P. v. Norris

Filed 4/14/06 P. v. Norris CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Butte)

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Defendant Cynthia Kay Norris pled no contest to driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)) and admitted she had been convicted of vehicular manslaughter while intoxicated (Pen. Code, § 192, subd. (c)(3); Veh. Code, § 23550.5, subd. (b)). She was sentenced to the upper term of three years in state prison.

Defendant appeals, asserting the trial court erroneously relied upon unfounded aggravating circumstances and improperly ignored mitigating circumstances in sentencing her to the upper term. We shall affirm the judgment.

FACTS

At 11:00 p.m. on April 14, 2004, California Highway Patrol officers found defendant standing next to her car on Fairhill Drive, east of Oroville Garden Ranch Road in Butte County. She had failed to complete a U-turn, and her car was stuck in a drainage ditch, blocking the westbound lane. As defendant spoke to the officers, they noticed that she had red, watery eyes and her breath smelled of alcohol. She was arrested after failing a field sobriety test. Her blood alcohol level later tested at 0.33 percent.

As previously stated, defendant was convicted of driving under the influence of alcohol (DUI). The probation report noted that this was defendant's third DUI conviction and that she was arrested again for DUI while released on her own recognizance in this case--which violated the release stipulation that she abstain from alcohol.

The probation report identified the following as aggravating circumstances: â€