People v. Valladares CA2/8

Filed 3/30/22 P. v. Valladares CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B306766
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA075965)
v.
NORMAN VALLADARES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Alan Z. Yudkowsky, Judge. Affirmed in part
and reversed in part with direction.
Tracy L. Emblem and Julie Caleca, under appointment by
the Court of Appeal, for Plaintiff and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Kathy S. Pomerantz, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
After Norman Valladares rear-ended another vehicle on
Highway 14, he was convicted of felony driving under the
influence of alcohol (Veh. Code, § 23152, subd. (a))1 and
misdemeanor possession of an open container while driving
(§ 23222, subd. (a).) Appellant admitted the allegation that he
had refused a chemical test within the meaning of section 23612.
The trial court sentenced appellant to three years in prison, but
suspended 18 months of the sentence and ordered that portion to
be served under mandatory supervision.2
Appellant appeals, contending the trial court erred in
denying his Batson-Wheeler3 motion without performing a
comparative analysis of the dismissed female Hispanic juror with
jurors who remained on the panel. He also contends the trial
court erred in denying his motion for mistrial after improper
statistical evidence was offered by a California Highway Patrol
(CHP) officer on improperly permitted re-direct examination.
Appellant further contends the trial court erred in informing the
1 Undesignated statutory references are to the Vehicle Code.
2 The information alleged appellant had suffered a prior
conviction for driving under the influence in 2013, within the
meaning of section 23550.5, subdivision (a), and further alleged
this conviction was a prior conviction within the meaning of
Penal Code section 667.5, subdivision (b). The abstract of
judgment indicates the trial court relied on the section 23550.5
enhancement in sentencing appellant. The prior conviction
allegations were not tried by the jury or the court. As discussed
below, the trial court mistakenly believed appellant had admitted
the prior conviction.
3 Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v.
Wheeler (1978) 22 Cal.3d 258 (Wheeler).
2
jury it had taken judicial notice of appellant’s admission, made
outside the presence of the jury, of the allegation that he had
refused a chemical test, and further erred in denying his motion
to re-open closing argument to address this issue with the jury.
Appellant asks that we independently review the in camera
record of the Pitchess4 hearing, and we have done so. Finally,
appellant contends, and respondent agrees, that appellant never
admitted the prior conviction for driving under the influence. We
agree as well. We vacate the sentence in this matter and remand
it for a court trial on the prior conviction allegations,5 as
appellant previously waived his right to a jury trial on the
allegations. We affirm the judgment of conviction in all other
respects.
BACKGROUND
On January 3, 2019, about 10:40 p.m., Cherisa Edwards
was driving her Nissan Murano on Highway 14 when she noticed
traffic merging due to construction on the road ahead. As she
slowed down and tried to merge with other traffic, she was hit
from behind by appellant’s black SUV. Appellant later explained
that he applied his brakes but they locked up and he was unable
to stop soon enough to avoid the collision. The collision generated
enough force to deploy the airbags in appellant’s vehicle, which
caused abrasions on his arms.
4 Pitchess v. Superior Court (1974) 11 Cal.3d 531.
5 The driving under the influence conviction was also alleged
to be a prior conviction within the meaning of Penal Code section
667.5, subdivision (b).
3
Edwards called 911 to report the accident. CHP Officers
Veliz and Chapman, who had been working in the construction
area, arrived at the scene in about five minutes. Both Edwards’s
and appellant’s vehicles were in the middle lane and were
blocking traffic. When the officers approached appellant’s
vehicle, Officer Veliz noticed a large quantity of beer cans inside
the rear storage area. Officer Chapman determined the vehicle
was inoperable and told appellant to walk to an area on the
median.
CHP Officer Mark Recalde and his partner arrived at the
scene before appellant’s vehicle was moved. After their patrol car
was parked, Officer Veliz told Officer Recalde that he had
observed beer cans in appellant’s SUV. Officer Recalde joined
appellant, who was in the center median, and spoke with him
about the accident. He initially spoke with appellant in a
mixture of Spanish and English, and his recording device was not
activated at that time.
