Drunk Driving lawyers who handle San Diego DUI cases know how San Diego county police try to get the annual MADD award for most San Diego county DUI arrests (not convictions).

A California DUI officer in Northern California, Bryan Pinto, as aaVisalia police officer, received a "California Hero Award" from Mothers Against Drunk Driving and a new assignment from the police department, in recognition for his work in finding and arresting suspected drunken drivers; he arrested 57 DUI suspects in California last year.

The officer returned to duty in 2 1/2 years ago, more than 3 years after the department fired him amid allegations of sexual misconduct with a teenage boy and lying to investigators. Although he was cleared of all criminal charges by a jury, the department and the city of Visalia fought efforts to reinstate Pinto, challenging a Tulare County Superior Court ruling in Pinto's favor and filing subsequent appeals. In Pinto's notice-of-termination letter, then-police Chief Jerry Barker cited several reasons for the firing, adding that Pinto's conduct reflected poor judgment: "Your behavior is conduct unbecoming a member of this department and is contrary to the department's good order, efficiency and protective obligations to all citizens of the public and especially victims of alleged crimes," a letter reportedly said.

His dedication to catching DUI offenders resulted in his being selected as the police department's DUI / Drunk Driving teacher. Speed in making a DUI arrest means an officer can get back on the street and make another DUI arrest quicker. Quick DUI arrests is why you may find yourself in need a DUI Specialist lawyer for the San Diego County area.

San Diego DUI criminal defense lawyers point out the below reference of voltages "drift" in a voting machine when asking what do you think a breath test machine will do, by analogy? If San Diego California DUI breath test data indicates an error - e.g. log shows unstable reference prior to a person being tested - what does this mean in a California drunk driving trial and what is the significance?

Answer: give bad breath test results.

Tuesday saw elections for school boards and city officials throughout Kansas. In Saline, ES&S voting machines in several locations were 'mis-calibrated,' and when the voter touched next to one candidate's name, the 'x' appeared next to another one. One person I talked to said he tried to vote three times before going to the 80-something-year-old election worker, who told him 'It was doing that earlier, but I thought I fixed it.' From the story in today's Salina Journal: 'The iVotronic machines used in Saline County are sold by Elections Systems and Software. In October, the Brennan Center for Justice at New York University School of Law notified 16 secretaries of state, including Kansas Secretary of State Ron Thornburgh, that the machines are known to record votes to the wrong candidate.' The county does calibrate the machines the day before each election, but, '... in conversations with ES&S on Thursday, [the county clerk] was told that the calibration might change during the day. "What they've seen is calibration drift on a unit," Merriman said. "They're fine in the morning, but by afternoon they're starting to lose their calibration."' There was also coverage of the problems when they occurred two days ago."

Filed 1/29/09



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE, )
)
Plaintiff and Respondent, )
) S058472
v. )
)
ERIC WAYNE BENNETT, )
) Orange County
Defendant and Appellant. ) Super. Ct. No. 95ZF007
)

A jury convicted defendant Eric Wayne Bennett of the first degree murder (Pen. Code, § 187, subd. (a)) of Marie Powell Evans and found two special circumstances to be true — that the murder was committed while engaged in the commission of rape (§ 190.2, subd. (a)(17)(iii)) and burglary (id., subd. (a)(17)(vii)). The jury also convicted defendant of several crimes related to his assault of Pamela B., including forcible oral copulation (§ 288a, subd. (c)), rape (§ 261, subd. (a)(2)), first degree robbery within an inhabited dwelling (§§ 211, 212.5, subd. (a), 213, subd. (a)(1)), and first degree burglary of an inhabited dwelling (§§ 459, 460, subd. (a), 461.1). The jury found that defendant personally used a knife when he committed the crimes against Pamela B. (§ 12022, subd. (b).) The jury returned a death verdict. The trial court sentenced defendant to death on the murder count and imposed and stayed a determinate term of 15 years four months for the crimes against Pamela B. This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).) We affirm the judgment.
I. FACTUAL BACKGROUND
A. Guilt Phase
1. Prosecution’s Case
a. Crimes Committed Against Pamela B.
In mid-September 1994, defendant installed flooring at the Costa Mesa home of Mary Beth Baughman. Shortly thereafter, defendant signed a rental contract for an adjoining unit and he, his wife, and two children moved in. Pamela B. lived alone in a small apartment directly behind Baughman’s unit with a driveway separating her unit from defendant’s.
On September 27, about 10:00 p.m., Pamela B. was home alone watching television in her bedroom. As it was a warm evening, Pamela B. had her front door, which opened into her bedroom, open with the screen door closed and latched. Pamela B. saw defendant standing outside on her front porch. She watched him bend over, take his shirt off and wrap it around his head and face “ninja style” so that only his eyes were uncovered. Defendant then charged through the door with a four-inch knife in his hand. Wearing only a pair of black shorts, defendant charged at Pamela B. and pinned her down on top of the bed. Holding the knife to Pamela B.’s neck, defendant told her that he would not hurt her and that he only wanted her money. Pamela B. screamed.
Baughman was inside her living room and heard the scream. She walked out onto her patio and yelled across the fence, “Pam, are you all right?” Baughman thought she heard a response, but could not understand what Pamela B. had said so she called out again. Defendant still had a knife to Pamela B.’s neck and said, “Shit. Tell her you’re okay.” Pamela B. did so and Baughman did not come any nearer.
Defendant again told Pamela B. that he wanted her money. Afraid defendant would harm her if she did not comply, she told him where her purse was. Defendant stayed within a foot of Pamela B. while she retrieved her purse and got her money out of it. After defendant took her money, he got upset and asked for the “rest of it.” Pamela B. told him that was all she had and defendant rolled the money up and put it in his shorts. The shirt began to fall from defendant’s face and, as he tightened it back up, defendant warned Pamela B. not to look at his face. “If you look at my face, I’ve got to hurt you.”
Defendant told Pamela B. he was not done and directed her to get face-down on the bed. Defendant got behind her, put his left arm under her abdomen and pulled her up on her hands and knees. Defendant rubbed her breasts and hips and rubbed his penis against her body. Defendant had a partial erection that he lost when he heard a car drove by. Defendant became angry and said, “Now, you got to suck it.” Although terrified, Pamela B. refused. Defendant told her he would not hurt her, pushed her head onto his penis, and then insulted her about the manner in which she was orally copulating him. After defendant obtained an erection, he pulled Pamela B. to her hands and knees, got behind her, threw her nightgown over her head, and put his penis into her vagina.
After defendant ejaculated, Pamela B. ran out the front door. She ran outside her gate and turned left, near her car. Defendant gave chase and cornered Pamela B. by her car. He lunged at her, causing her to scream, at which point defendant ran away. Pamela B. lost sight of defendant.
Pamela B. ran to Baughman’s unit and banged on her back door. After Baughman opened the door, Pamela B. entered and called 911. City of Costa Mesa Police Officer Mitchell Johnson responded within minutes. Officer Johnson did not see any cars leave the area and felt that the suspect must still be nearby. He quickly searched the area and set up a perimeter within a block of the location. When Officer Johnson met with Pamela B., she was “borderline hysterical” and crying. After calming her down, Officer Johnson was able to obtain a statement after which he took Pamela B. to the hospital for a sexual assault examination.
While Officer Johnson was obtaining a statement from Pamela B. at the apartment, Baughman was outside and saw defendant. Defendant asked what the police activity was about. Defendant said he had been sleeping on the sofa with his baby and the lights woke him up. Baughman told defendant she would rather not say. Defendant was insistent and, after he inquired several more times, Baughman told defendant Pamela B. had been raped. Defendant said that was terrible and left.
