Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MA039736, Elena J. Duarte, Judge.
Jonathan B. Steiner and Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
WILLHITE, J.
Antonio Fernandez appeals from the judgment entered following a jury trial in which he was convicted in count 1 of driving under the influence causing injury (Veh. Code, § 23153, subd. (a)), in count 2 of driving with.08 per cent blood alcohol causing injury (Veh. Code, § 23153, subd. (b)), and in count 3 of driving with a suspended or revoked license (Veh. Code, § 14601.1, subd. (a)) with the finding that during the commission of the crimes alleged in counts 1 and 2, appellant personally caused great bodily injury within the meaning of Penal Code section 12022.7, subdivision (a). He was sentenced to prison for a total of six years and six months, consisting of in count 1, the upper term of three years, plus three years for the great bodily injury enhancement, the same term for count 2, which was stayed pursuant to Penal Code section 654, and six months for the misdemeanor conviction in count 3. Appellant was given credit for 44 days in custody, consisting of 38 actual days and 6 days of conduct credit, ordered to pay a restitution fine of $1,200, a parole restitution fine in that same amount, which was stayed, and restitution to the victim in the amount of $16,480 based on the value of the victim’s vehicle which was totaled as a result of the accident.
In selecting the upper term, the court considered appellant’s multiple prior convictions of increasing seriousness, that he was on probation at the time of the offense, that he had served state-prison time in the past, and that he had violated probation or parole multiple times.
In the afternoon of July 19, 2007, appellant was driving a pick-up truck northbound and suddenly veered left, crossing the center line and colliding with a vehicle being driven by Ricki Judge. (RT 328-329, 389-390) As a result of the accident, Ms. Judge fractured her ankle, which required surgery and the installation of a metal plate and screws in the bones, and suffered soft-tissue bruising and contusion about her face, right forearm, and upper part of her right leg.
California Highway Patrol Officer Stephen Taggart arrived at the accident scene within minutes of the collision and while questioning appellant, detected a strong smell of beer on his breath, noticed appellant’s eyes were watery, and observed appellant’s speech was slurred. Appellant stated he drank two beers approximately one hour before the accident. Appellant closed his eyes when the officer attempted to perform field sobriety tests. Records from the Department of Motor Vehicles indicated appellant’s driver’s license had been suspended in May 2005 and that appellant had been given notice of the suspension. Based on his investigation, Officer Taggart opined appellant had been traveling at a speed greater than the vehicles ahead of him and that when he came upon them, instead of rear-ending them, he swerved to the left, applied the brakes, and then crashed.
A blood sample taken from appellant approximately two hours after the accident was analyzed and determined to contain a blood alcohol level of 0.13 per cent and 14 nanograms of marijuana metabolite. A small plastic bag, containing marijuana and a partially burned marijuana cigarette, was found on appellant. A person driving a car under the influence of both alcohol and marijuana is more impaired than if he or she is under the influence of just marijuana or just alcohol.
After review of the record, appellant’s court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.
On December 26, 2008, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. No response has been received to date.
We have examined the entire record and are satisfied that no arguable issues exist and that appellant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., MANELLA, J.