Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 62-060628
DAVIS, Acting P. J.
A jury convicted defendant Douglas Clayton Gilbert of driving under the influence and driving with a blood-alcohol level of .08 percent or greater. Defendant admitted four prior convictions for driving under the influence, and the court found that one of them constituted a strike. Defendant also admitted two counts of driving with a suspended license. Defendant was sentenced to state prison for an unstayed term of four years.
On appeal, defendant contends (1) the trial court committed reversible error when it failed to instruct the jury on the defenses of necessity, duress, and entrapment; (2) the prosecutor violated defendant’s due process rights by questioning him regarding his postarrest silence; (3) the court abused its discretion by refusing to admit a statement made by defendant’s brother; (4) he received ineffective assistance of counsel; and (5) the court abused its discretion in denying his request to strike the prior strike conviction. We shall affirm the judgment.
Facts
On April 29, 2006, around 9:30 p.m., Edward Kelley, a security guard at Thunder Valley Casino, was patrolling in his Chevrolet Blazer when he observed another security guard gesturing to a motor home (RV) to leave the property because RV parking was not allowed at the casino. Kelley followed the RV as it was driven to the opposite side of the casino. When the RV got to a narrow area behind the power plant, Kelley flashed his lights, got out of the Blazer, walked to within three to four feet of the RV and spoke with the driver, whom he identified as defendant. As Kelley was speaking with defendant, California Highway Patrol (CHP) Officer Stanley Hampton, who was working a special detail at the casino, drove up in his patrol car.
Officer Hampton testified that as he was driving near the power plant he saw the RV backing up in a small driveway. As the RV was attempting to complete its turn, it knocked over a cone and sign that were near the power plant building. Thinking the RV might hit the building, Hampton used the public address system to tell the driver of the RV to stop, get out, and to look where he was going. The RV stopped, but the driver, whom Hampton also identified as defendant, remained in the driver’s seat.
After waiting about 30 seconds, Hampton approached the driver’s side of the RV. Defendant got out of the driver’s seat and walked to the back of the RV, causing Hampton to lose sight of him. As Hampton waited, defendant’s brother, Donn Gilbert (Donn), emerged from the RV and spoke with Hampton. Noting Donn had been drinking, Hampton yelled for defendant to come out of the RV. Defendant eventually came out. As Hampton was explaining to him Hampton’s concern that defendant might hit the building, it became apparent to Hampton that defendant had been drinking “heavily.” After Hampton administered field sobriety tests to defendant, he arrested him for driving under the influence. Defendant’s blood-alcohol level was .15 percent.
We will use defendant’s brother’s first name to distinguish between the two; no disrespect is intended.
Defendant testified that the RV was his and that he kept it at Donn’s home in Auburn. On the day in question, defendant had begun drinking beer about 2:00 p.m. while working at home in Rocklin when Donn called and suggested they go to the casino. Donn picked up defendant in the RV between 3:00 p.m. and 4:00 p.m. and they drove to the casino, which was about 10 minutes away. Their plan was to park in the casino parking lot and sleep in the RV to avoid driving after they had been drinking.
At the casino defendant and Donn gambled, ate, drank and returned to the RV about 10:00 p.m. to sleep. While in the RV, a security guard drove up and told Donn that he needed to move the RV. Donn explained to the guard that they could not move the RV because they had been drinking, and requested that the guard call a supervisor. The guard radioed the supervisor, who also insisted that the RV be moved.
Donn drove to another area of the casino but was again told by a security guard that they could not park there. As Donn was attempting to turn around by backing up, they heard Officer Hampton’s voice over his police car speaker saying, “‘Stop and get out and look what’s behind you, you idiots.’” Defendant and Donn got out and Hampton showed them the cones and sign. They tried to explain to Hampton that they were being forced to move by casino security.
Defendant admitted to Hampton that he owned the RV and that he had been drinking. After Hampton performed some field sobriety tests on defendant, defendant was arrested. Defendant denied being the driver of the RV.
Discussion
I
Defendant contends the trial court committed prejudicial instructional error when it refused his request to instruct the jury on the defense of necessity and when it failed to instruct, sua sponte, on the defenses of duress and entrapment. There was no error.
“‘A trial court has no duty to instruct the jury on a defense--even at the defendant’s request--unless the defense is supported by substantial evidence.’” (People v. Hill (2005) 131 Cal.App.4th 1089, 1101, disapproved on another ground in People v. French (2008) 43 Cal.4th 36, 48, fn. 5.)
To establish the defense of necessity, the defendant must prove, inter alia, that he or she had no legal alternative. (People v. Kearns (1997) 55 Cal.App.4th 1128, 1135; CALCRIM No. 3403.) Defendant argues “there was no adequate alternative to driving”; they had told casino security personnel they could not drive because they had been drinking but still were “order[ed] to drive.” Since there was an obvious legal alternative available to defendant, namely, to refuse to drive and let the RV be cited or towed, he was not entitled to the instruction.
