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The People v. David Wayne Rosendahl

September 20, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DAVID WAYNE ROSENDAHL, DEFENDANT AND APPELLANT.



(Super. Ct. No. CR025375)

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

P. v. Rosendahl

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted defendant David Wayne Rosendahl of driving under the influence (DUI) (Veh. Code, § 23152, subd. (a) -- count 1) and driving with a blood-alcohol level of .08 percent or more (Veh. Code, § 23152, subd. (b) -- count 2). The jury also found that as to each count defendant had four prior under-the-influence-related convictions. (Veh. Code, § 23550.5.)

Defendant was sentenced to state prison for the upper term of three years on count 2 and, without imposing sentence, the court purportedly stayed sentence on count 1 pursuant to Penal Code section 654. The court also imposed probation-like conditions and restitution fines of $200 in accordance with Penal Code sections 1202.4 and 1202.45 as well as various fines and fees. The court gave defendant 88 days of credit for time served and 88 days of conduct credit. Defendant appealed.

Appointed counsel filed an opening brief setting forth the facts of the case and asking this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 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.

Instead of a supplemental brief, defendant filed a letter requesting that a hearing for bail on appeal be set and stating that after he is released on bail he will file a supplemental brief. We decline to set such a hearing. Absent extraordinary circumstances, such as health of the defendant or imposition of excessive bail, which are not present here, an application for bail on appeal following imposition of judgment is to be made in the trial court, not the appellate court. (Pen. Code, § 1272, subd. (3); People v. Oreck (1945) 69 Cal.App.2d 317, 318.)

Based upon our review of the entire record, we requested the parties to submit supplemental briefing regarding the following: (1) Does the trial court's failure to impose sentence on count 1, but directing the such sentence be stayed, require remand for sentencing? (2) Was it appropriate for the trial court to impose conditions of probation on defendant even though defendant was being sent to state prison? (3) Is the designation of the fines and fees in the abstract of judgment adequate to comply with the requirement that the abstract of judgment designate the statutory basis for such fines and fees? The parties have filed the requested briefing.

FACTS

Approximately 5:30 p.m. on December 10, 2007, James Fannon and his son, Joshua, were driving when they saw a blue pickup truck blocking their path, apparently stalled at a stop sign. James stopped to see if the pickup's occupant needed help, but before he could get out of his car the pickup drove off at an "erratic" speed, weaving over the center line. James called the California Highway Patrol (CHP), told them what had occurred, and continued to follow the pickup. The pickup stopped at the edge of the road and James did likewise, waiting for the CHP.

As James waited, he saw a male, whom he was unable to identify, go to the front of the pickup and urinate. The male got back into the pickup, drove on the shoulder for about 100 feet, and stopped. James again followed the pickup. CHP Officer Samuel Glucklich arrived and went to the driver's side of the pickup and got the driver out of the vehicle. From the time James first saw the pickup until Officer Glucklich arrived and removed the driver, no one other than the driver got out of the pickup.

According to Officer Glucklich, when he approached the pickup defendant was in the driver's seat and was the sole occupant. A strong odor of alcohol was coming from the pickup and Glucklich had defendant get out and perform field sobriety tests. Defendant failed the tests, but claimed he was not the driver. Glucklich spoke with James and then ...


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