Opinion
B200034
4-28-2008
THE PEOPLE, Plaintiff and Respondent, v. FERNANDO PEREZ, Defendant and Appellant
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth N. Sokoler and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Fernando Perez appeals from a judgment entered after a jury convicted him of driving under the influence and found he had refused to submit to a chemical test. He contends his conviction is not supported by substantial evidence, and the trial court imposed the upper term as punishment for electing to stand trial. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Charges
Perez has suffered a number of driving under the influence convictions over the years, most recently two felony convictions in case Nos. BA316757 and TA090632 both in February 2007, for which he was sentenced to concurrent 16-month state prison terms.
In the present case, Perez was arrested in November 2006 and originally charged by information in count 1 with felony driving under the influence (Veh. Code, § 23152, subd. (a)) with two prior driving under the influence convictions (Veh. Code, §§ 23550, 23550.5). The information specially alleged Perez had refused to take a chemical test (Veh. Code, §§ 23577, 23578, 23538, subd. (b)(2)), and he had served a separate prison term for a felony (Pen. Code, § 667.5, subd. (b)). Perez was also charged in count 2 with driving on a license that had been suspended for a prior driving under the influence conviction (Veh. Code, § 14601.2, subd. (a)). He pleaded not guilty to both counts and denied the enhancement allegations.
After failed plea negotiations, the prosecutor filed an amended information to allege a third prior conviction within the meaning of Vehicle Code sections 23550 and 23550.5. Perez pled not guilty and denied the special allegations in the amended information, and jury trial began in June 2007.
2. Summary of Evidence Presented at Trial
California Highway Patrol Officer Freddie Toriz was trained and experienced in detecting drivers under the influence of alcohol. While patrolling the northbound San Gabriel River Freeway at around 4:00 p.m., Toriz noticed a pickup truck with expired registration tags being driven in an "unsteady" and "unsafe" manner. Toriz pulled in behind the pickup truck and activated his overhead lights. When the driver failed to stop, Torez began using his loudspeaker and siren intermittently as he continued to follow the pickup truck from a distance of 10 feet away as it traveled about 65 miles per hour. Minutes later, Toriz turned on all of his emergency lights and full siren. The driver immediately accelerated to speeds of 80 to 85 miles per hour.
As Officer Toriz called for backup, the pickup truck began weaving between two lanes. The driver waved his left hand outside the window while using the right-turn indicator, making no effort to stop the pickup truck. Another officer joined Toriz. About eight miles into the pursuit, the pickup truck came to rest partially on the freeway shoulder.
Officer Toriz ordered the driver, Perez, out of the pickup truck, took him into custody, and advised him of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]), which Perez waived. Toriz explained Perez was being arrested for failing to stop; Perez replied he was unaware the officer had been attempting to pull him over. While they were talking, Toriz noticed Perez had bloodshot, watery eyes, slurred speech and a strong odor of alcohol on his breath. In response to questioning in English and Spanish, Perez said he had consumed two shots of tequila and shrimp between 2:30 and 4:00 p.m. Perez was unsteady on his feet; he kept leaning against the patrol car. Perez told Toriz he had not taken any medication, had no medical problems and currently was not under medical care. Perez stated he was going home, but he did not know where on the freeway he had been stopped.
Officer Toriz asked Perez to perform some field sobriety tests, and he refused. Toriz then conducted a horizontal gaze nystagmus test, in which he noted involuntary jerking and difficulty in tracking in both of Perezs eyes. Toriz believed Perez was under the influence of alcohol based on Perezs reaction to the nystagmus test, his strong odor of alcohol, his admission he had been drinking, his unsteadiness on his feet, bloodshot, watery eyes and slurred speech. Perez agreed to submit to a breath test to measure his blood alcohol level, but just before Toriz was to administer the test, Perez refused to take it. Toriz advised Perez in English and Spanish the implied consent law, the requirement that he take a breath, blood or urine test, and the consequences of his refusal to take a test. Perez still refused to have any chemical test administered to determine whether he was under the influence of alcohol or drugs.
During a search of the vehicle, police recovered an empty tequila bottle and two empty beer cans.
At the close of the prosecutions case-in-chief, the defense made a motion to dismiss under Penal Code section 1118.1 that was denied by the trial court. Perez neither testified nor presented other evidence in his defense.
2. Verdict and Sentence
The jury convicted Perez of count 1, driving under the influence, and found he had refused to submit to a chemical test. In a bifurcated proceeding, he admitted having three prior convictions for driving under the influence as alleged in the amended information and having previously served a separate prison term for a felony. Prior to trial Perez had pleaded no contest to count 2, driving when his license had been suspended for a prior driving under the influence conviction.
For purposes of sentencing, Perez specifically waived his right to a jury trial as to any aggravating circumstances. At sentencing, the trial court indicated it had read and considered the probation and sentencing report and invited argument from counsel. Defense counsel urged the trial court to impose the two-year middle term because, while this was Perezs fourth driving under the influence conviction, the facts of this offense were not egregious. The prosecutor argued for the imposition of the upper term, in light of Perezs numerous driving under the influence convictions, as well as the facts of the present case. The prosecutor then reminded the court "before we continued with our closing of the case, the Court did give an indicated of three years if the defendant pled, which again he rejected. And the Court had also indicated that you would sentence him to four years if he was convicted." The court interjected, "That I would likely sentence him to four years;" and the prosecutor agreed.
