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The People v. Theodore John Weisenberger

July 25, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
THEODORE JOHN WEISENBERGER, DEFENDANT AND APPELLANT.



(Super. Ct. No. P10CRF0197)

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

P. v. Weisenberger

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 found defendant Theodore John Weisenberger guilty of driving under the influence of alcohol (DUI) and driving with a blood-alcohol content above the legal limit. (Veh. Code,*fn1 § 23152, subds. (a) and (b).) Defendant admitted he had suffered two prior convictions for DUI, and the jury found he had suffered a 2004 conviction for alcohol-related reckless driving (§ 23103.5). Sentenced to two years in state prison, defendant appeals. Defendant raises various claims of error; all are centered on his contention that his 2004 conviction was invalid. We disagree with his claims of error; accordingly, we shall affirm.

PROCEDURAL BACKGROUND*fn2

On May 24, 2010, the People filed a felony complaint charging defendant with DUI and also with driving with a blood-alcohol level of 0.08 percent or greater, in violation of sections 23152, subdivisions (a) and (b). The complaint further alleged that defendant had suffered three prior convictions (§ 23550), including convictions in 2001 and 2002 for DUI and in 2004 for alcohol-related reckless driving under section 23103.5.*fn3

On December 7, 2010, defendant moved to strike the 2004 prior conviction allegation, arguing that it was "not indicated in the official court record." The trial court (Phimister, J.) denied the motion for reasons that are not specified in the record provided to us. The People later filed an information containing the same charges and allegations outlined ante.

On March 25, 2011, defendant filed a demurrer to the information, arguing that he did not suffer the 2004 prior conviction alleged in the information because he "never did, in fact, enter a plea." The gist of his argument was that his plea was not taken orally. On April 22, 2011, after hearing argument, the trial court (Wagoner, J.) overruled the demurrer, finding "no constitutional infirmity in the prior."

On June 10, 2011, defendant filed a motion to vacate the ruling on the demurrer and request for rehearing. The trial court (Proud, J.) denied the motion, noting that defendant had signed a plea and waiver form indicating a plea of no contest to section 23103.5 and had been questioned orally about his written plea before it was accepted. On July 1, 2011, defendant filed a motion for reconsideration of the ruling on the demurrer and request for findings and conclusions of law. The trial court (Proud, J.) denied the motion and the request, again for the reasons previously articulated.

Defendant admitted the 2001 and 2002 prior conviction allegations and proceeded to jury trial on the underlying charges and 2004 prior conviction. At trial, and over defendant's objection, the trial court instructed the jury that a plea of guilty or nolo contendere may be oral or in writing. The jury found defendant guilty of both counts of the information and further found he had suffered the 2004 prior conviction.

On August 9, 2011, defendant filed a motion in arrest of judgment as to the 2004 prior conviction, wherein he once again argued his plea was invalid because it was not taken orally. The trial court (Saint-Evens, J.) denied ...


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