Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F07900238W. Kent Hamlin, Judge.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Gomes, J., and Kane, J.
FACTS AND PROCEEDINGS
On February 5, 2007, appellant, Ronnie Earl Howell, was charged in an information with feloniously driving with a blood alcohol level above .08 percent (Veh. Code, § 23152, subd. (b), count one), feloniously driving under the influence of drugs or alcohol (Veh. Code, § 23152, subd. (a), count two), and resisting, delaying, or obstructing a peace officer, a misdemeanor (§ 148, subd. (a)(1), count three). It was further alleged as to counts one and two that appellant had a blood alcohol content over .15 percent within the meaning of Vehicle Code section 23578 and had three prior driving while intoxicated convictions within the meaning of Vehicle Code section 23550. The information alleged several prior prison term enhancements within the meaning of section 667.5, subdivision (b).
Unless otherwise noted, all further statutory references are to the Penal Code.
On January 9, 2007, the trial court denied appellant’s Marsden motion, but granted trial counsel’s request to withdraw as appellant’s counsel due to irreconcilable conflicts. New counsel was appointed and a preliminary hearing was conducted on January 25, 2007. On March 22, 2007, the court suspended proceedings pursuant to section 1368 and summarily denied appellant’s request for a Marsden hearing.
People v. Marsden (1970) 2 Cal.3d 118.
After receiving reports from two psychologists evaluating appellant, the court found appellant to be incompetent to stand trial on April 19, 2007. On May 31, 2007, appellant was committed to Atascadero State Hospital. Appellant filed an appeal in this court challenging his commitment.
On April 23, 2008, this court filed its opinion in case No. F053168 finding that it was error for the trial court to summarily deny appellant’s request for a Marsden hearing without conducting a hearing. We rejected appellant’s other contentions as moot and remanded the matter back to the trial court for further proceedings.
On May 5, 2008, the court found appellant to be competent and reinstated the proceedings. Appellant expressly withdrew his request to have a Marsden hearing.
On May 5, 2008, appellant executed an advisement of rights, waiver, and plea form for felonies in which he acknowledged and waived his constitutional rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122 (Boykin/Tahl). Under the plea agreement, appellant would admit count one, the prior drunk driving conviction allegations, and prior prison term enhancement for a felony committed in 1999. Appellant would receive the mitigated term of 16 months in state prison plus 12 months for the prior prison term enhancement for a total prison term of 28 months. Because appellant had well over 930 days of custody credits, he would be released for time served and placed on parole. Counts two and three would be dismissed.
The trial court explained the terms of the plea agreement. The trial court advised appellant of his constitutional rights, which appellant waived. Appellant pled no contest to count one, acknowledged a no contest plea was equivalent to a guilty plea, admitted that his blood alcohol content was .15 percent or higher, admitted three prior driving under the influence convictions, and admitted a prior prison term enhancement for an offense committed in 1999. The parties stipulated to a factual basis for the plea from the preliminary hearing transcript. The court granted the prosecutor’s motion to dismiss counts two and three.
According to the probation report, appellant was initially placed on probation for his felony conviction for burglary in 1999. Appellant violated probation and was committed to state prison on May 24, 2002, until he was paroled in September 2005. Appellant was arrested on October 30, 2005, for this offense.
On October 30, 2005, Fresno Police Officer Brad Haga was at a Chevron station at Olive and Highway 99 when he saw appellant and another man purchase potato chips. As the men got back into their vehicle and drove away, Haga followed them a short distance. Appellant, who was driving, made unsafe turning motions and crossed over the lines between lanes without using his turn signal. Before Haga could initiate a traffic stop or activate his lights, appellant pulled back into the gas station, jumped out of his vehicle, and ran. Appellant ran into the gas station. Haga, who was in a police uniform told appellant to get back into his vehicle. Appellant went into the bathroom. Appellant eventually exited the bathroom, was handcuffed, and arrested. He smelled of alcohol, his eyes were red and watery, and his speech was slurred. A traffic bureau officer had a phlebotomist take a blood sample from appellant. A forensic toxicologist tested appellant’s blood alcohol level at .27 percent.
At sentencing on June 4, 2008, the trial court sentenced appellant to the low term of 16 months on count one and added 12 months to the sentence for the prior prison term enhancement. Appellant received custody credits of 1,009 days and was ordered to report to the parole department. Appellant filed a timely appeal but failed to obtain a certificate of probable cause.
Appellant’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter dated November 24, 2008, we invited appellant to submit additional briefing. To date, he has not done so.
On March 29, 2009, appellant filed a request for an extension of time and for judicial notice of this appeal and several other appeals to this court. As to the request for an extension of time appellant states that he has moved and did not receive our initial extension of time granted on December 29, 2008, up to January 23, 2009. Appellant states that he received our order extending time in February 2009. Appellant does not state the date in February that he received our order. Appellant waited until March 4, 2009, to file these motions. We note that it is appellant’s responsibility to notify this court of any change of address. Appellant states he changed his address on October 6, 2008 which is over six weeks before we sent our letter inviting him to submit additional briefing. Appellant still received that letter from this court. We find that any failure in appellant receiving our extension of time was caused by the appellant himself and that he waited too long to bring this matter to our attention. We note that appellant did not file a letter brief with this motion. Appellant’s request for a further extension of time is denied.
After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.
Appellant further requests that we take judicial notice of other actions in San Luis Obispo Superior Court. Appellant has failed to make a showing that, with the exception of the record in the instant appeal, any of the other actions are related to this appeal or his present conviction for driving while under the influence. We take judicial notice of our own files. Appellant’s motion is otherwise denied.