(Super. Ct. No. CRF101069)
The opinion of the court was delivered by: Duarte , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Debbie Lee Sharp pled no contest to driving under the influence (DUI) after having suffered two previous DUI convictions within 10 years--one for DUI and the other for felony DUI causing bodily injury. The trial court sentenced her to the upper term of three years in state prison.
On appeal, she contends the trial court abused its discretion in imposing the upper term. We disagree and shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
While driving one night at approximately 10:49 p.m., Brad Kramar noticed defendant's car was swerving, repeatedly traveling into oncoming lanes of traffic, and making "very dramatic changes in speed," alternating between exceeding the speed limit and driving slowly. Kramar followed defendant while he called 911 and provided her license plate number to police. He eventually passed defendant's car, as he felt it was no longer safe to continue following her.
Shortly thereafter, defendant was stopped by Officer Danielson. Danielson asked defendant for her license, registration and insurance, and noticed defendant's eyes were red and watery and her jeans were unzipped and her belt buckle unfastened. He asked defendant if she had consumed any alcohol prior to driving. She replied, "No." Defendant gave Danielson her driver's license, but when Danielson repeated his request for her registration and insurance, defendant looked at the glove box but made no attempt to retrieve the items.
At Danielson's request, defendant stepped out of the car. Danielson noticed she was unsteady on her feet and asked if she was certain she had not consumed any alcohol. Defendant said she had had a shot of vodka for breakfast. Danielson administered a series of field sobriety tests. Defendant showed signs of intoxication. A records check revealed that defendant's driver's license had been suspended and she was on probation for a prior DUI conviction.*fn1 She was arrested and transported to the hospital, where a blood test later showed her blood-alcohol content was .18 percent--more than twice the legal limit for driving.
Defendant was charged with felony DUI as well as driving with a blood-alcohol content of .15 percent or more, after having suffered two previous convictions within 10 years--one for DUI*fn2 and the other for felony DUI causing bodily injury. (Veh. Code,*fn3 §§ 23152, subd. (a), & 23550.5--count 1; 23152, subd. (b), 23550.5, 23578--count 2.) She was also charged with driving with a suspended or revoked license due to DUI. (§ 14601.2, subd. (a)--count 3.)
Represented by counsel, defendant entered a negotiated plea of no contest to count 1 and admitted the two prior convictions in exchange for dismissal of counts 2 and 3. No sentence was agreed on or promised.
At sentencing, defendant argued for probation and the People for a prison term of "something more than the lower term." The probation report recommended the maximum sentence of three years. After hearing argument, the court denied probation and ...