Opinion
NOT TO BE PUBLISHED
Sup.Ct.No. 06F01517
MORRISON , J.
A jury convicted defendant Jimmy Dean Davis of driving under the influence of alcohol and drugs (Veh. Code, § 23152, subd. (a); count one), being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a); count two), and driving on a suspended license (Veh. Code, § 14601.2, subd. (a); count three). He admitted a prior driving-under-the-influence conviction as to count one (Veh. Code, § 23550.5, subd. (a)(1)), a prior driving-on-a-suspended-license conviction as to count three (Veh. Code, § 14601.2, subd. (d)(2)), and three prior prison terms (Pen. Code, § 667.5, subd. (b)). He was sentenced to state prison for five years, consisting of the middle term of two years on count one plus three years for the prior prison terms. The prosecutor amended count three to the lesser offense of violation of Vehicle Code section 14601.1. Concurrent county jail terms were imposed for counts two and three.
On appeal, defendant contends (1) the prosecutor committed several acts of prejudicial misconduct during closing summation, (2) evidence of a horizontal gaze nystagmus test was erroneously admitted, and (3) his mistrial motion was erroneously denied. We shall affirm the judgment.
FACTS
Prosecution Case-in-chief
Early in the morning of January 14, 2006, California Highway Patrol Officer James White observed defendant driving a pickup truck without illuminated headlights. White effected a traffic stop of the truck. Defendant did not have a driver’s license, and White detected the odor of alcohol from within the truck. After defendant acknowledged that he had consumed some beer, White asked him to get out of the truck.
Officer White had defendant perform a series of field sobriety tests on which he had various difficulties. In addition, White noticed that defendant’s pupils were dilated and unresponsive to light or movement; he was unsteady on his feet; he appeared to have trouble paying attention; and he was fidgety. White asked defendant when he had last consumed methamphetamine. Defendant looked down and replied, “you got me.” White arrested defendant.
At the station, Officer White administered a breath test, which showed that defendant’s blood alcohol level was 0.068. White also administered additional sobriety tests, on which defendant had various difficulties. From his observations, White believed that defendant had ingested a combination of substances. Following an advisement of his constitutional rights, defendant admitted that he had smoked both marijuana and methamphetamine earlier in the day. Blood tests confirmed the presence of components of alcohol, marijuana, and methamphetamine.
Records of the Department of Motor Vehicles indicated that defendant’s driver’s license was suspended in August 2005.
Defense
The defense presented no evidence or testimony. During summation, defense counsel argued that defendant’s driving pattern showed that he was not under the influence. Counsel further argued that Officer White prejudged defendant’s level of sobriety and did not conduct a thorough investigation.
DISCUSSION
I
Defendant contends the prosecutor committed prejudicial misconduct during closing summation when she mischaracterized defense counsel’s argument, engaged in irrelevant diatribe, falsely accused defense counsel of having called Officer White “horrible” and “evil”, criticized defense counsel for subjecting Officer White to “hours and hours of cross-examination” and mischaracterized the law of circumstantial evidence. None of these claims is persuasive.
“‘“The applicable federal and state standards regarding prosecutorial misconduct are well established. ‘“A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’”’ [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘“‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’ [Citation.” [Citation.]’ [Citation.]” (People v. Stanley (2006) 39 Cal.4th 913, 951.)
Characterization of Argument
Defense counsel argued during her summation that defendant “was driving without headlights. You heard that he wasn’t weaving. He wasn’t swerving. He wasn’t driving off the road. He wasn’t almost striking any objects or any vehicles. And in fact Officer White even made a comment at one point [that defendant] was driving almost perfectly once [White] lit him up to pull him over.” She argued it “seems somewhat inconsistent with someone who is so under the influence that he managed to get from [a bar] to where they are without any accidents or without any problems or even any reports.” Defense counsel also noted that defendant “was cooperative.” “He didn’t try and run away. He didn’t slam on the gas and try and drive away. He was cooperating and following the instructions.”
In her closing summation, the prosecutor responded as follows: “From my standpoint when I listened to defense counsel’s argument I learned four things today that apparently I didn’t know. One of those is that if you commit a crime and you are cooperative and you don’t commit additional crimes like you don’t run, you don’t put your foot on the pedal and take off, that must mean you’re innocent. Well, he was cooperative. So therefore he can’t be violating the law.” Defense counsel objected that the prosecutor was “[m]ischaracterizing the argument.” The objection was overruled.