A sexual assault examination showed Pamela B. had suffered an abrasion near her vaginal opening and that there was sperm present in the secretions from her vagina. DNA was extracted from the semen.
After the rape, Pamela B. was in physical pain, could not move her right thumb for a week, and had a large bruise on the side of her thigh. She never slept at her apartment again and moved out at the end of October.
b. Evans’s Murder
On September 27, 1994, the same day defendant assaulted Pamela B., he installed flooring at Marie Powell Evans’s new townhouse in Laguna Hills.
On October 13, Evans went to the home of her daughter and son-in-law, Christine and John Hougan, to bring her son-in-law a birthday present. Evans had a dark leather purse with her. Evans left their home at around 8:30 p.m. Around 11:00 a.m. the next morning, Christine received a phone call from Evans’s boss, who told her that her mother had not shown up for work that morning, which was highly unusual. The Hougans worked for the City of Newport Beach Police Department, Christine as a police dispatcher and John as a police officer. Christine called someone from work and requested her mother’s license plate be run to see if there had been a reported traffic accident. Upon discovering that there was no report of an accident involving Christine’s mother, the Hougans went to Evans’s house.
They entered Evans’s patio area and saw that the window screen was off the kitchen window. John Hougan noticed that dust on the windowsill had been disturbed and a plant had been knocked over into the sink leading him to think someone had crawled in through the window. Upon closer inspection, he observed a large amount of blood and a pillowcase on the kitchen floor. He took his wife back to the car and had her wait while he retrieved his gun and returned to the house. John entered the house through the front door, which was closed, but unlocked. There was a bloody bare footprint on the entryway throw rug that was facing downward toward the stairs. John then went downstairs and, when halfway down, saw Evans’s semi-naked body on the floor of the bathroom. After checking the other bedrooms to see if anyone was in the house, he phoned 911.
A rear sliding glass door leading into the master bedroom was found open with the screen door closed; the screen had a cut from top to bottom, leaving an opening large enough for a person to walk through. There was blood on the bed in the master bedroom and signs of a struggle, including a porcelain clock that had been knocked over. In the bathroom next to the master bedroom, Evans was lying on her back with her robe pulled up over her chest. There was blood on the bathroom door, floor, and wall. There was a bloody footprint next to the body and a wet towel, a television, and a pillow on top of Evans’s head. The television’s cord was plugged into a socket in the master bedroom and the television was still on.
There was a bloody footprint in the kitchen and another at the top of the stairs facing downwards, along with some potting soil. In the living room, there were shelves holding several glass decanters. On one of the shelves, there was a ring-shaped impression in the dust as if something had been taken. On the kitchen counter there was a notepad with the name Eric (the same as defendant’s first name) and a phone number, later determined to be defendant’s, written on it. Missing from the house were Evans’s purse and a glass decanter.
An autopsy showed Evans had suffered multiple major injuries. The autopsy determined she died as a result of bruising to her brain due to blunt force trauma. There were pattern marks on her face between the left eye and ear consistent with a blow from a heavy, patterned object. There were multiple skull fractures and tears in Evans’s scalp. Her hands had skin breakage, lacerations, swelling and discoloration, which may have been from an attempt to ward off a blow. There were also marks in Evans’s vaginal area that could have been injuries.
A sexual assault examination recovered sperm from Evans’s anal, perianal, and perivaginal areas as well as her vagina. Sperm was also found on the bed sheets in the master bedroom. DNA was extracted from the sperm.
c. Defendant’s Arrest
Defendant did not return to his job after October 14. On October 18, aware that he had installed carpet in Evans’s home, the police obtained defendant’s fingerprints in an effort to exclude him as a suspect in the murder. Shortly afterwards, defendant and his wife moved out of his apartment without notifying his landlord that he would be moving.
For reasons not explained to the jury at the guilt phase, defendant was arrested on an unrelated charge by the San Diego County Sheriff’s Department. While in custody, defendant’s blood was drawn by a nurse and his DNA was compared to DNA recovered from the two crime scenes and found to match. The probability of a random match with semen and blood recovered from Pamela B. and her home was 1 in 1.2 billion within the general population. The probability of a random match with semen recovered from Evans’s body was 1 in 17 million within the general population. The probability of a random match with semen recovered from Evans’s bed sheets was 1 in 7 million within the general population.
Defendant was arrested on October 31. The prosecutor presented the case to a grand jury, which returned an indictment on January 11, 1995.
2. Defense Case
At a live lineup two and a half months after the attack, Pamela B. was unable to pick defendant as the person who assaulted her. She instead picked another man out of the lineup as the person most resembling her attacker. Nor could she make an in-court identification of defendant as the man who assaulted her. She described her attacker to the police as having a dark complexion, possibly black, with dark brown eyes while defendant had blond-to-brown hair and blue eyes. Defendant presented evidence that none of the fingerprints that were taken at Evans’s house matched his. Defendant also challenged the reliability of the DNA evidence and the probability estimates given by the prosecutor’s DNA experts.
B. Penalty Phase
1. Prosecutor’s Case
The prosecution’s case in aggravation consisted of two witnesses: Alice Ware, Evans’s 82-year-old mother, and Christine Hougan. They described the impact Evans’s death had on them. Additionally, Hougan testified about the impact it had on her to be present when her mother’s body was found and Ware testified about finding out about Evans’s murder over the phone from Hougan.
2. Defendant’s Case
The defense presented testimony about defendant’s childhood. He was raised as a Jehovah’s Witness, although he stopped attending church on a regular basis when he was a teenager and began using drugs. There was testimony of a family history of alcohol and drug abuse. Defendant himself had a significant problem with alcohol and drugs throughout his life. He was diagnosed in grade school as dyslexic. Defendant ultimately dropped out prior to completing high school.
Defendant’s cousin testified that, when she was 11 or 12 years old and defendant was four or five years old, she was taking care of him and gave him a bath. She dried him off and then tried, unsuccessfully, to have sexual intercourse with him. After this incident, defendant engaged in other instances of inappropriate, precocious sexual behavior.
Defendant married Karen Bennett, his second marriage, in December 1991. They had a child together and she had a child from a previous relationship that defendant treated as his own. She testified that she still loved defendant and did not want to seem him executed. She also testified that defendant was a good father to their two boys and she wanted him to continue his relationship with the children. Karen Bennett also testified that their marriage had been rocky at times due, among other things, to defendant’s drug use. She testified that she demanded or asked defendant to commit to stopping his drug use.
Dr. Nancy Kaser-Boyd, a clinical psychologist, testified defendant had expressed guilt about his crimes and the effect his crimes had on his family and the family of the victims. She also testified that defendant exhibited risk factors for acting out sexually. Among the factors were his sexual molestation at the hands of his cousin; defendant’s drug use; his dyslexia and attention deficit hyperactive disorder; and his dysfunctional family. Dr. Kaser-Boyd also testified extensively about the relationship between defendant and his stepson, opining that the child was attached to defendant and identified defendant as his father.
Defendant conceded that he had raped Pamela B. and killed Evans and presented evidence of his remorse. While he was in custody after his October 31 arrest, he returned to the Jehovah’s Witness faith. Within weeks of his arrest, he confessed to his wife that he had killed Evans and raped Pamela B. and told her he wanted to plead guilty to spare those involved the pain of a trial. He cried and said he was sorry to her, their children, his parents, and the family of the victims. Defendant subsequently told his mother the same thing. He also expressed a desire to plead guilty to his attorneys but they, together with his family, sought to convince him to proceed to trial. Defendant’s wife and her grandmother contacted James Waltz, an attorney and a Jehovah’s Witness, and asked him to talk to defendant about whether to plead guilty. Defendant told Waltz that he wanted to plead guilty, but Waltz told defendant to cooperate with his attorneys. Rick Wentworth, an elder in the Jehovah’s Witness church, testified that he had visited defendant in jail numerous times and that they had engaged in Bible study and talked about family. Jenk Janes, a Jehovah’s Witness and recovering addict, testified he took defendant to an Alcoholics Anonymous meeting in August or September 1994. Janes testified that defendant sincerely desired to change his lifestyle and overcome his addiction to drugs.
