May 6, 2008

Recent California DUI Case Law Update

People v. Bryant (Unpub., DCA2 – 5-6-08) (Note: Another Wende Brief case)  Def. Bryant ran from officers during a traffic stop and was later apprehended in possession of methamphetamine. Bryant was charged by criminal complaint with transporting methamphetamine (H&S Code §11379(a)) (count 1), possession for sale of methamphetamine (H& S Code §11378) (count 2), DUI of alcohol (VC §23152(a)) (count 3), driving with a blood alcohol level of .08% or more (VC §23152(b)) (count 4), and resisting, obstructing or delaying a peace officer (PC §148(a)(1)) (count 5).  At the conclusion of the PX, the magistrate granted Bryant’s motion to dismiss count 1, transporting methamphetamine, but ordered Bryant to be held to answer in superior court on the remaining counts.  Bryant was charged by information on April 4, 2007 with possession for sale of methamphetamine (count 1), and the three misdemeanor offenses of DUI, driving with a blood alcohol level in excess of .08%, and resisting, obstructing and delaying a peace officer.  The information specially alleged as to count 1 that Bryant had suffered a prior serious or violent felony conviction within the meaning of the “Three Strikes” law (PC §667(b)-(i); 1170.12(a)-(d)), had served a separate prison term for a felony (PC §667.5(b)) and had suffered 1 prior drug-related conviction (H&S Code §11370.2(c)).  Represented by retained counsel, Bryant pleaded not guilty to all counts and denied the special allegations.  On May 24, 2007, the trial court conducted in camera proceedings pursuant to Bryant’s motion for production of documents under Pitchess v. Superior Court (1974) 11 C3d 531 and Evid. Code §1043 and found no discoverable material.  The same date, the People filed an amended information to add count 5, charging Bryant with transporting meth.   As to counts 1 and 5, the amended information specially alleged the sentencing enhancements originally alleged in the information as to count 1.  Bryant pleaded not guilty to all counts and denied the special allegations as to counts 1 and 5 of the amended information.  On May 29, 2007, the trial court heard and denied Bryant’s motion to dismiss count 5 of the amended information pursuant to PC §995, and jury trial commenced.  According to the evidence at trial, on January 27, 2007, CHP Officers Marks and her partner were patrolling a freeway close to midnight.  Marks saw a car in the adjacent lane swerve onto the shoulder, noticed the car’s registration tags had expired, and initiated a traffic stop off the freeway.  Marks contacted Bryant, the driver, and detected the odor of alcohol on Bryant’s breath.  After asking some investigatory questions, Marks had Bryant perform various field sobriety tests.  Marks also administered a PAS test. While Marks was waiting for the test results to register, Bryant fled on foot.  Marks gave chase only briefly because Bryant had not been frisked for weapons.  About an hour later, Glendora Police Officer Staab found Bryant on the street not far from where his car had been stopped.  Bryant was searched by police and ordered to sit on the curb.  When Bryant sat down and extended his legs, a plastic object flew out from under the right cuff of his sweatpants.  Staab determined it was a plastic baggie, inside of which were seven small baggies containing a combined weight of 1.17 grams of methamphetamine.  Inside Bryant’s jacket, police recovered $5,200 in $100 bills.  Following his arrest, Bryant submitted to a blood test that showed his alcohol level to be .10%.  No methamphetamine was detected in his blood.  Bryant’s motion to dismiss under PC §1118.1 was heard and denied.  The jury acquitted Bryant of count 1, possession for sale of methamphetamine, but convicted him of the lesser included offense of possession of methamphetamine (H&S Code §11377) and of the remaining counts 2 through 5.  At the sentencing hearing, Bryant waived court trial on the prior conviction allegations and admitted his prior convictions were true. The court heard and denied Bryant’s motion to dismiss his prior strike (burglary) conviction for sentencing purposes under P. v. Superior Court (Romero) (1996) 13 C4th 497.  Bryant was sentenced to an aggregated term of 10 years in state prison, consisting of 6 years (the 3-year middle term doubled under the Three Strikes law) for transporting methamphetamine (count 5), three years for the prior drug-related conviction enhancement (H&S Code §11370.2(c)), and 1 year for the prior prison term enhancement (PC §667.5(b)).  On the remaining counts 1 through 4, the trial court stayed imposition of sentence under PC §654.  Bryant received presentence custody credit of 248 days (166 actual days and 82 days of conduct credit).  The court ordered Bryant to pay a $20 security assessment, a $50 lab fee plus penalty assessment, and a $200 restitution fine.  A parole revocation fine was imposed and suspended pursuant to PC §1202.45.  Bryant filed a timely appeal and we appointed counsel to represent him on appeal.  After an examination of the record, counsel filed an “Opening Brief” in which no issues were raised.  On February 5, 2008, we advised Bryant he had 30 days within which to personally submit any contentions or issues he wished us to consider. On February 21, 2008, we received a hand printed response in which Bryant made the following claims, (1) he was “never formally charged with” transporting methamphetamine in violation of H&S Code §11379(a); (2) the evidence was insufficient to support his conviction of that offense; (3) the trial court erred by instructing the jury on the elements of transporting meth; (4) the trial court erred by sentencing him under the Three Strikes and by imposing the 3-year prior drug-related conviction enhancement; and (5) defense counsel was constitutionally ineffective for allowing Officer Marks to remain in court during the PX as the People’s designated investigating officer.  We have examined the entire record and are satisfied Bryant’s attorney has fully complied with the responsibilities of counsel and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; P. v. Kelly (2006) 40 C4th 106, 112-113; P. v. Wende (1979) 25 C3d 436, 441.) Bryant’s claims are not supported by the record on appeal and/or the applicable law.  The judgment was affirmed.

People v. Moreno (Unpub., DCA1 – 5-5-08) Following a jury trial, def. Moreno was sentenced to state prison for 3 years for felony drunk driving.  On this timely appeal, he presents a single contention, namely, that the trial court abused its discretion when it denied his motion for a mistrial made on the first day of the trial when it was discovered that the prosecution had not made the full measure of required disclosure prior to the start of the trial.  The COA concluded that the trial court had a sound basis for concluding that the delayed production of the information did not result in prejudice to the defense.  The COA further concluded that the trial court did not abuse its discretion in refusing a mistrial, and thus, affirmed the judgment.  On December 21, 2006, the DA of Lake County filed an information with 3 counts: (1) def. drove a vehicle “while under the influence of an alcoholic beverage,” a felony (VC §23152(a)); (2) def. drove a vehicle “while having 0.08 percent, by weight, of alcohol in his blood,” also a felony (§23152(b)); and (3) def. drove a vehicle “when his . . . driving privilege was suspended and revoked for DUI of an alcoholic beverage,” a misdemeanor (§14601.2(a)).  It was further alleged in the information that def. had 5 prior drunk driving convictions, and that he had “refused a peace officer’s request to submit to, and willfully failed to complete a chemical test” (§23577).

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“MR. RHOADES: Mr. McKillop just showed me a copy of what I’m guessing is the original of the same page which includes a heading of, ‘Physical evidence,’ and a heading of, ‘Statements.’ That has not been provided to me.  I’ve never seen that before. . . . [¶] . . . [¶] . . . I’m not blaming Mr. McKillop.  I want to be very clear on that. It’s simply an oversight somewhere the line or a mistake, and I need a moment to correct it. 

“MR. MCKILLOP: I can make a copy immediately. 

“THE COURT: It’s ordered that Mr. Rhoades be immediately provided with a copy of the discovery.  Maybe you want to go through and exchange reports to make sure that you gave him the correct report in other instances.” 

After a recess in which the oversight was corrected, defense counsel told the court out of the presence of the jury that “discovery has been provided . . . it’s now complete.”  However, in the copy of Officer Tanguay’s report initially provided to the defense, “I could find no reference in the report I had . . . as to statements regarding a vehicle that may have been involved other than Mr. Moreno’s in the accident.  And I made that representation to the jury in the opening statement as well.”  Going on, defense counsel stated “I’m uncertain as to what curative statement or admonition could be given to the jury that would correct that without having it appear as though information was either being flatly denied by the defense or somehow obfuscated by the defense when in fact it hadn’t been provided.”  Defense counsel twice reiterated that “I’m not blaming Mr. McKillop for this,” but then jumped to “suggesting a declaration of mistrial because of this error.” The court then heard the following argument: 

“MR. MCKILLOP: I don’t feel that . . . what was missing is that prejudicial. I mean, it just alludes to the defendant’s admissions that he was driving that are strewn throughout the report.  I don’t think that the jury’s been tainted in any way . . .  Mr. Rhoades was well aware that the defendant had admitted in the report that the—that he was driving, and so I—I don’t think that there’s anything so off in here or would throw the defense so out of their strategy that it would . . . require a mistrial. 

“MR. RHOADES: The position of the defense, Judge, is that the testimony of Officer Tanguay related to another vehicle, yet the information I had been provided did not contain that information in any way.  It was certainly the defense tactic to suggest that if such a large error was made, that it was not contained in the report.  Now I’m being told that this is in the report, and it’s just been provided.   

“THE COURT: The motion for a mistrial stands submitted.  I’ll deny that motion.  I don’t think that that is an error to such that would require  a mistrial. [¶] The Court would, however, be willing to instruct the jury . . . about the untimely disclosure of evidence.  However, unintentional it may have been, the People did not make full disclosure.”

People v Bejarano (Unpub., DCA5 – 5-1-08)  Def. Bejarano, pled no contest to driving with a blood alcohol of .08% or greater causing injury (count 2/VC  §23153(b)) and admitted 2 GBI enhancements (PC §12022.7(a)), 4 multiple victim enhancements (VC §23558), and allegations that he had a prior conviction w/in the meaning of the three strikes law (§667(b)-(i)).  On January 31, 2007, the court sentenced Bejarano to an aggregate 13-year term, the midterm of 2 years on the substantive offense, doubled to 4 years because of Bejarano’s strike conviction, two 3-year GBI enhancements, and three 1-year multiple victim enhancements.  On appeal, Bejarano contended the court violated the terms of his plea bargain.  The COA disagreed and affirmed.  With a blood alcohol content of .25%, Bejarano ran a stop sign and struck a pickup driven by Samuel Alvarez on June 26, 2006. Heather Lucas was ejected from Alvarez’s pickup and Alvarez and three other passengers in his truck were also injured.  On November 30, 2006, Bejarano entered his plea.  In announcing the terms of the agreement, the following colloquy occurred:

“[THE PROSECUTOR]: If I could state the agreement for the record. The defendant is pleading to count number two, midterm lid. That would be doubled for the strike prior, which he will admit, which is alleged in the First Amended Complaint. Defendant would be admitting to two enhancements pursuant to [12022.7] of the Penal Code …, four enhancements pursuant to 23558 of the Vehicle Code.… Only three of those could be enforced or applied statutorily. That would be a total lid of 13 years. All remaining counts and enhancements would be dismissed, reserving the right to comments and restitution.

“THE COURT: Thank you.

“[THE PROSECUTOR]: Furthermore [y]our Honor, the enhancements for excessive blood alcohol would be dismissed, reserving the right to comment. And the parties would simply be stipulating that the blood alcohol was greater than .08.

