People v. Mitchell CA3 ( 2023 )

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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)
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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
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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
1 Undesignated statutory references are to the Vehicle Code.
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passenger window and put the car in park. Given how they had found the car, and
defendant’s slow response to questions, the firefighters contacted the CHP; officers
responded to conduct a DUI investigation. Defendant admitted drinking three beers and
driving. The CHP officer observed defendant’s slurred speech; red, watery eyes; and
other indicia of intoxication during field sobriety tests. Defendant’s two PAS test results
were 0.23 and 0.25 percent. The officer concluded defendant was impaired and arrested
him. Chemical breath tests performed at the station showed defendant’s BAC was 0.22
percent.
The jury found defendant guilty of counts one through four and found true the
blood-alcohol enhancements but found not true the speeding enhancements. At a
bifurcated court trial, the trial court found the prior conviction allegations and
aggravating sentencing factor allegations true.
The trial court sentenced defendant to an aggregate prison term of two years eight
months with credit for 211 actual days plus 210 conduct days for 421 total days of
custody credit. The court also ordered defendant pay all mandatory fines and fees at the
statutory minimum and waived the remaining nonmandatory fines and fees. Defendant
timely appealed.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the facts of the case and requests this court to review the record and
determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d
436.) Defendant was advised by counsel of the right to file a supplemental brief within
30 days of the date of filing of the opening brief. More than 30 days elapsed, and we
received no communication from defendant. Having reviewed the record, we find no
arguable error that would result in a disposition more favorable to defendant.
Accordingly, we will affirm.
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DISPOSITION
The judgment is affirmed.
/s/
Duarte, J.
We concur:
/s/
Robie, Acting P. J.
/s/
Boulware Eurie, J.
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