P. v. Hicks
Filed 2/19/08 P. v. Hicks CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE, Plaintiff and Respondent, v. DENNIS EARL HICKS, JR., Defendant and Appellant. | A118604 (Humboldt County Super. Ct. No. CR054565S) |
Defendant Dennis Earl Hicks appeals from an order revoking his probation and a judgment executing his previously suspended sentence. His appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and, after being advised of his right to do so, defendant has filed no supplemental brief. Having conducted an independent review of the record, we find no issue of colorable merit and shall affirm.
Factual and Procedural History
In November 2005, defendant pled guilty to one count of felony driving under the influence of alcohol with three prior convictions for alcohol-related driving offenses in the last 10 years (Veh. Code, 23152, subd. (a), 23550) and one count of driving with a suspended license (Veh. Code, 14601.5, subd. (a)). He also admitted the special allegations in the first count that he refused a chemical test (Veh. Code, 23577) and had suffered a prior strike conviction (Pen. Code, 667, subds. (d) & (e), 1170.12, subds. (b) & (c)). Defendant was advised that his maximum possible sentence was the aggravated term of six years in state prison. Defendant was also advised of and waived his right to a jury trial on any circumstance that would justify imposition of the aggravated term.
The trial court imposed the upper term of three years on the first count based on a finding that defendants prior convictions are numerous and of increasing seriousness, he had served prior prison terms and [h]is prior performance on probation or parole was unsatisfactory. The court suspended execution of the sentence and placed defendant on probation for five years.
On May 23, 2007, a notice of probation violation was filed alleging that defendant had failed to report to the probation department, failed to report a change of address and failed to comply with the instructions of the probation department. An amended notice of probation violation was filed thereafter alleging that defendant was arrested on June 2, 2007, for driving with a suspended license. At the probation revocation hearing, defendant waived his rights and admitted the above probation violations.
At the sentencing hearing, the trial court declined defendants request to be reinstated on probation. The court lifted the stay of execution and ordered defendant to serve the previously-imposed three-year sentence. Defendant filed a timely notice of appeal but did not request a certificate of probable cause.
Discussion
Defendants failure to obtain a certificate of probable cause precludes our review of defendants Vehicle Code convictions and his admission that he had violated probation. (Pen. Code, 1237.5 [No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except [when defendant obtains a certificate of probable cause]].)
In light of defendants lengthy criminal history, the trial court did not abuse its discretion in imposing the upper term for defendants conviction for driving under the influence. (People v. Black (2007) 41 Cal.4th 799, 813.) Nor did the court abuse its discretion in refusing to reinstate defendant to probation and by lifting the stay of execution on the previously imposed sentence. (People v. Covington (2000) 82 Cal.App.4th 1263, 1267.) Defendant was represented at all times by competent counsel.
Disposition
The judgment is affirmed.
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Pollak, J.
We concur:
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McGuiness, P. J.
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Siggins, J.
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