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November 30, 2010


Appeal from a judgment of the Superior Court of Orange County, James Patrick Marion and Richard W. Stanford, Jr., Judges. Affirmed. (Super. Ct. No.09HF1001)

The opinion of the court was delivered by: Aronson, J.

P. v. Lafferty CA4/3


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


After a bench trial where defendant represented himself, the court convicted defendant Ewan Cunningham Lafferty of felony driving under the influence (DUI) (Veh. Code, § 23152, subd. (a))*fn1 and driving with a blood alcohol level of .08 percent or more (§ 23152, subd. (b)), with three or more prior convictions (§ 23550).

We appointed counsel to represent defendant on appeal. Counsel filed a brief setting forth a statement of the case. Counsel did not argue against her client, but advised this court she found no issues to support an appeal. We provided defendant 30 days to file his own written argument. That period has passed, and we have received no communication from him. After conducting an independent review of the record under People v. Wende (1979) 25 Cal.3d 436, we conclude there is no basis to reverse the judgment.

An information filed September 4, 2009, charged defendant with the offenses listed above. In late September, defendant waived his right to counsel and elected to represent himself. Defendant filed a litany of pretrial motions, which the court denied. The parties waived the right to a jury, and a bench trial ensued in January 2010.

At the trial, a detective with the Irvine Police Department testified that around 10:15 p.m. on August 8, 2008, he observed defendant operating a minibike in a parking lot adjacent to several Irvine eateries. The minibike had no headlamp or license plate, and defendant was not wearing a helmet.

The officer directed defendant to push the minibike toward him. Defendant walked unsteadily. His eyes were bloodshot and his breath smelled strongly of alcohol. Defendant admitted drinking beer but declined to answer other questions. A nystagmus test indicated defendant was intoxicated. Defendant refused to perform other field sobriety tests. The officer arrested defendant, advised him of the implied consent law and its requirement to submit to a breath or blood test, and notified him that if he did not consent police officers had the legal authority to compel a blood test. Defendant refused to cooperate in selecting a test, so the officer summoned a technician to draw defendant's blood.

A witness at the scene of defendant's arrest claimed defendant ran into his truck and fell off his motorcycle. Defendant yelled at him and demanded the man's insurance information. The witness reported defendant smelled of alcohol and appeared intoxicated. The man drove off and defendant briefly pursued him into the street.

The parties stipulated a trained, licensed medical technician extracted defendant's blood in a medically-approved manner, and complied with applicable regulations. The sample contained .28 percent alcohol. The court received evidence defendant had previously suffered DUI convictions in 2005, 2006, and 2008.

Defendant did not testify. He argued his minibike did not qualify as a vehicle subject to the laws against driving under the influence. The court rejected the argument and found defendant guilty.

On February 5, 2010, the trial court sentenced defendant to the 16-month low term for violation of section 23152, subdivision (a). The court stayed (Pen. Code, § 654) a term for violation of section 23152, subdivision (b). The court credited defendant with 205 actual custody days, and awarded him conduct credit of 205 days under the amended version of Penal Code section 4019, effective January 25, 2010. The court also imposed statutorily required fines and fees.


Counsel identifies several potential issues appearing in the record: (1) Whether defendant validly waived counsel; (2) whether defendant validly waived his right to a jury trial; (3) whether the case had been twice dismissed; (4) whether the blood evidence was the product of an illegal search or seizure; (5) whether the prosecution acted vindictively; (6) whether defendant's minibike constituted a vehicle under the law against driving while intoxicated; (7) whether driving while intoxicated in a private parking lot is prohibited by law; (8) whether sufficient evidence supports the true findings concerning the prior convictions; and (9) whether the sale of defendant's impounded minibike constituted a violation of Brady v. Maryland (1963) 373 U.S. 83.

Waiver of Counsel

A criminal defendant has the right under the Sixth and Fourteenth Amendments to waive the right to counsel and to represent himself or herself. (Faretta v. California (1975) 422 U.S. 806, 819 (Faretta) [the "Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense"].) "A trial court must grant a defendant's request for self-representation if the defendant knowingly and intelligently makes an unequivocal and timely request after having been apprised of its dangers." (People v. Valdez (2004) 32 Cal.4th 73, 97-98; Faretta, at p. 835.)

