Opinion
F059678
09-15-2011
THE PEOPLE, Plaintiff and Respondent, v. WALTER LORENZO LENOIR, Defendant and Appellant.
Gregory W. Brown, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. BF129763A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John S. Somers, Judge.
Gregory W. Brown, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
Walter Lorenzo Lenoir, defendant, was convicted of one count of felony driving under the influence pursuant to Vehicle Code section 23550. The crime of driving under the influence becomes a felony after it is proved that the defendant has three or more separate convictions for reckless driving (as a plea substitute for an original charge of driving under the influence), driving under the influence, or driving with a certain blood alcohol level within 10 years of the current offense. Defendant appeals claiming he was prejudiced by the fact the jury knew the charge against him was a felony, thus by implication revealing he had prior driving under the influence convictions. In addition, he argues the evidence is insufficient to support his conviction and his admission that he had prior driving under the influence convictions is flawed because the trial court referenced the wrong code section when it took his admissions. We affirm.
All further statutory references are to the Vehicle Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
On October 7, 2009, at 1:20 a.m., California Highway Patrol Officer Michael Bright observed a vehicle being driven by defendant going 53 miles per hour in a zone with a speed limit of 35 miles per hour. He also observed the car to be driving closely to the car ahead of it. Officer Bright stopped the vehicle.
Officer Bright approached the vehicle and spoke to defendant. There was a male passenger in the car. Officer Bright's experience and training included being a California Highway Patrol Officer for 14 years, completing a 40-hour course in the detection and apprehension of drivers impaired by alcohol and/or drugs, completing nine weeks of field training with an experienced officer, obtaining continuous training over the course of his employment, and investigating between 500 and 700 individuals for driving under the influence, not all of which resulted in arrests.
When Officer Bright contacted defendant he smelled the strong odor of an alcoholic beverage coming from the vehicle, noticed defendant's speech was slow and slurred, and his eyes were red and watery. He asked defendant to get out of his vehicle and walk to the sidewalk. Defendant was unsteady on his feet, did not walk in a straight path, and stopped short of the sidewalk. The facts indicated a person who was under the influence of alcohol.
Officer Bright asked defendant about his activities during the preceding evening. Defendant said he had consumed two beers starting at approximately 9:00 p.m. He said he was not taking any medications.
Officer Bright administered several field sobriety tests to defendant including the horizontal gaze nystagmus test, the Rhomberg balance test, the one-leg stand test, and the finger-to-nose test. Defendant's performance on each test was consistent with being under the influence. On the horizontal gaze nystagmus test, defendant's eyes failed to track the stimulus smoothly. During the Rhomberg balance test, defendant opened his eyes in seven seconds, rather than 30, indicating impairment of his internal clock. Defendant attempted the one-leg stand test, but dropped his foot immediately. He blamed his footwear, so he was allowed to remove his work boots. He then dropped his foot after five seconds and said he was done with the test. During the finger-to-nose test, defendant placed his fingertip all around his nose, rather than the tip; he did not bring his arms down to his sides and raised the wrong arm on the fifth and sixth count.
The horizontal gaze nystagmus test requires an individual to follow a moving stimulus with his eyes only. The Rhomberg balance test requires an individual to stand with his feet together and his arms to his side. The individual is directed to tilt his head back, close his eyes, estimate 30 seconds, and then open his eyes again. The one-leg stand test requires an individual to lift one foot about six inches off the ground, place his arms to his sides, look down at his foot, and then count from 1001 to 1030. The finger-to-nose test requires an individual to place his feet together, tilt his head back, lift one finger (left or right) and touch the tip of his nose and then put his hand down.
Officer Bright asked defendant to participate in a preliminary alcohol screening, where one blows into a hand-held electronic device to determine a blood-alcohol reading. Defendant refused.
Officer Bright concluded defendant was under the influence of alcohol and placed him under arrest. He advised defendant that he was required by state law to submit to a blood or breath test. Defendant said he did not want to do either test.
Officer Bright testified he was 100 percent confident that defendant was under the influence of alcohol.
Defendant was charged with driving under the influence within 10 years of three or more driving under the influence convictions in violation of section 23152, subdivision (a) and section 23550. This count contained several enhancements including the refusal to take a chemical test, a prior serious felony conviction that qualified as a strike, and three prior driving under the influence convictions. In a separate count, defendant was charged with driving with a suspended license.
Prior to trial, defendant admitted the enhancement that he refused to take the chemical test and pled nolo contendere to driving with a suspended license. The trial court agreed to bifurcate the prior driving under the influence conviction enhancements, but refused to not refer to the current crime as a felony.
