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People v. Melgoza

California Court of Appeals, Third District, Yolo
Feb 19, 2010
No. C060120 (Cal. Ct. App. Feb. 19, 2010)


THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO MELGOZA, Defendant and Appellant. C060120 California Court of Appeal, Third District, Yolo February 19, 2010


Super. Ct. No. CRM08144.


On the fourth day of an estimated three-day trial, during which the court expressed concern over the time, did the court abuse its discretion in limiting the closing argument of defense counsel to 15 minutes?

Defendant Francisco Melgoza was charged by information with driving under the influence of alcohol within 10 years of a prior similar conviction, a felony (count 1; Veh. Code, §§ 23152, subd. (a), 23550.5, subd. (a)); driving with a blood-alcohol content of 0.08 percent or more within 10 years of a prior similar conviction, a felony (count 2; Veh. Code, §§ 23152, subd. (b), 23550.5, subd. (a)); failing to pass safely to the left, an infraction (count 3; Veh. Code, § 21750); and failing to stop at a red light, an infraction (count 4; Veh. Code, § 21453, subd. (a)). The information also alleged that defendant had served four prior prison terms (Pen. Code, § 667.5, subd. (b)).

All further undesignated statutory references are to the Penal Code.

A jury convicted defendant on count 1, but acquitted him on count 2. In bifurcated proceedings, the trial court found defendant guilty on counts 3 and 4 and found the prior prison term enhancements true.

After denying defendant’s motion for new trial, the trial court sentenced defendant to a state prison term of six years.

On appeal, defendant renews the contention raised in his new trial motion: the trial court prejudicially abused its discretion by restricting defense counsel’s closing argument to 15 minutes. Finding no prejudice to defendant we shall affirm.


Prosecution Case

Around 9:30 p.m. on New Year’s Eve 2007, Woodland Police Officer Juan Barrera, driving eastbound on Main Street in a 25-mile-per-hour zone, saw a Buick going the other way at 30 miles per hour. The Buick crossed double yellow lines to enter a turn lane, passing a car which had to pull over to the shoulder and stop abruptly. As Officer Barrera turned his patrol car around to follow the Buick, Barrera looked over his shoulder and saw the Buick “bl[o]w through a red light.” Officer Barrera pulled the Buick over.

Officer Barrera’s patrol car was equipped with DVD videotaping equipment which recorded the events surrounding the traffic stop. The DVD was played silently for the jury and used by both attorneys in questioning Officer Barrera.

The Buick’s driver (defendant) was asked to step out of the car. He seemed nervous, his eyes were watery and red, his speech was slurred, and his breath smelled of alcohol. He did not stagger or appear very unsteady on his feet, but swayed slightly.

Defendant, who stood five feet nine inches tall and weighed around 180 pounds, said he had drunk one 12-ounce Bud Light beer at 8:45 p.m. and had recently eaten a bowl of rice. He said he was not sick or injured, did not have any physical defects, and was not on medication.

Officer Barrera conducted field sobriety tests on defendant (the horizontal gaze nystagmus test, the walk-and turn test, the one-leg stand test, and the finger-to-nose test). Defendant’s performance on all the tests indicated to Officer Barrera that defendant was under the influence of alcohol. Officer Aaron DeLao, who observed the nystagmus test from three or four feet away, estimated defendant’s blood-alcohol level at around 0.08 percent.

After finishing the field sobriety tests, Officer Barrera arrested defendant. At 10:06 p.m. and 10:10 p.m., Officer Barrera administered breath testing (which defendant chose in preference to blood testing). The first reading showed a blood-alcohol level of 0.08 percent; the second showed a level of 0.09 percent.

According to the People’s expert witness, Joseph Palecek, everyone with a 0.08 percent blood-alcohol level is too impaired to drive safely, but even at blood-alcohol levels from 0.01 to 0.05 percent, many people may be impaired. He testified that the average blood-alcohol elimination rate is 0.02 percent per hour and if a male weighing 170 to 190 pounds finished drinking beer at 8:54 p.m., was arrested at 9:33 p.m., and obtained breath test readings at 10:06 and 10:10 p.m. showing blood-alcohol levels of 0.08 and 0.09 percent respectively, then (assuming the testing device was accurately calibrated) the male had consumed around 4.2 beers that evening. Under those circumstances, the male’s blood-alcohol level at the time of his arrest was 0.09 to 0.10 percent.

