P. v. Brown

Filed 3/2/06 P. v. Brown CA1/5

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

On September 2, 2004, defendant Phillip Harry Brown, Jr. pleaded guilty^[1] in case No. CR043616S to felony driving under the influence^[2] with a prior felony driving under the influence conviction within the last 10 years (Veh. Code §§ 23152, subds. (a) & (b), 23550.5).^[3] Subsequently, defendant entered a guilty plea in case No. CR044989S to driving a commercial vehicle while having a blood alcohol level in excess of .04 percent (§ 23152, subd. (d)) and admitted to having suffered a prior felony driving under the influence conviction within the last seven years (§ 23152, subd. (a)).

The trial court sentenced defendant to an aggregate state prison term of two years eight months, ordered him to pay restitution fines and revoked his driving privilege for four years. Defendant contends the court exceeded its authority in revoking his license under section 13352, subdivision (a)(7). We disagree and affirm.

Factual and Procedural Background^[4]

Case No. CR043616S

On June 19, 2004, a California Highway Patrol officer observed defendant driving in Willow Creek, weaving across the double yellow lines and traveling well below the speed limit. The officer conducted a traffic stop and, upon contact with defendant, detected the odor of alcohol. Defendant was unable to exit his vehicle and unable to walk without assistance. His eyes were red and his speech was slurred. Subsequent breath test results revealed his blood alcohol level to be .23 and .22 percent. On September 2, 2004, defendant entered his guilty plea in this case and the court advised him that his â€