Defendant renews his objection that the prosecutor’s remarks mischaracterized his counsel’s argument. But the prosecutor was not required to characterize defense counsel’s argument in any particular manner or at all; nor did she claim to have accurately restated it. Instead, she described what she had “learned” or deduced from the argument. Manifestly, she was under no obligation to learn or deduce whatever defense counsel desired. The gist of the prosecutor’s response was that a person who has committed a crime may nevertheless be cooperative and commit no further crimes. Pointing out that obvious fact does not constitute a personal attack on opposing counsel or her integrity. The prosecutor’s remarks did not mischaracterize the evidence or suggest the existence of evidence not before the jury. The remarks were neither deceptive nor reprehensible, and they do not constitute misconduct. (People v. Stanley, supra, 39 Cal.4th at p. 951.)
Sobriety Checkpoints
The prosecutor next argued in summation, “Apparently our state is wasting a lot of money having alcohol checkpoints because once again [] if you don’t crash and you actually are able to get to that checkpoint it’s not going to matter how you do on the [field sobriety tests] because once again you -- you know, we haven’t seen a crash. So therefore it doesn’t matter what you’ve been up to -- not at all.”
Defendant concedes that he neither objected nor requested an admonition with respect to these remarks. “Generally, ‘“a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion--and on the same ground--the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.”’ [Citation.]” (People v. McDermott (2002) 28 Cal.4th 946, 1001.) Defendant’s claim of misconduct is not properly before us.
In any event, the prosecutor’s hypothetical involving sobriety checkpoints responded to defense counsel’s argument that the absence of evidence that defendant had driven off the road or had been involved in a collision supported an inference that he was not driving under the influence. There was no misconduct.
“Evil” and “Horrible”
Defense counsel argued during summation that the prosecution case was nothing more than “speculation and opinion.” Counsel argued that Officer White’s investigation was both brief and inadequate. Counsel argued that White’s decision to arrest defendant was a snap judgment, inconsistent with the evidence; and that White was predisposed to conclude that defendant was driving under the influence. She further argued that White refused to give her a “straight answer” during cross-examination and that White intentionally shaded his testimony to benefit the prosecution. Defense counsel also referred to testimony from the prosecution’s expert, Michael Toms, concerning a research article that showed that a small amount of marijuana has little or no effect on driving ability and that methamphetamine might actually improve one’s driving performance.
The prosecutor responded: “I am also a little bit confused about some of the other arguments that were made. Now at some point it was argued you should believe things Officer White said. At other points he’s horrible. He’s evil. You shouldn’t believe anything he has to say. [¶] You got to watch him on the stand over the course of approximately six or seven hours. You got to watch him repeatedly give this defendant the benefit -- repeatedly offer information that’s not necessarily helpful in response to questions -- provided more information both on direct and on cross. And yet now he’s evil. He’s subjective. He doesn’t know what he is doing. [¶] Really. Do we have any proof that he doesn’t know what he is doing? What is the evidence that you have -- that he’s trained, that he has experience. That is exactly what an expert is. He’s a person with knowledge. He has knowledge that the average person does not have. That’s what the law tells you. That is what the law that you will get tells you. [¶] The defense has an absolute right not to call any witnesses during the course of a trial, not put on a defense, not to do anything. She didn’t have to do opening. She didn’t have to do cross[-]examination. However, when you have a person who sits through hours and hours of cross-examination [and] is not shown to be faulty in what they’re doing and then she gets up and just argues, well, he is wrong -- well, they -- guess what. They have a right to call witnesses. They have a right to call a [drug recognition expert] to say, no, these assumptions are wrong. They have a right to call their own police officer, their own D.R.E., their own scientists, their own chemist, whoever they want, if these experts are wrong.
“[DEFENSE COUNSEL]: Objection, Your Honor. Improper --
“[THE PROSECUTOR]: They have an absolute right --
“[DEFENSE COUNSEL]: Prosecutorial misconduct.
“THE COURT: Overruled.
“[THE PROSECUTOR]: They have an absolute right to call these witnesses. [¶] But no. She wants to thoroughly cross examine them. That doesn’t work. That doesn’t make a dent. What they’re telling you makes sense. It stands up. And she wants to get up in her closing argument and impugn Officer White -- some of the time. Now, to the things that, you know, help her -- well, he is right about those. Everything else he is not so much. [¶] You also [heard] comments about the amount of evidence, that one of the problems we have -- if you will recall when she was cross examining Michael Toms she asked about a marijuana article. And Michael Toms said you mean this one about H. Robb? [¶] She left you with the impression --
“[DEFENSE COUNSEL]: Judge, objection. I’m going to ask to approach. This is completely improper and not true.
