P. v. Jasper

P. v. Jasper

Filed 9/23/08 P. v. Jasper CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, v. BENNY JASPER, Defendant and Appellant.

A120202 (San Francisco County Super. Ct. No. 199979)

A jury convicted defendant Benny Jasper of driving while under the influence of alcohol (Veh. Code,  23152, subd. (a)), and driving with a blood-alcohol level of .08 or higher (Veh. Code,  23152, subd. (b)).[1] The trial court found true allegations that defendant had suffered three prior convictions of section 23152.[2] The court sentenced defendant to 16 months in state prison, and deemed the sentence served pursuant to Penal Code section 1170, subdivision (a)(3). The court also ordered defendant to pay various fines and security fees, and to have an interlock device on any vehicle he drives for two years.

Appellate counsel has filed an opening brief that raises no issues and asks this court for an independent review of the record to determine whether there are any arguable issues. (See People v. Wende (1979) 25 Cal.3d 436.) Defendant was notified of his right to file a supplemental brief, but has not done so. We find no arguable issues and affirm.

I.

On September 17, 2006, at 7:24 p.m., Officer Morgan of the University of California, San Francisco Police Department was patrolling 15th Street between Folsom and Harrison. He saw a black Jetta with its rear bumper partially detached, dragging on the ground. Morgan followed the Jetta onto Harrison Street.

The Jetta drove down Harrison on the wrong side of the road, then turned left onto 16th Street. The Jetta ran a red light while making the turn. The Jetta drove on the correct side of the road on 16th Street, turned right on Bryant, then left on 17th Street. Morgan activated his lights when he saw the Jetta on the wrong side of the road, and stopped the car on 17th Street. Defendant, who was the driver of the Jetta, got out of the car while talking on a cell phone.

Morgan ordered defendant back into the car. He did not comply. Morgan repeated the order. Defendant did comply. Morgan approached the Jetta and noticed that defendant smelled of alcohol, and that his eyes were bloodshot, watery, and glassy. Defendant continued to talk on his cell phone, making irrational statements. Defendant did not comply with Morgans demands to produce his license, registration, and proof of insurance.

Defendant restarted his car. Morgan reached through the window, turned the ignition key off, and removed the key. He removed defendant from the car and took him to the sidewalk. Defendant was unsteady on his feet and his speech was rambling. Defendant struggled with Morgan and swung his elbow at Morgans head. Morgan handcuffed defendant and placed him in his patrol car.

Officers Tilis and Snider, who had arrived as backup, noticed signs that defendant was intoxicated. Snider noticed slurred speech and a smell of alcohol. Tilis performed a horizontal gaze nystagmus test, which indicated defendant was intoxicated.

A test of defendants blood revealed a blood-alcohol level of .31. The average person would be impaired at such a level; indeed, they would be in dire need of medical attention.

The court found beyond a reasonable doubt that defendant was convicted of section 23152, subdivision (a) on October 10, 1997; section 23152, subdivision (b) on July 20, 1998; and section 23152, subdivision (a) on April 8, 2003.

II.

We have reviewed the record and find no arguable issues. The court properly denied defendants motion to suppress. Defendant was represented by counsel and had a fair trial. Substantial evidence supports the jurys verdict. The evidence unmistakably established that defendant was driving while under the influence of alcohol and with a blood-alcohol level of .08 or higher. The traffic stop and arrest of defendant, as well as the blood draw, were constitutionally valid. The prior convictions were constitutionally obtained.

There was no error in the proceedings or the sentence imposed.

III.

The judgment of conviction is affirmed.

Marchiano, P.J.

We concur:

Swager, J.

Margulies, J.

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[1] Subsequent statutory citations are to the Vehicle Code unless otherwise indicated.

[2] During the jury trial, defendant pleaded no contest to driving while his license was suspended for a violation of section 23152. ( 14601.2, subd. (a).)