(Super. Ct. Nos. CM032282 & CM032283)
The opinion of the court was delivered by: Blease , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After pleading guilty to corporal injury to a spouse (Pen. Code, § 273.5, subd. (a)), driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)) with three prior convictions for the same offense (Veh. Code, § 23550), and admitting a prior prison term (Pen. Code, § 6675., subd. (b)), defendant Larry Andrew Johnson was sentenced to an aggregate term of six years eight months in state prison.
On appeal, defendant contends the trial court abused its discretion when it imposed the upper term and ordered defendant's sentences to be served consecutively based on an improper dual use of facts. Defendant further contends the trial court erred in failing to consider his mental illness and alcohol addiction as mitigating factors in sentencing. We affirm the judgment.
On February 4, 2010, defendant's spouse stopped a police officer on a public road. She reported that defendant had been assaulting her in the car as they drove around town. She described defendant punching her several times, including punches to the face and head. Defendant also tried to choke or strangle his wife by twisting the collar of her shirt.
The police officer noted the victim had abrasions on her neck and nose. In addition, her right cheek and temple were swollen. The victim reported a history of migraine headaches and said she suffered a "horrible headache" as a result of the assault. Defendant was arrested; he had a blood-alcohol level of .31 percent.
Defendant was subsequently charged in Butte County Superior Court case No. CM032283 with corporal injury to a spouse (Pen. Code, § 273.5, subd. (a)). It was further alleged that defendant was previously convicted of domestic violence. (Pen. Code, § 273.5, subd. (e).)
Then, on March 8, 2010, defendant was stopped by a police officer for driving 50 miles per hour in an area with a 35 mile per hour speed limit. The officer noted that defendant's eyes were watery and his breath smelled of alcohol. A search of defendant's car revealed two open bottles of whiskey. Defendant did not have a driver's license, and the rear license plate was registered to a different vehicle. A breath test indicated defendant's blood-alcohol content was .16 percent.
Defendant was charged in Butte County Superior Court case No. CM032282 with driving under the influence of alcohol (DUI) (Veh. Code, § 23152, subd. (a)), driving with a blood-alcohol content of .08 percent or higher (Veh. Code, § 23152, subd. (b)), driving with a suspended license (Veh. Code, § 14601.2, subd. (a)), and providing false evidence of vehicle registration (Veh. Code, § 4462.5). It was further alleged that defendant had three prior convictions for driving under the influence of alcohol (Veh. Code, §§ 23550 & 23550.0), had a blood-alcohol content of .15 percent or higher (Veh. Code, § 23578), was previously convicted of a serious or violent felony (Pen. Code, § 1170.12, subd.(a)), and previously served a prison term (Pen. Code, § 667.5, subd. (b)).
Defendant pleaded guilty in case No. CM032282 to driving under the influence of alcohol with three prior convictions for driving under the influence of alcohol, and admitted he previously served a term in prison. In case No. CM032283, defendant pleaded guilty to corporal injury to a spouse with a prior conviction for domestic violence. Defendant stipulated to a maximum sentence of six years eight ...