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THE PEOPLE, Plaintiff and Respondent,
v.
LEO PHILLIP JACOBSON, Defendant and Appellant.

C055028

Court of Appeals of California, Third Appellate District, Butte

October 23, 2007

DAVIS, J.

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We shall affirm the judgment.

Defendant Leo Phillip Jacobson drove a car into a "domestic water well pressure tank."[1] His blood alcohol level was 0.14 percent. He initially denied he was driving the car but admitted consuming two beers before the accident. A witness reported seeing defendant enter the car, drive it forward, and collide with the water pressure tank.

At the time of the accident, defendant was on probation in Butte, Tehama, and Glenn Counties for a total of four driving under the influence (DUI) convictions.

Defendant was charged with a DUI with four prior DUI convictions (Veh. Code, §§ 23152, subd. (a), 23550, 23550.5)[2] and driving with a blood alcohol content of 0.08 percent or higher with four prior DUI convictions (§§ 23152, subd. (b), 23550, 23550.5).

Defendant pleaded no contest to the DUI charge and admitted the four prior convictions in exchange for dismissal of the remaining count.

The trial court denied probation; sentenced defendant to the middle term of two years in state prison, with 150 days of custody credit (100 actual days and 50 good conduct); imposed a $400 restitution fine (Pen. Code, § 1202.4, subd. (b)), another $400 restitution fine which was suspended unless parole is revoked (id., § 1202.45), a $20 security surcharge (id., § 1465.8); victim restitution to Sue Dyson or the "State Board of Control" in an amount to be determined (id., § 1202.4, subd. (f)); revoked his driving privileges for one year; classified him as a habitual traffic offender for three years (§§ 13350, subd. (b), 23550, subd. (b)); ordered he provide samples (Pen. Code, § 296, subd. (a)(1)); and recommended he attend drug and alcohol counseling while in prison (id., § 1203.096). Defendant appealed.

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we have received no communication from defendant.

We note an error. Defendant's driving privileges were revoked for one year. However, where, as here, a person is convicted of a DUI in violation of section 23152 and the offense occurred within 10 years of three or more separate DUI convictions in violation of section 23152, that person's privilege to operate a motor vehicle shall be revoked for four years. (§ 13352, subd. (a)(7).) Thus, defendant's driving privileges should have been revoked for four years, not one.

In the interest of judicial economy, we have addressed this error without first requesting supplemental briefing. Any party claiming to be aggrieved may petition for rehearing. (Gov. Code, § 68081.)

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is modified to reflect that defendant's driving privileges are suspended for four years. As modified the judgment is affirmed.

The trial court is directed to prepare an amended abstract of judgment to reflect this change in the judgment. The trial court is further directed to forward a certified copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation.

We concur:

BLEASE, Acting P.J.

NICHOLSON, J.

[1] The parties stipulated to, but failed to specify, a factual basis for defendant's plea. Because defendant pleaded no contest before the preliminary hearing, there is no evidentiary record on which to base a statement of the facts. Accordingly, the facts are taken from the probation report.

[2] Hereafter, undesignated section references are to the Vehicle Code.

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