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The People v. David Wayne Rosendahl

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Lassen)


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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 arrested defendant. A blood-alcohol test showed defendant's alcohol level was .25 percent.

Defendant testified, claiming that his friend, Lorraine Linquist, had been driving the pickup.

In rebuttal, Kimberly Townsend, another friend, testified that at defendant's request she lied to the Department of Motor Vehicles (DMV) by telling the department she was driving the pickup when defendant got the DUI. Joshua Fannon testified that the only person in the pickup during the period that he and his father observed the pickup was the driver.

The prosecution introduced certified copies of documents showing that defendant had four prior DUI convictions.

DISCUSSION I. Count 1 Sentence

Pursuant to People v. Alford (2010) 180 Cal.App.4th 1463, the parties agree that a trial court's failure to impose sentence on a count for which the defendant has been convicted results in an unauthorized sentence and that remand is unnecessary if the reviewing court can determine the term the trial court would most assuredly have imposed.*fn1 (See id. at pp. 1469, 1472-1473.) Here, the convictions in counts 1 and 2 arose out of a single course of conduct -- defendant's driving the evening of December 10, 2007. Because the trial court imposed the upper term for this conduct on count 2, it seems highly unlikely it would have chosen a different term for the same conduct on count 1. Consequently, the judgment is modified by imposing the upper term of three years on count 1 and staying that term pursuant to Penal Code section 654.

II. Conditions Imposed by Trial Court

Imposition of a sentence for which there is no stautory authority is jurisdictional error. (People v. Davis (1981) 29 Cal.3d 814, 827, fn. 5.) The period of parole after a defendant is released from custody is a component of the defendant's sentence. (In re E.J. (2010) 47 Cal.4th 1258, 1283, fn. 9.) It is the Board of Parole Hearings, not the trial court, that is charged with setting the conditions of parole. (Pen. Code, § 3000, subd. (a)(1); People v. Foster (2002) 101 Cal.App.4th 247, 257-258.)

Defendant and the People agree that the following conditions imposed by the court as part of defendant's sentence are not authorized and should be struck: abstain from use of alcohol after release from custody; after release from custody, attend a minimum of 36 meetings specified by Alcoholics Anonymous; not drive with any alcohol in his system; submit to chemical test for blood content; and not drive without insurance. We too agree that the trial court lacked authority to impose these conditions and they are hereby struck.

The court also ordered that defendant's license to drive be revoked for three years after his release from custody and that, pursuant to Vehicle Code section 23575, an ignition interlock device (IID) be installed on any car he drives. These conditions are contrary to statutory authority. Vehicle Code section 13352, subdivision (a)(7) mandates license revocation of four years, not three, for persons convicted of violation of Vehicle Code section 23152 with prior DUI convictions. The DMV, not the trial court, is responsible for implementing this mandatory license revocation upon receipt of an abstract of judgment. Vehicle Code section 23575, which governs installation of IIDs, is expressly applicable only to first-time offenders, and defendant is not a first-time offender. These two conditions are struck.

III. Statutory Basis for Fines and Fees

Defendant leaves to our "discretion" whether the fines and fees set forth on the amended abstract of judgment satisfy the requirement of People v. High (2004) 119 Cal.App.4th 1192 that the abstract of judgment include a breakdown of the fines and fees and statutory sources. (Id. at p. 1200.) The purpose of the requirement is to assist the Department of Corrections and Rehabilitation in collecting from the defendant's wages and distributing to the proper agency fines and/or fees imposed. The abstract of judgment contains a number of lines and boxes for the fees. We shall remand the matter for the trial court to prepare an amended abstract of judgment complying with High.

DISPOSITION

The matter is remanded to the Lassen County Superior Court solely for the purpose of amending its records to reflect, in accordance with this opinion, the conditions we have stricken and the three-year sentence imposed but ordered stayed pursuant to Penal Code section 654. The trial court is directed to prepare an amended abstract of judgment setting forth the fines and fees imposed as well as their sources. In all other respects, the judgment is affirmed.

We concur: HULL , J. HOCH , J.


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