Tuesday, January 8, 2008

4 years for 4 prior California DUI convictions

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Filed 1/8/08 P. v. Garcia CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,

v.

PABLO CASAS GARCIA,

Defendant and Appellant.
B191203
(Los Angeles County

Super. Ct. No. TA080865)


APPEAL from a judgment of the Superior Court of Los Angeles County. Gary E. Daigh, Judge. Affirmed.

Patricia A. Andreoni, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews, Susan Sullivan Pithey and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.

_______________

After his motion to suppress evidence was denied, appellant Pablo Casas Garcia was convicted by jury of one count of California DUI driving under the influence of alcohol or drugs in violation of Vehicle Code section 23152, subdivision (a).1 In bifurcated proceedings, appellant admitted four California DUI prior convictions within the meaning of sections 235502 and 23550.53 and a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). The trial court sentenced appellant to a total term of four years, consisting of the upper term of three years and one consecutive year for the prison prior.

Appellant appeals on the grounds that: (1) the trial court erred in denying appellant’s motion to suppress evidence; (2) the trial court violated appellant’s federal and state constitutional rights to due process and trial by jury when it refused the defense pinpoint instruction; and (3) imposition of the upper term was based on a prohibited dual use of fact and violated appellant’s federal constitutional rights to a jury trial and proof beyond a reasonable doubt under the Sixth and Fourteenth Amendments.

California DUI FACTS

We recite the evidence in the light most favorable to the judgment below. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) On August 8, 2005, at approximately 12:30 a.m., Deputies James Jobling and George Cranson of the Los Angeles County Sheriff’s Department were on patrol in the City of Compton. Deputy Jobling, a passenger in the patrol car, spotted a speeding white Ford Thunderbird in the area of 119th Street and Willowbrook Avenue as the deputies drove north on Willowbrook Avenue. Appellant was later identified as the driver of the Thunderbird. Appellant made a left hand turn to go southbound on Willowbrook Avenue, and his rate of speed caused the car to make a wide, sweeping turn. His car hit the curb and made a screeching noise. Appellant was driving on a street with a posted speed limit of 25 miles per hour.

Deputy Cranson proceeded to make a U-turn and follow appellant. Deputy Jobling saw appellant’s car weaving in the single southbound lane of Willowbrook Avenue and crossing over onto the northbound lane. Deputy Jobling noticed that appellant’s vehicle registration had expired.

Appellant pulled into a driveway and into a shared parking lot. The deputies parked at the mouth of the driveway and shone the patrol car’s spotlight on appellant’s car. Deputy Jobling saw appellant step out of the car, and he appeared to be very unsteady on his feet. Appellant placed his left hand on the side of the car, and it appeared to Jobling that appellant was trying to regain his balance. Appellant began walking in a staggering manner toward a residence while yelling for his wife to come out.

Upon making contact with appellant, Deputy Jobling smelled a strong odor of an alcoholic beverage and saw that appellant’s eyes were bloodshot and watery. Appellant was speaking belligerently in Spanish and English. He told the deputies that he was home and they could not take him to jail. Appellant refused to perform any California DUI field sobriety tests, and the deputies handcuffed appellant and put him in the back seat of the patrol car.

A videotape was made of sheriff’s deputies asking appellant to take a chemical test at the station. The jury viewed the videotape and was given transcripts. Appellant’s demeanor was uncooperative and he did not provide a California DUI breath or blood test.

DISCUSSION

I. Denial of Motion to Suppress California DUI

A. Argument

Appellant contends that he was illegally detained, and the trial court erred in denying his motion to suppress evidence of the California DUI videotape, all California DUI observations made by the officers, and all California DUI statements stemming from the illegal detention.

B. Relevant California DUI Authority

On review of a trial court’s ruling on a motion to suppress evidence, the appellate court must accept the trial court’s resolution of disputed facts and its assessment of the credibility of witnesses if supported by substantial evidence. (People v. Williams (1988) 45 Cal.3d 1268, 1301.) The trial court has “the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences” for the purpose of making its factual findings. (People v. Lawler (1973) 9 Cal.3d 156, 160.) The trial court has the power to decide “what the officer actually perceived, or knew, or believed, and what action he took in response.” (People v. Leyba (1981) 29 Cal.3d 591, 596.)

