(Super. Ct. Nos. 07F04174, 07F06143 & 07F03923)
The opinion of the court was delivered by: Blease , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Freddie Figueroa was charged in an amended information with 12 counts arising from three separate incidents that occurred on March 23 (counts 1-3), April 18 (counts 4-8, and 11), and June 7, 2007 (counts 9-10, 12). The trial court denied defendant's motion to sever, and all 12 counts were tried together. During trial, defendant pleaded no contest to two of the three counts related to the third incident: felony driving under the influence of alcohol (Veh. Code, § 21352, subd. (a); count 9); and felony driving with a blood alcohol level of 0.08 percent or more (id., § 23152, subd. (b); count 10).*fn1 As for the remaining counts, a jury found defendant guilty of inflicting corporal injury on a fellow parent (Pen. Code, § 273.5, subd. (a); count 1)*fn2 ; assault with a deadly weapon (§ 245, subd. (a); count 4); misdemeanor simple battery (§ 243, subd. (e); count 5) as a lesser included offense to inflicting corporal injury on a fellow parent; violating a protective order, a misdemeanor (§ 273.6, subd. (a); count 6); felony driving under the influence of alcohol (count 7); felony driving with a blood alcohol level of .08 percent or more (count 8);*fn3 and two counts of misdemeanor driving with a suspended license (counts 11 and 12). The jury was unable to reach a verdict on two counts of child endangerment (counts 2 and 3), and those counts were dismissed. In a bifurcated proceeding, the jury found true an allegation defendant had a prior conviction for making a criminal threat. (§ 422.) In another bifurcated proceeding, the trial court found true prior DUI convictions alleged in connection with counts 7, 8, 9, and 10.
The trial court granted defendant's motion to strike his prior conviction for making a criminal threat for purposes of the three strikes law and sentenced defendant to an aggregate term of ten years and four months in state prison, consisting of the middle term of three years for assault with a deadly weapon (count 4), a consecutive one year for inflicting corporal injury on a fellow parent (count 1), consecutive terms of eight months for each of the driving under the influence of alcohol counts (counts 7 and 9), plus a consecutive five years for the prior conviction (§ 667, subd. (a)).*fn4
Defendant appeals, contending the trial court erred in admitting evidence of his prior conviction for domestic violence; the admission of such evidence violated his right to due process of law under the state and federal constitutions; his counsel was ineffective in failing to object to evidence defendant tested positive for methamphetamine; the trial court abused its discretion in denying his motion to sever the counts related to the third incident from those related to the first and second incidents; the trial court made various instructional errors; and the trial court erred in denying his motion to vacate the judgment and allow him to withdraw his no contest plea in a prior case.
We shall conclude that each of defendant's contentions lacks merit and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Events of March 23, 2007 (Counts 1-3)
Defendant and Elba Palacios dated for five years. They have two young children together. In March 2007, defendant, Elba, and their children lived together in Sacramento. On March 23, 2007, they arrived home in their minivan after running errands. Elba was in the driver's seat, defendant was in the passenger seat, and the children were in the middle row of seats. While they were still in the car, Elba told defendant she was going to her mother's house and an argument ensued. Defendant attempted to take the key out of the ignition, and Elba grabbed his hand. Elba and defendant "wrestled" inside the car, and defendant struck Elba in the face. Defendant eventually got out of the van and made his way to the driver's side where Elba was seated. Elba locked the doors to the van, and defendant banged on the window. He then kicked it in, sending glass into Elba's face. Elba telephoned the police, and defendant left. The left side of Elba's mouth was swollen, and she had minor cuts on her face from the glass. A few days later, Elba and the children moved in with Elba's mother.
B. Events of April 18, 2007 (Counts 4-8, and 11)
At approximately 1:00 p.m. on April 18, 2007, defendant entered Elba's mother's home without her permission. Elba and the children were shopping at the time. Elba's mother telephoned Elba and told her defendant was there. When Elba's mother told defendant to leave, he became angry and struck her with an open hand four times. Elba returned home shortly after receiving her mother's call. As she entered the house, she saw her mother pulling on the back of defendant's shirt. Defendant struck Elba in the head and arms. Elba telephoned the police, while her mother grabbed defendant's back, attempting to pull him away from Elba. Defendant grabbed Elba's mother by her hair, dragged her outside, and threw her to the ground. As defendant did so, Elba's mother told Elba to leave, and Elba left in her minivan.
Defendant followed Elba in a large pickup truck, striking the rear bumper of her van. Elba stopped, and defendant pulled in front of her. Elba attempted to back up, but the van was still in drive, and it struck the back of defendant's truck. Elba then pulled around the truck and kept driving. Defendant continued to follow her, pulling alongside the van, and hitting the passenger side of the van with the driver's side of the truck. As Elba drove around a curve in the road, defendant struck the driver's side of the van with the right front corner of his truck, pushing two of the van's tires up onto the sidewalk. The van stalled. Elba attempted to get out but the driver's side door would not open, so she got out on the passenger side. She ran to a neighbor's house for help. She was crying and looked scared. She asked the neighbor to call the police, and he did. Meanwhile, defendant took off running. The van was "totaled" as a result of the incident. At 2:50 p.m., the neighbor was in his front yard when he "heard a whole bunch of crashing noises" and saw the truck and the van "both coming down the street and the truck was ramming the van."
A police officer arrived at the scene at 2:55 p.m. Defendant was taken into custody three minutes later, approximately six to eight blocks from the scene. He had three or four fresh scratches on his back and one on his neck. Defendant smelled of alcohol and appeared intoxicated. Defendant's blood was drawn at 5:07 p.m. that evening, and he had a blood alcohol level of 0.23 percent. A person similar in size to defendant would have had to consume between 10 and 13 drinks prior to 3:00 p.m. to have a blood alcohol level of 0.23 percent at 5:00 p.m., assuming the person did not drink any alcohol after 3:00 p.m. Defendant also tested positive for methamphetamine. A person may ingest methamphetamine days prior to a test and still test positive for the drug.
C. Events of June 7, 2007 (Counts 9-10, and 12)*fn5
At 12:40 a.m. on June 7, 2007, a police officer observed a Ford Mustang driven by defendant spin out of control and come to a rest along Highway 99. The officer directed defendant to exit the highway, and he did so. Defendant smelled of alcohol, and a preliminary alcohol screening (PAS) test showed his blood alcohol level was 0.14 percent. A blood sample drawn later that morning revealed defendant had a blood alcohol level of 0.17 percent.
Pursuant to Evidence Code section 1109, the jury was informed: "On December 21, 2005, the defendant was convicted of misdemeanor infliction of corporal injury on a cohabitant or a spouse or a party or a parent of one's child in violation of Penal Code Section 273.5 in Sacramento Superior Court."
Defendant did not testify at trial or present any other defense witnesses. In her closing, defendant's trial counsel argued that Elba lied on the stand in an attempt to "deflect responsibility" away from herself, and that Elba, not defendant, was the aggressor in both the first and second incidents, including the car chase. She further argued that Elba's mother falsely accused defendant of behaving violently because she hated him.
The Trial Court Did Not Abuse Its Discretion
In Admitting Evidence That Defendant ...