Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County Super. Ct. No. VCF187587. Kathryn T. Montejano, Judge.
Joy A. Maulitz, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Wiseman, J., and Gomes, J.
INTRODUCTION
Appellant Agustine Vasquez, Jr., led officers on a high-speed chase at speeds of 90-to-100 miles per hour for nearly 27 miles through rural areas. He was charged and convicted of count 1, felony evasion of a peace officer (Veh. Code, § 2800.2, subd. (a)); count 2, misdemeanor driving under the influence of alcohol or drugs (§ 23152, subd. (a)); and count 3, misdemeanor driving with a blood-alcohol level of 0.08 percent or higher (§ 23152, subd. (b)); with the special allegation as to counts 2 and 3 that Vasquez’s blood-alcohol level was over 0.15 percent (§ 23578). He was sentenced to two years in prison.
All further statutory citations are to the Vehicle Code unless otherwise indicated.
On appeal, Vasquez’s counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, and Vasquez has filed a supplemental brief raising several issues. We will affirm.
FACTS
Around 12:37 a.m. on July 21, 2007, Dinuba Police Officer Ryan Clifton was on patrol on South Alta when he saw a black Chevrolet Silverado truck driving north in the southbound lane. Clifton was also traveling southbound and the truck was heading straight toward him. Clifton braked to avoid the truck, and the truck pulled into a gas station. Clifton activated the signal lights and siren on his marked patrol car to conduct a traffic stop. The truck accelerated and led Clifton on a high-speed pursuit. The truck reached speeds of 95 to 100 miles per hours and ran approximately 15 stop signs and stop lights. At one point, the truck’s right turn signal activated at an intersection, but it slowed down and turned left and then accelerated to 90 miles per hour.
Officer Clifton requested assistance from the California Highway Patrol (CHP). CHP Officer Jared Banta and his partner waited in their squad car at an intersection to join the pursuit, and the truck “flew” past them. Banta saw someone leaning out of the passenger window. Banta took over as the lead patrol car in the pursuit, followed by Clifton and additional units from the Dinuba and Fresno Police Departments. The truck continued northbound on Temperance Avenue at 90 miles per hour, and Officer Banta accelerated to close the distance.
As the truck approached Church Avenue, it slowed down and abruptly turned off the road into a dirt field. The truck traveled a few feet into the field and then came to a stop because the front axle hit railroad tracks. The pursuit had lasted 20 minutes and for a distance of 26 to 27 miles.
All the patrol cars followed the black truck off the road and surrounded it, and the officers cautiously emerged from their vehicles with their service weapons drawn. Officer Clifton testified that his patrol car’s headlights, overhead lights, and extra spotlights were activated. The lights from the other patrol cars were also activated, along with the pickup truck’s headlights, so that the entire area was well lit.
Banta testified that he had a direct view of the driver’s door but it did not open. Instead, the passenger door opened, someone got out of the truck, and that person started to run into the field. The officers ordered him to stop. The suspect, later identified as Vasquez’s brother, tried to keep running but he appeared intoxicated. He stumbled and fell down and was taken into custody.
Clifton testified that when the truck’s passenger door opened, the truck’s interior light was activated but Clifton did not see anyone else in the vehicle. Clifton did not see the driver’s door open, anyone emerge from the driver’s door or another part of the truck, or anyone else running in the area.
The officers ordered any other occupants to get out of the truck. Banta testified he kept watching the driver’s side of the truck, and he saw a person in the driver’s seat, later identified as Vasquez. Banta testified that Vasquez suddenly “jump[ed] from the driver seat—jumped backwards or vaulted himself backwards over the seat into the back seat. He’s laying in the back seat. His left leg is still over the driver seat, about the crutch of his knee, which is rested up by the headrest.” Clifton also observed Vasquez with “half of his body lying in the back seat and maybe legs down still trying to come over from the driver’s side seat.” Clifton testified that Vasquez’s legs “were in the driver’s seat, a portion of it, and most of his body was towards the back.…”
Banta repeatedly ordered Vasquez to get out of the truck, but he did not comply. Banta testified that, after about a minute of giving verbal commands, Vasquez “eventually got his leg up over the driver seat, got fully in the back seat, slid across the back seat, opened the back door of the truck,” and got out of the truck. Vasquez complied with the officers’ commands to get on the ground.
