Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA090307, Tia G. Fisher, Judge.
Alex Coolman, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
MANELLA, J.
Jesus Gerardo Hernandez appeals from the judgment entered following his conviction by jury on one count of driving under the influence (Veh. Code, § 23152, subd. (a)), one count of driving with a blood-alcohol content greater than 0.08 percent (Veh. Code, § 23152, subd. (b)), and one count of hit-and-run driving (Veh. Code, § 20002, subd. (a)) and his admission that he had suffered three prior convictions for driving under the influence (Veh. Code, §§ 23550, 23550.5). We affirm.
On March 18, 2010, Cynthia Benton was tending bar at Katie Jakes, a bar and grill in Covina, California, where appellant was a regular customer. Benton recalled that appellant left around 9:00 p.m. after drinking two 30-ounce beers. She remembered the time because the regulars generally left the bar at 9:00 p.m. when the band started to play. Benton had given appellant a ride home from the bar before, but she did not do so that night.
California Highway Patrol (CHP) Officer Sammy Corder and his partner were patrolling the eastbound 10 freeway around 3:15 a.m. on March 19, 2010. They saw a car that had crashed into the guardrail on the Citrus Avenue offramp and gone into the plants. The officers notified all nearby units that they saw an abandoned or disabled vehicle in the plants and exited on the Citrus Avenue northbound ramp.
Officer Corder was notified by another CHP unit that it had seen someone walking on the freeway, so Officer Corder and his partner searched the area two blocks north of the freeway for about 10 minutes and then returned to the car. Officer Corder walked up to the car and found that it was a silver Toyota pickup truck with damage to the driver’s side. There was no one in the truck, and the doors were closed, but the keys were in the ignition. Officer Corder tried to start the truck in order to move it out of the way, but it would not move. There were no signs of forced entry into the truck.
The airbags had been deployed, and there was dust from the airbag inside the truck. Officer Corder explained that there is “an off-white shimmery kind of a powder” that comes out of an airbag into the passenger area of a car when an airbag is deployed. The driver’s side seat belt was fully stretched out and locked, indicating that it was being worn at the time of the collision.
Officer Corder called for a tow truck and followed the tow truck to its location, where he searched the car. He found a driver’s license inside the pickup truck, with an address that matched the address of the registered owner of the truck.
CHP Officer Resa Rombouts and her partner, Officer Eric Peacock, were patrolling the westbound 10 freeway around 3:00 a.m. on March 19, 2010. They exited at the Citrus Avenue offramp and saw a man walking on the offramp. He was wearing blue jeans, a grey t-shirt with black on the shoulders, and dark shoes, and he was walking with an unsteady gait, as if he were unable to maintain his balance. Officer Rombouts identified appellant at trial as the person she had seen walking.
After Officers Rombouts and Peacock made a u-turn and got back on the freeway, they heard Officer Corder’s dispatch about a disabled vehicle that had crashed on the Citrus Avenue offramp. Officer Rombouts informed Officer Corder that they had just seen someone walking away from the location, gave the description, and exited the freeway at Citrus Avenue. Officers Rombouts and Peacock looked for the pedestrian they had seen but were unable to find him.
A different CHP unit had picked someone up, but Officer Rombouts said he was not the pedestrian they had seen earlier. This man was wearing different clothing and was shorter than appellant.
Officer Rombouts ran the license plate number of the pickup truck and learned that it was registered to an address on North Allen Drive in West Covina. Appellant was the registered owner of the truck. Officers Rombouts and Peacock went to the address, but the resident directed them to his sister’s house and gave them directions and a description of her house. The house was on Dexter Drive, less than a mile from where Officer Rombouts first saw the pedestrian.
When Officers Rombouts and Peacock arrived at the other house, a man opened the door and said his brother had contacted him. He directed them to appellant’s room in the back of the house and asked the officers to turn their radios down because his children were asleep. Officer Peacock knocked on the door and asked appellant to come outside so they could speak with him.
Appellant came out of the bedroom, wearing the clothes the officers had seen on the pedestrian on the freeway. Appellant’s eyes were bloodshot, his face was red, and he walked with an unsteady gait. He “reeked of alcohol, ” and his speech was “mumbled and slurred.” His shirt was “glittery, ” which Officer Rombouts recognized to be due to airbag dust. The officers asked him to go outside in order to avoid disturbing the children.
Officer Rombouts asked appellant if he had been in a collision, and he replied, “‘They stole my truck.’” The officer then asked him if he knew when the car had been stolen, and he said it had been some time that night. Appellant told Officer Rombouts that he had been drinking at Katie Jakes and got a ride home from the bartender. He then contradicted himself and said “‘No, she didn’t give me a ride home. I was drinking as I was walking home.’” Officer Rombouts asked what he drank, but he only replied “a lot.”
Officer Rombouts asked appellant if there were mechanical problems with his car, and he said there were not. She also asked if he was sick or injured, and he said that his back hurt because he slept on it wrong. He told her he was not diabetic or epileptic and was not on any medications, but he refused to answer questions regarding when he had last slept or eaten. Appellant said he had stopped drinking around 3:00.