“[DEFENSE COUNSEL]: That’s correct.”

Bejarano contends that because the change of plea form advised him that he could be ordered to pay a restitution fine from $100 to $1,000, this became part of his plea agreement. He further contends that because the court imposed a $2,600 restitution fine, which exceeded the maximum $1,000 fine provided for by his plea agreement, his restitution fine and parole revocation fine, which must be imposed in the same amount (§1202.45), must be reduced to $1,000 each.  Respondent agrees that Bejarano’s plea provided for a maximum restitution fine of $1,000 thus requiring that his restitution and parole revocation fines each be reduced to $1,000.

The parties are wrong.

“‘The Supreme Court has ... recognized that due process applies not only to the procedure of accepting the plea [citation], but that the requirements of due process attach also to the implementation of the bargain itself.  It necessarily follows that violation of the plea bargain by an officer of the state raises a constitutional right to some remedy.’ [Citations.]

“In [P. v.] Walker [1990] 54 C3d 1013, … the trial court imposed a restitution fine on a defendant who had pled guilty in accordance with a plea bargain that made no mention of restitution.  The probation report recommended a $7,000 restitution fine, but ‘the record disclose[d] no other mention of the possibility of such a fine prior to sentencing’ [citation].  Observing that the ‘consequences to the defendant [of a restitution fine] are severe enough that it qualifies as punishment for this purpose’ [citation], we held that, ‘[a]bsent compliance with the section 1192.5 procedure [informing defendant of the right to withdraw a disapproved plea], the defendant’s constitutional right to the benefit of his bargain is not waived by a mere failure to object at sentencing’ [citation] when a restitution fine not bargained for is imposed.” (P. v. Crandell (2007) 40 C4th 1301, 1307 (Crandell).)  Here, in announcing the terms of the plea bargain, the prosecutor did not mention a restitution fine and defense agreed that the prosecutor had accurately stated the agreement.  Further, although the court did not advise Bejarano on the record that he would be subject to a restitution fine, the change of plea form did, stating he would be subject to a restitution fine from $100 to $1,000.  Moreover, as in Crandell, the imposition of a restitution fine was presaged by the probation report which recommended a restitution fine of $3,000, and neither Bejarano nor his defense counsel objected when the court imposed a fine of $2,600.  It is clear from these circumstances that as in Crandell, the amount of the restitution fine was not part of the bargain and was left to the trial court to decide.  The instant case, however, involves a misadvisement of the consequences of Bejarano’s plea because every defendant who is convicted of a felony is subject to a fine of $200 to $10,000 (see §1202.4(b)(1)), not $100 to $1,000 as was written in his change of plea form.  When a defendant’s complaint involves the failure to advise of a direct consequence of a plea, and not that the plea bargain was breached, this “error is waived if not raised at or before sentencing.” (P. v. Walker, supra, 54 C3d at p. 1023.)  Since Bejarano did not object at or prior to sentencing, he waived this issue on appeal.

Avila v DMV (Unpub., DCA4 – 5-1-08)  Roberto Avila appeals a judgment after the superior court denied his petition for a writ of administrative mandamus seeking relief from a driver's license suspension order issued by the CA DMV, following his arrest for DUI of alcohol. Avila contends: (1) the administrative record contains insufficient evidence to support the court's finding that police lawfully stopped his car and (2) his due process rights were violated. The COA concluded the record contained substantial evidence to support the court's determination and affirmed the judgment. On November 30, 2005, Oceanside Police Officer Sterling had to take evasive action to avoid a rear-end collision when a car driven by Avila approached his patrol car at an accelerated speed.  After making a U-turn, Officer Sterling followed Avila a short distance, saw him make a right turn without using a turn signal, and stopped him.  While approaching Avila's vehicle, Officer Sterling witnessed him place a breath mint into his mouth.  Despite the mint, Officer Sterling smelled alcohol on Avila's breath.  He also observed that Avila had watery and red eyes, slurred and repetitive speech, and difficulty finding his registration and insurance documents.  When Officer Sterling asked Avila if he had been drinking, Avila responded that he had not.  After observing Avila's objective symptoms of intoxication, Officer Sterling asked him to perform a series of sobriety tests.  Avila's performance on the tests indicated to Officer Sterling that he had "fair balance, poor coordination, and had some difficulty following instructions."  Based on Avila's performance on these tests, as well as 2 PAS tests that indicated Avila's BAC to be 0.195% and 0.194%, Officer Sterling arrested Avila for DUI.  After being taken to the police station, Avila refused to submit to a breath test, but agreed to have his blood taken.  A forensic alcohol supervisor analyzed Avila's blood sample and determined it contained a BAC of 0.20%.

Avila sought an administrative hearing to contest the suspension order.  At the hearing, the DMV hearing officer admitted Officer Sterling's sworn statement and unsworn report into evidence.  Avila objected to the admission of the forensic blood alcohol test report on foundational grounds, arguing that facial discrepancies made the report non-compliant with title 17 of the California Code of Regulations (Title 17). The DMV hearing officer overruled Avila's objection and admitted the document.  Avila testified at the hearing and offered exhibits describing his version of the events, but was not permitted to introduce a video allegedly supporting his testimony.  Avila also admitted to consuming sake and scotch earlier in the day and to being untruthful to Officer Sterling regarding his alcohol consumption.  The DMV hearing officer re-imposed Avila's four-month driver's license suspension.  She found that Officer Sterling had probable cause to stop Avila and reasonable cause to believe that Avila was driving a motor vehicle while under the influence of alcohol.  Additionally, she found that Avila was lawfully arrested and that the forensic blood-alcohol test determined his BAC to be 0.20%.  Regarding Avila's objection to the forensic blood-alcohol test report, the hearing officer found that the chain of custody was fully documented and no evidence suggested any unaccounted periods of custody.  Finally, the hearing officer found that Avila was not credible due to his admitted untruthfulness with Officer Sterling regarding his alcohol consumption.  At Avila's request, the DMV reopened his administrative hearing.  Officer Sterling testified that the reason for stopping Avila was accelerated speed in a residential area and failure to use a turn signal.  Avila again testified contrary to Officer Sterling's version of the events and used scaled maps, mathematical calculations (obtained on an undisclosed website), and dozens of photographs in an attempt to show that Officer Sterling's version of the facts was physically impossible.  Following the second hearing, the DMV hearing officer affirmed and amended her initial findings.  Among other things, the hearing officer made a specific finding that Avila violated the Vehicle Code by failing to use a signaling device in the presence of another vehicle -- Officer Sterling's patrol car. Regarding Avila's credibility, she added that more weight was given to Officer Sterling's "documentation of the events that transpired, than to the attempts of [Avila] to accurately assess his own actions or the actions of others while intoxicated, whereas the officer is presumed to be sober and . . . accurately report the events of the contact." As a result, the DMV re-imposed the four-month suspension against Avila's driving privilege.  Avila petitioned the superior court for a writ of administrative mandamus challenging the validity of the DMV's suspension order. Avila's arguments at the superior court differ little from those on appeal. In support of his petition, he submitted a declaration containing his mathematical calculations purportedly showing a physical impossibility in Officer Sterling's version of the events. Following oral argument, the superior court entered a judgment denying the petition.  Avila appealed.  In summary, Avila's accelerated speed and failure to signal provided Officer Sterling with a reasonable basis to conduct a traffic stop and Avila's performance on the sobriety and alcohol screening tests provided a lawful basis for his subsequent arrest.  Furthermore, the DMV hearing did not violate Avila's due process rights and substantial evidence supported the trial court's determination.

Hoek v DMV (Unpub., DCA2 – 4-29-08) (Note: This is DMV “Mandatory” taking action with a Sweet/Forrester analysis) Appellant Hoek was convicted in California of DUI of alcohol offense.  Hoek was subsequently convicted of a

DUI offense in Minnesota.  Because these 2 convictions occurred within 10 years of one another, respondent CA DMV suspended Hoek’s CA driving privilege pursuant to VC §13352(a)(3) for 2 years.  Hoek challenged the suspension by filing a petition for administrative mandamus, which the trial court denied.  The COA affirmed.  On October 8, 1997 Hoek was convicted in the Superior Court of LA County of violating §23152(b), driving with a blood-alcohol concentration of 0.08% or higher. The violation date was August 19, 1997.  Pursuant to the plea agreement, Hoek was ordered to enroll and complete an alcohol program, pay a fine and remain on probation for 36 months.  The standard plea waiver form that Hoek signed included a chart listing the minimum and maximum penalties for a second offense occurring within seven years.  (At the time of Hoek’s conviction, §§23540(a) and 13352(a)(3) required the DMV to suspend a person’s driving privilege for 2 years when convicted of a second violation of §23152 w/in 7 years of a separate violation of §23152.  Effective September 20, 2005, the time frame for a second violation was extended to 10 years. (§23540(c).)  Nine years later, on March 16, 2006, Hoek was convicted in the State of Minnesota of violating Minnesota statute 169A.20(5), driving “[w]hen the person’s alcohol concentration at the time, or as measured within two hours of the time, of driving, operating, or being in physical control of the motor vehicle is 0.08 or more.”  The violation date was December 28, 2005. On May 4, 2006 the DMV, having been advised by the State of Minnesota of Hoek’s Minnesota DUI conviction, served Hoek with an order of suspension, notifying her that her California driving privilege was suspended for a period of 2 years effective March 16, 2006.  The DMV notified Hoek that the suspension was pursuant to §13352(a)(3).  On July 3, 2006, the State of Minnesota Department of Public Safety notified Hoek that she was entitled to reinstatement of her Minnesota driving privilege upon the payment of a fine and the passing of a written test.  Hoek filed a petition for administrative mandamus challenging the DMV’s suspension of her driving privilege.  10 months later she filed a memorandum of points and authorities in support of her petition, which the DMV opposed.  Following a hearing, the trial court denied Hoek’s petition.  Judgment was entered against Hoek and she was ordered to pay the DMV’s costs of $320.  Section 13352 Mandates Suspension  §13352(a) provides that the DMV “shall immediately suspend or revoke the privilege of a person to operate a motor vehicle upon the receipt of an abstract of the record of a court showing that the person has been convicted of a DUI violation of §23152 . . . .” Under §23540(a), if a person suffers a second DUI conviction under §23152 within ten years of a separate DUI violation, that person’s driving privilege shall be suspended as set forth in §13352(a)(3), which specifies a suspension period of two years. Hoek argues that because her second DUI offense involved the violation of a Minnesota statute, as opposed to the violation of §23152, the DMV’s suspension of her CA driving privilege was improper.  The DMV counters that its suspension action was properly taken where, as here, the licensee violated a Minnesota statute that is found to be substantially the same as section 23152. To that end, the DMV points out that the State of California, through the DMV, is a party to the “Driver License Compact” (§§15000–15028), under which party states are required to report to a licensee’s home state convictions of a licensee in a party state.  The home state must treat the out-of-state conviction as having been committed in the home state, so long as the convictions are of a “substantially similar nature.” (§15023(c).)  The DMV also cites to §13363, which gives the DMV discretion to suspend licenses based on out-of-state convictions, provided that the law of the other state pertaining to the conviction is “substantially the same” as the law of this state. (§13363(a) & (b).)   §13352(d) states: “A conviction of an offense in a state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or Canada that, if committed in this state, would be a violation of §23152, is a conviction of §23152 for the purposes of this section, . . . .  The department shall suspend or revoke the privilege to operate a motor vehicle pursuant to this section upon receiving notice of that conviction.”  No Violation of Plea BargainHoek argues that the suspension of her California driving privilege was improper because it violated the terms of her plea bargain. She points out that the standard plea waiver form she signed specified the maximum penalties for a second DUI offense occurring w/in 7 years. Because her second DUI conviction in Minnesota occurred more than seven years after her California DUI conviction, she reasons that she should have been “home free.” But this argument was expressly rejected in P. v. Sweet (1989) 207 CA3d 78 (Sweet) and later in P. v. Forrester (2007) 156 CA4th 1021 (Forrester), which we find to be controlling.  In Sweet, at the time of the defendants’ prior DUI convictions, 5 years was the maximum period in which prior convictions could be used to enhance the punishment on a new DUI offense. The law was later amended to extend the time frame to 7 years.  The defendants reoffended more than 5 years but less than 7 years after their prior convictions, which were used to enhance the penalty on their current convictions.  (Sweet, supra, 207 CA3d at p. 81.) The defendant in Forrester found himself in the same predicament, except that the statute had been amended to extend the 7 years to 10 years. (Forrester, supra, 156 CA4th 1021.)  No Violation of Ex Post Facto Clause  Without citation to any authority, Hoek argues that she was subjected “to ex post facto punishment” because the law extending the time frame from 7 years to 10 years in which to use a prior DUI conviction to increase the penalty for a new DUI conviction became effective more than 7 years after her first conviction.  Even assuming Hoek has not waived this argument by her failure to cite applicable authority or present reasoned analysis, this argument was also expressly rejected in Sweet and Forrester.  Equal Protection Challenge  Hoek also appears to argue that because the State of Minnesota offered to reinstate her Minnesota driving privilege within months of her Minnesota conviction, the DMV’s 2-year suspension of her CA driving privilege violated her right to equal protection, as guaranteed under the Constitutions of the United States and of the State of California.  But Hoek’s argument in this regard is presented in a conclusory manner without reasoned analysis or citation to applicable authority.  We therefore deem the equal protection issue as having been waived. (See, e.g., Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366, fn. 2.) The finding of such waiver is particularly appropriate in light of the well established principle that courts not decide constitutional questions where other grounds are available and dispositive of the issue. (See Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230–231.)

