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People v. Ventimiglia11/24/2004
Appellant Lori Ann Ventimiglia filed an opening brief in which she 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. We affirm the trial court's sentence.
BACKGROUND
Appellant is a 41-year old alcoholic who has repeatedly failed to attain lasting sobriety. She appeals her three-year sentence to state prison following her latest violation of probation.
On May 21, 2000, a police officer observed appellant "weaving" as she drove. He watched as she drove approximately three-quarters of the way through an intersection, and past a stop sign, before applying her brakes. The vehicle skidded but continued through the intersection without stopping and the officer signaled for appellant to pull over. Appellant entered a parking lot and hit two garbage cans as she tried to park. The officer observed that appellant carried "a strong odor" of alcohol, and that her eyes were red and glassy, she had an unsteady gait, and her speech was slurred. When asked how much she had been drinking, appellant replied that she consumed one 12-ounce beer two hours prior to the stop. Several field sobriety tests and tests conducted at Napa County Department of Corrections determined appellant's blood alcohol level to be between 0.27 and 0.32%. A subsequent blood test registered 0.31%. Appellant was arrested for driving under the influence (DUI).
The complaint filed by the People charged appellant with: (1) driving under the influence in violation of Vehicle Code section 23152, subdivision (a) [FN1], (2) driving while having a blood alcohol level greater than 0.08% in violation of section 23152, subdivision (b), and (3) driving with a license that had been suspended for a previous DUI in violation of section 14601.2, subdivision (a). Counts one and two further alleged that appellant had committed a previous felony within the past ten years (section 23550.5). Count three further alleged that appellant had suffered a previous DUI conviction less than one month prior to this incident.
FN1. All subsequent references are to the Vehicle Code unless otherwise noted.
The trial court released appellant on her own recognizance (OR) with orders that she be supervised and submit to testing as directed by the probation department. Appellant was soon rearrested when tests conducted on July 10 and 13, 2000, showed that she had violated the terms of her OR. The July 10, 2000, test showed a blood alcohol level of 0.09%. The trial court adopted the probation officer's recommendations and placed appellant on formal probation for five years, conditioned upon appellant's participant in a residential treatment program to address her alcoholism. The court told appellant "this whole thing [the suspended probation] is a giant gift from [the court] to you, hoping that it works. You've been to prison before. You should go back to prison again as far as most people are concern[ed]. But that's probably not going to ... prevent you from drinking in the future. That's what we need to have happen, otherwise you're going to kill yourself or somebody else pretty soon."
*2 On March 5, 2002, appellant was arrested for violating the terms of her probation by drinking at her home. Tests revealed a blood alcohol level of 0.23%. Appellant was released on supervised OR on March 7, 2002, pending trial.
On April 13, 2002, appellant was again arrested for violating the terms of her probation and for violating the terms of her supervised OR. A test revealed a blood alcohol level of 0.10%. Appellant claimed her behavior was based on numerous problems at home. She claimed that the stresses on her life had driven her to drink again. She worked full time. She cared for her four children, one of whom suffers from f
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