Defendant was convicted of the "Felony" of driving under the influence of alcohol "in violation of Section 23152(A)/23550 of the Vehicle Code." Defendant then agreed to admit the prior conviction allegations and his counsel stipulated to a factual basis for the admissions. After advising defendant of his rights and taking a proper waiver of them, the court accepted defendant's admission of the prior convictions.
DISCUSSION
I. Informing the Jury the Charge was a Felony
Prior to trial, defense counsel made a motion to preclude the jury from learning that defendant was charged with the felony of driving under the influence. He claimed if the jury was informed the charge was a felony it would infer that he had suffered prior drunk driving convictions because jurors would be aware that normally a conviction for driving under the influence is a misdemeanor and not a felony. Thus, he argued he would be prejudiced.
As previously noted, the court agreed to bifurcate the prior driving under the influence conviction enhancements, but denied the motion to not refer to the charge as a felony. In denying the motion the court stated, "[T]he jury instructions already reference it as a crime rather than a felony. I think if there is any reference to the crime being as a felony versus being a misdemeanor, I think it might at most occur once and it might occur in passing. I don't think that there's any significant prejudicial effect to the defendant of the fact that it's referred to as a felony versus simply being referred to as a crime. Any such references are likely to be only occasional in any event, and it won't be referred to that way in the jury instructions because I'm going to read them as they're worded and that's not the way they're worded."
The verdict form stated defendant was convicted of "Felony" driving under the influence of alcohol "in violation of Section 23152(A)/23550 of the Vehicle Code." In polling the jury after they had reached their verdict, the court read the verdict and asked if the verdict, as read, reflected their verdict. The court's reading of the verdict included the term felony and referenced section 23550.
Defendant claims that after bifurcating the prior convictions from the underlying charge in recognition of the unacceptable level of prejudice that would result if the jury were informed about his prior drunk driving convictions, the trial court inexplicably informed the jury of the priors by referring to the charge as a felony and by further referring to the charge as a "23152(a)/23550" crime. Defendant argues there is a reasonable chance that at least some jurors would have known that a first offense driving under the influence conviction would be charged as a misdemeanor, not a felony. The jurors, he asserts, may have speculated that, in order for the charge to be a felony, defendant must have suffered a prior driving under the influence conviction or done something more serious such as causing injury or death. He asserts the trial court erred when it failed to ensure that the allegations regarding the prior convictions did not reach the jury. Defendant contends the error was prejudicial because evidence of prior driving under the influence convictions would be highly inflammatory and would taint the jury's finding on the current driving under the influence charge. He argues the trial court recognized this prejudice when it bifurcated the prior convictions from the underlying charge.
"Having a jury determine the truth of a prior conviction allegation at the same time it determines the defendant's guilt of the charged offense often poses a grave risk of prejudice.... 'Evidence that involves crimes other than those for which a defendant is being tried is admitted only with caution, as there is the serious danger that the jury will conclude that defendant has a criminal disposition and thus probably committed the presently charged offense. [Citations.]'" (People v. Calderon (1994) 9 Cal.4th 69, 75.)
Although defendant characterizes the court's actions as the equivalent of telling the jury that defendant had suffered three prior driving under the influence convictions, that is not what happened. The jury was informed the charge was a felony and the felony code section was referenced in conjunction with the misdemeanor section for driving under the influence. A jury member would have to engage in speculation to conclude defendant had prior driving under the influence convictions. We would be speculating ourselves if we were to find the jurors knew the nature of the charges from a reference to "felony" and/or "23550."
The jury was instructed, "you must determine what facts have been proved from the evidence received in the trial and not from any other source." "You must not be biased against a defendant because [he] has been arrested for this offense, charged with a crime, or brought to trial." "You must decide all questions of fact in this case from the evidence received in this trial and not from any other source. [¶] You must not independently investigate the facts or the law or consider or discuss facts as to which there is no evidence."
"[W]e presume that the jury 'meticulously followed the instructions given.'" (People v. Cruz (2001) 93 Cal.App.4th 69, 73.) "Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions." (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
Other than speculation, we have no basis to believe the jurors did not follow the court's instructions and determined the case on facts not shown by the evidence. For this reason alone, defendant's argument fails.
