The People v. Morales CA3

Filed 9/5/13 P. v. Morales CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C072542

Plaintiff and Respondent, (Super. Ct. Nos. 09F9118 & 10F5508) v.

JOHN LEE MORALES,

Defendant and Appellant.

This appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436. By a complaint deemed an information, defendant John Lee Morales was charged in case No. 09F9118 with driving under the influence (DUI) of an alcoholic beverage and a drug with prior convictions in 2001, 2004, and 2007 (count 1; Veh. Code, §§ 23152, subd. (a), 23550, subd. (a)); DUI with a blood-alcohol content greater than 0.08 percent with prior convictions (count 2; Veh. Code, §§ 23152, subd. (b), 23550, subd. (a)); driving with a driver’s license that had been suspended for a prior DUI conviction (count 3; Veh. Code, § 14601.2, subd. (a)); and operating a vehicle without a functioning interlock device (count 4; Veh. Code, § 23247, subd. (e)). As to counts 1 and 2, defendant was alleged to have had a blood-alcohol content of 0.15 percent or higher

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(Veh. Code, § 23578). All offenses were alleged to have occurred on or about November 3, 2009. In case No. 10F5508, defendant was charged with two counts of felony child abuse alleged to have occurred on or about July 18, 2010 (counts 1 & 2; Pen. Code, § 273a, subd. (a)),1 with various enhancements. On June 3, 2011, in case No. 09F9118, defendant pled guilty to count 2 and admitted the prior convictions in return for a 16-month state prison lid if he received no prison term in case No. 10F5508, or eight months (one-third the midterm) consecutive to any prison term that might be imposed in that case. On October 5, 2012, in case No. 10F5508, defendant pled no contest to both counts of child abuse, in exchange for the dismissal of the alleged enhancements and a stipulated total prison term of six years for both cases. Defendant waived referral to the probation department for a presentence report. The stipulated factual basis for the plea in case No. 09F9118 was a California Highway Patrol (CHP) report. The stipulated factual basis for the plea in case No. 10F5508 was a Shasta County Sheriff’s Department report. Neither report, however, is in the appellate record. We take the facts in case No. 09F9118 from the preliminary hearing, and the facts in case No. 10F5508 from other matters in the record. At the preliminary hearing in case No. 09F9118, CHP Officer Donald Guy testified that he was dispatched to a location on the shore of Shasta Lake in response to a report from a United States forest ranger about a potential DUI. Defendant’s breath smelled of alcohol, his eyes were bloodshot and watery, and his speech was thick. In field sobriety tests, defendant exhibited nystagmus, and a preliminary alcohol screening