Appellant told Officer Recalde he was driving home from
his job in Burbank. Officer Recalde described appellant as
nervous and standoffish, with poor balance, mumbled speech, and
red and watery eyes. At the preliminary hearing, the officer
testified he first smelled alcohol when appellant was inside his
vehicle looking for his registration and insurance. At trial, the
officer testified he smelled an odor of alcohol on appellant from
several feet away.
Officer Recalde began to question appellant about the
amount of alcohol he had consumed. At this point, the officer’s
recording device was on. According to Officer Recalde, appellant
said he had not had any alcohol that day, but had had eight beers
the day before. He last ate about three hours before the collision,
4
when he had a sandwich. Appellant explained the beer cans in
his vehicle were to be recycled. There were some discrepancies
between Officer Recalde’s account of the discussion and the
transcript: Officer Recalde testified appellant said he never
drank beer and was not taking any prescription medication, but
these statements do not appear in the transcript of the officer’s
recording.
Officer Recalde asked appellant to perform a series of field
sobriety tests. The tests were conducted about 150 feet from the
officer’s patrol car and were not recorded by the car’s video
camera, although there was an audio recording of the tests.
Officer Recalde described the tests in his trial testimony.
Officer Recalde first administered the horizontal gaze
nystagmus (HGN) test, which involved an observation of
appellant’s eye movements for nystagmus under three different
conditions. Recalde testified that he observed six out of six
possible “clues” from the test. Officer Recalde testified
appellant’s performance was consistent with being impaired by
alcohol.
Officer Recalde also asked appellant to perform a one-leg
stand test. This test involved appellant standing with heels and
toes together with his arms at his side, raising one leg six inches
off the ground and holding it while Officer Recalde counted until
the officer told him to stop. Appellant tried to perform the test
twice. Both times, he swayed and put his foot down after two
seconds. Officer Recalde testified appellant’s performance was
consistent with being impaired by alcohol.
Officer Recalde additionally asked appellant to perform a
walk and turn test, which involved walking heel to toe on an
imaginary line. Appellant attempted to get into the starting
5
position for this test but could not. He lost his balance
“numerous” times. When Officer Recalde asked appellant if he
was okay, appellant replied that he was nervous. Officer Recalde
then offered appellant the option of another test, which involved
counting by using his fingers. The officer testified appellant
appeared to have difficulty understanding the instructions for the
test, but was able to perform the test well after two or three tries.
Officer Recalde testified appellant’s performance was consistent
with being impaired by alcohol.
Officer Recalde offered appellant the opportunity to take a
preliminary alcohol screening test and told him he could refuse
the test.6 Appellant refused. “Due to the [appellant] being
involved in a traffic collision, [the officer’s] observations of being
under the influence of alcohol, his odor, his inability to balance on
his feet, and his poor performance on the field sobriety tests,”
Officer Recalde concluded appellant was under the influence of
alcohol and arrested him. After placing appellant in a patrol car,
the officer informed appellant that the law required him to
submit to a chemical test due to his arrest, but appellant could
refuse the test. Appellant refused and asked for a lawyer.
After defense counsel cross-examined Officer Recalde, the
trial court permitted the prosecutor to question Officer Recalde
on re-direct examination about the statistical reliability of the
field sobriety tests.
Appellant did not call any witnesses.
6 Officer Recalde testified that a preliminary alcohol
screening test using a breathalyzer in the field was considered a
field sobriety test and was not a chemical test under California
law.
6
DISCUSSION
A. The Trial Court Did Not Err in Denying the Batson-Wheeler
Motion.
After the prosecutor used consecutive peremptory
challenges to dismiss two male Hispanic jurors and one female
Hispanic juror, defense counsel made a Batson-Wheeler motion.
The trial court found appellant had made a prima facie case of
racial discrimination, but ultimately denied the motion.
Appellant contends the trial court erred because it denied the
motion without engaging in comparative analysis, and such
analysis would show that the prosecutor’s reasons for dismissing
prospective Juror No. 3, the female Hispanic juror, were
pretextual. We do not agree.