Wang v. Valverde (2008) ___ CA4th ___; ___ CR3d ___. The facts in this case are not in dispute. The trial court provided the following useful summary: “Wang, the holder of a valid Class C (noncommercial) driver’s license, applied for a Class B (commercial) driver’s license. She was given a written examination to determine whether she was qualified for a Class B license, but she was not permitted to complete that examination because she was allegedly cheating in the taking of the examination by using crib notes.  Wang was never criminally prosecuted for using crib notes, under VC §14610.5, because the DMV determined that there was insufficient evidence to support criminal action.  The only administrative action taken against Wang by the [DMV] was to order the revocation of her Class C (noncommercial) driver’s license.”

After exhausting her administrative remedies, Wang filed a petition for writ of administrative mandate to compel the DMV to set aside the revocation of her class C license. The parties provided the trial court with briefing and evidence, including the administrative record of the DMV proceedings.  The trial court granted Wang’s petition. The court reasoned that “[t]he issue before the court is whether, as a matter of law, the DMV can revoke Wang’s Class C license because it caught her cheating in an examination for a Class B license.” The superior court concluded that “no such action is authorized by the Vehicle Code.” The DMV timely appealed and the COA affirmed the Superior Court’s set aside order.

People v. Duke (Unpub., DCA3 – 4-28-08) 22-year-old def. Duke pled no contest to driving with a blood-alcohol level of .08% or greater and causing injury (VC §23153(b)) and admitted the allegation that he personally inflicted GBI on Jennifer C. in the commission of that felony (PC §12022.7(a)).  The court denied probation and sentenced def. to 4 years and 4 months in prison: the lower term of 1 year and 4 months for the VC violation, and an additional 3 years for the GBI enhancement.  The court dismissed the remaining charges and special allegations at sentencing.  The sole issue on appeal is whether the court abused its discretion in denying def. probation.  The COA concluded that there was no abuse of discretion, and affirmed the judgment. On October 28, 2005, at approximately 10:45 p.m., CHP Officer Flahavan was dispatched to the scene of a MVA in the vicinity of Hwy. 193 and Penobscot Rd. in El Dorado County.  Flahavan’s investigation revealed that def.’s Toyota pickup truck crossed the center line and sideswiped the victims’ Ford Taurus which was approaching from the opposite direction.  The collision caused the Taurus to hit an embankment and roll over.  There were 5 occupants in the Taurus at the time of the collision.  4 of the 5 occupants sustained mild to moderate injuries. The fifth occupant, Jennifer C., suffered a broken neck and injuries to her skull, face and shoulder.  She is unable to close her left eye. Jennifer C. has undergone multiple surgeries since the accident. At sentencing, the court acknowledged that it had read the probation report, the report of def.’s correctional consultant, and def.’s mitigation statement -- all of which recommended probation.  In addition to argument by counsel, the court heard a statement by Jennifer C., which consisted of a poem, and a lengthy statement by her father, which described Jennifer’s injuries, treatment and prognosis.  Jennifer sustained a broken neck and lacerated spleen; her scalp was ripped away from her skull and one of her eyelids was torn off.  At the time of sentencing, Jennifer had undergone six surgeries on her eye and two surgeries on her neck.  Due to the seriousness of her injuries, her rehabilitation included having to learn to walk and talk again.  During the sentencing hearing, def. clarified that in addition to the prior conviction for trespassing included in the probation report, for which he received probation, he was cited in February 2005 for possessing more than an ounce of marijuana while driving a motor vehicle. (VC §23222(b).) Def. explained that one of his passengers had the marijuana.  Before denying probation, the court indicated that it had considered the factors set forth in California Rules of Court, rules 4.414 and 4.413, and found rule 4.414(a)(4) to be “the controlling factor here, that you inflicted the severest kind of physical and emotional injury on Jennifer [C.], and none of the factors that favor probation here outweigh that one factor on probation, in my view.”  The court also stated: “I believe that you are sincerely remorseful for all that happened here, but that’s remorse too little, too late when it changes another person’s life, Mr. Duke.  You can’t compensate with remorse for the horrible physical tragedy that you inflict on another person.  I’m sure you realize that.”  Based on the mitigating factors, the court selected the low term of 16 months for def.’s violation of VC §23153(b), then added the 3-year enhancement.

People v. Perez (Unpub., DCA2 – 4-28-08) Def. Perez appeals from a judgment entered after a jury convicted him of DUI and found he had refused to submit to a chemical test.  He contends his conviction is not supported by substantial evidence, and the trial court imposed the upper term as punishment for electing to stand trial. The COA affirmed. Perez has suffered a number of DUI convictions over the years, most recently 2 felony convictions in case Nos. BA316757 and TA090632 both in February 2007, for which he was sentenced to concurrent 16-month state prison terms.  In the present case, Perez was arrested in November 2006 and originally charged by information in count 1 with felony DUI (VC §23152(a)) with 2 prior DUI convictions (VC §§23550, 23550.5). The information specially alleged Perez had refused to take a chemical test (VC §§23577, 23578, 23538(b)(2)), and he had served a separate prisonterm for a felony (PC §667.5(b)).  Perez was also charged in count 2 with driving on a license that had been suspended for a prior DUI conviction (VC §14601.2(a)).  He pleaded not guilty to both counts and denied the enhancement allegations.  After failed plea negotiations, the prosecutor filed an amended information toallege a third prior conviction within the meaning of VC §§23550 and 23550.5. Perez pled not guilty and denied the special allegations in the amended information, and jury trial began in June 2007. The jury convicted Perez of count 1, DUI, and found he had refused to submit to a chemical test.  In a bifurcated proceeding, he admitted having 3 prior convictions for DUI as alleged in the amended information and having previously served a separate prison term for a felony.  Prior to trial Perez had pleaded no contest to count 2, driving when his license had been suspended for a prior DUI conviction.  For purposes of sentencing, Perez specifically waived his right to a jury trial as to any aggravating circumstances.  At sentencing, the trial court indicated it had read and considered the probation and sentencing report and invited argument from counsel.  Defense counsel urged the trial court to impose the two-year middle term because, while this was Perez’s fourth DUI conviction, the facts of this offense were not egregious.  The prosecutor argued for the imposition of the upper term, in light of Perez’s numerous DUI convictions, as well as the facts of the present case. The prosecutor then reminded the court “before we continued with our closing of the case, the Court did give an indicated of 3 years if the defendant pled, which again he rejected. And the Court had also indicated that you would sentence him to 4 years if he was convicted.” The court interjected, “That I would likely sentence him to four years;” and the prosecutor agreed. Following counsels’ argument, the trial court found as an aggravating circumstance Perez’s criminal history consisting of one conviction for reckless driving, 3 additional convictions for DUI, and 3 additional convictions for driving on a suspended license. The court expressly found no mitigating factors and concluded the upper term was warranted. The court then sentenced Perez to 4 years in state prison concurrent to the sentences already imposed in case Nos. BA316757 and TA090632, consisting of the three-year upper term for DUI plus the one-year prior prison term enhancement. The court imposed a concurrent one-year term in county jail for driving on a suspended license. The court also designated Perez a habitual traffic offender under VC §23350(b).

People v Keshishian (2008) ___ CA4th ___; ___ CR3d ___. Def. Keshishian was charged in a three-count information with murder (PC §187(a), count one), vehicular manslaughter (§192(c)(1), count two), and leaving the scene of an accident (VC §20001(a), count three).  After a jury trial, def. was found guilty of all three charges. In the published portion of this opinion, the COA addressed def.’s contention that his request to discharge retained counsel was erroneously denied.  In the unpublished portion, the COA addressed his substantive contentions concerning the conduct of the trial and the verdict.

