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People v. August

Court of Appeals of California, First Appellate District, Division One.
Nov 21, 2003
No. A101371 (Cal. Ct. App. Nov. 21, 2003)

Opinion

A101371.

11-21-2003

THE PEOPLE, Plaintiff and Respondent, v. LARRY L. AUGUST, Defendant and Appellant.


Defendant Larry L. August was convicted of felony driving under the influence of alcohol (DUI) and related misdemeanors. The trial court found that defendant suffered three prior prison-term convictions (Pen. Code, § 667.5, subd. (b)), including two prior convictions for felony DUI. Defendant contends the trial court erred by admitting the two prior felony DUI convictions for purposes of impeachment. He also contends the court should have granted a mistrial when the prosecutor brought out on cross-examination that defendant had gone to prison for the prior convictions. Finally, he suggests the prosecutor committed misconduct in closing argument by suggesting the prior convictions showed defendant had a propensity to drink and drive and therefore was guilty of the present offense. We disagree with defendants contentions and affirm.

I. FACTS

Under applicable standards of appellate review, we must view the facts in the light most favorable to the judgment of conviction, and presume in support of the judgment the existence of every fact which the court or jury could reasonably find from the evidence. (People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Neufer (1994) 30 Cal.App.4th 244, 247.)

On September 22, 2002, at approximately 11:30 p.m., Fortuna Police Officer Gregory Hill was on patrol duty in downtown Fortuna. He was parked in the 600 block of 9th Street, watching the stop sign at 9th and Main. Officer Hill saw a Nissan Sentra roll through the stop sign and continue driving. Hill decided to stop the car and cite the driver for failing to stop at the stop sign.

Hill activated his emergency lights. The Nissan drove through a laundromat parking lot, rolled through another stop sign, and came to a stop. Hill pulled up behind it. The driver of the Nissan, whom Hill identified in court as defendant, immediately got out of the car and walked back towards Hills patrol car. Defendant was moving "very quickly" and was "flailing his arms underneath his . . . long camouflage jacket . . . ." Hill was not sure "exactly what [defendant] was doing." Defendant "was yelling" and "shouting."

Hill got out of his patrol car and ordered defendant to get back in the Nissan. Hill had to repeat the order four times. Because Hill was not sure whether defendant had a gun under his jacket, Hill put his hand on his pistol but did not draw it. After Hills repeated commands defendant put his hands up in the air and turned completely around twice. After the fifth order to get back in the Nissan, defendant complied.

Hill went up to the drivers door. He saw a female passenger in the car, later identified as defendants wife, Marvis Smith. Hill spoke to defendant through the window in the drivers door. Defendant was "very nervous and fidgety. He kept placing his hands from the steering wheel, down on his thighs, back up to the steering wheel, down to his thighs." Defendant was "agitated [and] aggressive." Defendants eyes were "red, bloodshot, real glassy, watery looking." Defendants speech was "slurred and slow," and there was "a strong odor of alcohol coming from [his] breath [and] his person."

Hill asked defendant for identification and asked him his name. Defendant responded by saying several times, "You know what my name is." But Hill did not know who defendant was. Defendant did not have a drivers license.

Because defendant had all the objective signs of being under the influence of alcohol, Hill conducted field sobriety tests (FSTs). Defendant "was staggering around" and "[h]is balance was a little messed up." Defendant failed three different FSTs. Hill did not require defendant to complete a fourth FST, involving standing on one leg, because defendant told him he had bad knees and hips.

Hill asked defendant to perform a preliminary alcohol screening test (PAS), by blowing into the tube of a hand-held breathalyzer machine. Defendant could not complete two separate PASs because he failed to blow strongly enough into the tube.

Hill concluded defendant was driving under the influence of alcohol and arrested him. After he placed defendant in his patrol car he noticed defendants vehicle registration had expired.

Hill took defendant to the police station and told him he was required by law to take either a blood or a breath test to determine his blood-alcohol level. Defendant chose a breath test. Despite three attempts at a breath test, defendant could not complete one because he did not blow long or hard enough into the breathalyzer machine. Defendant, who was being loud and aggressive, was "yelling" at Hill and did not appear to have trouble breathing.

