Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR 509049
RIVERA, J.
Defendant Rutilio Napoleon-Martinez appeals a judgment entered upon a plea of no contest to a felony charge of making an unsafe turn while having a blood alcohol of .08 percent or more, causing injury to another person. (Veh. Code, § 23153, subd. (b).) His counsel has filed an opening brief raising no issues and asking this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was apprised of his right to file a supplemental brief but did not do so.
All undesignated statutory references are to the Vehicle Code.
According to the presentence report, a vehicle defendant was driving struck a tree head on. The vehicle was seriously damaged, and it took emergency workers an hour and a half to get defendant out of it. Both defendant and his passenger suffered major injuries. A blood sample taken approximately three hours after officers were dispatched to the scene of the accident showed a blood alcohol level of .18 percent. It appeared that the vehicle defendant had been driving had left the roadway and drifted to the right, then struck a traffic sign post and telephone pole before hitting the tree.
Defendant was charged in count I with making an unsafe turn while driving under the influence of alcohol or drugs and causing injury to another person (§ 23153, subd. (a)); in count II with making an unsafe turn while having a blood alcohol of .08 percent or more and causing injury to another person (§ 23153, subd. (b)); in count III with driving with a blood alcohol level of .05 percent or more while under the age of 21 (§ 23140, subd. (a)); in count IV with driving without a valid driver’s license (§ 12500, subd. (a)); and in count V with driving without evidence of financial responsibility (§ 16028, subd. (a)).
Defendant pled no contest to count II (§ 23153, subd. (b)), and the other charges were dismissed with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754). There was no agreement as to sentencing. The court advised defendant of his constitutional rights, and he signed and initialed a waiver of rights in Spanish.
The presentence report noted that defendant had no juvenile or criminal record. In aggravation, the report noted that the crime involved great bodily harm; in mitigation, that there were no prior convictions. The probation officer recommended that defendant be sentenced to the midterm of two years. (§ 23554; Pen. Code, § 18.) Defendant asked to be granted probation or, if the court denied probation, that he receive the mitigated term.
The trial court denied probation, sentenced defendant to the mitigated term of 16 months in prison, and imposed restitution fines (Pen. Code, § 1202.4) and a court security fee.
Defendant was represented by counsel. He was advised of his constitutional rights and the consequences of his plea. His sentence was calculated correctly. There are no meritorious issues to be argued.
DISPOSITION
The judgment is affirmed.
We concur: RUVOLO, P.J., REARDON, J.