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The People v. Michael Lawrence Mcnealley

July 26, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MICHAEL LAWRENCE MCNEALLEY, DEFENDANT AND APPELLANT.



(Super. Ct. No. MCYKCRTR 10-0401)

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

P. v. McNealley

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Michael Lawrence McNealley was convicted after a bifurcated jury trial of driving under the influence of alcohol, with a blood-alcohol percentage of .08 percent or higher, and having sustained three prior driving under the influence convictions within the previous 10 years. (Veh. Code, § 23152, subds. (a) & (b).) The trial court imposed and suspended a three-year prison term and placed defendant on probation for three years with the condition he spend one year in county jail.

Defendant appeals. He contends the trial court's rulings on his motion in limine regarding the reporting witness were in error and chilled his ability to mount a defense in violation of his due process rights. We affirm.

BACKGROUND

Because defendant's assignments of error relate to the trial court's in limine rulings, we set forth the evidence proffered by the parties at the time the rulings were made, not the evidence presented at trial. (People v. Welch (1999) 20 Cal.4th 701, 739 [in reviewing the trial court's ruling, we consider the facts that were before the court at the time of its ruling, not those produced at a later date]; People v. Hernandez (1999) 71 Cal.App.4th 417, 425 [same].)

On January 23, 2010, defendant was arrested for driving under the influence by California Highway Patrol (CHP) officer Jason Morton. Morton had been told by dispatch that a caller had reported to be on the lookout for a silver sport utility vehicle (SUV), driving erratically on US-97, with the last two numbers on the license plate possibly being 9-5. Morton proceeded to US-97 to look for the vehicle.

Morton saw a gray SUV with the last numbers on the license plate being 9-5-2. The driver of the vehicle was driving erratically, repeatedly driving onto and over the painted lane lines. The vehicle's registration tags were also expired.

Morton contacted defendant, who had been driving. There was also a female passenger in the car, who had a suspended driver's license. Morton conducted a field sobriety investigation, after which he determined defendant was under the influence of alcohol. The two preliminary alcohol screens registered .148 and .141. The subsequent chemical breath test registered .12.

In May 2010, defendant's private investigator called a woman named Julia Blacketer. Blacketer said the passenger's brother told her that his sister, Leea, was driving the vehicle at the relevant time. Defendant asked Blacketer to talk to Leea and tell her to accept responsibility for her actions, which Blacketer did. Blacketer tried but Leea said she could not do what defendant was asking because she did not want to pick up another case for driving on a suspended license. Blacketer does not like Leea and told defendant Leea was not good for him, but defendant loves her.

In June 2010, the prosecutor's investigator spoke with the individual who had called to report the possible drunk driver -- Gabriel Trull. Trull stated he had been driving on US-97 when a silver SUV approached at a high speed. The vehicle swerved to the right just before it almost hit his vehicle and a large semitruck. It was too dark to see the person driving the silver SUV. After the near collision, Trull stopped at a rest stop. While there, he saw a man, who reeked of alcohol, leave the restroom and get in the driver's side of the same silver SUV that had nearly hit him. There was ...


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