P. v. Lolmaugh



















Filed 4/2/13 P. v. Lolmaugh CA3













NOT TO BE PUBLISHED







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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Placer)




>

THE PEOPLE, Plaintiff and Respondent, v. DANA TROY LOLMAUGH, Defendant and Appellant.

C071000 (Super. Ct. No. 62104496)

Defendant
Dana Troy Lolmaugh pled guilty to driving with a blood-alcohol level of 0.08
percent or higher and admitted he had five prior convictions for driving under
the influence, two of which were felonies.
(
ADDIN BA xc <@st> xl 39 s DBKJIM000001 xpl 1 l "Veh. Code, §§ 23152, subd. (b), 23550.5" Veh. Code,
§§ 23152, subd. (b), 23550.5.) href="#_ftn1" name="_ftnref1" title="">[1] He
also admitted he had served a prior prison term ( ADDIN BA xc <@st> xl 29 s
DBKJIM000002 xpl 1 l "Pen. Code, § 667.5, subd.
(b)" Pen. Code,
§ 667.5, subd. (b)). Pursuant
to the stipulated disposition, he was sentenced to a term of three years in
state prison.

Defendant’s ensuing appeal is subject to the principles of href="http://www.mcmillanlaw.com/"> ADDIN
BA xc <@cs> xl 36 s DBKJIM000003 xhfl Rep l "People v. Wende (1979)25 Cal.3d 436" People v. Wendename="_BA_Cite_32"> (1979) 25 Cal.3d 436 ( ADDIN BA xc <@$cs> xl 5 s
DBKJIM000003 xpl 1 >Wende) and ADDIN
BA xc <@cs> xl 42 s DBKJIM000004 xhfl Rep l "People v. Kelly (2006)40 Cal.4th 106, 110"
People v. Kelly (2006) 40 Cal.4th
106, 110. In accordance with the latter, we will
provide a summary of the offenses and the proceedings in the trial court.

In February
2011, defendant was driving with a blood-alcohol level of
0.13 percent. At the time, he had
sustained five prior convictions for driving under the influence and had a
prior felony conviction for which he served time in prison.

Defendant
was charged with driving under the influence of alcohol ( ADDIN BA xc <@osdv> xl 18 s
DBKJIM000022 xpl 1 l "§ 23152,
subd. (a)" § 23152, subd. (a)), driving with a blood-alcohol level of 0.08 percent or
higher (
ADDIN BA xc <@osdv> xl 18 s DBKJIM000023 xpl 1 l "§ 23152, subd. (b)" § 23152, subd. (b)) and a misdemeanor count of driving with a suspended
license (
ADDIN BA xc <@osdv> xl 20 s DBKJIM000024 xpl 1 l "§ 14601.2, subd. (a)" § 14601.2, subd. (a)). It was also
alleged as to both felony counts that defendant had five prior convictions
within the past 10 years for driving under the influence ( ADDIN BA xc <@osdv> xl 7 s
DBKJIM000025 xpl 1 l "§ 23550"
§ 23550),
had sustained two prior felony convictions for driving under the influence
within the last 10 years ( ADDIN BA xc <@osdv> xl 9 s
DBKJIM000026 xpl 1 l "§ 23550.5"
§ 23550.5),
and had a prior felony conviction for which he served a prison term ( ADDIN BA xc <@st> xl 18 s
DBKJIM000005 xpl 1 l "Pen. Code, §
667.5" Pen. Code, § 667.5).

Defendant
filed a motion to suppress. ( ADDIN BA xc <@st> xl 19 s
DBKJIM000006 xpl 1 l "Pen. Code, §
1538.5" Pen. Code, § 1538.5.) The People opposed
the motion. In their response, the
People alleged California Highway Patrol Officer Don Scholl saw defendant
driving at approximately 78 to 80 miles per hour in a 55 miles‑per‑hour
zone and stopped him for speeding.
Defendant exhibited signs of intoxication and admitted to the officer he
had had too much to drink. Based on his
reasonable suspicion that defendant was intoxicated, Officer Scholl conducted
field sobriety tests which further indicated defendant was under the
influence. Defendant also admitted his
driver’s license was suspended as a result of prior convictions for driving
under the influence. Defendant was
arrested based on the results of the field sobriety test and his admissions. The href="http://www.fearnotlaw.com/">motion to suppress was not heard and the
court did not issue a ruling on it.

Defendant
pleaded guilty to driving with a blood-alcohol level of 0.08 percent or higher,
admitted five prior driving under the influence convictions and one prior
prison term. As part of the plea he
agreed to a stipulated sentence of three years and was sentenced in accordance
with the plea. Defendant was ordered to
pay a $240 restitution fund fine ( ADDIN BA xc <@st> xl 30 s
DBKJIM000007 xpl 1 l "Pen. Code, §
1202.4, subd. (b)" Pen. Code,
§ 1202.4, subd. (b)), a $40 court security
fee (
ADDIN BA xc <@st> xl 19 s DBKJIM000008 xpl 1 l "Pen. Code, § 1465.8" Pen. Code, § 1465.8), and a $30 assessment fee ( ADDIN BA xc <@st> xl 18 s
DBKJIM000009 xpl 1 l "Gov. Code, §
70373" Gov. Code, § 70373). Defendant did not
obtain a certificate of probable cause.
(
ADDIN BA xc <@st> xl 19 s DBKJIM000010 xpl 1 l "Pen. Code, § 1237.5" Pen. Code, § 1237.5.)