II. DISCUSSION
A. Pretrial and Guilt Phase Issues
1. Failure to Record Portions of Grand Jury Proceedings
The district attorney sought an indictment from the grand jury. Defendant contends critical portions of the grand jury proceedings were not recorded, thereby violating state law and the Eighth and Fourteenth Amendments to the United States Constitution. Specifically, defendant argues reversal is required because of the failure to record the superior court’s interview of prospective grand jurors and an alleged meeting between the prosecutor and the grand jury. We disagree.
At the time of defendant’s trial, section 190.9 required that, “[i]n any case in which a death sentence may be imposed, all proceedings conducted in the . . . superior courts . . . shall be conducted on the record with a court reporter present.” (Stats 1993, ch. 1016, § 3, p. 5739.) Defendant cites Dustin v. Superior Court (2002) 99 Cal.App.4th 1311, 1321-1323 for the proposition that section 190.9 applies as well to grand jury proceedings in capital cases.
While the federal Constitution does not require that all proceedings be transcribed, it does require that there be a record adequate to permit meaningful appellate review. (People v. Howard (1992) 1 Cal.4th 1132, 1165-1166.) A record is inadequate “only if the complained-of deficiency is prejudicial to the defendant’s ability to prosecute his appeal.” (People v. Alvarez (1996) 14 Cal.4th 155, 196, fn. 8.) It is defendant’s burden to show that any deficiencies are prejudicial. (People v. Young (2005) 34 Cal.4th 1149, 1170.) Inconsequential inaccuracies or omissions are insufficient to constitute prejudice. (Ibid.) Nor will mere speculation suffice. (Ibid.)
a. Interviews of Prospective Grand Jurors
On May 18, 1994, the Orange County Superior Court selected 19 individuals from a roster of 29 nominees to comprise the 1994-1995 grand jury (§ 895). Section 896 requires that the superior court personally interview each prospective grand juror to ascertain whether they possess the qualifications required by section 893. As part of the appellate record completion process, defendant sought to augment the record with transcripts of the superior court’s interview and selection of the grand jury. Neither the interviews nor the selection process were recorded. Defendant argues this constitutes reversible error. We disagree.
Section 190.9 requires that all proceedings be reported in a “case in which a death sentence may be imposed.” The Court of Appeal concluded in Dustin that section 190.9 applies to grand jury proceedings in death penalty cases where indictments are returned. (Dustin v. Superior Court, supra, 99 Cal.App.4th at p. 1322.) That case is unlike this one. There, the Court of Appeal considered a defendant’s pretrial claim that the prosecutor violated section 190.9 by ordering the court reporter to leave while he gave his opening and closing statements to the grand jury. (99 Cal.App.4th at pp. 1314-1315.) Even assuming Dustin was correctly decided, section 190.9 cannot reasonably be interpreted to apply before a “case” even exists. Defendant did not commit his crimes until September 1994, he was not arrested until October 1994, and the case was not presented to the grand jury until January 1995. The “case” could not have been said to exist in May 1994 when the 1994-1995 grand jury was interviewed, selected, and impaneled. Section 190.9 does not impose a duty to record the personal interviews of prospective grand jurors. Nor is there a constitutional violation, as defendant has failed to establish that the absence of the sought record prejudices his ability to prosecute his appeal. (People v. Alvarez, supra, 14 Cal.4th at p. 196, fn. 8.)
b. Alleged Meeting Between Prosecutor and Grand Jury
On Thursday, January 5, 1995, Deputy District Attorney Carolyn Kirkwood presented the state’s case to the grand jury. The next morning, Friday, January 6, Kirkwood gave her closing argument and answered the grand jury’s questions. The foreperson then excused Kirkwood and the court reporter so the jury could begin deliberating. Later that afternoon, Kirkwood and District Attorney Guy Ormes returned to address several written questions the jury had submitted. Afterwards, the grand jury resumed deliberations, but recessed for the day without returning an indictment.
On Wednesday, January 11, Ormes and Kirkwood returned to address more questions submitted by the grand jury. Ormes noted the jury had recessed Friday without returning an indictment and, “Since that time you presented me with a — actually several questions . . . .” Ormes indicated the People were prepared to address the questions by calling additional witnesses. Ormes and Kirkwood first addressed several questions themselves. When addressing one of the questions, Kirkwood remarked, “We received a note from the grand jury on [Monday,] January 9, 1995 . . . .” The People then examined several witnesses, after which Kirkwood made concluding remarks and the jury resumed its deliberations. Later that afternoon, it returned an indictment against defendant.
Defendant moved to dismiss the indictment. He argued that the grand jury indicted him only after the prosecution presented additional, allegedly inadmissible, evidence on January 11. At a hearing on the motion, counsel for both sides discussed whether the jury “refused” to return an indictment on January 6, whether it deliberated on January 9 and 10, and how it transmitted its questions to the prosecution. Defendant asked to examine Ormes and the foreperson about whether the jury deliberated on January 9 and 10, whether it had taken a vote prior to January 11, and whether there were any unreported discussions between it and the prosecutors. The court denied the request, but ordered the prosecutor to produce the jury’s written questions for in camera review.
The court reviewed the written notes in chambers with only the prosecutors present. One note, written by the foreperson, was dated January 9 and contained questions about the People’s DNA evidence, whether there was any non-DNA evidence implicating defendant, and about exculpatory evidence. Another note, also written by the foreperson, was dated January 10 and began, “These 4 points are what I told the panel I had discussed with you.” The note then listed points regarding the DNA evidence, the existence of corroborative evidence, and exculpatory evidence. The note concluded by informing the prosecutor that the grand jury would be convening at 8:45 a.m. on January 11.
As part of the appellate record completion process, defendant sought to augment the record with an explanation of the procedure followed for transmitting the grand jury’s questions to the district attorney, any record of when grand jury proceedings took place, and transcripts of any communications between the grand jury and any prosecutor other than remarks contained in existing transcripts. At a hearing, the superior court appellate clerk explained that there were no other transcripts to produce. She indicated that the district attorney had told her the jury had been deliberating on January 9 and 10, so there was no transcript for those days. The jury wrote questions down on those days, transmitted the questions to the district attorney, and the questions were answered on January 11. The People indicated there was no set procedure for communicating questions from the grand jury to the district attorney and it could therefore not say how it was done in this case.
Defendant contends the record suggests the prosecutor had a number of unreported communications with the grand jury in violation of section 190.9 and Dustin v. Superior Court. He first relies on the January 9 and January 10 written questions, which he claims suggest unreported communications took place because the grand jury had to give the written questions to the prosecutor. He also places great weight on the prosecutors’ readiness to answer the questions on January 11 with live testimony, arguing this demonstrates the existence of unreported communications. We conclude that neither establishes an unreported communication took place. It is just as likely that the grand jury transmitted its notes to the district attorney in an innocuous manner without direct communication, putting the district attorney on notice that it needed to present more evidence to answer the jury’s questions. Moreover, even assuming unreported communications took place, defendant has failed to identify anything other than mere speculation to support his contention that he has suffered prejudice, i.e., that the grand jury's decision to indict may have been in some way influenced by the alleged unreported communications. (People v. Young, supra, 34 Cal.4th at p. 1170.) A defendant seeking postconviction reversal for irregularities in grand jury proceedings must establish that the complained-of errors were structural or resulted in actual prejudice relating to his conviction. (People v. Jablonski (2006) 37 Cal.4th 774, 800.) Defendant does not establish the existence of an irregularity justifying postconviction reversal.
