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People v. Sohal3/25/1997
California Court of Appeals
No. C023281.
53 Cal.App.4th 911, 62 Cal.Rptr.2d 110, 1997.ca.2
March 25, 1997
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
SURINDER SINGH SOHAL, DEFENDANT AND APPELLANT.
APPEAL from a judgment of the Superior Court of the County of Sacramento, Super.Ct.Nos. 94F10109 and 94F00769. Judge Gerald S. Bakarich.*
Rehearing Denied April 22, 1997. Review Denied June 25, 1997,
Gail Harper, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Stan Cross and Janet E. Neeley, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion by Davis, J., with Sims, Acting P. J., and Raye, J., Concurring.
The opinion of the court was delivered by: Davis
DAVIS, J.
In case No. 94F10109, defendant entered a negotiated plea of no contest to driving under the influence with three or more priors within seven years (Veh. Code, § 23152, subd. (a)). He also admitted a prior conviction (Pen. Code, § 245, subd. (a)(1)) subject to a court trial on whether the same was a serious felony within the meaning of the three strikes law (Pen. Code, § 667, subds. (b)-(i)). In case No. 96F00759, defendant entered a negotiated plea of no contest to an additional driving under the influence offense with three or more priors within seven years (Veh. Code, § 23152, subd. (a)). The parties agreed to an aggregate 48-month state prison term in the event the court found the prior in case No. 94F10109 to be a valid strike. The court so found.
The court sentenced defendant to state prison for an aggregate term of 48 months: the low term of 16 months doubled for 32 months on the violation in case No. 94F10109 and a consecutive one-third the midterm or 8 months doubled for 16 months on the violation in case No. 96F00759.
In the published part of the opinion, we find the transcript of defendant's plea supports the court's finding that the prior conviction for an assault constituted a strike. In the unpublished part of the opinion, we hold that since defendant stipulated to the sentence he received, he is not entitled to a remand to allow the court to exercise its discretion whether or not to strike the strike prior pursuant to section 1385. We will affirm.
FACTS
In view of defendant's contentions, only a brief recitation of the facts of the underlying offense is necessary. On September 3, 1994, defendant tried three or four times to park his car in a parking stall at Southgate Plaza as a security guard watched. The security guard then saw defendant climb into the backseat and hang his head out the opened rear door. Defendant was incoherent and seemed to be intoxicated. After a California Highway Patrol officer confirmed the security guard's suspicions, the security guard placed defendant under citizen's arrest for driving under the influence . Defendant's blood-alcohol content was .15 percent.
Discussion
I
The amended information in case No. 94F10109 alleged that defendant suffered a serious felony conviction i.e., "the crime of assault with a deadly weapon, a felony, in violation of Section 245(a)(1) of the Penal Code," within the meaning of section 1192.7, subdivision (c), and thus came within the three strike
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