The opinion of the court was delivered by: Hull , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Christopher Michael Towner of carrying a concealed dirk or dagger (Former Pen. Code, § 12020, subd. (a)(4); count one), driving under the influence of alcohol (Veh. Code, § 23152, subd. (a); count two), and driving while having 0.08 percent or greater blood-alcohol (Veh. Code, § 23152, subd. (b); count three). He admitted a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and a prior driving with blood-alcohol conviction (Veh. Code, § 23540). The trial court struck the prior serious felony conviction for sentencing purposes. (Pen. Code, § 1385.) Defendant was sentenced to state prison for two years on count one and to county jail for 10 days on count three. Sentence on count two was stayed pursuant to Penal Code section 654.
On appeal, defendant contends (1) denial of his new trial motion was an abuse of discretion, and (2) the judgment should be reversed due to witness intimidation by the prosecutor. We affirm the judgment.
On September 12, 2009, at 2:40 a.m., Redding Police Officer Jacob Provencio performed a traffic stop of defendant who was riding his motorcycle in downtown Redding 20 miles per hour over the speed limit.
Defendant told Officer Provencio that he had consumed four glasses of beer at a local bar between 10:00 p.m. and 1:00 a.m. Two preliminary alcohol screening tests performed in the field registered a 0.106 blood-alcohol level. Two evidential breath tests done at the Redding Police Department registered 0.10.
Officer Provencio arrested defendant for driving under the influence. A search incident to arrest revealed a knife concealed in a compartment of his backpack.
After waiving his constitutional rights, defendant told Officer Provencio that the knife "was for personal protection in case any drunk idiots tried to jump him." Defendant did not tell Provencio that he had possessed the knife for a barbecue.
Defendant testified that he had the knife, a spatula, plastic utensils, a two-tine hotdog fork, sandals and a sweatshirt in his backpack. After the barbecue, he forgot to take the utensils out of the backpack. Defendant told Officer Provencio that the knife was for personal protection because he "had forgotten why it was in the backpack" and "was trying to give him what [he] believed was the most reasonable excuse." The knife was enclosed in the sheath when it was purchased.
A licensed nurse, Linda N., who took care of defendant's handicapped child, testified that defendant carried his belongings in a backpack. She saw him with a "regular meat-cutting knife" and a spatula at a barbecue prior to his arrest, but she did not know whether he carried those items in his backpack.
In rebuttal, Officer Provencio testified that he searched the backpack and did not notice any kitchen utensils in it. He would have noted an item such as a two-tine hotdog fork, since it can be used as a weapon.
Defendant contends the trial court abused its discretion when it denied his new trial motion that was based on an allegation of witness intimidation.
Defense counsel made the following offer of proof regarding his witness, Linda N.: "she has observed [defendant] driving a motorcycle, using a backpack to carry his belongings, and that she was present at a barbecue a few days before he was arrested where he had the backpack, had the motorcycle, and had the utensils he was using for the barbecue."
The prosecutor said he was concerned about "how long [Linda N.] has known the defendant," and that, "if she has [known him], I'd like to know that before I begin my cross-examination." The prosecutor added, "there's a possibility, of course, that if she is aware of the defendant's record and the possibility of defendant facing enhanced penalties--as the Court knows, I've been down this road before with people--I'd prefer to know about that ahead of time before asking it, and probably defendant should know about it."
The trial court asked defense counsel to "find out during the break how long they've been acquainted, the nature of the relationship, express that orally to the People, and if we need to discuss it anymore, let me know."
Following the break, defense counsel objected that the prosecutor had insinuated himself into defense counsel's discussion with Linda N. in the hallway outside the courtroom. This exchange ensued:
"THE COURT: Okay. Why did that happen?
"[THE PROSECUTOR]: Your Honor, I went out to go see the witness, Miss--apologize for mispronouncing the name. My question to her was very specific, and that was, how long have you known the defendant? [¶] . . . [¶] My question then consisted of: How long have you known the defendant? Is it a business relationship? She then pointed out she was the nurse for his child. I asked what was wrong with his child and she then correctly pointed out she wasn't comfortable with that and I told her I was fine with that. I told her I didn't need to know, that all I needed to know was, was it a business relationship, and that was it. [¶] . . . [¶]
"THE COURT: Why didn't it just go the way that I suggested; that is, that you secure the information and pass along--
"[DEFENSE COUNSEL]: I started asking her questions and [the prosecutor] came out, stepped in front of me and started asking her questions.
"[THE PROSECUTOR]: That's true, Your Honor. My concern--quite frankly, my concern is that a question was going to be asked in a way or in a manner that would have tipped off an answer for her to give once I had the--once I knew that it was a business relationship, I didn't worry about the rest.
"THE COURT: Okay. Well, first of all, I think, arguably, you're doing it differently than I suggested and directed that it be done was--would fetter counsel's ability. She has a right to talk to her witness in private . . . ."
Later, Linda N. testified on direct examination as follows:
"Q [BY DEFENSE COUNSEL]: Good afternoon, Miss [N.]. How do you ...