Defendant also points to the opening sentence of the January 10 note. In it, the foreperson wrote “These 4 points are what I told the panel I had discussed with you.” This statement does indicate the foreperson had an unreported conversation with the district attorney. However, even assuming this constitutes error, defendant fails to establish the necessary prejudice to warrant postconviction reversal. (People v. Jablonski, supra, 37 Cal.4th at p. 800; People v. Alvarez, supra, 14 Cal.4th at p. 196, fn. 8.) The statement indicates that the topic of conversation was memorialized in the note. Moreover, the contents of the January 10 note are nearly identical to the substance of the January 9 note, suggesting that the four topics identified in the two notes constitute the extent of the jury’s interest.
2. Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct during the guilt phase of the trial when, in the course of examining a prosecution witness, she implied defendant could, and should, have had the DNA evidence retested. Defendant argues reversal is required because his rights under state law and the Fifth, Sixth, and Fourteenth Amendments to the federal Constitution were violated. We disagree.
Mary Hong, a crime lab forensic scientist put on by the prosecution, testified extensively about DNA, the DNA testing in the case, and on the methods and reliability of DNA testing. On cross-examination, defense counsel elicited that the crime lab, which did the DNA testing, was affiliated with the Orange County Sheriff’s Department. Defense counsel also elicited that the crime lab performed analyses for other police agencies, but that it was not open to the public nor could a private person come in and ask for assistance in doing an analysis.
On redirect examination, the prosecutor explicitly referenced defense counsel’s question about private persons not being able to obtain the crime lab’s assistance in analyzing DNA. The prosecutor then asked, “Are you familiar with a procedure where the defense can come in and actually get a split of the sample of evidence and have it tested privately in any lab that they choose?” Hong answered, “Yes,” and the prosecutor followed up by asking whether “any split [was] asked for in this particular case so that the defense could have retested any particular sample or any particular test . . . ?” Defense counsel objected and asked to approach.
The trial court excused the jury for the day and then heard counsels’ argument. Defense counsel argued that the question was irrelevant and was substantially more prejudicial than probative as the jury would infer that defendant’s failure to retest meant he agreed with the results of the People’s DNA testing. The prosecutor responded that the question was relevant to demonstrate that the evidence was available for retesting if defendant so desired. The trial court said, “That’s in.” The prosecutor then pointed out the defense counsel had opened the door by eliciting testimony about the inability of a private person to seek assistance with analysis. The court said there was a difference between the ability of a private person to request a split of a sample of evidence and whether such a split was sought by defendant in this case. The latter area of inquiry would lead to questions about the credibility and competence of defense counsel and why they did not seek a split for retesting. Accordingly, the trial court ruled the probative value was substantially outweighed by the risk of prejudice and sustained the objection to the question of whether defendant sought a split.
The next morning, defense counsel moved for a mistrial on the basis of prosecutorial misconduct. Defense counsel argued that the prosecutor’s question had implied to the jury that it was defendant’s burden to provide evidence. Failing a mistrial, defense counsel requested an admonition. The trial court denied defendant’s motion for a mistrial, explaining that the brief question did not cause such prejudice that it could not be sufficiently cured with an admonition. Further, the trial court declined to conclude the prosecutor had committed misconduct. The trial court indicated it would admonish the jury, and upon resumption of redirect examination, did in fact admonish the jury that the court had sustained defendant’s objection, that questions are not evidence, and that it should not speculate as to what the answer might have been.
Later, during the redirect examination of Ed Buse, another crime lab forensic scientist, the prosecutor asked, “And there are samples available in the crime lab on this case, so that if there were more probes —.” Defense counsel objected and asked to approach. Defense counsel argued the prosecutor’s question again insinuated that defendant had the burden to retest the DNA sample. The prosecutor responded that she, consistent with the court’s earlier ruling, was not asking whether the defense sought a sample, but rather whether there was evidence available for retesting at all. The trial court nonetheless sustained the objection, ruling that the question improperly implied defendant should have retested the available sample. The prosecutor could ask whether there was a sample available for the crime lab to test, but could not imply defendant could use it to retest if he wanted to.
During the cross-examination of Dr. Bruce Kovacs, the prosecution expert called to testify about the reliability of DNA evidence, defense counsel challenged the testing protocol followed in this case. The defense also asked Dr. Kovacs whether one of the DNA tests had gone wrong because the printout did not show a control blank. Dr. Kovacs responded that, in the specific sample counsel cited, it could not be determined whether something had gone wrong. In her redirect examination the prosecutor asked, “Would there be a way — if somebody wanted to — to see if there was a problem, that they could go back and run a control blank on this?” Defense counsel objected that the question was irrelevant and speculative, and the trial court sustained the objection as speculative. The prosecutor then asked, “Doctor, are you familiar with ways in which a sample can be tested months or years later to determine if there was any problem that existed at the time?,” to which Dr. Kovacs responded, “Yes.” Dr. Kovacs explained how DNA evidence was frozen and kept, allowing retesting. Defendant did not object.
During the cross-examination of defense DNA expert witness, Dr. William Shields, the prosecutor asked whether he, had he been asked to, could have taken evidence, such as the evidence in this case, and run an analysis. Dr. Shields testified that he could do that. The prosecutor then asked whether a National Research Counsel report recommended retesting to ensure quality control, and Dr. Shields agreed that retesting was recommended. The prosecutor continued, “In other words, retesting is a wrongly accused person’s best insurance against the possibilities of being falsely —” Defense counsel objected and the trial court sustained the objection.
During closing arguments, the court granted defense counsel’s request for an order prohibiting the prosecutor from commenting on defendant’s failure to retest the DNA evidence.
Defendant claims the prosecutor’s questions constituted reversible misconduct because they allegedly insinuated defendant should have retested the DNA evidence. We disagree.
A prosecutor’s conduct violates a defendant’s federal constitutional rights when it comprises a pattern of conduct so egregious that it infects “ ‘the trial with unfairness as to make the resulting conviction a denial of due process.’ [Citation.]” (Darden v. Wainwright (1986) 477 U.S. 168, 181.) The focus of the inquiry is on the effect of the prosecutor’s conduct on the defendant, not on the intent or bad faith of the prosecutor. (People v. Crew (2003) 31 Cal.4th 822, 839.) Conduct that does not render a trial fundamentally unfair is error under state law only when it involves “ ‘ “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” ’ [Citations.]” (People v. Espinoza (1992) 3 Cal.4th 806, 820.)
To preserve a claim of prosecutorial misconduct for appeal, “ ‘the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have otherwise cured the harm caused by the misconduct.’ [Citations.]” (People v. Earp (1999) 20 Cal.4th 826, 858.) When a trial court sustains defense objections and admonishes the jury to disregard the comments, we assume the jury followed the admonition and that prejudice was therefore avoided. (People v. Jones (1997) 15 Cal.4th 119, 168.) Whether misconduct warrants a mistrial is a decision which is within the sound discretion of the trial court. (People v. Price (1991) 1 Cal.4th 324, 430.)
Defendant first argues the prosecutor violated the work product privilege by asking questions that sought to invade defense counsel’s impressions or thought process. We initially note that the claim is forfeited because defendant failed to invoke the work product privilege as the basis of his objection or to request an admonition when an admonition would have cured any prejudice. (People v. Earp, supra, 20 Cal.4th at p. 858.) Furthermore, we conclude the prosecutor’s questions did not violate the work product privilege. In rejecting a nearly identical claim, we recently explained that section 1054.6 provides that the privilege applies in criminal cases only to materials or information that are work product as defined in Code of Civil Procedure section 2018.030, subdivision (a). (People v. Zamudio (2008) 43 Cal.4th 327, 351-356.) That subdivision defines work product as a “writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories.” (Code Civ. Proc., § 2018.030, subd. (a), italics added.) The prosecutor’s questions at issue here merely sought to clarify that, contrary to defense counsel’s implication, DNA samples were available for independent testing. As such, the prosecutor’s questions did not elicit or attempt to elicit evidence of a “writing” reflecting defense counsel’s “impressions, conclusions, opinions, or legal research or theories” and therefore did not violate the work product privilege.
