People v. Garcia CA5

Filed 6/12/23 P. v. Garcia 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F084575 Plaintiff and Respondent, (Tulare Super. Ct. No. PCF356189) v.

FERNANDO GARCIA, OPINION Defendant and Appellant.

THE COURT * APPEAL from a judgment of the Superior Court of Tulare County. Robert Anthony Fultz, Judge. Brad J. Poore, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri, and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

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

Defendant and appellant Fernando Garcia (defendant) contends the court erred in admitting the results of a preliminary alcohol screening (PAS) at his driving under the influence (DUI) trial. We reject defendant’s claim and affirm. BACKGROUND In an information filed June 3, 2021, the Tulare County District Attorney charged defendant with driving under the influence of alcohol (count 1; Veh. Code, § 23152, subd. (a));1 driving while having a 0.08 percent or higher blood-alcohol content (BAC) (count 2; § 23152, subd. (b)); and driving while driving privilege was suspended for a prior DUI conviction (count 3; § 14601.2, subd. (a).) Defendant admitted three prior DUI convictions. A jury found defendant guilty as charged. The court sentenced defendant to two years on count 1 and a stayed (Pen. Code, § 654) term of two years on count 2. No time was imposed on count 3. FACTS On July 23, 2017, defendant walked into a store and asked if “the air machine” worked. Defendant went outside and returned to the store shortly thereafter. He began cursing, acting belligerently, and making threats. A store employee told him to calm down and that the air machine was not theirs. The store employee testified that defendant seemed “disoriented” and “kind of out of it,” and smelled of alcohol. Defendant became violent with the employee and his manager. The police were called. Deputy Hector Hernandez responded to the scene at about 5:30 p.m. When he arrived, defendant was sitting in the driver’s side of a vehicle. Defendant exuded a strong odor of alcohol and was sweating heavily. Hernandez contacted the California Highway Patrol (CHP) to conduct a DUI investigation. Hernandez detained and searched defendant, who had keys in his pocket.