Filed 12/12/14 P. v. Rodriguez CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A142407
v.
BRUCE SCOTT RODRIGUEZ,                                               (Del Norte County
                                                                     Super. Ct. Nos. CRF 13-9841,
         Defendant and Appellant.                                    PRCS 13-0027)

         Appellant Bruce Scott Rodriguez, pursuant to a negotiated disposition, entered a
plea of guilty to driving under the influence with prior felony convictions (Veh. Code,
§§ 23550.5, 23152, subd. (a)).1 The trial court denied probation and imposed a term of
confinement of two years, the maximum permitted under the terms of the plea agreement.
Rodriguez appeals his sentence. Assigned counsel has submitted a Wende2 brief,
certifying that counsel has been unable to identify any issues for appellate review.
Counsel also has submitted a declaration confirming that Rodroguez has been advised of
his right to personally file a supplemental brief raising any points which he wishes to call
to the court’s attention. No supplemental brief has been submitted. As required, we have
independently reviewed the record. (People v. Kelly (2006) 40 Cal.4th 106, 109–110.)
We find no arguable issues and therefore affirm.



         1
             Undesignated statutory references are to the Vehicle Code.
         2
             People v. Wende (1979) 25 Cal.3d 436.


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                                    BACKGROUND
       Rodriguez did not obtain a certificate of probable cause (Pen. Code, § 1237.5; Cal.
Rules of Court, rule 8.304(b)), and there are no cognizable issues before us relating to his
guilt or to his plea. (People v. Mendez (1999) 19 Cal.4th 1084, 1097, 1099; People v.
Panizzon (1996) 13 Cal.4th 68, 74.) We briefly recite the underlying facts only as they
may be relevant to the court’s sentencing choices.
       On November 9, 2013, responding to a citizen report of a suspected drunk driver,
Crescent City police officers observed Rodriguez’s truck in the parking lot of a gas
station. A passenger in Rodriguez’s vehicle indicated that Rodriguez was the driver and
had gone inside the gas station minimart. Rodriguez admitted that he had been driving,
and that he had been drinking. A breath test administered to Rodriguez resulted in
readings of .106 and .108 percent blood alcohol content. At the time of his arrest,
Rodriguez was on postrelease community supervision (PRCS) for a 2010 conviction for
driving under the influence of alcohol or drugs (case No. PRCS 13-0027).
       Rodriguez was charged by information (case No. CRF 13-9841) with driving
under the influence with prior felony driving under the influence convictions
(§§ 23550.5, 23152, subd. (a)), driving with a .08 percent or more blood-alcohol level
with prior felony driving under the influence convictions (§§ 23550.5, 23152, subd. (b)),
and misdemeanor driving with a suspended license (§ 14601.2, subd. (a)). Three prior
prison term enhancements (Pen. Code, § 667.5, subd. (b)) were also alleged. A petition
to revoke PRCS was filed based on the new offenses.
      Following an earlier mistrial, Rodriguez entered a plea of guilty on March 21,
2014, to driving under the influence with prior felony convictions (§§ 23550.5, 23152,
subd. (a)).3 The plea agreement provided for a two-year “lid” on any prison sentence to
be imposed, with Rodriguez reserving the right to argue for probation at the time of




       3
         Rodriguez earlier entered a plea, on March 10, 2014, to the misdemeanor charge
of driving on a suspended license (§ 14601.2, subd. (a)).


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sentencing. The court accepted the plea, observing that the offer seemed “overly
generous.”
      Sentencing occurred on May 1, 2014. The court rejected a probation department
recommendation for a grant of probation so that Rodriguez could be closely monitored as
to his compliance with imposed conditions, and so that the “flash incarceration”
provisions provided by the terms of his PRCS in case No. PRCS 13-0027 could be
utilized. The court stated that its view was “completely opposite,” and that considering
that this was Rodriguez sixth conviction for driving under the influence, “to expect that
I’m going to give somebody probation with a record like that is, frankly, beyond the
pale.” The court stated that Rodriguez “is a danger, and he’s going to keep going to
prison as long as he keeps driving.”
      The court discussed the applicable factors in California Rules of Court, rule 4.414,
concluding that under those factors Rodriguez was not a suitable candidate for probation.
The court stated that it considered factors in aggravation and mitigation and expressly
stated it was imposing a midterm of two-years, the maximum permissible under the plea
agreement, based on Rodriguez’s history of prior drunk driving and felony conduct. The
court imposed a concurrent one-year term on the misdemeanor count of driving with a
suspended license. Rodriguez received total custody credits of 288 days and, for the
PRCS violation, he was ordered to serve a term of 180 days in county jail concurrent with
his prison sentence.
      The court also imposed $5,245 in fines and fees. That total included a base fine of
$1,170—$660 for the felony, $500 for the misdemeanor, and a section 23645 alcohol fee
of $10. Penalty assessments and a surcharge imposed pursuant to statute totaled $2,808.
Additional fines and fees included a $585 DNA fee (Gov. Code, §§ 76104.6, 76104.7),
$234 emergency services fee (id., § 76000.5), $8 MedAir Trans Fund fee (id.,
§ 76000.10), $60 criminal conviction assessment ($30 per count) (id., § 70373), $80 court
security fee ($40 per count) (Pen. Code, § 1465.8), $300 restitution fund fine (id.,
§ 1202.4), and $300 stayed parole revocation fine (id., § 1202.45).



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      Rodriguez filed timely notices of appeal on July 7, 2014. His request for a
certificate of probable cause was denied.4
                                      DISCUSSION
       We find no arguable issues. Rodriguez was represented by competent counsel at
the time of sentencing. The court considered all relevant factors and the argument of
counsel and rejected probation. The court then set forth its reasons for the term selected.
(Pen. Code, § 1170, subd. (c).) “Probation is not a matter of right but an act of clemency,
the granting and revocation of which are entirely within the sound discretion of the trial
court. [Citations.]” (People v. Pinon (1973) 35 Cal.App.3d 120, 123.) The court the
weighed aggravating and mitigating circumstances in assessing the appropriate prison
term. (Cal. Rules of Court, rules 4.410, 4.425.) The choice of the appropriate term rests
within the court’s sound discretion. (Pen. Code, § 1170, subd. (b); see Cal. Rules of
Court, rule 4.420.) No abuse of the trial court’s “broad discretion” in sentencing is
shown. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) No arguable issues are
presented as to the fines and penalties imposed, nor as to the custody credits Rodriguez
received.
                                     DISPOSITION
       The judgment is affirmed.




       4
         Rodriguez’s request for certificate of probable cause in his pro se notices of
appeal challenged only the imposition of fines totaling in excess of $5,000, contending
that “by law can’t be fined this much if I’m also sent to prison.” He is incorrect.


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                                _________________________
                                BRUINIERS, J.


WE CONCUR:


_________________________
SIMONS, Acting P. J.


_________________________
NEEDHAM, J.




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