Opinion
A156110
04-30-2020
THE PEOPLE, Plaintiff and Respondent, v. MARK ALVINE VALENTINE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51808302)
Defendant Mark Alvine Valentine appeals from a judgment issued after a jury trial finding him guilty of two offenses: driving with a .08 percent blood alcohol content within 10 years of a prior felony driving under the influence of an alcoholic beverage (DUI) offense, and misdemeanor driving with a license that was suspended or revoked because of a prior DUI conviction. Valentine challenges his conviction on the first offense, arguing the court improperly admitted evidence of a preliminary alcohol screening test to establish the concentration of alcohol in his system and that the prosecutor engaged in misconduct during closing argument. He further argues the trial court abused its discretion in denying him probation, and that the court improperly relied on facts not supported by the record in sentencing him. We conclude these arguments, to the extent Valentine has not forfeited them, lack merit. We affirm the judgment.
BACKGROUND
In May 2018, the Contra Costa County District Attorney filed an information charging Valentine with DUI within 10 years of a prior DUI offense (Veh. Code, §§ 23152, subd. (a), 23550.5, count 1); driving with a .08 percent blood alcohol content within 10 years of a prior felony DUI offense (id., § 23152, subd. (b), 23550.5, count 2); and misdemeanor driving with a license suspended or revoked license due to a prior DUI conviction (id., § 14601.2, subd. (a), count 3.) A jury acquitted him on the first count and convicted on the second and third. Valentine timely appealed, challenging only the conviction on the second count and the trial court's sentencing decisions. We describe the evidence relevant to these challenges.
I.
Evidence Presented at Trial
A. Testimony of Officer Platzner
Officer Jonathan Platzner of the Richmond Police Department testified he was a traffic officer with training and years of experience in handling DUI cases. He had completed over 400 DUI investigations and was the department's DUI training officer.
On November 10, 2017, at about 6:26 p.m., Platzner was driving a patrol car southbound on 23rd Street in a commercial area of Richmond when the light turned green at Garvin Avenue. A car on Garvin, driven by Valentine, went through the red light, turned left and continued southbound on 23rd Street. Platzner turned on his emergency lights to initiate a stop, but Valentine, keeping the vehicle in its lane and moving around the speed limit, continued on for several blocks, turned right on a residential street and continued for two more blocks before stopping. All told, Valentine continued driving for about 90 seconds and 500 feet after Platzner first signaled him to stop, which was longer than it usually took for a driver to stop in similar situations and indicated "an issue."
Valentine was the only person in the vehicle, and his demeanor was calm. He told Platzner that his license was suspended. As Valentine sat in the driver's seat, Platzner conducted a "horizontal gaze nystagmus test" to determine if he should further investigate for DUI. This involved observing whether Valentine's eyes jaggedly followed a hand or flashlight or "bounced," either of which would be signs of intoxication. Platzner saw indications of both signs. He asked Valentine about his alcohol consumption, and Valentine said he had had one beer.
Valentine stepped out of the vehicle at Platzner's instruction. He was about 6 feet tall and weighed about what was listed on his driver's license (shown to Platzner at trial), 320 pounds. He was chewing gum. Platzner repeated the horizontal gaze nystagmus test and noticed "a slight lack of smooth pursuit" and a sustained bouncing of both eyes. He saw four of six clues of intoxication, the absence of which, rather than indicate a lack of alcohol consumption, was "just an indication of where they are as far as the percentage of alcohol."
Employing a flashlight, Platzner administered three standard field sobriety tests. In the first, the "lack of convergence" test, Valentine could not cross his eyes when looking at an object close to his nose; however, not everyone can cross their eyes when sober either. For the "one leg stand" test, Platzner instructed Valentine to raise one leg six feet off the ground with his arms at his sides for 30 seconds; Valentine kept his leg raised for only three seconds the first time and 10 seconds the second time and swayed the second time. In the "walk and turn" test, Platzner determined whether Valentine could maintain a position after being instructed to walk in a straight line nine steps forward, turn and walk in a straight line nine steps back. Valentine could not maintain his position, stepping off the line on his fifth and eighth steps, and stopped before turning. During the tests, Valentine was only poorly able to retain and follow instructions. Platzner concluded Valentine was under the influence of alcohol.
