Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. Nos. SCWL-CRCR-05-63729 & SCWL-CRCR-07-79236
Margulies, J.
Jason Perez appeals from a judgment following a plea of no contest and imposition of sentencing. His counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436; see Smith v. Robbins (2000) 528 U.S. 259.) Counsel has notified defendant that he could file a supplemental brief raising any issues he wishes to call to this court’s attention. We have not received any supplemental brief. We have independently reviewed the record and conclude that no arguable issues are presented for review and affirm the judgment.
Defendant has filed with this court a series of documents including letters and certificates of completion of Bible study courses submitted to the trial court in connection with sentencing. We do not construe these documents as a supplemental brief.
PROCEDURAL HISTORY
Defendant was charged by complaint filed on February 8, 2005, in case No. SCWL-CRCR-05-63729 (hereafter case No. 63729) with driving under the influence (DUI) with injury (Veh. Code, § 23153, subd. (a)), driving under the influence with a 0.08 percent blood-alcohol level or higher with injury (§ 23153, subd. (b)), leaving the scene of an accident (§ 20001, subd. (a)), a misdemeanor driving with a suspended or revoked license (§ 14601.1, subd. (a)), and an allegation of a prior conviction for misdemeanor driving under the influence (§ 23152, subd. (b)). On February 22, 2005, defendant entered a no contest plea to driving under the influence with a 0.08 percent blood-alcohol level with injury and misdemeanor driving with a suspended or revoked license, and admitted the prior conviction.
All statutory references are to the Vehicle Code unless otherwise noted.
On April 5, 2005, the court imposed the midterm sentence of two years in state prison, execution of sentence suspended. Defendant was placed on probation for five years on specified conditions, including a county jail sentence of 360 days with credit for time served of 59 days and completion of a substance abuse treatment program, as well as conditions that he obey all laws and abstain from the use of alcohol.
A probation violation petition was filed on September 25, 2006, alleging that defendant was arrested for public intoxication. Defendant subsequently admitted the probation violation and the matter was continued for sentencing. In the interim, however, a second probation violation petition was filed, alleging defendant was in possession of alcohol and had blood-alcohol level of 0.13 percent. Defendant admitted the probation violation on November 9, 2006.
On November 30, 2006, the court revoked probation, and imposed the previously suspended sentence of two years in state prison. A week later, the court, pursuant to Penal Code section 1170, subdivision (d), recalled the sentence. The court reinstated probation, with the condition that defendant enter and successfully complete a substance abuse treatment program.
On August 9, 2007, a complaint was filed in case No. SCWL-CRCR-07-79236 (hereafter case No. 79236), charging defendant with various offenses including driving under the influence with a prior felony DUI conviction (§§ 23152, subd. (a), 23550.5, subd. (a)(2)) and driving under the influence with a 0.08 percent blood-alcohol level with a prior felony DUI conviction (§§ 23152, subd. (b), 23550.5, subd. (a)(2)). Additionally, a third probation violation petition was filed in case No. 63729, based on the new allegations. A Marsden motion was heard and denied. Following a preliminary hearing, an information was filed on August 27, 2007, charging defendant with among other offenses, driving under the influence with a 0.08 percent blood-alcohol level with a prior felony DUI conviction. A second Marsden motion was heard and denied.
People v. Marsden (1970) 2 Cal.3d 118.
On October 17, 2007, defendant entered a no contest plea to driving under the influence with a 0.08 percent blood-alcohol level with a prior felony DUI conviction. Because of his plea in the new case, the court found him in violation of his probation in case No. 63729. At the time of the plea, the court explained to defendant that he could receive a maximum sentence of up to three years eight months in state prison, three years on the new case and an additional eight months on the probation violation.
At sentencing, the court denied probation and imposed the upper term of three years on the Vehicle Code violation in case No. 79236, and a consecutive eight months in case No. 63729. Defendant received custody credits of 334 actual days and 72 good conduct days in case No. 63729, and 146 actual days and 72 good conduct days in case No. 79236. Restitution fines and stayed parole restitution fines were also imposed in both cases.
Defendant filed a timely notice of appeal.
Since the present appeal is taken from a no contest plea, we need only concisely recite the facts pertinent to the underlying conviction as necessary to our limited review on appeal. The facts are taken from the probation reports.
Case No. 63729
On February 5, 2005, defendant, driving a black Ford Taurus, collided with a white Toyota truck. Witnesses observed defendant fleeing from the collision scene. A Mendocino County Sheriff’s deputy detained defendant in the area. The deputy observed fresh blood on defendant’s right hand and noted he was extremely intoxicated. A California Highway Patrol officer determined that defendant drove his vehicle into an intersection without yielding to through traffic and the right front of the Toyota collided with the left front fender of the Ford Taurus. The three occupants of the Toyota were each injured. Defendant exhibited symptoms of alcohol intoxication and had a blood-alcohol level of 0.20 percent.
Case No. 79236
On July 8, 2007, Tribal Police Chief Lindon Duke detained defendant after numerous 911 calls were received about a reckless driver performing “doughnuts” in the road. When defendant passed Duke in a blue Oldsmobile, he was traveling at approximately 80 plus miles per hour. When a Mendocino County Sheriff’s deputy spoke with defendant, he noticed defendant had a strong odor of alcohol, slurred speech, an unsteady gait, and his eyes were red and bloodshot. When placed in the patrol car, defendant slammed his head and body against the door and window screen. Defendant’s blood-alcohol level was 0.28 percent.
DISCUSSION
We have reviewed the record on appeal. By pleading no contest, defendant admitted the sufficiency of the evidence establishing the crimes, and therefore is not entitled to review of any issue that goes to the question of his guilt or innocence. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.) Without a certificate of probable cause, defendant cannot contest the validity of his plea; the only issues cognizable on appeal are issues relating to the validity of a denial of a motion to suppress or issues relating to matters arising after the plea entered. (Pen. Code, § 1237.5; Cal. Rules of Court, rule 8.304(b)(4).) Defendant did not obtain a certificate of probable cause.
Defendant was represented throughout the proceedings by counsel. Defendant entered his plea after being advised of his rights and the consequences of his plea.
The trial court did not abuse its discretion in denying both of defendant’s Marsden motions. The court made appropriate inquiries, questioning both defendant and his trial counsel, before denying the motion for new counsel.
We find no sentencing errors. Defendant entered into an open plea in which he was informed that he could receive the maximum punishment of three years eight months. The trial court’s decision to impose the maximum sentence in light of defendant’s criminal record and probation status is neither irrational nor arbitrary, and therefore must be affirmed on appeal. Additionally, the imposition of the upper term sentence on case No. 79236, raises no issues under Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] because the trial court based its imposition of the upper term on recidivist factors. (See People v. Black (2007) 41 Cal.4th 799, 812 [stating that “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi [v. New Jersey (2000) 530 U.S. 466] and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial” (italics omitted)].)
In sum, we agree with appellate counsel that there are no issues warranting further briefing.
The judgment is affirmed.
We concur: Marchiano, P.J., Swager, J.