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People v. Malone11/17/2004
*1 Defendant Gregory Stephen Malone filed an opening brief in which he raised no issues and asked this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Subsequent to the United States Supreme Court decision in Blakely v. Washington (2004) 542 U.S. ---- [124 S.Ct. 2531] (Blakely ), we requested additional briefing. We conclude that although defendant received an aggravated sentence without facts found by a jury or admitted by defendant, the trial court's reliance on defendant's prior criminal record as the main reason for issuing the aggravated sentence is not prejudicial error because it is not reasonably probable that a result more favorable to defendant would have resulted in light of Blakely. Finding no other arguable issues, we affirm the trial court's sentence.
BACKGROUND
Defendant is a 53-year old construction worker who has been an alcoholic during his entire adult life. He had six convictions prior to this one for driving under the influence ("DUI"). Although he has never been on formal probation, defendant has accumulated eight conditional sentences since 1975. Defendant has participated in treatment programs and has been a leader at Alcoholics Anonymous meetings. He maintained his sobriety for a seven-year period between 1983 and 1990. He is separated from his wife and has three children. He began drinking again after he and his wife separated.
On July 5, 2003, at 1:48 a.m., Sebastopol police officers saw a silver car speeding. The radar showed it moving at 38 miles per hour (m.p.h.) in a 25 m.p.h. zone. Police officers followed the car, which was driven by defendant, and pulled it over. When asked for his driver's license, defendant responded he did not have it with him. The officers observed that his speech was slurred, his eyes were bloodshot, and the inside of the car smelled of alcohol. Defendant admitted he had been drinking alcohol that evening, but refused to say how much.
When the officers ordered defendant out of the car, he had trouble standing and began to stagger. The officers helped him to the sidewalk and asked if he could stand on his own without assistance, to which he replied he could. But when the officers let go, he began swaying and staggering again. After the officers decided that it was too dangerous to continue the sobriety tests on the street, they arrested defendant for DUI and on two outstanding warrants.
Defendant was taken to a local hospital for a blood test, which indicated his blood alcohol content was .25 percent. Defendant became agitated and uncooperative when taken to the Sebastopol Police Department for booking. He refused to answer any booking questions or be fingerprinted. He was then taken to Sonoma County jail and booked on his outstanding warrants.
When asked by another officer about the arrest that night, defendant replied he was unemployed and felt "stuck" because he did not have a car. He had bought a friend's car for "about" $200, even though his license had been revoked. On the night he was arrested, he drove out to "the river" to go to a barbeque with some friends. He had at least a 12-pack of beer at the barbeque, then stopped at a local Sebastopol bar and had a few more drinks. He was pulled over almost immediately after he left the bar. He claims he offered to perform a breathalyzer test, but that the arresting officer demanded a blood test.
*2 Defendant explained that he staggered when getting out of the car because he had previously hurt his ankle and because the streets in the area were sloped. He further maintained that he always slurred his speech and that his bloodshot eyes were a result of another past injury. Defendant acknowledged that he should not have been drinking and driving, but did not acknowledge
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