People v. Barroso CA4/1

California Court of Appeal Jan 24, 2023 No. D080292Unpublished

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Holding. The court held that the trial court properly imposed the upper term sentence based on the defendant's admission of multiple prior felony DUI convictions, which exceeded the minimum required to elevate the current offense to a felony. The court further held that the restitution fine was authorized by law and that clerical errors in the sentencing minute order and abstract of judgment required correction.

Issues

Whether the trial court violated Penal Code section 1170, subdivision (b) by using a prior felony DUI conviction as an aggravating factor to impose the upper term.
Whether the trial court engaged in an improper dual use of facts by using a prior felony DUI conviction to both elevate the current offense and aggravate the sentence.
Whether the trial court failed to consider mitigating evidence regarding the defendant's childhood trauma.
Whether the $2,700 restitution fine was unauthorized and subject to challenge for the first time on appeal.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“Because Barroso admitted the two prior felony DUI convictions, it was proper for the trial court to consider them under Penal Code section 1170, subdivision (b)(2).”

“When the facts “exceed the minimum necessary to establish the elements of the crime, a trial court can use such evidence to aggravate the sentence.””

“Because the $2,700 fine imposed by the trial court is within the range authorized by law, and the court was not required to use the discretionary formula, it is not an unauthorized sentence”

Filed 1/24/23 P. v. Barroso CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D080292

Plaintiff and Respondent,

v. (Super. Ct. No. SCD291537)

OMAR LOPEZ BARROSO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Daniel B. Goldstein, Judge. Affirmed. Christine M. Aros, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel Rogers and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent. Omar Barroso appeals from a sentence imposed after he pled guilty to driving under the influence (DUI) (Veh. Code, § 23152, subd. (a)), driving with a blood alcohol content of 0.08 percent or more (Veh. Code, § 23152,

subd. (b)), and driving while his license was suspended for a prior DUI conviction (Veh. Code, § 14601.2, subd. (a)), and further admitted that he had a blood alcohol content of 0.15 percent or more (Veh. Code, § 23578) and had been convicted of two other felony DUIs within the previous 10 years (Veh. Code, §§ 23626, 23550.5, subd. (a)). We affirm the judgment, but direct that the sentencing minute order and abstract of judgment be amended to correct clerical errors. FACTUAL AND PROCEDURAL BACKGROUND A. The Current Offense On the night of August 13, 2021, San Diego police officers saw Barroso drive a vehicle through a controlled intersection without stopping. They initiated a traffic stop. Barroso had blood-shot eyes, he was slurring his speech, and smelled of alcohol. There were several open containers of beer on the passenger side of the vehicle. At the scene, he failed a gaze nystagmus test. A records check revealed that Barroso was driving on a suspended license, he had multiple prior DUI convictions, and he had an active felony warrant. The police arrested him and took him to headquarters for a blood test. The results showed that he had a blood alcohol content of 0.176 percent. B. Trial Court Proceedings Barroso was charged with three counts: (1) driving under the influence (DUI) (Veh. Code, § 23152, subd. (a)); (2) driving with a blood alcohol content of 0.08 percent or more (Veh. Code, § 23152, subd. (b)); and (3) driving while his license was suspended for a prior DUI conviction (Veh. Code, § 14601.2, subd. (a)). Counts one and two further alleged that Barroso had a blood alcohol content of 0.15 percent or more (Veh. Code, § 23578) and had been convicted of a felony DUI within the previous 10 years. (Veh. Code, §§ 23626, 23550.5, subd. (a).) The information alleged two qualifying prior felony DUI

People v. Barroso CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D080292

OMAR LOPEZ BARROSO,

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