People v. Vazquez CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCE423820
- Trial judge
- Daniel B. Goldstein
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Truc T. Do (author), Laurence D. Rubin, William S. Dato
Analysis
The trial court convicted David Vazquez of DUI and related offenses, sentencing him to the upper term of three years on count 1 based on aggravating factors including a prior prison term and numerous prior convictions. The Court of Appeal affirmed the judgment, finding no reasonably arguable issues on independent review, and directed the trial court to correct the abstract of judgment to match the oral pronouncement of sentence.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Sentence to upper term of three years on count 1“Did the trial court abuse its discretion in sentencing appellant to the upper term of three years in state prison?” | abuse of discretion | not reached | agree with court The appellate court conducted an independent review of the record pursuant to People v. Wende and Anders v. California and concluded that it had not discovered any arguable issues for reversal or modification of the judgment. Because the court found no reasonably arguable issues, it did not explicitly analyze the trial court's sentencing discretion in detail, but affirmed the judgment based on the absence of error. |
Correction of abstract of judgment for count 2“When the oral pronouncement of judgment and the abstract of judgment conflict, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185–186.)” | de novo | error | agree with court The appellate court identified a conflict between the oral pronouncement of sentence (three years, stayed under Penal Code section 654) and the abstract of judgment (zero years, misidentified count). Relying on People v. Mitchell, the court determined that the oral pronouncement controls and directed the trial court to correct the abstract of judgment accordingly. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires independent review of the record by appellate counsel in cases where counsel finds no arguable issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires independent review of the record by appellate counsel in cases where counsel finds no arguable issues.
- relied: People v. Mitchell (2001) 26 Cal.4th 181 — When the oral pronouncement of judgment and the abstract of judgment conflict, the oral pronouncement controls.
The appellate opinion: sound — The opinion is sound because it correctly applies the Wende/Anders framework to conduct an independent review of the record and finds no arguable issues. It also correctly applies People v. Mitchell to resolve the conflict between the oral pronouncement and the abstract of judgment, directing the necessary correction.
How this analysis was made · dispute it
unusual dispositionThe trial court entered judgment on jury verdicts for DUI (Veh. Code, § 23152, subds. (a), (b)) with a 0.15 percent BAC enhancement finding and a plea to driving on a suspended license, then imposed the upper term of three years on count 1 after a bifurcated bench trial on aggravating factors, staying an upper term on count 2 under Penal Code section 654. On appeal, counsel filed a Wende/Anders brief, the defendant filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no arguable issues, affirmed, and on its own motion ordered the abstract of judgment corrected to match the oral pronouncement of sentence on count 2.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Imposition of the upper term of three years on count 1 based on the admitted prior prison term and the finding that nine prior DUI convictions were numerous and of increasing seriousness (Cal. Rules of Court, rule 4.421(b)(2), (b)(3)).“Noting that it could impose the upper term based on the single aggravating factor of Vazquez’s admitted prior prison term, the court also found it true that his nine prior DUI convictions demonstrated his prior convictions are numerous and of increasing seriousness.” | abuse of discretion | correct | agree with court The aggravating factors were established through the defendant's own admission, an undisputed prior prison term, and certified CLETS records admitted at a bifurcated bench trial, which fits the prior-conviction pathway for proving aggravators, and a single properly established aggravating factor suffices for an upper term. The court also considered and rejected the proffered mitigation. The opinion does not expressly cite Penal Code section 1170(b), but the facts recited show compliance, and nothing in the record quoted suggests an abuse of discretion. |
Preparation of the abstract of judgment reflecting a '0' year term on count 2 and mislabeling count 2 as a duplicate count 1, contrary to the oral pronouncement of a three-year upper term stayed under Penal Code section 654.“When the oral pronouncement of judgment and the abstract of judgment conflict, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185–186.)” | de novo | error (other) | agree with court Under People v. Mitchell the oral pronouncement of judgment controls over a conflicting abstract, and an appellate court may order correction of clerical errors in the abstract on its own motion. The Court of Appeal correctly applied that rule and ordered the appropriate correction without disturbing the judgment itself. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel files a brief raising no issues, the Court of Appeal must independently review the entire record for arguable issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous may so advise the court and request to withdraw, accompanied by a brief referring to anything in the record that might arguably support the appeal.
- relied: People v. Mitchell (2001) 26 Cal.4th 181 — The oral pronouncement of judgment controls over a conflicting abstract of judgment, and appellate courts may order correction of clerical errors in the abstract on their own motion.
The appellate opinion: sound with gaps — The opinion follows the required Wende/Anders procedure, states the facts and the issue counsel flagged, and correctly applies Mitchell to order correction of the abstract. It does not expressly address Penal Code section 1170(b) as amended by Senate Bill 567 when evaluating the upper term, though the recited record (defendant's admission, undisputed prior prison term, certified conviction records at a bifurcated bench trial) indicates the aggravators were properly established.