Additionally, defendant has not shown he was prejudiced by the claimed error. The evidence of defendant's guilt was very strong. He was stopped after he was seen by Officer Bright driving too fast and following too close. There was a strong odor of alcohol coming from the vehicle. Defendant's speech was slow and slurred, and his eyes were red and watery. He did not walk in a straight path away from the car and he was unsteady on his feet. He failed numerous field sobriety tests. All these factors are independent signs that a person may be under the influence. He admitted he had consumed beer earlier in the evening. He refused to take a test to determine his blood alcohol content; such a refusal can be used in establishing guilt. Officer Bright, an officer with 14 years of experience and with training in the area, was 100 percent convinced defendant was under the influence of alcohol. When all these facts are combined it is clear the jury would not have reached a different verdict in the absence of the claimed error.
II. Sufficient Evidence
As previously set forth the jury returned a verdict finding defendant guilty of "Felony, to wit: Driving Under the Influence of Alcohol, in violation of Section 23152(A)/23550 of the Vehicle Code, as charged in the first count of the Information." Section 23550 requires that the defendant be convicted in the previous 10 years of three counts of driving under the influence and/or reckless driving (as a result of a plea after defendant is charged with driving under the influence). The prior conviction allegations were bifurcated from the underlying charge and defendant admitted the prior convictions after the jury returned their verdict.
Defendant contends the evidence is insufficient to support the verdict. He argues the verdict returned by the jury found him guilty of violating section 23550, yet the jury received no evidence regarding the prior convictions, thus the verdict is not supported by the evidence and the verdict is void. He asserts the error cannot be characterized as an inadvertent clerical error on a verdict form because the trial court appeared to believe throughout the trial that the jury was empowered to make the section 23550 finding. He characterizes the error as "advertent, judicial error." We disagree.
"[J]udicial error 'which occurs in the rendition of orders or judgments which are the fault of judicial discretion, as opposed to clerical error or inadvertence, may not be corrected except by statutory procedure.' [Citations.] An order is clearly '"judicial"' if the trial court entered the order it intended. [Citation.] '"Generally, a clerical error is one inadvertently made, while a judicial error is one made advertently in the exercise of judgment or discretion. [Citations.]"'" (People v. Davidson (2008) 159 Cal.App.4th 205, 210.) "'[A] decision is inadvertent if it is the result of oversight, neglect or accident, as distinguished from judicial error.'" (In re Gray (2009) 179 Cal.App.4th 1189, 1196.)
The parties and the court clearly intended the verdict to reflect only that defendant was convicted of violating section 23152, subdivision (a), with further proceedings on the section 23550 finding to occur if the jury returned a guilty verdict. The jury was instructed only on the elements of violating section 23152, subdivision (a), the parties argued the case as if it was simply a case involving a violation of section 23152, subdivision (a), and at defendant's request the court agreed to bifurcate the prior convictions necessary to prove that defendants' driving under the influence fell within section 23550. The inclusion of section 23550 on the verdict form was plain clerical error.
Defendant has failed to show the verdict was not supported by the evidence.
III. Defendant's Plea to the Priors Utilizing the Wrong Code Section
Defendant was charged with violating section 23550. As previously set forth, under that section if defendant has three of the requisite convictions during a 10-year period he is subject to punishment in state prison and the conviction is a felony. The trial court granted defendant's request to bifurcate the trial on his prior driving under the influence convictions and his prior serious felony conviction. Defendant waived a jury trial on the facts of his prior convictions. After the jury returned its verdict a hearing was held on the prior convictions.
At the outset the court stated, "We have to conduct the bifurcated phase of the trial, making a determination as to whether or not the prior convictions alleged under Penal Code Section 667(e) and also the driving under the influence prior convictions are or are not true." Defense counsel then stated that defendant "is prepared to enter admissions to the priors."
The court advised defendant of his rights in relationship to admitting the priors. Defendant waived his rights and the court found his waiver to be knowing, voluntary, and intelligent. The court asked defense counsel if she stipulated to a factual basis for the admissions. Defense counsel and the People so stipulated.
The court began with the first prior and stated, "as it relates to Count 1 in this matter ... as to the prior driving under the influence conviction allegations, it is alleged that you committed a violation of Section 23152 of the Vehicle Code and were convicted of that offense on or about November 19th, 2001 ... that offense having occurred on September the 15th, 2001, which is a prior conviction within the meaning of California Vehicle Code Section 23540. Do you admit or deny that prior conviction, sir?" (Boldface added.)
Defendant admitted this prior conviction. The court proceeded to take admissions on the remaining two prior driving under the influence convictions, each time referencing section 23540, and not section 23550, which is the section alleged in the information. Section 23540 applies to persons who have only one prior qualifying driving under the influence or reckless driving conviction and it is a misdemeanor offense.
