Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCS215826, Raymond Edwards, Jr., Judge.
NARES, J.
In May 2008 a jury convicted Leonel Fernando Gomez of driving under the influence of alcohol (Veh. Code, § 23152, subd. (a); count 1) and driving with a blood alcohol level of over 0.08 percent (Veh. Code, §§ 23152, subd. (b), 23578; count 2). Gomez admitted two prior conviction allegations of felony driving under the influence within 10 years (Veh. Code, §§ 23550.5, subd. (a), 23550) and two prior prison term allegations (Pen. Code, §§ 667.5, subd. (a), 668). The court sentenced Gomez to a prison term of five years on count 1, consisting of the upper term of three years and a consecutive term of two years for the prior prison term allegations. The court imposed a three-year concurrent term on count 2 and then stayed that sentence under section 654.
All further statutory references are to the Penal Code.
On appeal, Gomez asserts (1) the prosecutor committed misconduct by vouching for a witness's testimony by referring to evidence outside the record; (2) the court erred by not instructing the jury on the lesser included offense of attempted driving under the influence; and (3) the court erred by running his sentence on count 2 concurrently, when it should have only stayed it under section 654. We affirm.
FACTUAL BACKGROUND
A. People's Case
On November 5, 2007, Francisco Cuevas was working as a warehouse manager. Cuevas knew Gomez because about twice a week Gomez would come by to gather wooden pallets and they would frequently chat. Gomez drove his truck into the parking lot about 8:30 a.m. and parked in front of the loading door. Cuevas went out to the passenger side window of Gomez's truck and spoke to Gomez through his half-opened window. Through the open window, Cuevas could smell alcohol on Gomez's breath. Gomez was upset and angry and had difficulty completing his thoughts. He accused his wife of stealing money from him and threatened to kill her and take his children to Mexico. Cuevas spoke with Gomez for about 45 minutes to an hour. Cuevas saw that Gomez's eyes were red and also saw a bottle in a bag between Gomez's legs.
Based upon the smell of alcohol and Gomez's demeanor, Cuevas believed he was intoxicated. Cuevas saw Gomez swaying back and forth while he was sitting in his truck, and at times resting his head on his shoulder. Cuevas left Gomez to walk into the warehouse office to call the police and report him as a drunk driver.
After calling the police, Cuevas asked Gomez to move his truck because he was blocking the delivery door. Gomez did so, moving his truck to a parking stall about 25 feet away.
About 10 minutes later, National City Police Department Officer Jason Taylor arrived at the warehouse. Officer Taylor observed Gomez in the driver's seat of his pickup. As Officer Taylor approached, Gomez tried to exit the truck, but stumbled, and Officer Taylor had to catch him. Officer Taylor observed that Gomez's eyes were glassy and bloodshot, his speech was slurred and he smelled of alcohol.
Officer Taylor arrested Gomez for driving under the influence. Approximately one hour later Gomez's blood was drawn and tested. It was found to have an alcohol content of 0.28 percent.
A criminalist for the San Diego County Sheriff's Department testified that in her opinion, based upon Gomez's blood alcohol level and Cuevas's observations, Gomez was under the influence when he moved his car from the delivery door area to the parking stall.
B. Defense Case
Gomez's wife, Martha, testified that on the morning of his arrest, she and Gomez argued for about an hour. He left at approximately 8:20 a.m. Gomez was upset and angry when he left, but he had not had any alcohol to drink prior to leaving.
DISCUSSION
I. ALLEGED PROSECUTORIAL MISCONDUCT
Gomez asserts the prosecutor engaged in prejudicial misconduct in closing argument by vouching for Cuevas's credibility based upon facts outside the evidence. This contention is unavailing.
A. Background
In closing argument, the prosecutor argued that Cuevas was a credible witness, underscoring the consistency of his testimony with Gomez's wife's testimony about their argument:
"[T]he defendant says I would like to grab my wife and kill her, take the kids to Rosarito.... [Cuevas] relates that to you, you now have the facts and circumstances in context that all occurred, do you think [Cuevas] was telling the truth, he wouldn't make it up? Why would he make it up? He couldn't make it up and guess as to those things that were going on that day. He's being truthful."
The prosecutor also related how the expert's opinion and Officer Taylor's observations corroborated Cuevas's testimony.
In response, defense counsel argued Cuevas's testimony was unreliable, pointing to some confusion in his testimony. Defense counsel then argued that Gomez drank to intoxication only after moving his truck from the delivery door to the parking stall.
In rebuttal, the prosecutor responded, arguing again that Cuevas's testimony and observations of Gomez were credible:
"The whole case relies on [Cuevas], much of it does. [¶] He's an ordinary citizen, came in and did a job. He's not a prosecution witness in that he's hired by us, we go out and seek him out. We call him. That's all. He was there and he was called. The police got his name, made the call, he got contacted and he got brought in. [¶] I guess technically he's a prosecution witness but he doesn't work for us, just doing the job so take that into consideration."