Defendant also argues the prosecutor committed misconduct by blatantly ignoring the trial court’s rulings. To the contrary, the record established that the prosecutor was trying to follow what was, at times, less than clear guidance from the court. The prosecutor first asked Hong whether the defense had requested a split for retesting. The court sustained defendant’s objection, but told the prosecutor she could ask whether evidence was available for retesting. During her examination of Buse, the prosecutor asked whether samples were available for further testing. Even though the question was consistent with the court’s prior ruling, the court sustained defendant’s objection and suggested the prosecutor only ask whether evidence was available for the crime lab to retest. After defense counsel elicited testimony from Dr. Kovacs about a problem with one of the DNA tests, the prosecutor asked whether it would be possible to retest a sample to determine whether there had been any problems. Nothing about the question suggested the prosecutor was talking about retesting by the defendant, as opposed to the crime lab. Finally, when examining Dr. Shields, following up on the witness’s testimony that a report recommended retesting to ensure quality control, the prosecutor asked whether, therefore, retesting was a wrongly accused person’s best insurance against being falsely convicted. An objection was sustained and the prosecutor moved on. While the last question could be interpreted as having violated the court’s rulings, the record demonstrates that, overall, the prosecutor was attempting to follow the court’s instructions regarding what was permissible.
Defendant makes a number of other arguments that we briefly address. Defendant claims the prosecutor’s questions violated Griffin v. California (1965) 380 U.S. 609, in which the high court held the prosecution may not comment on a defendant’s failure to testify. (Id. at p. 615.) However, Griffin does not prevent a prosecutor from commenting upon the evidence or upon the failure of the defense to introduce material evidence. (People v. Bradford (1997) 15 Cal.4th 1229, 1339.) Nor did the prosecutor’s questions, as defendant asserts, violate his attorney-client privilege. The privilege protects the disclosure of “a confidential communication between client and lawyer.” (Evid. Code, § 954.) Asking whether there was evidence available for retesting, and even whether the defense sought a split of the sample, did not violate the privilege. (People v. Coddington (2000) 23 Cal.4th 529, 605.) Nor did the prosecutor’s questions shift the burden of proof onto defendant. The prosecutor did not state or imply that defendant had a duty to produce evidence. The complained-of questions merely asked whether there was evidence for retesting. Moreover, the jury was instructed that the prosecution bears the burden of proof. We presume the jury followed the instructions it was given. (People v. Prince (2007) 40 Cal.4th 1179, 1295.)
We conclude the prosecutor’s questions did not constitute reversible misconduct.
3. Jury Instructions Regarding Felony Murder
Defendant claims the trial court violated state law and the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution when it failed to properly instruct the jury on first degree felony murder. Specifically, defendant contends the court failed to instruct the jury that, to find him guilty of first degree felony murder, it must find a concurrence of act and intent. Defendant also argues the instructions failed to properly limit the first degree felony murder doctrine. We disagree.
The prosecutor’s theory was that defendant was guilty of first degree murder both because he had committed premeditated and deliberate murder and because he had murdered Evans during the course of the felonies of rape or burglary. Its theory for the burglary was that defendant entered Evans’s condominium with the intent to steal from her and/or rape her.
After the closing arguments, the jury was instructed pursuant to CALJIC No. 8.21 that “[t]he unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs during the commission or attempted commission of rape or burglary is murder of the first degree when the perpetrator had the specific intent to commit such crime. The specific intent to commit rape or burglary and the commission or attempted commission of such crime must be proved beyond a reasonable doubt.” The jury was also instructed pursuant to CALJIC 3.30 that, for the crimes of forced oral copulation and rape, “there must exist a union or joint operation of act or conduct and general criminal intent.” The jury was instructed pursuant to CALJIC No. 3.31, that, for the “crimes of burglary and robbery and the special circumstance allegations of murder during the commission of burglary and murder during the commission or attempted commission of rape, there must be a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator.”
Defendant contends these instructions failed to convey that, in order to find him guilty of first degree murder, the jury needed to find a concurrence of act and intent — namely, that defendant formed the intent to commit rape or burglary before or during, rather than after, the application of force to the victim. We disagree. We have previously rejected an identical attack on similar instructions. In People v. Pollack (2004) 32 Cal.4th 1153, the defendant was charged with first degree felony murder and, like defendant here, claimed the trial court had erroneously failed to instruct the jury “on the concurrence of act and specific intent required for first degree felony murder . . . .” (Id. at p. 1175.) The Pollack trial court gave the jury the same standard instructions given here, namely CALJIC Nos. 3.31 and 8.21. (Id. at pp. 1175-1176.) We concluded that the instructions given were sufficient. (Id. at p. 1176.) “More specific instructions on this issue are considered pinpoint instructions that the trial court is required to give only upon request [citation] . . . .” (Ibid.) As in Pollack, defendant did not request more specific instructions, nor did he object to the instructions given by the court.
Moreover, even assuming the trial court erred, any error was harmless beyond a reasonable doubt as any defect clearly did not affect the verdict. (People v. Harris (2008) 43 Cal.4th 1269, 1300.) In addition to finding defendant guilty of first degree felony murder, the jury returned a true finding on the charged special circumstances. In order to find true the special circumstance allegations of murder during the commission of burglary and murder during the commission or attempted commission of rape, which it ultimately did, the jury was instructed it had to find there was “a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator.”
Defendant also argues the instructions did not convey that the felony cannot be “incidental” to the murder. However, we concluded in Pollack that the standard instructions adequately inform the jury “that the defendant must apply the force for the purpose of accomplishing the taking.” (People v. Pollack, supra, 32 Cal.4th at p. 1176, italics added.) Defendant contends the instructions failed to inform the jury that the murder and the felony must be part of a “continuous transaction.” To the contrary, the instructions properly informed the jury that, to find defendant guilty of first degree murder, it had to find the killing “occur[red] during the commission or attempted commission of rape or burglary . . . .” (Italics added.) Finally, defendant argues the instructions did not adequately convey that the intent to steal must have been formed before or during the application of force to the victim. We rejected this very argument in Pollack. (Ibid.)
We accordingly conclude the trial court adequately instructed the jury on first degree felony murder.
4. Cumulative Error
Defendant contends the cumulative effect of the various errors committed during the guilt phase requires reversal of his conviction. As we have rejected the individual claims of error, we conclude there is no cumulative error requiring reversal.
B. Penalty Phase Issues
1. Request to Empanel a Separate Jury
Defendant claims the trial court violated state law and his rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution when it denied his motion to empanel a separate jury for the penalty phase. We conclude the trial court did not err.
Defendant’s guilt phase strategy was to argue the state had failed to meet its burden of proving beyond a reasonable doubt that he had committed the charged crimes. After defendant was convicted, his counsel moved to empanel a new jury for the penalty phase, arguing that his penalty phase defense would be inconsistent with what was argued at the guilt phase. At the penalty phase, defendant intended to establish that he had admitted his guilt to his family and counsel early on in the proceedings, that he felt remorse, and that he had wanted to plead guilty, but was talked out of it by his attorneys. Defense counsel argued that, in light of the strategy employed during the guilt phase, the currently impaneled jury would disbelieve defendant and his attorneys.