The victim, Michael Craven, lived in Burbank.  On April 29, 2000, he had dinner with a friend in Hollywood, leaving at approximately 10:30 p.m.  Approximately 20 minutes later, he was fatally injured after having been run over by a vehicle on the southbound 101 Freeway.  He died later that night after being taken to a nearby hospital.  There was no dispute that the vehicle that killed him was driven by appellant. The issue at trial was whether def. deliberately struck Craven.  On the day the matter was called for trial, def. requested permission to address the court and stated: “Your Honor. I’m facing trial.  I’m being charged with murder, and I was -- I’ve lost confidence pretty much in my attorneys.  I’m really looking for another trial attorney -- to hire an attorney for trial.  I would ask the court . . . if I can please get a continuance to hire some other lawyers, please.” The court initially responded: “Well, I’m very surprised to hear that, Mr. Keshishian. You have some of the best attorneys in all of Southern California that you went out and hired.  I mean, I don’t know who you’re going to look for if you already have two of the best attorneys in Southern California.  Like, you want a miracle? . . . ¶ I know you’re facing a very serious charge here, and I know you’re kind of, like they say, there’s the expression between a rock and a hard spot.  You don’t have good choices, but just changing your attorney is not going to change the charges, and it will not change the evidence, and it will not change your choices.”  Def. replied: “I understand that.  I would ask for the court to please grant me some time.”  The court determined that the case had been pending for two and a half years, after numerous defense requests for continuances had been granted.  The prosecution vigorously opposed a further continuance, citing the passage of time since the incident, the age of the case and problems with witnesses.  The court denied the request.  Def. contends the court’s denial represented reversible error.  The court here applied the correct standard in rejecting def.’s last-minute attempt to discharge counsel and delay the start of trial.  Def. asked for and was given an opportunity to address the court concerning his desire to discharge counsel and his reasons for doing so. He stated only that he had “lost confidence” in his attorneys. This request was made on the day set for trial after the case had been pending for two and a half years.  An indefinite continuance would have been necessary, as def. had neither identified nor retained new counsel.  Witnesses whose appearances had already been scheduled would have been further inconvenienced by an indefinite delay. “‘The right to counsel cannot mean that a defendant may continually delay his day of judgment by discharging prior counsel,’” and the court is within its discretion to deny a last-minute motion for continuance to secure new counsel. (P. v. Rhines (1982) 131 CA3d 498, 506, quoting P. v. Kaiser (1980) 113 CA3d 754, 761.)  That def. had inexplicably “lost confidence” in his experienced and fully prepared counsel did not constitute good cause for granting the continuance requested, nor justify the disruption to the judicial process that would have ensued. The trial court did not err in denying the request.

People v. Small (Unpub. DCA2 – 4-24-08) Def. Small appeals the judgment following his no contest plea to driving with a blood alcohol concentration of .08 percent or more (VC § 23152(b)), and the denial of his motion to suppress evidence. He admitted prior convictions for alcohol-related reckless driving (§ 23103.5), driving under the influence of alcohol (§23152(a)), and driving with a blood alcohol concentration of .08 percent or more (§23152(b)).  Small contends that a warrantless entry into his house and arrest violated the Fourth Amendment prohibition against unreasonable searches and seizures and were not based on any exigent circumstance.  The COA affirmed the judgment

Small staggered out of a supermarket smelling of alcohol and drove away.  A supermarket clerk called the police, gave the police the vehicle's license number and described Small's vehicle as a gray SUV. The clerk also reported that Small was wearing a yellow shirt and light shorts, and had a bandage on his right leg. Police officer Kasfeldt was given this information and dispatched to look for the vehicle.  A few minutes later, Small drove his gray SUV, a GMC Jimmy, into the condominium complex where he lived.  A neighbor saw Small sideswipe a Honda parked in the condominium parking lot, back up, hit the Honda again, and park his vehicle near the Honda. The Honda was owned by Tina Lenoir, Small's next-door neighbor. Lenoir reported the accident to the police and Officer Kasfeldt and other officers drove to the condominium complex and contacted Lenoir.  Lenoir told Kasfeldt that, when she heard the sound of the collision, she and her boyfriend came out of her condominium apartment and saw Small standing next to his vehicle.  Lenoir and her boyfriend attempted to talk to Small and obtain insurance information. Small refused to converse with them, and became irate, began yelling, and walked to his condominium apartment.  Officer Kasfeldt examined the Honda and Small's SUV and confirmed that they both had been damaged in an accident. Kasfeldt and other officers then walked to Small's apartment. The apartment sliding glass door was open but a screen door was closed.  Kasfeldt saw Small inside the apartment and determined that Small fit the description of the intoxicated man at the supermarket. Small was shirtless, but was wearing light shorts and had a bandage on his leg. Kasfeldt called out to Small.  Small did not respond verbally, but walked backwards towards Kasfeldt.  Kasfeldt opened the screen door, and entered the apartment.  Small turned to face Kasfeldt who stated that he was investigating a traffic collision and a report that Small had been driving under the influence of alcohol. He asked Small to step outside of the apartment. Small stepped outside of the apartment and had a further discussion with Kasfeldt. After an initial denial, Small admitted he had been driving while intoxicated and had been involved in the collision with Lenoir's Honda.  Small smelled of alcohol, had glassy eyes, his speech was slurred, and he swayed back and forth nearly falling down. Concluding that he was intoxicated, Officer Kasfeldt conducted field sobriety and preliminary alcohol screening tests. Small admitted drinking, taking substantial amounts of prescription drugs including Prednisone, Vicodin, Soma, and methadone, and nearly fell during the field sobriety test. Kasfeldt called paramedics because of a possible overdose of prescription drugs.  Small was charged with DUI (§23152(a)), driving with a blood alcohol concentration of .08 percent or more (§23152(b)), and misdemeanor hit and run (§20002(a)).  He pleaded not guilty and filed a motion to suppress evidence. (PC §1538.5.)  After the trial court denied the suppression motion, Small entered a no contest plea to driving with a blood alcohol concentration of .08 percent or more, and admitted his 3 prior convictions.  The court suspended imposition of sentence and placed Small on three years' formal probation, including a condition that he serve 180 days in county jail. The other charges were dismissed.

The presumption against a warrantless entry into the home can be overcome by a showing of probable cause and a recognized "exigent circumstance," including the need to prevent the imminent destruction of evidence. (Minnesota v. Olson (1990) 495 U.S. 91, 100; Welsh v. Wisconsin, supra, 466 U.S. at p. 749.) Our Supreme Court has recently held that a warrantless police entry into a home to arrest a person for DUI of alcohol was constitutionally permissible to prevent the imminent destruction or dissipation of blood-alcohol evidence through the body's normal metabolic processes. (People v. Thompson (2006) 38 Cal.4th 811, 825-827 (Thompson).) Thompson is dispositive of the instant case.

People v. McCoy (Unpub., DCA1 – 4-18-08)  After def. McCoy pleaded guilty to DUI of alcohol and admitted to a prior prison term allegation, the trial court imposed an aggravated term of 3 years on the substantive offense and a consecutive term of 1 year for the prior prison term enhancement, for an aggregate term of 4 years in state prison.  Execution of sentence was suspended, and def. was placed on probation for 60 months.  After the court found def. had violated probation, the court put into effect the previously suspended sentence of 4 years in state prison.  On appeal, def. seeks a new sentencing hearing on the ground that the record does not show the trial court judges who adjudicated his violation of probation and imposed the previously suspended sentence were aware they had the discretion to reinstate him to probation.  The COA affirmed the judgment.  On May 29, 2006, while he was on parole for a felony conviction for DUI, def. was arrested for the same offense.  In a felony complaint, he was charged with various vehicle code offenses and several sentence enhancements were alleged.  At a proceeding before Judge Cindee F. Mayfield, def. pleaded guilty to a felony DUI offense (VC §§23152(b), 23550.5(a)(1)), and he admitted to a prior prison term allegation under PC §667.5.  Def. was advised that he could be sentenced to a maximum term of 4 years in state prison, consisting of the aggravated term of 3 years for the DUI offense, and a consecutive term of 1 year for the prior prison term enhancement.  Before sentencing, the probation department filed a report recommending that the then 34-year-old def. be sentenced to the maximum term of 4 years in state prison.  The probation officer noted that since the age of 18, def. had 33 convictions, including 7 misdemeanor convictions for DUI of alcohol and a felony conviction for DUI with prior convictions.  After his felony DUI conviction in 2000, def. was placed on formal probation and given an opportunity to seek treatment for his alcohol addiction.  After several probation violations and failures at treatment, he was sentenced to state prison for 2 years.  He was placed on parole in February 2003, and proceeded to violate it several times.  His most serious parole violation occurred in July 2005, when he committed his seventh DUI offense. The charge was reduced to a misdemeanor and he was allowed to serve his sentence concurrent to his parole violation.  At sentencing, defense counsel argued that this was an appropriate case for the court to impose the maximum term of 4 years in state prison, suspend execution of sentence, and place def. on probation with the condition that he successfully complete a Drug Court program.  Judge Mayfield agreed with defense counsel’s arguments.  Def. was sentenced to 4 years in state prison, consisting of the aggravated term of 3 years on the substantive DUI conviction2 and a consecutive term of 1 year on the prior prison term enhancement, and execution of the sentence was suspended.  Def. was placed on formal probation for 60 months with the condition that he serve 1 year in county jail with credit for time served.  Upon completion of his jail sentence, def. was required to enroll in and successfully complete an adult Drug Court program, including residential treatment.  Def. did not appeal his sentence.

People v. Fisher (Unpub., DCA4 – 4-17-08)  A jury convicted Fisher of DUI of alcohol with a blood alcohol level of at least .08% (VC §23152(b)), and Fisher admitted 4 prior convictions for DUI within the past 10 years, including a prior felony conviction for which he served a prison term.  Fisher also pled guilty to a count of driving with a license that was suspended or revoked as a result of a prior conviction for DUI. (§14601.2 (a).)  The trial court sentenced Fisher to 4 years in prison. Fisher argued that his conviction should be reversed because (1) the evidence was not sufficient to establish that he had a blood alcohol level of at least .08% while he was driving, and (2) his right to due process was violated when the prosecutor elicited testimony from an expert witness regarding the contents of a lab report that the trial court had ruled would not be admitted into evidence because of a discovery violation.  The COA concluded that Fisher's arguments were without merit, and accordingly, affirmed the judgment. Fisher was transported to police headquarters, where a blood sample was taken from him at 5:08 p.m., approximately an hour and a half after he was stopped by Officer Carter. An analysis of the blood sample showed a blood alcohol level of .07%.  Fisher was charged with one count of DUI of alcohol (§23152 (a)) (count 1), one count of driving while having a blood alcohol level of at least .08% (§ 23152 (b)) (count 2), and one count of driving with a license that was suspended or revoked because of a prior conviction for DUI (§14601.2 (a)) (count 3). With respect to counts 1 and 2, the information also alleged that Fisher had incurred 3 or more convictions for DUI, including one felony. Fisher pled guilty to count 3.  At the jury trial on counts 1 and 2, after being given a hypothetical set of facts based on the details of Fisher's case, the prosecution's expert witness, Larry Dale, testified that in his opinion someone of Fisher's weight who was found to have a blood alcohol level of .07% at approximately 5:00 p.m. would have had a blood alcohol level of between .09 and .10% at 3:32 p.m., assuming that the person had fully absorbed the alcohol into his bloodstream by 3:32 p.m.  Dale explained that full absorption of alcohol into the bloodstream generally occurs in approximately half an hour after consumption on an empty stomach.  Dale also testified that the test result of .07% blood alcohol was arrived at by averaging the results of two separate lab tests and then dropping the third digit. The third digit was dropped based on a regulation promulgated by the California Department of Health Services, which states that in a lab report regarding the results of a forensic blood alcohol test, "[a]nalytical results shall be reported to the second decimal place, deleting the digit in the third decimal place when it is present." (Cal. Code Regs., tit. 17, §1220.4(b).) Because the lab worksheet showing the detailed results from the test of Fisher's blood sample had not been produced in discovery by the prosecution, the trial court ruled that it would not admit that worksheet into evidence.  However, referring to that worksheet, Dale testified at trial that the averaged test result of .07% blood alcohol was achieved by dropping the third digit from the averaged test result of .079%.  Upon objection and a motion to strike by defense counsel, the trial court instructed the jury to "disregard the testimony concerning .079."  Defense counsel moved for a mistrial, premised on Dale's testimony that the test results from Fisher's blood sample showed an average blood alcohol level of .079% before the third digit was dropped. The trial court denied the motion for a mistrial.  It stated, "The reference to .079 was made one time; and at that point there was a timely motion to strike, which was granted, and an admonition added to that by the court.  That figure only appeared in the testimony at that point in time in the trial.  It was not used in the hypothetical.  It was not evidence of a blood alcohol at the time of driving, and there was no calculation based upon that .079. I share defense counsel's concern about it being mentioned; but in the overall picture of the trial, I don't believe that the mention violates the due process rights of the defendant."  A jury convicted Fisher on count 2 for driving with a blood alcohol level of at least .08 percent, and acquitted him on count 1 for driving under the influence of alcohol.  Fisher admitted the prior convictions charged in the information, and the trial court sentenced Fisher to 4 years in prison.