Defendant executed a written Faretta waiver.*fn2 The trial court on the record discussed with defendant the issue of self-representation, verifying the information on the waiver form, and warning him of the pitfalls in acting as his own lawyer. The record reflects defendant's request for self-representation was voluntary, knowing, and intelligent. (People v. Lawley (2002) 27 Cal.4th 102, 139 [test of a valid waiver of counsel is whether the record as a whole demonstrates defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case].) No arguable issue is presented.

Waiver of Jury

On the day set for trial, the court informed defendant he could probably expect "jury selection this morning" and asked if he was "sure you want a jury trial?" Defendant inquired about the benefits of a jury and asked "could I have a trial just based on with you?" The court advised that some people believed a jury trial was always better for a criminal defendant because 12 jurors have to agree on a verdict. The judge explained if defendant did not have a jury trial, "I would listen to the evidence and I would decide whether you're guilty . . . so it only takes one instead of twelve." The court also remarked that in "certain kinds of cases, and DUI may be one of them where jurors don't look at some of the evidence in that kind of case with the objectivity that a judge might. In other words, jurors are inflamed about certain things, like child molesters and perhaps drunk drivers. So, it is not necessarily a good thing to have jurors, citizens, decide the case instead of a judge. [¶] There are so many variables on this that it is impossible for me to tell you one is better than the other, from what I know about the case. Only you can decide if you want 12 jurors or a court trial with just me." Defendant stated he would "almost prefer . . . you because I think you know more of the basis of the law around it in this particular case." The court replied, "That's one of the reasons for choosing a court trial, but of course, we do have jury instructions that would tell the jurors all the applicable law . . . ." Defendant explained his defense was more legal than factual, and concluded "I would prefer maybe just to have it heard just by the judge."

The court subsequently advised defendant of the charges, and told him the judge would decide at the end of the case "whether the allegations, or any of them, are true. But you'd be giving up the right to have the 12 jurors listen to that same evidence, and unanimously agree that the charges are true; and instead, I will listen to it and I'll decide whether the charges are proven true or not." The court inquired whether defendant was willing to waive and give up the right to a jury trial, and have a court trial instead, and defendant responded "yes."

Before a trial court may accept a jury trial waiver, it must establish defendant knowingly, intelligently, and voluntarily waived the right. (People v. Collins (2001) 26 Cal.4th 297, 305.) No particular procedure or inquiry applies for accepting a defendant's jury waiver. Waiver presents a question of fact, and no specific formula or extensive questioning is required in procuring an effective waiver "'beyond assuring that the waiver is personal, voluntary and intelligent. . . .'" (People v. Smith (2003) 110 Cal.App.4th 492, 500.) The record reflects defendant voluntarily and intelligently waived his right to a jury trial. No arguable issue is presented.

Two Dismissal Rule

On September 2, 2008, the prosecutor filed a misdemeanor complaint charging defendant with DUI, alleging he had suffered two prior DUI convictions. The prosecutor subsequently filed a felony complaint arising out of the incident, alleging a third prior DUI conviction from Utah. The court's minutes in the misdemeanor case reflect the case was refiled as a felony, and the misdemeanor case was "closed." At the initial preliminary hearing on the felony complaint, the court determined there was insufficient evidence to establish the existence of the third prior conviction and dismissed the felony charges. The prosecutor refiled the felony complaint. The court later held defendant to answer at the preliminary hearing. Defendant moved to dismiss the action relying on Penal Code section 1387.

