Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 02SF0345, Richard M. King, Judge.
Thomas William Smith and Thomas William Smith for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
Defendant Leandro Casas was convicted after a jury trial of drunk driving (Veh. Code, § 23152, subds. (a), (b); all further statutory references are to this code unless otherwise stated). The trial court subsequently found true that defendant had previously been convicted of three incidents of drunk driving within the past seven years (§ 23550, subd. (a)), had served a prior prison term (Pen. Code, § 667.5, subd. (b)), three serious and violent felony convictions (Pen. Code, § 1170.12, subds. (b), (c)(2)(A)) and one prior conviction for driving with a suspended license (§ 14601.2, subd. (a)). Before trial, defendant pleaded guilty to driving with a suspended license. The court sentenced him to a term of five years.
The primary focus of defendant’s brief is that he cannot be guilty of drunk driving because he was not seen actually moving the vehicle in which he was found. As we will explain, this is not essential as long as there is circumstantial evidence he did so. We also reject defendant’s attack on a number of jury instructions, reject his contention the court abused its discretion in permitting impeachment of his wife, reject his contention there was prejudicial prosecutorial misconduct, reject his contention there were sentencing errors, and affirm the judgment.
We note that counsel for defendant does not gain points by his derogatory inferences concerning the conduct of the trial judge. In the absence of judicial misconduct, and there clearly is none here, such comments are entirely inappropriate.
FACTS
Late in the evening, Deputy Sheriff Todd Schmaltz received a dispatch call directing him to a location near a Goodyear store in Mission Viejo. He was told to look for a person passed out behind the wheel of a vehicle. When he arrived, he saw a red Ford Explorer parked diagonally across two parking spaces. The vehicle’s lights were on, the engine was running, and there was a person in the driver’s seat. When Schmaltz turned on his lights to illuminate the interior of the SUV, the person, who was slouched in the seat, still did not move. Shortly, after Deputy Sheriff Kenneth Francisco arrived, Schmaltz went to the driver’s side of the SUV, noticed that the window was down, and started to try to arouse the driver by talking to him. There was no response. Schmaltz then gave the driver a shove, whereupon the latter woke up and started to reach for the gear shift. Francisco turned off the ignition and took the keys. Defendant’s eyes were bloodshot and watery and he smelled of alcohol. When asked for his driver’s license, defendant handed a credit card to Schmaltz. His speech was mumbled and soft. A videotape of the events in the parking lot was shown to the jury.
Thereafter, Schmaltz described a horizontal gaze nystagmus test he preformed. Francisco testified to other tests, including a so-called Rhomberg test for balance, walk and turn, a one-leg stand, and a finger-to-nose test. The results of all of these tests indicated impairment. Francisco then arrested defendant. A subsequent blood test revealed a blood alcohol level of .20.
Defendant’s wife testified that she had driven the truck, and after the two of them started to argue, she left the car where it was found by the officers and walked home.
DISCUSSION
1. Substantial evidence supports the verdict.
In arguing that there was no substantial evidence to support his conviction, defendant relies on Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753. Mercer involved an appeal from a writ proceeding following revocation of the defendant’s driving privileges because of his refusal to submit to chemical testing. The only issue in the case was whether, under facts similar to those here, the defendant’s misdemeanor arrest without a warrant was permissible where the officer had not seen the defendant drive the vehicle. The court held that it was not. (Id. at p. 756.)
But Mercer is based solely on the legality of the arrest, not an issue here. The Mercer court expressly stated it did “not hold that observed movement of a vehicle is necessary to support a conviction for ‘drunk driving’ under section 23152. The lower courts have routinely upheld such convictions in the absence of evidence of observed movement of a vehicle. [Citation.] Nothing in this opinion calls in question the holdings of these cases.” (Mercer v. Department of Motor Vehicle v. supra, 53 Cal.3d at pp. 756-757.) In a more recent case our Supreme Court reiterated the limited applicability of Mercer in stating “[i]n Mercer, . . . the issue was whether the ‘lawful arrest’ requirement of the implied consent statute [citation] . . . had been met where, under the law then in effect, the officer lacked statutory authority to effect a warrantless misdemeanor arrest for a driving-while-under-the-influence offense that was not committed in the officer’s direct presence.” (Troppman v. Valverde (2007) 40 Cal.4th 1121, 1136, fn. 11.)