Platzner decided to also administer a Preliminary Alcohol Screening (PAS) test with a hand-held "Alco Sensor FST" device. Platzner was the department's PAS device coordinator and the custodian of records for all its devices. He was trained to maintain the devices and responsible for ensuring their accuracy on a weekly basis. He was aware of the regulations in Title 17 of the California Code of Regulations governing the use of devices (Title 17) and understood that, if a device was not in compliance with Title 17, the test would not "hold the same weight . . . as an evidentiary test" at trial. He knew the regulations required the test administrator to observe the subject for 15 minutes before administering the test, and to test "two minutes apart," and also "cover[ed] the accuracy check calibration" of the devices.
As we will further discuss, the trial court admitted the evidence of this test after denying Valentine's motion in limine to exclude its results.
On direct, Platzner testified that logs were kept for all the department's PAS devices, that he maintained the devices in compliance with Title 17's requirements and that he checked the devices either every 10 days or 150 uses, whichever came first. He also said the devices were "maintained . . . on a weekly basis or at a minimum of every 10 days or 150 uses, but it almost never gets beyond 10 days." He was "well aware" when a device had been used more than 150 times because he alone had access to the devices' mouthpieces. Based on his training and experience, Platzner believed that a properly calibrated Alco Sensor FST device reliably measured alcohol concentration in a subject's breath and was accurate within .01 percent as required by Title 17.
Platzner tested Valentine with a PAS device that was assigned specifically to him. The device's log indicated it had last been checked for accuracy and calibrated two days prior to the incident, on November 8, 2017, and at that time had read a controlled sample to be within plus or minus .01 of the sample's actual measurement. The device had been tested five times prior to that test and had been accurate each time. On cross-examination, Platzner acknowledged that, as indicated on the log, on numerous occasions between January 2017 and October 2017 the interval between testing his device had exceeded 10 days, although on those occasions it had not been used more than 150 times between the tests.
Platzner testified that Valentine consented to the PAS test. Platzner told him to remove his gum, observed him for 15 minutes before administering the first test and obtained test results of .123 and .114. Although a seven-second blow of air was preferred in order to obtain an accurate result, Valentine gave "low blows" each time. The test Platzner administered relied on a "manual sample" rather than the more accurate automatic sample. Platzner testified that the manual sample method was not "compliant" with Title 17. Besides the results of the PAS tests, Platzner noticed a slight odor of alcohol when he administered the tests.
Based on the tests he had administered, Platzner concluded Valentine was driving under the influence of alcohol and arrested him. He transported Valentine to the police department, and during the drive he did not see signs that Valentine was on the "way up" in his blood alcohol level; rather, Valentine's behavior was consistent with his blood alcohol level being relatively low. At 8:30 p.m. that evening (about two hours after the stop), Valentine submitted to a blood draw.
B. Testimony of Criminalist Sarina Sigmon
A criminalist in the crime lab of the Contra Costa County Office of the Sheriff, Sarina Sigmon, also testified. Based on her training and review of medical authorities, she thought all people are impaired in their ability to operate a motor vehicle safely with a .08 percent blood alcohol level in their bodies. She determined that Valentine's blood sample had a .113 percent blood alcohol level. Given the lab's testing methods, the sample's true value ranged from .1068 to .1196 percent.
Sigmon also testified about the body's absorption of alcohol into the bloodstream. Generally, "peak absorption" is considered to be when the "bulk" of alcohol, about 80 percent, is absorbed. In a social drinking situation, bulk absorption takes about 30 minutes; when a lot of alcohol is ingested quickly, it takes about 60 minutes. The body's elimination of alcohol ranges from .01 to .025 percent an hour and averages .015 percent per hour. The body of a person more or less experienced with alcohol could slightly affect the elimination rate.