According to Palecek, if a subject with unabsorbed alcohol in his stomach burps into the machine, an artificially high blood-alcohol reading can result. However, where two readings taken a few minutes apart came within 0.02 percent of each other, this sort of distorting effect was unlikely. In Palecek’s opinion, the results in this case could not have been affected by mouth alcohol.

Officer Barrera did not know whether defendant burped before taking the breath tests. Officer Barrera watched defendant continuously for 15 minutes around the time of administering the tests, as required by protocol, but was also doing other things at the time.

Defense Case

Defendant’s expert witness, Kenneth Mark, opined that neurological damage can impair performance on field sobriety tests. Mark also opined that the breath test readings in this case could be unreliable, due either to possible mouth-alcohol contamination (if defendant was not prevented from burping or regurgitating during the 15 minutes just before taking the test) or machine inaccuracy. Based on the accuracy checks for the machine used here, Mark testified that the true value of the 0.08 percent reading could actually have been 0.075 percent.

Julie Melgoza, defendant’s sister, testified that at the time of the traffic stop defendant had a head trauma injury from a prior car accident, producing symptoms that included droopy eyes, occasional drooling, lack of feeling in the face from the nose down, speech problems, a bit of “bounc[ing]” in the eyes, and poor balance.

Prosecution Rebuttal

Randy Skaggs, an investigator for the District Attorney’s Office, testified that Melgoza had told him her brother “looked normal except for, maybe, a droopy bottom lip.”


Defendant contends the trial court abused its discretion by limiting his counsel’s closing argument to 15 minutes because this was insufficient time in which to make coherent and comprehensible arguments addressing all of the key evidence on both counts. Since defendant nevertheless won acquittal on count 2, he asserts he would probably have been acquitted in full had counsel not been so restricted. We disagree. Even assuming the court erred by limiting defense counsel’s closing argument time to 15 minutes, there was no prejudice to defendant because the evidence of his guilt as to count 1 was overwhelming.


At arraignment, a prosecutor (not the one who tried the case) gave a three-day trial estimate. Though the trial attorneys did not confirm this estimate on the record, the trial court held them to it and appears to have become increasingly unhappy as that deadline slipped away. Nevertheless, the court invited questions from the jury and presented many of them to witnesses, then allowed follow-up questions by counsel. Eventually, over counsels’ objections, the court curtailed closing argument for both sides.

The judge to whom the three-day estimate was given was not the judge who conducted the trial.

The court presented five juror questions to Officer Barrera, one to Officer DeLao, two to Julie Melgoza, and one to investigator Skaggs. Even after the court became concerned that the trial was lasting too long, it continued to solicit juror questions at the end of every witness’s testimony.

The first day of trial (Monday, April 7, 2008) was taken up with in limine proceedings and jury selection. The trial court advised the jury panel that the trial would last three days.

All further dates are in 2008.

The second day of trial (Tuesday, April 8), which was the first day of the evidentiary phase of trial, ended with Officer Barrera, the first witness, still on the stand. The trial court told the jury it had thought they would get further, but “remain[ed] hopeful” the jury would have the case on Thursday afternoon. The court also said, in response to jurors’ questions: “If it carries on to next week, there will be a very grumpy judge; all right? [¶]... [¶] So we’re going to try to get it done very hard this week.”

After the jury left for the day, the trial court urged counsel to “move this trial along,” to “pare [your questions] down to what you absolutely believe is necessary for your side of the case,” and to avoid taking a full day with every witness.

On the third day of trial (Thursday, April 10), after Officers Barrera and DeLao had finished testifying, the trial court told counsel outside the jury’s presence that it was “concerned about the length of this trial.” The court said it planned to start instructing at 3:30 p.m. and to get the case to the jury by 4:00 p.m., “[s]o, whatever time you use on direct, redirect, cross, recross is going to come out of the time that you have for closing arguments.” Both counsel objected to this proposal, but the court reiterated it.

When the next witness, Joseph Palecek, finished testifying, the trial court denied the prosecutor’s request to have him subject to recall.