Hill then told defendant he was required to complete a blood test, but defendant refused. Defendant continued to yell and scream "very loudly." Defendant continued to exude a strong odor of alcohol. There was "no doubt in [Hills] mind" that defendant was under the influence of alcohol to the point where he could not safely operate a vehicle.

Officers White and Bialous arrived at the scene of defendants arrest as back-up for Officer Hill. They observed defendant, described him as loud, aggressive and disorderly, and concluded he was under the influence of alcohol.

In anticipation of testifying on his own behalf, defendant made a motion in limine to exclude his two prior convictions of felony DUI, one suffered in 1994 and one in 2001. Defendant argued their probative value was outweighed by their prejudicial impact, because they were identical to the primary charged offense in the present case. The trial court ruled that the two prior felony DUI convictions were admissible for purposes of impeachment, and declined a defense request to "sanitize" the DUI priors by admitting only the fact and the date of conviction, and not the nature of the offense.

Facing impeachment with two prior felony DUI convictions, defendant nevertheless took the stand. The following is a summary of his testimony regarding the events.

On the afternoon before his arrest defendant had been at his uncles wake at the Moose Lodge in Eureka. Alcohol was served but he had nothing to drink. About 5:00 p.m., defendant and his wife left the wake and went home, where they watched TV, talked, and cried. Defendant was upset about his uncles death. Defendant did not drink any alcohol at home.

About 11:00 p.m., defendant and his wife drove into Fortuna to get something to eat. Defendant admitted running the stop sign at 9th and Main. He saw Officer Hills patrol car and felt worried—he did not have a drivers license because of "[t]oo many drunk drivings." When Hill pulled him over, he waited about 30 seconds. When Hill did not get out of his patrol car defendant got out of his car to walk back and see what Hill wanted. Hill repeatedly told defendant to get back in the car, and drew his weapon.

Defendant unzipped and opened his jacket and put his hands in the air, so Hill could see he was unarmed. Defendant got back into his car. Hill came up to the drivers window and asked defendant for a drivers license. Defendant said, "You guys know who I am," and told Hill he did not have an ID.

Hill told defendant to get out of the car and administered FSTs. Defendant claimed he passed them. He also claimed that Hill did require him to stand on one leg; defendant denied telling the officer he had bad knees and hips. Defendant blew "normal breath" into the tubes for the PASs; he denied barely breathing into the tubes.

At the police station, defendant blew as long as he could, with all the air in his lungs, into the breathalyzer machine. When the police said he wasnt blowing long enough he felt he was being harassed. The police never offered him a blood test.

Defendant denied drinking and driving on the evening of his arrest. On cross-examination, he admitted that he knew a chemical test provided more evidence of blood alcohol-level, and that he had refused a chemical test in the past when arrested for DUI.

The jury did not believe defendants version of events and convicted him of felony DUI, i.e., driving under the influence with a prior conviction of felony DUI. (Veh. Code, §§ 23152, subd. (a), 23550.5.) The jury made a special finding that defendant refused or failed to complete a chemical test for blood alcohol-level. (§ 23577.) The jury also convicted defendant of unlawful display or presentation of registration, a misdemeanor. (§ 4462, subd. (b).)

Subsequent statutory citations are to the Vehicle Code unless otherwise indicated.

Just before trial defendant pled guilty to a third charge, driving with a suspended or revoked license, a misdemeanor. (§ 14601.2, subd. (a).) Just after the guilty verdicts, the trial court found that defendant had suffered a prior conviction of driving without a license, and had suffered three prior felony convictions for which he served prison terms (Pen. Code, § 667.5, subd. (b)): felony DUI in 2001, felony DUI in 1994, and second degree burglary in 1987.

The court sentenced defendant to the aggravated term of three years for the felony DUI, plus one year for each of the prior convictions for which he served a prison term, for a total of six years.

II. DISCUSSION

Defendant raises three assignments of error involving his two prior felony DUI convictions. He contends that the trial court erred by admitting the two priors for purposes of impeachment, that the court should have granted a mistrial when the prosecutor brought out on cross-examination that defendant had gone to prison on the priors, and that the prosecutor committed misconduct in closing argument by suggesting the priors showed defendant had a propensity to drink and drive. Defendants contentions lack merit. In any case, any error would be harmless in light of the jurys determination of the evidence and our examination of the record.