Sigmon said a male weighing 320 pounds would need to ingest about 9.3 standard alcoholic drinks to reach a blood alcohol level of .11 percent and 11.8 standard drinks to reach .14 percent. Asked by the prosecutor if she could calculate the blood alcohol level of such a male at 6:26 p.m. if his blood were drawn at 8:30 p.m. and had an alcohol level of .11 percent, she said she could, assuming he had an average alcohol elimination rate of .15 percent per hour, his body had absorbed the bulk of the alcohol by 6:26 p.m. and he did not ingest any alcohol after that time. With those assumptions, the male's blood alcohol level at 6:26 p.m. would be .14 percent, plus or minus .01 percent, using a methodology that was generally accepted in her field. She was given another hypothetical based on Platzner's testimony and the blood alcohol level found in Valentine's blood sample. Sigmon said that, based on her background, training and expertise, "the person would be too impaired to drive a motor vehicle safely," and that she would also conclude this based on a blood alcohol level of .113 alone.
On cross-examination, Sigmon testified about the different symptoms a person might display at different blood alcohol levels. She was then given a hypothetical of a person who "has the odor of an alcoholic beverage but they don't have red watery eyes, they're not slurring their speech, they're not falling over, they're not falling asleep, they're not vomiting, and they have a calm demeanor." She said it was "possible" such a person "could very well" have a blood alcohol level below .08 percent, and that it "would depend on the person. For example, the no red watery eyes or no slurring speech, if the person is more familiar with drinking alcohol, they may not exhibit those signs." On redirect, she testified that even considering the absence of these additional symptoms, she would still conclude the 320-pound man hypothesized by the prosecutor was impaired in driving because of the results of the field sobriety and blood alcohol test results.
Sigmon further testified on cross that persons whose driving was impaired by their alcohol consumption usually concentrated on one of the multiple tasks required to drive safely. Asked if it would weigh against a conclusion of impairment if a driver maintained a pace at the speed limit, stayed in the car lane, did not collide with other cars, curbs or objects in the road, drove smoothly and maintained a safe distance from other cars, she said "[i]t would be more consistent with not being impaired." Also, she said, the "manual trap" method of PAS testing was not as accurate as an automatic trap method, and it was possible to get a "mouth sample" using it, which would result in a higher breath alcohol concentration than an individual's true blood alcohol concentration.
Sigmon was also asked on cross examination about the published opinions of Dr. Kurt M. Dubowski. She acknowledged Dubowski was well-known in the field of forensic alcohol analysis; agreed with him that the body's rate of alcohol absorption is greatly influenced by the nature and concentration of the alcoholic beverage; and agreed that the rate by which a person absorbed alcohol varied "greatly" from individual to individual and from day to day. She acknowledged that Dubowski had concluded from a study that a person's alcohol absorption and elimination rates were significantly affected by food consumed and, to a smaller extent, by the type and dilution of the alcohol ingested. She further acknowledged that, without the assumptions she used to calculate the blood alcohol percentage of a person at 6:26 p.m. in the hypothetical the prosecutor had given her, Dubowski's work indicated it was very difficult to back-calculate blood alcohol levels in a reliable way. She agreed blood and alcohol curves could deviate from the linear modeling she used; for example, the elimination phase was not necessarily linear.
II.
Verdict , Sentencing and Appeal
The jury found Valentine not guilty of DUI within 10 years of a prior driving DUI offense (count 1) and guilty of driving with a .08 percent blood alcohol content within 10 years of a prior felony DUI offense (count 2) and of misdemeanor driving with a license suspended or revoked due to a prior DUI conviction (count 3). The court found true the prior conviction allegations associated with counts 2 and 3.
The court denied Valentine probation, noting his 10 previous DUI convictions and that he was on probation when he suffered new convictions, rejected the prosecution's recommended aggravated sentence, and sentenced Valentine to the two-year mid-term for count 2 and a concurrent six-month term for count 3, staying the latter under section 654. Valentine filed a timely notice of appeal.
DISCUSSION
Valentine raises three claims. He argues, first, that his felony conviction for driving with a .08 percent blood alcohol content within 10 years of a prior felony DUI offense (count 2) must be overturned because the trial court improperly admitted the results of Platzner's PAS test; second, that this conviction should be reversed because the prosecutor committed misconduct in his rebuttal closing argument; and, third, that the trial court abused its discretion by denying him probation. We conclude his arguments lack merit.
I.
The Court Did Not Err by Admitting the PAS Rest Results.
Valentine argues the trial court improperly admitted evidence of his PAS test results because there was no foundation establishing its relevance. He also argues the court abused its discretion under Evidence Code section 352 by admitting it. Last, he argues that, when considered with the prosecutor's comments implying that the evidence proved he drove with .08 percent blood alcohol content, its admission violated his Constitutional rights to due process and a fair trial on count 2. None of these arguments has merit.
