People v. Nevarez CA5

Filed 12/15/15 P. v. Nevarez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F069468 Plaintiff and Respondent, (Fresno Super. Ct. No. 13907323) v.

MANUEL LEON NEVAREZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Don Penner, Judge. Rex A. Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Poochigian, Acting P.J., Franson, J. and Peña, J.

INTRODUCTION Appellant Manuel Leon Nevarez pled no contest to one count of driving while under the influence and causing bodily injury (Veh. Code, § 23153, subd. (b)) and admitted personally causing great bodily injury (Pen. Code, § 12022.7, subd. (a)).1 The plea agreement specified a three year maximum term of imprisonment. The trial court sentenced Nevarez to a total term of three years in prison. Nevarez filed an appeal and requested a certificate of probable cause, which was granted. Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm. FACTUAL AND PROCEDURAL SUMMARY On July 18, 2013, Nevarez was driving his Tacoma pickup truck with a blood- alcohol level of 0.14 percent when he struck a five-year-old boy riding a bicycle, causing multiple pelvic fractures. Nevarez admitted drinking two 30-ounce beers, and one 24- ounce beer prior to driving. Nevarez’s passenger stated she knew Nevarez was “drunk” and had tried to stop him from driving, but he insisted. Witnesses at the scene reported hearing a “loud crash” and seeing Nevarez run over the boy with the right-side wheels of his truck. It appeared to multiple witnesses as though Nevarez was not planning to stop because the truck kept going after impact. One witness jumped forward waving for Nevarez to stop; another witness reached inside and removed the keys from the truck’s ignition. On August 2, 2013, Nevarez was charged with two felony counts. Count 1 charged a violation of Vehicle Code section 23153, subdivision (b); count 2 charged a violation of subdivision (a) of that same code section. It also was alleged that Nevarez personally inflicted great bodily injury within the meaning of section 12022.7,