A. Impeachment

As noted, defendant moved prior to testifying for an order precluding the People from using the two DUI priors to impeach his credibility. Defendant suggested the People could use two prior theft-related priors—his 1987 burglary conviction and an uncharged 1983 conviction for unlawful taking of a vehicle (§ 10851)—instead of the two priors for the same DUI offense currently charged. Defendant argued that because the DUI priors were identical to the charged offense, their prejudicial impact outweighed their probative value. (Evid. Code, § 352.) Defendant was concerned that use of the priors would go beyond impeachment and show propensity: "[H]e did it before so he must have done it now."

The trial court found that all four priors involved moral turpitude and were thus admissible for impeachment. Applying the four-factor analysis of People v. Beagle (1972) 6 Cal.3d 441 (Beagle), as well as Evidence Code section 352 (section 352), the court concluded that the earlier theft-related priors were too prejudicial because they were too remote in time and "might confuse the jury as far as what were really here for." But the court concluded the DUI priors were more probative than prejudicial and could be used to impeach defendant. The court denied defendants request to sanitize the DUI priors: "[I]f [defendant] testifies, the jury should be advised as to the nature of those two convictions from the last 10 years or so."

We review the trial courts ruling for abuse of discretion. (People v. Clair (1992) 2 Cal.4th 629, 655 (Clair); People v. Stewart (1985) 171 Cal.App.3d 59, 65 (Stewart).) We find none.

Beagle set forth four factors to guide a trial courts discretion to admit prior convictions as more probative than prejudicial under section 352: "(1) whether the prior conviction reflects on honesty and integrity; (2) whether it is near or remote in time; (3) whether it was suffered for the same or substantially similar conduct for which the [defendant] is on trial; and, (4) . . . what effect admission would have on the defendants decision to testify." (People v. Castro (1985) 38 Cal.3d 301, 307 (Castro).) When exercising their discretion, trial courts are "guided—but not bound" by these factors. (Clair, supra, 2 Cal.4th at p. 654; see Castro, supra, 38 Cal.3d at pp. 306-313.)

Defendant focuses on factor (3), and argues the two felony DUI priors should not have been admitted because they were identical to the charged offense. But "[p]rior convictions for the identical offense are not automatically excluded." (People v. Green (1995) 34 Cal.App.4th 165, 183 (Green).) Indeed, a number of cases have found no abuse of discretion in the admission of identical prior convictions. (See ibid.; People v. Lewis (1987) 191 Cal.App.3d 1288, 1297-1298; Stewart, supra, 171 Cal.App.3d at p. 66; see People v. Navarez (1985) 169 Cal.App.3d 936, 950.) "Since the admission of multiple identical prior convictions for impeachment is not precluded as a matter of law [citation], and a series of crimes may be more probative than a single crime, there [may be] no abuse of discretion. [Citation.]" (Green, supra, at p. 183.)

The federal circuit court decisions cited by defendant are not controlling here.

Here the trial court weighed the Beagle factors and the probative value and prejudice of the prior DUI convictions. The trial court did not abuse its discretion in admitting identical priors. Likewise, the court did not abuse its discretion by refusing to sanitize the priors. Sanitization is discretionary, not mandatory, and omitting the nature of the prior offenses might have been prejudicial to defendant—because the jury might have speculated he had been convicted of more serious, and perhaps violent, crimes.

In any case any error would be harmless. The admission of the priors did not preclude defendant from testifying and placing his version of events before the jury. And the jury would not have considered the priors to show propensity to drink and drive, and therefore as evidence of guilt of the charged offense. The jurors were instructed that the priors were admissible only on the issue of credibility (CALJIC No. 2.23 (6th ed. 1996)). The jurors were further instructed not to be influenced by prejudice against defendant (CALJIC No. 1.00 (1999 rev.) (6th ed. 1996)). And finally, the evidence is overwhelming that defendant drove on September 22, 2002 while under the influence of alcohol.