A. The Proceedings Below
Valentine argued below in a motion in limine before trial that the PAS test results should not be admitted because, first, there was insufficient evidence that the device and the testing met the requirements of Title 17 or, in the alternative, the standards outlined in People v. Williams (2002) 28 Cal.4th 408, 417 (Williams), and second, the court should conclude under Evidence Code section 352 that the results were unduly prejudicial. After the court held an in-chambers discussion on the motion, defense counsel also requested an evidentiary hearing under Evidence Code section 402. The court denied the motion based on the briefs and in-chambers discussion, telling defense counsel that "your cross-examination can cover all the issues you explained in chambers regarding the PAS device."
B. Legal Standards
Except as otherwise provided by statute, no evidence is admissible except relevant evidence. (Evid. Code, § 350.) " 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210; see People v. De La Plane (1979) 88 Cal.App.3d 223, 244 ["[s]peculative inferences that are derived from evidence cannot be deemed to be relevant to establish the speculatively inferred fact in light of Evidence section 210"].) "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.)
Trial courts have " 'broad discretion in determining the relevance of evidence [citations], but lack[] discretion to admit irrelevant evidence.' " (People v. Weaver (2001) 26 Cal.4th 876, 933.) "[A] trial court's rulings on relevance," as well as on the admission or exclusion of evidence under Evidence Code section 352, are reviewed for abuse of discretion. (People v. Hamilton (2009) 45 Cal.4th 863, 944; People v. Guerra (2006) 37 Cal.4th 1067, 1113.) Further, when evaluating a mixed question of fact and law that implicates federal constitutional rights, we exercise de novo review. (See People v. Cromer (2001) 24 Cal.4th 889, 893-896.) Under that standard, "[w]e accord deference to the trial court's factual determinations if supported by substantial evidence in the record but exercise our independent judgment" in deciding whether the facts indicate a constitutional violation. (People v. Ogunmowo (2018) 23 Cal.App.5th 67, 76.)
C. Analysis
Valentine's claim there was no foundation to establish the relevance of the PAS test is without merit.
As Valentine acknowledges, our Supreme Court has made clear that PAS test results "are admissible upon a showing of either compliance with title 17 or the foundational elements of (1) properly functioning equipment, (2) a properly administered test, and (3) a qualified operator . . . ." (Williams, supra, 28 Cal.4th at p. 417.) Valentine concedes the evidence established that Platzner used a PAS device that was properly functioning and that Platzner was a qualified operator of the PAS device. However, he contends there was no evidence that the test was "properly administered" in compliance with Title 17, based on Platzner's use of the "manual capture" method, which Platzner purportedly admitted at trial was not in compliance with Title 17, was less reliable than in-station breathing tests with other devices and only had value for determining probable cause to arrest, which probable cause Valentine did not contest.
Platzner's views of whether his test complied with Title 17 are irrelevant; the issue is one of law. Nor does Valentine establish that Title 17 prohibits use of the manual capture method, and we have found no indication that this is the case. Further, strict compliance with every aspect of Title 17 in the maintenance or use of test equipment cannot be the prerequisite to a finding that the test was "properly administered" under Williams; if it were, the three-part alternative to such compliance would have no meaning. Plainly that is not what Williams intended. (See Williams, supra, 28 Cal.4th at p. 414 ["Compliance with regulations is sufficient to support admission, but not necessary. Noncompliance goes only to the weight of the evidence, not its admissibility"].)
Indeed, Title 17 expressly permits manual capture to be used to test devices for accuracy. (Cal. Code Regs., tit. 17, § 1221.2, subd. (a)(2)(A)(i), (a)(5).
Here, Platzner testified that he followed numerous regulations in testing Valentine, and his testimony was a sufficient basis for the trial court to conclude that the test was "properly administered" under Williams. For example, Platzner testified that the device he used had been tested and found to be accurate two days prior to the incident, that he collected two separate breath samples from Valentine (Cal. Code Regs., tit. 17, § 1221.2, subd. (a)(1)) and that he observed Valentine for 15 minutes without incident before administering the first test (id., § 1221.1, subd. (b)(1)). The trial court did not abuse its discretion in determining the test results were properly administered and admissible given this evidence. (See Williams, supra, 28 Cal.4th at p. 418 [court found tests admissible although the device was not tested with the frequency demanded by the regulations, and the officer observed the defendant for 13 instead of 15 minutes and took only one test].)
