The opinion of the court was delivered by: Butz , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Peter Joseph Farrell was convicted by jury of felony driving under the influence of alcohol or drugs with a prior conviction for vehicular manslaughter while intoxicated. In a bench trial, the court found defendant's prior conviction for vehicular manslaughter constituted a strike offense. The trial court sentenced defendant to state prison for six years.
Defendant's ensuing appeal is subject to the principles of People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Kelly (2006) 40 Cal.4th 106, 110. In accordance with the latter, we will provide a summary of the offenses and the proceedings in the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
On July 11, 2009, California Highway Patrol (CHP) Officer Greg Moser conducted a traffic stop of a car driven by defendant for driving 20 to 25 miles per hour in a 55-mile-per-hour zone and weaving onto the right shoulder. Officer Moser noticed that defendant had red, watery eyes and slurred speech, and there was a strong odor of alcohol emanating from the car. He also noticed defendant had some dried blood on his forehead, face, and clothing. Defendant said he had been in a fight earlier with a security guard at Thunder Valley Casino. He initially denied that he had been drinking, but later admitted having had one beer.
CHP Officer Michael Terry arrived on scene to assist Officer Moser. Defendant told Officer Terry he had been in a fight with someone named Golding over some money that was owed him, and admitted having had one beer an hour earlier. At Officer Terry's request, defendant got out of the car and walked towards the sidewalk, "sway[ing] a little bit" as he walked. Officer Terry conducted several field sobriety tests and tested defendant's blood alcohol using a Preliminary Alcohol Screening (PAS) device. Defendant blew into the PAS device three times, resulting in two readable samples, 0.23 percent and 0.21 percent. Defendant was arrested for driving under the influence and driving with a blood-alcohol content of 0.08 percent or more. He was transported to county jail, where he was given the choice of submitting to either a blood test or a breath test. He refused both. A nonconsensual blood sample was taken which showed defendant had a blood-alcohol level of 0.22 percent.
By a felony complaint deemed to be the operative information, defendant was charged with felony driving under the influence of alcohol or drugs with a prior conviction for vehicular manslaughter while intoxicated (Veh. Code, §§ 23152, subd. (a), 23550.5, subd. (b)--count one); felony driving with a blood-alcohol level of 0.08 percent or higher with a prior conviction for vehicular manslaughter while intoxicated (Veh. Code, §§ 23152, subd. (b), 23550.5, subd. (b)--count two); and misdemeanor driving without a license (Veh. Code, § 12500, subd. (a)--count three). The information specially alleged that, as to counts one and two, defendant had a blood-alcohol content of 0.15 percent or higher (Veh. Code, § 23578); defendant had a prior serious or violent felony conviction in 1988 for vehicular manslaughter while intoxicated (Pen. Code,*fn1 § 192, subd. (c)(3)*fn2 ); and defendant served a prior prison term in 2005 (id., § 667.5, subd. (b)).
At trial, defendant testified that prior to the traffic stop, he had been drinking for several hours at Thunder Valley Casino. He left the casino briefly to retrieve his wallet from his car when he was attacked and punched in the face by a man who demanded that defendant give up all of his money. Defendant and the man fought, and then defendant retreated to his car. The man banged on defendant's window, threatened to "fuck [him] up," and then started walking towards the casino. Defendant considered contacting casino security, but changed his mind when the man drove his truck into the back of defendant's car and then got out, yelling at defendant and holding something that looked like a pipe or a tire iron. Defendant testified that he drove toward the freeway and his attacker followed behind him. Defendant made a U-turn back towards the casino. The truck was still following defendant when he was stopped by CHP.
Defendant testified that he lied to CHP officers about what had taken place at the casino because he "was very traumatized and nervous, confused, and . . . under the influence of alcohol."
On November 20, 2009, a jury found defendant guilty on all counts. In a bifurcated proceeding, the court found the prior prison term allegation not true, but found that defendant's prior conviction for vehicular manslaughter without gross negligence constituted a strike within the meaning of sections 667 and 1192.7. Defendant's request to strike the prior strike was denied. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504.) The court sentenced defendant to six years in state prison, consisting of the upper term of three years on count one, doubled pursuant to the strike; an identical term on count two, stayed pursuant to section 654; and 90 days in county jail on count three, to run concurrent to the six-year prison term. The court imposed a $600 restitution fine (§ 1202.4, subd. (b)) and a $600 parole revocation fine, stayed pending successful completion of parole (§ 1202.45), and awarded defendant 203 days of actual custody credits, plus 102 days of conduct credits, for a total of 305 days of presentence custody credits. Defendant filed a timely notice of appeal.
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. Defendant ...