People v. Myers CA1/2

Filed 10/22/13 P. v. Myers CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A138632 v. GARY ARLAND MYERS, (Sonoma County Super. Ct. Defendant and Appellant. No. SCR625971)

Defendant Gary Arland Myers pleaded guilty to felony driving with 0.08 percent or more alcohol in his blood (Veh. Code, § 23152, subd. (b)), to a misdemeanor driving on a suspended license (Veh. Code., § 14601.2, subd. (a)), and to various enhancements. The court denied defendant’s request for probation and sentenced him to the aggravated term of four years in state prison. Defendant appealed and his appellate counsel raises no issues and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436 (Wende). In accordance with Wende, defendant was informed of his right to file a supplemental brief, which he has not done. As the appeal is based solely on grounds occurring after entry of the plea, it is authorized by California Rules of Court, rule 8.304(b)(4)(B). Upon independent review of the record, we conclude no arguable issues are presented for review and affirm.

1

BACKGROUND During the evening of November 12, 2012, an officer stopped a white Volvo after the officer noticed that the car was crossing over the solid double yellow center lines on the road.1 The driver told the officer, “I have a warrant and you got me for [driving under the influence (DUI)] and all the rest.” Dispatch confirmed that the driver’s license for defendant had been revoked and that he had two active warrants related to traffic matters. When defendant left the vehicle, the officer noted the odor of alcohol coming from defendant’s breath. The officer also noticed that defendant’s speech was slurred and his eyes were red and watery. Defendant was arrested and submitted to a breath test that registered 0.17 percent and 0.18 percent blood alcohol concentration. On November 14, 2012, a complaint was filed charging defendant in count one of felony driving under the influence (Veh. Code, § 23152, subd. (a)), with allegations that he had suffered two prior convictions within the meaning of Vehicle Code sections 23550 and 23550.5. In count two, defendant was charged with felony driving while having 0.08 percent of alcohol in the blood (Veh. Code, § 23152, subd. (b)), with the same prior convictions. Defendant was charged in count three with misdemeanor driving with a suspended license (Veh. Code, § 14601.2, subd. (a)), with two prior offenses and one prior prison term within the meaning of Penal Code section 667.5, subdivision (b). At the hearing on December 14, 2012, defendant agreed that he wanted to resolve his case by admitting counts two and three, which would expose him to a maximum of four years in the state prison. Defendant waived his right to a preliminary hearing and his rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238 (Boykin) and In re Tahl (1969) 1 Cal.3d 122 (Tahl). The People moved to amend to allege a blood alcohol content that exceeded 0.15 percent (Veh. Code, § 23578). As to count two, defendant pled guilty to violating Vehicle Code section 23152, subdivision (b), and admitted two priors and the section 23578 of the Vehicle Code enhancement. Defendant also pled guilty to violating Vehicle Code section 14601.2, subdivision (a), and admitted two prior convictions.