People v. Burton (Unpub., DCA3 – 4-17-08) As part of a negotiated plea bargain, def. Burton entered a plea of no contest to felony driving with a blood-alcohol level of .08 percent or more and causing injury to another. (VC §23153(b).)  He admitted a prior conviction of DUI of alcohol and/or drugs (VC §23152(a)) and a prior strike conviction. (PC  §§288(a), 667(b)-(i), 1170.12(a)-(d).)  In exchange for his plea, the prosecution dismissed another count charging def. with DUI causing injury to another (VC §23153(a)) and agreed not to file any prior prison term allegations. (PC §667.5(b).)  The trial court sentenced defendant to state prison for 6 years, the upper term of 3 years doubled for his strike prior. (PC §§18, 667(e)(1), 1170.12(c)(1); VC §23560.) Def. timely appealed and the trial court issued a certificate of probable cause. Def. claims on appeal the trial court’s choice of the upper term sentence violated his federal constitutional right to jury trial under Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham).  The COA affirmed the judgment.  In this case, the trial court stated it imposed the upper term prison sentence on def. “based on the aggravating factors of [defendant’s] prior prison terms, his violation of probation, and the fact that he was on probation at the time of the commission of this offense.  In addition, the Court will draw attention to his increasingly serious prior record.”  Def. claims the trial court’s reliance on these recidivist factors without notice and a jury trial with an evidentiary standard of proof beyond a reasonable doubt violated his federal constitutional right to jury trial.  Def. claims the recidivist exception recognized in Almendarez-Torres v. United States (1998) 523 U.S. 224 [140 L.Ed.2d 350] is limited to the mere fact of a prior conviction and that the aggravating factors relied on by the trial court here went beyond the mere fact of a prior conviction. Def. disagreed with the California Supreme Court’s opinion in Black II, supra, 41 Cal.4th 799, and anticipates the overruling of both Almendarez-Torres and Black II.  Def. claims he is entitled to raise this issue because he never personally waived his constitutional right to a jury trial on the aggravating factors and because the upper term is an unauthorized sentence. Def. claims the imposition of the upper term without a jury trial was not harmless beyond a reasonable doubt. The COA rejected def.’s contentions.

Begay v. U.S.  553 U.S. ___ (2008) The Armed Career Criminal Act imposes a special mandatory 15­ year prison term upon a felon who unlawfully possesses a firearm and who has three or more prior convictions for committing certain drug crimes or “a violent felony.” 18 USC §924(e)(1).  The Act de­fines “violent felony” as, inter alia, a crime punishable by more than one year’s imprisonment that “is burglary, arson, or extortion, in­volves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” §924(e)(2)(B)(ii) (hereinafter clause (ii)).  After petitioner Begay pleaded guilty to fel­ony possession of a firearm, his presentence report revealed he had 12 New Mexico convictions for driving under the influence of alcohol (DUI), which state law makes a felony (punishable by a prison term of more than one year) the fourth (or subsequent) time an individual commits it.  Based on these convictions, the sentencing judge con­cluded that Begay had three or more “violent felony” convictions and, therefore, sentenced him to an enhanced 15-year sentence. The Tenth Circuit rejected Begay’s claim that DUI is not a “violent fel­ony” under the Act.  Held: New Mexico’s felony DUI crime falls outside the scope of the Act’s clause (ii) “violent felony” definition.  (a) Whether a crime is a violent felony is determined by how the law defines it and not how an individual offender might have com­mitted it on a particular occasion.  (b) Even assuming that DUI involves conduct that “presents a seri­ous potential risk of physical injury to another” under clause (ii), the crime falls outside the clause’s scope because it is simply too unlike clause (ii)’s example crimes to indicate that Congress intended that provision to cover it. (i) Clause (ii)’s listed examples—burglary, arson, extortion, and crimes involving the use of explosives—should be read as limiting the crimes the clause covers to those that are roughly similar, in kind as well as in degree of risk posed, to the examples themselves. Their presence in the statute indicates that Congress meant for the statute to cover only similar crimes, rather than every crime that “presents a serious potential risk of physical injury to another,” §924(e)(2)(B)(ii).If Congress meant the statute to be all encompassing, it would not have needed to include the examples at all. Moreover, if clause (ii) were meant to include all risky crimes, Congress likely would not have included clause (i), which includes crimes that have “as an ele­ment the use, attempted use, or threatened use of physical force against the person of another.” And had Congress included the ex­amples solely for quantitative purposes, demonstrating no more than the degree of risk of physical injury sufficient to bring a crime within the statute’s scope, it would likely have chosen examples that better illustrated the degree of risk it had in mind rather than these that are far from clear in respect to the degree of risk each poses. The Government’s argument that the word “otherwise” just after the ex­amples is sufficient to demonstrate that they do not limit the clause’s scope is rejected because “otherwise” can refer to a crime that is, e.g., similar to the examples in respect to the degree of risk it produces, but different in respect to the way or manner in which it produces that risk. (ii) DUI differs from the example crimes in at least one impor­tant respect: The examples typically involve purposeful, violent, and aggressive conduct, whereas DUI statutes typically do not. When viewed in terms of the Act’s purposes, this distinction matters con­siderably. The Act looks to past crimes to determine which offenders create a special danger by possessing a gun.  In this respect, a history of crimes involving purposeful, violent, and aggressive conduct, which shows an increased likelihood that the offender is the kind of person who might deliberately point a gun and pull the trigger, is different from a history of DUI, which does not involve the deliberate kind of behavior associated with violent criminal use of firearms.  

Reversed and remanded.

BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, KENNEDY, and GINSBURG, JJ., joined. SCALIA, J., filed an opinion concurring in the judgment. ALITO, J., filed a dissent­ing opinion, in which SOUTER and THOMAS, JJ., joined.

People v. Whelan (Unpub., DCA2 – 4-15-08) Def. Whelan, appeals from his convictions for: three counts of second degree murder with malice aforethought (PC §187(a)); DUI of alcohol (VC §23153(a)); driving with a 0.08 percent or more blood alcohol level and proximately causing great bodily injury (VC §23153(b)); and the findings that his DUI of alcohol with a 0.08% or greater blood alcohol level proximately caused bodily injury or death to 3 individuals. (VC §23558.)  Def. argues the trial court improperly: admitted evidence of his post-accident combativeness and prior DUI conviction; instructed the jury regarding involuntary manslaughter; denied his new trial motion; imposed court security fees as to counts 4 and 5; and miscalculated his presentence credits. Def. also argues that the trial court should have issued an order prohibiting the use of stayed counts 4 and 5 for penal or administrative purposes pending finality of the judgment.  The COA affirmed the judgment with modification.  At approximately midnight on November 5, 2003, Sharon Clayton met a friend, Deanna Hartmann, at the Saddle Ranch Chop House in Universal City.  The two women joined def. and Michael Whitaker at the restaurant.  Each of them ordered a “fancy specialty” drink.  They remained at the restaurant until 1:30 a.m.  Def. drove all 4 individuals in his Corvette automobile to the parking structure where Ms. Hartmann had parked her car.  Ms. Hartmann got out of the Corvette and drove home in her own car.  Def. testified that on November 4, 2003, he and Mr. Whitaker began drinking at approximately 9:30 p.m. at Rocky’s, where he had a 20-ounce draft beer and a double shot of vodka. Def. testified that he had one and one-half “Saddle Ranch Mai Tais” at the Saddle Ranch Chop House, which were served in a wine carafe.  After dropping off Ms. Hartman and Ms. Clayton, def. and Mr. Whitaker went to the Gold Apple bar, where def. had a double shot of vodka.  Def. also ordered a rum and coke.  Def. and Mr. Whitaker drank one rum and coke.  Def ordered another double shot of vodka.  However, def. testified that when he attempted to drink that drink he vomited.  Def was also taking medication at that time, namely 100 milligram Seraquil. At approximately 2:10 a.m. def. was seen speeding on the 118 freeway.  Paul Flugman was a passenger in a car traveling approximately 75 mph which was passed by def.’s Corvette.  Mr. Flugman estimated that def.’s car passed on the right at approximately 110 mph.  Simon McGregor, who was driving approximately 70 mph on the freeway, saw the speeding Corvette in his rear view mirror.  The Corvette was speeding and swerving between lanes of traffic.  The Corvette passed Mr. McGregor on the right at a high rate of speed.  The Corvette continued to cut in and out of lanes thereafter.  Within 30 seconds, Mr. McGregor saw a fireball of flames ahead.  Jose Lafaurie saw def.’s Corvette enter the 118 freeway from the Balboa Blvd. onramp.  Mr. Lafaurie estimated that def. was driving approximately 130 miles per hour.  Mr. Lafaurie saw the Corvette approach a car in the fast lane.  The Corvette crashed into that car sending a fireball across the freeway.  As his car passed by the Corvette, Mr. Lafaurie and several passengers saw a man slumped over in the driver’s seat motionless.  Officer Wilson accompanied def. to Holy Cross Hospital.  At the hospital, Officer Wilson again attempted to ask some pre-field sobriety test questions.  However, def.’s only response to the questions was: “‘It doesn’t matter.’ ‘Tell me, it doesn’t really fucking matter.’ ‘I’m drunk as hell.’” Thereafter, Officer Wilson used a portable breath testing machine, known as a “preliminary alcohol screening test” to test def.’s breath.  An initial reading of .198 was recorded.  Two additional attempts to test def.’s breath were unsuccessful because he was un-cooperative.  Officer Wilson placed def. under arrest for DUI and causing injury to another.  Officer Wilson advised def. that he would be required to submit to a blood test as there was no breath machine at the hospital.  Def. moaned but then nodded his head up and down.  A RN withdrew a sample of def.’s blood.  Subsequent tests of def.’s blood sample revealed that his blood alcohol level was .26%.  A 240-pound man would have to consume approximately 20 ounces of 80 proof alcohol and absorb it immediately without any burning off or elimination of alcohol to achieve a .26 blood alcohol level.  If such an individual drank over a period of time, he or she would have to consume at least an additional drink for every hour spent drinking to have the remaining .26 level at the end of the drinking period.  An individual with a blood alcohol level of .18 to .35 could reach a “stupor” or be sluggish in their response to any sort of stimuli.  Unconsciousness could result from a blood alcohol level from .25 to .45. The judgment was modified to reflect the award of presentence custody credits of 1,179 days.  The superior court clerk was ordered to forward a corrected copy of the abstract of judgment which includes the additional court security fees to the Department of Corrections and Rehabilitation.  The judgment was affirmed in all other respects.

