People v. Mitchell CA3

Filed 12/13/23 P. v. Mitchell CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C098078

Plaintiff and Respondent, (Super. Ct. No. 22FE009816)

v.

ZANTONIO MITCHELL,

Defendant and Appellant.

This appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having reviewed the record as required by Wende, we find no arguable error that would result in a disposition more favorable to defendant. Accordingly, we affirm. BACKGROUND We provide the following brief description of the facts and procedural history of the case. An amended consolidated information filed on January 17, 2023, alleged

1

defendant violated the law by: driving under the influence (DUI) of alcohol (Veh. Code, § 23152, subd. (a); counts one & three);1 driving with a blood-alcohol content (BAC) of 0.08 percent or higher (§ 23152, subd. (b); counts two & four); and driving on a suspended license due to DUI (§ 14601.2, subd. (a); counts five & six). The information further alleged as to counts one through four that defendant had suffered three prior convictions. (§ 23550.5.) It was also alleged defendant was speeding (§ 23582, subd. (a)) during the commission of counts one and two and had a BAC of 0.15 percent or more (§ 23578) and a BAC of 0.20 percent of more (§ 23538, subd. (b)(2)) for counts three and four. Prior to selecting the members of the jury, defendant entered no contest pleas to misdemeanor violations of counts five and six. At trial, the People presented evidence that in April 2022 a California Highway Patrol (CHP) officer observed defendant going over 100 miles per hour and pulled him over for speeding on Highway 50. A DUI investigation ensued. Defendant admitted consuming three shots of liquor and that he was trying to quit drinking. Three preliminary alcohol screening (PAS) tests reflected defendant’s blood-alcohol level ranged between 0.151 and 0.155 percent. Other field sobriety tests also suggested defendant was under the influence of alcohol and over the legal limit to drive. A chemical breath test administered after defendant’s arrest showed defendant’s BAC ranged between 0.12 and 0.13 percent. At approximately 8:30 p.m. in May 2022, the fire department responded to a 911 call regarding a nonresponsive person in a vehicle. Defendant was asleep or unconscious in a running car parked overlapping the sidewalk. One firefighter reached through the open driver’s window and turned off the car; another firefighter reached through an open