Valentine contends the trial court should not have denied his motion in limine without conducting an Evidence Code section 402 hearing to determine whether there was adequate foundation for the admission of the PAS test results. Relying on Coniglio v. Department of Motor Vehicles (1995) 39 Cal.App.4th 666, 679, Valentine asserts that the PAS test "has long been utilized by law enforcement agencies to investigate drivers suspected of being under the influence of alcohol, and determine probable cause for arrest, but it was not intended to provide a conclusive measurement of blood alcohol concentration to prove guilt at trial." (Italics omitted.) However, Williams suggests this language in Coniglio is dicta and is inaccurate. (Williams, supra, 28 Cal.4th at p. 414, fn. 2 [Title 17 applies to PAS tests that determine the concentration of alcohol in the blood but not those that determine only its presence; Coniglio wrongly stated in dicta that Title 17 never applies to PAS tests].)
Valentine also contends the test is only to be used as a " 'further investigative tool' " as indicated in Vehicle Code section 23612, subd. (h), which states: "A preliminary alcohol screening test that indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving a vehicle in violation of Section . . . 23152 . . . is a field sobriety test and may be used by an officer as a further investigative tool." This statutory language is permissive of investigative use but does not foreclose use as evidence, and Williams makes clear that PAS test results are admissible at trial. Valentine also cites People v. Wilson (2003) 114 Cal.App.4th 953, 957, 960 and a 1989 opinion of the Office of the Attorney General (72 Ops.Cal.Atty.Gen. 226, 234 (1989)), but Wilson relied on the inaccurate dicta in Coniglio and is inconsistent with Williams, and the Attorney General opinion focused on devices that measured the presence, but not the concentration, of alcohol in breath samples, making it inapposite.
In short, the trial court did not abuse its discretion in admitting the PAS tests as relevant. As the prosecution established at trial, there was evidence that met the three foundational elements articulated in Williams, making the PAS tests admissible.
Valentine's Evidence Code section 352 and due process challenges are likewise based on arguments we have rejected under Williams. Valentine further argues that the prosecutor confused the jury by relying heavily on the PAS test results to argue he had proven Valentine's blood alcohol level was at .08 percent or higher at the time he was driving. For the reasons we have already discussed, none of these arguments is persuasive.
Given our conclusions, we do not address the parties' arguments about the prejudice caused by the court's admission of the PAS test results.
II.
Valentine's Prosecutorial Misconduct Claims Lack Merit.
Valentine also argues that reversal of his count two conviction is necessary because the prosecutor committed misconduct during rebuttal closing argument by disparaging defense counsel and shifting the burden of proof. These arguments have been forfeited by the failure to properly object below, and in any event, they lack merit.
A. The Prosecutor's Remarks About Defense Counsel's Tactics
1. Proceedings Below
Valentine contends the prosecutor made two different remarks during closing argument that amounted to misconduct.
In the first instance, defense counsel concluded his closing argument by saying, "You should go ahead and convict Mr. Valentine of driving when his privilege is suspended. He did that. That's not the issue in this case. But, on the other charges of DUI, Count 1 and driving with a .08 [blood alcohol concentration] or greater, Mr. Valentine deserves an acquittal because these convictions are not supported by evidence and they're certainly not proven beyond a reasonable doubt. That's why I'm asking you to follow the rules, to follow the law, to listen to each other in deliberations and think carefully about what was proven and not in this case and return a verdict of not guilty on Counts 1 and 2."
In rebuttal, the prosecutor began: "I just want to start off sort of where [defense counsel] ended . . . . [M]y hope is to explain to you a tactic—a defense tactic that gets employed all the time but—'convict on Count 3 but don't convict on these two [counts].' . . . It's a rope-a-dope-trick. It doesn't mean that the evidence in this case on Counts 1 and 2 actually creates reasonable doubt. It's a tactic." Defense counsel objected to these remarks as "prosecutorial misconduct." The court responded, "Let's not refer to the defense as a tactic or being rope-a-dope or anything like that."
