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People v. Zagarra

California Court of Appeals, Second District, Third Division
Jul 22, 2008
No. B205513 (Cal. Ct. App. Jul. 22, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. MA039162, Lisa Mangay Chung, Judge.

Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.


ALDRICH, J.

Juan Pablo Zagarra appeals from the judgment entered following his plea of no contest to driving with .08 percent or more of alcohol in his blood (Veh. Code, § 23152, subd. (b)) and his admissions that he previously had been convicted of a felony within the meaning of the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served a prison term (Pen. Code, § 667.5, subd. (b)). The trial court sentenced Zagarra to three years, eight months in prison. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

The facts have been taken from the transcript of the preliminary hearing.

At approximately 10:00 p.m. on July 7, 2007, Los Angeles County Deputy Sheriff Wesley Clark was on patrol near the intersection of Avenue S-8 and 45th Street East in Palmdale. Although the intersection is controlled by a four-way stop sign, many drivers fail to stop at the limit line. Clark observed Zagarra slow his car to approximately 10 miles per hour, then drive through the intersection.

Clark, who was in uniform and a marked patrol car, stopped Zagarra to give him a citation for failing to come to a complete stop at the intersection. However, when Clark smelled alcohol on Zagarra’s breath, the deputy called for back up.

After another deputy arrived at the scene, Clark had Zagarra perform several field sobriety tests. Zagarra’s performance on the tests was poor. Clark performed a preliminary alcohol screening test, which resulted in a reading of .17. Based on Zagarra’s bloodshot, watery eyes, his inability to effectively perform the field sobriety tests and his initial alcohol screening test, Clark concluded Zagarra was too impaired to safely drive a vehicle and the deputy decided to transport him to the Palmdale station. Zagarra sat in the back seat of the patrol car, behind the deputy.

Until that time, Zagarra had been cooperative. However, when he was informed that the car he was driving was to be towed, Zagarra became upset. He indicated that the car was his son’s and his son would need it to go to work. Zagarra then spit on the deputy, hitting him in the back of the neck and head.

After being transported to the station, Zagarra was given a blood alcohol test the results of which showed a blood alcohol concentration of .13.

The parties stipulated that on or about October 29, 2003, Zagarra had been convicted of violating Vehicle Code section 23152, subdivision (a), driving under the influence of an alcoholic beverage or drug.

2. Procedural history.

On August 9, 2007, an information was filed charging Zagarra with driving under the influence of a drug or an alcoholic beverage (Veh. Code, § 23152, subd. (a)), driving with .08 percent or more of alcohol in his blood (Veh. Code, § 23152, subd. (b)), and misdemeanor battery against a police officer (Pen. Code, § 243, subd. (b)). It was further alleged Zagarra had suffered a prior conviction for a serious or violent felony within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served five prison terms (Pen. Code, § 667.5, subd. (b)).

On November 15, 2007, the People amended the information to allege that on or about April 8, 1993, Zagarra had been convicted of perjury in violation of Penal Code section 118.

The same day, November 15, 2007, Zagarra made a Marsden motion. After hearing Zagarra’s complaints and counsel’s response, the trial court indicated it could find “no legal basis to grant a Marsden motion.” The court indicated that Zagarra was being given effective representation, then addressed Zagarra and stated, “I sense you are not happy with the offer [of a disposition for this case], but the defense attorney can’t change the offer by the district attorney.”

People v. Marsden (1970) 2 Cal.3d 118.

When Zagarra could not decide whether to accept the People’s offer of 32 months plus 1 year in prison, the trial court agreed to trail the matter to the afternoon to give Zagarra time to consider it. In addition, Zagarra wished to have his counsel make a Romero motion before he had to decide whether to take the People’s offer.

People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

On the afternoon of November 15, 2007, counsel for Zagarra made a Romero motion, arguing that Zagarra’s strike prior, assault with the intent to commit rape, was remote in time in that it occurred in 1990. Counsel further asserted that the majority of Zagarra’s remaining convictions involved driving under the influence of drugs or alcohol. Counsel stated, “Looking at his record, with the exception of the [assault with the intent to commit rape], which is . . . 18 years ago, his problem appears to be alcohol related. Almost everything he has is driving under the influence of alcohol.” After considering the number of driving under the influence convictions Zagarra had accumulated, the trial court concluded he did not fall outside the spirit of the Three Strikes sentencing scheme and denied the Romero motion.

