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People v. Profitt

California Court of Appeals, First District, Fifth Division

February 27, 2017

THE PEOPLE, Plaintiff and Respondent,
MARVIN DARRELL PROFITT, Defendant and Appellant.


          Order Filed Date: 3/20/17

         Superior Court of Lake County, No. CR931785, Andrew S. Blum, Judge.

          Jason E. Tauches, for Defendant and Appellant.

          Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Leif M. Dautch and Lauren Apter, Deputy Attorneys General, for Plaintiff and Respondent.


         THE COURT:

         IT IS ORDERED that the opinion in the above-entitled matter filed on February 27, 2017, is modified as follows and appellant's petition for rehearing is DENIED.

         On page 7, in Part II.A., a new footnote No. 4 is to be inserted after the third sentence of the first full paragraph and all following footnotes renumbered accordingly. The new footnote shall read:

         4 In a petition for rehearing, Profitt for the first time cited People v. Myles (2012) 53 Cal.4th 1181 as authority that a trial court may bifurcate properly joined charges. In Myles, the trial court bifurcated trial on a set of charges against two defendants arising from a restaurant robbery from trial before the same jury on charges arising from a separate shooting that involved only one of the defendants. (Id. at pp. 1199-1200.) The Myles court suggested that the trial court properly bifurcated the charges (id. at pp. 1201-1203), but the issue on appeal was whether joinder of the charges prejudiced one of the defendants, not whether the trial court had the authority to bifurcate or abused its discretion in bifurcating the charges (id. at p. 1200). Myles is also distinguishable because the bifurcated charges arose from separate incidents, whereas the felony and misdemeanor charges in Profitt's case all arose from a single incident on February 23, 2013.

         The modification effects no change in the judgment.

          BRUINIERS, J.

         Marvin Darrell Profitt was charged with felony driving under the influence of alcohol (DUI) and misdemeanor driving with a license suspended for prior DUI convictions. The trial court bifurcated trial on three prior DUI convictions that were alleged as sentence enhancements for the felony charges, but rejected Profitt's request to also bifurcate trial of the misdemeanor charges with prior DUI conviction elements. In the published portion of our opinion we reject Profitt's contention that the trial court abused its discretion in refusing to bifurcate trial on the misdemeanors. In the unpublished portion of the opinion, we reject Profitt's arguments that he received ineffective assistance of counsel.

         I. Background

         Based on a single incident on February 23, 2013, Profitt was charged with felony DUI (Veh. Code, § 23152, subd. (a);[1] Count 1); felony driving with a blood alcohol content (BAC) of 0.08 percent or higher (§ 23152, subd. (b); Count 2); misdemeanor driving with a license suspended or revoked for DUI (§ 14601.2, subd. (a); Count 3); misdemeanor driving with a license suspended or revoked for driving with an excessive BAC (§§ 14601.5, subd. (a), 13353.2; Count 4);[2] and misdemeanor driving with a license suspended or revoked for other reasons (§ 14601.1, subd. (a); Count 5). As to the felony counts, it was alleged for sentencing purposes (see §§ 23550, 23550.5) that Profitt had three prior misdemeanor DUI convictions (one in 2007 and two in 2009) under section 23152.

         Profitt sought bifurcation of trial on the prior DUI convictions alleged as sentence enhancements to felony Counts 1 and 2. He also sought bifurcation of trial on the three misdemeanor counts to preclude the jury from hearing about prior DUI convictions that were elements of two of the misdemeanors when deciding the felony counts. The court bifurcated trial on the sentence enhancement allegations, but not the misdemeanors. Both the prosecutor and the court questioned whether the court had authority to bifurcate trial of the misdemeanor and felony counts.

         The following evidence was presented at trial. On February 23, 2013, at about 10:00 p.m. in Lakeport, California Highway Patrol Officer Ryan Erickson observed a pickup truck cross a limit line before coming to a complete stop at a stop sign, and later observed the truck's left tires cross over double solid yellow lines as it proceeded down Soda Bay Road. The truck then turned onto a residential street and Erickson thought “perhaps [the driver] would get away with one for the evening. He made it home and he was safe to go.” However, the truck made a U-turn and returned to Soda Bay Road. Erickson testified: “[T]hat immediately alerted me to the fact that perhaps the driver's allowing me to pass so I will no longer be following him.... I recognized that as what I call a cat and mouse game.” Erickson left the road to let the truck pass and then resumed following the truck. “It took [Erickson] a little bit to catch up, ” and he then saw the truck make an abrupt left turn. Erickson activated his emergency lights and pulled the truck over for an investigation.

         Erickson walked to the driver's door and spoke to the driver, Profitt. He noticed Profitt's eyes were red and watery, his breath smelled strongly of alcohol, his speech was slurred, and his demeanor was argumentative, angry or upset. Profitt told Erickson he was on his way home from a casino, he had drunk four Coors Light beers between 5:00 and 9:30 p.m., and his license was suspended. Erickson conducted a number of field sobriety tests (FST's), and Profitt displayed mental and physical impairment in all five tests. After the FST's, Erickson gave Profitt a preliminary alcohol screening (PAS) breath test. At 10:34 p.m., the PAS reading of his BAC was 0.113 percent, and at 10:36 p.m. the reading was 0.109 percent. Erickson concluded Profitt was too impaired to drive and placed him under arrest.[3] Profitt took an evidentiary breath test (EPAS) at 11:00 p.m. and again at 11:04 p.m. The EPAS registered a BAC of 0.13 percent.