As to the defense of duress, it is described in Penal Code section 26: “All persons are capable of committing crimes except those belonging to the following classes: [¶] . . . [¶] . . . Persons (unless the crime be punishable with death) who committed the act or made the omission charged under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused.”
Defendant argues he “drove because he was ordered to do so by a person in authority, someone with a badge and a uniform. . . . Presumably [defendant] followed the guard’s orders not knowing what would happen if he failed to do so.” Simply put, defendant’s speculative fear does not amount to a “threat[] or menace[]” at all, let alone one constituting “reasonable cause to . . . believe [his] li[fe] would be endangered if [he] refused.” Consequently, the court was under no duty to instruct on this defense.
Defendant argues he was entitled to an instruction on entrapment because his driving was in response to the orders of the security guards, who were acting as agents of the police. According to defendant, the security guards were agents of the police because of the following: the guards worked with the police enforcing the rules of the parking lot; the security guards were trained to initiate stops and thereafter let the CHP officers take over the investigations; persons who commit battery against an officer acting as a security guard are subject to increased punishment under Penal Code section 243, subdivision (b); the security guards and the CHP officers shared a common “team” dining area in the casino; the security guards may carry firearms and are regulated by the Business and Professions Code; and the security guards, like the CHP officers, wore uniforms. The argument is not persuasive.
Security guard Edward Kelley testified that his duties included patrolling the area of the casino; that the guards wore uniforms; and that he had neither experience nor training in law enforcement, only a customer service background.
People v. Taylor (1990) 222 Cal.App.3d 612 (Taylor) presents analogous circumstances. There, private security guards found drugs on the defendant after having arrested and searched him. (Id. at pp. 616-617.) The defendant contended the guards were agents of the police because they maintained a detention center that was used also by the police; they wore uniforms with shirts stating they were security officers; they carried handcuffs, batons, and two-way radios; they patrolled areas that provided access to a public beach; and they exercised the authority of the state when they arrested and searched the defendant. (Id. at pp. 623-624.)
Defendant also claims that, pursuant to Penal Code section 243, subdivision (b), battery on a peace officer employed as a security guard is subject to the same increased punishment as battery on a police officer. We do not read the statute that broadly. The cited section refers only to situations in which “the peace officer is in a police uniform and is concurrently performing the duties required of him or her as a peace officer while also employed in a private capacity as a part-time or casual private security guard or patrolman . . . .” Consequently, this is not an appropriate factor for use in determining whether the actions of the security guards should be imputed to the state.
The court rejected the defendant’s argument, observing that the basis for the arrest sprang solely from the guards’ observations; there was no evidence of a contract or policy between the guards and the city, county, or state; there was no evidence that the uniforms of the guards were not distinguishable from those of the police; and that the making of a citizen’s arrest was insufficient to establish state action. (Taylor, supra, 222 Cal.App.3d at p. 625.) Finally, the court observed, “the mere fact that California licenses security guards and regulates their conduct does not transform them into state agents.” (Ibid.)
We see no significant difference between the argument advanced in Taylor and that of defendant herein. The impetus for defendant’s driving was based solely on the orders of the security guards that defendant was not permitted to park his RV in the casino lot. There was no evidence that the CHP officer, even though hired by the casino, exercised any control over the actions of the security guards; indeed, Kelley testified that he had no special training that qualified him to be a security guard. There was no evidence that the security guards’ uniforms were similar to that worn by the CHP officer. And, finally, as pointed out in Taylor, licensing of the security guards under the under the Business and Professions Code does not transform the security guards into state agents. (See Taylor, supra, 222 Cal.App.3d at p. 625 [“The state emphasizes . . . [that] ‘[a] security guard is not a police officer. Guards do not have the same job duties as police officers; they do not have the same training; and they do not have the same powers according to law.’ A security guard arrests with the same power as any other citizen”].)
Consequently, there was insufficient evidence to support an entrapment defense.
II
Defendant contends his “due process rights” were violated when the court permitted the prosecutor to question him on his postarrest silence about his failure to have told anyone that Donn was the driver of the RV. He cites the following colloquy:
“[PROSECUTOR]: All right. And when the officer, Officer Hampton, put you in handcuffs, did you say, ‘I wasn’t driving the vehicle?’
“[DEFENDANT]: No.
“Q. How about when he put you in the patrol car, did you say, ‘but I wasn’t driving the car?’
“A. No. [¶] . . . [¶]
“[PROSECUTOR]: Now, you had to have -- you were aware of the charges against you when you were booked, right?
“A. Once we got to booking.
“Q. So that was the first time you had a clue that you were under arrest for driving under the influence; is that right?
“A. Yes.
“Q. Okay. Now who told you that you were under arrest?
“A. The officer.
“Q. Okay. So at the jail the officer told you. Now, at that point did you say, ‘but, Officer, I was not driving?’
“A. I had told him earlier in the car on the way up. There [were] a couple of conversations on the way up.