In the second instance, defense counsel argued that Dubowski's work showed "elimination rates are—don't always follow a nice smooth trajectory like this. So if you're trying to back calculate from the time of the test, if we don't have a nice predictable curve like that, it's really hard to say whether at the time of driving the blood alcohol content was lower or higher because we just can't really predict what that line looks like from just the one data point."
In rebuttal, the prosecutor stated that the defense "brought up Mr. Dubowski . . . who was one person, by the way, who disagrees with the entire scientific community on this issue and [the criminalist] told you that." He added, "So one person that the defense picked out of the Google search disagrees with the entire scientific community, disagrees with the Contra Costa County Crime Lab, all of its experts, . . . but that's the person you should listen to, that one person who you didn't hear from who had one article showed to [the criminalist] . . . ."
Defense counsel objected, stating, "I'll object to that Google search comment. It's not in evidence and I'd ask that [the prosecutor] refrain from disparaging defense counsel." The court responded, "I don't agree with Google search being an offensive thing, but both people need to keep on what actually was done in court as opposed to making comments like that." The prosecutor added, "And I would remind you the same thing what the defense reminded you of which is the evidence is not our comments . . . ."
2. Legal Standards
A prosecutor " 'has wide latitude in describing the deficiencies in opposing counsel's tactics and factual account.' " (People v. Redd (2010) 48 Cal.4th 691, 735.) Nonetheless, prosecutorial misconduct includes when, as Valentine argues occurred here, a prosecutor "attacks the integrity of defense counsel, or casts aspersions on defense counsel." (People v. Hill (1998) 17 Cal.4th 800, 832.) Such misconduct " 'violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." [Citations.] But 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. Rhoades (2019) 8 Cal.5th 393, 418.)
" ' "As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety." [Citation.] "When attacking the prosecutor's remarks to the jury, the defendant must show" that in the context of the whole argument and the instructions there was " 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner.' " ' " (People v. Beck and Cruz (2019) 8 Cal.5th 548, 657 (Beck and Cruz).)
3. Analysis
Valentine claims the prosecutor improperly disparaged defense counsel by referring to counsel's "rope-a-dope" "tactic" and suggesting counsel merely used "Google search" to find Dubowski's study. However, in both instances, Valentine, while objecting, did not request that the court admonish the jury in any way. "As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety." (People v. Samayoa (1996) 15 Cal.4th 795, 841, italics added; followed in Beck and Cruz, supra, 8 Cal.5th at p. 659.) Valentine requested no admonishments below. Therefore, he has forfeited his claims of misconduct.
The People assert forfeiture regarding Valentine's claim about the prosecutor's reference to the "rope-a-dope" comment only.
In any event, Valentine's arguments are unpersuasive. The prosecutor's "rope-a-dope" remarks were unremarkable and within the bounds of acceptable argument, given the wide latitude we afford to counsel in describing the deficiencies of an opposing counsel's argument. "An argument which does no more than point out that the defense is attempting to confuse the issues and urges the jury to focus on what the prosecution believes is the relevant evidence is not improper." (People v. Cummings (1993) 4 Cal.4th 1233, 1302, fn. 47, disapproved in part on other grounds in People v. Merritt (2017) 2 Cal.5th 819, 828-831.) Thus, in People v. Zambrano (2007) 41 Cal.4th 1082, 1152, disapproved in part on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22, our Supreme Court held that a prosecutor did not improperly disparage defense counsel by calling counsel's argument a " 'lawyer's game' " and an attempt " 'to confuse a clear issue.' " (Zambrano, at pp. 1152-1154.) The court noted that "[t]he prosecutor did not engage in such forbidden tactics as accusing defense counsel of fabricating a defense or factually deceiving the jury. [Citations.] He simply used pungent language to describe defense counsel's tactical effort . . . ." (Id. at p. 1154.) It concluded, "It was clear the prosecutor's comment was aimed solely at the persuasive force of defense counsel's closing argument, and not at counsel personally. We have found no impropriety in similar prosecutorial remarks." (Id. at p. 1155.)
