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People v. O'Connor6/25/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
I. INTRODUCTION
The defendant, Timothy O'Connor, was charged with possession of a controlled substance (cocaine) (Health and Saf. Code, § 11350, subd. (a)) and driving under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a)). After O'Connor pled guilty to the controlled substance charge, the trial court granted him a deferred entry of judgment for a term of 18 to 36 months and ordered him to enroll in a treatment program pursuant to Penal Code section 1000. Following a bench trial on the driving under the influence charge, O'Connor was convicted and was sentenced to 365 days in custody. Execution of the sentence was suspended for five years, and O'Connor was placed on probation. O'Connor timely appealed from the order of probation.
O'Connor contends on appeal that he was denied his speedy trial right in a previous case based upon the original information filed against him (People v. O'Connor (Super. Ct. San Diego County, 2001, No. SCD156467) ("Old Case"), and that as a consequence, prosecution in this case (SCD159198) is barred pursuant to Penal Code section 1387. We disagree and affirm the judgment.
II. FACTS AND PROCEDURAL BACKGROUND
A. Events of April 3, 2000
At approximately 10:30 p.m. on April 3, 2000, San Diego Police Sergeant Kevin Friedman responded to a call regarding a disturbance at a bar. While standing in front of the bar, Friedman heard a car horn honking as the car pulled up in front of the bar. O'Connor was the driver of the car. Friedman approached the car and knocked on the driver's window in an attempt to get O'Connor's attention. Without looking at Friedman, O'Connor drove away. Friedman got in his patrol car and pursued O'Connor. O'Connor pulled over and stopped. He attempted to get out of his car, and nearly fell over. Friedman observed that O'Connor appeared to lack coordination and balance. Not long after that, Friedman determined that O'Connor smelled of alcohol and "sounded drunk." Friedman radioed for assistance to conduct a driving under the influence investigation.
Officer Michael Groff responded to the scene and administered a series of field sobriety tests to O'Connor. Groff concluded that O'Connor was in an impaired state. O'Connor was then taken back to the police station for a series of breath tests. O'Connor's first test revealed a .17 blood alcohol content. The second reading was a partial reading, because O'Connor pulled away from the machine during the test. That test registered a .15 blood alcohol content. After administering the breath tests, Groff searched O'Connor and discovered a folded bindle. Police later determined that the bindle contained cocaine.
B. Procedural History
1. The Record On Appeal Is Limited To The Proceedings In SCD159198
The issue O'Connor raises on appeal is that the Old Case, "should have been dismissed pursuant to [Penal Code section] 1382, and that dismissal would have effected the status of [the present case]." In support of this contention, O'Connor makes numerous assertions, without citation, regarding proceedings that purportedly occurred in the Old Case but are not part of the record in this case. The People argue in their brief that "the 'Old Case' is not properly before this court on this appeal . . . ."
In his reply brief, O'Connor mai
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