“Q. Okay. And you indicated that you weren’t driving the car. Somebody else was?
“A. Yes.
“[DEFENSE COUNSEL]: Objection. That misstates his testimony.
“THE COURT: Sustained.
“[DEFENSE COUNSEL]: At which time?
“[PROSECUTOR]: Did you tell anyone at the jail that you weren’t driving the car?
“A. No.
“Q. You had a blood test; correct?
“A. Yes.
“Q. And the phlebotomist was there? [¶] . . . [¶]
“A. Yes.
“Q. Did you talk to her at all?
“A. No.
“Q. You didn’t tell her you weren’t driving the car?
“A. No.
“[DEFENSE COUNSEL]: Objection. He didn’t talk to her.
“THE COURT: Overruled.”
We conclude that defendant has not preserved for appeal his claim that his due process right to remain silent was violated by the prosecutor questioning him on his failure to tell anyone during his arrest and booking that his brother was driving.
“[A] trial objection must fairly state the specific reason or reasons the defendant believes the evidence should be excluded. If the trial court overrules the objection, the defendant may argue on appeal that the court should have excluded the evidence for a reason asserted at trial. A defendant may not argue on appeal that the court should have excluded the evidence for a reason not asserted at trial. A defendant may, however, argue that the asserted error in overruling the trial objection had the legal consequence of violating due process.” (People v. Partida (2005) 37 Cal.4th 428, 431, italics in original.)
Defendant objected on the grounds that the prosecutor’s question misstated defendant’s testimony and that he had not told the phlebotomist who had taken his blood sample that he was not the driver of the car. At no time did defendant suggest that the testimony be excluded because it constituted comment on his right to remain silent following his arrest. Because defendant’s objections cannot be said to have alerted the court to the purported due process problem he now urges, the argument has been forfeited.
III
Defendant contends the trial court abused its discretion when, pursuant to Evidence Code section 1230, it excluded his proffered evidence that his brother Donn had admitted being the driver of the RV at the casino. We find no error by the court.
Evidence Code section 1230 provides in pertinent part: “Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant’s pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true.”
At an Evidence Code section 402 hearing, Donn asserted his Fifth Amendment privilege not to incriminate himself, which rendered him unavailable as a witness. Defendant then sought to have admitted a statement given by Donn to a defense investigator that Donn was the driver of the RV at the casino. The court declined to admit the statement. The court found that it was not against Donn’s penal interest since it failed to state that he was either under the influence of alcohol or that his blood-alcohol level was .08 percent or greater at the time he purportedly was driving the RV.
Defendant initially contends that the court misstated the test to be applied under Evidence Code section 1230 because it failed to “formally [make] a determination as to whether the witness was unavailable.” This is no issue at all.
We know of no requirement, and defendant cites none, that requires the court to make a “formal” finding of witness unavailability. Here, the court specifically found that the brother had invoked his “Fifth Amendment right” not to testify and then proceeded to rule that Donn’s statement was inadmissible because it did not constitute a declaration against his interest. Although not expressly stated, it is obvious the court had found Donn unavailable as a witness.
Defendant also contends that the court erred in concluding that Donn’s admission that he was driving the RV would not have subjected him to prosecution. This is so, defendant claims, because the People stated in their written brief that Donn’s admission that he was driving would subject him to felony “DUI” prosecution since he had three prior DUIs and Officer Hampton had been contacted and “verified” that Donn was “intoxicated.” However, Officer Hampton’s trial testimony was only that Donn “had been drinking” and that he did not give Donn a field sobriety test.
Notwithstanding the People’s unsupported assertion in their opposition to defendant’s motion to admit Donn’s statement that Officer Hampton had verified that Donn was intoxicated, the only evidence before the court at the time it made its ruling was that Donn had been drinking. Based solely on the evidence before the court at the time it made its ruling, there was no reasonable likelihood that Donn could have been successfully prosecuted for driving under the influence. Thus, the court did not abuse its discretion in declining to admit Donn’s statement.
IV
Defendant contends the trial court abused its discretion when it declined his motion to strike his 2004 strike conviction for driving under the influence with great bodily injury. We disagree.
In deciding whether to strike a defendant’s prior strike conviction, the court “must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
Defendant’s criminal record, as shown by the probation officer’s report and which is unchallenged by defendant, shows that in 1992 he was convicted of fighting or challenging to fight; in 1999 he was twice convicted of driving under the influence; in 2000 he was again convicted of driving under the influence; in 2004 he was convicted of driving under the influence and causing great bodily injury; and, of course, his present felony conviction for driving under the influence, which was committed while he was on probation for the 2004 offense.
Defendant’s driving record speaks for itself and unequivocally demonstrates that he has been and will continue to be a serious danger to society unless removed therefrom for a considerable period of time. Thus, defendant does not fall outside the spirit of the Three Strikes Law and the court did not abuse its discretion in denying his request to dismiss.
Disposition
The judgment is affirmed.
We concur: HULL, J. ROBIE, J.