Fear Not Law Articles: P. v. Miranda

P. v. Miranda

Filed 9/27/07 P. v. Miranda CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

JOEL RIVAS-MIRANDA,

Defendant and Appellant.

A117793

(Sonoma County

Super. Ct. No. SCR508865)

Around 11:20 p.m. on the night of April 4, 2007, a Sonoma County deputy sheriff observed appellant Joel Rivas-Miranda driving his vehicle on Highway 101 at approximately 45 miles per hour. The vehicle drifted over the fog line, and appellant drove for a short distance on the shoulder of the road. He reduced his speed even more as he reentered the roadway, and he drove in a pronounced weaving pattern for the next half-mile. The deputy observed other cars on the roadway attempting to avoid appellants vehicle. When the deputy initiated a traffic stop, appellant continued driving at approximately 20 miles per hour, and when he eventually came to a stop both of his passenger-side tires remained in the highway. Appellant was slumped in the drivers seat and moved very slowly. His eyes were red and watery, and the interior of the vehicle smelled strongly of alcohol. When the deputy asked for identification, appellant fumbled for his wallet and then simply handed it to the deputy, saying nothing. Outside the car, appellant walked with an unsteady gait and swayed while he talked to the deputy. He said he had consumed three or four drinks. When appellant attempted to perform a field sobriety test, the deputy had to grab him to keep him from falling. A records check revealed that appellants drivers license was suspended and he was on parole for a previous conviction for driving while intoxicated. The deputy administered a PAS test, which indicated appellants blood alcohol content was 0.22 percent, and he took appellant into custody.

Appellant was charged by felony complaint with driving under the influence of alcohol (Veh. Code, 23152, subd. (a)) and driving with a blood alcohol level over 0.08 percent (Veh. Code, 23152, subd. (b)). The complaint alleged appellant had suffered two prior felony convictions for drunk driving within the previous 10 years and had served a prior prison term for these offenses.[1] On April 20, 2007, appellant waived his rights, pleaded no contest to a felony violation of Vehicle Code section 23152 and admitted the two prior felony convictions. Appellant also signed a waiver specifically allowing the trial court to determine the existence of any aggravating factors at the time of sentencing. His attorney advised him of the immigration consequences of the plea and also advised appellant that, in light of the prior convictions, the court would determine this to be an aggravated case. The trial court reviewed the police report, found a factual basis for the plea and accepted the plea. Pursuant to the negotiated disposition, the prosecution dismissed the charge of driving with a blood alcohol level over 0.08 percent and struck the prior prison term allegation.

The probation department recommended that appellant be denied probation and sentenced to an aggravated term. This was appellants ninth conviction for driving while intoxicated, and he was driving on a suspended license at the time of the offense. In addition, appellants prior performance on probation and parole had been unsatisfactory. On May 15, 2007, the court denied probation and sentenced appellant to the upper term of three years imprisonment. In addition, appellant was designated a habitual traffic offender and his drivers license was revoked for four years. He filed a notice of appeal the next day.

Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, identifying no potentially arguable issues. In addition, appellant has had an opportunity to file a supplemental brief with this court, but he has not done so. We have reviewed the entire record, and we conclude no issue warrants further briefing.

DISPOSITION

The judgment is affirmed.

_________________________

McGuiness, P.J.

We concur:

_________________________

Pollak, J.

_________________________

Siggins, J.

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[1] Although the complaint alleged two prior prison terms, the prosecutor later advised the court the double allegation was a mistake.

Description	Around 11:20 p.m. on the night of April 4, 2007, a Sonoma County deputy sheriff observed appellant Joel Rivas-Miranda driving his vehicle on Highway 101 at approximately 45 miles per hour. The vehicle drifted over the fog line, and appellant drove for a short distance on the shoulder of the road. He reduced his speed even more as he reentered the roadway, and he drove in a pronounced weaving pattern for the next half-mile. The deputy observed other cars on the roadway attempting to avoid appellants vehicle. When the deputy initiated a traffic stop, appellant continued driving at approximately 20 miles per hour, and when he eventually came to a stop both of his passenger-side tires remained in the highway. Appellant was slumped in the drivers seat and moved very slowly. His eyes were red and watery, and the interior of the vehicle smelled strongly of alcohol. When the deputy asked for identification, appellant fumbled for his wallet and then simply handed it to the deputy, saying nothing. Outside the car, appellant walked with an unsteady gait and swayed while he talked to the deputy. He said he had consumed three or four drinks. When appellant attempted to perform a field sobriety test, the deputy had to grab him to keep him from falling. A records check revealed that appellants drivers license was suspended and he was on parole for a previous conviction for driving while intoxicated. The deputy administered a PAS test, which indicated appellants blood alcohol content was 0.22 percent, and he took appellant into custody. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, identifying no potentially arguable issues. In addition, appellant has had an opportunity to file a supplemental brief with this court, but he has not done so. Court have reviewed the entire record, and Court conclude no issue warrants further briefing. The judgment is affirmed.
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