“Both the federal and state Constitutions prohibit any
advocate’s use of peremptory challenges to exclude prospective
jurors based on race. [Citations.] Doing so violates both the
equal protection clause of the United States Constitution and the
right to trial by a jury drawn from a representative cross-section
of the community under article I, section 16 of the California
Constitution.” (People v. Lenix (2008) 44 Cal.4th 602, 612.)
“ ‘There is a rebuttable presumption that a peremptory
challenge is being exercised properly, and the burden is on the
opposing party to demonstrate impermissible discrimination.’
[Citation.] ‘A three-step procedure applies at trial when a
defendant alleges discriminatory use of peremptory challenges.
First, the defendant must make a prima facie showing that the
prosecution exercised a challenge based on impermissible
criteria. Second, if the trial court finds a prima facie case, then
the prosecution must offer nondiscriminatory reasons for the
challenge. Third, the trial court must determine whether the
7
prosecution’s offered justification is credible and whether, in light
of all relevant circumstances, the defendant has shown
purposeful race discrimination. [Citation.] “The ultimate burden
of persuasion regarding [discriminatory] motivation rests with,
and never shifts from, the [defendant].” ’ ” (People v. Parker
(2017) 2 Cal.5th 1184, 1211.)
Appellant contends that when a prima facie case is found
and the prosecutor states his or her reasons for dismissing the
juror, “courts are required to apply a comparative analysis.” This
is a slight overstatement. “ ‘[E]vidence of comparative juror
analysis must be considered in the trial court . . . if relied upon by
the defendant[.]’ ” (People v. Gutierrez (2017) 2 Cal.5th 1150,
1174.) If a defendant relies on evidence of comparative jury
analysis on appeal, even for the first time, we must consider it if
“ ‘the record is adequate to permit the urged comparisons.’ ”
(Ibid.) Since appellant did rely on comparative analysis evidence
in the trial court and continues to do so on appeal, we consider
this claim.
In the trial court, the prosecutor explained she dismissed
prospective Juror No. 3 because “basically she has no life
experience. She’s younger. She’s never served on a jury. No
kids. Lives with her parents. She’s in college. So that’s why I
excused her.” Appellant responded that the prosecutor’s reason
was pretextual because the prosecutor had not asked the juror’s
age and Juror No. 3 was “not even the only college student on the
jury, that [prospective] Juror No. 7 is also [a]graduate student.”
Counsel stated he was “trying to engage in some comparative
juror analysis.”
8
The trial court ruled: “[T]he issue for the court is whether
the reasons are genuine or pretextual; and from what I’m hearing
from [the prosecutor], I believe that her justifications are
genuine.”
We do not view the trial court’s failure to specifically
address this analysis as necessarily indicating the court failed to
consider the analysis. The trial court may simply have found it
unpersuasive. Regardless, we consider the evidence and do not
find it probative of pretext.
We note initially that youth and limited life experience are
legitimate race neutral reasons for excusing a juror. (See People
v. Lomax (2010) 49 Cal.4th 530, 575; People v. Taylor (2010)
48 Cal.4th 574, 616; People v. Neuman (2009) 176 Cal.App.4th
571, 582 [“young students, inexperienced at life”]; People v. Perez
(1994) 29 Cal.App.4th 1313, 1328 [college students with “limited
life experience”].)
Appellant contends that Juror No. 7, like Juror No. 3, was a
college student with no children and no jury experience and so
had limited life experience but was not excused by the
prosecution. Appellant also contends for the first time on appeal
that the prosecutor’s failure to excuse Jurors Nos. 8923, 3649,
3484 and 3867, who all lacked jury experience, indicates pretext.
(See Miller-El v. Dretke (2005) 545 U.S. 231, 248 [when a
proffered reason also applies to “other panel members, most of
them white, none of them struck, [it] is evidence of pretext.].)
“ ‘As our high court has explained, for a comparative
analysis to be probative, a seated juror must have a
“ ‘substantially similar combination of responses,’ in all material
respects” to an excused juror. [Citation.] “Although jurors need
not be completely identical for a comparison to be probative
9
[citation], ‘they must be materially similar in the respects
significant to the prosecutor’s stated basis for the challenge.’ ” ’ ”
(People v. Henderson (2020) 46 Cal.App.5th 533, 559.)
