(Super. Ct. No. NCR77079)
The opinion of the court was delivered by: Butz , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Joseph Patrick Fleharty entered a no contest plea to driving with a blood-alcohol level of 0.08 percent or higher and causing injury and admitted he personally inflicted great bodily injury on an elderly person. The trial court sentenced him to eight years in state prison and suspended execution of the sentence, placing defendant on eight years of formal probation. Thereafter, defendant was found in violation of his probation and the trial court ordered execution of the previously suspended prison sentence.
Defendant's ensuing appeal is subject to the principles of People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Kelly (2006) 40 Cal.4th 106, 110, 124. In accordance with the latter, we will provide a summary of the offense and the proceedings in the trial court.
On June 27, 2009, an officer with the California Highway Patrol responded to a report of a traffic collision involving injury. At the scene, he found a car with major front-end damage and an overturned pickup truck with the driver trapped inside. The driver of the truck, a 70-year-old man, was extracted from the vehicle and taken to the hospital by ambulance and helicopter. His injuries included crushed vertebrae in his neck and back, and broken ribs. His accumulated medical bills exceeded $300,000.
Witnesses reported that the driver of the car, later identified as defendant, was intoxicated and had fled the scene on foot. Defendant was located walking along the highway. He appeared extremely intoxicated and insisted on standing up, against the officer's directive to sit down. When the officer attempted to handcuff him, defendant tried to run away. Defendant was restrained, handcuffed and returned to the scene of the collision.
Defendant was distraught when the officer told him the driver of the truck had been injured. He admitted he had been "'partying,'" consumed "'8 to 9 beers,'" and had "'drank too much'" when he decided to go home. Defendant performed poorly on a series of field sobriety tests and was arrested. A subsequent blood sample taken from defendant revealed a blood-alcohol level of 0.27 percent.
A subsequent collision investigation determined that defendant had caused the collision by driving his car at a high rate of speed and hitting the rear of the pickup truck, causing it to roll over.
Defendant was ultimately charged with driving under the influence and causing injury (Veh. Code, § 23153, subd. (a)), driving with a blood-alcohol level of 0.08 percent or higher and causing injury (id., § 23153, subd. (b)), and leaving the scene of an accident (id., § 20001, subd. (a)). In connection with each of these felonies, it was further alleged defendant had caused great bodily injury to an elderly person (Pen. Code, § 12022.7, subd. (c)). Defendant was also charged with misdemeanor resisting a peace officer (Pen. Code, § 148, subd. (a)(1)) and misdemeanor driving with a suspended or revoked license (Veh. Code, § 14601.5, subd. (a)). Defendant committed these offenses a mere two and one-half weeks after he had been placed on summary probation for misdemeanor driving with a blood-alcohol level of 0.08 percent or higher on June 9, 2009.
On November 23, 2009, defendant pleaded no contest to driving with a blood-alcohol level of 0.08 percent or higher and causing injury (Veh. Code, § 23153, subd. (b)) and admitted he personally inflicted great bodily injury on an elderly person (Pen. Code, § 12022.7, subd. (c))). The remaining charges were dismissed.
Defendant was sentenced on January 11, 2010. The trial court imposed the upper term of three years for the offense and an additional five years for the enhancement for a total of eight years in state prison. The trial court then suspended execution of sentence and placed defendant on eight years of formal probation. As conditions of probation, defendant was ordered to serve 365 days in jail with a waiver of credit for time served to date, complete an alcohol treatment program, and pay specified fines and fees.
On November 5, 2010, a petition for revocation of probation was filed, alleging defendant had been dismissed from his alcohol treatment program prior to completion. A ...