Similarly, in People v. Gionis (1995) 9 Cal.4th 1196, our Supreme Court held it was not misconduct for the prosecutor to contend defense counsel was "arguing out of both sides of his mouth," which was " 'great lawyering.' " (Id. at pp. 1215-1216, 1218-1219.) These remarks "did not exceed the bounds of permissible vigor" and "could properly be understood as a reminder to the jury that it should not be distracted from the relevant evidence." (Id. at p. 1218; see also People v. Medina (1995) 11 Cal.4th 694, 759 [prosecutor's statement that " 'any experienced defense attorney can twist a little, poke a little, try to draw some speculation, try to get you to buy something' " was not misconduct]; People v. Taylor (2001) 26 Cal.4th 1155, 1166-1167 [references to defense " 'tricks' " or " 'moves' " to try and confuse witnesses were not misconduct].)
Similarly, the prosecutor's "rope-a-dope" remarks here were not misconduct. Defense counsel sought acquittal of Valentine on counts 1 and 2 by conceding he was guilty on count 3. Arguably, he was inviting the jury to "split the baby." As in Gionis, it was not misconduct for the prosecutor to contend this was a defense strategy that distracted from the evidence, and his comments were analogous to the prosecutor's contention in Zambrano that counsel was engaging in a " 'lawyer's game' " and " 'try[ing] to confuse a clear issue.' "
Valentine's claim that the prosecutor committed misconduct by contending defense counsel found Dubowski's work in "Google search" also is unpersuasive. It is not reasonably likely that the jury understood the comment to be an attack on counsel's integrity, as is required to show misconduct. (See Beck and Cruz, supra, 8 Cal.5th at p. 657.) It is apparent that the prosecutor's statement that defense counsel found Dubowski's work in a "Google search" was intended to argue the defense simply went about finding something to support its position. In other words, it clearly was a comment on the defense theory, not on counsel's personal integrity. The comment was not misconduct.
B. The Prosecutor's Remarks Regarding the Burden of Proof
Valentine also argues the prosecutor twice committed misconduct in rebuttal by shifting the burden of proof. These claims are also unpersuasive.
First, in closing argument, defense counsel tried to discredit criminalist Sigmon's back calculation of Valentine's alcohol level at 6:26 p.m. by arguing that Dubowski's work showed not everyone absorbs alcohol at the average rate, and asserting that Valentine gave a "weak" breath sample that rendered the PAS test inaccurate. In rebuttal, the prosecutor, after referring to "[t]he average elimination rate," said, "I, as the prosecutor, have the burden of proof in this case. I have to prove this case to you beyond a reasonable doubt, and that's a high burden . . . . That burden doesn't mean that the defense doesn't have the subpoena power. It doesn't mean that they can't call any witnesses. And so you better believe that if there was some evidence that the defendant had some physiological condition or something about him that brought him outside of that average elimination rate, you would have heard about it." Defense counsel objected that the prosecutor was engaging in "burden shifting," but the court overruled the objection.
Second, the prosecutor argued, "So, for you to acquit [Valentine] in this case, you would have to find that something was wrong . . . with the PAS device, and . . . with the blood results, and that whatever was wrong with each of them, was wrong in the—almost the precise same way. Because remember, they both gave results that were in the same neighborhood as one another. Not only is that unreasonable, but it's not based on any reliable evidence that you heard inside of this courtroom." Defense counsel did not object.
Once more, Valentine has forfeited his claims because, in the first instance, he did not ask for the court to admonish the jury and in the second instance, he did not object at all. Valentine's claims also fail on their merits. A prosecutor may comment on the state of the evidence or on the defendant's failure to call logical witnesses, introduce material evidence or rebut the prosecution's case. (See People v. Medina, supra, 11 Cal.4th at p. 755 ["the rule prohibiting comment on defendant's silence does not extend to . . . the failure of the defense to introduce material evidence or call logical witnesses"].) Also, it is "fair rebuttal for the prosecutor to point out implausible aspects of [the defense's] account." (People v. Rhoades, supra, 8 Cal.5th at p. 420; see also People v. Centeno (2014) 60 Cal.4th 659, 673 ["the prosecution can surely point out that interpretations proffered by the defense are neither reasonable nor credible" and the jury's rejection of such a theory "does not relieve or mitigate the prosecutorial burden"].) Similarly, the prosecutor in the present case in effect argued that the defense's theory was unreasonable and that the defense offered no evidence other than Dubowski's work to refute Sigmon's assumptions.