         Erickson's vehicle was equipped with a mobile video/audio recording system programmed to retain recordings from one minute prior to activation of the vehicle's emergency lights. The recording of Profitt's traffic stop was played for the jury.

         Anthony Valerio, a senior criminalist from the California Department of Justice with training in forensic alcohol analysis, testified that the PAS and EPAS test results indicated Profitt's BAC was rising during the interval between the tests. For Profitt's BAC to have risen from a hypothetical 0.07 percent when stopped by Erickson to the 0.13 percent EPAS measurement one hour later, Profitt would have had to have drunk approximately three and a half beers (42 ounces of 4.2 percent beer or an equivalent amount of alcohol) over time to get his BAC up to 0.07 percent and then drink the equivalent amount of alcohol all at once just prior to driving so that much of the latter alcohol remained in his stomach at the time of the stop. On cross-examination, defense counsel posited that Profitt might have drunk shots of hard alcohol just before leaving the casino. Valerio said if Profitt did not have the alcohol equivalent of three and a half beers in his stomach when stopped by Erickson, the breath test results and Profitt's performance on the FST's indicated that Profitt-prior to the stop-was too impaired to drive.[4]

         Profitt's Department of Motor Vehicles (DMV) record was admitted in evidence. The record disclosed a 1998 conviction under section 23152, subdivision (a); a 2007 conviction under 23152, subdivisions (a) and (b); and two 2009 convictions for 23152, subdivision (a). The court told the jury the record was relevant only to the misdemeanor license suspension counts and were “not to [be] consider[ed] for any purpose as to the DUI charges, Counts 1 and 2. It has nothing to do with those.”

         The defense presented expert testimony by Jeffery Louis Zehnder, a forensic toxicologist, who opined that Profitt's reported performance on the FST's did not conclusively show he was impaired while driving. Only three of the FST's given (horizontal gaze nystagmus, one-leg stand, and walk and turn) were standardized tests accepted by the National Highway Traffic Safety Administration. While the administered Romberg test was supported by scientific studies and had some value, Profitt's performance on the test did not indicate alcohol impairment. Further, Profitt was 63 years old at the time of the FST's and the walk-and-turn and one-leg tests were not very useful in detecting impairment in older people, who tend to have balance problems without alcohol consumption. Zehnder testified that Profitt's rising BAC level indicated he was absorbing alcohol at the time of the tests, which would tend to overstate BAC results, and Profitt's BAC probably was lower when he was driving than when he was tested. Absorption rates also vary widely among individuals and circumstances, and a person who took “four shots of 12 ounces simultaneously” could reach a peak BAC anywhere as long as an hour and a half thereafter. “[E]specially with [Profitt's] relatively good performance on the [FST's], ... there's no way to conclude he was at or above an.08” when he was stopped.

         The prosecutor began his closing argument by discussing the misdemeanor charges and Profitt's prior DUI convictions. The court again admonished the jury that the DMV record was not relevant to Counts 1 or 2. Regarding felony Count 2, the prosecutor argued that for Profitt's BAC to have been below 0.08 percent when he was driving, the jury would have to believe Profitt had three and a half beers all at once after already drinking three and a half beers, and then “with all this unabsorbed booze sitting in his stomach, he gets in his car and begins to drive... home... clear on the other side of the lake in a ridiculous attempt to race the alcohol home.... [¶]... [¶]... Is that a drinking pattern that we see often?... It is much more probable and... common that a person simply has one for the road, not three and a half for the road, ... [¶]... [and] then it necessarily follows mathematically that he was an.08 or more at the casino before he started driving.” On Count 1, the prosecutor reviewed the evidence that Profitt was too impaired to drive: his Vehicle Code violations while driving, his physical appearance and impairment, and his exercise of poor judgment in choosing to drive after drinking and with a suspended license.

         Defense counsel began his closing argument by critiquing three themes in the prosecution's closing: fear (“we don't want to have those big, bad drunk drivers on the road. Therefore, ... [if y]ou think he's a little bit guilty, convict him”); the misdemeanors (“he's committed prior drunk driving offenses, therefore he must be guilty now... even though the judge has instructed you to the contrary”); and “bad math” (“an assumption... that the absorption rate is a fixed amount for every person”). Counsel conceded guilt on the misdemeanors and repeatedly reminded the jury that the prior DUI convictions could not be considered with respect to the felonies. On the felony counts, he minimized evidence of Profitt's physical impairment during the traffic stop and faulted Erickson for not videotaping the FST's. Counsel also emphasized Profitt's rising BAC results, Zehnder's testimony that absorption rates vary greatly among individuals, and the testing devices' margins of error. He argued it was not a crime to simply drink and drive, and the jury needed to find beyond a reasonable doubt that Profitt was impaired or had a BAC of 0.08 percent or greater while driving.

         In rebuttal argument with respect to the misdemeanor charges, the prosecutor encouraged the jury to look at Profitt's DMV record to see that Profitt “was told... ten times” his license was suspended, but “despite prior warnings, [he] was out on the road again.” He also argued, “[T]he important message that we want to send here is the message to this defendant, ‘Don't do this. This is dangerous. It's so dangerous, it's criminal.' ”

         The jury convicted Profitt on all five counts. Profitt and the prosecution waived their rights to a jury trial on the prior conviction sentence enhancement allegations, and Profitt admitted the allegations. Before sentencing, Profitt retained new counsel and filed a motion for new trial. Profitt argued in part that he received ineffective assistance of counsel because his trial counsel made improper comments during closing argument and failed to request bifurcated trial of the misdemeanors. When the prosecutor noted that Profitt's trial counsel had requested ...

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