P. v. Rodriguez
Filed 12/5/12 P. v. Rodriguez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
HECTOR MANUEL
RODRIGUEZ,
Defendant and Appellant.
E056323
(Super.Ct.No. FVI1102351)
OPINION
APPEAL
from the Superior Court of
Bernardino County.
Lorenzo R. Balderrama, Judge.
Affirmed.
Richard
Jay Moller, under appointment by the Court of Appeal, for Defendant and
Appellant.
No
appearance for Plaintiff and Respondent.
INTRODUCTION
On
February 14, 2012, an information charged defendant and appellant Hector Manuel
Rodriguez with driving under the influence under Vehicle Code section 23152,
subdivision (a) (count 1); and driving while having 0.08 percent or more of
alcohol in the blood under Vehicle Code section 23152, subdivision (b) (count
2). The information also alleged that
defendant had suffered a prior conviction under Vehicle Code sections 23550 and
23550.5. The information further alleged
that (1) defendant had suffered two prison priors under Penal Code section
667.5, subdivision (b); and (2) a strike prior under Penal Code sections 667,
subdivisions (b) through (i), and 1170.12, subdivisions (a) through (d).
On
February 21, 2012, defendant filed a demurrer to the information. He contended that the out-of-state prior
failed to meet the requirements under Vehicle Code sections 23550 or
23550.5. On March 8, 2012, defendant filed a motion to dismiss under
Penal Code section 995, arguing, among other things, that the out-of-state
prior failed to meet the requirements of Vehicle Code sections 23550 or
23550.5. On March 14, 2012, the prosecutor filed oppositions to both
motions. On March 16, 2012, the court denied both motions.
Thereafter,
on March 23, 2012, defendant pled guilty to driving under the influence and
admitted the strike prior, in exchange for a four-year (midterm of two years,
doubled) prison term.
On
May 5, 2012,
the trial court sentenced defendant to the agreed-upon term of four years.
court imposed a $240 restitution fine under Penal Code section 1202.4; a $240
parole revocation fine, stayed pending successful completion of parole, under
Penal Code section 1202.45; and a court security fee under Penal Code section
1465.8, subdivision (a)(1) and a criminal assessment fine under Government Code
section 70373, totaling $70. The court
then awarded defendant 215 actual days and 215 days of conduct credit, for a
total of 430 days.
On
May 23, 2012,
defendant filed a timely notice of appeal
based on the sentence or other matters that occurred after the plea, and
seeking review of the denial of his Penal Code section 995 motion to dismiss
the enhancement under Vehicle Code section 23550.5, subdivision (b). The trial court granted a
STATEMENT OF FACTS
On
October 9, 2011,
about 9:56 p.m.,
Officer Scott LaFond found defendant passed out in his truck, which was running
and stopped at the curb of a drive-thru Mexican restaurant in Hesperia. Defendant said that he had been drinking at a
strip club, which was about four or five miles away. Officer LaFond believed that defendant was
under the influence. A blood test
revealed an alcohol level of 0.267.
Based
on a Kansas plea agreement and convictions for second degree murder and hit and
run involving the same victim, and a DUI, all on the same day, the trial court
found that defendant had been convicted on an equivalent of Penal Code section
191.5, vehicular manslaughter.
ANALYSIS
After defendant appealed, and
upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority
of People
v. Wende (1979) 25 Cal.3d 436 and Anders
v. California (1967) 386 U.S. 738 setting forth a statement of the case, a
summary of the facts, but no potential arguable issues, and requesting this
court to undertake a review of the entire record.
We
offered defendant an opportunity to file a personal
supplemental brief, but he has not done so.
Pursuant to the mandate of People
v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of
the record and find no potential issues were raised.
DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
MCKINSTER
Acting P. J.
We concur:
KING
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] Although the court minutes and abstract of
judgment indicate that the court sentenced defendant to the low term of four
years, the reporter’s transcript accurately states that defendant was sentenced
“to the mitigated term of two years . . . doubled by the admission of
the prior strike for a total of four years[,]†pursuant to the terms of the
plea agreement.
name="_ftn2" title=""> [2] The facts are taken from the transcript of the
preliminary hearing, which formed the factual basis for the plea.