Outside the jury’s presence, the trial court said: “[W]e’ve spent, probably, four or five hours with Mr. Palecek. I’m sorry, but I’ve asked both counsel to move this trial along; and, you have asked questions, and reasked questions, and reasked questions. [¶] And I’m very disappointed with both counsel in the manner in which they conducted the direct and cross-examination of these witnesses, and I’m not going to prolong this... jury trial. I’m trying to be respect [sic] of the jury, even though it appears that neither counsel is being respectful of their time. [¶]... [¶] We promised them that we would have this trial done in three days, and that is the estimate. It is apparent that it is not going to be done in three days. [¶] And it doesn’t seem to concern either attorney, but it does concern me, because I’m keeping 14 people away from their usual interest. They are guests in our house, and they are not being treated by either one of you attorneys as guests. And, if this continues on, I’m going to admonish you in front of the jury even more than I have already.”

Subsequently, the trial court told counsel outside the jury’s presence that a juror and an alternate had asked the bailiff: “Is this the way trials always go?” The court concluded that counsel were losing the jury by “dragging it out.”

After the People rested and the defense expert testified, the trial court apologized to the jury because the case was not yet in their hands. The court told them they would have to return the next morning, with deliberations expected to begin before noon.

Outside the jury’s presence, defense counsel said he had only one more witness (Julie Melgoza). The prosecutor did not foresee calling any rebuttal witnesses.

On the fourth day of trial, Friday, April 11, after Melgoza testified, the prosecutor said he wanted to call a rebuttal witness. After he had explained why, defense counsel indicated that he might need to recall Melgoza. The trial court allowed the rebuttal witness, but added: “But I’m going to tell both of you: [¶] This is cutting into your closing argument time[.]”

After both sides rested, the prosecutor requested a total of 30 minutes for closing argument, noting that the case was a felony. Defense counsel requested 30 to 40 minutes.

The trial court ruled:

“I believe the Court has the authority to limit closing arguments to a time reasonable. Both of you mentioned that this was a three-day trial; actually, it’s been a bit longer than that, but the Court listened very carefully to many of the questions asked. They were asked and reasked by both sides.

“This did not need to be a three-and-a-half-day trial. This could have been done a lot sooner, a lot quicker. The questioning was not focused on the issues.

“You mention this is a felony. No, this is--it may be a felony charge, but only because there is a prior. This is a straight DUI case, at this point, Mr. Couzens. And so--and this court has conducted complicated DUI cases in less than the time that this has been accomplished.

“There was no reason to have Mr. Palecek on the witness stand for four-and-a-half hours yesterday, that [sic] I ascribed that to both counsel. There was no need to have Officer Barrera on the stand all day Tuesday, April 8th, and then bring him back for what was perceived to be, or what was represented to be, a short time yesterday morning, and it extended out.

“So the estimates that counsel have given this court--and I understand, Mr. Johnson [defense counsel], that you’re not responsible for the three-day estimate, but you are responsible for what has gone on since the trial began, as far as use of time and efficient use of time.

“So the court will give the prosecution 20 minutes total and the defense 15 minutes total.

“Your objections are noted on the record.

“I believe if you focus your arguments to the issues on whether or not Mr. Melgoza was impaired while driving and whether or not the E-PAS machine was properly calibrated, objective signs of impairment, I think that that is more than adequate time, and the Court makes that ruling.”

Defense counsel’s closing argument, which takes up 14 pages in the record, began with count 2 (the 0.08 percent blood-alcohol count). After noting that he had been limited to 15 minutes and had “a lot to go over, but I’ll try to condense it[,]” counsel discussed the issues pertaining to both the calibration of the machine and the administration of the test, including the testimony and qualifications of the expert witnesses and the arresting officer.

Counsel then abruptly transitioned to count 1: “Another way that the People--and I’m sorry if I’m speaking fast. I’m trying to get in under my time limits. [¶] Another way that the People would be able to prove that Count One was true would be to prove that, at the time of driving, there was impairment to a substantial degree that affected the characteristics of Mr. Melgoza’s driving.” As counsel addressed specific points in the traffic stop, he repeatedly urged the jury to watch the video “because I’m not going to show it and waste my time here in closing.” After alluding to the field sobriety tests but discussing only one (the nystagmus test), counsel said: “Look at those. I’m not going to go into each of them. I wish I had a little more time, but you can certainly judge the credibility of the officer in giving the field sobriety tests on that single basis there.”

