Filed 8/25/20 P. v. Vasquez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

URSINO OLIVERA VASQUEZ,

Defendant and Appellant.

 H047580, H047670

 (Monterey County

 Super. Ct. No. 18CR010905)

On November 15, 2018, around 2:25 p.m., an officer of the California Highway 

Patrol stopped a car after receiving a report that it was weaving in and out of traffic lanes 

on Highway 101.1 The driver, who was later identified as appellant Ursino Olivera 

Vasquez, told the officer his name was Pablo Melo Olivera. He had the odor of alcohol 

on his breath, appeared unsteady on his feet, and spoke with slurred speech. The officer 

determined Vasquez was driving under the influence of an alcoholic beverage, conducted 

an inventory search of the vehicle, and located papers with the name “ ‘Ursino 

Vasquez’ ” on them. Vasquez confirmed that this was his true name. 

The officer performed breath tests on Vasquez that indicated that his blood alcohol 

level was .24 percent and .25 percent. Investigation revealed that Vasquez’s license was 

1 These facts are taken from Vasquez’s probation report.
2

suspended, and he had suffered three prior convictions for driving under the influence. In 

addition, Vasquez had been ordered to install an ignition interlock device on his car, but 

the vehicle he was driving had no such device. 

On January 31, 2019, Vasquez was charged by information with felony driving 

under the influence of alcohol or drugs (DUI) with three prior convictions (Veh. Code, 

§ 23152, subd. (a)2; count 1) and an enhancement of having a blood alcohol concentration 

of .15 percent or more (§ 23578); driving with a blood alcohol level of .08 percent or 

more with three priors (§ 23152, subd. (b); count 2) and an enhancement of having a 

blood alcohol concentration of .15 percent or more (§ 23578); misdemeanor driving when 

his driving privilege was suspended for a prior DUI conviction (§ 14601.2, subd. (a); 

count 3); misdemeanor operating a vehicle without a functioning ignition interlock device 

(§ 23247, subd. (e); count 4); and misdemeanor giving a false name to a police officer 

(Pen. Code, § 148.9, subd. (a); count 5). 

Pursuant to a written plea agreement, on March 21, 2019, Vasquez pleaded no 

contest to count 1 and admitted an allegation under section 23550. The plea agreement 

provided that he would receive felony probation and serve up to one year in the county 

jail as a condition of probation. Vasquez did not waive his appellate rights in the plea 

agreement. 

On April 18, 2019, the trial court suspended imposition of sentence and placed 

Vasquez on formal probation for a period of five years. The trial court ordered a number 

of conditions of probation, including that Vasquez serve 250 days in the county jail;

totally abstain from the use of alcoholic beverages; not purchase or possess alcoholic 

beverages; and obey all laws.

3 The trial court imposed a variety of fines and fees and 

2 Unspecified statutory references are to the Vehicle Code.

3 The trial court awarded no custody credits and ordered the sentence to run 

consecutively to two violation of probation matters that are not at issue in this appeal. 

The trial court awarded custody credits in the violation of probation matters.
3

dismissed the remaining charges and enhancements. At the sentencing hearing, Vasquez 

told the court that this was the end of his “bad behavior.” He said, “This is where I stop. 

I don’t want to drink anymore.” 

On August 12, 2019, the probation office filed a petition alleging that Vasquez had 

violated his probation by committing a new law violation (a violation of Penal Code 

section 647, subdivision (f)) and by consuming alcohol. On August 27, 2019, the trial 

court revoked Vasquez’s probation. In a hearing that day, the prosecution described the 

facts of the new alleged offense: “he was found just passed-out drunk on somebody’s 

front porch” and, when roused, was “totally incoherent.” Vasquez’s blood alcohol level 

was .18 percent. On September 3, 2019, Vasquez admitted he had violated the terms of 

his probation by committing a new criminal offense. 

The probation office prepared a report for Vasquez’s sentencing on the violation 

of probation. The officer who interviewed Vasquez reported that Vasquez said he wanted 

to attend DUI classes and was willing to go to AA meetings. Vasquez acknowledged he 

had made a mistake but stated that he did not want residential treatment because his 

drinking problem was not severe. He had been sober for several months and only drank 

alcohol because he wanted to see his children. The probation officer recommended that 

Vasquez’s probation be reinstated and he be ordered to attend a residential treatment 

program. 

On September 24, 2019, the trial court conducted a sentencing hearing on the 

violation of probation. The prosecutor asked the court to deny probation because 

Vasquez did not believe he had an alcohol problem and did not want to attend residential 

treatment and therefore would not benefit from probation. Vasquez’s defense counsel 

stated that she had had conversations with Vasquez about residential treatment and he 

was “to be clear, willing to go.” She argued that Vasquez, when he spoke with probation, 

did not “fully recognize[] how serious the problem was.” Defense counsel argued that 
4

Vasquez would serve additional time in custody even if he were given another chance on 

probation. She requested that the trial court reinstate probation. 

The trial court stated that it had read and considered all the materials presented to 

it, as well as Vasquez’s statements. The trial court observed that Vasquez had a history 

of alcohol-related offenses, but Vasquez did not believe he had an alcohol problem. 

Based upon Vasquez’s “high blood alcohol driving pattern” and his conduct during the 

case, the trial court found that the aggravating factors outweighed the mitigating factors, 

denied Vasquez probation, and imposed the upper term. The trial court sentenced 

Vasquez on count 1 to three years to be served in the county jail. The trial court awarded 

Vasquez 123 days of actual custody credits and 122 days of good time/work time, for a 

total credit for time served of 245 days.4

On November 15, 2019, Vasquez moved the trial court to modify the previously 

imposed sentence and reinstate his probation. Vasquez stated that he now wanted to do a 

residential alcohol treatment program, and he had not previously understood the 

importance of alcohol treatment to his recovery. In the alternative, defense counsel 

requested that the trial court “split[]” Vasquez’s sentence. In the motion defense counsel 

stated, “Defense counsel should have, but failed, to address factors in mitigation at the 

time of sentencing.” Defense counsel emphasized that Vasquez had no prior felony 

convictions, and Vasquez was addicted to alcohol. On November 19, 2019, the trial court 

denied the motion to reconsider the sentence. 

Vasquez timely appealed the judgment. This court assigned the appeal docket No. 

H047580.

On December 12, 2019, Vasquez filed a notice of appeal from the trial court’s 

November 19, 2019 postjudgment order denying his motion to recall his sentence. This 

court assigned the appeal docket No. H047670. On January 9, 2020, this court ordered 

4 The trial court also sentenced Vasquez on another probation matter that is not an 

issue in this appeal. 
5

that the appeals in both dockets be considered together for the purpose of briefing, oral 

argument, and disposition.

We appointed counsel to represent Vasquez on appeal. Appellate counsel filed an 

opening brief stating the case and the facts but raising no specific legal issues. Counsel 

has declared that she notified Vasquez both of her intention to request independent 

review under People v. Wende (1979) 25 Cal.3d 436 (Wende) and of Vasquez’s right to 

file written argument on his own behalf. We notified Vasquez of his right to submit 

written argument on his own behalf but have received no response from him.

We have reviewed the record under Wende, supra, 25 Cal.3d 436 and People v. 

Kelly (2006) 40 Cal.4th 106. Concluding there is no arguable issue on appeal, we affirm 

the judgment.

DISPOSITION

The judgment is affirmed.
______________________________________

Danner, J.

WE CONCUR:

____________________________________

Greenwood, P.J.

____________________________________

Grover, J.

H047580, H047670

People v. Vasquez