People v. LaTorre CA1/3

Filed 10/29/13 P. v. LaTorre CA1/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A138555
v.
GARY STEVEN LATORRE, (Sonoma County
Super. Ct. No. SCR-625896)
Defendant and Appellant.
Gary Steven LaTorre appeals from a judgment and sentence following his guilty
plea to driving under the influence with three prior offenses and his admission of
enhancements due to his prior service in state prison. His court-appointed counsel has
filed a brief seeking our independent review of the record pursuant to People v. Wende
(1979) 25 Cal.3d 436 to determine whether there are any arguable issues on appeal.
LaTorre has also filed a supplemental brief. We conclude there are no issues requiring
further review and affirm.
BACKGROUND
According to the probation officer’s report, LaTorre was arrested in October 2012
after a sheriff’s deputy responded to a citizen report of a drunk driver. The deputy
observed LaTorre initiate a turn without signaling and cross the median line into the
oncoming lane of traffic. He stopped LaTorre and observed signs of intoxication. A
preliminary alcohol screening test indicated LaTorre had a blood alcohol level of .14
percent.
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LaTorre was charged in a two-count complaint. Count one alleged a violation of
Vehicle Code section 23152, subdivision (a)1, for driving under the influence of drugs or
alcohol with prior offenses that occurred within 10 years as specified in sections 23550
and 23550.5. Count two alleged a violation of section 23152, subdivision (b) for driving
a vehicle with a blood alcohol level in excess of .08 percent, again with prior offenses
that occurred within 10 years pursuant to sections 23550 and 23550.5. The complaint
also alleged pursuant to Penal Code section 667.5, subdivision (b) that LaTorre served
two prior terms in state prison.
LaTorre entered his guilty plea to both counts as charged and admitted that the
allegations of his service of two prior terms in state prison were true. He also admitted
all of his prior convictions. LaTorre was specifically advised that he could be sent to
prison as a result of his plea for a maximum of five years. He said he understood.
LaTorre acknowleged that he discussed his rights and his case with his
attorney and that he had an ample opportunity to do so. His written waiver acknowledges
his open plea and exposure to a possible five-year prison sentence. The sentence
imposed on count two was stayed under Penal Code section 654. The court also imposed
applicable fines and fees. LaTorre timely appealed.
DISCUSSION
Based upon our review of the record, we have no reason to question the
sufficiency of the court’s advisements, LaTorre’s waivers or the explanation of the
consequences of his plea. His plea appears to be free, knowing and voluntary. In his
supplemental brief, LaTorre argues that one of his enhancements should be stricken.
According to LaTorre, his service of a term in state prison due to his 2002
conviction for possession of a controlled substance cannot be used to enhance his current
sentence because, “We’re [talking] about a repeat offender for my DUI’s. Nothing more.
1
Unless stated otherwise, all further statutory citations are to the Vehicle Code.
2
It has nothing to do whatsoever with a possession charge 12 years ago!!! It is not only
ridiculous but it’s also unjust.” LaTorre seems to be under the mistaken impression that
his enhancement must be based on conduct related in nature to his current offense. But
Penal Code section 667.5, subdivision (b) provides that the sentence of a defendant who
has not remained free of prison custody or felony conviction for five years may be
enhanced by one year for each prior term that defendant has served in state prison. (Pen.
Code, § 667.5, subd. (b).)
LaTorre’s enhancement because of his conviction for possession of a controlled
substance was due to his prior commitment to prison, not the nature of his prior crime. In
2007, LaTorre was convicted and sent to prison for felony driving under the influence.
He was released from prison on January 6, 2009, within five years of his current
conviction. Thus, LaTorre’s sentence was properly enhanced because he served two
prior terms in state prison, his most recent period of incarceration within five years of his
current conviction.
In the trial court, LaTorre sought to avoid a prison sentence in order to remain in a
substance abuse treatment program. He told the trial judge, “I do not want to minimize
the danger of drinking and driving by no means. I know it’s very serious. Even though I
went 20 something years with no drugs or alcohol related incidents, it’s no excuse for my
behavior for the past 10 years. I have hurt so many people . . . .” Yet, before this court,
he characterizes his prior offenses as “nothing more than a mockery of the justice
system,” implying that he has been unfairly treated because, apparently, there was no
evidence showing he was a danger to anyone in each of his prior substance-related
arrests. This is LaTorre’s sixth offense related to driving under the influence. His
criminal substance abuse history goes back more than twenty years. He has twice before
been sent to prison.
The enhancements were proper, and we see no reason for the court to have
exercised its discretion to strike them. As we said above, LaTorre’s claim that he was
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unaware of the possible effect of the sentence enhancements is not supported by the
record.
There was no error. Full review of the record reveals no issue that requires further
briefing.
DISPOSITION
The judgment is affirmed.
_________________________
Siggins, J.
We concur:
_________________________
McGuiness, P.J.
_________________________
Pollak, J.
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