P. v. Law
Filed 4/17/09 P. v. Law CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. AUDRY WAYNE LAW, Defendant and Appellant. | H033303 (Santa Clara County Super. Ct. No. CC898312) |
Pursuant to the trial courts offer, and over the prosecutors objection, defendant Audry Wayne Law pleaded no contest to two felonies: driving under the influence of alcohol with three prior convictions (Veh. Code, 23152, subd. (a), 23550, subd. (a)) and driving with a blood alcohol level of 0.08 percent or more with three prior convictions (id., 23152, subd. (b), 23550, subd. (a)). Defendant admitted the three prior convictions alleged. The trial court suspended imposition of sentence and placed defendant on probation for three years. Defendant appeals.
We appointed counsel to represent defendant in this court. Appointed counsel filed an opening brief which states the case and the facts but raises no specific issues. We notified defendant of his right to submit written argument in his own behalf within 30 days. That period has elapsed and we have received no written argument from defendant.
I. Background[1]
On or about March 6, 2008, at approximately 11:45 p.m., Officer Robert Dillon of the San Jose Police Department observed a vehicle with no headlights driving erratically on city streets. Officer Dillon stopped the car to investigate. The officer contacted defendant, the driver and lone occupant, and noticed a heavy odor of alcohol coming from his breath and person. Defendants eyes were red and watery and his speech was slurred. Defendant was unable to successfully complete the field sobriety tests. Results of a breath test were consistent with someone under the influence of alcohol. A subsequent blood test revealed defendants blood alcohol to be 0.14 percent.
Defendant was arrested and charged with driving under the influence of alcohol and of driving with a blood alcohol level of 0.08 percent or greater. The information also alleged that defendant had been convicted of driving under the influence of alcohol in September 1998 and March 2000 (Veh. Code, 23152, subd. (a)) and of wet reckless driving (id., 23103, 23103.5) in January 2001. Following the preliminary examination, defendant was held to answer.
On June 23, 2008, prior to the change of plea hearing, defendant requested and received a Marsden hearing.[2] The trial court denied the Marsden motion. Thereafter, defendant pleaded no contest to the crimes as charged. The trial court suspended imposition of sentence, placed defendant on three years formal probation on the condition he serve six months in county jail and four additional months in a residential drug treatment program. Defendant received credit for 200 days in custody, 20 days of which were credited toward the four month treatment program. The court also ordered defendant to pay a restitution fund fine of $200 (Pen. Code, 1202.4), a probation revocation fine of $200, which was suspended pursuant to Penal Code section 1202.44, a $50 assessment for alcohol abuse education and prevention (Veh. Code, 23645), a $40 court security fee (Pen. Code, 1465.8), and a booking fee of $129.75 (Gov. Code, 29550, 29550.1, and 29550.2).
II. Discussion
Defendant was denied a certificate of probable cause, which is required by Penal Code section 1237.5 when a defendant seeks to appeal from a judgment entered following a guilty or no contest plea. Accordingly, the appeal is inoperative insofar as it might challenge constitutional, jurisdictional, or other grounds going to the legality of the proceedings. (Pen. Code, 1237.5, subd. (a).) The certificate is not required when the notice of appeal states that it is based upon the denial of a motion to suppress evidence under Penal Code section 1538.5 or grounds that arose after entry of the plea and do not affect the pleas validity. (Cal. Rules of Court, rule 8.304(b)(4).)Defendants notice of appeal states that the appeal is based upon grounds that arose after entry of the plea and do not affect the pleas validity. Accordingly, pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the whole record, focusing upon the proceedings after entry of the plea. Having done so, we conclude that there is no arguable issue on appeal.
III. Disposition
The judgment is affirmed.
Premo, J.
WE CONCUR:
Rushing, P.J.
Elia, J.
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[1] Because this matter was resolved by plea, we take our recitation of the facts from the transcript of the preliminary examination.
