P. v. Illingworth
Filed 6/29/12 P. v. Illingworth CA3
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
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publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT JAMES
ILLINGWORTH,
Defendant and Appellant.
C070067
(Super. Ct. No. 11F05513)
A
jury convicted defendant Robert James Illingworth of driving under the
influence (Veh. Code, § 23152, subd. (a)—count 1) and driving with a
blood-alcohol level of 0.08 percent or above (Veh. Code, § 23152, subd.
(b)—count 2). The jury found not true as
to count 2 that defendant drove with a blood-alcohol level of 0.20 percent or
above. (Veh. Code, § 23578.) In a bifurcated
proceeding, the trial court found that defendant had incurred two prior DUI
convictions.
The
trial court sentenced defendant to a three-year state prison term (the upper
term for count 1, with sentence on count 2 stayed under Penal Code section
654). The court awarded defendant 196
days of presentence custody credits (98 actual days and 98 conduct days). The court imposed a $600 restitution fine
(Pen. Code, § 1202.4, subd. (b)) and a $600 suspended restitution fine (
security fee (id., § 1465.8,
subd. (a)(1)), a $60 court security fee (Gov. Code, § 70373), a $50
alcohol abuse fee (Veh. Code, § 23645), a $287.78 main jail booking fee
(Gov. Code, § 29550.2), and a $59.26 main jail classification fee (Gov.
Code, § 29550.2).
Defendant’s
ensuing appeal is subject to the principles of People v. Wende (1979)
25 Cal.3d 436 (Wende) and
106, 110.) In accordance with the
latter, we provide a summary of the proceedings in the trial court.
A
witness found defendant’s truck stuck in a culvert and called the California
Highway Patrol (CHP). A CHP officer,
arriving about a half-hour later, found defendant inside the truck, leaning on
the steering wheel with his eyes closed; the keys were in the ignition and the
hood was warm. It took several knocks on
the window before defendant responded.
When defendant stepped out of the truck, the officer smelled alcohol
coming from defendant and from inside the truck. Defendant’s gait was unsteady and he had
trouble walking. Based on the results of
field sobriety tests, the officer determined defendant was under the influence
and arrested him. An inventory search of
defendant’s truck disclosed two bottles of whiskey, the contents of which were
partly consumed. Defendant’s subsequent
blood test revealed a blood-alcohol level of 0.28 percent.
Defendant
appeals. We appointed
forth the facts of the case and requests this court to review the record and
determine whether there are any arguable
issues on appeal. (
Defendant was advised by counsel of the right to file a supplemental
brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we have
received no communication from defendant.
Having undertaken an examination of the entire record, we find no
arguable error that would result in a disposition more favorable to defendant.
We
note, however, a clerical error on
the abstract of judgment, which incorrectly states that the court security fee
is imposed pursuant to a nonexistent Penal Code section 465.8, subdivision
(a)(1). We will remand the matter with
directions to the trial court to prepare a corrected abstract of judgment
showing that this fine is imposed under Penal Code section 1465.8, subdivision
(a)(1).
DISPOSITION
The
judgment is affirmed. The matter is
remanded to the trial court with directions to prepare a corrected abstract of
judgment as stated above and to forward a certified copy of the corrected
abstract of judgment to the Department of
Corrections and Rehabilitation.
BUTZ , J.
We concur:
NICHOLSON , Acting P. J.
MAURO , J.
name="_ftn1" title="">[1] Defense counsel argued that
the prosecution had not proved defendant could not have drunk the whiskey
between the time his truck went into the culvert and the time the officer
arrived.
