Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F10906
ROBIE, J.
A jury found defendant Zane Hubbard guilty of driving under the influence of alcohol and driving with a level of blood alcohol greater than.08 percent, as well as driving on a suspended license. In bifurcated proceedings, after the court found that defendant was the person named in various exhibits, the jury sustained allegations that he had a previous conviction for driving under the influence within the previous 10 years and a prior conviction for robbery in 1982. The court sentenced him to state prison.
On appeal, defendant contends the court erred in giving an instruction at the request of the prosecution that allowed the jury to infer a consciousness of guilt from his refusal to submit to the preliminary alcohol screening test for exhaled alcohol (PAS test). He also contends there is insufficient evidence to sustain the finding that he had a 1982 conviction for robbery. Not finding any prejudicial error, we shall affirm.
FACTS
An officer stopped defendant at the on-ramp to Highway 99 from 12th Avenue. His car had caught the officer’s attention at 12:37 a.m. near Sixth Avenue and 33rd Street in Oak Park. The officer had observed defendant’s car speeding and driving erratically on the surface streets as he followed him. Defendant did not have a valid driver’s license with him. He manifested visible signs of significant inebriation. After answering a few of the officer’s questions, defendant announced that he did not want to answer any more of them and asked the officer to take him to jail. The officer told defendant he wanted to administer certain field sobriety tests, including a PAS test. He advised defendant that he had the right to refuse to take the PAS test. (Veh. Code, § 23612, subd. (i).) Defendant refused to submit to any of the tests, at which point the officer arrested him at 12:50 a.m. for driving under the influence based on the totality of his observations. Breath tests taken at 1:46 and 1:48 a.m. showed a level of blood alcohol of.18 and.19 percent, respectively. If his bloodstream had fully absorbed all the alcohol in his digestive system at the time of the traffic stop (which would require his last drink to have been around midnight), defendant would have had a level of blood alcohol around.20 percent. It was conceivable that if most of the alcohol in his digestive system had yet to enter the bloodstream, he could have had a level of less than.08 percent at the time of the stop.
This was the equivalent of the alcohol from 10 to 11 beers in his bloodstream at 12:50 a.m., which required drinking even more than that earlier.
We will defer relating the facts that underlie the challenged recidivist finding until that part of the Discussion.
DISCUSSION
I
Consciencness Of Guilt
At the request of the prosecutor (and over the objection of defense counsel), the court agreed to instruct the jury that “The law does not require a driver [to] submit to field sobriety tests at the request of the peace officer who had reasonable cause to believe the person is driving under the influence. If the defendant refuses to submit to such a test after a peace officer asked him to do so and explained the test nature to the defendant, that conduct may show that he was aware of his guilt. [¶] If you conclude that the defendant refused to submit to such field sobriety tests, it is up to you to decide its meaning and importance. However, evidence of such conduct cannot prove guilt by itself.”
The prosecutor twice alluded in her closing argument to defendant’s failure to submit to any field sobriety test. After making reference in her opening arguments to the officer’s observations of the erratic driving, the red and watery eyes, the smell of alcohol, the slurred speech, and the unsteady gait of defendant, she said, “And then to top it off, he refuses to perform his FSTs [field sobriety tests] and PAS. And he refuses those FSTs... because he knows... if he performs them, he will probably fail.” Later in rebuttal, in discussing whether the officer’s observations would have been enough of themselves hypothetically to convict defendant if he had in fact passed his field sobriety tests, she riposted, “We do not have that here. [¶] And why don’t we have it? Because the defendant didn’t want to do it. He did not want to do the FSTs. Now, take that for whatever you want, but that is a consciousness of guilt. He knew he was going to fail those. He knew it, so he said, [j]ust take me to jail.”
In granting the request for a special instruction, the trial court relied on authority permitting an inference of a consciousness of guilt where a defendant refused to provide hair and blood samples in accordance with a court order. (People v. Farnam (2002) 28 Cal.4th 107, 164.) There is also authority generally for admitting evidence of a refusal to submit to a sobriety test as consciousness of guilt. (People v. Conterno (1959) 170 Cal.App.2d Supp. 817, 831-832; People v. McGinnis (1953) 123 Cal.App.2d Supp. 945, 946; cf. Marvin v. Department of Motor Vehicles (1984) 161 Cal.App.3d 717, 720 [refusal as evidence of consciousness of guilt supports probable cause to arrest].)
This general principle, however, does not apply where there is a statutory right to refuse a test, because otherwise the exercise of that right would be meaningless if it could result in the use of the refusal against defendant in the form of evidence of a consciousness of guilt. (People v. Zavala (1966) 239 Cal.App.2d 732, 736-737, 740-741 [cannot instruct on consciousness of guilt in refusal to take “Nalline” test for presence of opiates in system; distinguishing sobriety tests because no statutory right to refuse them]; see People v. Farnam, supra, 28 Cal.4th at p. 165; People v. Roberts (1992) 2 Cal.4th 271, 311 [both allowing instruction on consciousness of guilt where defendant failed to establish that refusal to submit to testing based on exercise of protected right].)
Although a driver does not have a protected right to refuse to perform field sobriety tests (only the exercise of a choice to refuse), this is not true of a PAS test. (Veh. Code, § 23612, subd. (i).) Defendant is therefore correct that it was not proper to instruct on consciousness of guilt with respect to the PAS test. The People concede the point as to the PAS test.