Juror No. 7 did not share a substantially similar
combination of responses with Juror No. 3. Juror No.7 was a
graduate student working on his Ph.D. while Juror No. 3 was a
college student. Juror No.7, being significantly farther along in
his studies, had more life experience than Juror No. 3, and it is
reasonable to infer that he was also older than her. Juror No. 7
referred to his father-in-law in one response, showing that he was
or had been married, unlike Juror No. 3, again giving him more
life experience. Juror No. 3 expressly stated that she lived with
her parents, while Juror No. 7 did not. Most significantly,
however, Juror No. 7 raised his hand in response to defense
counsel’s question if there was anyone who could not be fair,
stating that he was unsure if he could be fair in this case because
“alcoholism has plagued a lot of members in my family. One of
my uncles passed away in 2015, and my father-in-law passed
away in September 2018 from liver and kidney failures. So it’s a
bit of an emotional response.” This response indicates that Juror
No. 7 was likely to be a favorable juror for the prosecution. In
fact, after the Batson-Wheeler motion was denied, defense counsel
dismissed Juror No. 7.7
7 There is some ambiguity about whether Juror 3704,
originally seated in seat number 7, remained in that seat. At one
point, the transcript indicates the court stated: “Juror No. 7, you
are now Juror No. 9.” The trial court did not otherwise have a
habit of moving jurors around within the first 12 seats. The
previous movement directive was “Juror No. 16, you are now
Juror No. 3.” Both parties continued to refer to the male student
as Juror No. 7 during the subsequent Batson-Wheeler motion.
10
There is nothing in the record on appeal to indicate the race
of the other four prospective jurors identified by appellant. Even
assuming for the sake of argument that these jurors were White,
they had nothing in common with Juror No. 3 apart from a lack
of jury experience. They were all employed (or retired from
employment) and married; three of the four had adult or older
teen-age children, suggesting they were considerably older than
Juror No. 3. In short, they all had a great deal more life
experience than Juror No. 3. Thus, the prosecutor’s failure to
excuse them is not evidence of pretext.
B. The Trial Court Did Not Err in Denying the Motion for
Mistrial.
Appellant contends the trial court erred in denying his
motion for a mistrial based on Officer Recalde’s redirect
testimony concerning three of the field sobriety tests. He
contends the testimony exceeded the scope of cross-examination;
Recalde had not been designated as an expert in the area of
scientific studies; his testimony lacked foundation and
methodology, constituted improper statistical evidence of guilt,
and usurped the jury’s ability to evaluate Officer Recalde’s
credibility. Appellant further contends the evidence denied him a
reasonable opportunity to prepare a defense, including his right
to present an expert witness, and violated his right to a fair trial.
Appellant contends the error was of constitutional dimensions
and not harmless under the Chapman standard of review.
(Chapman v. California (1967) 386 U.S. 18, 24.)
Thus, it seems likely that it was Juror No. 7 who became Juror
No. 9. In any event, defense counsel also excused Juror No. 9.
11
The People contend appellant has forfeited many of these
contentions by failing to raise them in the trial court. We agree.
Appellant’s contentions in the motion for a mistrial were quite
narrow: 1) the testimony exceeded the scope of redirect;
2) Officer Recalde had no basis to opine that the tests predicted a
specific blood alcohol level (BAC); and 3) lack of discovery
hampered his ability to respond to the BAC evidence. Any other
claims are forfeited. (See People v. Harris (2013) 57 Cal.4th
804, 849 [failure to raise a specific issue in a motion for mistrial
forfeits the issue on appeal].)
We agree Officer Recalde’s testimony about the tests
showing a likelihood of a specific BAC was potentially
misleading, but find the error harmless even under Chapman, as
Officer Recalde unequivocally clarified on recross-examination
that he could not determine a subject’s BAC from the tests. Since
the prejudice appellant identified from lack of discovery was an
inability to defend against claims of a specific BAC, any discovery
failure was necessarily harmless.