Banta testified that Vasquez was definitely the person who was driving the truck. The officers searched the rural area and did not find anyone else associated with the truck, and no one else was in the vehicle. The truck’s keys were on the floor mat in the truck’s rear passenger area.
Officers Clifton and Nuñez testified they had to help Vasquez walk to the patrol car because he was intoxicated. Nuñez testified that Vasquez was unable to hold up his head and had a blank stare on his face.
At 2:07 a.m., Officer Nuñez booked Vasquez into custody at the Dinuba Police Department. Nuñez testified that Vasquez was able to understand and answer the booking questions; he knew he was in a police station, but he did not know what city he was in; he appeared to be under the influence of alcohol or drugs; and he was conscious. Nuñez asked Vasquez several standard medical information questions; Vasquez listened and appeared to understand the questions, and he responded that he did not have any medical problems. Nuñez asked Vasquez if Vasquez used any drugs or alcohol which could cause withdrawal problems, and Vasquez said no. Nuñez testified that Vasquez did not display any disorientation or bizarre behavior.
At 2:12 a.m. and 2:15 a.m., Nuñez conducted breath tests on Vasquez using the “Alcotest, E-PAS” instrument. Vasquez’s blood-alcohol levels were 0.34 and 0.36 percent.
Nancy McCombs, a criminalist with the Department of Justice’s criminal laboratory in Fresno, testified that she reviewed the calibration logs for the breathalyzer instrument used by Officer Nuñez and determined it was working properly when Vasquez was tested. McCombs explained that most people are under the influence at blood-alcohol levels of 0.05 percent and higher. While the legal limit is 0.08 percent, a person’s ability to function also depends upon that person’s alcohol tolerance and drinking experience. She was not aware of any studies about how people drive at blood-alcohol levels above 0.20 percent. McCombs could not recall if she had encountered a blood-alcohol level over 0.30 percent, but it was not unusual for her laboratory to receive samples over 0.20 and 0.30 percent. McCombs acknowledged that a person could pass out from drinking.
In response to a defense hypothetical, McCombs testified that she would not be surprised that a driver with a blood-alcohol level of 0.34 or 0.36 percent could drive in a 26-mile chase, at speeds up to 100 miles per hour, and leave the roadway only once. McCombs again explained that a person’s ability to drive while intoxicated depended upon that person’s drinking experience and tolerance.
Defense evidence
Neither Vasquez nor his brother testified. The defense theory was that Vasquez was too intoxicated to the point of unconsciousness to drive; none of the officers actually saw Vasquez driving the truck; and a third person, Alexander Maynez, may have been driving the truck and escaped into the field.
Alfonso Martinez, the security guard at the Safari Bar in Dinuba, testified he checked the bar around 11:00 p.m. on the night that Vasquez was arrested and found Vasquez asleep and unable to wake up. He smelled of alcohol. Vasquez’s brother and Martinez held up Vasquez and walked him outside. Martinez testified that Vasquez tried to walk but he could not do so on his own. Vasquez’s pants fell off as they helped him out of the bar. Martinez testified that a third man said he would get the truck. Martinez, Vasquez’s brother, and the third man placed Vasquez in the back seat of the truck, and Martinez watched as they drove away.
