Opinion
H044020
10-24-2017
THE PEOPLE, Plaintiff and Respondent, v. JAMES OSCAR GAUDREAU, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS150645A)
I. INTRODUCTION
A jury convicted defendant James Oscar Gaudreau of driving under the influence (DUI) of alcohol (Veh. Code, § 23152, subd. (a)) and driving with a blood alcohol level of 0.08 percent or more (id., subd. (b)). As to both of those offenses, the jury found true allegations that defendant's blood alcohol level was 0.15 percent or greater. (Veh. Code, § 23578.) The trial court convicted defendant of driving while his license was suspended for a DUI conviction. (Veh. Code, § 14601.2, subd. (a).) Defendant admitted he had two prior DUI convictions (Veh. Code, § 23550.5) and that he had served three prior prison terms (Pen. Code, § 667.5, subd. (b)). The trial court sentenced defendant to a five-year prison term.
On appeal, defendant contends the trial court abused its discretion under Evidence Code section 352 by allowing the prosecution to impeach him with a 2009 DUI conviction. Defendant further contends the trial court should have granted a mistrial when the prosecution mentioned that the 2009 conviction was for "DUI with four prior convictions for DUI." Finally, defendant contends his trial counsel was ineffective for not moving to strike and requesting a jury admonition when the prosecutor mentioned his "four prior convictions for DUI."
For reasons that we will explain, we will affirm the judgment.
II. BACKGROUND
A. Charges
Defendant was charged with DUI (Veh. Code, § 23152, subd. (a); count 1), driving with a blood alcohol level of 0.08 percent or more (id., subd. (b); count 2), and driving while his license was suspended for a DUI conviction (Veh. Code, § 14601.2, subd. (a); count 3). As to counts 1 and 2, the information alleged that defendant had two prior DUI convictions (Veh. Code, § 23550.5), that defendant had served three prior prison terms (Pen. Code, § 667.5, subd. (b)), and that defendant's blood alcohol level was 0.15 percent or greater (Veh. Code, § 23578.)
B. Prosecution Evidence
At about 5:00 p.m. on March 29, 2015, Thomas Rettenwender was at home in Seaside. He saw "a lot of smoke" and heard the sound of screeching tires, both coming from down the street. The sound started and stopped two or three times, but overall it lasted for three to five minutes. Rettenwender called 911.
Lennon Dawson, another resident of the neighborhood, also saw "[a] big cloud of smoke" and heard the sound of screeching tires. He walked over to "investigate" and saw a vehicle parked in a parking lot. The tires of the vehicle were spinning and screeching.
Defendant was sitting in the driver's seat; no one else was in the vehicle. Dawson shouted at defendant, and at about the same time, the vehicle's tires "popped." Defendant then stepped out of the vehicle.
Dawson was concerned and called 911. Defendant approached and claimed to have been "showing off." As Dawson started to walk away, defendant started driving the vehicle. However, the vehicle could not be driven very far, and defendant parked it. Officers soon arrived, and Dawson identified defendant.
Former Seaside Police Officer Eric Woodlief responded to the scene, where he saw a vehicle with tired that were "shredded." He contacted Dawson and then defendant, who was about 10 to 15 feet away from the vehicle. Defendant provided his address, which was nearby.
Defendant claimed the vehicle belonged to his cousin, who had left, and that he did not know what had happened to it. Defendant had the keys to the vehicle and claimed to have been working on the water pump.
Officer Woodlief could smell alcohol coming from defendant's body, and he noticed that defendant had an unsteady gait, slurred speech, and bloodshot, red, watery eyes. Defendant admitted he was drunk. Defendant agreed to perform field sobriety tests, but said "he was going to fail them." During the field sobriety tests, defendant almost lost his balance multiple times and he placed his finger on his nose despite not being instructed to do so. He estimated 30 seconds had passed after about 50 seconds. Defendant was unable to balance on one leg for more than about one second.
Defendant said the officer should arrest him for being drunk in public and claimed he had not been driving. He submitted to chemical breath tests at 5:43 p.m. and 5:46 p.m. The results were 0.18 and 0.16 percent.
C. Defense Witnesses
Defendant's wife testified that she owned the vehicle and that it had a broken water pump on March 29, 2015. Defendant repaired the vehicle in the parking lot of his apartment complex and "got it working." Defendant's wife was excited, because the vehicle had not been working for a few years, so she got into the vehicle and "did the burnout." After the tires popped, she moved the vehicle and parked it on the side of the road. She immediately left and went home because she was scared someone would call the police. She had the keys with her when she left.