In the second step of its review of the grant or denial of a motion to suppress, the appellate court is required to independently apply the law to the factual findings. (Ornelas v. United States (1996) 517 U.S. 690, 699 (Ornelas); People v. Loewen (1983) 35 Cal.3d 117, 123.) The appellate court must determine if the factual record supports the trial court’s conclusions as to whether or not the detention met the constitutional standard of reasonableness. (Ornelas, supra, at pp. 696–697 [determination of reasonable suspicion a mixed question of law and fact]; People v. Lawler, supra, 9 Cal.3d at p. 160.)

C. California DUI Proceedings Below

At the hearing on the motion to suppress, Deputy Jobling testified to the events leading up to the deputies’ arrival at appellant’s driveway as stated in the facts portion of this opinion. Deputy Jobling stated that he and his partner were in uniform and in a marked patrol car. He acknowledged that in his police report he had written “Wilmington” instead of “Willowbrook,” and every street name that read “Wilmington” should have been “Willowbrook,” including appellant’s address. Deputy Jobling saw only appellant in the car, and he estimated appellant’s speed as 35 miles per hour. He said that the deputies activated the red lights of the patrol car as they followed appellant. Deputy Jobling stated that his various observations of appellant’s erratic driving amounted to four violations of the Vehicle Code, which he cited, and the expired registration tags were a fifth violation. Appellant turned into a driveway leading back to a small parking lot of what appeared to be a triplex residence. The two deputies went into the mouth of the driveway and stopped. Deputy Jobling was able to determine there were no passengers inside the vehicle. Deputy Jobling saw appellant put his left hand on the car so as to regain his balance. Deputy Jobling’s partner made the initial contact with appellant, and Deputy Jobling made contact within 30 seconds of that. Deputy Jobling, based on the odor of alcohol and appellant’s watery eyes and unsteadiness, attempted to have appellant perform California DUI field sobriety tests. Appellant would not perform the tests and stated he was home and that the deputies could not take him to jail. The deputies arrested appellant for California DUI driving under the influence of alcohol. They based the arrest on his driving and symptoms of intoxication, since appellant would not perform any California DUI field sobriety tests.

The defense called Richard John Fox, a defense investigator. He had photographed a sign on Wilmington Avenue that stated that the speed limit was 35 miles per hour.

Appellant’s wife, Sara Vargas (Vargas), testified that she was asleep when her husband arrived home on the night in question. When she heard the key in the lock, she got up and opened the “wooden door” while her husband was opening the metal door. Appellant came inside the house and a policeman was behind him. The policeman said, “Your husband is drunk” and grabbed appellant and put him inside the patrol car.

Appellant, who gave his name as Daniel Ornelas, testified that he went into his house after he parked his car. A policeman grabbed him from behind and took him to the police car. He had not given the policeman permission to enter his house.

On cross-examination, appellant denied turning from 119th Street and said he had been traveling on 122nd Street. Appellant admitted drinking earlier that morning. When asked if he was under the influence, he stated that he was not driving. He said a friend was driving, and appellant was on the back seat. The friend’s name was Jose. Jose did not hit the curb, and Jose had not been drinking. Appellant did not even see the police officers when he got out of the car. Jose “went into his house.” When the prosecutor asked appellant if he was outside his house when he saw the police, appellant replied, “Yes.” He did not tell the police they could not arrest him because he was at home—he did not say anything to the policemen.

The trial court asked appellant, “Whatever happened to Jose?” Appellant replied that Jose went to Mexico. Appellant said that Jose got out and went to his house on the night in question. Jose lived two houses away from appellant.

