Opinion
A119143
4-29-2008
THE PEOPLE, Plaintiff and Respondent, v. FRANK D. THOMAS, Defendant and Appellant.
NOT TO BE PUBLISHED
Defendant appeals from a judgment following his plea of no contest and imposition of sentence. 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.) Defendant has been advised by counsel that he could file a supplemental brief raising any issues he wishes to call to this courts attention. He has not done so. Upon independent review of the record, we conclude that no arguable issues are presented for review and affirm the judgment.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On April 3, 2007, at approximately 7:15 p.m., Officer Gregory Hill of the Eureka Police Department was dispatched to 3559 Cottage Street in the City of Eureka following a report of "a male subject intoxicated, passed out in [a] vehicle." Upon his arrival he observed a truck parked at an awkward angle in the driveway with the drivers door open and "a subjects left leg . . . hanging out of the door." As he approached the car he heard the "exhaust pinging." The hood and engine of the vehicle were warm. Defendant was slumped over in the drivers seat with his left leg hanging out of the vehicle. The officer detected an odor of alcohol coming from the vehicle and the defendants person. Defendant only responded to the officer after the officer did "a sternum rub." The officer asked defendant if he had been drinking and defendant replied that he "had a few." The key was in the ignition and defendant stated that he had driven to the location.
Officer Hill described a sternum rub as "taking the knuckles of my hand and rubbing them back and forth on the sternum or chest area of a subject."
Defendant was unable to exit the vehicle without the officers assistance and was barely able to stand. In view of defendants intoxication and inability to stand, the officer did not conduct any field sobriety tests. Defendant was then placed under arrest. Officer Hill spoke to defendants neighbor at 3547 Cottage Street who stated that he saw defendant drive into the driveway and pass out "at the wheel." The neighbor immediately called the police. Defendant was transported to the hospital and refused to take a blood test. Another officer was called, and a blood sample was taken from the defendant. An analysis of the sample revealed a "point one nine BAC."
Following a preliminary hearing, an information was filed on May 24, 2007, charging defendant with the following: driving under the influence (Veh. Code, §23152, subd. (a)), count one, and driving with a blood-alcohol level of 0.08 percent or more (Veh. Code, § 23152, subd. (b)), count two. Each count also alleged that defendant had three or more prior offenses within the meaning of Vehicle Code section 23550. It was also alleged that defendant had a blood-alcohol level of 0.15 percent or more (Veh. Code, § 23578) and had served a prior prison term within five years of the commission of the current offenses (Pen. Code, §667.5, subd. (b)). Defendant entered pleas of not guilty and denied the special allegations. A jury trial was set for July 16, 2007.
On the date set for trial, with a jury panel waiting, defendant changed his plea pursuant to a negotiated disposition. He entered a plea of no contest to count two. Pursuant to the negotiated disposition the remaining count and allegations were dismissed. Defendant was found to be in violation of three prior grants of probation. He was sentenced to 16 months in state prison and awarded total credits of 135 days. He was ordered to pay restitution fines pursuant to Penal Code sections 1202.4, subdivision (b) and 1202.45. Probation was revoked and terminated unsuccessfully on his prior grants of probation.
Case numbers CR056527S, CR064026S and CR065472S.
On July 24, 2007, the trial court received defendants written "Request for Mistrial and Change of Plea/Marsden Motion." In that request defendant claimed in essence that he had been coerced into entering his plea by a deputy district attorney. The court denied the request and motion on July 25, 2007.
It appears that the court received from defendant on August 16, 2007 an ex parte request to amend the abstract of judgment to add an additional 7 days for: "school and other credit classes days." There is nothing in the record to indicate if any action was taken on that request.
DISCUSSION
Upon review of the record, and particularly the transcript of the negotiated plea, we conclude that defendant was thoroughly and accurately advised by the court and his counsel before entry of the plea, and freely exercised his judgment in entering into the plea, as the trial court found. During the plea process when the defendant had questions, the court allowed him time to consult with counsel. There is nothing in the record to support defendants claim that he was coerced into entering his plea. We note that defendant was specifically asked by the court, after the court had referenced that it had the preliminary hearing transcript, if he "personally agree[d] that there are sufficient facts for the Court to accept a guilty plea from you this morning?" Defendant responded, "Yes, I do, your Honor." Our review of the preliminary hearing transcript convinces us that there was overwhelming evidence supporting the charges.
Defendant was represented by counsel throughout the proceedings.
There are no sentencing errors. Defendant received the exact sentence as specified by the negotiated disposition.
After a full review of the record, we find no arguable issues and, accordingly, affirm the judgment.
We concur:
Marchiano, P. J.
Margulies, J.