1. Officer Recalde’s Testimony
On redirect examination, Officer Recalde explained that
three of the field sobriety tests which he administered were
“scientifically validated.” For each test, there were a certain
number of possible “clues” in the subject’s movements which
indicated impairment, but not all clues need to be present to
show impairment. The prosecutor questioned Officer Recalde
about the HGN test, during which Officer Recalde had observed
six of six clues, asking: “[W]hat does your background, training
and experience tell you as far as the likelihood of impairment in
that case?” Defense counsel objected that it was outside the
scope of cross-examination, the trial court sustained the
12
objection, and the prosecutor asked to approach for what turned
into an unreported bench discussion. Following the discussion,
the prosecutor reframed the question to ask: “[W]hat’s the
significance of that as far as someone’s level of impairment?”
Officer Recalde testified that the significance was that only four
of the six clues need to be observed to get “a likelihood” of
impairment, and he got all six. He then non-responsively
continued: “When . . . the scientifically-validated tests were done,
four out of six clues were found and the likelihood of someone
being impaired was 88 percent.” Defense counsel did not object
or ask that the numbers be stricken.
The prosecutor next turned to the walk and turn test,
which appellant did not complete, asking: “[I]s there any
significance that you did observe two clues and that he did not –
was not able to complete that test?” Officer Recalde replied:
“That’s correct.” The prosecutor then asked: “Is there any, like,
percentage or likelihood that you have that you based on your
background, training and experience would know from that?”
Defense counsel objected and asked to approach. Another
unreported bench conference followed. Following the discussion,
the prosecutor asked: “So please tell me the significance of . . .
what you observed in the walk and turn and what happened with
the defendant?” Officer Recalde explained that appellant’s
inability to perform the test constituted two clues, and that with
this combination of factors, “it’s a 79 percent chance or likelihood”
of impairment. Defense counsel objected and the trial court
began: “Let me caution the witness to –.” The prosecutor then
interrupted and asked to approach and be on the record. The
parties approached, but the discussion was not reported.
13
The prosecutor then turned to the third test, the one-leg
stand, asking what was the significance of the officer’s
observation of two of four possible clues, based on his
background, training and experience. Officer Recalde replied:
“[I]f I have two out of four clues, that gives me the likelihood that
the individual is impaired 83 percent at a .08 percent.” Defense
counsel asked to approach, but the trial court told him to state
his objection. Counsel replied: “First of all, beyond the scope of
cross.” The court responded: “Overruled.”
Officer Recalde then continued: “[I]f I’m able to see four
clues in H.G.N., two clues in one-leg stand[,] and two clues in
walk and turn, that gives me an 83 percent chance, based on the
studies that were done by NITSA, National Highway Traffic
Safety Administration, that the individual is a .08 percent
B.A.C.”
Soon thereafter, the court took a break and defense counsel
moved for a mistrial.
2. Appellant’s Oral Motion
Defense counsel argued: “[I]’ve been given no discovery
prior to this trial commencing about any of these conclusions that
the officer is drawing essentially saying that based on the
presence of certain clues and some unnamed studies that he’s
referring to that he’s claiming that with a certain percentage, you
know, reliability he can then extrapolate the actual blood alcohol
content of the person based on the clues. [¶] I’m not aware of any
actual scientific basis for any of that; and certainly there was
nothing in any of the discovery or prior testimony that would
have alerted me in any way to the possibility that any such
testimony would be forthcoming. It certainly didn’t come out at
all in the direct examination[.]”
14
Counsel explained that if he had known about the
testimony ahead of time, he would have moved to exclude it
pursuant to Evidence Code section 352. Counsel continued, “I
don’t think this is a bell that can be unrung. The jury has now
heard all of this testimony that supposedly you can tell someone’s
B.A.C. just from how many clues they show on certain tests,
which I’m not aware of any studies that support that. Just under
a Kelly-Frye8 analysis I don’t think there’s any support in the
scientific community to support the proposition.” Counsel added:
“I don’t think this can be a fair trial any longer at this point on
just basic due process issues, 14th Amendment, without any prior
notice of this.”
The prosecutor argued that defense counsel opened the
door on cross-examination, the questions were “hypothetical” and
“based on the officer’s training and experience what he knows.