After the testimony was concluded, the trial court heard argument on the issue of whether police officers can follow a person into a house to make an arrest after the person has committed misdemeanor conduct. The trial court eventually stated, “Everybody researched the law. I researched the law. I did it simply because I enjoy it, and I like researching these cases, reading them, but it’s really a credibility call. Your defense was a credibility call. If I believe your defendant and his witness, we don’t even get to the legal argument, right, and I don’t. I believe that the . . . relative convincing force of the credible evidence preponderates in favor of the prosecution, and to be quite candid, for you things only got worse when he said Jose was driving. So, for the record appellate review if it gets to that, I believe that the relative convincing force of the credible evidence is with the prosecution and not the defense. So I believe that he was stopped outside of the house.” Later, the trial court stated, “The motion is denied. I want the record to be clear on this that I’m denying the motion on the grounds of credibility.” The trial court did not believe appellant was stopped in the home. The trial court reiterated that “for purposes of appellate review, I’m factually finding in favor of the prosecution . . . .”

D. California DUI Motion Properly Denied

The essence of appellant’s argument is that he was detained in his private home. According to appellant, the officers had knowledge only of his traffic infractions, and infractions are not crimes. The officers did not have specific and articulable facts before the detention that would lead them to believe he had been driving under the influence or had committed any other crime. The only observations made by Deputy Jobling that could possibly indicate some type of impairment was that appellant appeared unsteady on his feet as he left his vehicle.

As stated previously, in a motion to suppress evidence “‘[T]he power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court.’ [Citation.]” (People v. Middleton (2005) 131 Cal.App.4th 732, 738.) Here, the trial court made it abundantly clear that it had judged the defense witnesses to be lacking in credibility. On the other hand, it expressly found the prosecution witness credible. Since the trial court’s credibility and factual findings are supported by substantial evidence, we need not address appellant’s contentions that appellant was illegally detained inside his home.

There were ample grounds for effecting a traffic stop of appellant and for believing him to be intoxicated or California DUI . Deputy Jobling observed appellant traveling too fast in a residential area and too fast to make the left-hand turn he attempted. Deputy Jobling saw him make a wide, sweeping turn that caused his vehicle to swerve into the curb line and strike the curb. Deputy Jobling saw appellant weaving within his lane, and he also saw him cross over the broken yellow line separating the northbound and southbound lanes. All of these instances of erratic driving provided reasonable suspicion that appellant had violated the Vehicle Code. (People v. Thompson (2006) 38 Cal.4th 811, 818–819.) Deputy Jobling saw that appellant had to use his left hand and place it on the vehicle to keep his balance as he exited his car. The deputy both observed appellant’s unsteadiness and smelled the odor of alcohol on appellant before asking him to perform the field sobriety tests. Deputy Jobling saw that appellant’s eyes were bloodshot and watery and the pupils were enlarged. Appellant told the officers that “he was home,” and they could not take him to jail. Deputy Jobling stated that appellant was arrested for California DUI after he refused to perform the California DUI field sobriety tests. This leads to the reasonable inference that appellant and the California DUI officers were still in the driveway where they first made contact, immediately after appellant exited his car.

Appellant’s argument based on an illegal detention inside the home is to no avail, and we find no error in the trial court’s ruling.

II. Refusal to Read California DUI Defense Lawyer's Pinpoint Instruction

A. California DUI Attorney Argument

Appellant contends that the trial court should not have refused appellant’s pinpoint instruction directing the jury’s attention to defense evidence that the police could have legally obtained appellant’s blood without his consent in order to determine whether he was California DUI under the influence of alcohol. Appellant maintains that the instruction was necessary so that the jury could consider whether the failure of the officers to obtain a blood sample was cause for reasonable doubt of his guilt.

Appellant further argues that the error was not harmless beyond a reasonable doubt, since the error had the effect of denying appellant the right to have issues of fact determined by the jury. Without the instruction, the jury was not required to deliberate on whether the failure to obtain blood evidence constituted a lack of evidence to support Deputy Jobling’s conclusion that appellant was California DUI under the influence of alcohol. Appellant claims that in the absence of qualitative evidence, such as a California DUI field sobriety or chemical test, the only evidence to support a guilty verdict was appellant’s own statement that he was California DUI drunk, which was said in a sarcastic manner at the end of the videotaped interview.

