P. v. Hall

Filed 8/21/06 P. v. Hall CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

Appellant contends the court committed two errors in sentencing him following a court trial. One contention is conceded by respondent; the other has no merit. The matter is remanded for the preparation of a new abstract of judgment.

FACTS AND PROCEDURAL HISTORY

At 1:02 a.m. on November 25, 2003, appellant was seen by Pittsburg Police Officer Blazer weaving in a traffic lane and running a red light. Blazer attempted to stop appellant's car using lights and siren. Appellant drove for approximately a half mile before stopping. Upon contacting appellant, Blazer saw that appellant's eyes were watery and bloodshot, his speech was slow and slurred, and there was a strong odor of an alcoholic beverage coming from the car. Blazer had appellant perform a series of field sobriety tests which, in Blazer's opinion, appellant failed. Appellant was arrested and submitted to a breath test at the Pittsburg police station. The results were .24 and .23 percent blood alcohol.

Following a preliminary hearing where the foregoing facts were adduced,[1] appellant was charged with felony driving under the influence of alcohol (count one, Veh. Code[2], § 23152, subd. (a)), felony driving with a blood alcohol level greater than .08 percent (count two, § 23152, subd. (b)), and misdemeanor driving with a suspended or revoked driving privilege (counts three & four, §§ 14601, subd. (a), 14601.1, subd. (a)). As to counts one and two, it was alleged that appellant had suffered a similar felony conviction within the past ten years (§ 23550.5). That same felony conviction was alleged as an enhancing prison prior under Penal Code section 667.5, subdivision (b), and appellant was alleged to be probation ineligible pursuant to Penal Code section 1203, subdivision (e)(4), in light of that felony conviction and five others for drug offenses.

Appellant's trial counsel moved to dismiss count two, pursuant to Penal Code section 995, alleging there had been insufficient evidence at the preliminary hearing that the machine used to test appellant's breath was approved for such use and in proper working order. The motion was granted. Thereafter, appellant waived jury trial and submitted the question of his guilt to the court on the police reports, preliminary hearing transcript and exhibits.

We set forth a significant portion of the voir dire of appellant by the deputy district attorney at the time of the waiver: â€