Following counsels argument, the trial court found as an aggravating circumstance Perezs criminal history consisting of one conviction for reckless driving, three additional convictions for driving under the influence, and three additional convictions for driving on a suspended license. The court expressly found no mitigating factors and concluded the upper term was warranted. The court then sentenced Perez to four years in state prison concurrent to the sentences already imposed in case Nos. BA316757 and TA090632, consisting of the three-year upper term for driving under the influence plus the one-year prior prison term enhancement. The court imposed a concurrent one-year term in county jail for driving on a suspended license. The court also designated Perez a habitual traffic offender under Vehicle Code section 23350, subdivision (b).
DISCUSSION
1. Substantial Evidence Supports the Conviction
Perez asserts there was insufficient evidence to support his conviction for driving under the influence. We disagree.
A person is under the influence of alcohol when, as a result of consuming alcohol, his or her mental abilities are impaired such that he or she "no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence, under the same or similar circumstances." (People v. Weathington (1991) 231 Cal.App.3d 69, 81.) We are required to uphold a jurys finding of driving under the influence if, viewing the record in the light most favorable to the judgment, it is supported by substantial evidence. (People v. Anderson (1994) 26 Cal.App.4th 1241, 1250-1251; accord, People v. Maury (2003) 30 Cal.4th 342, 403.) We do not reweigh the evidence, resolve conflicts in the evidence or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
The record contains ample evidence Perez drove while under the influence of alcohol. Not only did he operate his pickup truck in an unsteady manner, he failed to yield to Torizs lights, sirens and loudspeaker commands for several miles, before suddenly accelerating and weaving between traffic lanes. At the same time, Perez was waving to police officers, while signaling, yet showing no signs of slowing down or stopping. When Perez finally did stop, he was unsteady on his feet and disoriented. His bloodshot eyes, odor of alcohol, slurred speech, performance on the horizontal gaze nystagmus test, admission to drinking tequila, and presence of liquor bottles in the cab of his pickup truck established the use of alcohol and suggested impairment. Perez refused to submit to a chemical test, which the jury was properly instructed it could consider as consciousness of guilt. (CALCRIM No. 2130.) While the defense argued to the jury, and now claims on appeal, the evidence showed Perez had been drinking, but not driving impaired, the jury was free to reject that view of the evidence. All told, there was substantial evidence to support the driving under the influence conviction.
2. The Record Fails To Show the Upper Term Was Imposed To Punish Perez for Exercising His Jury Trial Right
Perez is not contending the upper term sentence for driving under the influence was unwarranted in this case. Instead, he asserts the colloquy between the trial court and the prosecutor at sentencing proves he received the upper term solely as punishment for rejecting the plea offer and going to trial. A trial court violates a defendants due process rights when it imposes a harsher sentence based on the defendants election to exercise his or her constitutional right to a trial. (In re Lewallen (1979) 23 Cal.3d 274, 278, citing Bordenkircher v. Hayes (1978) 434 U.S. 357 [98 S.Ct. 663, 54 L.Ed.2d 604].) Nonetheless, "there must be some showing, properly before the appellate court, that the higher sentence was imposed as punishment for exercise of the right." (People v. Angus (1980) 114 Cal.App.3d 973, 989-990; see, e.g., In re Lewallen, supra, 23 Cal.3d at p. 279 [trial court responded to defense counsels suggestion at sentencing that informal probation would suffice by saying "`You mean whether or not theres a disposition or not after a jury trial?"]; In re Edy D. (2004) 120 Cal.App.4th 1199, 1202 ["courts statement that if the minor inconvenienced witnesses by having them come to court for an adjudication hearing, the option of a disposition under Welfare and Institutions Code section 725, subdivision (a) would no longer be available to him"]; People v. Morales (1967) 252 Cal.App.2d 537, 542, fn. 4 [trial court said prison inmate defendants "have the same rights as anyone else . . ., but I dont think its fair for an inmate, or anyone else, to come to Court and demand a jury trial, demand the services of the public defender . . . when there really isnt any defense to this case, and there was no effort to put on a defense because there couldnt be [one]"].)
Here, we find no evidence the trial court imposed the upper term for reasons other than those it expressed at sentencing. The colloquy upon which Perez relies is too ambiguous. The two indicated sentences the court supposedly gave before trial commenced appear nowhere in the record. Thus, while the court acknowledged having stated at some point that it would "likely" impose a four-year sentence, the timing and context of the statement are unknown. As it stands, without a sufficient showing, we cannot accept Perezs argument that because he refused the plea offer the court retaliated with a harsher sentence; we must assume the court intended to implement a sentence authorized by law. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
We nonetheless conclude any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18 [875 S.Ct. 824, 17 L.Ed.2d 705].) The trial court plainly found Perezs prior driving under the influence convictions were numerous, an appropriate aggravating circumstance (Cal. Rules of Court, rule 4.421(b)(2)), that alone justified the imposition of the upper term sentence. (People v. Black (2007) 41 Cal.4th 799, 813, 816.) According to the probation report and counsels comments, Perez was convicted of the following offenses: in 1991 of reckless driving, in 1991 of driving under the influence, in 1991 of driving on a suspended license, in 1992 of driving on a suspended license, in 1993 of driving under the influence, in 1997 of driving without a valid license, twice in 1998 of driving on a suspended license, in 2000 of disorderly conduct, in 2002 of driving under the influence, in 2004 of driving under the influence, and twice in 2007 of driving under the influence. Given this aggravating circumstance, there is no reasonable doubt the court would have imposed the upper term in any event based on Perezs criminal history.
DISPOSITION
The judgment is affirmed.
We Concur:
PERLUSS, P. J.
WOODS, J. --------------- Notes: Although Officer Toriz never identified Perez as the pickup truck driver at trial, both the prosecutor and defense counsel repeatedly referred to Perez as the driver. Perezs identity as the driver was not an issue at trial and was not raised on appeal.