B. Analysis
A prosecutor's misconduct " ' "violates the federal constitution when it comprises a pattern of conduct "so egregious that it infects the [entire trial] with such unfairness as to make the conviction a denial of due process.' " ' " (People v. Samayoa (1997) 15 Cal.4th 795, 841.) "A defendant's conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct. [Citation.]" (People v. Crew (2003) 31 Cal.4th 822, 839.) " ' "[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." ' " (People v. Ayala (2000) 23 Cal.4th 225, 284.) " '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." ' " ' " (People v. Hill (1998) 17 Cal.4th 800, 819.)
With regard to comments on a witness's credibility, "so long as a prosecutor's assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the facts of record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief," the comments cannot be considered improper vouching. (People v. Frye (1998) 18 Cal.4th 894, 971.)
Here, there was no improper vouching for Cuevas's credibility. He did not imply he knew facts not in evidence nor express his personal opinion of Cuevas's credibility. Rather, he merely argued Cuevas's testimony was consistent with that given by Gomez's wife, Officer Taylor, and the expert.
Further, the prosecutor's reference to him being a lay witness and the manner in which he was called to trial were also proper. " ' " '[C]ounsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.' " ' " (People v. Hill, supra, 17 Cal.4th at p. 819.) The distinction between lay witnesses and experts is a matter of common knowledge that represented a fair comment by the prosecution.
Finally, even we were to conclude the statements by the prosecutor were improper, they were not so prejudicial as to require a reversal. There is no reasonable likelihood the jury construed or applied any of the prosecutor's remarks in an objectionable fashion. (People v. Samayoa, supra, 15 Cal.4th at p. 841.) They also did not render Gomez's trial fundamentally unfair or involve the use of deceptive or reprehensible methods. (People v. Ayala, supra, 23 Cal.4th at pp. 283-284.)
II. FAILURE TO INSTRUCT ON LESSER INCLUDED OFFENSE
Gomez asserts the court erred in failing to instruct the jury sua sponte on the lesser included offense of attempted driving under the influence because there is substantial evidence Gomez only became drunk after he moved his vehicle to the parking stall from in front of the loading door and before Officer Taylor arrived. We reject this contention.
A trial court is required to instruct the jury "sua sponte, on all theories of a lesser included offense which find substantial support in the evidence." (People v. Breverman (1998) 19 Cal.4th 142, 162.) No such instruction is required, however, "on theories that have no such evidentiary support." (Ibid.) Consequently, an instruction on a lesser included offense is not required "when the evidence shows that the defendant is either guilty of the crime charged or not guilty of any crime" (People v. Barton (1995) 12 Cal.4th 186, 196, fn. 5), and no instruction is required when "there is no proof, other than an unexplainable rejection of the prosecution's evidence, that the offense was less than that charged." (People v. Kraft (2000) 23 Cal.4th 978, 1063.) "Speculation is insufficient to require the giving of an instruction on a lesser included offense." (People v. Mendoza (2000) 24 Cal.4th 130, 174.)
Here, there was no evidence presented that Gomez was preparing to drive while intoxicated when Officer Taylor arrived, but was thwarted by the officer's actions. He never attempted to start his ignition or move his truck as Officer Taylor arrived. His keys were found in his pants pocket. Thus, if the jury believed that Gomez only became intoxicated after moving his truck, the proper verdict would have been an acquittal, not a conviction for attempted driving under the influence. (People v. Barton, supra, 12 Cal.4th at p. 196, fn. 5.)
Further, there is no evidence to suggest that he only started drinking to intoxication after he moved the truck. Rather, all evidence presented indicated he was intoxicated when he arrived at the warehouse. Any claim otherwise is speculative. (People v. Mendoza, supra, 24 Cal.4th at p. 174.) Thus, the court did not err in failing to instruct the jury sua sponte on the lesser included offense of driving under the influence.
III. STAY OF SENTENCE ON COUNT 2
Section 654, subdivision (a) provides in part: "An 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." Section 654 "precludes multiple punishment[s] for a single act or omission, or an indivisible course of conduct." (People v. Deloza (1998) 18 Cal.4th 585, 591; see also People v. Le (2006) 136 Cal.App.4th 925, 931.)
The parties agree that Gomez's convictions arose from a single act and that the court properly stayed the sentence on count 2. However, Gomez asserts the court erred by imposing a concurrent sentence on that count and then staying it because "the sentence cannot both run concurrently and be stayed pursuant to [section 654]." Gomez is incorrect. When section 654 applies, the proper procedure is to impose the sentence, whether consecutive or concurrent, and then "stay execution of the sentence on the convictions for which multiple punishment is prohibited." (People v. Reed (2006) 38 Cal.4th 1224, 1227.) Accordingly, the court properly first imposed a concurrent sentence on count 2 and then stayed its execution under section 654.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., McINTYRE, J.