P. v. Martinez

Filed 9/27/06 P. v. Martinez CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Ruffo Espinosa, Jr., Judge. Affirmed.

Jennifer L. Peabody, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.

Alden Abidan Martinez appeals from a judgment entered following a jury trial in which he was convicted in count 1 of driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)) and in count 2 of driving while having a 0.08 percent or higher blood alcohol (Veh. Code, § 23152, subd. (b)) and his no contest plea in count 3 of driving when the privilege has been suspended for a prior conviction of driving under the influence of alcohol (Veh. Code, § 14601.2, subd. (a)), a misdemeanor. Additionally following a court trial, with reference to counts 1 and 2, the court found appellant suffered three prior convictions within the meaning of Vehicle Code sections 23550 and 23550.5 and served one prior prison term within the meaning of Penal Code section 667.5, subdivision (b). With reference to all counts, the court found appellant was convicted of two prior felonies within the meaning of Penal Code section 1203, subdivision (e)(4). Appellant was sentenced in count 1 to prison for the upper term of three years. In count 3, appellant was sentenced to an additional year consecutive to count 1, to be served in any penal institution. Imposition of sentence in count 2 was stayed pursuant to Penal Code section 654 and the special enhancements were dismissed pursuant to Penal Code section 1385. Appellant contends the imposition of an upper term sentence violated Blakely v. Washington (2004) 542 U.S. 296 and his Fifth, Sixth and Fourteenth Amendment rights to a jury trial and due process. For reasons explained in the opinion, we affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

On October 16, 2005 at approximately 8:45 p.m., Los Angeles Police Officer Marie Grebinski and her partner Officer Sabrina Beach were in their marked patrol car when they received a radio call of “a drunk male entering his vehicle at a 7-Eleven” in the area of Third and Kingsley streets in Los Angeles. The officers arrived at the location one to two minutes later. Approximately one block from the store, Officer Grebinski observed the subject vehicle, a Nissan pickup truck, facing southbound, stopped in the intersection. The passenger of the vehicle was leaning out and speaking to someone on the sidewalk. The stopped vehicle was impeding traffic, which was a violation of the Vehicle Code. Officer Grebinski shined her spotlight on the vehicle and the vehicle began to move southbound out of the intersection, crossing over into the northbound lane of travel, driving on the wrong side of the road, also a violation of the Vehicle Code. The officer activated her vehicle’s red light and siren to conduct a traffic stop. The pickup truck continued to travel southbound for a short while and then pulled to the curb. The officer observed the truck’s “reverse lights go on” and she honked her horn. When the “reverse lights turned off” and when she believed the car to be parked, she approached appellant, who was the driver. A 16-ounce beer can was in the drink holder in the center console. Officer Grebinski smelled the odor of alcohol on appellant’s breath and observed that his eyes were very watery. She believed he could have been under the influence of alcohol. Appellant tried to put the key back in the truck’s ignition and Officer Grebinski told him not to start the vehicle. Appellant stepped out of his vehicle at the officer’s request, and “he just kind of stumbled out into the street and was walking down the center of the roadway, just kind of stumbling along.” The officer told him to get out of the street and onto the sidewalk. She told him she believed he was under the influence of alcohol and wanted to give him a series of tests. Appellant had slurred speech, an unsteady gait, poor balance, and his eyes were watery and bloodshot. When the officer conducted standardized field sobriety tests, she observed “a horizontal gaze and nystagmus . . . very much pronounced in a horizontal direction.” He was unable to complete the “Romberg balance test,” was unable to walk “heel-to-toe” during another field sobriety test, was unable to perform the “one-leg stand” and was unable to perform the “finger-to-nose test” successfully. As a result, Officer Grebinski believed appellant was under the influence of alcohol and he could not safely drive his motor vehicle. She asked appellant if he had been drinking and he stated he had not. While appellant stated his license was in his wallet in the truck, the officers were unable to locate it. The officers found eight to ten 16-ounce beer cans, approximately three were open and five were unopened.

Appellant was arrested and a blood test indicated he had a blood alcohol level of .33 percent.

DISCUSSION

At sentencing, the trial court stated it had read and considered the probation report. The court noted appellant had multiple drunk driving offenses and that the present offense was either his seventh or eighth conviction for driving under the influence. The court observed appellant had previously been sentenced to 16 months in prison, which was the low term and which was concurrent with another case. The court additionally noted appellant showed no remorse and that when stopped by the police he had open cans of beer in his car. Based on the above, the court believed the high term of three years was warranted. As to count 3, the court sentenced appellant to a consecutive year as it was “a separate act and separate crime altogether.”

Appellant contends he was improperly sentenced to the upper term in violation of his federal constitutional rights to a jury trial and due process. (Blakely v. Washington, supra, 542 U.S. 296.) He claims the trial court erroneously imposed an upper term based on its own findings of aggravating facts that were not tried or found true by a jury. He recognizes that this court is bound to follow the holding of People v. Black (2005) 35 Cal.4th 1238, but asserts he is making this argument to preserve it for federal review.

In People v. Black, supra, 35 Cal.4th 1238, 1254, the California Supreme Court held that Blakely does not invalidate California’s upper-term sentencing procedure. Appellant’s argument raises no issues not resolved in Black.^[1] We are bound to follow decisions of our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EPSTEIN, P. J.

We concur:

WILLHITE, J.

SUZUKAWA, J.

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[1] The United States Supreme Court has granted certiorari in People v. Cunningham (Apr. 18, 2005, A103501) [nonpub. opn.], certiorari granted sub nom. Cunningham v. California (Feb. 21, 2006, No. 05-6551) ___ U.S. ___ [126 S.Ct. 1329], on the issue of whether Blakely applies to California’s determinate sentencing law.