B. California DUI Proceedings Below

California DUI Defense counsel requested the trial court to give the following instruction:

“Police may forcibly seize a person’s blood for a blood-alcohol test, without the person’s consent if (1) the procedure used to draw the person’s blood is done in a reasonable, medically approved manner by a certified medical technician, (2) the procedure is incident to a lawful arrest for driving under the influence of alcohol, and (3) is based on a reasonable belief that the suspect is intoxicated. Law enforcement may bring the suspect to a jail hospital, dispensary or to a hospital for the blood to be drawn by a licensed clinical technician, using a standard procedure and using materials obtained from a local hospital. [Citations.] [¶] A person suspected by law enforcement of driving under the influence of alcohol may be physically restrained by law enforcement officers while a hospital or laboratory technician removes a blood sample from the person’s arm. Moreover, law enforcement may use reasonable force to overcome a person’s resistance to the forced blood sample and proceed against the person’s will. [Citation.]”

The trial court asked the California DUI defense lawyer why the instruction was relevant to the officers’ actions in this California DUI case, since the proposed instruction only stated what California DUI officers could do in other situations. California DUI Defense attorney replied that the California DUI jury had to decide how much weight to give the police decision not to exercise their discretion to test appellant. The defense was that appellant was not California DUI or drunk. The case law says that all the police had to do was have appellant restrained in order to test him. The issue was why did they not do so if they really believed he was California DUI under the influence, when the law says they can. The prosecutor argued that it was a collateral issue and the jury did not have to decide what the officers could have done.

The trial court noted that appellant was not charged with a violation of California DUI section 23152, subdivision (b), which prohibits driving while having a 0.08 percent or higher blood alcohol level. Appellant was charged only with a violation of section 23152, subdivision (a), California DUI driving under the influence of alcohol or drugs. Therefore, appellant’s blood-alcohol level was not relevant to the case.

The trial court ultimately ruled that it did not believe the proposed instruction was relevant to the evidence in the instant case, stating, “You can argue whatever you want. I don’t think it’s proper for me to instruct them on what the instruction is appropriate under the right circumstances to tell them anything about using reasonable force to perform a test which would result in them having a percentage of which is not before the court like it was in [People v.] Ryan [(1981) 116 Cal.App.3d 168], which is not your case. So over your objection, . . . it is not going to be given.”

C. Relevant California DUI Authority

The trial court must instruct the jury on all general principles of law necessary for the jury to properly perform its function : “‘“It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” [Citation.]’” (People v. Breverman (1998) 19 Cal.4th 142, 154.) In addition, in appropriate circumstances a requested jury instruction may be required that pinpoints the defense’s theory of the case. (People v. Bolden (2002) 29 Cal.4th 515, 558 (Bolden); People v. Wharton (1991) 53 Cal.3d 522, 570 (Wharton).) “But a trial court need not give a pinpoint instruction if it is argumentative [citation], merely duplicates other instructions [citation], or is not supported by substantial evidence [citation].” (Bolden, supra, at p. 558.) Instructions that invite the jury to draw inferences favorable to the defendant from specified items of evidence and/or elevate one or more facts in the jury’s decision-making process must be rejected as argumentative. (Wharton, supra, at p. 570; People v. Wright (1988) 45 Cal.3d 1126, 1137–1138.) It is not necessary for “detailed instructions on every issue to come before a criminal jury[,]” because certain matters are properly “addressed in argument without aid of a specific instruction . . . .” (People v. Daniels (1991) 52 Cal.3d 815, 871.)

Although a decision whether to give a particular instruction in a particular case is a mixed question of law and fact, it is primarily legal, and on appeal we review the decision independently. (People v. Waidla (2000) 22 Cal.4th 690, 733.) Prejudice resulting from errors in instructing the jury is assessed under the standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836, under which reversal can be ordered only if it is reasonably probable that appellant would have achieved a more favorable result in the absence of the error. (People v. Wims (1995) 10 Cal.4th 293, 314–315.)

