(Super. Ct. No. NCR79035)
The opinion of the court was delivered by: Hull 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 entered a negotiated plea of guilty to transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a)) and driving with a blood alcohol level of 0.08 or greater (Veh. Code, § 23152, subd. (b)) and admitted a prior strike within the meaning of the three strikes law (Pen. Code, § 1170.12, subds. (b)-(d)). Four other charges were dismissed. Sentenced to state prison for six years, defendant appeals, contending the trial court erred in considering the facts of a dismissed charge at sentencing and in denying his motion to dismiss the prior strike. We affirm the judgment.
In light of defendant's guilty plea, the facts are taken from the preliminary hearing.
On April 17, 2010, at approximately 2:20 a.m., Sergeant Dave Kain of the Tehama County Sheriff's Department saw a car drive off the right portion of a road while making a turn and then drive into the opposite lane of traffic while making another turn. He stopped the car.
Defendant was driving the car. When Sergeant Kain came up to the car, he noticed the odor of alcohol and saw that defendant's eyes were bloodshot and watery. Kain told defendant to step out of the car and noticed defendant's gait was unsteady and he had alcohol on his breath. Kain asked defendant if he had any weapons on him and defendant told him he had a knife in a sheath strapped to defendant's right ankle. As Kain took the knife, he saw defendant make a throwing motion with his left hand and saw a piece of tissue fly through the air. Kain picked up the tissue and found that it contained a usable amount of marijuana.
At this point, Sergeant Kain arrested defendant and conducted a more thorough search. He discovered a baggie sticking out of defendant's left sock that contained 1.85 grams of psilocybin. Defendant was taken to a hospital and his blood was drawn. His blood alcohol level was determined to be 0.11.
Defendant was charged with three felonies: possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), transportation of a controlled substance (id., § 11379, subd. (a)), and carrying a concealed dirk or dagger (Pen. Code, § 12020, subd. (a)(4)). On each felony, defendant was also charged with a prior strike (id., §§ 459, 1170.12, subds. (b)-(2)), to wit, a 1999 first degree burglary, and a prior felony for which he served a term in prison (id., § 667.5, subd. (b)). Defendant was also charged with three misdemeanors: driving under the influence (Veh. Code, § 23152, subd. (a)), driving while his license was suspended or revoked (id., § 14601.1, subd. (a)), and driving with a blood alcohol level of 0.08 or higher (id., § 23152, subd. (b)).
Defendant entered a negotiated plea of guilty to transportation of a controlled substance and driving with a blood alcohol level of 0.08 or higher. He also admitted the prior strike. All other charges were dismissed.
Defendant moved to strike the prior in the interest of justice. The motion was denied.
Defendant was sentenced on the drug offense to the middle term of three years, doubled to six under the three strikes law. He received a concurrent term ...