APPEAL from a judgment of the Superior Court of Placer County, Colleen M. Nichols, Judge. Affirmed. (Super. Ct. No. 62-079235).
The opinion of the court was delivered by: Nicholson, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Sentenced to three years in state prison for false personation (Pen. Code, § 529),*fn2 driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)), driving with a blood-alcohol content exceeding .08 percent (Veh. Code, § 23152, subd. (b)), and driving with a suspended license (Veh. Code, § 14601.2, subd. (a)), defendant Mirya Lynn Stacy appeals her conviction. On appeal, defendant claims there was insufficient evidence to convict her of false personation, instructional error, and the trial court abused its discretion in refusing to reduce her false personation conviction to a misdemeanor. For the reasons discussed below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2008, off-duty Sacramento County Sheriff's Detective Todd Gooler was driving eastbound on Interstate 80 in an unmarked vehicle when he saw a Buick driving abnormally slow (approximately 40 miles per hour). Detective Gooler followed the Buick and saw it drift into the center of the interstate where the tires hit the "concrete divider" and came at least one foot off the roadway. The Buick then "veered to the right" and exited the interstate traveling at less than five miles per hour.
Detective Gooler continued to follow the Buick off the interstate, turning on his red and blue lights. The Buick continued to drive through an industrial area and several parking lots until it reached a dead end, where it finally came to a stop. Detective Gooler approached the driver of the car (defendant) and asked her to turn off the ignition. Defendant followed his instructions and gave Detective Gooler the keys.
Next, Detective Gooler asked defendant her name; she told him her name was Amber Skrobecky and said her birthday was April 2, 1984. Consistent with his practice, Detective Gooler wrote the information down on a three-by-five index card. While talking to defendant, Detective Gooler noticed a strong odor of alcohol emanating from her and that her speech was slurred. Gooler had "no doubt" defendant was intoxicated so he contacted the Roseville Police Department for assistance.
Andrew Bonner, an officer with the Roseville Police Department, took the call from Detective Gooler. Officer Bonner arrived on the scene and Detective Gooler told him the defendant's name was Amber Skrobecky, her birth date was April 2, 1984, and she did not have a picture I.D. or driver's license with her. Officer Bonner then spoke directly with defendant.
Defendant told Officer Bonner that her name was Amber Skrobecky. While speaking with defendant, Officer Bonner observed that defendant smelled strongly of alcohol. He noticed her speech was slurred, and her eyes were red and bloodshot. When asked, defendant said the car was not hers, it was rented. Officer Bonner then conducted five field sobriety tests on defendant and concluded she was intoxicated.*fn3 Accordingly, Officer Bonner transported defendant to the Roseville jail.
During the drive to the jail, defendant gave Officer Bonner a California driver's license number and mailing address, which matched the Department of Motor Vehicles' (DMV) records for Amber Skrobecky. Defendant also told Officer Bonner her full name was Amber Lynn Skrobecky. According to the DMV records, however, Amber Skrobecky's birthday was April 2, 1985, and her middle name was Ann. Officer Bonner also asked defendant for her maiden name, and the name she gave did not match either of the maiden names listed for Amber Skrobecky.
Officer Bonner confronted defendant with these discrepancies, but defendant insisted she was Amber Skrobecky and this time said her birthday was April 2, 1986. Officer Bonner pleaded with defendant to be honest with him, told her that with fingerprints they would be able to identify her eventually, but defendant remained resolute. He asked her a third time for her birth date, this time the date she gave was April 2, 1985. When he asked defendant why she could not remember her birth date, she said it was because she was "so intoxicated" she forgot.
Once at the Roseville jail, defendant was fingerprinted and completed one breathalyzer test. She refused, however, to complete the required second breathalyzer test or to provide a blood sample. Defendant was advised that her refusal to complete these tests would result in the automatic suspension of her driver's license, but she continued to refuse. Soon, Officer Bonner's supervisor arrived along with a phlebotomist. Officer Bonner again advised defendant of the consequences for refusing to complete the required chemical tests. Defendant continued refusing but said she would not resist the phlebotomist. Ultimately, the phlebotomist was able to draw defendant's blood without her consent, but also without her physical resistance.
When completing the form for defendant's blood sample, Officer Bonner left blank the portion reserved for the person's name, believing defendant still had not given her true name. The sample came back showing defendant had a blood-alcohol level of .17 percent.
Shortly after defendant's blood was drawn, the fingerprint results came back, showing that the prints belonged to defendant -- not Amber Skrobecky. Officer Bonner also was able to obtain photographs of defendant and Amber Skrobecky from the state database, "Cal Photo," and confirm defendant was not Amber Skrobecky. When Officer Bonner confronted defendant with the photographs, she admitted that she had lied about her identity because of "outstanding warrants for her arrest." She told Officer Bonner that Amber Skrobecky was her cousin.
Defendant was then booked and charged with false personation (§ 529), driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)), driving with a blood-alcohol content greater than .08 percent (Veh. Code, § 23152, subd. (b)), and driving with a suspended license (Veh. Code, § 14601.2, subd. (a)). With regard to the charge of false personation, it was alleged that defendant served a prior prison term within the meaning of section 667.5, subdivision (b).
It was further alleged that defendant was twice previously convicted of driving under the influence (Veh. Code, § 23546), and that defendant refused to submit to and/or complete the chemical testing requirements (Veh. Code, § 23577). The complaint also alleged defendant was twice previously convicted ...