“THE COURT: I’m going to overrule. [¶] Ladies and gentlemen, counsel have wide latitude in closing arguments and commenting on the evidence or just about anything else.
“[THE PROSECUTOR]: If you will recall what she elicited was this article by H. Robb says low levels of marijuana’s not unsafe. But the whole part about when you are combining that low level of marijuana with the alcohol --
“[DEFENSE COUNSEL]: Objection, Your Honor. That --
“[THE PROSECUTOR]: -- that is dangerous.
“[DEFENSE COUNSEL]: Different article.
“[THE PROSECUTOR]: Your Honor -- --
“THE COURT: Overruled.”
Defendant contends the prosecutor committed misconduct by claiming that defense counsel had characterized Officer White as “evil” and “horrible.” The point is not preserved for appeal because defense counsel’s ensuing objection and assignment of prosecutorial misconduct (appearing one full page later in the transcript) appear to have been made upon a different ground. (People v. McDermott, supra, 28 Cal.4th at p. 1001.)
In any event, it is not reasonably probable that the jury understood the prosecutor’s remarks as an attack upon defense counsel personally, rather than as a challenge to counsel’s criticism of Officer White. No misconduct appears.
Production of Defense Evidence
Defendant claims the prosecutor committed misconduct by faulting the defense for having failed to produce its own scientists and other experts. However, it is not misconduct for the prosecutor to comment on “‘“the failure of the defense to introduce material evidence or call logical witnesses.”’ [Citation.]” (People v. Hughes (2002) 27 Cal.4th 287, 372.)
Hours and Hours of Cross-examination
Defendant next claims that by criticizing defense counsel for “hours and hours of cross-examination,” the prosecutor “impugned defense counsel’s integrity” and slighted his “right under the Sixth Amendment to confront and cross-examine witnesses against him.” We disagree. The point of the prosecutor’s remarks was not that the cross-examination should have been shorter, but that even the lengthy examination was insufficient to discredit Officer White.
Impugning Officer White
Defendant claims the prosecutor committed misconduct by stating that defense counsel “wants to get up in her closing argument and impugn Officer White -- some of the time. Now, to the things that, you know help her -- well, he is right about those. Everything else he is not so much.”
Defendant’s editing of the foregoing passage in his brief gives the impression that counsel objected to those remarks rather than to the prosecutor’s ensuing comments. Because the passage drew no objection, defendant’s contention is not properly before us. (People v. McDermott, supra, 28 Cal.4th at p. 1001.)
In any event, the gist of the prosecutor’s argument was that defense counsel was asking the jury to believe the favorable portions of Officer White’s testimony and disbelieve the unfavorable portions. Noting the inconsistency for the jury was not misconduct.
Circumstantial Evidence
Toward the end of her summation, defense counsel discussed CALCRIM No. 224 on direct and circumstantial evidence. Defense counsel pointed out that when faced with two reasonable interpretations of circumstantial evidence, the jury “must accept that interpretation that points to innocence.”
The prosecutor responded: “Now, one of the last things that [defense counsel] talked to you about was circumstantial evidence. The law says they are equal. And in fact with the D.U.I. . . . what you have for impairment -- it’s always going to be circumstantial evidence. Does that mean that the[y] don’t convict people in this state? People are convicted in this state, in this courtroom and throughout, with the reasonable doubt standard.” This exchange ensued:
“[DEFENSE COUNSEL]: Objection. Improper characterization. Misconduct.
“THE COURT: It’s overruled.”
Defendant claims the trial court “erred in overruling [his] objections to prosecutorial misconduct and mischaracterization of evidence.” The point is not properly before us, because defense counsel’s objection did not identify the specific mischaracterization at issue or explain why it was improper or constituted misconduct. (People v. McDermott, supra, 28 Cal.4th at p. 1001.)
In any event, it is not improper to inform the jury that some evidence in cases of driving under the influence will necessarily be circumstantial, and that CALCRIM No. 224 does not erect an insurmountable barrier to convictions. There was no prosecutorial misconduct.
Condescending Approach
Finally, defendant complains that the prosecutor had a “generally condescending approach toward defense counsel” who was never referred to by name but always as “she.” However, defendant does not claim this discourtesy was prejudicial in the absence of other misconduct. We find no impropriety requiring reversal.
II
Defendant contends the trial court erred by denying his in limine motion to exclude evidence of the horizontal gaze nystagmus (HGN) test. He claims there was no showing that HGN is scientifically reliable as required by People v. Kelly (1976) 17 Cal.3d 24 (Kelly). We are not persuaded.
