People v. Webb CA3

Filed 6/28/16 P. v. Webb CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Placer) ----

THE PEOPLE, C079892

Plaintiff and Respondent, (Super. Ct. No. 62133775)

v.

TANNER NICOLAS WEBB,

Defendant and Appellant.

Defendant Tanner Nicolas Webb pled guilty to various charges related to driving while under the influence of alcohol with prior violations. Defendant contends the trial court erred in imposing the upper term because it considered improper aggravating factors and disregarded mitigating factors. He also contends he received ineffective assistance of counsel when his attorney failed to object to the trial court’s imposition of the upper term. We affirm.

1

FACTUAL AND PROCEDURAL BACKGROUND In September 2014, police stopped defendant for various violations, including expired registration, stopping beyond the limit line, and failure to use a turn signal. Defendant was also driving under the influence of alcohol, with a blood-alcohol level of 0.18 percent. Defendant had only in August 2014 completed his postrelease community supervision for a prior 2012 conviction for driving under the influence of alcohol and causing bodily injury to another person. In March 2015, defendant pled guilty to driving under the influence (DUI) of alcohol with a prior DUI felony, driving while having a blood-alcohol level of 0.08 percent or higher with a prior DUI felony, and driving when his privileges were suspended for a prior DUI conviction. With respect to the first two charges, defendant admitted a prior DUI felony within the last 10 years, a prior prison term, and having a blood-alcohol content of 0.15 percent or higher. Defendant also admitted three prior DUI convictions. The trial court sentenced defendant to an aggregate term of four years’ imprisonment. The trial court imposed the upper term on the charge of driving under the influence with a prior DUI felony because it found no mitigating factors and because defendant had served a prior prison term and his prior record reflected numerous misdemeanor convictions increasing in frequency and seriousness. In addition, this was defendant’s fourth DUI conviction since 2005, committed just one month after he completed postrelease supervision. The court commented, “[t]he safety of this community is thus required by this Court.” Defendant appeals. DISCUSSION I Use Of The Prior Prison Term As An Aggravating Factor Defendant contends the trial court erred in imposing the upper term. According to defendant, it was error to consider his prior prison term as an aggravating factor, since