Officer Rombouts administered field sobriety tests to appellant and found signs of impairment, indicating he was under the influence of alcohol. Appellant was arrested and taken to a hospital where a blood-alcohol test was administered. Appellant’s blood-alcohol content was 0.29 percent.
Appellant was charged by information with three counts: count 1, driving under the influence (Veh. Code, § 23152, subd. (a)); count 2, driving with a blood-alcohol content greater than 0.08 percent (Veh. Code, § 23152, subd. (b)); count 4, hit-and-run driving (Veh. Code, § 20002, subd. (a)). The information alleged as to counts 1 and 2 that appellant had suffered three prior convictions for driving under the influence. (Veh. Code, §§ 23152, 23550, 23550.5.) It was further alleged as to count 2 that appellant’s blood-alcohol content was greater than 0.15 percent. (Veh. Code, § 23578.)
There was no count 3.
Appellant admitted the allegations of three prior convictions for driving under the influence. One of the allegations subsequently was stricken as to count 2, pursuant to the People’s motion.
The jury instructions included an instruction on flight, CALCRIM No. 372: “If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself.”
The jury found appellant guilty on all three counts. The court denied appellant’s motion to reduce the charge to a misdemeanor, citing appellant’s prior convictions and his failure to comply with probation, and stating that appellant was a threat to public safety.
Appellant was sentenced to the upper term of three years as to count 2, driving with a blood-alcohol content greater than 0.08 percent. The court imposed and stayed execution of a three-year term on count 1, pursuant to Penal Code section 654. The court ordered appellant to serve a concurrent term of 180 days in Los Angeles County Jail on count 4. The court imposed the requisite fines, fees, and conditions, and gave appellant credit for 130 days of actual custody and 130 days of good time/work time credit for a total of 260 days. Appellant filed a timely notice of appeal.
After review of the record, appellant’s court-appointed counsel filed an opening brief asking this court to review the record independently pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.
On March 14, 2011, we advised appellant that he had 30 days within which to submit any contentions or issues that he wished us to consider. On April 22, 2011, appellant filed a supplemental brief, raising five issues.
First, appellant contends his Miranda rights were violated. (Miranda v. Arizona (1966) 384 U.S. 436.) The record does not indicate that a motion in limine was made to exclude the statements appellant made to Officer Rombouts. Nor was any objection made at trial to the officer’s testimony about appellant’s statements. Appellant’s Miranda claim accordingly has been forfeited. (People v. Solomon (2010) 49 Cal.4th 792, 821.)
Second, appellant contends his right to a speedy trial was violated. “[A] defendant seeking post-conviction review of denial of a speedy trial must prove prejudice flowing from the delay of trial.” (People v. Johnson (1980) 26 Cal.3d 557, 562.) Appellant has demonstrated no prejudice.
Third, appellant raises ineffective assistance of counsel, asserting that trial counsel was unprepared for trial and failed to call two witnesses. He also claims that trial counsel convinced him not to testify and failed to address his Miranda claim. “‘In assessing claims of ineffective assistance of trial counsel, we consider whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.] A reviewing court will indulge in a presumption that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.... If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.]’ [Citation.]” (People v. Gamache (2010) 48 Cal.4th 347, 391.) The record on appeal does not preclude a satisfactory explanation for counsel’s actions. Appellant’s ineffective assistance of counsel claim must be rejected.
Fourth, appellant contends that his due process rights were violated because a juror was chosen without his input. Jury selection is a matter of trial strategy, and “‘[m]yriad subtle nuances’ not reflected on the record may shape an attorney’s jury selection strategy.” (People v. Hartsch (2010) 49 Cal.4th 472, 489, fn. 16.) We reject appellant’s claim.
Fifth, appellant challenges the jury instruction on flight. “Generally, a party may not complain on appeal about a given instruction that was correct in law and responsive to the evidence unless the party made an appropriate objection. [Citation.] But we may review any instruction which affects the defendant’s ‘substantial rights, ’ with or without a trial objection. (Pen. Code, § 1259.) ‘Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim — at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was.’ [Citation.]” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1087.) The claimed error affected the substantial rights of the defendant if it “resulted in a miscarriage of justice, making it reasonably probable the defendant would have obtained a more favorable result in the absence of error. [Citations.]” (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.)
If the jury instruction is “generally an accurate statement of law, ” and the defendant did not request clarification or amplification, the issue is forfeited on appeal. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163.) The jury instruction given by the court here was an accurate statement of the law. (See CALCRIM No. 372; People v. Paysinger (2009) 174 Cal.App.4th 26, 30.) Appellant did not request clarification or amplification and therefore has forfeited the issue. Moreover, on appeal appellant fails to state why the instruction was in error or how he was prejudiced. Thus, even if not forfeited, the claim fails.
We have examined the entire record and are satisfied that no arguable issues exist, and that appellant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J. SUZUKAWA, J.