P. v. Lolmaugh CA3

Filed 4/2/13 P. v. Lolmaugh CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C071000

Plaintiff and Respondent, (Super. Ct. No. 62104496)

v.

DANA TROY LOLMAUGH,

Defendant and Appellant.

Defendant Dana Troy Lolmaugh pled guilty to driving with a blood-alcohol level of 0.08 percent or higher and admitted he had five prior convictions for driving under the influence, two of which were felonies. (Veh. Code, §§ 23152, subd. (b), 23550.5.) 1 He also admitted he had served a prior prison term (Pen. Code, § 667.5, subd. (b)). Pursuant to the stipulated disposition, he was sentenced to a term of three years in state prison. Defendant’s ensuing appeal is subject to the principles of People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Kelly (2006) 40 Cal.4th 106, 110. In accordance

1 Further undesignated statutory references are to the Vehicle Code.

1

with the latter, we will provide a summary of the offenses and the proceedings in the trial court. In February 2011, defendant was driving with a blood-alcohol level of 0.13 percent. At the time, he had sustained five prior convictions for driving under the influence and had a prior felony conviction for which he served time in prison. Defendant was charged with driving under the influence of alcohol (§ 23152, subd. (a)), driving with a blood-alcohol level of 0.08 percent or higher (§ 23152, subd. (b)) and a misdemeanor count of driving with a suspended license (§ 14601.2, subd. (a)). It was also alleged as to both felony counts that defendant had five prior convictions within the past 10 years for driving under the influence (§ 23550), had sustained two prior felony convictions for driving under the influence within the last 10 years (§ 23550.5), and had a prior felony conviction for which he served a prison term (Pen. Code, § 667.5). Defendant filed a motion to suppress. (Pen. Code, § 1538.5.) The People opposed the motion. In their response, the People alleged California Highway Patrol Officer Don Scholl saw defendant driving at approximately 78 to 80 miles per hour in a 55 miles-per-hour zone and stopped him for speeding. Defendant exhibited signs of intoxication and admitted to the officer he had had too much to drink. Based on his reasonable suspicion that defendant was intoxicated, Officer Scholl conducted field sobriety tests which further indicated defendant was under the influence. Defendant also admitted his driver’s license was suspended as a result of prior convictions for driving under the influence. Defendant was arrested based on the results of the field sobriety test and his admissions. The motion to suppress was not heard and the court did not issue a ruling on it. Defendant pleaded guilty to driving with a blood-alcohol level of 0.08 percent or higher, admitted five prior driving under the influence convictions and one prior prison term. As part of the plea he agreed to a stipulated sentence of three years and was