P. v. Gonzales
Filed 8/25/08 P. v. Gonzales CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. MARIO GONZALES, Defendant and Appellant. | F054854 (Super. Ct. No. 08CM0036) O P I N I O N |
THE COURT*
APPEAL from a judgment of the Superior Court of Kings County. Peter M. Schultz, Judge.
Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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By information filed February 5, 2008, appellant Mario Gonzales was charged with the following offenses: false personation (Pen. Code, 529;[1]count 1); driving while under the influence of alcohol and/or drug (Veh. Code, 23152, subd. (a); count 2); driving while having a blood alcohol content of .08 percent or more (Veh. Code, 23152, subd. (b); count 3); and driving without a valid license (Veh. Code, 12500, subd. (a); count 4). It was also alleged in the information that appellant had suffered a strike[2]and had served a prison term for a prior felony conviction ( 667.5, subd. (b)), and that in committing the count 2 and count 3 offenses he was driving 30 or more miles per hour over the speed limit on a freeway (Veh. Code, 23582).
On February 22, 2008, appellant, pursuant to a plea agreement, pled guilty to counts 1 and 3 and admitted the strike allegation; the court dismissed the remaining counts and special allegations; appellant waived preparation of a presentence report; and the court imposed a prison term of four years, consisting of the two-year midterm on count 1 ( 18), doubled pursuant to the three strikes law ( 667, subd. (e)(1); 1170.12, subd. (c)(1)). On count 3, the court imposed a concurrent term of 69 days, with credit for time served.
Appellant did not request, and the court did not issue, a certificate of probable cause ( 1237.5).
Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (Peoplev.Wende (1979) 25 Cal.3d 436.) Appellant has not responded to this courts invitation to submit additional briefing. We will affirm.
FACTS[3]
On January 7, 2008, a police officer effected a stop of a vehicle driven by appellant, after observing appellant driving 109 miles per hour in a 65-mile-per-hour zone on a freeway in Kings County. Appellant did not have any proof of identification and gave a name the officer later determined was that of appellants half brother.
The officer noticed the odor of an alcoholic beverage emanating from the interior of appellants vehicle, and observed that appellants eyes were bloodshot and his speech was slurred. The officer had appellant perform a series of field sobriety tests, and based on those tests the officer determined appellant was under the influence of alcohol.
DISCUSSION
Upon independent review of the record, we have determined as follows: The court ordered appellant to pay various fines, fees and penalty assessments, including two penalty assessments of $50 each, purportedly pursuant to sections 1463.13 and 1463.25, respectively. These two orders were in error.
Section 1463.13, subdivision (d) authorizes the levying of an assessment of not more than $150 when the court orders a defendant to participate in a county alcohol and drug problem assessment program ( 1463.13, subd. (d)), and section 1463.13, subdivision (a)(2) provides that no person convicted of driving under the influence of alcohol or a controlled substance or a related offense shall participate in any such program ( 1463.13, subd. (a)(2)). As indicated above, appellant was convicted of violating Vehicle Code section 23152, subdivision (b), an offense related to driving under the influence of alcohol, and the court did not order him to participate in an alcohol and drug assessment program. Therefore, the order that appellant pay a $50 penalty assessment pursuant to section 1463.13 was not authorized.
Section 1463.25 does not authorize the imposition of any fines, fees or assessments. Therefore, the order that appellant pay $50 pursuant to that statute was also unauthorized. Accordingly, we will strike the $50 penalty assessments purportedly imposed under sections 1463.13 and 1463.25, respectively.[4]
We have further concluded, following our independent review of the record, that no other reasonably arguable legal or factual issues exist.
DISPOSITION
The $50 penalty assessments purportedly imposed under sections 1463.13 and 1463.25, respectively, are stricken. In all other respects, the judgment is affirmed.
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*Before Vartabedian, Acting P.J., Wiseman, J., and Dawson, J.
[1] Except as otherwise indicated, all statutory references are to the Penal Code.
[2] We use the term strike as a synonym for prior felony conviction within the meaning of the three strikes law ( 667, subds. (b)-(i); 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.
[3] Our factual summary is taken from the transcript of the preliminary hearing, conducted January 23, 2008.
[4] We advised the parties, pursuant to Government Code section 68081, that we proposed, were we to otherwise affirm the judgment, to strike the penalty assessments purportedly imposed under sections 1463.13 and 1463.25. Neither party responded to our invitation to submit briefing on this issue.
