Opinion
D071840
11-29-2017
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY R. JONES, Defendant and Appellant.
David K. Rankin, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN354443) APPEAL from a judgment of the Superior Court of San Diego County, Carlos O. Armour, Judge. Affirmed. David K. Rankin, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Jeffrey R. Jones appeals from a judgment following his guilty plea to multiple driving-under-the-influence (DUI)-related offenses. The trial court sentenced Jones to three years in prison, but suspended execution of the sentence and placed him on five years' probation. When Jones violated one of the conditions of his probation by reporting to his probation officer around 10:00 a.m. with a blood alcohol level in excess of 0.20 percent, the court revoked probation and imposed the previously stayed three-year prison sentence. Appointed appellate counsel filed a brief presenting no argument for reversal, but inviting this court to review the record for error in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende). Jones has not responded to our invitation to file a supplemental brief. After having independently reviewed the entire record for error as required by Anders v. California (1967) 386 U.S. 738 (Anders) and Wende, we affirm.
FACTUAL AND PROCEDURAL SUMMARY
On December 27, 2015, Carlsbad police responded to a call to investigate a report of a male possibly passed out in a vehicle. Responding officers found Jones's vehicle stopped in the middle of the roadway in a grocery store parking lot. A security guard reported to police that he had seen Jones driving through the parking lot, striking several curbs and nearly colliding with several parked vehicles.
Jones's driver's license had been suspended. He smelled of an alcoholic beverage; had slow and slurred speech; staggered while walking on a level surface; and his eyes were bloodshot, watery, droopy, and glassy. Officers observed Jones had urinated and defecated in his pants. Jones refused to submit to any field sobriety tests, but agreed to provide a blood sample when he was arrested. Blood test results indicated Jones had a blood alcohol level of 0.29 percent.
Jones was charged with three offenses: (1) felony DUI with a prior felony DUI conviction in the last 10 years (Veh. Code, §§ 23152, subd. (a), 23626, 23550.5, subd. (a); count 1); (2) felony driving with a blood alcohol level of 0.08 percent or above with a prior felony DUI conviction in the last 10 years (§§ 23152, subd. (b), 23626, 23550.5, subd. (a); count 2); and (3) driving with a suspended driver's license, a misdemeanor (§ 14601.2, subd. (a); count 3). As to counts 1 and 2, the prosecution alleged Jones refused a peace officer's request to submit to, and failed to complete, a chemical test. (§ 23577.) As to count 3, the prosecution alleged Jones had a prior conviction for the same offense within the last five years. (§ 14601.2, subd. (d)(2).) The prosecution further alleged Jones had two prior DUI convictions, and one prison prior.
Undesignated statutory references are to the Vehicle Code. --------
Under a plea bargain, Jones agreed to plead guilty to all three counts and to admit to the special allegations, in exchange for the court considering probation with a "lid" of 16 months in state prison. The court accepted Jones's guilty plea. Consequently, Jones admitted the following conduct: "[I] drove a vehicle with a b.a.c. over .08 and while the [sic] influence of alcohol and have a prior felony dui [sic] conviction. I have a prison prior and drove with a suspended CDL having previously been convicted of the same."
The court placed Jones on five years' formal probation, sentenced him to three years in state prison, but suspended execution of the prison sentence pending his successful completion of probation. The court also imposed various fines and fees.
Jones's probation officer repeatedly instructed Jones not to use or possess alcohol. However, shortly after 10:00 a.m. on December 9, 2016, Jones reported for an appointment with his probation officer smelling of alcohol. Jones said "it had been a while" since he used any alcohol, but a preliminary alcohol screening test revealed he had a blood alcohol level over 0.20 percent. He was taken into custody.
Jones admitted to violating the terms of his probation. At the outset of the sentencing hearing, the court noted Jones's stayed three-year prison sentence, and said: "The Court doesn't have the discretion to change that sentence if it denies probation and renders a sentence today." Jones asked that the court "give him one more shot at probation." The court observed that Jones had been "told over and over again not to consume alcohol," yet he continued to do so. The court denied probation, and reinstated Jones's stayed three-year prison sentence.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings in the trial court. Counsel presented no argument for reversal but invited this court to review the record for error in accordance with Wende, supra, 25 Cal.3d 436.
Counsel has identified the following issue that "might arguably support the appeal" (Anders, supra, 386 U.S. at p. 744): "Whether the trial court erred when it revoked probation and sentenced appellant to state prison for the previously imposed term of [three] years where appellant violated probation within [three] months, the court stated it had no discretion to alter the prison sentence, appellant asked for continued probation not a reduced sentence, and the court noted appellant had been 'told over and over again not to consume alcohol.' "
After we received counsel's brief, we gave Jones an opportunity to file a supplemental brief. He has not responded.
A review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, including the issue suggested by counsel, has disclosed no reasonably arguable appellate issue. (See People v. Martinez (2015) 240 Cal.App.4th 1006, 1017 ["[W]hen . . . a lawful sentence is imposed but execution thereof is suspended and the defendant is placed on probation, the exact sentence must be ordered executed if probation is subsequently revoked. A trial court is without jurisdiction to do anything else . . . ."]; People v. Howard (1997) 16 Cal.4th 1081, 1095.) Jones has been adequately represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.
HALLER, J. WE CONCUR: BENKE, Acting P. J. IRION, J.