People v. Martin CA3

Filed 10/31/14 P. v. Martin CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (El Dorado) ----

THE PEOPLE, C074597

Plaintiff and Respondent, (Super. Ct. Nos. P12CRF0186, P12CRF0186A) v.

JAMES PRESTON MARTIN,

Defendant and Appellant.

A jury found defendant James Preston Martin guilty of various charges related to driving while under the influence of alcohol (counts 1 through 4) and one charge of driving on a suspended license (count 5). In a bifurcated proceeding, the trial court found true an on-bail allegation and four of five prior prison term allegations. The court denied probation and sentenced defendant to nine years eight months in state prison, plus one year in county jail (for count 5) with credit for time served.

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On appeal, defendant contends the sentence for count 5 violates Penal Code section 654 (unless otherwise set forth, statutory references that follow are to the Penal Code). Defendant further contends the abstract of judgment requires correction with respect to the enhancements imposed. The People concede both errors. We accept the People’s concession and modify the judgment accordingly.

FACTS AND PROCEEDINGS

The following is a summary of events occurring on January 24, 2012, and August 3, 2012, culminating in charges that were consolidated for purposes of trial.

1. January 24, 2012

On the evening of January 24, 2012, while at a gas station in Georgetown, Max and Gail Archer observed defendant as he pumped gas into his white Ford Explorer and then attempted to find his missing keys. The Archers called 911 because defendant was mumbling, acting “erratic,” and staggering a bit, and appeared to be intoxicated. According to Jim Miller, the owner of the gas station, defendant seemed “a little shaky,” had “slurred speech,” and smelled of alcohol. El Dorado County Deputy Sheriff Eddie Freas was sent to the gas station and arrived at approximately 7:30 p.m. He spoke with defendant, who had bloodshot, watery eyes and slurred speech and was “extremely unsteady on his feet,” nearly losing his balance and falling as he walked outside of the station to talk with Freas. California Highway Patrol Officer Kevin Bliss arrived at the gas station at approximately 8:15 p.m. He noticed defendant had red, watery eyes and a strong odor of alcohol on his breath, and was unstable on his feet. Defendant attempted to perform several field sobriety tests properly but was unsuccessful. Portable breath alcohol tests conducted at the gas station indicated defendant’s blood-alcohol content was .204 percent at 8:34 p.m., and .214 percent at 8:35 p.m.