People v. Chavez (Unpub., DCA2 – 4-14-08) Def. Chavez appeals from the judgment entered after conviction by a jury of evading a peace officer while driving recklessly (VC §2800.2)1 and DUI of drugs. (§23152(a).)  He was sentenced to prison for 2 years.  Def. challenges only the conviction for violating §2800.2.  He contends (1) the evidence is insufficient to support a finding that, with the specific intent to evade pursuing deputies, he willfully fled from or attempted to elude them; and (2) the trial court erroneously denied his motion for a judgment of acquittal. (PC §1118.1.)  The COA affirmed the judgment.  On October 18, 2005, Deputy Jackson was driving a marked patrol vehicle in San Pedro.  At approximately 10:20 p.m., Jackson saw a Mercedes driving on the wrong side of the road "coming head on at [him]."  The Mercedes stopped, backed up, and drove into the correct lane.  As the Mercedes passed by Jackson's patrol vehicle, he noticed that it was missing a front license plate and that appellant, the driver, was not wearing a seatbelt.  Jackson turned his vehicle around and followed behind the Mercedes. Def. went through 2 stop signs and again drove on the wrong side of the road.  Jackson turned on his vehicle's red light, but appellant did not stop.  Jackson turned on his vehicle's "full light bar with the rotating lights," and he "chirped" the siren.  Def. looked back in Jackson's direction and continued driving.  Jackson activated the siren so that it stayed on, but def. still did not stop.  Def. drove over a curb onto a grassy area by a hospital where people were standing.  The people "scattered out of the way."  He then continued to drive on the road.  By this time, 2 additional patrol vehicles had joined the pursuit and a helicopter was flying overhead.  All of the pursuing patrol vehicles had their sirens on.  The helicopter illuminated the pursuit with a spotlight.  The pursuit ended when def. stopped his vehicle "on his own accord."  He exited the vehicle and was "belligerently compliant."  The deputies took him into custody without using any force.  A number of bystanders were present when def. was finally apprehended.  The pursuit lasted 80 minutes.  During the entire pursuit, def. drove between 5 and 15 mph.  After he was arrested, def. told Deputy Jackson that "he believed [the deputies] were chasing him because he was driving around the hospital."  He said that he did not stop because he was "love struck" for his girlfriend, who had "messed up" his mind.

People v. Davis (Unpub., DCA3 – 4-10-08)  [Note: Case concerns prosecutorial misconduct claim and the admission of the results of a horizontal gaze nystagmus (HGN) FST and P. v. Kelly (1976) 17 Cal.3d 24 (Kelly); P. v. Leahy (1994) 8 C4th 587 (Leahy) and P. v. Joehnk (1995) 35 Cal.App.4th 1488 (Joehnk)]  A jury convicted def. Davis of DUI of alcohol and drugs (VC §23152(a); count one), being under the influence of methamphetamine (H&S Code §11550(a); count two), and driving on a suspended license (VC §14601.2(a); count three).  He admitted a prior DUI conviction as to count one (VC §23550.5(a)(1)), a prior driving-on-a-suspended-license conviction as to count three (VC §14601.2(d)(2)), and 3 prior prison terms (PC §667.5(b)). He was sentenced to state prison for 5 years, consisting of the middle term of 2 years on count one plus 3 years for the prior prison terms.  The prosecutor amended count three to the lesser offense of violation of VC §14601.1.  Concurrent county jail terms were imposed for counts two and three.  On appeal, def. contends (1) the prosecutor committed several acts of prejudicial misconduct during closing summation, (2) evidence of a HGN test was erroneously admitted, and (3) his mistrial motion was erroneously denied.  Early in the morning of January 14, 2006, CHP Officer White observed def. driving a pickup truck without illuminated headlights.  White effected a traffic stop of the truck. Def. did not have a driver’s license, and White detected the odor of alcohol from within the truck.  After def. acknowledged that he had consumed some beer, White asked him to get out of the truck.  Officer White had def. perform a series of FST’s on which he had various difficulties.  In addition, White noticed that def.’s pupils were dilated and unresponsive to light or movement; he was unsteady on his feet; he appeared to have trouble paying attention; and he was fidgety.  White asked def. when he had last consumed methamphetamine.  Def. looked down and replied, “you got me.”  White arrested def.  At the station, Officer White administered a breath test, which showed that def.’s BAC was 0.068%.  White also administered additional sobriety tests, on which def. had various difficulties.  From his observations, White believed that def. had ingested a combination of substances.  Following an advisement of his constitutional rights, def. admitted that he had smoked both marijuana and methamphetamine earlier in the day.  Blood tests confirmed the presence of components of alcohol, marijuana, and methamphetamine.  Records of the DMV indicated that def.’s driver’s license was suspended in August 2005.  The defense presented no evidence or testimony. During summation, defense counsel argued that def.’s driving pattern showed that he was not under the influence.  Counsel further argued that Officer White prejudged def.’s level of sobriety and did not conduct a thorough investigation.  The COA affirmed the judgment.

People v. Meza (Unpub., DCA3 – 4-10-08) (Note: A frivolous appeal case) On July 9, 2006, 23-year-old def. Meza, speeding in a stolen truck, failed to stop for a pursuing officer.  Def. drove through a metal gate and an open field, running over 2 cats and missing several horses, and collided with a horse stable.  He fled on foot but was eventually caught.  A search of his person revealed 1.7 grams of marijuana.  His BAC was .096%.  Def. entered a no contest plea to vehicle theft (VC §10851(a); count 1), felony evading (VC §2800.2(a); count 2) and DUI of .08% or more (VC §23152(b); count 5) with 2 prior drunk driving convictions in 2005.  In exchange, the remaining counts were dismissed with a waiver pursuant to P. v. Harvey (1979) 25 C3d 754.  The court granted probation for a term of 3 years subject to certain terms and conditions including 95 days in jail with credit for 95 days served.  The court reserved jurisdiction over victim restitution.  After a contested restitution hearing, the court ordered, inter alia, def. to pay $35,816.97 to the owners of the stolen truck.  On appeal, def. challenges a certain part of the court-ordered restitution to the owners of the stolen truck, contending that the trial court’s award of $130 to cover a bug shield was based on unreliable, inaccurate and vague evidence.  On this record, the contention is frivolous. The COA affirmed the judgment.

People v Davis (Unpub., DCA3 – 4-9-08) (Note: A Wende Brief case)  In March 2005, def. Davis drove while intoxicated and ran into a tree.  His wife and a friend removed him from his car, took him home, and placed him in bed.  When he awoke he yelled at his wife and blamed her for the accident.  He “head-butted” her and slapped the side of her head.  She sustained a three-inch bump on the side of her head and a red mark below her nose.  In December 2006, def. drove his car on the wrong side of the road and collided with 2 other cars.  Def., who smelled strongly of alcohol after the collision, claimed that he could not remember what had happened and asked whether he had killed anyone.  Def. claimed that he had started drinking again because his wife drank a lot.  His blood-alcohol level was .18 percent.  His four victims suffered substantial injuries: the first suffered a fractured pelvis, scalp lacerations, and multiple contusions; the second suffered multiple injuries; the third lost teeth, suffered multiple contusions, and complained of neck and back pain; and the fourth suffered multiple contusions and injuries to his ankle and knee.  In April 2007, in case No. CM026579, def. pled no contest to causing injury while DUI of alcohol and drugs and admitted allegations that he personally inflicted GBI and proximately caused bodily injury to three other individuals in the commission of the offense.  Based on his plea in the driving case, the trial court found that def. was in violation of his probation in the spousal injury case.  Def. was sentenced to state prison for 10 years 4 months, consisting of the three-year upper term for the driving offense plus 3 years for GBI, 3 years for injuring multiple victims, and 1 year 4 months for the spousal assault.  He was awarded 127 days of custody credit and 18 days of conduct credit.

People v. Ramirez (Unpub., DCA2 – 4-7-08) Def. Ramirez was convicted by jury of misdemeanor reckless driving causing bodily injury (VC §§23103(a), 23104(a)) and acquitted of felony leaving the scene of an accident resulting in injury (id., §20001(a)). He appealed from the ensuing judgment (order granting probation), contending that the evidence was insufficient to support the judgment, the court’s response to jury questions created an improper inference, the jury should have been instructed on the lesser included offense of reckless driving without causing bodily injury, and restitution was ordered in excessive amounts as to two victims and one derivative victim.  The COA agreed that the restitution order as to the derivative victim was excessive and ordered the trial court to modify the order.  In all other respects the COA affirmed the judgment.  Testifying in his own behalf, def. said that when he entered the intersection at 138th St., he saw a car coming north on Prairie that was over a block away.  Seeing that it was “safe for [him] to make [his] turn,” def. did so.  He heard a crash once the turn had been completed.  A defense accident reconstruction expert was of the opinion that Cervantes was traveling between 60 and 70 miles per hour and was 300 feet from defendant when defendant made his left turn. The expert conceded that defendant had “contributed to the accident.”  In rebuttal, a prosecution accident reconstruction expert testified that the defense expert’s calculation of Cervantes’s speed was based on an inaccurate formula.  In addition, there were too many variables to accurately determine the distance between Cervantes and def. when def. made his left turn.  The primary cause of the accident was def. having driven on the wrong side of the road into oncoming traffic.  Laura Cervantes is apparently the mother of Eljer Cervantes and Brenda Castilla, who was a passenger in Eljer Cervantes’s car.  The court ordered $2,337.33 restitution to Castilla for medical services and $3,068.58 restitution to Cervantes, as a derivative victim of defendant’s crime, for medical and ambulance services provided to Castilla.  (See PC §1202.4(k)(3)(A) [parent of victim who sustained economic loss qualifies as crime “victim”].)  Defendant contends and the AG aptly concedes that $2,337.33 of the amount awarded to Cervantes for Castilla’s medical services was duplicative of the amount that was awarded to Castilla for medical services.  Thus, Cervantes’s restitution should have been limited to $731.25 ($3,068.58 minus $2,337.33) for the ambulance services provided to Castilla, which were not included in Castilla’s restitution award. The COA ordered the trial court to make the appropriate modification.

