IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sutter)
October 12, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
DEBBIE LEE SHARP, DEFENDANT AND APPELLANT.
(Super. Ct. No. CRF101069)
The opinion of the court was delivered by: Duarte , J.
P. v. Sharp
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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 sentenced defendant to three years in prison. Defendant appealed.
Defendant contends that the trial court abused its discretion in imposing the upper term sentence. While correctly conceding that a court may "use the fact of the prior conviction to impose the upper term when that same prior conviction was the basis for the current offense being a felony rather than a misdemeanor," defendant argues that the trial court's action in this regard "seems inappropriate." As we will explain, we find no abuse of discretion.
"Generally, determination of the appropriate term is within the trial court's broad discretion [citation] and must be affirmed unless there is a clear showing the sentence choice was arbitrary or irrational [citation]." (People v. Lamb (1988) 206 Cal.App.3d 397, 401.) The sentencing court has wide discretion to balance mitigating and aggravating circumstances, qualitatively as well as quantitatively. (Ibid.) "One factor alone may warrant imposition of the upper term . . . ." (Ibid.)
Here, the trial court found four aggravating factors: (1) defendant's prior convictions are numerous or of increasing seriousness; (2) defendant was on probation when the current offense was committed; (3) defendant's prior performance on probation was unsatisfactory; and (4) pursuant to Vehicle Code section 23578, defendant's blood-alcohol content was .15 percent or greater. The court found one mitigating factor, that defendant voluntarily admitted wrongdoing prior to arrest or at an early stage in the proceedings. Finding the aggravating factors outweighed those in mitigation, the court imposed the upper term.
Defendant argues that her convictions were not progressively more serious because while driving with a blood-alcohol level of .18 was "potentially dangerous," it did not jeopardize any "identifiable individuals." But even if not progressively more serious, her convictions were numerous. Further, even if we were to disregard this aggravating factor, there were multiple others. The record supports the fact that defendant was on probation for the 2006 DUI when she committed the current DUI, and that her performance on probation following the 2006 DUI was highly unsatisfactory--she was convicted of DUI while on probation for that very same conduct, which probation had resulted from an offense committed very soon after completing a separate grant of probation, again for the very same conduct. The court's reliance on these factors was not an abuse of discretion.
Defendant claims "the single aspect of the prior conviction does not justify imposition of an upper-term sentence." But the law is otherwise--a single valid aggravating factor justifies the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.) Moreover, as discussed above, the trial court relied on multiple aggravating factors in imposing the upper term, and all were proper aggravating factors under California Rules of Court, rule 4.421(b) and (c).
Defendant points out that, in the months preceding sentencing, she made "sincere and serious efforts to receive appropriate psychological and physical counseling" to deal with her problems. That information, contained in the probation report and raised by defense counsel during argument, was considered by the court in making its sentencing determination.
Clearly the trial court did not act arbitrarily or irrationally in concluding that the circumstances in aggravation outweighed those in mitigation; thus the court did not abuse its discretion in selecting the upper term.
The judgment is affirmed.
We concur: BLEASE , Acting P. J. NICHOLSON , J.