Defendant is incorrect, however, that this error was prejudicial. The evidence that defendant was driving under the influence of alcohol or had a blood level greater than.08 percent was overwhelming. The mere possibility that defendant could have consumed a massive quantity of beer immediately before the officer caught sight of him, such that less than.08 percent of it had made its way into his bloodstream at the moment of his detention, pales in comparison with the observable facts of inebriation. Moreover, the closing argument of the prosecutor would not have had any lesser impact in the absence of any reference to the PAS test; the song remains the same. We are therefore convinced beyond a reasonable doubt that the error was harmless.
II
Proof Of Defendant’s Prior Conviction
Regarding the prior conviction, the prosecutor submitted a packet of documents from 1982. The first page is a handwritten index of court proceedings in case No. 376277 in the central division of an unspecified court (certified on the back as a true and correct copy of the records of the Los Angeles County Superior Court). A codefendant and “Hubbard Zane Martrell” (“DEF. NO” “02”) are listed as being charged with “01 CTS” of “211.” There is, however, a handwritten notation in the upper right corner, the legible part of which is “PC 32.” On May 10, the index reflects “Ea: J/W Causes Transf to D 126 for court trial” (which is in accordance with a printed minute order of May 13 to record the jury waiver of a “Hubbard, Zane Martrell” who is charged with “211 01ct” and the referral of the case to “Dept. 126”). Of greatest significance is the index entry for June 23: “Tr resumes. All sides rest. Cause argued. Crt finds ea: def G/ as chg 211 PC.” The entry for July 22 also reads, “02 [circled] Proc Suspd. Prob grtd for 3 yrs.”
The poor quality of these photocopied documents makes parts of the appellate record essentially illegible. The People have lodged a copy of the original exhibit with this court, and defendant has agreed to defer to our evaluation of the original.
There is a copy of the magistrate’s March 8, 1982, order holding the two defendants to answer on charges of robbery. Defendant’s name, however, is crossed out.
Finally, there is a transcript of the sentencing of the two defendants. In the course of its suspension of proceedings and grant of probation to “Mr. Hubbard,” the court does not actually refer to the nature of the conviction, other than to describe defendant’s role in the crime as “light-weight” and to admonish defendant that he has “got no business helping to rip purses off little old ladies.”
There are references to this 1982 conviction in documents proving the previous conviction in 2000 for driving under the influence. The January 2000 information alleged it was a prior conviction for a serious felony within the meaning of Penal Code section 667, subdivisions (b) through (i), and the abstract lists “211 PC” as being among the enhancements for prior convictions or prison terms.
Although defendant asserts that the trial court had agreed to redact any such reference in these other two exhibits to the 1982 conviction, the court (in the record citation to which he refers us) in fact agreed only to redact the part of a minute order reflecting that the 2000 court sustained the recidivist allegation regarding the 1982 conviction.
In defendant’s view, the records of his 1982 conviction are insufficient to prove it was a conviction for robbery. He bases this argument (once the People produced the more legible original exhibit) on several untenable claims.
He adverts to the index showing his conviction as being on June 23 (when the court made its finding of guilt) rather than July 22, as reflected in the jury’s finding. (People v. Shirley (1993) 18 Cal.App.4th 40, 46-47 [“conviction” ambiguous; can mean either verdict or verdict and rendition of judgment; for purposes of recidivist statutes, verdict alone is sufficient without subsequent judgment].) However, as he concedes, this variance in the date does not affect the fact that there was nonetheless a prior conviction for robbery and is therefore immaterial. (Cf. People v. Obremski (1989) 207 Cal.App.3d 1346, 1354 [precise date of offense not material to conviction].) We therefore fail to see how this “is yet another indication of the ambiguity of the prosecution’s offer of proof” or “supports the inference that the jury improperly based its finding on” the exhibits involving his prior drunk driving conviction in contravention of People v. Myers (1993) 5 Cal.4th 1193, 1200 (restricting proof of prior conviction to record of conviction).
Defendant also makes the most of the stray handwritten reference to “PC 32” in the corner of the index, the handwritten interlineation striking out his name from the holding order, and the 1982 court’s comments at the sentencing hearing as creating a reasonable doubt as to whether that court had convicted him as charged or as a mere accessory to the crime of robbery. This is an unreasonable reading of the documents. His jury waiver in superior court shows that the pending charge was still robbery as of May 1982 (whatever the significance of the interlineation in the holding order). Nor is there any reasonable basis for using a stray handwritten marginal reference of uncertain provenance to impeach the court clerk’s specification of a conviction of “211” and conclude that the court in fact had found him guilty only of being an accessory, putting aside the problem that “the crime of being an accessory after the fact is not a lesser included offense of the primary offense” (People v. Riley (1993) 20 Cal.App.4th 1808, 1815, fn. 1) and it was not until two years later that People v. Geiger (1984) 35 Cal.3d 510 sanctioned convictions for lesser “related” offenses (a holding eventually overruled in People v. Birks (1998) 19 Cal.4th 108, 136).
In short, we do not find that the idiosyncrasies in the exhibit to which defendant points create a reasonable doubt that he incurred a conviction for robbery in 1982, let alone undermine the substantial nature of the rest of the evidence in the documents to the contrary. We therefore reject his additional claim that the references to the 1982 conviction in the exhibits relating to the 2000 conviction impermissibly supplied the necessary proof.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, Acting P. J., HULL, J.