Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA071790. Steven R. Van Sicklen, Judge.
Cornell Mitchell, in pro. per.; William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
FLIER, J.
Appellant Cornell Mitchell was convicted of driving under the influence of alcohol, in violation of Vehicle Code section 23152, subdivision (a) (section 23152(a)). At bifurcated proceedings, the jury found true four prior convictions: (1) a conviction on December 20, 2002, for driving under the influence with a blood alcohol level of 0.08 percent or higher (§ 23152, subd. (b)); (2) a conviction on February 20, 2007, for attempting to violate section 23152(a); (3) a conviction on October 28, 1999, for violating section 23152, subdivision (b); and (4) a conviction on February 23, 2000, for reckless driving (§ 23103). The jury also found that the first two above-named convictions resulted in a prison term, for the purpose of Penal Code section 667.5.
Subsequent code references are to the Vehicle Code unless otherwise stated.
Appellant was sentenced to the upper term of three years in prison, plus two years for the prison priors. He received 312 days of presentence credits. This appeal followed. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues. Counsel did, however, file with the trial court a request for correction of presentence credits. Appellant was notified that he could file his own brief, and he has done so.
FACTS
Around 11:00 p.m. on December 29, 2007, police officers stopped the car appellant was driving, as the car was weaving between traffic lanes. Appellant smelled strongly of alcohol. His speech was slurred. His red and watery eyes could not follow the movements of a pen. He refused to take a field sobriety test. The car contained empty beer cans and a paper cup that smelled of beer. Appellant said his driver’s license was at home, but his license actually was suspended.
DISCUSSION
Appellant was convicted of violating section 23152(a), driving under the influence. He was eligible for state prison because of language in section 23550, subdivision (a), as amended in 2004 (Stats. 2004, ch. 550, § 15, p. 318). That language states:
“If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years of three or more separate violations of Section 23103,... or Section 23152 or 23153, or any combination thereof, that resulted in convictions, that person shall be punished by imprisonment in the state prison, or in a county jail.”
Before section 23550, subdivision (a) was amended in 2004, the pertinent time period for the prior convictions was seven years, and not 10 years.
Appellant’s current conviction for violating section 23152(a) was in 2007. The three qualifying prior convictions were in 1999, 2000, and 2002.
Appellant’s supplemental brief contends that applying the 10-year time period to offenses that occurred prior to 2004 violated the federal and state constitutional protections against ex post facto laws. He made that same argument at the trial court level, where he represented himself in propria persona. The argument lacks merit. The 10-year time period was in force at the time appellant committed the current offense. There is no ex post facto problem because “the sentence imposed upon a habitual offender is not an additional punishment for the earlier crime, but a punishment for the later crime, which is aggravated because of its repetitive nature.” (People v. Forrester (2007) 156 Cal.App.4th 1021, 1024.)
Having reviewed the entire record, we find that appellant’s attorney has fully complied with his responsibilities, and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 276; People v. Kelly (2006) 40 Cal.4th 106, 123-124; Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgment is affirmed.
We concur: RUBIN, Acting P. J. BIGELOW, J.