Prior to trial, defense counsel filed a motion to exclude the evidence of defendant’s performance on the HGN sobriety test. The motion relied on People v. Leahy (1994) 8 Cal.4th 587 (Leahy), which had held that HGN was a new scientific technique subject to Kelly, supra, 17 Cal.3d 24. The prosecutor countered with the subsequent case of People v. Joehnk (1995) 35 Cal.App.4th 1488 (Joehnk), which concluded that “a consensus drawn from a typical cross-section of the relevant, qualified scientific community accepts the HGN testing procedures used in this case as a useful tool when combined with other tests and observations in reaching an opinion whether a defendant was intoxicated.” (Id. at pp. 1507-1508; fn. omitted.) The trial court found that Joehnk was persuasive and ruled that Officer White could testify to “the fact of the test and just what it indicates in general.” However, the court found there was insufficient scientific acceptance or training to “have the officer testify that a specific result [on the HGN test] equals a specific blood alcohol level.”
Defendant claims Joehnk, supra, 35 Cal.App.4th 1488, is distinguishable because in that case “a complete [Kelly] evidentiary hearing had been conducted to establish the admissibility of HGN[,]” whereas in this case the only witness was Officer White, who “lacked the qualifications to provide expert testimony concerning the reliability of the test within the scientific community.”
However, Leahy made clear that repeated adjudications of acceptance within the scientific community are not necessary. “Once it has been shown that HGN testing is generally accepted in the scientific community, no reason exists why police officers should be deemed unqualified to administer and report the results of those tests. Thus, in future cases, once the Kelly standard has been met, as reflected by a published appellate precedent, the prosecution will not be required to submit expert testimony to confirm a police officer’s evaluation of an HGN test. Of course, nothing would prevent the defendant from challenging that evaluation with expert testimony of his own.” (Leahy, supra, 8 Cal.4th at p. 611; italics added.)
In this case, the trial court effectively concluded that Joehnk, supra, 35 Cal.App.4th 1488, was the “published appellate precedent” anticipated in Leahy, supra, 8 Cal.4th 587, and that Officer White was qualified to administer and report the results of the HGN test without supplemental expert testimony from the prosecution. Defendant’s Kelly motion was properly denied.
III
Defendant contends the trial court erred by denying his mistrial motion after Officer White blurted out that defendant was on parole. We disagree.
During her direct examination of Officer White, the prosecutor inquired about his decision to have defendant’s truck towed rather than left on the street. White explained that his decision was based on several factors, including the suspension of defendant’s driver’s license. White added, “I also had knowledge that he was on parole.”
Defense counsel objected and made a motion to strike the testimony about parole. The prosecutor responded that there had been no in limine order excluding parole status, and in any event she had not attempted to elicit the information from the officer. Out of the jury’s presence, the court sustained the objection and granted the motion to strike.
Defense counsel then made a motion for a mistrial. The trial court denied the motion, explaining: “This reference to parole status was brief and submerged in a rather long and detailed answer. [¶] The jury has been extensively voir dired on [defendant’s] custody status and the purpose of having a jury trial. [¶] There will be no further reference to his parole status. [¶] I -- I don’t think that is going to be the deciding factor in this case. [¶] I don’t think it’s so prejudicial that it requires granting a mistrial. [¶] So the motion is denied.”
The trial court later instructed the jury to disregard any testimony stricken from the record.
“‘A trial court should grant a mistrial only when a party’s chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial.’ [Citation.]” (People v. Williams (2006) 40 Cal.4th 287, 323.) Where as here the volunteered testimony is brief and isolated, and there is no misconduct on the part of the prosecutor, a trial court may properly deny a mistrial. (People v. Valdez (2004) 32 Cal.4th 73, 128; see People v. Bolden (2002) 29 Cal.4th 515, 555.)
Defendant claims Officer White’s comment about parole status could have had an unusually great impact in light of comments that a prospective juror had made during voir dire. The prospective juror, a parole agent, commented that “Sometimes my parolees have been found innocent. So, you know, I know it’s possible.” Both sides accepted the jury before the parole agent was called to the jury box.
Defendant claims the prospective juror’s remarks carried the connotation that sometimes parolees are found innocent, “but most of the time they are guilty.” Even if the seated jurors might have drawn that inference from the parole agent’s remarks during voir dire, it is wholly speculative whether any juror remembered the remarks and so construed them several days later during or following Officer White’s testimony. Denial of the mistrial motion was not an abuse of discretion.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE , Acting P.J., ROBIE , J.