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People v. Hartnett

California Court of Appeals, First District, First Division
Jan 27, 2012
No. A133125 (Cal. Ct. App. Jan. 27, 2012)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JOSEPH HARTNETT, Defendant and Appellant. A133125 California Court of Appeals, First District, First Division January 27, 2012

NOT TO BE PUBLISHED

Sonoma County Super. Ct. No. CR602077

Dondero, J.

Defendant Michael Hartnett appeals his conviction after a plea of no contest was received by the trial court. The trial court sentenced defendant to state prison. This appeal is authorized by Penal Code section 1237.5, and rule 8.304(b) of the California Rules of Court. In the notice of appeal filed in the trial court, the sentencing judge granted defendant’s request for a certificate of probable cause based on the contention defendant’s arrest was predicated on improper sobriety testing by the California Highway Patrol. We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On May 12, 2011, the Sonoma County District Attorney filed a complaint charging Hartnett with a felony violation of Vehicle Code section 23152, subdivision (a) (Count One, driving under the influence of alcohol and/or drugs) and a misdemeanor violation of Vehicle Code section 14601.2, subdivision (a) (Count Two, driving with a suspended license). As to Count One, the complaint further alleged a prior strike conviction pursuant to Penal Code section 1170.12 for terrorist threats (Penal Code section 422). On June 7, 2011, Hartnett pleaded not guilty to both counts and denied all allegations. On June 9, 2011, the trial court permitted the district attorney to amend the complaint, charging the defendant with driving under the influence of alcohol in violation of Vehicle Code section 23152, subdivision (b), a felony, with three prior convictions for the same offense within the previous 10 years.

On June 9, 2011, defendant pleaded no contest to Count Three, as a felony. In exchange for the plea, the district attorney dismissed Counts One and Two and the prior strike conviction. During the waiver of rights, the trial court accepted defense counsel’s stipulated factual basis for the plea, advised defendant of the consequences of his plea, and obtained a knowing and intelligent waiver of constitutional rights.

The sentencing took place on July 22, 2011. The trial court denied probation and imposed the term of three years in State Prison, with 148 days’ credit for time served, and imposed all appropriate fines and fees. During the sentencing hearing, the trial court explained the reasons for the state prison sentence. It was, firstly, a negotiated disposition between the defendant and the prosecution. A strike prior was dismissed in exchange for the plea. Additionally, the court noted the defendant had amassed 37 convictions since 1973, including 13 prior convictions for driving under the influence of alcohol. Finally, the defendant had been to prison three times before and sustained numerous parole violations. The trial court did grant defendant’s request for a certificate of probable cause, based on defendant’s complaint regarding the sobriety tests administered by the Highway Patrol.

Defendant’s counsel has reviewed the file in the case and has determined there are no meritorious issues to raise on appeal. She has complied with the relevant case authorities. People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436. Defendant was notified by counsel of his right to file a supplemental brief, and he has submitted to this court on December 15, 2011, a three-page “supplemental brief.”

STATEMENT OF FACTS

The defendant is a 56-year-old veteran of the Army National Guard, who served from 1976 to 1977, when he was discharged due to alcoholism. On May 10, 2011, at approximately 4:45 p.m., a CHP officer noted defendant driving his car alone in the carpool lane southbound on Highway 101. The officer pulled defendant over to the shoulder of the highway.

Defendant did not have a driver’s license, but did produce a valid California identification card. The officer noted the smell of alcohol inside the car, and observed defendant’s eyes were bloodshot and his speech slurred. As defendant exited the car, the CHP officer concluded he was unsteady in his physical movement and continued to have the odor of alcohol. Three separate PAS tests were given defendant because his first blow was improper and the second blow was not done with the suspect’s lips sealed around the mouthpiece of the device. On the third reading of the PAS the result was.096 percent, above the legal presumption.

After placing defendant under arrest, a paramedic made two attempts to obtain a blood sample. The blood-alcohol level of defendant was.12 percent. Defendant admitted he had used 80 milligrams of Oxycontin in combination with a substance called Norco just before his arrest, and was using these drugs and drinking substantially on the day before his arrest. This information regarding the arrest was contained in the probation report and is the exclusive source of the facts since neither the prosecution nor the defense presented any evidence regarding the factual basis for defendant’s arrest.

In his application for a certificate of probable cause, defendant makes the unsubstantiated argument the CHP officer was unable to obtain any proper reading from the PAS testing in the field. He also alleges the blood draw was taken incorrectly. Yet the offense summary in the probation report, our only factual narrative of the crime, does not suggest this. Importantly, in his change of plea, defendant acknowledged he had full opportunity to discuss his case with his attorney. And his lawyer stipulated there was a factual basis for the plea.

At his sentencing on July 22, 2011, defendant contended that he should receive the benefits of Penal Code section 1170.9, which allows military veterans convicted of a felony to be committed to a treatment program as an alternative to state prison. At the sentencing, the trial court indicated it had considered the application but was denying it. The sentencing judge stated he was aware of this option and his obligation to assess its application. However, the option under section 1170.9 was denied here because this was a negotiated disposition that was freely entered into by defendant, with the People agreeing to dismiss a valid strike prior. Also, the court considered the substantial prior criminal history of defendant. Regarding that history, the court noted: “The reason [for denying probation]... is because since 1973, you’ve had a total of 37 prior convictions as an adult. That is a substantial number of convictions. Of those 37 convictions, you have 13 prior D.U.I. arrests and convictions. One of those in addition to the 13 D.U.I.s is a wet and reckless. You’ve had five prior felony convictions in the past. You[’re] limited from grant of probation under the law because of two of those but yet you have five separate felony priors.” (Emphasis added.)

DISCUSSION

While defendant argues in his application for probable cause that the CHP arrested him without complying with basic requirements in DUI arrests, the fact remains the validity of the arrest was never challenged before the entry of his no contest plea. In his plea form, the defendant acknowledges he is freely and voluntarily waiving his constitutional rights. He affirms the fact he had enough time to discuss his case with his lawyer and any defenses he may have to the charges. Additionally, defendant acknowledges in the plea form he faces a sentence of three years in state prison. Defendant initialed the prison term in his plea form. The trial judge indicated in his findings after the voir dire of defendant that the plea was free and voluntary, and that there was a factual basis for the no contest plea. Additionally, the court obtained a stipulation by both counsel there was a factual basis for the plea. This fact precludes appellate review regarding the issue of sufficiency of the evidence in Count Three. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.)

Nothing is presented to this court to upset the trial court findings here. At the sentencing, defendant made no reference to any alleged impropriety by the CHP. Instead, defendant made a request for probation and the special benefits for veterans under Penal Code section 1170.9. The court fully addressed why that request did not apply based on the negotiated plea and the substantial criminal history of defendant. Additionally, at sentencing, defendant never contended he did not receive proper representation in this matter. The record reflects nothing to disturb the plea nor the sentence here. Nothing is presented by defendant in his “supplemental brief” to suggest a different conclusion regarding his representation in the trial court or on appeal.

We affirm the judgment.

We concur: Marchiano, P. J. Banke, J.


Summaries of

People v. Hartnett

California Court of Appeals, First District, First Division
Jan 27, 2012
No. A133125 (Cal. Ct. App. Jan. 27, 2012)
Case details for

People v. Hartnett

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JOSEPH HARTNETT…

Court:California Court of Appeals, First District, First Division

Date published: Jan 27, 2012

Citations

No. A133125 (Cal. Ct. App. Jan. 27, 2012)