The trial court denied defendant’s motion, noting that his guilt and penalty phase strategies were not inconsistent, different defense attorneys would be handling the guilt and penalty phases, the court would admonish the jury that defendant’s exercise of his right to a trial was not to be considered during deliberations, and that, even if the two strategies were arguably in tension with one another, tactical decisions do not constitute good cause to empanel a separate jury. The trial court concluded that a new jury was not warranted under state law or under the federal Constitution.
Section 190.4, subdivision (c) provides that the same jury that decided guilt in a death penalty case “shall consider . . . the penalty to be applied, unless for good cause shown the court discharges that jury . . . .” (Italics added.) While a trial court retains discretion to empanel a separate jury, there is a “ ‘ “long-standing legislative preference for a single jury to determine both guilt and penalty.” ’ [Citation.]” (People v. Catlin (2001) 26 Cal.4th 81, 114; People v. Yeoman (2003) 31 Cal.4th 93, 119; People v. Kraft (2000) 23 Cal.4th 978, 1069.) We review a trial court’s ruling on a motion to empanel a separate penalty phase jury for abuse of discretion. (People v. Kraft, supra, 23 Cal.4th at p. 1069.)
Defendant contends that his desire to employ allegedly “conflicting” strategies constituted good cause to empanel a separate penalty phase jury. We disagree. Even assuming defendant’s guilt and penalty phase strategies were in tension with one another, a counsel’s tactical decision to present inconsistent defenses “do[es] not, without more, constitute good cause.” (People v. Catlin, supra, 26 Cal.4th at p. 115; People v. Pride (1992) 3 Cal.4th 195, 252; People v. Taylor (1990) 52 Cal.3d 719, 737-738.) Additionally, defendant’s assertion that his and his counsel’s credibility would be undermined was too speculative to establish sufficient good cause. (People v. Pride, supra, 3 Cal.4th at p. 253; People v. Taylor, supra, 52 Cal.3d at p. 738.)
Nor were defendant’s constitutional rights violated by having the same jury decide the guilt and penalty phases. The high court has repeatedly rejected such claims, explaining that the federal Constitution permits “the same jury [to] sit in both phases of a bifurcated capital murder trial.” (Lockhart v. McCree (1986) 476 U.S. 162, 180; Buchanan v. Kentucky (1987) 483 U.S. 402, 417.) This court has reached the same conclusion. (People v. Catlin, supra, 26 Cal.4th at p. 115; People v. Johnson (1992) 3 Cal.4th 1183, 1244; People v. Balderas (1985) 41 Cal.3d 144, 204-205.) Nothing warrants revisiting the issue.
We therefore conclude the trial court did not err when it denied defendant’s motion for a separate jury.
2. Exclusion of Defendant’s Execution-impact Evidence
Defendant contends the trial court violated state law and his constitutional rights when it excluded an expert’s testimony about the impact defendant’s execution would have on his son and stepson. Defendant argues that the testimony should have been permitted as mitigation evidence indirectly relevant to his character. We disagree.
During the penalty phase, the defense indicated its intent to have Dr. Kaser-Boyd testify about the effect defendant’s execution would have on his children. The prosecutor indicated she would object to such testimony because it would be speculative and would constitute irrelevant execution-impact evidence. After some discussion between counsel and the court, defense counsel asked the court to defer ruling so that he could talk with Dr. Kaser-Boyd to get a better sense of the possible testimony.
The next morning, defense counsel told the court Dr. Kaser-Boyd would testify that, when a child loses a parent for any reason, “there is a feeling of abandonment and grief . . . that often can interfere with normal development” and result in feelings of anxiety or distrust, whereas those feelings would be less if the defendant were sentenced to life without parole. The prosecutor objected to the proposed testimony because it would constitute impermissible execution-impact evidence and would be speculative. The prosecutor also argued that the effect that losing one’s parent would have on a child was not a proper subject for expert testimony because the jury was capable of considering the impact on its own. The trial court sustained the prosecutor’s objection and excluded the evidence, but it made clear that the defense would still be able to solicit testimony from Dr. Kaser-Boyd regarding defendant’s character, nature, and potential for future contribution.
We conclude the trial court did not err. The impact of a defendant’s execution on his or her family may not be considered by the jury in mitigation. (People v. Smith (2005) 35 Cal.4th 334, 366-367; People v. Smithey (1999) 20 Cal.4th 936, 1000; People v. Ochoa (1998) 19 Cal.4th 353, 454-456 (Ochoa).) In Ochoa, we explained it is a defendant’s background and character, and “not the distress of his or her family,” that is relevant under section 190.3. (19 Cal.4th at p. 456.) We distinguished between “evidence that [a defendant] is loved by family members or others, and that these individuals want him or her to live. . . . [and evidence about] whether the defendant’s family deserves to suffer the pain of having a family member executed.” (Ibid.) The former constitutes permissible indirect evidence of a defendant’s character while the latter improperly asks the jury to spare the defendant’s life because it “believes that the impact of the execution would be devastating to other members of the defendant’s family.” (Ibid.)
In arguing that the trial court erred when it excluded part of Dr. Kaser-Boyd’s testimony, defendant contends it constituted permissible evidence of defendant’s character. We disagree. As defense counsel told the trial court, Dr. Kaser-Boyd intended to testify that defendant’s execution would have a “damaging effect” on his children and the children would have “a feeling of abandonment and loss” requiring therapy and intervention. Such testimony, rather than “illuminat[ing] some positive quality of the defendant’s background or character” (Ochoa, supra, 19 Cal.4th at p. 456), was impermissible execution-impact evidence intended to make the jury feel “sympathy for . . . defendant’s family.” (Ibid.)
Defendant alternatively argues that, even if the testimony constituted execution-impact evidence, the trial court should have nonetheless allowed it. Defendant acknowledges we rejected an identical claim in Ochoa, but he argues our decision was wrongly decided for several reasons. None are persuasive.
Defendant first asserts that Ochoa conflicts with the high court’s decision in Payne v. Tennessee (1991) 501 U.S. 808. There, the high court held that victim-impact evidence is admissible during the penalty phase. (Id., at pp. 811, 829.) Defendant argues the high court’s decision contains an implicit recognition capital defendants have the right to introduce execution-impact evidence. To the contrary, the high court made clear, consistent with Ochoa, that a defendant must be allowed to introduce mitigating evidence “concerning his own circumstances.” (Payne, supra, 501 U.S. at p. 822, italics added.) As we have explained, execution-impact evidence is irrelevant under section 190.3 because it does not concern a defendant’s own circumstances but rather asks the jury to spare defendant’s life based on the effect his or her execution would have on his or her family. (Ochoa, supra, 19 Cal.4th at p. 456.) We further concluded that nothing in the federal Constitution requires a different result (id., at p. 456) and defendant identifies no reason to reconsider our conclusion.
Defendant next argues section 190.3, which permits the prosecutor and defendant to introduce evidence “as to any matter relevant to aggravation, mitigation, and sentence,” should be construed to permit execution-impact testimony as evidence relevant to mitigation and sentence. We rejected this construction in Ochoa, supra, 19 Cal.4th at page 456, and we see no reason to revisit the issue. Defendant’s argument rests on the use of the word “mitigation” in statutes governing determinate sentencing (§ 1170) and probation (§ 1203). Neither statute is analogous to section 190.3. Unlike those statutes, section 190.3 identifies examples of matters relevant to aggravation, mitigation, and sentence including, but not limited to “the circumstances of the present offense, any prior felony conviction . . . , and the defendant’s character, background, history, mental condition and physical condition.” We concluded that, “[i]n this context, what is ultimately relevant is a defendant’s background and character — not the distress of his or her family.” (Ochoa, supra, 19 Cal.4th at p. 456, italics added.) The statutes cited by defendant have no bearing upon this court’s construction of section 190.3.