Opinion
Filed 10/10/25 P. v. Vazquez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D085218
Plaintiff and Respondent, v. (Super. Ct. No. SCE423820)
DAVID VAZQUEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Daniel B. Goldstein, Judge. Affirmed. Joshua Peter Visco, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent. MEMORANDUM OPINION David Vazquez appeals from a judgment of conviction and sentence. His appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). Vazquez has not filed supplemental brief, although he was invited to do so. Based on our independent review of the record, we find no reasonably arguable appellate issues and affirm the judgment. One night at about 8 p.m. in March 2024, Vazquez crashed his car into a truck parked in the driveway of a home in a residential neighborhood. Witnesses, who identified him as the driver, noted Vazquez exhibited signs of being drunk. Responding police officers found Vazquez’s speech was slow and slurred, his eyes red, bloodshot, and watery, and his body emitting an odor of an alcoholic beverage. He was unable to stand up without holding onto his car. Vazquez’s blood was drawn at about midnight, and his blood alcohol concentration (BAC) was 0.247 percent. A criminalist estimated his blood- alcohol level at the time of driving would be between 0.26 and 0.33 percent if alcohol consumed had been fully absorbed, and between 0.24 and 0.31 percent if his blood-alcohol level had still been rising at the time of driving. A jury convicted Vazquez of driving under the influence (DUI) (Veh.
Code,1 § 23152, subd. (a); count 1) and driving while having a measurable blood alcohol (§ 23152, subd. (b); count 2), and found true the allegation he had a BAC of 0.15 percent or higher (§ 23578). Before the jury was empaneled, he pled guilty to a misdemeanor charge of driving with a suspended license for a prior DUI (§ 14601.2, subd. (a); count 3). At a subsequent bifurcated bench trial on aggravating factors, Vazquez admitted he had been convicted of one other felony DUI in August 2022 (§ 23152, subd. (b)). The People had alleged the conviction offenses arose from Vazquez’s ninth DUI and, among other aggravators, this demonstrated he had engaged in violent conduct indicating a “serious danger to society” (Cal. Rules of Court, rule 4.421(b)(1)) and his prior convictions are numerous 1 All undesignated statutory references are to the Vehicle Code.
2 and of increasing seriousness (id., rule 4.421(b)(2)). Additionally, the People alleged Vazquez had served a prior state or local prison term (id., rule 4.421(b)(3)), committed the conviction offenses while on probation or parole (id., rule 4.421(b)(4)), and his prior performance on probation or parole was unsatisfactory (id., rule 4.421(b)(5)). The court admitted 12 exhibits representing certified California Law Enforcement Telecommunications System (CLETS) records of Vazquez’s prior convictions. Defense counsel asserted Vazquez suffered trauma from his father’s death at a young age, and his drinking was related to this trauma, which were factors in mitigation. Counsel also argued the People had not proven his convictions are increasing in seriousness or that his prior performance on parole or probation was unsatisfactory. However, counsel did not dispute Vazquez had served a prior prison term. The trial court sentenced Vazquez to the upper term of three years on count 1. Noting that it could impose the upper term based on the single aggravating factor of Vazquez’s admitted prior prison term, the court also found it true that his nine prior DUI convictions demonstrated his prior convictions are numerous and of increasing seriousness. (See Cal. Rules of Court, rule 4.421(b)(2).) Believing these gave it “plenty of reason to aggravate” the sentence, the court did not make any other findings on the remaining alleged factors. The court rejected that childhood trauma explained the decision to drive while under the influence, although it could understandably lead one to drink. As noted, Vazquez’s appellate counsel has filed a brief pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, setting forth a statement of the case and statement of facts, urging no grounds for reversal of the judgment, and asking this court to independently review the record for 3 error. Counsel identifies the following issue to assist the court in its review: “Did the trial court abuse its discretion in sentencing appellant to the upper term of three years in state prison?” (Boldface and capitalization omitted.) We have reviewed the entire record as required by Wende and Anders, and we have not discovered any arguable issues for reversal or modification of the judgment on appeal. Appellate counsel states he separately requested the trial court make a correction to the abstract of judgment. As to count 2, in its oral pronouncement of the sentence, the court stated it was imposing an upper term of three years and stayed the term pursuant to Penal Code section 654. The abstract of judgment, however, reflects that Vazquez was sentenced to “0” years on count 2 and incorrectly identifies the charge in count 2 as a duplicate count “1.” When the oral pronouncement of judgment and the abstract of judgment conflict, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185–186.) On our own motion, we direct the trial court to correct the abstract of judgment to reflect the oral pronouncement of sentence on count 2. (Id. at pp. 186–187.) Competent counsel has represented Vazquez on this appeal. DISPOSITION 4 The judgment is affirmed. The trial court is to correct the abstract of judgment to reflect that (1) the sections “23152[, subdivision] (b)/23578” charge is count “2” in the first column of paragraph 1; and (2) Vazquez was sentenced to a term of three years, stayed pursuant to Penal Code section 654 as to count 2.
DO, J.
WE CONCUR:
DATO, Acting P. J.
RUBIN, J.
Cites, in this corpus
- People v. Mitchell S090791 · 2001-07-19
- People v. Wende Crim. 20851 · 1979-10-12