It carries great potential for harm to the offender and others. “[Tjhere is no doubt that the effects of drunk driving are cruel indeed.” (Gikas v. Zolin (1993) 6 Cal.4th 841, 860 [25 Cal.Rptr.2d 500, 863 P.2d 745] (dis. opn. of Mosk, J.), italics deleted.) Hence, within the bounds prescribed by law, such a crime deserves severe punishment.
¶8However, the Legislature cannot have intended the punishment conferred on defendant as a result of his present and prior misconduct.
¶9Defendant admitted that in 1990 he violated Vehicle Code section 23152, subdivision (a), and served a prison term therefor. It was at the time his third violation of section 23152. The court also found him guilty of violating section 23152, subdivision (a), in the proceeding before us.
¶10In sentencing defendant, the court invoked his 1990 offense, along with his two other prior convictions under Vehicle Code section 23152, to convict him of a felony for driving under the influence of alcohol on the present occasion. (Id., § 23175, subd. (a).) He received a three-year prison sentence. In other words, he was again punished under law for his prior conduct.
¶11Then the court invoked the service of a prison term for the same 1990 offense to enhance defendant’s sentence by an additional year. (Pen. Code, § 667.5, subd. (b) [providing under certain conditions that an individual sentenced to prison for “any felony” who served a prior prison term for “any felony” shall receive a one-year enhancement of the sentence imposed].) The sentence was also enhanced because he served two other prior terms for felony offenses. (Ibid.)
¶12The result is that, for a drunk-driving conviction resulting in no injury, defendant received a six-year prison sentence. Although the majority are able to parse various statutes in affirming the sentence, ultimately their reasoning is “ ‘hypertechnical’ ” and “ ‘ “supertechnical” ’ ” (People v. Jones (1993) 5 Cal.4th 1142, 1148 [22 Cal.Rptr.2d 753, 857 P.2d 1163] [explaining a prior opinion’s characterization of “the distinction between prior prison terms and prior felonies for enhancement purposes”]). They cannot escape the core fact that by the time of his release defendant will have been punished three times for his 1990 offense: when he was convicted thereof, when it was used to elevate the current offense to a felony, and when the prison term he received for it was used to enhance his sentence yet again.
¶13*162At bottom, the question we must decide is the Legislature’s intent in determining punishment under the extremely complicated sentencing schemes it has created. “A statute must be construed ‘in the context of the entire statutory system of which it is a part, in order to achieve harmony among the parts.’ ” (People v. Woodhead (1987) 43 Cal.3d 1002, 1009 [239 Cal.Rptr. 656, 741 P.2d 154].) So it is with Penal Code section 667.5, subdivision (b). No matter how elegantly the majority may explain how the various statutes in question mesh, I submit that they miss the essential point. Specifically, I doubt that the Legislature intended to sentence anyone to six years’ imprisonment for a drunk-driving offense in which no injury resulted. This outcome is particularly dubious given that, if defendant’s prior prison term were not invoked in deciding his punishment, he would still receive five years’ imprisonment.
¶14I believe that the Legislature intended to give a person in defendant’s position five years’ imprisonment. Therefore I dissent.
¶15Appellant’s petition for a rehearing was denied February 22, 1996. Mosk, J., was of the opinion that the petition should be granted.