People v. Vicari CA3 ( 2023 )

Filed 2/15/23 P. v. Vicari 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Amador)
----
THE PEOPLE, C096628
Plaintiff and Respondent, (Super. Ct. No. 20CR29477)
v.
DONALD ANGELO VICARI,
Defendant and Appellant.
Appointed counsel for defendant Donald Angelo Vicari asked this court to
conduct an independent review of the record to determine whether there are any arguable
issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Finding no arguable error
that would result in a disposition more favorable to defendant, we affirm the judgment.
FACTS AND HISTORY OF THE PROCEEDINGS
We provide the following brief description of the facts and procedural history of
the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 123-124.)
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The instant case is one of three cases plus one probation revocation petition
defendant resolved with a plea bargain on April 8, 2022.
In the instant case, the second amended complaint, later deemed an information,
charged defendant with driving under the influence of alcohol and driving while having a
0.08 percent or higher blood-alcohol content. (Veh. Code, § 23152, subds. (a) & (b);
statutory section citations that follow are found in the Vehicle Code unless otherwise
stated.) The information also alleged enhancements as to both counts that defendant had
three prior alcohol related convictions in the prior 10 years and had a blood-alcohol
content in excess of 0.15 percent. (§§ 23550, 23550.5, & 23578.)
Pursuant to a plea agreement, defendant pleaded no contest to driving while
having a 0.08 percent or higher blood-alcohol content, admitted his prior convictions, and
admitted the enhancement for having a blood-alcohol content in excess of 0.15 percent in
exchange for a sentence of 16 months and dismissal of the other count and enhancement.
The factual basis for this plea was defendant drove his car over the reporting party’s tire
in his driveway. When Ione police officers stopped him, he failed his field sobriety tests
and gave one screening device test of a 0.26 percent blood-alcohol content.
Following his plea in the instant case, defendant pleaded no contest in the second
case, case No. 21-CR-31019, to driving under the influence within 10 years of a prior
felony DUI offense in exchange for the dismissal of a charge of resisting, delaying, or
obstructing a peace officer. (Pen. Code, § 148.) The prior felony DUI conviction was the
instant case.
In case No. 21-CR-31020, defendant pleaded no contest to one count of failing to
appear. (Pen. Code, § 1320, subd. (a).)
In case No. 20-CR-29607, defendant admitted he violated several conditions of his
probation.
During the pendency of the instant case, defendant filed an affidavit of
disqualification of one of the judges of the trial court. (Code Civ. Proc., § 170.6.)
2
Without objection, that judge later heard and denied defendant’s request to remove his
attorney under People v. Marsden (1970) 2 Cal.3d 118. The following day, the
disqualified judge filed an order striking that ruling noting the judge was disqualified
from the case. A week later, another judge heard the Marsden motion and after initially
denying it, found there was a breakdown in communication between defendant and his
counsel. As a result, the trial court relieved the public defender and appointed
replacement counsel.
Following his plea, the trial court sentenced defendant in accordance with the plea
agreement to the low term of 16 months and properly confirmed 476 days of credit for
time served. The trial court imposed a $300 restitution fine (Pen. Code, § 1202.4),
imposed and suspended a $300 parole revocation fine (Pen. Code, § 1202.45), and
imposed a court operations assessment of $40 (Pen. Code, § 1465.8) and a conviction
assessment of $30 (Gov. Code, § 70373). The trial court imposed but stayed a DUI fine
of $1,571 and found defendant did not have the ability to reimburse the county for his
defense.
Defendant timely appealed and obtained a certificate of probable cause.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the facts and procedural history of the case and requests this court to
review the record and determine whether there are any arguable issues on appeal.
(People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of his right
to file a supplemental brief within 30 days from the date the opening brief was filed.
More than 30 days have elapsed, and defendant has not filed a supplemental brief.
Having undertaken an examination of the entire record pursuant to Wende, we find no
arguable error that would result in a disposition more favorable to defendant.
Accordingly, we affirm the judgment.
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DISPOSITION
The judgment is affirmed.
HULL, Acting P. J.
We concur:
RENNER, J.
KRAUSE, J.
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