Defendant's wife acknowledged that defendant had been drinking that day and that he seemed to be drunk. However, she asserted, defendant did not drive the vehicle at any point.
Defendant's wife admitted she had committed a petty theft in 2011 and that about a year before that, she had given a false name to a police officer. Defendant's wife denied that she was testifying in order to "take the blame" for something defendant had done. She acknowledged she and defendant had a child together and that she did not want defendant to get convicted or go to jail.
Defendant testified that he was "doing a water pump" on his wife's car on March 29, 2015. He was also drinking; he had consumed both beer and liquor. After he finished working on the car, his wife "hopped in and did [a burnout]" for a few minutes, until the tires popped. His wife then drove the car down the street, parked it, and left. Defendant stayed and talked to some neighbors.
Defendant denied telling the police that his cousin was driving. He also denied having the keys to the vehicle at the time the police contacted him. He did not tell the police his wife had been driving because "[t]hey didn't ask," and because he did not want his wife to get into trouble.
D. Prior Convictions
In his trial brief, defendant indicated he "oppose[d] use of evidence from his prior conviction[s] on Evidence Code section 352," and he requested that trial of the prior conviction allegations be bifurcated.
The prosecution moved in limine to permit impeachment of defendant with two prior convictions: a 2003 conviction of Vehicle Code section 10851, subdivision (a) [unlawfully driving or taking a vehicle] and a 2005 conviction of Penal Code section 245, subdivision (a)(1) [felony assault]. The prosecution also sought to impeach defendant with two prior felony DUI's: a 2006 conviction of Vehicle Code section 23152, subdivision (b), as to which three prior DUI convictions were found true; and a 2009 conviction of Vehicle Code section 23152, subdivision (b), as to which four prior DUI convictions were found true. The prosecution noted, "A felony DUI with three or more prior DUI convictions is a crime of moral turpitude," citing People v. Martinez (1998) 62 Cal.App.4th 1454 and People v. Forster (1994) 29 Cal.App.4th 1746 (Forster).
During trial, the trial court addressed the admissibility of defendant's prior convictions, indicating it had "weighed, pursuant to [Evidence Code section] 352, the prejudice to the defendant, [against] the probative value." The court ruled that the prosecution could impeach defendant "only with the 2009 felony DUI conviction," and not with any of the "facts underlying" that conviction.
On direct examination, defendant admitted he had been convicted of "felony DUI" in 2009. He had pleaded guilty in that case rather than go to trial. He chose to go to trial in the current case because he was "innocent."
On cross-examination, the prosecutor referenced "the prior DUI" and asked defendant, "You were convicted of a prior felony DUI with four prior convictions for DUI back [o]n January 20th, 2009; isn't that correct?"
Before defendant could answer, defendant's trial counsel asked to approach the bench. After an unreported discussion, the prosecutor asked, "So, [defendant], back on January 20, 2009, you had a prior conviction for a felony DUI, right?" Defendant replied, "Yes, ma'am."
The parties and the trial court later discussed the prosecutor's question. The trial court asked if the defense wanted a jury admonishment "not to consider the question for any reason" but noted that the jury had already been instructed that "the attorneys' questions are not evidence, nothing that the attorneys say is evidence." The trial court observed that such an admonition might "draw attention" to the prosecutor's question and that the defense had "a strategic decision" to make.
At the beginning of the case, the jury was instructed that the attorneys' "questions are not evidence." At the end of the case, the jury was instructed, "Nothing that the attorneys say is evidence" and that "their questions are not evidence."
Defendant's trial counsel noted that he would "[n]ormally" want a jury admonition "at the time" of the objectionable comment. However, he believed that "at this point it would be too prejudicial to bring it back up." He commented, "I think that was a bell that can't be unrung. It started a fire storm, and there's no way around it." He argued it was likely that the jury would focus on the prosecutor's mention of defendant's multiple prior convictions, which would be "very prejudicial," and he asked the trial court to order a mistrial.
The prosecutor argued that the very reason defendant could be impeached with his 2009 DUI conviction was that it had been elevated to a felony due to the prior DUI convictions. He explained, "[T]he fact that it is a recidivist-type crime is what makes it moral turpitude because it's indicative of the I-don't-care attitude concerning ultimate consequences of activities and from which one can infer the depravity of private and social duties." The prosecutor noted that defendant's certified rap sheet showed that the conviction was for Vehicle Code section 23152, subdivision (b) "with priors per 23550 Vehicle Code." The prosecutor argued that the trial court should not grant a mistrial.
