People v. Mendoza CA3

Filed 3/17/14 P. v. Mendoza CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C072489

Plaintiff and Respondent, (Super. Ct. No. 12F00251)

v.

BERNARDO MENDOZA,

Defendant and Appellant.

Defendant Bernardo Mendoza pleaded no contest to driving while his privilege was suspended or revoked for having driven under the influence. (Veh. Code, § 14601.2, subd. (a); count three.) A jury found him guilty of driving under the influence of an alcoholic beverage (Veh. Code, § 23152, subd. (a); count one) and driving while having 0.08 percent and more, by weight, of alcohol in his blood (Veh. Code, § 23152, subd. (b); count two). The jury also found true an allegation that defendant drove with a blood- alcohol concentration of 0.15 percent or more. (Veh. Code, § 23578.) Defendant admitted that he had two prior convictions of violation of Vehicle Code section 23152,

1

subdivision (b), and that he had served a prison term for each of them. (Pen. Code, § 667.5, subd. (b).) He was sentenced to prison on count two for the upper term of three years plus two years for the prior convictions. Sentence on count one was stayed pursuant to Penal Code section 654. A concurrent jail term of six months was imposed on count three. On appeal, defendant contends his count one conviction must be reversed because the trial court erroneously admitted, over his objection, his incriminating responses to custodial interrogation that had not been preceded by advisement of his constitutional rights. We affirm. FACTS Prosecution Case-in-Chief On January 2, 2012, about 12:58 a.m., Sacramento County Sheriff’s Deputy Margaret Mickelson was driving a marked patrol car in the vicinity of Madison Avenue and Manzanita Avenue. She saw a blue sport utility vehicle (SUV) traveling eastbound on Madison, and it “appeared to be going slower than the posted speed limit.” Vehicle traffic at the time was “light to none.” As Deputy Mickelson watched, the SUV “swerved across the solid white line on the far right lane into some gravel area, and it kicked up some rocks.” The SUV crossed the solid white line a second time. Deputy Mickelson was in the far right lane going approximately 45 miles per hour, which is the posted speed limit; the SUV was in the same lane traveling approximately 38 or 39 miles per hour. After about a quarter mile to half a mile, Deputy Mickelson activated the patrol car’s sirens and overhead lights in order to initiate a stop of the SUV. She suspected that its driver was under the influence. Deputy Mickelson explained the reasons for her suspicion as follows: “He was driving below the speed limit, which is an indicator that we were taught in the academy. He swerved across the solid white line in the number three lane, kicking up dirt and rocks from the gravel area. In fact, I think he