Here there was sufficient circumstantial evidence defendant had driven the truck to the place where the officers found it. The vehicle’s lights were on, the engine was running, and defendant, the sole occupant of the vehicle, was in the driver’s seat. Similar facts have been held to constitute substantial circumstantial evidence of driving. (E.g., People v. Garcia (1989) 214 Cal.App.3d. Supp. 1, 5; People v. Wilson (1985) 176 Cal.App.3d. Supp. 1, 8-9; People v. Hanggi (1968) 265 Cal.App.2d. Supp. 969, 971.)
2. The trial court properly instructed the jury.
Defendant takes issue with the court having instructed the jury in the language of CALCRIM No. 2241, which reads: “A driver is a person who drives or is in actual physical control of the vehicle. . . . [¶] A person drives a vehicle when he or she intentionally causes it to move by exercising actual physical control over it. The person must cause the vehicle to move, but the movement may be slight.” This is a correct statement of the law and tracks section 305. An issue to be determined by the jury was whether defendant drove the truck. The definition of “driver” may have been superfluous; but the remaining portion of the instruction correctly told the jury that intentionally causing the vehicle to move by exercising actual physical control over it constitutes “driving.” Also, in giving CALCRIM No. 2110, the court made it clear that the prosecution had the burden of proving that “defendant drove a vehicle.”
The court was under no obligation to give the formula instruction submitted by defendant’s counsel. In the remainder of his argument concerning this instruction, defendant again ignores the presence of circumstantial evidence we related earlier and asks us to merely accept the testimony of defendant’s wife as “the truth.” It is, of course, a basic rule of appellate jurisprudence in this state that we do not substitute our opinion of the credibility of witnesses over that of the fact finder in the trial court. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206-1207.)
Next, defendant attacks the giving of CALCRIM No. 2130. The instruction iterates the requirement that a lawfully arrested driver submit to a chemical test and provides further that “[i]f the defendant refused to submit to such a test . . ., then the defendant’s conduct may show that he was aware of his guilt.”
The court was justified in giving the instruction. Deputy Francisco testified that when defendant was asked whether he wanted a blood or a breath test, he refused several times. It was only when Francisco told defendant that if he would not let a technician in the jail draw his blood it would be taken at the hospital, that defendant relented. “[T]he law of implied consent mandates that an arrestee is required to submit to and complete one of the three tests upon their first having been offered to him by an arresting officer.” (Dunlap v. Department of Motor Vehicles (1984) 156 Cal.App.3d 279, 283.)
Defendant’s next argument pertains to a portion of CALCRIM No. 2110. That instruction defines the crime of driving under the influence of an alcoholic beverage, defines “under the influence,” and defines “alcoholic beverage.” Defendant focuses on the portion of CALCRIM No. 2110 that states that “[t]he manner in which a person drives is” “a factor to be considered, in the light of all the surrounding circumstances . . . .”
He first attacks this instruction on the basis that “there is no evidence” that he drove the truck to the parking lot where he was found. We dealt with this issue earlier. In light of the fact that no witness saw defendant drive, this sentence in the instruction might be considered superfluous. But this very fact makes it harmless; absent such evidence, the jury could hardly have considered the manner in which defendant drove his vehicle.
Defendant’s last attack on the jury instructions focuses on the court’s failure to instruct on public drunkenness (i.e., public intoxication) as a lesser included offense. We agree with the Attorney General that public intoxication as defined in Penal Code section 647, subdivision (f) contains as an element that the person guilty of the crime be “in a condition that he or she is unable to exercise care for his or her own safety or the safety of others, or . . . interferes with or obstructs or prevents the free use of any street, sidewalk, or other public way.” Neither of these elements are part of the crime of driving under the influence under section 23152, subdivision (a). An offense is necessarily included within another if “the statutory elements of the greater offense . . . include all the elements of the lesser offense . . . .” (People v. Birks (1998) 19 Cal.4th 108, 117.)
3. There was no abuse of discretion in permitting impeachment of defendant’s wife.
Although neither party gives us a record reference, both agree that the court overruled an objection to impeachment of defendant’s wife with evidence of her having pleaded guilty to writing checks with intent to defraud, a misdemeanor. Defendant acknowledges that misdemeanor convictions may be used to impeach witnesses if they involve moral turpitude. (See People v. Robinsen (2005) 37 Cal.4th 592, 626.) We cannot conclude that the court abused its discretion in admitting the evidence. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314 [“We will not overturn or disturb a trial court’s exercise of its discretion under section 352 in the absence of manifest abuse, upon a finding that its decision was palpably arbitrary, capricious and patently absurd”].)
