Filed 12/18/14 P. v. Morrison CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----


THE PEOPLE,

                   Plaintiff and Respondent,                                                 C071790

         v.                                                                     (Super. Ct. No. LF012360A)

TROY LORAY MORRISON,

                   Defendant and Appellant.

         Appointed counsel for defendant Troy Loray Morrison asked this court to review
the record to determine whether there are any arguable issues on appeal. (People v.
Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a
disposition more favorable to defendant, we affirm the judgment.
         We provide the following brief description of the facts and procedural history of
the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
                                                  BACKGROUND
         On December 19, 2010, California Highway Patrol Officer Michael Walling was
patrolling a section of freeway in San Joaquin County when he saw defendant, driving a
pick-up truck, weaving from lane to lane and up onto the shoulder. Officer Walling
initiated a traffic stop and defendant nearly crashed his vehicle as he was exiting the
freeway.

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       Officer Walling approached defendant and asked to see his driver’s license.
Defendant told Walling he did not have a driver’s license. Walling noticed defendant’s
eyes were red and watery, his speech slurred, and the smell of alcohol was emanating
from inside the truck. At Walling’s request, defendant stepped out of the truck;
defendant admitted to drinking a bottle of wine. Defendant was arrested and
subsequently charged with driving under the influence (Veh. Code, § 23152, subd. (a)),1
driving with a blood-alcohol level of 0.08 percent or higher (§ 23152, subd. (b)), and
driving with a license that was currently suspended for driving under the influence
(§ 14601.2, subd. (a)). It was further alleged defendant had three prior convictions for
driving under the influence. (§ 23550.)
       Defendant moved to suppress evidence obtained at the December 19, 2010, traffic
stop. The trial court denied his motion. Defendant also filed a pretrial discovery request
pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531. The trial court granted the
request in part.
       Defendant then moved to strike the allegation that in September 2001 in Santa
Clara County case No. C108803, he was convicted of driving with a blood-alcohol
content at or exceeding 0.08 percent. (§ 23152, subd. (b).) He argued his September
2001 conviction was constitutionally invalid because he had not been advised of all his
constitutional rights before entering into the plea that led to his conviction. Specifically,
defendant argued he was never advised he could challenge his 1996 conviction for
driving under the influence, which was alleged in the Santa Clara County case as a
sentencing enhancement.
       At the initial hearing on defendant’s motion to strike, the People presented a
certified copy of the misdemeanor complaint in Santa Clara County case No. 0108803,
along with a rights waiver and plea form. The trial court admitted those documents into



1      Undesignated statutory references are to the Vehicle Code.

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evidence and found the People met their burden of establishing the prior conviction. The
court then advised defendant the burden was his to prove by a preponderance of the
evidence the conviction was constitutionally invalid.
       In support of his claim, defendant noted on the September 25, 2001, plea form, he
did not initial the box indicating he had been advised of his right to challenge the 1996
conviction alleged as a sentencing enhancement; nor did he waive that right. Defendant
also submitted a declaration saying he was never advised he had the right to challenge the
allegation of a prior conviction, and had he been so advised, he would not have entered
into the plea. In response, the People argued the minute order, signed by the clerk, was
sufficient to show, in fact, defendant was advised of all his rights.
       The trial court then advised defendant that, according to section 41403,
subdivision (b), to meet his burden, defendant was required to produce “ ‘transcripts of
the relevant court proceedings at the time of the entry of the defendant’s plea,’ ” and
defendant failed to do so. If there was no transcript from the relevant plea hearing, the
court told defendant he needed to produce a declaration from someone at the Santa Clara
County Superior Court saying there was no reporter’s transcript available. The court also
noted the “DUI advisement of rights of waiver plea form” was signed by defendant and
his attorney a month before the plea hearing. This caused the court some concern: “That
suggests to me there may have been more said at that hearing than what was in the form.”
       The trial court also raised the issue of laches. The court noted defendant never
challenged the validity of his September 2001 conviction, although it was twice alleged
as a prior conviction for driving under the influence and defendant twice admitted to it.
The court ruled defendant failed to meet his burden. After further argument from
counsel, the trial court set a briefing schedule to allow defendant and the People to
address the issue of laches, and to give defendant and the People an opportunity to
present further evidence.




