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People v. Avila3/10/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Marcello Eron Avila appeals from the judgment entered upon his plea of no contest to possession of methamphetamine, a felony (Health & Saf. Code, § 11377, subd. (a)) and driving under the influence of alcohol or drugs, driving with a blood alcohol level of 0.08 percent or higher, and being an unlicensed driver, all misdemeanors (Veh. Code, §§ 23152, subd. (a), 23152, subd. (b), 12500, subd. (a)), and upon his admission of a Florida conviction of burglary of a dwelling within the meaning of the three strikes law (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). The trial court struck the prior conviction pursuant to section 1385 and sentenced appellant to prison for the low term of 16 months on the felony conviction.
Appellant contends that (1) the People's refusal to refer him for an eligibility determination for deferred entry of judgment pursuant to section 1000 et seq. was based upon an erroneous interpretation of the law and was supported by no facts; and (2) the trial court failed to recognize its discretion under section 1385 to dismiss a portion of the action that would otherwise preclude sentencing under Proposition 36.
We asked the parties to discuss whether the issues raised by appellant are properly before this court in the absence of a certificate of probable cause.
We dismiss the appeal as to the deferred entry of judgment issue and affirm the judgment.
FACTS
The record discloses that in the early morning hours of August 20, 2001, two California Highway Patrol officers leaving the 210 Freeway observed appellant apparently asleep behind the wheel of a car stopped at the intersection of Arrow Highway and Bonita in San Dimas. After a short time appellant began driving, and the officers effected a traffic stop. An odor of alcohol came from the vehicle, appellant's speech was slurred, and his eyes were red and watery. Appellant stated he had had a couple of beers. The officers had appellant perform field sobriety tests and concluded that appellant was under the influence of alcohol.
Appellant was arrested. In his wallet, which he had attempted to secrete, was a small tinfoil package with burn marks which held a plastic bindle containing 0.09 grams of a powder containing methamphetamine. Appellant was administered a breath test which showed blood alcohol levels of 0.13 and 0.14 percent.
PLEA AND SENTENCING
After denial of appellant's request for deferred entry of judgment pursuant to section 1000 et seq., defense counsel indicated that appellant wished to enter an "open plea" and that at sentencing he would ask the trial court to strike the prior strike conviction. Following a recess, the trial court stated it had "received paperwork indicating the disposition of the case. Basically what is going to happen, the defendant is pleading guilty to all charges and admit the prior conviction alleged, the strike prior conviction, without prejudice to whatever defense counsel wishes to move at time of sentencing on that count. And that the defendant will be sentenced today on the misdemeanor portion of it so that he can start on the [D.U.I.] program as soon as possible, and then open plea basically on all of these counts." Appellant acknowledged that the maximum term for the felony with a prior strike was six years and that the misdemea
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