B. Mistrial

Defendant contends that the court erred by denying his motion for a mistrial, based on the prosecutors eliciting on cross-examination the fact that defendant had gone to prison for the prior DUI convictions. We see no basis for a mistrial.

Towards the end of defendants direct examination, his counsel asked him how he was convicted of the 1994 and 2001 felony DUI charges. Defendant replied that he had pled guilty to both charges, pursuant to plea bargains. At the outset of cross-examination, the prosecutor asked defendant if he had gone to prison pursuant to the terms of the 1994 and the 2001 plea bargains. Defense counsel did not object. Defendant replied that he had gone to prison on both prior convictions.

After lengthy cross-examination, consuming almost 20 pages of reporters transcript, and a brief re-direct, the defense rested and the court adjourned for the day. The following morning defendant moved for a mistrial based on the cross-examination, arguing that it was "highly prejudicial" and "improper impeachment" for the prosecutor to bring out that defendant had gone to prison on the prior offenses. The court ruled that by testifying on direct that he had entered into plea bargains in 1994 and 2001, defendant had "essentially opened the door to that subject matter regarding the plea bargain and its general terms." The court denied the motion for a mistrial.

The courts ruling was correct. A mistrial should only be granted to a defendant when his chances for a fair trial have been irreparably damaged by incurable prejudice. (See People v. Cox (2003) 30 Cal.4th 916, 953.) A motion for mistrial is left to the sound discretion of the trial court, and we review its rulings only for an abuse of that discretion. (People v. Bolden (2002) 29 Cal.4th 515, 555; People v. Jenkins (2000) 22 Cal.4th 900, 986.)

Apart from the fact that defendant did not interpose a timely objection and seek a curative admonition to the jury, the trial courts ruling was not an abuse of discretion. Defendant had in fact opened the door to the issue by revealing the existence of the plea bargains. "Where [any] part of an act . . . is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party." (Evid. Code, § 356.)

Any error would be harmless due to the overwhelming evidence of defendants guilt. (See People v. Harris (1994) 22 Cal.App.4th 1575, 1581.)

C. Prosecutorial Misconduct

Finally, defendant contends the prosecutor committed misconduct by arguing to the jury that defendants DUI priors showed a propensity to drink and drive. We see no prejudicial error.

During her closing argument, the prosecutor reviewed the officers testimony at some length. She then segued into an argument that defendants version of events was not credible, beginning with the thematic statement, "The defendants story makes no sense at all." The prosecutor reviewed defendants testimony on several points, compared it to the officers, and argued defendants testimony was not believable.

The prosecutor than argued, "[Defendants] story also doesnt make sense in a very key way and that is that he tells you he didnt have any alcohol at all. Not a single drink. And, in fact, he said well, he wouldnt because he was going to be driving; but he has repeatedly done just that for years. He drinks and drives. [¶] We know in 94 he had a felony driving under the influence, which means driving under the influence with three or more priors. He did it again in 2001, another felony driving under the influence. But he wants you to believe that he wouldnt do that on this occasion." Slightly further on the prosecutor argued that "If the defendant is telling you the truth" that he properly blew into the breathalyzer, the machine would have produced a reading showing no alcohol—which it did not.

Defendant did not object to the prosecutors arguably improper argument. As such, he has waived any claim of prosecutorial misconduct. (People v. Koontz (2002) 27 Cal.4th 1041, 1082.) In any case, we are not entirely persuaded that the prosecutors argument that defendant "drinks and drives," placed in the context of a detailed attack on the credibility of defendants testimony, is a clear-cut argument that he had a propensity to commit the charged offense. To the extent that it may be a propensity argument, any misconduct is harmless due to the overwhelming evidence of guilt.

III. DISPOSITION

The judgment of conviction is affirmed.

We concur, Swager, J., Margulies, J.


Summaries of

People v. August

Court of Appeals of California, First Appellate District, Division One.
Nov 21, 2003
No. A101371 (Cal. Ct. App. Nov. 21, 2003)
Case details for

People v. August

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. LARRY L. AUGUST, Defendant and…

Court:Court of Appeals of California, First Appellate District, Division One.

Date published: Nov 21, 2003

Citations

No. A101371 (Cal. Ct. App. Nov. 21, 2003)