Defendant's trial counsel responding by pointing out that the trial court, in allowing defendant to be impeached with one of his prior DUI convictions, had explicitly precluded introduction of the other prior DUI convictions.
The trial court noted that defendant's 2009 DUI conviction was for a crime of moral turpitude. The trial court had decided that the other prior convictions were "very remote" and likely to mislead the jury into believing that defendant had not suffered a felony conviction in a long time. The trial court had considered the fact that "the DUI is the same charge the defendant [has] pending at this time" and the fact that the jury might "misuse" the prior conviction "for propensity evidence," but the court had decided that jury instructions could address that.
The trial court further noted that it had drafted a "very strong and forceful" limiting instruction regarding the prior DUI conviction. The trial court had also modified CALCRIM No. 316 to emphasize that the prior DUI conviction could only be used "for determining credibility."
The instruction—a modified version of CALCRIM No. 303—provided: "During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other. [¶] The defendant was impeached with having been convicted of a felony driving-under-the-influence charge in 2009. Do not consider this evidence for any purpose other than for determining the defendant's credibility. [¶] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime. Do not use this evidence as evidence that the defendant has a propensity to drive under the influence or is more likely to be guilty of driving under the influence because he suffered a prior driving-under-the-influence conviction. [¶] Again, this evidence can only be used to assess and evaluate the defendant's credibility."
As modified, CALCRIM No. 316 provided: "If you find a witness has been convicted of a felony, you may consider that fact only in evaluating the credibility of the witness's testimony. The fact of a conviction does not necessarily destroy or impair a witness's credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable. [¶] The above paragraph applies to the evidence that the defendant was previously convicted of a felony."
After confirming that defendant had not answered the prosecutor's question about his prior convictions, the trial court denied the motion for a mistrial.
E. Verdicts , Findings , Admissions , and Sentencing
The jury convicted defendant of counts 1 and 2 (Veh. Code, § 23152, subds. (a) & (b)). As to both counts, the jury found true allegations that defendant's blood alcohol level was 0.15 percent or greater (Veh. Code, § 23578). After defendant waived jury trial as to count 3 (Veh. Code, § 14601.2, subd. (a)), the trial court found defendant guilty of that offense. Defendant admitted the allegations that he had two prior DUI convictions (Veh. Code, § 23550.5) and the allegations that he had served three prior prison terms (Pen. Code, § 667.5, subd. (b)).
At the sentencing hearing, the trial court imposed a five-year prison term comprised of the two-year midterm for count 1 and consecutive one-year terms for each of the three prior prison term allegations. As to count 2, the court imposed the two-year midterm and consecutive one-year terms for each of the three prior prison term allegations but stayed those terms pursuant to Penal Code section 654. As to count 3, the court imposed 180 days concurrent to count 1.
III. DISCUSSION
A. Admission of 2009 Prior DUI Conviction
Defendant contends the trial court abused its discretion under Evidence Code section 352 by allowing the prosecution to impeach him with his 2009 DUI conviction.
"The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) --------
"A witness may be impeached with any prior conduct involving moral turpitude whether or not it resulted in a felony conviction, subject to the trial court's exercise of discretion under Evidence Code section 352. [Citations.]" (People v. Clark (2011) 52 Cal.4th 856, 931, fn. omitted (Clark).) "When determining whether to admit a prior conviction for impeachment purposes, the court should consider, among other factors, whether it reflects on the witness's honesty or veracity, whether it is near or remote in time, whether it is for the same or similar conduct as the charged offense, and what effect its admission would have on the defendant's decision to testify. [Citations.]" (Ibid.)
For purposes of Evidence Code section 352, " 'prejudice' does not mean damage to a party's case that flows from relevant, probative evidence. Rather, it means the tendency of evidence to evoke an emotional bias against a party because of extraneous factors unrelated to the issues. [Citation.] Thus, evidence is subject to exclusion under Evidence Code section 352 on the basis of prejudice only ' "when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose." [Citation.]' [Citation.]" (People v. Cortez (2016) 63 Cal.4th 101, 128-129.)