He never gave an opinion and never suggested what the
defendant’s B.A.C. was.” The prosecutor contended Recalde was
an expert.
Defense counsel responded that the questions were not
hypotheticals and expert opinions are subject to discovery. He
also stated: “I know that there are reliability percentages that
have been attached to certain of these tests in terms of how
reliable they were, but that’s a different issue than to say that
you can actually tell someone’s B.A.C. with a particular
percentage accuracy based on these tests.”
The trial court ruled: “From the court’s perspective, you did
open the door. You challenged the witness’s recollection, his
methodology and I believe that counsel has an opportunity to
8 People v. Kelly (1976) 17 Cal.3d 24; Frye v. United States
(D.C. Cir. 1923) 293 F. 1013.
15
rehabilitate her witness, and you have an opportunity to recross,
and I trust that, during recross, you’ll deal with all these issues.”
3. Cross-Examination and Recross
“A trial court should grant a mistrial only when a party’s
chances of receiving a fair trial have been irreparably damaged,
and we use the deferential abuse of discretion standard to review
a trial court ruling denying a mistrial.” (People v. Bolden (2002)
29 Cal.4th 515, 555.)
“ ‘The extent of the redirect examination of a witness is
largely within the discretion of the trial court. . . . It is well
settled that when a witness is questioned on cross-examination
as to matters relevant to the subject of the direct examination but
not elicited on that examination, he may be examined on redirect
as to such new matter.’ ” (People v. Steele (2002) 27 Cal.4th 1230,
1247–1248.) “Redirect examination’s ‘principal purposes are to
explain or rebut adverse testimony or inferences developed on
cross-examination, and to rehabilitate a witness whose credibility
has been impeached.’ (3 Witkin, Cal. Evidence (4th ed. 2000)
Presentation at Trial, § 256, p. 328.)” (People v. Cleveland (2004)
32 Cal.4th 704, 746.)
The trial court did not abuse its discretion in finding that
appellant opened the door, at least in part, to Officer Recalde’s
testimony about statistical evidence concerning the three tests.
Defense counsel’s cross-examination questions did suggest that
the HGN test was not reliable because the “clues” in that test
could be caused by hundreds of physical conditions. Counsel had
Officer Recalde demonstrate the one leg test, during which
Officer Recalde “wobbled” and put his foot down. Counsel then
elicited testimony that Officer Recalde only listed one possible
“clue” from this test in his report, and that appellant was shaking
16
and said he was nervous. All of this testimony suggested
appellant’s performance on the test was not a reliable indicator of
impairment. Counsel also suggested the walk test was not a
reliable indicator of impairment because appellant “couldn’t
really do [it].” Officer Recalde’s redirect testimony can
reasonably be understood as responding to that implication. The
essence of his testimony was that studies showed the tests were
highly reliable indicators of impairment even when all possible
clues for the test were not observed.9
Simply because defense counsel opened the door to further
testimony on the reliability of the test when only some clues are
observed, however, does not mean that any testimony was
permissible. In two instances, Officer Recalde testified the tests
gave a percentage likelihood that the subject had a blood alcohol
content of .08. While the officer may well have intended the use
of the .08 number simply to indicate impairment, we agree with
appellant it did have the potential to suggest to the jury,
incorrectly, that the tests provided specific BAC numbers. (See
People v. Joehnk (1995) 35 Cal.App.4th 1488, 1492, 1496 [two
prosecution experts agreed blood alcohol levels cannot accurately
be estimated based on HGN test].)
We see no reasonable possibility that this potential was
realized, however. On recross examination, defense counsel
addressed the blood alcohol numbers, asking: “Now, I want to
9 As quoted above, on redirect examination, Officer Recalde
used the term percentage likelihood of impairment. On recross
examination, he agreed with defense counsel that the
percentages he had mentioned showed the reliability of the
studies, that is, that officers were correct a certain percentage of
the times they concluded a subject was impaired.
