Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 08WF2091, Gregg L. Prickett, Judge.
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
SILLS, P. J.
A jury convicted Christian Nuila-Moran (appellant) of driving under the influence of alcohol, driving with a blood alcohol of.08 percent or more, and driving on a suspended or revoked license. The court found true allegations appellant had three prior convictions for driving under the influence of alcohol within 10 years and sentenced him to a four-year prison term. Appellant filed a timely notice of appeal.
We appointed counsel to represent appellant on appeal. Counsel filed a brief that set forth the procedural history and facts of the case with citations to the record in accordance with Anders v. California (1967) 386 U.S. 738 and People v. Wende (1979) 25 Cal.3d 436. Counsel did not argue against the client, but advised the court no issues were found to argue on appellant’s behalf, although counsel identified three potential claims for our consideration. Appellant was given 30 days to file written argument on his behalf. That period has passed, and we have received no communication from appellant.
I
FACTS
On October 19, 2008, two Orange County Sheriff’s Deputies, Saul Cardenas and Barbara Galicia, responded to a report of a possible drunk driver at a particular shopping mall within the City of Stanton, California. When they arrived, a gray GMC Yukon was straddling two parking spaces in front of a 7-Eleven store.
Cardenas noticed that the truck was not properly parked, that its engine had been turned off and the driver’s side door was open. Appellant was seated in the driver’s seat. Cardenas briefly stopped to talk to Ralph Valdez, the person who had called 911 and reported a possible DUI in progress, before making contact with appellant. Valdez pointed at the Yukon and said, “That’s him.” Cardenas sought to clarify the situation and asked Valdez if he was the person who called the police. Valdez acknowledged that he had called authorities, and he told Cardenas that he had seen appellant driving the Yukon on a nearby street.
After talking to Valdez, Cardenas turned his attention back to the Yukon. However, appellant was no longer sitting inside the truck. He was now lying face up on the ground outside the driver’s door with his right leg resting on the floorboard. Cardenas walked over to the Yukon and looked inside. He saw an unopened 12-pack of beer and keys dangling from the ignition.
Cardenas stated that appellant appeared unconscious, and that he was nonresponsive to questioning. Cardenas also said that appellant looked “disheveled” and had “a real strong odor of alcoholic beverage.” Cardenas shook appellant in an attempt to awaken him, and although appellant did wake up, he was still unable to respond to questioning. Cardenas helped appellant walk to the back of Yukon and sat him down on the back bumper. However, appellant soon slipped off the bumper and sat down on the ground. He fumbled through his wallet to produce a photographic identification card. Based on appellant’s behavior, appearance, and odor, Cardenas believed appellant was under the influence of alcohol.
When Galicia arrived, she contacted Valdez for a statement. She found him seated in his own car, which was stopped but still running, and spoke to him through the open driver’s side window. Galicia asked Valdez if he had seen the person in the Yukon driving earlier. Valdez said, “Yes” and drove away.
Galicia then talked to appellant. Although he was uncooperative and rude, he admitted that he had been drinking alcohol and driven the Yukon. He refused to perform any field sobriety tests. However, a preliminary alcohol screening measured his blood alcohol level at between.241 and.244 percent. Cardenas took appellant into custody and transported him to the Orange County jail. Appellant repeatedly swore at Cardenas during the 20-minute drive, but he submitted to a blood test. According to this test, appellant’s blood alcohol level was.254 percent. An expert testified that appellant was “impaired for the purposes of driving.”
At trial, Valdez, who was then under arrest and incarcerated on an unrelated matter, testified he stopped at the 7-Eleven store shortly after work. When he walked out of the store, he noticed a drunken man lying on the ground next to a “large car.” As he exited the parking lot, a male police officer stopped him and asked for his name and social security number. He provided this information and then drove home. He denied telling a police officer that he had seen appellant drive the Yukon, denied calling 911 to report a possible drunk driver, and denied giving the 911 operator a description of appellant’s car or its license number. The prosecutor played the 911 tape for the jury, but Valdez denied that it was his voice on the tape. He also denied owning a cell phone, and stated that the prosecution had his son’s cell phone number. Valdez did not identify appellant at trial.
An investigator with the Orange County District Attorney’s office interviewed Valdez prior to trial. Valdez told the investigator that he had just arrived at the 7-Eleven store when the officers contacted him. He also said that he had given his own cell phone to his son.
At the sentencing hearing, the court imposed the upper term of three years for driving under the influence, stayed sentence for count two, driving with a blood alcohol level of.08 percent or above, and imposed one year in the county jail for driving with a suspended license. The court also imposed several fines and penalty assessments, and advised appellant, pursuant to Vehicle Code section 23593, subdivision (a), that he could be charged with murder if he killed someone by driving while under the influence of alcohol. Appellant received a total of 291 days custody credit.
II
DISCUSSION
We have examined the record and found no arguably meritorious issues. (People v. Wende, supra, 25 Cal.3d at p. 436.) Counsel submitted three questions to assist the court in conducting its independent review of the record. 1. Was the evidence sufficient to convict appellant beyond a reasonable doubt of the driving element of the charges? 2. Were appellant’s rights prejudicially violated by the playing of the 911 tape at trial? 3. Were appellant’s rights prejudicially violated when the jury asked to hear the 911 tape and the court responded that the tape was not in evidence, but failed to direct the jury to consider the 911 tape solely for determining Valdez’s credibility?
With respect to the element of driving, Valdez told Cardenas he had called 911 to report a drunk driver and then identified appellant and his car. Although Valdez repudiated his statements at trial, this constitutes nothing more than a conflict in the evidence. “Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 403.) In addition, Galicia testified that appellant admitted drinking alcohol and driving. Thus, substantial evidence supports the jury’s verdict.
The prosecutor introduced the 911 tape to impeach Valdez’s trial testimony. We find no violation of appellant’s constitutional rights from the admission of this evidence for that purpose. (Evid. Code, § 1235.) Similarly, the mere fact the jury asked to hear the 911 tape during deliberations does not constitute such a violation. The trial court correctly advised the jury that the tape had not been admitted into evidence, and instructed the jury that it alone determined the facts of the case using “only the evidence that was presented in this courtroom.” (CALCRIM No. 222.) The court does not have a sua sponte duty to give limiting instructions. (People v. Farnam (2002) 28 Cal.4th 107, 163.)
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, J., FYBEL, J.