Penal Code section 1387, subdivision (a), provides that absent special circumstances, "An order terminating an action pursuant to this chapter, or Section 859b, 861, 871, or 995, is a bar to any other prosecution for the same offense if it is a felony or if it is a misdemeanor charged together with a felony and the action has been previously terminated pursuant to this chapter, or Section 859b, 861, 871, or 995 . . . ." The dismissal of a duplicative filing does not constitute termination of an action under Penal Code section 1387. (People v. Bohlen (1992) 4 Cal.App.4th 400, 403 [dismissal of misdemeanor DUI complaint following superseding felony DUI complaint did not constitute termination of action]; Berardi v. Superior Court (2008) 160 Cal.App.4th 210, 227-228 [dismissal of information duplicative of grand jury indictment did not constitute termination of action].) The court's closure of the misdemeanor case upon the superseding felony filing was not a termination of the action. No arguable issue is presented.

Vindictive Prosecution

Defendant filed a motion in the trial court to dismiss the action for vindictive prosecution. He argued the prosecution filed the case as a felony "after the defendant's exercise of a legal right" to self-representation and a jury trial. Defendant asserted he was arrested August 6, 2008, police received information concerning prior convictions at that time, and a misdemeanor complaint was filed. Defendant filed a motion to represent himself, which the court granted. The court set a trial date. On the day set for trial, March 16, 2009, defendant answered ready, but the prosecution refiled the case as a felony. The court then revoked bail and took defendant into custody.

In United States v. Goodwin (1982) 457 U.S. 368, the defendant was charged with misdemeanors and petty offenses for speeding and assaulting an officer with his car. His trial was assigned to a magistrate, but he demanded a jury trial, which required a transfer to a district court. In the district court, the prosecutor obtained a felony indictment, and defendant was convicted of a felony and a misdemeanor. The court held there was no presumption of vindictiveness, explaining that a prosecutor may forgo legitimate charges already brought in an effort to save the time and expense of trial, and may file additional charges if an initial expectation of a guilty plea to lesser charges proves unfounded. (See also Bordenkircher v. Hayes (1978) 434 U.S. 357 [no vindictiveness where defendant, in plea negotiations, refused to plead guilty to the original charge, and the prosecutor then obtained an indictment on a more serious charge].) The court declined to apply an inflexible presumption of vindictiveness in this pretrial setting, explaining defense counsel routinely file various pretrial motions, and it is unrealistic to assume that a prosecutor's probable response to them will be to penalize the defendant and thus deter these motions. The prosecutor should remain free before trial to exercise broad discretion, and an initial decision should not freeze future conduct. (Goodwin, supra, at pp. 381-382.)

The record does not contain evidence the prosecutor's decision to file the case as a felony was motivated by a desire to punish defendant. (See People v. Michaels (2002) 28 Cal.4th 486, 514 [no evidence prosecutor amended complaint in murder prosecution to charge special circumstances as vindictive response to defendant's attempt to plead guilty]; People v. Jurado (2006) 38 Cal.4th 72, 99 [no evidence that prosecution's decision to seek death penalty after initially indicating that it would not do so was motivated by desire to punish defendant for challenging validity of special circumstances allegation].) These circumstances do not present an arguable issue on appeal.

Suppression Motion

Defendant moved to suppress (Pen. Code, § 1538.5) the blood evidence as the product of a Fourth Amendment violation. At time of his arrest, the officer advised defendant of the implied consent law and defendant refused to take either a breath or blood test. En route to the police station, defendant suggested he would take a breath test, but later stated he changed his mind because he thought police officers might tamper with the sample.

In Schmerber v. California (1966) 384 U.S. 757, the court found no constitutional violation in the warrantless taking of a person's blood sample for chemical testing to determine intoxication, "provided that the taking of the sample is done in a medically approved manner, is incident to a lawful arrest, and is based upon the reasonable belief that the person is intoxicated." (People v. Superior Court (Hawkins) (1972) 6 Cal.3d 757, 761.) Here, defendant relied on Nelson v. City of Irvine (9th Cir. 1998) 143 F.3d 1196 in the trial court. Nelson holds it is unreasonable under the Fourth Amendment to require a blood test where the arrestee has agreed to submit to a less intrusive alternative test of equal evidentiary value. In Ritschel v. City of Fountain Valley (2006) 137 Cal.App.4th 107, the court rejected the Nelson court's analysis as "particularly unpersuasive" because it was not supported by any federal case authority or by California law. (Id. at p. 119-120 [because violation of implied consent law does not violate federal Constitution, evidence is admissible notwithstanding the failure to comply with arrestee's choice of test].) In any event, uncontradicted evidence showed defendant did not clearly request or agree to submit to a breath test. We discern no arguable issue.

