Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR-512735
Margulies, J.
Vincent Raymond Grijalva appeals from a judgment of conviction for felony driving while under the influence of alcohol. (Veh. Code, § 23152, subd. (a).) His counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436; see Smith v. Robbins (2000) 528 U.S. 259.) Counsel has notified defendant that he can file a supplemental brief raising any issues he wishes to call to this court’s attention. We have not received any supplemental brief. We have independently reviewed the record and conclude that no arguable issues are presented for review and affirm the judgment.
All further statutory references are to the Vehicle Code unless otherwise specified.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Jason Smith, a California State Parks peace officer or ranger, testified that on June 7, 2007 at approximately 6:00 p.m., he was patrolling off of State Highway 1 at the North Salmon Creek Beach parking area located about a mile to mile and a half north of the town of Bodega Bay. As Smith drove into the parking lot, he observed across from the restroom area facing the ocean a parked tan Ford Thunderbird in which loud music was playing. There were two occupants in the vehicle, the defendant sitting on the driver’s side and the passenger, Brenda Cassidy.
According to Smith, the director of the California State Parks has designated rangers to be peace officers with the authority to enforce all codes and regulations for the State of California.
Several minutes later, Smith observed the Thunderbird driven by defendant leave the parking lot. Defendant used the blinker to make a right turn. Defendant was out of Smith’s sight for approximately five minutes. Smith subsequently located the Thunderbird in the South Salmon Creek parking lot three-quarters of a mile away from the north lot. It was parked in front of the restrooms which are posted with two different signs stating, “[N]o parking anytime.” Smith pulled in front of the Thunderbird and illuminated it with his “solid red light, which illuminates a light bar, red light and a grille light on the front” of his vehicle. As he approached the Thunderbird, he observed Cassidy in the right front passenger seat. She put her hands down in front of her and “hunched over somewhat.” There were no other occupants in the vehicle. On the front passenger floorboard, Smith noticed a 75-milliliter bottle of vodka with the cap off of it.
Smith asked Cassidy to step out of the vehicle, and she complied. As Smith was speaking with her, defendant came out of the adjacent restroom. In response to Smith’s request, defendant walked about 40 feet to Smith’s location. According to Smith, defendant spoke in a quiet tone, his speech was slurred, and his eyes were watery, bloodshot, and red. Smith also detected a strong odor of an alcoholic beverage as defendant spoke. Defendant denied driving the vehicle; however, while pat-searching defendant, Smith located the keys to the Thunderbird in one of defendant’s front pockets. Defendant claimed that during the day he drank a “soda, two RC’s and a glass of milk.”
Smith administered multiple field sobriety tests and concluded based on the “totality of the circumstances” that defendant had been driving while under the influence of alcohol. Defendant refused to submit to a blood or breath test to determine his blood alcohol level.
On June 25, 2007, the Sonoma County District Attorney filed a first amended complaint charging defendant with felony driving while under the influence of alcohol (§ 23152, subd. (a); count I), felony driving while having a blood alcohol content of 0.08 percent or more (§ 23152, subd. (b); count II), and driving with a suspended license (§ 14601.2, subd. (a); count III). In connection with counts I and II, it was alleged that pursuant to section 23550, defendant suffered three or more prior driving while under the influence convictions within 10 years of the commission of the current offense. The complaint further alleged that defendant served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).
The first amended complaint was deemed the information.
On July 31, 2007, defendant admitted his three prior convictions for driving while under the influence. The following day, defendant pleaded no contest to count III. The trial commenced on July 31, 2007. The jury found defendant guilty of count I and not guilty of count II.
At the conclusion of a bifurcated court trial, the court found that defendant had suffered a prior prison conviction within the meaning of Penal Code section 667.5, subdivision (b).
The court sentenced defendant to four years in state prison with custody credits of 177 days. The court imposed the upper term of three years for felony driving while under the influence, plus an additional term of one year for the prior prison term enhancement. Defendant was sentenced to the upper term because of his “lengthy record of prior convictions” and his prior prison conviction. The court imposed an $800 restitution fine (Pen. Code, § 1202.4, subd. (b)), a corresponding suspended parole revocation restitution fine (Pen. Code, § 1202.45), and a $20 court security surcharge (Pen. Code, § 1465.8).
Defendant filed a timely appeal.
DISCUSSION
Defendant was represented by counsel at all stages of the proceedings.
There are no issues relating to the legality of the seizure of evidence or any pre-Mirandized statements. Substantial evidence supports the jury’s verdict. Substantial evidence additionally supports the trial court’s finding that the prior prison conviction allegation was true. There was no impropriety or misconduct in closing arguments. The trial court properly instructed the jury, including on the elements of the charged offenses and the burden of proof.
Miranda v. Arizona (1966) 384 U.S. 436.
We find no sentencing errors including the imposition of the upper term, which would require reversal of the judgment. In People v. Black (2007) 41 Cal.4th 799, the California Supreme Court held that imposition of an upper term sentence does not violate a defendant’s right to a jury trial where “at least one aggravating circumstance was established by means that satisfy Sixth Amendment requirements and thus made him eligible for the upper term.” (Id. at pp. 805–806.) The court further held that the Sixth Amendment does not include the right to a jury determination on the fact that prior convictions occurred. (Id. at p. 819, fn. 8.) The imposition of the upper term sentence was affirmed where a sentencing brief and probation report listed, as an aggravating circumstance, that defendant’s prior convictions were “ ‘numerous or of increasing seriousness.’ ” (Id. at p. 818, fn. 7.) Here as in Black, defendant is eligible for the upper term by virtue of his numerous prior convictions dating back to 1990 summarized in the presentence report. The trial court’s conclusion that defendant had a lengthy record of prior convictions is supported by the presentence report.
At the outset of the sentencing hearing, the trial judge stated that he had read the original and updated presentence reports.
We find no arguable issues that require further briefing and accordingly, affirm the judgment.
We concur: Marchiano, P.J., Stein, J.