17
make sure I understand what you were saying correctly, because
it almost sounds like you were starting to say just from doing
these tests you can determine exactly what someone’s blood
alcohol content was.” Officer Recalde replied: “That’s not what I
said.” Defense counsel continued: “I just want to make sure it’s
clear to the jury that you’re not saying that with these field
sobriety tests you can say, oh, this guy is a .06, that guy is a .07,
that guy is a .09. [¶] All you can tell is whether there is some
basis to believe that they might be impaired?” Officer Recalde
replied: “Correct. I cannot determine someone’s exact blood
alcohol content. I cannot do that.”
C. The Trial Court Did Not Err in Taking Judicial Notice of
Appellant’s Admission That He Refused to Test or in
Refusing to Reopen Argument.
Appellant contends the trial court erred in taking judicial
notice of his admission of the truth of the section 23612 allegation
that he refused a chemical test, and telling the jury it could
consider this judicially noticed fact. The admission was made
outside the presence of the jury. The prosecutor requested
judicial notice of the admission because she wanted to argue
appellant’s refusal showed consciousness of guilt. Appellant
contends the evidence was not relevant because his admission
during trial did not establish his state of mind at the time he
refused the test. Appellant also contends the trial court abused
its discretion in denying his motion to reopen closing argument
after the jury asked a question about the admission.
Respondent contends appellant has forfeited the relevancy
claim by failing to raise it in the trial court. We agree. We see no
error in the trial court’s denial of appellant’s request to reopen.
18
1. Relevancy
Appellant contends defense counsel raised the issue when
he stated: “We already discussed that whole issue. This just isn’t
any matter that’s before them.” He contends that by stating the
refusal was not an issue before the jury, his “stated grounds for
the objection was that the evidence was not relevant.” This is a
very broad objection, and clearly referred to the jury not needing
to decide whether the refusal allegation was true or false. As
defense counsel went on to explain: “They’re not being asked to
decide whether he refused or not, so—” The court replied that it
had eliminated the instruction that told the jury to decide
whether appellant refused. The court added: “But there is a jury
instruction in here that talks about the refusal without asking
the jury to . . . determine whether that fact is true or not.” This
was an apparent reference to the consciousness of guilt
instruction. Defense counsel replied: “Correct. So they’re not
being asked to decide the truth of whether he violated the refusal
enhancement as such. [The prosecutor] can certainly argue that
he refused and refer to the—”
Defense counsel’s objection that the admission was not
relevant because the jury did not have to decide the truth of the
allegation was in no way sufficient to alert the court or the
prosecutor that counsel was contending that an admission during
trial was not probative of appellant’s state of mind at the time he
refused the test. Accordingly, this claim is forfeited.
19
2. Reopening
Appellant contends the jury’s question during deliberations
about the admission showed that the court’s statement to the
jury about his admission confused the jury, and the court abused
its discretion in refusing appellant’s request to reopen closing
argument to address the legal significance of the admission.
The jury’s note requested: “Verification of what happened
in court on Feb. 28th, 2020 with Mr. Valladaresviera & the
court.” The court replied: “The defendant admitted to willfully
refusing a peace officer’s request to submit to the chemical test
pursuant to the Vehicle Code. [¶] The Court refers you to jury
instruction No. 2130 for further instructions.”
Jury Instruction No. 2130 told the jury: “The law requires
that any driver who has been arrested submit to a chemical test
at the request of a peace officer who has reasonable cause to
believe the person arrested was driving under the influence. [¶] If
the defendant refused to submit to such a test after a peace
officer asked him to do so and explained the test’s nature to the
defendant, then the defendant’s conduct may show that he was
aware of his guilt. You are to accept as fact that the defendant
refused to submit to such a test. It is up to you to decide the
meaning and importance of the refusal. However, evidence that
the defendant refused to submit to a chemical test cannot prove
guilt by itself.”
Appellant contends, correctly, that the trial court had a
duty, when faced with a question from the jury, to “ ‘consider how
it can best aid the jury.’ ” (People v. Young (2007)
156 Cal.App.4th 1165, 1171–1172.) He is also correct that among
the tools available to the court was reopening closing argument.
20
(Id. at pp. 1170–1172.) This does not mean that the failure to
reopen argument was an abuse of discretion.
