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THE PEOPLE v. EWAN CUNNINGHAM LAFFERTY

November 30, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
EWAN CUNNINGHAM LAFFERTY, DEFENDANT AND APPELLANT.



Appeal from a judgment of the Superior Court of Orange County, James Patrick Marion and Richard W. Stanford, Jr., Judges. Affirmed. (Super. Ct. No.09HF1001)

The opinion of the court was delivered by: Aronson, J.

P. v. Lafferty CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

After a bench trial where defendant represented himself, the court convicted defendant Ewan Cunningham Lafferty of felony driving under the influence (DUI) (Veh. Code, § 23152, subd. (a))*fn1 and driving with a blood alcohol level of .08 percent or more (§ 23152, subd. (b)), with three or more prior convictions (§ 23550).

We appointed counsel to represent defendant on appeal. Counsel filed a brief setting forth a statement of the case. Counsel did not argue against her client, but advised this court she found no issues to support an appeal. We provided defendant 30 days to file his own written argument. That period has passed, and we have received no communication from him. After conducting an independent review of the record under People v. Wende (1979) 25 Cal.3d 436, we conclude there is no basis to reverse the judgment.

An information filed September 4, 2009, charged defendant with the offenses listed above. In late September, defendant waived his right to counsel and elected to represent himself. Defendant filed a litany of pretrial motions, which the court denied. The parties waived the right to a jury, and a bench trial ensued in January 2010.

At the trial, a detective with the Irvine Police Department testified that around 10:15 p.m. on August 8, 2008, he observed defendant operating a minibike in a parking lot adjacent to several Irvine eateries. The minibike had no headlamp or license plate, and defendant was not wearing a helmet.

The officer directed defendant to push the minibike toward him. Defendant walked unsteadily. His eyes were bloodshot and his breath smelled strongly of alcohol. Defendant admitted drinking beer but declined to answer other questions. A nystagmus test indicated defendant was intoxicated. Defendant refused to perform other field sobriety tests. The officer arrested defendant, advised him of the implied consent law and its requirement to submit to a breath or blood test, and notified him that if he did not consent police officers had the legal authority to compel a blood test. Defendant refused to cooperate in selecting a test, so the officer summoned a technician to draw defendant's blood.

A witness at the scene of defendant's arrest claimed defendant ran into his truck and fell off his motorcycle. Defendant yelled at him and demanded the man's insurance information. The witness reported defendant smelled of alcohol and appeared intoxicated. The man drove off and defendant briefly pursued him into the street.

The parties stipulated a trained, licensed medical technician extracted defendant's blood in a medically-approved manner, and complied with applicable regulations. The sample contained .28 percent alcohol. The court received evidence defendant had previously suffered DUI convictions in 2005, 2006, and 2008.

Defendant did not testify. He argued his minibike did not qualify as a vehicle subject to the laws against driving under the influence. The court rejected the argument and found defendant guilty.

On February 5, 2010, the trial court sentenced defendant to the 16-month low term for violation of section 23152, subdivision (a). The court stayed (Pen. Code, ยง 654) a term for violation of section 23152, subdivision (b). The court credited defendant with 205 actual custody days, and awarded him conduct credit of 205 days under the amended version of Penal Code ...


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