The People argue forfeiture only regarding the second instance.
Valentine relies on People v. Hill, supra, 17 Cal.4th at page 831. Hill is inapposite because the prosecutor in that case implied the defense had an affirmative duty to produce evidence by arguing, " 'There has to be some evidence on which to base a doubt.' " (Ibid., italics omitted.) The prosecutor here made no such comment, instead arguing the defense offered an unreasonable theory that had no significant evidentiary support, not that it failed to meet any burden to produce evidence. (See People v. Bradford (1997) 15 Cal.4th 1229, 1340 ["A distinction clearly exists between the permissible comment that a defendant has not produced any evidence, and on the other hand an improper statement that a defendant has a duty or burden to produce evidence"].) Indeed, the prosecutor prefaced his initial argument by reminding the jury that he had the burden of proof. He did not commit misconduct.
Given our conclusions, we do not address the parties' arguments about the prejudice caused by the prosecutor's remarks.
III.
Valentine's Sentencing Error Claim Lacks Merit.
Finally, Valentine challenges the trial court's sentencing decisions, arguing the court abused its discretion by denying him probation and denied him due process by relying on facts not supported by the record. These arguments also lack merit.
A. Valentine's Challenge to the Denial of Probation
"The decision whether to grant or deny probation is reviewed under the abuse of discretion standard. [Citations.] 'An order denying probation will not be reversed in the absence of a clear abuse of discretion. [Citation.] In reviewing the matter on appeal, a trial court is presumed to have acted to achieve legitimate sentencing objectives in the absence of a clear showing the sentencing decision was irrational or arbitrary.' " (People v. Ferguson (2011) 194 Cal.App.4th 1070, 1091.)
Valentine has not shown the trial court abused its discretion here. We will not repeat his factual contentions other than to note that they amount to a request that we reweigh the evidence, which is not our role under an abuse of discretion standard. (People v. Scott (1994) 9 Cal.4th 331, 335 [regarding a court's sentencing decisions, "[t]he reviewing court cannot . . . reweigh valid factors bearing on the decision below"].) Valentine's conviction on count two was his tenth DUI conviction and his fifth felony DUI conviction. He had received five prior grants of probation, which were revoked on three occasions, had been on probation when he committed new DUI offenses, and had been sent to state prison on four occasions for offenses related to alcohol abuse. The court could reasonably conclude that this record showed a pattern of criminal conduct and an unwillingness or inability to refrain from engaging in criminal conduct while on probation, both of which are grounds for denying probation. (See Cal. Rules of Court, rule 4.414 (b)(1)-(4).) The trial court's decision to deny Valentine probation was not irrational or arbitrary in light of this record.
B. Valentine's Contention That the Trial Court Relied on Unsupported Factual Assertions.
Valentine further argues that the trial court made certain factual assertions that were not supported by the record, thereby denying him due process. (See People v. Eckley (2004) 123 Cal.App.4th 1072, 1080 ["A court's reliance, in its sentencing and probation decisions, on factually erroneous sentencing reports or other incorrect or unreliable information can constitute a denial of due process"].) We disagree.
First, Valentine contends the trial court inaccurately said the probation department " 'strongly believed that state prison was appropriate' " when the department merely said that state prison was an " 'option for the court to strongly consider' " and recommended that Valentine receive probation and serve some time in local custody. The probation department actually stated, "State prison is clearly an option for the court to strongly consider, and although we are recommending yet another supervised probation grant, a disposition that provides the maximum degree of community protection is completely reasonable." The court's characterization of this statement may have been inartful, but it was not an inaccurate characterization of its import.
Second, Valentine argues the trial court improperly indicated that Valentine had been uncooperative with Officer Platzner when there was evidence of Valentine's calm demeanor, cooperation in the field sobriety tests and the like. Again, Valentine asks that we reweigh the evidence, which is not our function. The trial court stated that Valentine "lied to the police about having no alcohol, then admitted to having one beer only. He refused a blood test and a search warrant had to be obtained." Valentine presents nothing to disprove these assertions, or the court's right to rely on them in its sentencing decisions. This argument also lacks merit.
DISPOSITION
The judgment is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
RICHMAN, J.