Tuesday, February 5, 2008

Motorcyle Probable Cause Issue

California DUI attorney news

Filed 2/4/08 P. v. Berry 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

DWIGHT CHRISTOPHER BERRY,

Defendant and Appellant.
B198081
(Los Angeles County

Super. Ct. No. NA068808)


THE COURT:*

Dwight Christopher Berry, also known as Dwight C. Berry, appeals from the judgment entered following his no contest plea to driving under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a)2 and driving while having a 0.08 percent or higher blood alcohol (§ 23152, subd. (b)). The guilty plea followed the denial of appellant’s motion to suppress evidence under Penal Code section 1538.5. Appellant also admitted the special allegations that he had suffered four prior offenses of driving under the influence within the meaning of sections 23550 and 23550.5 and refused to take or complete the chemical test. The trial court sentenced appellant to the upper term of three years on Count 1, suspending execution of sentence and placing appellant on five years formal probation. Sentence on Count 2 was stayed pursuant to section 654. A certificate of probable cause was not applied for nor obtained in connection with this appeal.

Appellant’s convictions were based upon the following facts:3 On January 7, 2006, at 7:41 p.m., Officer Ricardo Ramirez testified that he stopped appellant riding a motorcycle, because the taillight was not on. He then observed that appellant appeared intoxicated.

Appellant introduced evidence of his wife, who owned the motorcycle, and a motorcycle mechanic that the lights on the motorcycle automatically come on when the ignition is switched on and that the motorcycle cannot be driven with the ignition on and the front and rear lights off. But appellant’s wife conceded that if the lights were not working, “the motorcycle would still run. . . .” The motorcycle mechanic had inspected the motorcycle some months after appellant was stopped. He was familiar with the type of motorcycle driven by appellant, and testified that it could not run with the lights off but the ignition on, unless it was rewired. The motorcycle driven by appellant did not appear to be rewired. If the front light was on and the rear light was not, the motorcycle would still turn on.

We appointed counsel to represent appellant on appeal. After examination of the record, counsel filed an “Opening Brief” in which no issues were raised. On October 31, 2007, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. No response has been received.

We have examined the entire record and are satisfied that appellant’s attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.)

The order under review is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORT.



* BOREN, P. J., ASHMANN-GERST, J., CHAVEZ, J.



2 All further statutory references are to the Vehicle Code unless otherwise indicated.



3 The facts are taken from the hearing on appellant’s suppression motion.