People v. Callanan CA1/4

Filed 11/22/23 P. v. Callanan CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A167342 v. KIMBERLEY RAE CALLANAN, (Napa County Super. Ct. No. 19CR001389) Defendant and Appellant.

Kimberley Rae Callanan appeals the court’s decision to impose an upper-term sentence of three years for driving under the influence (DUI) with three prior DUI convictions in the past decade (Veh. Code1, §§ 23152, 23550). The court did so based on the nature of her crimes and her admissions that she repeatedly violated the terms of her probation. Callanan’s appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 summarizing the facts and asking this court to independently review the record to identify any issues warranting relief. Callanan exercised her right to file a supplemental brief. In summary, she contends that her lawyer did not adequately argue on her behalf and she asserts that the court should have imposed a lower sentence.

1 Undesignated statutory references are to the Vehicle Code.

1

Finding no arguable issues, we will affirm. Factual and Procedural Background Between 1996 and 2016, Callanan incurred five misdemeanor DUI convictions (§ 23152, subds. (a)–(b)), with the final four violations occurring in 2009 and 2016. She received a five-year term of probation in March 2016 for one such conviction in Napa County, and four years’ probation in November 2016 for another in El Dorado County. In the instant case, Callanan was arrested in April 2019 for driving with a blood alcohol content (BAC) of 0.297, more than three times the legal limit. She was charged with two felonies (DUI with three or more prior DUI violations in the past decade and driving with a 0.08% or higher BAC with three or more such priors) as well as one misdemeanor count of driving while her privilege to drive was suspended for a DUI conviction. (§§ 23152, subds. (a) & (b); 14601.2, subd. (a).) Callanan pled guilty and was placed on a five-year term of probation. The conditions of that probation included immediately notifying the department of any change of address, not using illegal drugs, not drinking alcohol, and completing drug court and a treatment program. In July 2020, a bench warrant issued when Callanan failed to appear in drug court. She remained in warrant status for nearly two years. In April 2022, the department filed a petition alleging a violation of probation, which Callanan admitted. The court revoked her probation, reinstated it, and ordered her to remand herself to the jail on June 28, 2022 to serve 60 days. In July 2022, the department filed another petition to revoke Callanan’s probation, alleging that she had violated its terms in four ways: (1) failing to remand herself; (2) testing positive for alcohol; (3) testing