"Because the court's discretion to admit or exclude impeachment evidence 'is as broad as necessary to deal with the great variety of factual situations in which the issue arises' [citation], a reviewing court ordinarily will uphold the trial court's exercise of discretion. [Citations.]" (Clark, supra, 52 Cal.4th at p. 932.)
Defendant argues that here "there was [a] significant danger that the jury would misuse the evidence of the prior felony DUI as propensity evidence" because the 2009 DUI conviction "was for the same or substantially similar conduct as the current offense." He contends the trial court should have allowed the prosecution to impeach him with his non-DUI prior convictions: the 2003 conviction of Vehicle Code section 10851 and/or the 2005 conviction of Penal Code section 245, subdivision (a)(1).
The California Supreme Court has observed that when a prior conviction is " 'for the same or substantially similar conduct for which the accused is on trial,' " and there are other prior convictions that can be used for impeachment, " ' strong reasons arise for excluding those [convictions] which are for the same crime because of the inevitable pressure on lay jurors to believe "if he did it before he probably did so this time." ' " (People v. Beagle (1972) 6 Cal.3d 441, 453 (Beagle), abrogated on other grounds by People v. Diaz (2015) 60 Cal.4th 1176, 1190.) Generally, " 'those convictions which are for the same crime should be admitted sparingly. . . .' " (Beagle, supra, at p. 453.)
The California Supreme Court has also explained that "[a]lthough the similarity between the prior convictions and the charged offenses is a factor for the court to consider when balancing probative value against prejudice, it is not dispositive. [Citations.]" (Clark, supra, 52 Cal.4th at p. 932.) And where there are "no other prior felony convictions involving moral turpitude that could [be] admitted for impeachment purposes," it would clothe the defendant in a " ' " 'false aura of veracity' " ' " to exclude a similar prior conviction. (Ibid.)
Here, the trial court correctly determined that defendant's 2009 DUI conviction was one of moral turpitude. (See Forster, supra, 29 Cal.App.4th at p. 1756 [felony DUI with three or more prior DUI convictions within seven years of the current offense "is a crime involving moral turpitude"].) While defendant could have been impeached with his 2003 and 2005 non-DUI convictions, the trial court reasonably determined that those convictions were too remote to be relevant to defendant's credibility, such that defendant would be clothed in a " ' " 'false aura of veracity.' " ' " (Clark, supra, 52 Cal.4th at p. 932.) The trial court indicated it understood the risk of informing the jury that defendant had a prior conviction for "the same charge the defendant [has] pending at this time" but reasonably determined that the jury could be provided with limiting instructions to minimize that risk. (See People v. Waidla (2000) 22 Cal.4th 690, 725 (Waidla) [limiting instructions are presumed to be effective and to be "followed by the jury"]; People v. Fruits (2016) 247 Cal.App.4th 188, 207 [jury instructions "substantially reduced the risk of prejudice" from evidence of defendant's prior threats to victims].)
Defendant argues that it would have been particularly difficult for the jury not to use his 2009 DUI conviction as propensity evidence because of the prosecutor's reference to the conviction being associated with "four prior convictions for DUI." However, the prosecutor's comment had not been made at the time of the trial court's ruling, and thus it is not relevant to our review of the trial court's ruling. (See People v. Welch (1999) 20 Cal.4th 701, 739 [appellate court reviews "the correctness of the trial court's ruling at the time it was made . . . and not by reference to evidence produced at a later date"].) To the extent defendant is arguing that the trial court should have ordered the 2009 DUI conviction to be "sanitize[d]" to eliminate any mention of the "four prior convictions for DUI," defendant's failure to request such an order results in forfeiture of the argument on appeal. (See People v. Green (1995) 34 Cal.App.4th 165, 182, fn. 9.) Moreover, had defendant made a request for sanitization of the 2009 prior conviction, the trial court would not necessarily have abused its discretion by failing to require sanitization. The reason that defendant's 2009 DUI conviction qualified as a crime of moral turpitude was directly related to the fact that the conviction followed numerous prior DUI convictions. (See Forster, supra, 29 Cal.App.4th at p. 1757 [a person who has been repeatedly convicted of DUI demonstrates a " 'conscious indifference' " to the risks of DUI, "from which one can certainly infer" moral turpitude].)