D. No California DUI Error

We agree with the trial court that the proposed jury instruction was not relevant to the issues before the jury. The jury was properly instructed that in order to find appellant guilty of the charged crime, it had to find that appellant drove a vehicle and that at the time of driving he was under the influence of an alcoholic beverage. (CALJIC No. 16.830.) The jury was told that no person can be convicted of a criminal offense unless there is some proof of each element of the crime independent of any admission made by the defendant. (CALJIC No. 2.72.) The jury was also instructed on the definition of circumstantial evidence (CALJIC No. 2.00) and the cautions it should observe in finding guilt based on circumstantial evidence (CALJIC No. 2.01). Thus, the prosecutor was not relieved of the burden of proving every factual and legal element of the offense charged beyond a reasonable doubt, and there was no due process violation.4

The fact that there exists authority stating that law enforcement officers may subject a person to a blood-alcohol test against that person’s will had no bearing on the instant California DUI case. As the California DUI trial court stated, appellant’s blood-alcohol level was not at issue. The California DUI case was brought and proved to the jury purely on the evidence of the videotape and the testimony of the California DUI officers.

To the extent that the California DUI defense lawyer wished the jury to draw the inference that the police officers had to be lying, or they would have forced appellant to take a blood test, the proposed instruction was argumentative. The instruction would have invited the jury to draw inferences favorable to one of the parties from a specified item of evidence (Wharton, supra, 53 Cal.3d at p. 570), or, in this case, a specified item of evidence that was NOT presented to them—and that issue was irrelevant to the issue before the jury. Such a suggestion should be raised in argument. Moreover, any inference of police wrongdoing drawn from the failure of police to force appellant to take a blood test would be extremely tenuous, since in this case the police could reasonably have relied on appellant’s behavior and admissions as sufficient evidence of his intoxication to have him charged with the offense.

Appellant’s California DUI attorney's argument is without merit.

III. Imposition of Upper Term Sentence

A. Proceedings Below

In sentencing appellant to the upper term, the trial court stated, “The reason that this is now a felony is because he has three prior D.U.I.’s and they are on case TCH256, 7NE02809, and 8CM08329. So the sentencing under that is 16, two and three. I think the aggravating factors are the fact that he picked up a fourth D.U.I. which is the felony VA065887. I believe Blakely [Blakely v. Washington (2004) 542 U.S. 296] explicitly says that I can use his prior record as a circumstance in aggravation as appropriate. That in itself would dictate high term because there are no mitigating factors. . . . In addition to the high term of three years, you can be sentenced to another year under Penal Code section 667.5(b) for the V, as in Victor, prior but you are not being sentenced for the prior itself. You are being sentenced for going to prison and not being free from custody for a period of five years which is a separate factor. It isn’t dual use of facts.”

B. Argument

Appellant contended in his opening brief that selection of the upper term was error for two independent reasons. First, the trial court used appellant’s felony prior conviction in case No. VA065887 as the aggravating factor and also imposed an additional year for having served a prior prison term for that conviction, which constituted a prohibited dual use of facts. Second, the imposition of the upper term violated appellant’s rights to a jury trial and proof beyond a reasonable doubt under the federal Constitution and United States Supreme Court precedent. Appellant claimed that imposition of the aggravated term violated his rights to jury trial and proof beyond a reasonable doubt under the federal Constitution and United States Supreme Court precedent in Blakely v. Washington (2004) 542 U.S. 296 (Blakely).

Respondent argued that appellant waived the issue of a dual use of facts, and the error was harmless in any event given the other circumstance of appellant’s poor performance on probation. Respondent also argued that appellant’s upper term falls within the recidivist exception of Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres), and any Cunningham error was harmless. (Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856] (Cunningham); see Almendarez-Torres, supra, at p. 244 [“to hold that the Constitution requires that recidivism be deemed an ‘element’ of petitioner’s offense would mark an abrupt departure from a longstanding tradition of treating recidivism as ‘go[ing] to the punishment only’”].)

After the decision in Cunningham, supra, 549 U.S. at __ [127 S.Ct. at p. 868], in which the high court made it clear that, “[i]n accord with Blakely, . . . the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum” and the subsequent decisions of the California Supreme Court in People v. Black (2007) 41 Cal.4th 799 (Black) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), appellant submitted supplemental briefing on the effect of Black and Sandoval on his sentence.