People v. Bystrova (Unpub., DCA4 – 4-2-08) In December 2005, Bystrova, a Russian citizen and a lawful permanent resident of the United States, drove with a blood alcohol level of .08 percent or higher, with her nine-year-old child in the car.  In May 2006, Bystrova entered a negotiated guilty plea to misdemeanor driving with a blood alcohol level of .08 percent or more with a prior conviction of a similar offense (VC §§23152(b), §23540) and felony child abuse (PC §273a(a)).  In July the court placed Bystrova on five years' probation.  In August the U.S. commenced proceedings to deport Bystrova to Russia. In October 2006 Bystrova filed a petition for writ of error coram nobis, a memorandum of points and authorities in support of motion to withdraw guilty plea or writ of error coram nobis, and a declaration.  She claimed that before she entered the plea, her attorney did not advise her that willfulness was an element of felony child abuse and a conviction would result in her deportation.  She requested the court vacate the probation grant and allow her to withdraw her plea.  The People did not file an opposition.  The superior court construed Bystrova's petition as a motion to withdraw the plea and denied it.  Bystrova appealed, contending the court erred by denying the motion because she entered her plea through inadvertence, ignorance, and without knowledge of all the facts, and the court erred by failing to grant her a hearing on the motion and petition.  The COA affirmed the Superior Court’s denial order, stating it had not abused its discretion.

People v Smith (2008) ___ CA4th ___; ___ CR3d ___.  (Note: Previously an unpublished opinion, Smith has now been published.  Also, a rare COA reversal of a DUI conviction)   This appeal concerns 2 trials arising from def. Smith's conduct of driving with alcohol in his system.  Def. was arrested shortly after his vehicle was rear-ended by another vehicle. Approximately one hour after the accident, def.’s blood alcohol level was .17. Def. claimed this elevated level was the result of his drinking alcohol immediately after the accident.  In the first trial, the jury acquitted def. of driving with a blood alcohol level of .08 or more (VC §23152(b), hereafter sometimes referred to as "per se DUI"), but could not reach a verdict as to whether he drove under the influence of alcohol (§23152(a), hereafter sometimes referred to as "generic DUI").  At the second trial, the jury convicted def. of DUI of alcohol.  Challenging this conviction on appeal, def. argues that at the second trial the court violated collateral estoppel principles by: (1) admitting the evidence that he had a post-accident .17 blood alcohol level; (2) instructing the jury that a .08 or more blood alcohol level creates a permissive presumption of DUI; and (3) failing to instruct the jury that it should presume he did not drive with a blood alcohol level of .08 or more. The COA rejected def.’s argument that the .17 blood alcohol evidence was inadmissible.  However, the COA concluded that based on the interrelationship between the generic and per se DUI offenses, collateral estoppel principles were violated when the second jury was permitted to consider the issue of whether def. drove with a .08 or more blood alcohol level.  Moreover, the COA agreed with def. that the jury should not have been instructed regarding the permissive presumption arising from a .08 or more alcohol level and should have been instructed to presume his blood alcohol level was less than .08 while driving. The COA concluded the error required  reversal.

People v. Mark (Unpub., DCA2 – 3-27-08)  (Note:  Question: Why would anyone plead to the sheet on such serious charges and admit a serious felony prior w/o some agreement as to the sentence?)  Def. Mark appealed the judgment following his no contest plea to gross vehicular manslaughter while intoxicated (PC §191.5(a)).  He also admitted leaving the scene of the accident after he committed the offense (VC §20001(c)), and that he had a prior serious felony conviction that qualified as a strike (§§667(a), (c)(1), (e)(1), 1170.12(a)(1), (c)(1)).  He was sentenced to a total term of 18 years in state prison, consisting of the low term of 4 years doubled for the strike prior, plus 5 years for the prior serious felony, plus 5 years for the VC §20001(c) allegation.  He contends the trial court abused its discretion in refusing to strike his prior felony conviction pursuant to §1385.  The COA affirmed the judgment. On June 3, 2006, 19-month-old Alex Hurd died as the result of injuries suffered when his parents' minivan was struck by Mark's vehicle at the intersection of Glenbrook and Las Posas Roads in Camarillo.  Mark fled the scene of the accident and drove to a nearby residence.  A witness followed him and called 911.  The police arrived shortly thereafter and arrested Mark.  Approximately 2 hours after the accident, Mark had a blood alcohol level of 0.21%. Pursuant to his plea, Mark admitted that he was convicted of first degree burglary (§459) in 1994, and that the crime qualified as a strike.  Prior to sentencing, Mark moved to strike the prior conviction pursuant to §1385 and P. v. Superior Court (Romero) (1996) 13 C4th 497.  The trial court denied the motion, reasoning that the burglary and Mark's numerous other prior convictions demonstrated that "[h]is substance abuse problem continues to create circumstances which causes his return to the criminal justice system."  Mark contends the court abused its discretion in denying the motion.  The COA disagreed.

Carlton v DMV (Unpub., DCA4 – 3-27-08)  (Note: Case here involves a “refusal”, plus Respondent’s DMV APS challenge to a Florida “prior.”) Carlton was stopped for suspected DUI and, after allegedly refusing to take a breath, urine or blood test (in violation of VC §23612), he was served with a notice that his driving privileges would be suspended pursuant to §13353, but that he could request an administrative hearing (the per se hearing) before a hearing officer of the DMV to challenge certain factual issues.  Carlton timely requested a per se hearing, and the DMV hearing officer found he had violated §23612, which subjected Carlton to mandatory suspension of his driving privileges. (§13353(a).)  Carlton petitioned for a writ of mandate under CCP §1094.5 to challenge that determination, and the trial court denied the petition as to that determination. However, at the final session of the per se hearing, Carlton also purported to challenge the accuracy of the DMV's record that he had suffered a prior DUI conviction in Florida.  Although this issue is not one of the issues statutorily enumerated for evaluation at a per se hearing (see §§13557(b)(1), 13558 (c)(1)), the hearing officer nevertheless found Carlton's DMV driving record correctly reflected the prior Florida conviction was a qualifying offense under §13353(a)(2).  Carlton's petition for a writ of mandate in the trial court, filed pursuant to CCP §1094.5, also purported to challenge the determination concerning Carlton's Florida conviction.  The trial court ordered that the prior conviction issue be remanded to the DMV for further evidentiary proceedings on the Florida conviction.  Carlton appeals the trial court's order, and the COA affirmed both aspects of the trial court's order. The arresting officer (Newbury) transported Carlton to the Vista Detention facility, where Newbury explained the implied consent laws, and read verbatim from a form that warned Carlton about the consequences of refusing to take either a breath or a blood test.  Carlton was agitated and repeatedly refused to agree to take any chemical test. Newbury warned Carlton that Newbury would hold him down if necessary, because the blood would be drawn with or without Carlton's permission, and Carlton continued to delay the blood draw, stating repeatedly, "I don't want to take this test" and "you can't do this."  After the phlebotomist came to draw Carlton's blood and Newbury again warned he would if necessary hold Carlton down to allow the blood draw, Carlton (after a brief discussion with the phlebotomist) held out his arm to allow the blood draw but continued to state, "I'm not giving my consent" and "I don't want to give any blood."  The blood draw was completed over Carlton's continued verbal protests. Carlton's blood alcohol level was .15 percent, nearly twice the legal limit.  At the continued hearing, Newbury appeared and testified to Carlton's refusals to voluntarily submit to chemical tests.  After the hearing, the hearing officer found Carlton had refused or failed to complete a drug test, in violation of §23612 , and therefore Carlton was subject to mandatory suspension of his driving privileges. (§13353(a).) When a driver requests an administrative per se hearing to challenge whether his or her driver's license may be suspended under §13353 for allegedly refusing to consent to a chemical test, the scope of that hearing is confined to the facts listed in §13557(b)(1). The per se hearing examines only (1) whether the law enforcement officer had reasonable cause to believe the person had been driving a motor vehicle while under the influence; (2) whether the person was placed under arrest; (3) whether the person "refused or failed to complete the chemical test . . . after being requested by a peace officer"; and (4) whether the person had been told his or her privilege to operate a motor vehicle would be suspended or revoked if he or she refused to submit to and complete the required testing. (Troppman v. Valverde (2007) 40 C4th 1121, 1127; §§13557 (b)(1), 13558(c)(1).)  A driver who verbally refuses to take the test, even though he or she does not physically resist the actual blood draw, has refused to take the test within the meaning of the statute. (Payne v. DMV (1991) 235 CA3d 1514, 1517-1519 [initial refusal to take test, followed by submission to test under verbal protest, is refusal within statutory scheme]; Barrie v. Alexis (1984) 151 CA3d 1157, 1162 [same].)  Indeed, the courts have concluded a driver has refused to take a test when the driver remains mute when asked whether he or she would submit to a test. (Lampman v. DMV (1972) 28 CA3d 922, 927; Buchanan v. DMV (1979) 100 CA3d 293, 299.) The COA concluded that because the administrative per se hearing requested by Carlton is legislatively limited to specified issues, and the accuracy of the DMV's records of prior convictions is not included within those issues, Carlton's attempt to challenge whether his prior Florida conviction qualified as a specified prior offense interjected issues beyond the jurisdiction conferred on the hearing officer at a per se hearing.  Accordingly, the hearing officer's purported "decision" on that challenge was without force or effect. (Cf Carlson v. Eassa (1997) 54 CA4th 684, 691 ["A judgment is void if the court rendering it lacked subject matter jurisdiction or jurisdiction over the parties. Subject matter jurisdiction 'relates to the inherent authority of the court involved to deal with the case or matter before it.' [Citation.]  Lack of jurisdiction in this 'fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.' [Citation.] [¶] In a broader sense, lack of jurisdiction also exists when a court grants 'relief which [it] has no power to grant.' [Citations.]") However, the trial court's order in effect directed the DMV to afford Carlton a distinct administrative hearing, within the meaning of Pollack, to determine whether Carlton's Florida conviction was properly entered as a DUI on his driving record.  Carlton's underlying writ petition, when liberally construed, can be interpreted as pleading an independent claim for mandamus under section 1085 insofar as he contested the propriety of the DMV's entry of his Florida conviction as a qualifying offense onto his driving record. Because we will consider Carlton's "prior conviction" claim as a separate mandamus claim in effect consolidated with his distinct §1094.5 administrative mandamus claim on the refusal issue, we examine the trial court's order on his prior conviction claim as a separate disposition of a separate claim under CCP §1085.  The trial court granted Carlton's petition for a writ by ordering the "prior conviction" issue remanded for an administrative hearing to determine whether the prior conviction "involved driving and can otherwise appropriately be treated as a qualifying prior D.U.I. offense."  Although Carlton purports to appeal from this order, a trial court's order on a petition for writ of mandate that grants the petitioner relief by remanding the issue for additional administrative proceedings is not appealable. (Board of Dental Examiners v. Superior Court (1998) 66 CA4th 1424, 1430; Village Trailer Park, Inc. v. Santa Monica Rent Control Bd. (2002) 101 CA4th 1133, 1139-1140.)