Zagarra then decided to accept the People’s offer of a plea agreement. After waiving his right to a jury trial, his right to confront the witnesses against him, his right to present a defense, and his privilege against self-incrimination, Zagarra pleaded no contest to driving while having a .08 or higher blood alcohol level in violation of Vehicle Code section 23152, subdivision (b). Zagarra then admitted that on or about October 29, 2003, he had suffered a prior conviction for driving under the influence in violation of Vehicle Code section 23152, subdivision (b) within the meaning of Vehicle Code sections 23550 and 23550.5. For purposes of the Three Strikes law, Zagarra admitted having suffered a conviction for assault with the intent to commit rape in violation of Penal Code section 220 on February 6, 1990. Zagarra also admitted that he had suffered a conviction for perjury in violation of Penal Code section 118 on or about April 8, 1993 within the meaning of Penal Code section 667.5, subdivision (b).

Vehicle Code section 23550 provides in relevant part: “(a) 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 . . . 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 for not less than 180 days nor more than one year, and by a fine . . . . The person’s privilege to operate a motor vehicle shall be revoked by the Department of Motor Vehicles . . . . The court shall require the person to surrender the driver’s license to the court in accordance with Section 13550. [¶] (b) A person convicted of a violation of Section 23152 punishable under this section shall be designated as a habitual traffic offender for a period of three years, subsequent to the conviction.”

For his conviction of driving with a blood alcohol level of .08 or higher, the trial court imposed the low term of 16 months in prison, then doubled the term to 32 months pursuant to the Three Strikes law. For his Penal Code section 667.5, subdivision (b) “prison prior,” the court imposed a consecutive term of 12 months in prison. In total, the trial court sentenced Zagarra to 3 years, 8 months in prison.

The trial court awarded Zagarra presentence custody credit for 198 days, comprised of 132 days actually served and 60 days of good time/work time. The trial court imposed a $600 restitution fine (Pen. Code, § 1202.4, subd. (b)), a suspended $600 parole revocation restitution fine (Pen. Code, § 1202.45), a $20 court security fee (Pen. Code, § 1465.8, subd. (a)(1)) and two $300 “court construction penalties” (Gov. Code, § 70372, subd. (a)), one of which was stayed.

Zagarra was entitled to 66 days of good time/work time. The abstract of judgment correctly shows Zagarra was awarded presentence custody credit for those 66 days.

The trial court dismissed all remaining counts and allegations in furtherance of justice pursuant to Penal Code section 1385.

Zagarra filed a timely notice of appeal and was granted a certificate of probable cause.

This court appointed counsel to represent Zagarra on appeal on April 21, 2008.

CONTENTIONS

After examination of the record, appointed appellate counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.

By notice filed May 22, 2008, the clerk of this court advised Zagarra to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. No response has been received to date.

APPELLATE REVIEW

We have examined the entire record and are satisfied Zagarra’s counsel has complied fully with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)

DISPOSITION

The judgment is affirmed.

We concur: CROSKEY, Acting P. J., KITCHING, J.

Vehicle Code section 23550.5 provides in relevant part: “(a) A person is guilty of a public offense, punishable by imprisonment in the state prison or confinement in the county jail for not more than one year and by a fine . . . if that person is convicted of a violation of Section 23152 or 23153, and the offense occurred within 10 years of any of the following: [¶] (1) A prior violation of Section 23152 that was punished as a felony under Section 23550 or this section . . . .”


Summaries of

People v. Zagarra

California Court of Appeals, Second District, Third Division
Jul 22, 2008
No. B205513 (Cal. Ct. App. Jul. 22, 2008)
Case details for

People v. Zagarra

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JUAN PABLO ZAGARRA, Defendant and…

Court:California Court of Appeals, Second District, Third Division

Date published: Jul 22, 2008

Citations

No. B205513 (Cal. Ct. App. Jul. 22, 2008)