P. v. Rubio CA5

Filed 4/26/13 P. v. Rubio 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent, F064565

v. (Super. Ct. No. BF138725A)

ERIC MICHAEL RUBIO, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Colette M. Humphrey, Judge. Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Wiseman, Acting P.J., Gomes, J., and Detjen, J.

STATEMENT OF THE CASE On December 20, 2011, appellant, Eric Michael Rubio, was charged in an information with being a convicted felon in possession of ammunition (Pen. Code, § 12316, subd. (b)(1), count 1), misdemeanor driving a vehicle under the influence of alcohol (Veh. Code, § 23152, subd. (a), count 2), and misdemeanor driving with a blood alcohol level of .08 percent or higher (Veh. Code, § 23152, subd. (b), count 3). The information alleged as to counts 2 and 3 that appellant refused a blood alcohol test (Veh. Code, § 23612). It was further alleged that appellant had one prior serious felony conviction within the meaning of the three strikes law (Pen. Code, §§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)). At the conclusion of a hearing on January 27, 2012, to suppress evidence pursuant to Penal Code section 1538.5, the trial court denied appellant‟s motion. On February 3, 2012, appellant entered into a plea bargain and waived his rights pursuant to Boykin/Tahl.1 Appellant pled no contest to the first two counts and admitted the three strikes allegation with the understanding that the trial court would strike it at the sentencing hearing. Under the plea agreement, the court would impose a term of two years on count 1 and a concurrent misdemeanor sentence on count 2. Appellant pled no contest to the first two counts, admitted the prior serious felony conviction allegation, and the remaining allegations were stricken pursuant to the plea agreement. On March 16, 2012, the trial court struck the prior serious felony conviction and sentenced appellant pursuant to Penal Code section 1170, subdivision (h) to a term of two years on count 1 and a concurrent sentence of 90 days on count 2. The court imposed a restitution fine of $240 and granted two days of custody credits. Appellant contends that