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       Defendant subsequently filed a letter from Bonita Ann Jessup, a retired court
reporter with the Santa Clara County Superior Court, in which Jessup made the following
statement: “I am returning your request for a reporter’s transcript regarding the above
case on September 25, 2001. All court notes are destroyed after 10 years except for death
penalty cases. You might check with the Clerk’s Office to see if they still have their file.
My understanding is before they destroy a file, the whole file is copied onto micro fiche.
That would have the court docket and snap-outs from each court appearance.”
       The People filed a certified copy of the docket and minutes from defendant’s plea
hearing in Alameda County in March 2007. The minutes reflect that, at that hearing,
defendant was fully advised of his constitutional rights, pled no contest to violating
section 23152, subdivision (a), and admitted his 2001 conviction in Santa Clara County
for violating section 23152, subdivision (b).
       The People also filed certified copies of documents related to defendant’s
conviction for violating section 23152, subdivision (b), in San Joaquin County in 2008.
Included in those documents were defendant’s written plea agreement, the minutes and
minute orders from the entry of defendant’s plea and sentencing, as well as the complaint
filed in that matter. Those records indicate defendant was fully advised of his
constitutional rights prior to entering his plea. The records also indicate that, as part of
his plea agreement, defendant admitted to two prior convictions for driving under the
influence: (1) the 2001 conviction in Santa Clara County and (2) the 2007 conviction in
San Joaquin County.
       Defendant then submitted a declaration from Jessup stating all court notes are
destroyed after 10 years and she had no record or transcript of the plea. Defendant also
submitted the declaration of his counsel, who said his staff went to the criminal division
records department of Santa Clara County Superior Court and reviewed the file related to
defendant’s 2001 plea. Counsel’s staff informed him there were no transcripts of the plea
hearing in the file.


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       Following submission of the evidence and argument of counsel, the trial court
denied defendant’s motion to strike the prior conviction. Defendant then pled no contest
to driving with a blood alcohol level at or above .08 percent. The trial court dismissed
the remaining charges and granted defendant five years’ formal probation.
       Defendant appeals. His request for a certificate of probable cause was granted.
                                        DISCUSSION
       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. On May 21, 2013, defendant filed a
supplemental brief with this court.
       In his supplemental brief, defendant contends the trial court erred in denying his
motion to strike the allegation of a prior conviction because his 2001 conviction for
driving under the influence was constitutionally infirm. Regardless of whether
defendant’s claim has merit, it is barred by collateral estoppel.
       Collateral estoppel bars relitigation of an issue previously decided “ ‘if (1) the
issue necessarily decided at the previous trial is identical to the one which is sought to be
relitigated; if (2) the previous trial resulted in a final judgment on the merits; and if
(3) the party against whom collateral estoppel is asserted was a party or in privity with a
party at the prior trial.’ [Citation.]” (People v. Lawley (2002) 27 Cal.4th 102, 163;
People v. Scott (2000) 85 Cal.App.4th 905, 919.)
       Following defendant’s conviction in 2001, defendant twice admitted to that
conviction: first in 2007, and again in 2008. In neither of those instances did defendant
challenge the constitutionality of his 2001 conviction. The record on appeal establishes
that in 2007 and in 2008, defendant was represented by counsel at the time of his plea,
was advised of all his rights, and personally waived them. Thus defendant has twice


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already admitted the validity of his 2001 conviction, those judgments are final, and
defendant was a party in the prior actions. Under these circumstances, defendant is
precluded from now challenging the constitutional validity of his 2001 conviction.
       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 affirmed.



                                                       HOCH         , J.



We concur:



      MAURO           , Acting P. J.



      DUARTE          , J.




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