Alexander Maynez, Vasquez’s friend, testified that he was driving his stepfather’s Silverado truck that night. He picked up Vasquez and drove him to the Safari Bar, and they joined Vasquez’s brother, Camillo. Vasquez, Camillo, and Maynez were drinking at the bar. Maynez testified that Vasquez fell asleep in the bar and was out of it. Maynez saw Camillo carry Vasquez out of the bar and remembered that Vasquez’s pants fell off. Maynez gave the truck keys to someone, but he was too drunk to remember that person’s identity. Maynez walked outside the bar and saw Camillo place Vasquez in the back seat of the truck. Maynez went back inside the bar.
Maynez testified that he did not drive the truck again that night, he did not know what happened to the truck, and he did not remember how he got home. His mother told him that a friend brought him home. A police officer later informed Maynez’s family that the truck was recovered. Maynez had a prior conviction for possession of methamphetamine and he was on parole when he was drinking at the bar that night, which would have been a parole violation. Maynez was in custody for a parole violation at the time of trial.
Stanley Dorrance, a private forensic consultant, testified that a 0.34 or 0.36 percent blood-alcohol level was extremely high and very uncommon, and most people would be grossly impaired and passed out. He would not expect that someone could pass out in a bar, wake up, and then drive 100 miles per hour for 26 miles at such a high blood-alcohol level.
Jeff Gunn, a defense investigator, testified that he recorded a videotape which depicted the route of the police pursuit of the truck and the arrest scene, and the videotape was played for the jury. Gunn recorded the videotape at the same time of night that the incident occurred and testified that there were no lights along the rural streets or the field, the area was very dark, and the only illumination would have been provided by vehicle headlights.
DISCUSSION
Vasquez’s appointed counsel has filed an opening brief which adequately summarizes the facts and adequately cites to the record, raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) By letter dated May 8, 2009, this court invited Vasquez to submit additional briefing and state any grounds of appeal he may wish this court to consider. He has filed a letter brief raising numerous issues.
First, Vasquez complains that the court excluded all witnesses from the courtroom, including his brother as a potential witness, but the court allowed Officer Banta to remain even though he was a witness. Vasquez asserts that Banta was allowed to stay in the courtroom “so that his story could align up with the other officers, to show no discrepancies.” We note that trial courts have discretion to decide whether to exclude witnesses from the courtroom. (People v. Griffin (2004) 33 Cal.4th 536, 574.) In the exercise of its discretion, the court may grant a motion to exclude witnesses but permit certain of them to remain. (People v. Carella (1961) 191 Cal.App.2d 115, 141-142.) One such exception is that the People of the State of California, as a party to a civil case or criminal prosecution, are entitled to the presence of the investigating officer as designated by their attorney. (People ex rel. Curtis v. Peters (1983) 143 Cal.App.3d 597, 602-603.) “It has long been the general practice to permit some officer, active in the prosecution of the case, to remain for the purpose of advising the district attorney as to the facts, the interest and character of the witnesses, etc.” (People v. Boyden (1953) 116 Cal.App.2d 278, 283-284.)
In the instant case, the record reflects that the court excluded all witnesses from the courtroom. On the first day of trial, however, the prosecutor noted that Vasquez’s brother, who was arrested with Vasquez, was present. The court reasserted its order to exclude witnesses, and defense counsel agreed. Thereafter, the prosecutor designated Officer Banta as the investigating officer and Vasquez did not object. Banta was properly allowed to remain in the courtroom during the trial.
Next, Vasquez asserts that two witnesses should have been called who would have made a difference in the case: his brother, who “could have testified that I was not the driver,” and Maynez’s mother, who could have testified about “discrepancies between her and Alex Maynez, the actual driver of the vehicle.” The decision to call witnesses is a matter of trial tactics and strategy for defense counsel, which a reviewing court generally may not second-guess. (People v. Mitcham (1992) 1 Cal.4th 1027, 1059.) The record is silent as to why these witnesses were not called. More importantly, however, there is no evidence as to what these witnesses would have testified to, aside from Vasquez’s hearsay declaration.
