P. v. Christensen

Filed 2/22/08 P. v. Christensen 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Counsel for defendant Jason Cline Christensen has filed an opening brief in which he raises no issues and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel represents defendant has been apprised of his right to file a supplemental brief. Defendant has not filed a brief. We have conducted the review requested by counsel, and finding no arguable issues, affirm the judgment.

Defendant was charged with driving under the influence of alcohol and causing injury (Veh. Code, 23153, subd. (a)) and with driving with a blood alcohol level of .08 percent or above (Veh. Code, 23153, subd. (b)). It further was alleged that in the commission of these offenses, defendant personally inflicted great bodily injury on Jessica Rosenthal and caused bodily injury to more than one victim. (Pen. Code,  12022.7, subd. (a); Veh. Code,  23558.) Defendant pleaded guilty to driving with a blood alcohol level of above .08 percent, and admitted the enhancing allegations, initialing and signing a plea form and also entering the plea in open court. The charge of driving under the influence was dismissed with a Harveywaiver (People v. Harvey (1979) 25 Cal.3d 754).

According to the probation report, defendant was driving his truck eastbound on Sir Francis Drake Boulevard, in the number one lane. He crossed the double yellow line into oncoming westbound traffic. Defendant sideswiped a car being driven by John Doe, a minor. Defendant continued to drive into oncoming traffic, striking Jessica Rosenthals car head-on, causing Rosenthals car to collide into a car being driven by Laura Phillips. Rosenthal sustained serious injuries, including broken ribs, a liver laceration, broken toes, a dislocated knee and a broken hip and pelvis. Defendants blood alcohol levels were tested at .15 and .16 percent. There was evidence defendant could have stopped after striking the first car, but instead attempted to flee the scene. After striking the second car, defendant again tried to drive away. The probation report recited defendant had suffered several prior convictions. Several grants of probation had terminated normally, but defendant had suffered one probation violation that resulted in termination. Defendant admitted to an additional 1999 conviction that did not appear in the probation report. As to that conviction, defendant admitted he had been arrested for running a stop sign, also admitting that approximately one hour after his arrest, his blood alcohol level tested at .04 percent.

By pleading guilty to the charges, defendant admitted the sufficiency of the evidence establishing the charged offenses, and therefore is not entitled to review of any issue that merely goes to the question of his guilt or innocence. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.) In addition, Penal Code section 1237.5 and California Rules of Court, rule 8.304(b) bar a defendant from raising on appeal any question going to the legality of the proceedings, including the validity of the plea, without first obtaining a certificate of probable cause for the appeal from the trial court. Without such a certificate, a defendant may obtain review only of issues relating to the validity of a search and seizure or to proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed. (People v. Buttram (2003) 30 Cal.4th 773, 780.) Defendant has not obtained a certificate of probable cause. There are no search and seizure issues. We therefore limit our review to determining the validity of the proceedings held subsequent to the plea.

At the time defendant entered his plea, he acknowledged he understood he could receive a sentence of up to three years plus a two-year enhancement. Defendants probation officer recommended defendant be placed on probation, noting, among other things, defendant was employed, was alcoholic and was participating in multiple courses of treatment to address his alcohol use and core issues and imprisonment was likely to have an adverse impact on his ability to provide emotional and financial support for his children. Defendant was represented at sentencing by competent counsel who argued in favor of probation, pointing out inaccuracies in the probation report and also pointing out defendant had not consumed any alcohol since the incident, was attending AA and had abided by all the terms of his release. The court nonetheless, as it was entitled to do, declined to place defendant on probation. It sentenced him to the midterm of two years, plus an additional year for each enhancement, for a total term of four years. The term was within defendants expectations and was authorized by law. (Veh. Code, 23153, subd. (b); 23554; 23558; Pen. Code, 18.) Defendant properly was required to pay a $5,000 restitution fine, a $5,000 parole revocation fine (suspended) and a $40 court security fee. (Pen. Code, 1202.4, subd. (b)(1); 1202.45; 1465.8, subd. (a)(1).) He properly was ordered to pay actual restitution to the victims of his crime. (Pen. Code,  1202.4, subd. (f).)

Defendant was awarded 8 days credit, which are all the credits to which he was entitled.

In sum, we have thoroughly reviewed the record and find no arguable issues. While we have selected certain matters for discussion, we have scrutinized the record in its entirety. There are no issues requiring further briefing.

The judgment is affirmed.

_________________________

STEIN, Acting P.J.

We concur:

_________________________

SWAGER, J.

_________________________

MARGULIES, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.