Appellant contends argument should have been reopened to
allow him to respond to the prosecutor’s statement during
rebuttal closing argument that “the court had instructed the jury
to accept appellant’s admission ‘in the middle of trial’ as an
admission of guilt and that the admission supported guilty
verdicts on both counts.” Appellant has not provided a record
citation to support this contention. Rebuttal was brief, and the
prosecutor’s only argument was “All this argument about him not
understanding in the middle of this trial, he admitted to the
refusal allegation. If there was any issues, he would not have
done that. So you can’t now argue, hey, I didn’t understand or I
thought I needed a lawyer. He already admitted to you that is
why the court says you have to accept this as a fact that he
refused. [¶] So just keep those two things in mind, the forest and
the refusal, and find the defendant guilty of both counts.” The
prosecutor used the term “forest” to refer to the “bigger picture”
and the totality of the circumstances of the investigation.
Defense counsel did not object to the refusal argument.
To the extent that the jury’s question indicated it was
focusing on the prosecutor’s rebuttal argument, the court’s
answer was fully adequate to address such concerns.10 The court
10 It is more likely that the jury was simply confused by the
manner in which they learned of the admission, as its reference
to the date indicates. On March 5, 2020, at the close of the
People’s case, the prosecutor stated: “At this point I would just
ask for the court to take judicial notice that on February 28th of
2020, the defendant admitted to willfully refusing a peace
officer’s request to submit to and/or willfully failed to complete
the chemical test pursuant to Vehicle Code section 23612.” The
21
clarified that appellant had in fact admitted the allegation, and
reminded the jury of the significance of that admission. The trial
court did not abuse its discretion in refusing to permit defense
counsel to argue that a prosecutorial statement to which he had
failed to object was wrong.
D. Appellant Did Not Admit He Suffered a Prior Conviction.
Appellant was charged with violating section 23152,
subdivision (a), driving under the influence within 10 years of a
prior felony driving under the influence conviction. Before trial,
appellant waived a jury trial on the allegation he had suffered a
driving under the influence conviction in 2013. This conviction
was also alleged as a prior conviction within the meaning of
Penal Code section 667.5. After the jury reached its verdicts, the
court asked about sentencing. The prosecutor told the court that
they needed to address the priors, and the court replied: “I
believe he admitted the priors.” The prosecutor stated that it was
her understanding appellant had only waived his right to a jury
trial. The court asked defense counsel if the court’s
understanding was incorrect, and counsel replied it was his
recollection that appellant admitted the priors. The court then
stated: “It was two steps. He waived [the] right to a jury trial,
and he admitted the priors.”
The record on appeal does not contain an admission of the
2013 conviction by appellant, and both parties now agree he did
not admit the prior conviction. Respondent notes defense counsel
agreed with the trial court’s statement that appellant had
court replied: “And that request for judicial notice has been
granted.” The court’s response appropriately clarified that
appellant had in fact admitted that he refused the test.
22
admitted the 2013 conviction, but acknowledges that statement
cannot satisfy the requirement that a defendant personally admit
the prior conviction. (Pen. Code, §§ 1025.)
We agree with respondent that there is no bar to
remanding the case for a court trial on the prior conviction. (See
People v. Monge (1997) 16 Cal.4th 826, 845.)
E. The Trial Court Did Not Abuse Its Discretion in Ruling on
the Pitchess Motion.
The trial court granted appellant’s Pitchess motion for
discovery of any complaints in Officer Recalde’s personnel records
relating to dishonesty. The trial court held an in camera hearing
and thereafter stated: “There is no discovery forthcoming.”
Appellant requests that we review the sealed transcript of the in
camera hearing to determine whether the trial court abused its
discretion in concluding there was no relevant discoverable
information. As requested and required, we have done so.
(People v. Prince (2007) 40 Cal.4th 1179, 1284–1286; People v.
Mooc (2001) 26 Cal.4th 1216, 1228–1232.) We see no abuse of
discretion by the trial court.
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DISPOSITION
The sentence is vacated and the matter is remanded for a
trial on the prior conviction allegations and a new sentencing
hearing. The judgment of conviction is affirmed in all other
respects.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
GRIMES, Acting P. J.
WILEY, J.
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