We conclude the trial court did not err when it excluded the portion of Dr. Kaser-Boyd’s testimony concerning the effect defendant’s execution would have on his children.
3. Other Penalty Phase Evidentiary Rulings
Defendant contends the trial court made four erroneous evidentiary rulings that allowed the prosecutor to wrongly impeach defendant’s mitigation witnesses. Defendant claims these rulings violated state law and the federal Constitution requiring reversal of the penalty verdict. We disagree.
While a capital defendant must be permitted to offer any relevant mitigating evidence (§ 190.3; People v. Marlow (2004) 34 Cal.4th 131, 152; Skipper v. South Carolina (1986) 476 U.S. 1, 4-8), this does not “ ‘abrogate[] the California Evidence Code.’ [Citation.]” (People v. Phillips (2000) 22 Cal.4th 226, 238.) The trial court retains the discretion to exclude irrelevant evidence. (People v. Marlow, supra, 34 Cal.4th at p. 152.) We address each challenged ruling in turn.
a. Direct Testimony of Defendant’s Mother
Defendant’s mother was the first defense witness. She testified after Christine Hougan testified about the impact her mother’s death had on her. Defense counsel asked defendant’s mother whether there was “something you wanted to say first before we got to the formal questioning?” The prosecutor objected that there was no question pending and the trial court sustained the objection. Defense counsel then asked, “Did hearing Christine Hougan’s testimony move you to want to say something?” Defendant’s mother responded “Yes” and defense counsel inquired “What’s that?” The prosecutor objected and the trial court sustained the objection on relevance grounds. The parties then approached the bench.
The trial court said it suspected that defendant’s mother, like everyone in the courtroom, felt bad for Christine Hougan, but the fact that she felt sorry for the victim’s family was neither relevant nor admissible as mitigating evidence. Defense counsel argued that the testimony was relevant to the credibility of defendant’s mother. Counsel explained that defendant’s mother would testify that it was very hard and that “if she could undo it herself, she would.” The trial court ruled that defense counsel was trying to demonstrate the character of defendant’s mother, which was irrelevant.
Defendant contends the trial court erred by excluding relevant evidence concerning the credibility of defendant’s mother, violating his rights under state law and the federal Constitution. We disagree. Evidence Code section 780 permits credibility evidence “that has any tendency in reason to prove or disprove the truthfulness of [the witness’s] testimony.” (Italics added.) Defendant does not explain how his mother’s desire to “undo” the murder was relevant to her truthfulness. The trial court did not abuse its discretion in concluding the testimony was irrelevant. (People v. Marlow, supra, 34 Cal.4th at p. 152.)
b. Direct Testimony of Rick Wentworth
Rick Wentworth, an elder in the Jehovah’s Witness church, was called as a defense witness. Wentworth testified that he was asked to visit defendant in jail and that they established a relationship. He testified that defendant expressed an interest in Bible study and that he visited defendant about three times a month over the previous year and a half. Wentworth and defendant discussed family, friends in the congregation, and then had a formal study. Defense counsel then asked Wentworth whether defendant discussed any concerns about his own plight and Wentworth answered “no.” Defense counsel asked “What areas has he expressed concern about to you?” The prosecutor objected and asked to approach the bench. Defense counsel said that Wentworth would testify that defendant had “expressed concern about his family — that’s all — and how they’re handling it.” The prosecutor said the testimony constituted improper testimony about the impact on defendant’s family and was also hearsay. The trial court agreed that it appeared to be hearsay. Defense counsel replied that the testimony fell into the state of mind exception (Evid. Code, § 1250). The trial court responded that even so, it was irrelevant.
Defendant argues that the trial court erred and we agree. Evidence that defendant was concerned about how his family was doing was relevant in mitigation “because it constitutes indirect evidence of the defendant’s character.” (Ochoa, supra, 19 Cal.4th at p. 456.) However, even assuming the error violated defendant’s constitutional rights, the erroneous exclusion of the evidence was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Cole (2004) 33 Cal.4th 1158, 1195.) Defendant introduced ample alternative evidence of his relationship with his family. Defendant’s wife testified extensively about her love for him, how he had wanted to plead guilty to avoid causing more pain for his family, his character, and his relationship with her and with his children. Additionally, Dr. Kaser-Boyd testified at length about the children’s bond with defendant, their love for him, and how they would benefit from a continuing relationship if he were allowed to live. Thus, even without the excluded testimony, the jury was presented with substantial evidence of defendant’s relationship with his family and his concern for them. There is no reasonable possibility that the jury would have returned a different sentence even if Wentworth had been permitted to testify that defendant had inquired after his family’s well-being.
c. Cross-examination of Defendant’s Wife
During the prosecutor’s cross-examination of defendant’s wife, the prosecutor asked whether she was encouraging the relationship between defendant and his children because she thought it would help him and she answered, “No, not true at all.” The prosecutor then asked whether she had ever brought the children to court and she said that, while she had not, someone else had. The prosecutor asked “Was the purpose of bringing your children here to court to give —,” at which point the court interjected that the prosecutor’s question called for speculation because the witness had testified that she did not bring the children to court. The prosecutor continued cross-examining defendant’s wife who testified that she was aware the children had been brought to court. The prosecutor then began, “You relinquished the children to somebody —,” whereupon defense counsel objected and asked to approach the bench.
Defense counsel argued the prosecutor was improperly insinuating that the children were “brought to court to be spectacles to the jury which I think is improper and prejudicial and has very little probative value.” The prosecutor countered that, “If she allowed the children to be brought to court and knew that was the purpose it goes to her bias and goes to her willingness to use her kids for show.” The prosecutor also pointed out that defense counsel had mentioned the children’s presence in court in the opening statement. The trial court ruled that the prosecutor could ask whether defendant’s wife allowed the children to be brought to court, but not whether they were brought by another person. The prosecutor continued his cross-examination, asking whether defendant’s wife had allowed the children to be brought to court, to which she answered “Yes.”
Defendant argues the trial court erred in admitting irrelevant testimony that was more prejudicial than probative. We disagree. The question was relevant to the witness’s credibility. Defendant’s wife had testified that she encouraged the contact between defendant and his children and that she wanted to stay married because she thought it would help defendant. Whether she also intended to help him by encouraging his relationship with his children or allowing them to be brought to court was relevant to her credibility. (Evid. Code, § 780, subd. (f).) We also disagree that the question and witness’s response were more prejudicial than probative. There was no risk of prejudice since, even without the testimony, the jury could have inferred from the children’s presence in court that their mother had allowed them to attend. The testimony, on the other hand, was probative of the witness’s credibility. The trial court did not err.
d. Cross-examination of James Waltz
James Waltz, an attorney and a Jehovah’s Witness, was called by the defense and testified on direct examination that he had been asked by defendant’s wife’s grandmother to speak with defendant in jail regarding a disagreement between defendant and his attorneys over whether defendant should plead guilty. Waltz testified that he advised defendant of the legal and religious aspects of going to trial, ultimately recommending that defendant cooperate with his attorneys.
On cross-examination, Waltz acknowledged that he knew defendant had been charged with a capital crime when he went to meet with him. He also testified that he was a devout member of the Jehovah’s Witness church. The prosecutor then asked a series of questions about whether Waltz was personally opposed to the death penalty. Defense counsel objected on relevance grounds, but the objection was overruled. In response to a question asking whether he would “ever vote for the death penalty?,” Waltz answered “No.” The prosecutor continued, “And isn’t that, in part, your Jehovah Witness connection with the defendant and your opposition to the death penalty, aren’t those really the reasons why —,” to which Waltz responded, “I’m not opposed to the death penalty.” The prosecutor followed up, “You just personally would never vote for it. Is that right?” and Waltz answered, “Correct.”
