Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC063809A
Richman, J.
Counsel appointed for defendant Solomon Ramirez has asked this court to independently examine the record in accordance with People v. Wende (1979) 25 Cal.3d 436, to determine if there are any arguable issues that require briefing. Defendant was informed of his right to file a supplemental brief, but he elected not to do so. We have conducted that review, conclude there are no arguable issues, and affirm.
BACKGROUND
By information dated June 5, 2007 defendant was charged with two felony violations of the Vehicle Code occurring on February 11, 2007: (1) violation of section 23152, subdivision (a) (driving a vehicle while under the influence of alcohol), and (2) violation of section 23152, subdivision (b) (driving a vehicle while having a.08 percent or higher blood alcohol content). It was further alleged, pursuant to Vehicle Code section 23550.5, subdivision (a)(1), that these offenses had occurred within ten years of defendant’s having sustained a felony conviction for violation of Vehicle Code section 23153, subdivision (b). Finally alleged was an additional prior, a violation of Penal Code section 1170.12, subdivision (c)(1) and a one-year enhancement pursuant to Penal Code section 667.5, subdivision (b).
Jury trial began on May 27, 2008, and on May 29, the jury found defendant guilty on both counts. Meanwhile, on May 28, defendant waived jury trial on the alleged enhancements. Following the jury verdict, the court granted the prosecution motion to amend the information to conform to proof (changing the date on which defendant sustained the prior conviction). Thereafter, the court found that defendant had sustained the prior conviction alleged.
The following evidence supported the jury verdict:
At 1:12 a.m. on February 11, 2007 San Bruno Police officer Anthony Perkins observed defendant approach an intersection and make a right turn without stopping, despite that the light in defendant’s direction was red. Perkins stopped defendant, and he noticed that defendant’s speech was slurred, his eyes were bloodshot and watery, and he gave off an odor of alcohol. Defendant told Perkins that he had consumed two beers prior to driving. Perkins requested backup in order to investigate whether defendant was under the influence of alcohol.
Officer Joe Baker arrived and attempted to conduct field sobriety tests with defendant. Baker, too, noticed that defendant smelled of alcohol and had slurred speech and bloodshot, watery eyes. Baker testified that defendant had difficulty standing still, became emotional, and refused to attempt any field sobriety tests, explaining, “It doesn’t matter. I’m going to jail.” Defendant also admitted that he had more than two beers. Defendant also started to walk away from the officers, at which point they handcuffed him. Meanwhile, Baker had formed the opinion, based on his training, that defendant was under the influence of alcohol.
The test chosen was a breath test using the Draeger intoxilyzer machine. Baker testified that, upon arriving at the police department, he observed defendant for sixteen straight minutes prior to having him blow into the Draeger machine. Defendant then twice blew into the machine, two minutes apart, registering a blood alcohol content, by weight, of.13 and.14.
Patricia Von Rueden, a criminalist at the County Sheriff’s Office Forensic Laboratory, testified about the efforts her laboratory undertakes to maintain the accuracy of the Draeger machines, and confirmed that the records demonstrated that the Draeger machine which registered defendant’s test results on February 11, 2007 was working properly at that time. She also explained the distribution of alcohol through the human body and its effects, and opined that everyone with a blood alcohol level of.08 or above would be unable to safely operate a car.
The court sentenced defendant to the midterm of two years in state prison on count two, doubled pursuant to Penal Code section 1170.12, subdivision (c)(1). The court originally found true, but stayed, the Penal Code section 667.5, subdivision (b) enhancement. Defendant’s appellate counsel moved to correct this latter sentence as unauthorized. (See People v. Langston (2004) 33 Cal.4th 1237, 1241.) The trial court agreed, and struck the Penal Code section 667.5, subdivision (b) enhancement. Defendant filed a timely notice of appeal.
DISCUSSION
Defendant was at all times represented by competent counsel who ably protected his interests. Such representation included vigorous cross-examination of the police officers; including introduction of prior inconsistent statements, and cross-examination of expert witness Von Rueden. Defendant’s counsel called a forensic toxicologist who testified regarding the absorption of alcohol by the human body. Finally, defendant’s counsel gave an extensive closing argument.
The jury’s verdict is supported by substantial evidence.
No ruling by the trial court admitting evidence, or overruling an objection, amounts to an abuse of discretion.
No improper or inappropriate instructions were given to the jury.
The trial court did not impose an unauthorized sentence.
DISPOSITION
The judgment of conviction is affirmed.
We concur: Kline, P.J. Haerle, J.