Vasquez further contends that the police did not properly conduct the investigation because the officers only interviewed each other, and the photographs that were introduced at trial were taken during the day, whereas the pursuit and arrest occurred at night. Aside from Vasquez and his brother, however, the officers were the only witnesses to the high-speed pursuit and arrest. In addition, defense counsel extensively cross-examined the prosecution witnesses and brought out the fact that all the prosecution photographs were taken months after the incident, in the daytime, when light conditions were vastly different than at the time of the pursuit and arrest. Moreover, the defense introduced a videotape which depicted the entire route of the pursuit and the field where Vasquez was arrested. The defense investigator recorded the videotape in the early morning hours, at times when the chase actually occurred, and testified about the lack of street lights in the rural area.
Vasquez contends that, during breaks, a juror entered the courtroom and was present during off-the-record conversations involving the case; that this happened several times; that the prosecutor was aware of the juror’s presence; and that the prosecutor failed to remove the person from the jury. The record is silent as to such an incident.
Vasquez asserts that Officer Banta improperly “shocked the jury” when he testified about an officer who had been killed in the line of duty; that closing arguments and deliberations were postponed “to the afternoon” so the witnesses could attend the services for the slain officer; that the courthouse was otherwise open that day, and that only Vasquez’s trial was delayed because of the officer’s funeral; and that such actions swayed the jury.
The record reflects that during Officer Banta’s direct examination, the prosecutor asked him about the end of the pursuit, when the officers surrounded the truck in the field, and whether he was watching the truck’s doors. Banta testified that his attention was completely focused on the truck’s interior compartment and doors because of concerns about officer safety. Banta continued: “I think yesterday was a pretty grim reminder of what we face.” Defense counsel objected and the court overruled the objection. There were no further references to any officer-involved incidents that might have occurred during the trial.
The closing arguments were given at the completion of a full court day. At the end of that day, the court informed the jury that the trial would resume the next day at 12:30 p.m., but did not give a reason. On the afternoon of the following day, the prosecutor continued with his rebuttal argument and instructions were given. The record is silent as to the reason for the schedule, and there were no discussions before the jury about an officer being slain in the line of duty.
Vasquez complains that during the preliminary hearing, the court indicated that “the CHP officer could not be used as an expert witness” at trial, and instructed the defense to retain his own expert, but the prosecutor still used Officer Banta at trial despite the court’s ruling at the preliminary hearing. The record refutes Vasquez’s account. Dinuba Police Officer Clifton and CHP Officer Banta both testified at the preliminary hearing. During Clifton’s testimony, defense counsel asked about his experience in conducting arrests for driving under the influence and whether a person could drive a vehicle at high blood-alcohol levels. The prosecutor raised a relevance objection. The court advised defense counsel that Clifton was not “an expert on this. If you want to bring in an expert to show what a.30 or higher blood alcohol would be, that’s fine. Just because he’s had 11 DUI arrests doesn’t make him an expert.” Defense counsel replied that he was trying to address Vasquez’s general condition and whether Clifton saw Vasquez lying down in the back seat. The court added: “Still your point is you’re trying to give an opinion based upon that, and he’s not qualified to do that. Unless you want to qualify him. Just having 11 DUI arrests is not going to put him in a position of criminalist who has done a lot of experiments with drinking persons and drivers, etc.” The court’s comments about the expert occurred during Officer Clifton’s testimony, and the court did not admonish the parties that Officer Banta could not be used as a trial expert.
Our independent review discloses no other reasonably arguable appellate issues. “[A]n arguable issue on appeal consists of two elements. First, the issue must be one which, in counsel’s professional opinion, is meritorious. That is not to say that the contention must necessarily achieve success. Rather, it must have a reasonable potential for success. Second, if successful, the issue must be such that, if resolved favorably to the appellant, the result will either be a reversal or a modification of the judgment.” (People v. Johnson (1981) 123 Cal.App.3d 106, 109.)
DISPOSITION
The judgment is affirmed.