Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. Ct. No. BF132288A, John R. Brownlee, Judge.
Thomas M. Singman, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
Before Dawson, Acting P.J., Detjen, J. and Franson, J.
On May 23, 2010, appellant, Joshua Lee Judah, was travelling westbound on Panama Lane in Kern County when he accelerated to 70 or 80 miles per hour to pass a slower moving vehicle and crossed over the double yellow lines on the roadway. As Judah reentered the westbound lane, he failed to stop at a stop sign located at Old River Road and struck a vehicle driven by Reiko Calderon that was traveling southbound on that roadway. The impact of the crash caused Calderon’s vehicle to roll over. Calderon sustained major injuries and was pronounced dead at the scene.
Judah was transported to a hospital where a blood sample, drawn within an hour of the accident, disclosed that he had a blood alcohol content of.18 percent. A breath test, performed approximately four hours after the accident, disclosed that Judah had.129 percent blood alcohol content at that time.
On May 25, 2010, the district attorney filed a complaint charging Judah with vehicular manslaughter (count 1/Pen. Code, § 191.5, subd. (a)), driving under the influence of alcohol causing bodily injury (count 2/Veh. Code, § 23153, subd. (a)), and driving with a blood alcohol content of.08 percent or greater causing bodily injury (count 3/Veh. Code, § 23153, subd. (b)).
On July 27, 2010, Judah pled no contest to all three charges.
On August 31, 2010, the court sentenced Judah to the aggravated term of 10 years on count 1 and stayed upper terms of three years on each of the remaining counts. Judah’s appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) However, in a letter filed on March 2, 2011, Judah contends the court erred in imposing the upper term because it relied on the following circumstances that were not true: 1) his blood alcohol content was measured at.18 percent four hours after the accident; 2) he was traveling 80 miles per hour at the time of the accident; 3) his 2003 New Mexico conviction for driving while intoxicated was aggravated because he was involved in an accident; and 4) he took some NyQuil cold medicine prior to the accident. According to Judah, his blood alcohol content was measured at.18 percent within an hour of the accident, he and two witnesses estimated he was traveling from 50 to 80 miles an hour at the time of the accident, his New Mexico conviction for driving while intoxicated was aggravated because he refused to take a preliminary alcohol screening test, and he did not consume any NyQuil before the accident.
In People v. Scott (1994) 9 Cal.4th 331, the court held that complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised on appeal absent an objection in the trial court. (Id. at p. 356.) As explained by the Scott court “the [forfeiture] doctrine should apply to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.” (Id. at p. 353, italics added.) Judah did not object below to the trial court relying on the circumstances he contends are not true to impose the aggravated term. Thus, in accord with Scott, we conclude that he forfeited his right to challenge any error in the court’s reliance on these circumstances to sentence him.
Further, following an independent review of the record we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.