4. There was no prosecutorial misconduct such as to require a reversal.
The prosecutor’s reference to defendant’s refusal to submit to a preliminary alcohol screening test was cured by the court sustaining an objection and admonition to the jury. The second allegation of misconduct is that the prosecutor stated that “defendant’s wife was not truthful with you” and, during rebuttal, “[h]is wife comes in and testifies, not truthfully.” As noted by the Attorney General, defendant did not object to the statements and thus waived any claim of error. (People v. Garceau (1993) 6 Cal.4th 140, 205-206 overruled on another ground in People v. Yeoman (2003) 31Cal.4th 93, 117-118.) In addition, there was substantial evidence to support a conclusion that defendant’s wife was prevaricating. She claimed to have talked to one of the deputies on the night of her husband’s arrest, an allegation contradicted by the deputies.
Finally, the prosecutor did improperly disparage defendant’s lawyer. But again, the court excused the jury and told the prosecutor his statement was improper; when the jury was reconvened, the court told them to disregard the remark. We must assume that the jury followed the court’s instructions. (People v. Stitely (2005) 35 Cal.4th 514, 559.)
5. The trial court did not commit sentencing error.
Defendant claims some five sentencing errors. We considered all his contentions and reject them.
Relying on People v. Tillotson (2007) 157 Cal.App.4th 517, defendant argues that Penal Code section 654 precludes his sentence being enhanced both under the “Three Strikes” law and section 23550. Under section 23550, the court may sentence drunk driving as a felony where the defendant has been convicted three or more times of drunk driving during the preceding 10 (formerly 7) years. Under the Three Strikes law (Pen. Code, § 667, subd. (e) (1)), a person previously convicted of a defined felony shall be sentenced to an indeterminate term, “twice the term otherwise provided as punishment for the current felony conviction.” Penal Code section 654, subdivision (a) provides that “[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” In Tillotson the trial court erroneously used a single enhancement to impose two 3-year prison terms. (People v. Tillotson, supra, 157 Cal.App.4th at p. 542.) The case was unrelated to Penal Code section 654. And here there is not “dual use” of a single prior. The conviction under section 23152 became a felony because of defendant’s prior drunk driving convictions. The sentence enhancement under the Three Strikes law was based on prior felony convictions.
Defendant next contends the trial court erred in selecting the mid-term. Section 23550 provides that a conviction of drunk driving with three or more prior convictions during the preceding 10-year period (formerly 7-year period) may be punished as a misdemeanor or as a felony. The court chose the latter. Penal Code section 18 provides that, absent another provision, “every offense declared to be a felony, or to be punishable by imprisonment in state prison, is punishable by imprisonment . . . for 16 months, or two or three years . . . .” The trial court chose the two-year mid-term, doubled it under the Three Strikes law, having stricken all but one prior, and enhanced the sentence under Penal Code section 667.5, subdivision (b) by one year for the prior prison term. There was no error.
Defendant also attacks the prison term enhancement by arguing that he had been out of prison for more than five years. In doing so, he hopes we ignore the fact that, even though he was initially released from custody on March 26, 1996, his parole was revoked and his subsequent imprisonment did not end until September 18, 1999, less than three years from his present drunk driving offense.
Defendant was not denied his right to a jury trial on his prior convictions because he waived this right. This waiver took place during the afternoon session of April 24, 2006. On April 26, before jury selection was completed, the court granted defendant’s motion for a mistrial and thereupon started selection of a new jury. Defendant fails to provide authority for the proposition that a second waiver to a jury trial on the prior convictions was required under these circumstances and we know of no reason why this should be so.
The final attack on the sentence is the failure of the court to grant defendant presentencing credit for time he spend in an alcohol/drug treatment facility. Under Penal Code section 2900.5 he would be entitled to such credit if the program was sufficiently restrictive to constitute “custody.” (People v. Schnaible (1985) 165 Cal.App.3d 275, 277.) Defendant does not address the extent of restrictions on his freedom of movement in his brief. The Attorney General calls our attention to the report provided by “Sober Living By The Sea,” the facility where defendant was treated, that was supplied to the Probation Department. It fails to provide sufficient facts to permit us to conclude that the court erred in determining that the rules of the facility were sufficiently restrictive to require the invocation of Penal Code section 2900.5.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O’LEARY, J., IKOLA, J.