Next, counsel stumbled over his own words: “In fact, when Mr. Couzens [the prosecutor] laid out the entire scenario, he said probably impairment; however, Mr. Couzens, and I direct you to this, in his scenario to the expert, specifically left out whether or not the officers followed Title 17 [the testing protocol], followed that 15-minute burping, followed whether or not there was unequal tracking, where there might be neurological damage. [¶] Once that was added to the mix, you heard Mr. Mark tell you it could, very easily, be a.07. Certainly, a reasonable conclusion. And, certainly, not reasonable to say, or reasonable and--I apologize. Both reasonable to say under the influence and reasonable to say not under the influence.” The trial court interjected: “Wrap up.”

When counsel finished, the trial court said: “Mr. Johnson went three minutes over the time limit established by the Court.”

After the verdict came in, defendant moved for new trial, asserting that the trial court’s time limit on closing argument had prevented counsel from presenting a full defense. In a supporting declaration, counsel stressed his inability to show the jury the video to support numerous arguments on both counts, to go through the field sobriety tests in detail, and to explain (rather than merely allude to) his neurological damage defense theory as to count 1.

After hearing argument, the trial court denied the new trial motion, reasoning as follows:

Under section 1044, the trial court has inherent power to control the proceedings, including the broad discretion to limit counsels’ time in closing argument. During jury voir dire, the court advised the panel, without objection from counsel, that the trial would last three days at most. The court made its ruling only after repeatedly advising counsel to move the case along and warning them that otherwise it might restrict argument. Having listened to the tape of defense counsel’s closing argument, the court was satisfied that counsel had “hit all the key points” and “at least alerted the jury to the issues”; an additional 12 minutes would not have further illuminated the defense position.


“It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved.” (§ 1044.)

Although a criminal defendant has a constitutional right to have counsel present closing argument to the trier of fact, section 1044 gives the trial court discretion to set reasonable time limits on such argument. (People v. Benavides (2005) 35 Cal.4th 69, 110 (Benavides); People v. Marshall (1996) 13 Cal.4th 799, 854 (Marshall).)

We uphold a trial court’s determinations under section 1044 unless the court patently abused its discretion. (People v. Calderon (1994) 9 Cal.4th 69, 79; People v. Cline (1998) 60 Cal.App.4th 1327, 1334.) But even if the court did abuse its discretion, the defendant must still show prejudice to win reversal. (Cal. Const., art. VI, § 13; People v. Stout (1967) 66 Cal.2d 184, 200.) Defendant asserts the error here is reversible per se as a denial of his Sixth Amendment right to counsel, or alternatively under the harmless-beyond-a-reasonable-doubt standard because he was denied his constitutional right to effective assistance of counsel. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705].) We disagree. Defendant was not denied counsel, and he cannot show counsel was ineffective. (Cf. People v. Maury (2003) 30 Cal.4th 342, 389 [no reversal for ineffective assistance of counsel unless a better result was reasonably likely but for counsel’s incompetence].) Thus, the usual standard of reversible error under section 1044 applies.

The parties have not cited case law under section 1044 which is on point to this situation where the court restricts counsel’s time for argument because the trial is one day over the prosecutor’s estimate, and we have found none. Defendant relies mainly on a venerable Supreme Court decision predating section 1044 (People v. Green (1893) 99 Cal. 564 (Green)), but even if its holding is still viable, the case is distinguishable on its facts.

Section 1044 was enacted by Statutes 1927, chapter 607, page 1040, section 1.

In Green, the high court held that the trial court prejudicially abused its common law discretion to restrict closing argument by limiting defense counsel’s argument time to one hour. (Green, supra, 99 Cal. at pp. 569-570.) But Green was a robbery case with a five-day trial where the defendant claimed mistaken identity, the parties presented 24 witnesses, and the evidence was “voluminous, partly circumstantial, and extremely conflicting” on all material facts and issues. (Id. at pp. 565-566, 569.) By contrast, the present case is a six-witness DUI case with direct evidence as to both alleged offenses--the DVD (which recorded both defendant’s driving and his performance on the field sobriety tests) as to count 1, and the breath test results as to count 2. Thus, Green is not strong persuasive authority for reversal here.

Furthermore, the high court apparently considered it relevant (though without explaining why) that key defense witnesses, and presumably the defendant himself, were of different ethnicity than the alleged victim and his chief witnesses. (Green, supra, 99 Cal. at pp. 564-566.)