Ultimately, the trial court did effectively preclude the prosecutor from impeaching defendant with evidence that his 2009 DUI conviction involved four prior convictions. Although the prosecutor briefly referenced "four prior convictions for DUI," defendant's trial counsel immediately requested a bench conference, at which the trial court apparently told the prosecutor to rephrase the question without referencing the prior convictions. As a result, defendant never admitted that his 2009 DUI conviction involved additional prior convictions. Further, the trial court instructed the jury that the attorneys' "questions are not evidence," that "[n]othing that the attorneys say is evidence," and that "their questions are not evidence." We presume the jury followed those instructions as well as the limiting instructions concerning defendant's 2009 DUI conviction. (See Waidla, supra, 22 Cal.4th at p. 725.)
In sum, we conclude the trial court did not abuse its discretion by declining to exclude defendant's 2009 DUI conviction pursuant to Evidence Code section 352.
B. Mistrial Motion
Defendant contends the trial court should have granted a mistrial when the prosecution mentioned that defendant's 2009 DUI conviction involved "four prior convictions for DUI" because no curative instruction could "effectively remedy the unfair impression made on the jury."
" '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's ruling denying a mistrial.' [Citations.]" (Clark, supra, 52 Cal.4th at p. 990.)
The circumstances of this case are similar to those in People v. Avila (2006) 38 Cal.4th 491 (Avila), where, during the penalty phase of a murder trial, the prosecutor asked an expert whether the defendant would be likely to "kill again." (Id. at p. 610.) After a defense objection, the prosecutor rephrased the question as a hypothetical, but the defense objected again and moved for a mistrial. The trial court denied the mistrial motion, and the California Supreme Court found no prejudicial prosecutorial misconduct. The witness had not answered either the original question or the hypothetical question, and the jury had been instructed "not to guess what the answer might have been if an objection was sustained to a question, speculate as to the reason for the objection, or assume to be true any insinuation suggested by a question." (Ibid.) The Avila court characterized as "speculation" the defendant's argument that the jury could not have followed those instructions. (Ibid.)
In this case, defendant likewise never answered when the prosecutor asked whether his 2009 conviction involved "four prior convictions for DUI," and the prosecutor rephrased his question to ask only whether defendant had "a prior conviction for a felony DUI." The jury was instructed that the attorneys' "questions are not evidence," that "[n]othing that the attorneys say is evidence," and that "their questions are not evidence." The jury was also instructed not to "assume that something is true just because one of the attorneys asked a question that suggested it was true." (CALCRIM No. 222.) And, the jury was instructed that if the trial court sustained an objection to a question, the jury was not to "guess what the answer might have been" or the reasons for the trial court's ruling. (Ibid.) Here, as in Avila, nothing in the record demonstrates that the jury could not or did not follow the court's instructions, and the trial court did not abuse its discretion by finding that defendant's chances of receiving a fair trial had not been " 'irreparably damaged' " by the prosecutor's question. (Clark, supra, 52 Cal.4th at p. 990.)
In sum, the trial court did not abuse its discretion by denying defendant's motion for a mistrial.
C. Ineffective Assistance of Counsel
Defendant contends his trial counsel was ineffective for failing to move to strike the prosecutor's mention of his "four prior convictions for DUI" and failing to ask the trial court to "promptly admonish the jury."
To establish ineffectiveness, defendant must show his counsel's representation fell below an objective standard of reasonableness and a reasonable probability that, but for counsel's deficient performance, the result of the trial would have been different. (See Strickland v. Washington (1984) 466 U.S. 668, 686-687, 694 (Strickland).)
We do not agree that a reasonable trial attorney would have moved to strike and requested a jury admonition rather than doing what defendant's trial counsel did: interrupting the questioning by asking to approach the bench and requesting the trial court order the prosecutor not to ask defendant about the four prior DUI convictions. The interruption by defendant's trial counsel "had the effect of truncating the prosecutor's line of [questioning]" and resulted in defendant not being required to answer the original question. (See People v. Padilla (1995) 11 Cal.4th 891, 957 (Padilla), overruled on other grounds by People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) "The fact that counsel did not follow up by asking the trial court to admonish the jury to disregard the prosecutor's [question] . . . may well have been a tactical decision taken to avoid focusing the jury's attention on" the prosecutor's brief reference to the four prior DUI convictions. (Padilla, supra, at p. 957.)
Because the record indicates that defendant's trial counsel made a reasonable tactical decision to ask to approach the bench rather than highlight the prosecutor's question by objecting and requesting an admonition, defendant fails to establish ineffective assistance of counsel. (See Strickland, supra, 466 U.S. at pp. 686-687.)
IV. DISPOSITION
The judgment is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.