Filed 12/31/19 P. v. Mendoza CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

MARIO MENDOZA,

Defendant and Appellant.

H047109

(San Benito County

Super. Ct. No. CR1800754 )
Defendant Mario Mendoza pleaded no contest to driving with a blood alcohol percentage of 0.08 or higher, a felony given his admission to having previously been convicted of gross vehicular manslaughter while intoxicated. The trial court sentenced him to the upper term of three years in prison. On appeal, defendant’s counsel filed an opening brief in which no issues are raised and asked this court to independently review the record under People v. Wende (1979) 25 Cal.3d 436. We sent a letter to defendant notifying him of his right to submit a written argument on his own behalf on appeal. He has not done so.

Finding no arguable appellate issue, we affirm. We will provide “a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed,” as required by People v. Kelly (2006) 40 Cal.4th 106, 110. We will further include information about aspects of the trial court proceedings that might become relevant in future proceedings. (Ibid.)

I. BACKGROUND

A. Factual Summary

Shortly after midnight on December 31, 2016, a San Benito County Sheriff’s Deputy observed a car stuck in the mud on the side of the road. The Sheriff’s Deputy contacted the driver—defendant—to see if he needed assistance. While speaking with defendant, the officer detected a strong odor of alcohol. Defendant admitted he had been drinking. A California Highway Patrol (CHP) officer responded to the scene and performed a DUI investigation. That officer observed that defendant’s eyes were red and watery, his gait was unsteady, his speech was slurred, and he smelled of alcohol. The CHP officer then performed a number of field sobriety tests on which defendant performed poorly. The CHP officer arrested defendant for driving under the influence. At the San Benito County Jail, defendant provided two breath samples. The first breath sample, provided at 1:44 a.m., registered 0.21 percent blood alcohol concentration. The second, provided at 1:47 a.m., registered 0.22 percent blood alcohol concentration.

B. Procedural History

The San Benito County District Attorney charged defendant by complaint with two counts: (1) driving under the influence (Veh. Code, § 23152, subd. (a)) after having previously been convicted of gross vehicular manslaughter while intoxicated in violation of Penal Code section 191.5, subdivision (a) (§ 23550.5, subd. (b)) and (2) driving with a blood alcohol percentage of 0.08 or more (§ 23152, subd. (b)) after having previously been convicted of gross vehicular manslaughter while intoxicated in violation of Penal Code section 191.5, subdivision (a) (§ 23550.5, subd. (b)). A violation of section 23152 normally is a misdemeanor. (People v. Doyle (2013) 220 Cal.App.4th 1251, 1257.) However, both counts were charged as felonies here, pursuant to section 23550.5, subdivision (b)), because of defendant’s prior gross vehicular manslaughter while intoxicated conviction. The complaint was deemed an information on December 4, 2018.

Defendant was represented by private counsel in the superior court. On April 12, 2019, he pleaded no contest to driving with a blood alcohol percentage of 0.08 or more (§ 23152, subd. (b)) and admitted having previously been convicted of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)) in exchange for the dismissal of the other count and the dismissal of a separate misdemeanor case.

Defendant had been employed by the same company for more than seven years at the time he entered his plea. His employer submitted a letter to the court indicating that defendant was “a valuable asset to our organization” and that “his continued employment outlook is very good.” The letter further noted that the “company has support resources in place to help [defendant] as needed,” including counseling and support programs.

At a sentencing hearing on June 27, 2019, the court imposed a three-year state prison sentence. The court selected the upper term because defendant had a history of violating probation and, in the court’s view, posed a danger to the community, having failed to address his alcoholism despite its having previously resulted in a death. The court awarded defendant a total of 73 days of presentence credits, consisting of 37 days of actual custody and 36 days of conduct credits. The court imposed a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)(1)); a $300 parole revocation fine, which was suspended pending successful completion of parole (Pen. Code, § 1202.45); a $40 court operations assessment (Pen. Code, § 1465.8, subd. (a)(1)); and a $30 criminal conviction assessment (Gov. Code, § 70373). On the People’s motion, the court dismissed count 1 and the misdemeanor case.

Defendant timely appealed.

II. DISCUSSION

Having examined the entire record, we conclude that there are no arguable issues on appeal.

III. DISPOSITION

The judgment is affirmed.

_________________________________

ELIA, ACTING P. J.

WE CONCUR:

_______________________________

GROVER, J.

_______________________________

DANNER, J.

People v. Mendoza

H047109