P. v. Smith
Filed 9/23/13 P. v. Smith 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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
(Shasta)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
DELBERT GLENN SMITH,
Defendant and Appellant.
C073414
(Super. Ct. No. 12F6464)
This case
comes to us pursuant to
Wende (1979) 25 Cal.3d 436 (Wende),
which requires that we review the entire record to determine whether there are
any arguable issues which might result in a more favorable outcome for
defendant.
Defendant
Delbert Glenn Smith pleaded no contest to driving with a blood-alcohol level of
0.08 percent or greater with three prior convictions for the same offense (Veh.
Code, §§ 23152, subd. (b), 23550 (count 2)). He also admitted a prior strike conviction
(Pen. Code, § 1170.12) and the service of two prior prison terms (Pen.
Code, § 667.5, subd. (b)). In
exchange for his plea and admissions, defendant was promised no more than eight
years in state prison, the dismissal of other counts and the dismissal of
another allegation of having served a prior prison term.
Following
the denial of defendant’s request for the court to strike his prior strike
conviction, the court sentenced defendant to six years in state prison,
consisting of the midterm of two years for the driving offense, doubled to four
years because of the strike, plus one year for each of the prior conviction
prison terms. The court awarded
defendant 124 days of presentence custody (62 actual, 62 conduct) and imposed
fines and fees as set forth in the abstract of judgment.
Factual Basis for Plea and
Admissions
At
approximately 2:30 a.m. on September 6, 2012, California
Highway Patrol Officer S. Montgomery stopped the vehicle defendant was driving
for a traffic infraction. The defendant
exhibited symptoms of being under the influence of alcohol, to wit, odor of
alcohol, red/watery eyes, and slurred speech.
The officer concluded defendant was under the influence of alcohol.
Defendant
stipulated that the three prior conviction allegations forming the basis for
the Vehicle Code section 23550 allegation could be taken from the case numbers
charged in the information.
Specifically, Shasta County
case Nos. 0501136 (Veh. Code, § 23152, subd. (b)), 0904853 (Veh. Code,
§ 23152, subd, (b)), and 1009049 (Veh. Code, § 23152). The prior strike conviction occurred on February 14, 2000, and was for
making criminal threats (Pen. Code, § 422). The two prior prison term enhancements
occurred on March 3, 2011, for violation of Penal Code section 69
(resisting an executive officer), and on December 26, 2007, for violation
of Penal Code section 273.5, subdivision (a) (spousal abuse).
Discussion
We
appointed counsel to represent
defendant on appeal. Counsel filed an opening brief that sets forth the facts of
the case and requests that this court review the record and determine whether
it reflects any arguable issues on
appeal. (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. More than 30 days have elapsed, and we have
received no communication from defendant.
We have reviewed the record in its entirety and find no error that might
result in a disposition more favorable to defendant.
Disposition
The
judgment is affirmed.
HULL ,
Acting P. J.
We concur:
MAURO ,
J.
MURRAY , J.
