People v. Ramirez CA5

Filed 3/14/16 P. v. Ramirez CA5
Received for posting 3/15/16
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F070626
Plaintiff and Respondent,
(Super. Ct. No. F14909833)
v.
SAMUEL ENRIQUE RAMIREZ, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Alan M.
Simpson and Ralph Nunez,† Judges.
William D. Farber, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the State Attorney General, Sacramento, California for Plaintiff and
Respondent.
-ooOoo-
*Before Detjen, Acting P.J., Franson, J. and Peña, J.
†Retired Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
PROCEDURAL AND FACTUAL SUMMARY
On October 21, 2014, defendant Samuel Enrique Ramirez was charged in a felony
complaint with driving with a blood-alcohol level of 0.08 percent or higher (Veh. Code,
§ 23152, subd. (b), count 1), driving under the influence of alcohol (§ 23152, subd. (a),
count 2), and driving with a suspended driver’s license (§ 14601.2, subd. (a), count 3).
The complaint further alleged defendant had three prior convictions for drunk driving
within the previous 10 years within the meaning of section 23550.
On October 27, 2014, defendant entered into a plea agreement. Defendant
initialed and executed a felony advisement, waiver of rights, and plea form setting forth
that he would admit the three prior drunk driving convictions and plead no contest to
count 1 of the complaint in exchange for a lid of two years on his sentence and the
dismissal of counts 2 and 3. In the form, defendant acknowledged and waived his
constitutional rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl
(1969) 1 Cal.3d 122 (Boykin/Tahl). Defendant further acknowledged the consequences
of his plea, including the penal consequences of admitting his prior drunk driving
convictions, and stipulated to a factual basis for the plea. Defendant and his counsel
acknowledged that counsel reviewed defendant’s rights with him and discussed all of the
consequences of defendant’s plea.
Prior to taking defendant’s change of plea, defendant told the trial court he
initialed and signed the plea form, understood it, and understood he was waiving certain
constitutional rights. Defendant acknowledged to the court he had discussed the plea
bargain and the consequences of changing his plea with his attorney. The court advised
defendant of his Boykin/Tahl rights. Defendant acknowledged he understood and was
waving those rights. Defendant pled no contest to count 1 and admitted three prior drunk
driving convictions within the previous 10 years.
On December 1, 2014, the trial court sentenced defendant to the midterm of two
years pursuant to the plea agreement. The court ordered a split sentence of 16 months in
2.
custody and eight months under supervised release. The court awarded credits of 44 days
for time served, conduct credits of 44 days, and total custody credits of 88 days. The
court further imposed various fines and fees. Defendant did not obtain a certificate of
probable cause.
Appellate counsel has filed a brief seeking independent review of the case by this
court pursuant to People v. Wende (1979) 25 Cal.3d 436.
FACTS
At 7:08 p.m. on October 19, 2014, a Fresno Police Department officer observed
the driver of a silver Chevrolet truck making several unsafe lane changes resulting in
other drivers having to quickly apply their brakes to avoid collision. Defendant was
immediately stopped. While speaking to defendant, the officer detected the strong odor
of alcohol from defendant’s breath and he was driving with a suspended license.
Defendant failed several field sobriety tests, and a breathalyzer test indicated defendant’s
blood alcohol level was 0.117 percent. Defendant had drunk driving convictions in April
2006, February 2009, and September 2013.
APPELLATE COURT REVIEW
Defendant’s appointed appellate counsel has filed an opening brief summarizing
the pertinent facts, raising no issues, and requesting this court to review the record
independently. (People v. Wende, supra, 25 Cal.3d 436.) The opening brief also
includes the declaration of appellate counsel indicating defendant was advised he could
file his own brief with this court. By letter on March 17, 2015, we invited defendant to
submit additional briefing. To date, he has not done so.
After independent review of the record, we have concluded there are no
reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.
3.