People v. Semper (Unpub., DCA5 – 3-25-08)  (Note:  For whatever reason, as of 12/30/07, atty. Smurr was ordered “inactive” by the State Bar and is no longer eligible to practice law).  Def. Semper appeals his convictions for assault, spousal abuse, and felony DUI.  He contends that he was denied his 6th Am. rights under the US Constitution to discharge his counsel and substitute new counsel, and denied his right to represent himself.  He also contends that there was ineffective assistance of counsel.  The COA affirmed the judgment.  On April 13, 2006, the Fresno County DA filed a 1st am. information charging Semper with 9 counts relating to 2 separate incidents.  The first three counts related to a July 20, 2005 incident where Semper allegedly injured and threatened his girlfriend.  Semper was charged in count I with corporal injury of a spouse (PC §273.5(a)), in count II with assault by means likely to produce GBI (§245(a)(1)), and in count III with criminal threats (§422).  The remaining counts related to an incident of road rage on January 21, 2006.  Semper was charged in count IV with assault with a deadly weapon (§245(a)(1)), in count V with DUI of alcohol causing injury (VC §23153(a)), in count VI with driving with a .08 percent blood alcohol level causing injury (VC §23153(b)), in count VII with vandalism (§594(a)), in count VIII with leaving the scene of an accident (VC §20001(a)), and in count IX with child abuse (§273(a)). It was further alleged as to counts IV-IX that, in the commission of those offenses, Semper was released from custody or bail or own recognizance within the meaning of §12022.1.  On April 13, 2006, Semper pled not guilty to all counts. On April 21, 2006, the court granted Semper’s motion to reduce count IX from a felony to a misdemeanor pursuant to §17(b).  Jury trial began on April 24, 2006.  On May 1, 2006, Semper made a motion for a mistrial due to inadequate representation by his trial counsel, John Smurr.  Def. also made requests for a continuance to allow him to obtain new and different counsel and for Mr. Smurr to be relieved as counsel due to incompetence.  In response to the motion, Mr. Smurr also requested to be relieved as Semper’s counsel of record and for Semper to continue in pro. per. The court denied each motion and request.  On May 4, 2006, the jury found Semper guilty of all counts, and found the allegations as to counts IV-VII to be true.  On May 17, 2006, Roger Nuttall was substituted in for Mr. Smurr as Semper’s counsel.  On September 22, 2006, the trial court sentenced Semper to a total of 6 years, 8 months in state prison, but stayed the sentence for 5 years and granted probation for those 5 years.  Semper was ordered to attend numerous counseling programs and/or sessions, provide DNA samples, pay a court security fee of $20, pay a DUI fine of $1,800, and had his driving privileges suspended.  On November 2, 2006, Semper timely filed a notice of appeal.

The trial court thought that there were only two viable options: (1) declare a mistrial and reset the matter for Semper to hire new counsel to represent himself, or (2) order Mr. Smurr to proceed as counsel, and if he refused, then order a mistrial and hold Mr. Smurr in contempt.  The trial court identified a third option, which was to grant the continuance, but did not think this third option was viable, probably because of the enormous burden on the jury and witnesses during the continuance.  The trial court chose the second option.  The trial court chose this option based upon it’s findings that Mr. Smurr had effectively represented Semper to that point and that Mr. Smurr had not lost his memory because he could recite what had happened in the previous days.  A criminal defendant may discharge retained counsel, with or without cause.  (P. v. Ortiz (1990) 51 C3d 975, 983.) However, his right to discharge retained counsel is not absolute. (Ibid.) The trial court retains discretion to deny such a motion if the discharge would (1) cause significant prejudice to the defendant, or (2) was untimely and would result in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case. (P. v. Lara (2001) 86 CA4th 139, 153.)  The People contend that the request to discharge counsel was untimely in this case. The COA agreed. The trial court properly exercised its discretion to deny Semper’s motion to discharge his retained counsel and grant a continuance because the evidence before the trial court indicated that the motion was untimely and would result in a disruption of the orderly processes of justice that would be unreasonable under the circumstances. First, there would be substantial disruption of the trial because Semper filed his motions 8 days after jury trial began, and after 14 witnesses had already testified and the prosecution had already rested. Substantial evidence supports the trial court’s finding that to grant the motion would cause a substantial and significant disruption of the court proceedings.

People v. Ledune (Unpub., DCA2 – 3-24-08)   Def. Ledune appeals from his sentence of 11 years in state prison following his no contest plea to felony transportation of cocaine (H&S Code §11352 (a)), misdemeanor driving while under the influence (VC  §23152(a)), misdemeanor driving with a suspended license (VC §14601.2 (a)), and misdemeanor being under the influence of a controlled substance (H&S Code §11550(a)).  Def. admitted he had suffered three prior prison terms (PC §667.5(b)), one of which was for a serious felony (PC §§664/211, 667(e)(1)).  The trial court sentenced def. to 11 years in state prison, including 8 years for the felony count (the midterm doubled for the second strike offense) and 3 one-year terms for the prior prison terms.  Def. challenged the trial court's refusal to strike his prior conviction for attempted robbery. The COA affirmed the judgment and sentence.  One month after release from prison, def. drove his wife's car 40 to 45 mph in a 25 mph zone in Montecito while under the influence of cocaine.  Sheriff's deputies activated their siren and the vehicle did not initially yield.  At the time, def. was on parole and his driver's license was suspended.  The deputies found a glass pipe with cocaine residue and a syringe in the car. During booking at the county jail, an officer found a rock of cocaine in def.’s sock.  Def. had an extensive record……  In cases brought under the Three Strikes law (PC §667(b)-(i)), the trial court may reduce the defendant's sentence by striking a prior felony allegation. (PC §1385 (a); P. v. Romero (1996) 13 C4th 497.) The trial court's discretion to strike a prior felony in furtherance of justice is limited. (Id. at p. 530.)  The court must consider "whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (P. v. Williams (1998) 17 C4th 148, 161.) The COA reviews the trial court's decision for abuse of discretion. (Id. at p. 162.)  The COA found no abuse of discretion here.

People v. Yorba (Unpub., DCA4 – 3-19-08) Def. Yorba sped through a red light and crashed into another car while evading a police pursuit.  Def. was convicted of assault with a deadly weapon, as well as several other crimes.  He argues there was insufficient evidence of assault with a deadly weapon, because a reasonable person in his position would not have been aware a collision was a direct, natural, and probable result of his conduct.  The COA disagreed, holding that a collision was a highly probable result of his reckless driving.  Def. also argued the trial court abused its discretion in permitting the prosecution to offer the testimony of 2 police officers detailing an earlier incident involving def.  The heart of def.’s case was that a beating by the police in April 2006 caused him to be in fear of his life, and that he was therefore acting in self-defense when he evaded a later police pursuit.  Because def. offered testimony about the April 2006 incident from 5 defense witnesses, including himself, the prosecution was entitled to offer the rebuttal testimony of the officers involved.  The testimony was not unduly prejudicial under EC §352 and the COA found no abuse of discretion. About the time Officers Kraus and Berecki were terminating their pursuit of def., Fountain Valley Police Officers Hughes and McCollum had parked their marked patrol cars about 5 or 6 feet from each other near the driveway entrance of a gas station at the corner of Brookhurst St. and Talbert Ave.  Def.’s truck entered the gas station’s driveway on Brookhurst at a speed of 40 to 45 mph and turned toward the two patrol cars.  Officer Hughes put his car in reverse and floored the accelerator, avoiding a collision as def. sped through the gas station.  The skid marks made by Officer Hughes’s car and def.’s truck showed that def.’s truck drove through the very location the patrol car had been parked in before it backed up.  Def. did not slow down as he drove through the gas station.  Def. turned right onto Talbert as he exited the gas station, traveling approximately 60 miles per hour in a 45-miles-per-hour zone.  Officer McCollum and Officer Hughes followed def.’s truck with the patrol car’s lights and sirens on.  Def. used the left-turn lanes and the right shoulder of the street to get around other vehicles.  Def. turned into a parking lot; Officer Hughes lost sight of def., but observed vehicles in the parking lot were parked in abnormal ways, shopping carts were overturned, clothing and food were strewn about, and pedestrians were lying on the ground.  The police pursuit of def. continued northbound on Magnolia St., eastbound on Slater Ave., and northbound on Brookhurst.  Sgt. Robert Sweaza of the Fountain Valley PD became the lead pursuit vehicle as def. turned from Slater onto Brookhurst; Officer McCollum was behind Sgt. Sweaza.  Def. was driving between 60 and 80 mph, and was weaving in and out of traffic.  He ran 3 red lights along Brookhurst without slowing down.  Sgt. Sweaza then lost sight of def.’s truck as def. weaved in and out of traffic.  Sgt. Sweaza saw the tail end of def.’s truck fly into the air, which he testified was consistent with the truck having been in a collision.  Antonia Casillas had been stopped at a light in the left-turn lane on McFadden Ave., waiting to turn northbound onto Brookhurst. When the light changed to a green arrow, Casillas looked left, right, and left again and determined it was safe to make a left turn.  She did not see a vehicle approaching on Brookhurst before beginning her turn.  Suddenly, Casillas felt a jolt at the back right side of her car.  The windows of her car shattered, the roof of the car caved in, and the car spun around and hit a fire hydrant; Casillas believed she was going to be crushed to death.  Casillas had glass imbedded in her left arm and face, multiple cuts and bruises, a fractured right clavicle, a cervical strain, and neck, shoulder, and back pain.  Her injuries were still causing her pain at the time of trial.  When Sgt. Sweaza reached the scene, def.’s truck was parked 100 feet past the fire hydrant Casillas hit, on a side street off Brookhurst.  Def. was stopped by other officers in a nearby parking lot.  Def. struggled with the officers before they were able to handcuff him.

People v. Kinchen (Unpub., DCA1 – 3-18-08) (Note:  This def. went back to the PD in order to get some personal items out of the impounded vehicle he was driving.  This resulted in his subsequent arrest for the initial stealing of the vehicle – VC §10851.  Smart move….) Def. Kinchen appealed from the judgment following his conviction of DUI of alcohol (VC §23152(a)); driving while having a blood-alcohol level of 0.08 percent or higher (VC §23152(b)); driving on a suspended or revoked license (VC §14601.1); and receiving stolen property (PC §496(d)).  Def. contends the prosecutor’s use of a peremptory challenge to excuse an African-American prospective juror violated his constitutional rights.  The COA affirmed the judgment.

On October 7, 2004, sheriff’s deputies stopped a Ford Explorer with no front license plate.  Def. was driving. The officers observed the smell of alcohol in the vehicle and on def.’s breath and that def. had red, watery eyes with droopy eyelids.  Def. was subjected to a series of FST’s, on which he performed poorly.  He was placed under arrest and taken to the police station for the administration of breath tests, which showed an alcohol level above the legal limit.  A records check showed that def. had been driving with a suspended license. On October 15, 2004, def. went to the Orinda PD to retrieve some items of personal property that had been inside the Explorer.  He did not have a photo ID and he was unable to provide the name of the Explorer’s registered owner.  Def. was directed to the tow yard, and while en route, the police conducted a records check on the Explorer’s vehicle identification number.  The records check revealed that the registered owner was listed as Bryan Thompson and that the vehicle had been reported stolen to Hayward police in May 2002. The rear license plate on the Explorer, according to the DMV, was registered to one Amalia Moranas.  Def. was taken into custody at the tow yard. The right to trial by a jury drawn from a representative cross-section of the community is guaranteed under Art. I, §16, of the California Constitution. (People v. Wheeler (1978) 22 C3d 258, 272 (Wheeler).) The federal Constitution’s equal protection clause affords similar protection. (Batson v. Kentucky