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THE PEOPLE, Plaintiff and Respondent,
v.
WILLIAM GAIL POTTER, Defendant and Appellant.

A123421.

Court of Appeals of California, First Appellate District, Division FiveMay 5, 2009
Not to be Published in Official Reports

NEEDHAM, J.

William Gail Potter appeals from a judgment sentencing him to the three-year upper term in state prison for a felony count of driving under the influence (DUI) with three or more prior convictions, along with consecutive jail terms on similar misdemeanor charges. (Veh. Code, §§ 23152, subdivision (a), 23550.)[1] His court-appointed counsel has filed a brief raising no issues, but seeking our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende)and Anders v. California (1967) 386 U.S. 738 (Anders). We find no arguable issues and affirm.

I. FACTS AND PROCEDURAL HISTORY

Police officers detained appellant after they saw him driving a truck while drinking a 40-ounce bottle of beer. He failed field sobriety tests and a preliminary alcohol screening breath test revealed his blood alcohol content to be .15 percent. As a result of this arrest, appellant was charged by amended complaint in case number CR084959S with felony DUI having been previously convicted of three or more alcohol-related driving offenses within the last ten years (§§ 23152, subd. (a), 23550); felony driving with a blood alcohol content of .08 percent or greater having been previously convicted of three or more alcohol-related driving offenses within the last ten years (§§ 23152, subd. (b)/23550); and knowingly driving with a license that had been revoked as a result of an alcohol-related driving offense, having been twice convicted within five years of the same offense (§ 14601.2, subd. (a)).

Before a preliminary hearing was held, appellant pled guilty to violating sections 23152, 23550 and 14601.2 in exchange for dismissal of the remaining count and allegations and an initial disposition of probation rather than state prison. Appellant also admitted a probation violation in misdemeanor case number CR066695S and pled guilty to misdemeanor DUI charges pending against him in case numbers CR084102S and CR084195S.

After reviewing the probation report, which revealed a lengthy history of drinking and driving, the trial court indicated that it would not place appellant on probation in accordance with the plea agreement. The court advised appellant that he was entitled to withdraw his plea, but appellant declined after consulting with his attorney. The court sentenced appellant to prison for the three-year upper term for the felony DUI conviction in case number CR084959S, a consecutive one-year jail term for the misdemeanor count in case number CR084195S (§ 23152, subd. (a)), a six-month term for each of the two misdemeanor counts in case number CR084102S (§§ 23152, subd. (a), 14601.5, subd. (a)), to be served concurrently to each other but consecutive to the remaining charges, and a consecutive jail sentence of 96 days for the probation violation in case number CR066695S (§ 14601.5, subd. (a)), representing the amount of time served in custody as of that date. As a reason for imposing the upper term on the felony DUI count, the court noted that the conviction was appellant's seventh conviction for drinking and driving.

II. DISCUSSION

As required by People v. Kelly (2006) 40 Cal.4th 106, 124, we affirmatively note that appointed counsel has filed a Wende/Anders brief raising no issues, that appellant has been advised of his right to file a supplemental brief, and that appellant did not file such a brief. We have independently reviewed the entire record for potential error and find none.

The trial court denied appellant's request for a certificate of probable cause and he has not sought relief from that order. Accordingly, no issues pertaining to the validity of his guilty plea are cognizable in this appeal. (Pen. Code, § 1237.5; People v. Panizzon (1996) 13 Cal.4th 68, 74-75.) In any event, appellant was adequately advised of his constitutional rights before entering his guilty plea and was given the opportunity to withdraw that plea after the trial court determined that it would not grant him probation as contemplated by the plea agreement.

On his notice of appeal, appellant states that there was "judicial misconduct by magistrate," "prejudicing case by magistrate," and "interfering in case by magistrate." The record contains no evidence of any impropriety by the trial court.

The court did not abuse its discretion or otherwise err in sentencing appellant to prison for the three-year upper term for the DUI count in case number CR084959S based on it being his seventh DUI conviction. (People v. Black (2007) 41 Cal.4th 799, 812, 818; People v. Sandoval (2007) 41 Cal.4th 825, 846-848.) The court adequately explained its reason for imposing the upper term as required by Penal Code section 1170, subdivision (b).

Although appellant advised the court at sentencing that he was a military veteran of the Vietnam War era, he did not establish that he was entitled to an alternative commitment in a federal program pursuant to Penal Code section 1170.9 or demonstrate that such programs were available as a realistic sentencing alternative. (See People v. Duncan (2003) 112 Cal.App.4th 744, 747-748; People v. Abdullah (1992) 6 Cal.App.4th 1728, 1736-1737.)

Credits for the time spent in presentence custody were properly awarded on the misdemeanor count for which appellant's probation was revoked in case number CR066695S, and he was not entitled to have those credits applied additionally to his prison sentence in the felony case where the sentences in the two cases were ordered to run consecutively. (See Pen. Code, § 2900.5, subd. (b) ["Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed"].)

Based on our review of the record, we are satisfied that appellant's appointed attorney has fully complied with the responsibilities of appellate counsel and that no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 283.)

III. DISPOSITION

The judgment is affirmed.

We concur:

JONES, P. J.

BRUINIERS, J.[*]

[1] Further statutory references are to the Vehicle Code unless otherwise indicated.

[*] Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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