We appointed href="http://www.mcmillanlaw.com/">counsel
to represent defendant on appeal. Counsel filed an opening brief setting forth
the facts of the case and asking us to review the record to determine whether
there were any arguable issues on appeal.
(
ADDIN BA xc <@$cs> xl 27 s DBKJIM000003 xhfl Rep xpl 1 Wende, supra,
25 Cal.3d 436.) 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.

Defendant has filed a href="http://www.fearnotlaw.com/">supplemental
brief. Defendant’s
brief delineates a number of typographical errors in the transcripts. We can discern no prejudice to defendant as a
result of these typographical errors.
Defendant also complains there were a number of discussions which were
not transcribed, including the prosecution’s rejection of his offer of proof of
his abstinence for over one year. On
direct appeal, our review is limited to a consideration of matters contained in
the record of the trial proceedings. ( ADDIN BA xc <@cs> xl 47 s DBKJIM000011
xhfl Rep xpl 1 l ">People v. Landers (1976)59
Cal.App.3d 846, 850" People
v. Landers (1976) 59 Cal.App.3d 846, 850.) We cannot consider or find prejudicial error
on matters not contained in the record.

Defendant also alleges the prosecution
did not produce requested discovery.
These claims are foreclosed by defendant’s guilty plea and failure to
obtain a certificate of probable cause.
A guilty plea is, for most purposes, the legal equivalent of a jury's
guilty verdict. ( ADDIN BA xc <@cs> xl 46 s
DBKJIM000012 xhfl Rep xpl 1 l ">People v. Valladoli (1996)13
Cal.4th 590, 601" People
v. Valladoli (1996) 13 Cal.4th 590, 601.) A guilty plea serves as a stipulation that
the People need not introduce proof to support the accusation. The plea supplies both evidence and verdict
and is deemed to constitute an admission of every element of the charged
offense. (
ADDIN BA xc <@cs> xl 42 s DBKJIM000013 xhfl Rep xpl 1 l "People v. Alfaro (1986)42 Cal.3d 627, 636" People v. Alfaro (1986) 42 Cal.3d 627, 636 [overruled on
another ground in ADDIN BA xc <@cs> xl 39 s
DBKJIM000014 xhfl Rep xpl 2 l ">People v. Guerrero (1988)44
Cal.3d 343" People v. Guerrero (1988) 44 Cal.3d 343]; ADDIN
BA xc <@cs> xl 41 s DBKJIM000015 xhfl Rep xpl 1 l "People v. Chadd (1981)28 Cal.3d 739, 748" People v. Chadd (1981) 28 Cal.3d 739, 748.) Without a href="http://www.mcmillanlaw.com/">certificate
of probable cause, our review is limited to search and seizure
or sentencing issues. ( ADDIN BA xc <@cs> xl 39 s
DBKJIM000016 xhfl Rep xpl 1 l "People v. Mendez (1999)19 Cal.4th 1084" People v. Mendez
(1999) 19 Cal.4th 1084; ADDIN
BA xc <@cs> xl 39 s DBKJIM000017 xhfl Rep xpl 1 l "People v. Panizzon (1996)13
Cal.4th 68" People v. Panizzon
(1996) 13 Cal.4th 68.)

Defendant argues the record does not
reflect his offer to pay for residential drug treatment or evidence he offered
to mitigate his sentence. Defendant was
sentenced in accordance with a stipulated sentence which was an integral part
of the plea. Accordingly, this claim is
also foreclosed by the failure to obtain a certificate of probable cause. ( ADDIN BA xc <@$cs> xl 46 s
DBKJIM000017 xhfl Rep xpl 1 People
v. Panizzon, supra,
13 Cal.4th at p. 78.)

Defendant also claims the People’s
opposition to the motion to suppress
is deficient. Deficiencies in the
People’s briefing do not constitute reversible errors. To warrant reversal, the court must make an
erroneous ruling which results in prejudice to the defendant. ( ADDIN BA xc <@cs> xl 44 s
DBKJIM000018 xhfl Rep xpl 1 l ">People v. Alvarez (1996)14
Cal.4th 155, 216" People
v. Alvarez (1996) 14 Cal.4th 155, 216; ADDIN
BA xc <@cs> xl 37 s DBKJIM000019 xhfl Rep xpl 1 l "People v. Watson (1956)46 Cal.2d 818" People v. Watson (1956) 46 Cal.2d 818.) Here, there was no ruling by the court on the
motion to suppress at all. It was the
defendant’s burden to seek and obtain a ruling on the motion to suppress. ( ADDIN BA xc <@cs> xl 57 s
DBKJIM000020 xhfl Rep xpl 1 l ">Anderson v. Superior Court
(1988)206 Cal.App.3d 533, 542" Anderson v. Superior Court (1988) 206 Cal.App.3d 533, 542.)
As there is no ruling for us to review,
we cannot find any prejudicial error.

We have undertaken an href="http://www.fearnotlaw.com/">independent
examination of the entire record and have found no
arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is affirmed.





BLEASE , J.





We concur:





RAYE , P.
J.





BUTZ ,
J.