People v. Moore CA1/1

Filed 11/26/13 P. v. Moore CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, Plaintiff and Respondent, A138755 v. (Napa County FINITO MURICE MOORE, Super. Ct. No.CR163702) Defendant and Appellant.

This is an appeal following pleas of no contest. Appellate counsel has reviewed the file in this case and has determined there are no meritorious issues to raise on appeal. She has complied with the relevant case authorities, indicating People v. Wende (1979) 25 Cal.3d 436 and its progeny apply here. She has also notified defendant of his right to file a supplemental brief. Defendant has filed a two-page letter brief indicating his concern about the failure of his previous trial counsel and the court to advise him about the strike consequences, collateral in nature, of his no contest plea to a felony violation of Penal Code section 422 in 2007. Upon independent review of the record, we conclude that no arguable issues are presented for review and affirm the judgment. STATEMENT OF FACTS On October 31, 2012, the Napa County District Attorney filed in the superior court a complaint charging Finito Murice Moore with driving under the influence and driving with a suspended license. (Veh. Code, §§ 23152, subds. (a) & (b), 14601.2, subd. (a).) Sentence enhancements under Vehicle Code sections 23550 and 23550.5 were also alleged, as well as a prior strike allegation pursuant to Penal Code section 667,

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subdivisions (b)–(i). On November 8, 2012, Moore turned himself in to the police. On November 14, 2012, Moore pleaded not guilty to all counts and denied the allegations, and was remanded into custody, with bail set at $100,000. A preliminary hearing was held on November 28, 2012 and when completed, Moore was held to answer on the charges in the complaint. An information was filed alleging the same offenses and allegations in the complaint. At a readiness conference on January 30, 2013, Moore pled no contest to one count of driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)), admitted three prior convictions for driving under the influence, and admitted a prior strike allegation. Counts two and three of the information and all remaining allegations were dismissed by the prosecutor. On April 23, 2013, Moore filed a motion seeking an evidentiary hearing to determine if a strike based on an April 7, 2007 plea to Penal Code section 422 (terrorist threats) was constitutional. (People v. Coffey (1967) 67 Cal.2d 204 (Coffey).) Moore maintained his prior plea was not a knowing and intelligible waiver of rights since he did not understand at the time the offense could be a future strike. On May 7, 2013, the trial court held the hearing and denied Moore’s application. At the end of the hearing, the court sentenced Moore to a term of imprisonment for 16 months, which it then doubled to 32 months based on the strike enhancement. The court also imposed a restitution fine of $280 and a DUI fine of $4,134. On May 22, 2013, Moore filed a notice of appeal. STATEMENT OF FACTS On October 5, 2012, Moore was stopped for running a red light at SR-29 and American Canyon Road. The officer noticed when he spoke with Moore that defendant had an odor of alcohol on his breath. Observed by the officer in the cup holder next to Moore was a can of beer. Defendant acknowledged he had been drinking since 9:00 a.m. Based on the officer’s professional experience and training, he suspected Moore was operating his vehicle under the influence of alcohol. He asked defendant to take the field sobriety test wherein Moore performed poorly. The preliminary alcohol screening tests administered to Moore resulted in a blood-alcohol content of 0.247 and 0.249 percent.