Appellant now contends that “any aggravated sentence imposed under California’s determinate sentencing law (DSL) after a jury trial was error. . . . The fact of a prior conviction, a fact admitted by the defendant or a fact that happened to have been found by a jury only go to the question of whether the error was harmless.”

Specifically with respect to the fact of a prior conviction, appellant argues that this exception should be eliminated, citing to language in Apprendi v. New Jersey (2000) 530 U.S. 466, 489–490 (Apprendi), indicating that the high court has not yet taken a position on the continuing validity of the holding in Almendarez-Torres, supra, 523 U.S. 227. (See Apprendi, supra, 530 U.S. at pp. 489–490 [“Even though it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested, [defendant] does not contest the decision’s validity and we need not revisit it for purposes of our decision today to treat the case as a narrow exception to the general rule we recalled at the outset”].)

C. No Dual Use of Facts

Appellant’s first reason for finding the upper term invalid is without merit. Penal Code section 1170, subdivision (b) provides in pertinent part that “[t]he court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law.” In imposing the one-year enhancement for the prison prior (Pen. Code, § 667.5), however, the trial court did not use the fact of appellant’s prior conviction, but rather, the fact that he served a prison sentence. (See People v. Hurley (1983) 144 Cal.App.3d 706, 709.) “The fact of a [Penal Code] section 667.5 enhancement transcends the mere fact of conviction.” (Ibid; see also People v. Mendoza (1986) 183 Cal.App.3d 390, 403.) Therefore, use of the actual conviction in case No. VA065887 as the aggravating factor was not a dual use of facts, and appellant’s claim of error on this point fails.

D. Alleged Cunningham Error

We also disagree with appellant’s second argument against imposition of the upper term. In Apprendi, the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi, supra, 530 U.S. at p. 490.) The Supreme Court subsequently held that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Blakely, supra, 542 U.S. at p. 303.) In Cunningham, the high court concluded that California’s DSL was unconstitutional to the extent it authorized the trial court to impose an upper term sentence based on facts that were found by the court rather than by a jury beyond a reasonable doubt. (Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at p. 871].)

After the decision in Cunningham, the California Supreme Court held 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 and its progeny, any additional fact finding 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.” (Black, supra, 41 Cal.4th at p. 812.) Black and its companion case, Sandoval, reiterated that the right to a jury trial does not apply to the fact of a prior conviction. (Black, supra, 41 Cal.4th at p. 818; Sandoval, supra, 41 Cal.4th at pp. 836–837.)

In this case, the trial court’s reason for imposing the upper term falls precisely within the exception delineated in Apprendi. Appellant waived his right to a jury trial or a court trial of his prior convictions, and admitted all of his prior convictions, including that of case No. VA065887. Appellant was therefore eligible for the upper term, and the trial court properly imposed it. (Black, supra, 41 Cal.4th at p. 818; Sandoval, supra, 41 Cal.4th at pp. 836–837.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________, Acting P. J.

DOI TODD

We concur:

____________________, J.

ASHMANN-GERST

____________________, J.

CHAVEZ



1 All further references to statutes are to the Vehicle Code unless stated otherwise.



2 Section 23550 provides for imprisonment, fines, revocation of driving privileges, and designation as a habitual traffic offender if a person is convicted of violating section 23152 and the offense occurred within 10 years of three or more separate violations of certain sections of the Vehicle Code.



3 Section 23550.5 provides for felony punishment, revocation of privileges, and designation as a habitual traffic offender for violating section 23152 or 23153 within 10 years of other specified violations.



4 The trial court instructed the jury that the elements of a violation of Vehicle Code section 23152, subdivision (a) are that a person drove a vehicle and that, at the time, the driver was under the influence of any alcoholic beverage. The trial court also instructed the jury that a “person is under the influence of an alcoholic beverage when as a result of drinking such alcoholic beverage his physical or mental abilities are impaired to such a degree that he no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.” (CALJIC Nos. 16.830, 16.831.)

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