The more recent case law defendant cites is inapposite. People v. Gurule (2002) 28 Cal.4th 557 (Gurule) and People v. Rodrigues (1994) 8 Cal.4th 1060 (Rodrigues) stress the defendant’s right to a “full” closing argument. (Gurule, supra, at p. 557; Rodrigues, supra, at pp. 1184-1185.) But neither Gurule nor Rodrigues considers the question whether time limits on closing argument necessarily render it less than “full.”

The People rely on Benavides, supra, 35 Cal.4th 69, and Marshall, supra, 13 Cal.4th 799, but these decisions are also not on point. There, the trial courts did not set time limits on closing argument, but merely barred counsel from arguing irrelevant matter. (Benavides, supra, at p. 110; Marshall, supra, at p. 855.) Though these rulings may have had the effect of shortening argument, they did not restrict counsels’ time for argument based on the length of the trial, as the court did here.

Since the authority cited by the parties does not aid us, we look to whether, in fact, defense counsel was unreasonably hampered in his ability to put on a full argument, and if so whether it could have affected the outcome adversely to defendant. We answer the first question “yes,” but the second question “no.”

First, in light of the whole record, the trial court’s decision to limit defense counsel to 15 minutes was without a reasonable basis. Even if the attorneys bogged the proceedings down with inefficient questioning, as the court believed, some of the court’s own actions (inviting and asking multiple juror questions, giving counsel free rein in questioning until near the end of trial) also caused the trial to last longer than anticipated. And though the court’s concern about abusing the jurors’ time and patience is commendable, the court’s premature assurances that they would soon have the case in their hands might have unduly raised their expectations. Trials are often unpredictable and counsels’ opinions of the length of time it will take to try a case are estimates at best. To punish counsel by depriving them of the few additional minutes they believed they would need to argue, merely because an arbitrary deadline for completing the presentation of evidence had lapsed, was a disproportionate sanction which risked unfairly harming either party or both parties.

Furthermore, the trial court’s arbitrary time limit impeded defense counsel’s ability to argue count 1. After he had reasonably chosen to start with count 2, which involved expert testimony and mathematic calculation posing issues needing discussion in some depth, he had little time left to articulate his position effectively on the separate issues raised by count 1 (e.g., whether Officer Barrera competently administered the field sobriety tests and accurately assessed defendant’s performance). Defense counsel’s declaration on the new trial motion indicated how he would otherwise have argued had he the time. His time pressure also induced the garbled peroration we have quoted, which could not have helped defendant’s case.

Nevertheless, we conclude that any error in limiting counsel’s argument time does not require reversal. First, the trial court also restricted the prosecutor’s argument time, and defendant may well have owed his acquittal on count 2 to that fact. Second, the evidence against defendant on count 1 was overwhelming.

Viewing the evidence most favorably to the judgment, defendant drove illegally and recklessly in a manner which strongly suggested impairment (especially on New Year’s Eve). When he got out of his car, he showed most of the standard signs of intoxication. He admitted having recently drunk one beer. He performed poorly on all the field sobriety tests. Defendant then registered breath test results of 0.08 percent and 0.09 percent blood-alcohol content. Even if their accuracy was in question, the lowest possible reading suggested by defendant’s expert was 0.075 percent--well into the range where most, if not all, drivers are impaired (thus highly probative on the “generic” count 1, even if insufficient for proof beyond a reasonable doubt on count 2). And the only evidence of defendant’s “neurological” defense was the obviously biased testimony of his sister, who lacked medical expertise and had not mentioned most of defendant’s alleged symptoms to the People’s investigator. Furthermore, defendant’s denial of any illness, injury, or impairment to Officer Barrera that night made this defense appear fabricated at trial. On this record, even if defense counsel had been given unlimited time to argue, there is no reasonable possibility defendant would have obtained a better outcome.


The judgment is affirmed.

We concur: SCOTLAND, P. J., HULL, J.

Summaries of

People v. Melgoza

California Court of Appeals, Third District, Yolo
Feb 19, 2010
No. C060120 (Cal. Ct. App. Feb. 19, 2010)
Case details for

People v. Melgoza

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO MELGOZA, Defendant and…

Court:California Court of Appeals, Third District, Yolo

Date published: Feb 19, 2010


No. C060120 (Cal. Ct. App. Feb. 19, 2010)