After defendant made the admissions, the parties had no comment and the court found that defendant "has made knowing, voluntary and intelligent waivers of his rights and admissions to those prior convictions, and based on the admissions I will find the three prior driving under the influence convictions under Vehicle Code Section 23540 to be true." (Boldface added.)
The defendant was sentenced to prison for the upper term of three years, which was doubled to six years because of the prior serious felony strike conviction.
Defendant contends his conviction cannot stand because the conviction is not supported by an admission by defendant or a court finding. Defendant continues with his previous argument regarding the inclusion of section 23550 in the verdict form returned by the jury and states, "After this verdict, the trial court may have acted under the assumption that it only needed to make a finding that prior drunk driving convictions occurred, and that it did not need to find the Vehicle Code section 23550 enhancement true. Or, the trial court may have believed that the jury had made a proper finding on the Vehicle Code section 23550 allegation, and that it only needed to make finding[s] as to the Vehicle Code section 23540 allegations. No matter what the reasoning, the trial court never made a finding on the Vehicle Code section 23550 allegation as required by Penal Code section 1170.1, subdivision (e)."
Defendant infers too much from what occurred in this case. It is clear to this court the trial court merely misspoke when it referenced section 23540 and not section 23550. The two code sections are clearly distinguishable, one requires only one prior conviction and is a misdemeanor; the other requires three prior convictions and is a felony.
Defendant admitted three prior convictions, he was charged with a violation of section 23550, and the trial proceeded as a felony trial.
In People v. Menius (1994) 25 Cal.App.4th 1290, the defendant was charged with a multiplicity of offenses and each count included multiple enhancement allegations including a Health and Safety Code section 11370.2, subdivision (b) (prior drug conviction) enhancement. (People v. Menius, supra, 25 Cal.App.4th at p. 1293.) At the time of his plea the defendant admitted the Health and Safety Code section 11370.2, subdivision (b) enhancement. At sentencing "the court purported to impose an enhancement under subdivision (a) of Health and Safety Code section 11370.2. Defense counsel did not comment." (People v. Menius, supra, 25 Cal.App.4th at p. 1294.)
On appeal the defendant argued his sentence was in excess of the court's jurisdiction because he did not admit a Health and Safety Code section 11370.2, subdivision (a) enhancement and the record did not support such an enhancement. The appellate court rejected his argument. "Defendant cites no authority for the proposition that an obviously inadvertent misstatement by the trial court, referring to the wrong subdivision of the applicable statute, entirely vitiates the effort to impose the enhancement." (People v. Menius, supra, 25 Cal.App.4th at p. 1294.) The appellate court found the error to be akin to clerical error and corrected the error. It noted there was nothing in the record to suggest the court desired to strike the enhancement as permitted by Penal Code section 1170.1, subdivision (h). (People v. Menius, supra, 25 Cal.App.4th at pp. 1294-1295.)
Here, the court simply misspoke and erroneously stated the wrong code section when it accepted defendant's plea. Defendant admitted the three prior driving under the influence convictions as charged, which satisfied making his current conviction a felony under section 23550. In sentencing defendant to the felony term, the court impliedly found that it had been properly proved defendant violated section 23550.
In People v. Clair (1992) 2 Cal.4th 629, the People claimed that a sentence on a serious felony enhancement must be set aside because no finding on the underlying prior-conviction allegation appeared in the record. The Supreme Court disagreed. Defendant waived trial by jury on the allegation, stipulated the court could consider the evidence the People intended to introduce before the jury, and consented to trial by the court. The court did not make a finding, but "impliedly—but sufficiently—rendered a finding of true as to the allegation when it imposed an enhancement expressly for the underlying prior conviction." The court found no failure of proof and no reason to vacate the enhancement. (Id. at p. 691, fn. 17.)
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There is no lack of proof here and no misunderstanding as to what defendant was pleading to. There was merely a misstatement by the court of the correct code section.
"No judgment shall be set aside, or new trial granted, in any cause ... for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.)
Defendant has failed to show that the misstatement by the trial court requires reversal of his conviction. It would be an idle gesture and a waste for this court to remand the matter to the trial court to accept defendant's admissions utilizing the correct code section. (See People v. Dunnahoo (1984) 152 Cal.App.3d 561, 579.)
DISPOSITION
The judgment is affirmed.
DETJEN, J. WE CONCUR: CORNELL, Acting P.J. DAWSON, J.