Minibike Is a "Vehicle" under Section 23152, Subdivision (a)

As noted above, defendant argued the minibike did not qualify as a "vehicle" subject to the laws against driving under the influence. Section 23152 provides: "(a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle. [¶] (b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle." (Italics added.) Section 670 defines "vehicle" as "a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks." Undisputed evidence at trial established defendant drove something with an engine that sounded like a lawnmower. We discern no arguable issue.

Driving in a Private Lot

Section 23152 applies to vehicles anywhere they can be driven. (See People v. Malvitz (1992) 11 Cal.App.4th Supp. 9, 12.) We discern no arguable issue concerning whether section 23152 is violated by driving while under the influence in a private parking lot.

Sufficiency of Evidence of the Priors

The clerk's transcript contains a complaint and minute orders in Orange County case No. 04CM09225 reflecting defendant pleaded guilty to driving under the influence (§ 23152, subd. (a)) in January 2005. It also contains a complaint, sentencing memorandum, and minute orders in Los Angeles County case No. 6MP05668 reflecting a jury convicted defendant of violating section 23152, subdivisions (a) and (b), in August 2006. Finally, it contains an information, guilty plea statement, and commitment order, reflecting defendant pleaded guilty to DUI in Utah in March 2008. (Utah Code Ann. § 41-6a-502 (1953).) We discern no arguable issue concerning whether sufficient evidence supports the trial court's finding defendant suffered three or more prior convictions within the meaning of section 23550.

Brady v. Maryland (Lost Exculpatory Evidence)

Defendant filed a motion in the trial court for pretrial discovery of exculpatory evidence under Brady v. Maryland (1963) 373 U.S. 83 (Brady). Defendant sought access to his minibike, which he asserted had been impounded, for the purpose of testing and to obtain photographs to "determine [the minibike's] classification" and "of any damage or for proof that none exists." He claimed he contacted the towing company and learned the minibike had been sold at a public auction. He subsequently filed a motion to dismiss the action.

Suppression of material evidence by the prosecution is a denial of due process. (Brady, supra, 373 U.S. 83; Kyles v. Whitley (1995) 514 U.S. 419 [if exonerative evidence is in the hands of the police, nondisclosure is a due process violation even though the prosecutor is unaware of the evidence].) Disclosure is required if the evidence is favorable to the defendant and material on either guilt or punishment. Evidence is favorable if it helps the defendant or hurts the prosecution, but it is material only if, considering the totality of the circumstances, there is a reasonable probability that, had the evidence been disclosed, the result would have been different. (In re Sassounian (1995) 9 Cal.4th 535, 543.) The prosecution also owes a duty to preserve evidence possessing apparent exculpatory value if the defendant would be unable to obtain comparable evidence by other reasonably available means. (California v. Trombetta (1984) 467 U.S. 479.) When a defendant challenges the state's failure to preserve evidence subject to testing, the results of which might have exonerated defendant, the defendant must prove the destruction of the evidence was the result of bad faith. (Arizona v. Youngblood (1988) 488 U.S. 51, 57.)

The minibike did not possess apparent exculpatory value. A police officer and a civilian witness saw defendant drive it and there was no indication it was moved exclusively by human power. A lack of damage to the minibike might have impeached the civilian witness's testimony defendant was involved in a minor accident. But the police observed and recorded minor damage. The exculpatory value of preserving the vehicle for pictures and additional observations was not apparent. Finally, it appears the minibike was towed and sold after defendant failed to pay the towing and storage fees. Defendant did not present evidence of bad faith by law enforcement. No arguable issue is presented.

We discern no other arguable issues defendant could present on appeal. Accordingly, the judgment is affirmed.


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