Defendant contends the trial court erred in permitting the prosecutor to ask these questions, arguing that the testimony was irrelevant and more prejudicial than probative. We disagree. The witness’s personal philosophical opposition to the death penalty is relevant to his credibility. (Evid. Code, § 780, subd. (f); see People v. Mickle (1991) 54 Cal.3d 140, 196 [expert’s philosophical views on capital punishment might disclose bias].) Defendant’s claim that the testimony was more prejudicial than probative is forfeited by his failure to object on that ground at trial. (People v. Ashmus (1991) 54 Cal.3d 932, 972, fn.10.) Even were the claim not forfeited, it is without merit. The value of giving the jury a full and accurate view of Waltz’s credibility was not substantially outweighed by the probability of a substantial danger of undue prejudice. (Evid. Code, § 352.)
Defendant claims the above evidentiary rulings, singly and cumulatively, violated his constitutional rights. We disagree. The trial court’s exclusion of Wentworth’s statement was the only error and it does not require reversal.
4. Prosecutorial Misconduct During Cross-examination
Defendant argues that, during the cross-examination of two defense witnesses, the prosecutor committed misconduct by improperly insinuating defendant had committed other crimes. He contends the alleged misconduct violated state law and the federal Constitution requiring reversal. We disagree.
a. Background
Defendant identifies four alleged examples of misconduct. The first instance occurred during the prosecutor’s cross-examination of Jenks Janes, a Jehovah’s Witness and recovering addict who testified on direct examination that he took defendant to an Alcoholics Anonymous meeting in August or September 1994. On cross-examination, Janes testified that defendant wanted to go to the meeting because he wanted to turn his life around and that Janes believed defendant to be sincere. The prosecutor then asked whether defendant had expressed any other reason for going to the meeting and whether defendant had told Janes that he had been ordered to attend such meetings. Janes answered “no” to both questions. The prosecutor sought to have a document marked as an exhibit and the court asked the attorneys to approach the bench.
At sidebar, the prosecutor said she had a certified copy of a court order, dated October 11, 1994, requiring defendant to attend two Alcoholics Anonymous meetings per week. She intended to ask the witness whether defendant had ever told him that he had been ordered to attend meetings. Defense counsel argued the document was hearsay and pointed out that the order’s date was after the meeting discussed by the witness. The prosecutor noted the timing did not mean defendant was not aware, prior to the order, that he would be ordered to attend the meetings. Defense counsel argued it was irrelevant and requested an admonition because the reference to the order had “created a false impression of the facts.” The prosecutor said defendant had been arrested for driving under the influence in August 1994 and one could infer he had a motive for attending the meetings other than turning his life around.
The court was dubious of the prosecutor’s rationale and was concerned about the order being dated months after the Alcoholics Anonymous meeting about which the witness was testifying. The trial court said it would admonish the jury that there was no order that defendant attend an Alcoholics Anonymous meeting in August 1994. While the court acknowledged that evidence of defendant’s arrest was relevant to defendant’s motivation for attending the meetings, it concluded that the prosecutor’s mention of a court order suggested that not only had defendant been arrested, but that he had also been convicted and had a prior crime. Accordingly, the court concluded that further testimony about the arrest or the order would be more prejudicial than probative.
The trial court admonished the jury, reminding them that questions are not evidence and that they should not make any assumptions based on a question being asked. Additionally, the court told the jury that “[s]pecifically as to any court orders, you should disregard any question with respect to that and not draw any inferences that there was ever any court order.” In response to the defense counsel’s request, the court further clarified that, “[y]ou should not assume that because there is no evidence that there was such a court order.” The cross-examination proceeded and the prosecutor did not return to the topic.
The second alleged instance of misconduct occurred later the same day during the prosecutor’s cross-examination of defendant’s wife. On direct examination, defendant’s wife testified defendant told her, after he had been arrested for murdering Evans, that he had also raped Pamela B. On cross-examination, the prosecutor inquired about the night defendant raped Pamela B. After asking some initial questions about the events of the evening, the prosecutor asked whether the witness suspected defendant had committed the rape and defendant’s wife answered “No.” The prosecutor then asked, “Does he have a ninja mask?” The witness answered, “No.”
The third alleged instance of misconduct also occurred during the cross-examination of defendant’s wife. The prosecutor questioned defendant’s wife about defendant’s drug use. The witness testified defendant used drugs throughout most of her pregnancy with their younger child and during his relationship with his stepson. The prosecutor asked whether defendant was “spending the money that he made at work, in part, on drugs.” The witness responded, “Some of it.” After eliciting testimony that defendant and his wife had been experiencing financial problems and that it was expensive to raise two children, the prosecutor asked, “[b]ut he was spending some of the money on his choice, which was methamphetamine. Is that right?” The witness answered, “Yes.” The prosecutor asked, “How was he getting all this money to support this drug habit that he had?” and the witness responded, “From work.” Later the prosecutor asked a series of questions about defendant’s conduct around the time of the rape and the murder in an effort to show that defendant was not remorseful or affected by the crimes he had committed. As evidence, the prosecutor elicited testimony that defendant had, in the days after killing Evans, purchased a brand new Toyota, was not “crying himself to sleep at night,” and took his wife out for a romantic dinner.
The fourth alleged instance of misconduct also came during the cross-examination of defendant’s wife. The prosecutor asked defendant’s wife a series of questions about photographs of defendant and his family that had been admitted into evidence. The prosecutor elicited that one of the photographs, taken in 1991, showed defendant with long hair. The prosecutor then began to show the witness a photograph to see whether it accurately reflected the way defendant used to look. Defense counsel requested a sidebar at which she challenged the relevance of the photograph. The prosecutor explained the photographs showed defendant had changed his appearance, including the length and color of his hair, from time to time. The prosecutor argued defendant’s altering of his appearance “shows a manipulative kind of character.” The trial court was unconvinced, but did not rule on the objection nor did defendant press for a ruling. Back in front of the jury, the prosecutor asked the witness whether defendant had changed his appearance. Defense counsel objected on relevance grounds and the trial court sustained the objection.
At the conclusion of the day’s testimony, after the jury had been excused, the trial court indicated it had some concerns. The trial court said that, during the guilt phase closing arguments, the prosecutor told the jury, “I’m sure you have many questions in your mind. If you don’t now, you will in the course of deliberation. And at the conclusion of this phase, the next — I won’t be able to talk to you at the conclusion of this phase. But at the end of your service on this case, I’ll be available to answer any questions that you have.” The next day, defense counsel objected and requested an admonition, arguing that the prosecutor’s closing argument had implied that there was additional evidence indicating defendant’s guilt that the prosecutor could discuss with the jury at the conclusion of the case. The prosecutor explained that she was merely referring to a general ability to talk to the jury and answer any procedural questions. The trial court credited the explanation and denied defendant’s request for an admonition and a mistrial.
The trial court now expressed its concern that, in light of the prosecutor’s comments during the guilt phase closing argument, the questions about defendant changing his appearance and about the source of his money could invite a defense argument that the jury was being urged to speculate whether there were other crimes. The prosecutor responded that, regarding defendant’s finances, she was merely trying to show that defendant was choosing to spend his income from work on drugs rather than on his children, and not to imply anything else. Regarding her comments at sidebar about how defendant’s change in appearance could be evidence of manipulative behavior, the prosecutor said she noticed the way the court looked at her and she decided to “rethink that area.” Regarding the questions about the “ninja mask,” the prosecutor argued that whether defendant’s wife noticed a mask went to the witness’s credibility. Defense counsel pointed out that there had never been testimony about a mask, but rather of a T-shirt that was tied around defendant’s face “ninja style.” The court indicated it had no problem with the ninja question in light of Pamela B.’s testimony. Defense counsel explained that she did not object to the question about defendant’s spending of money because it was phrased in a way that made it clear that it referred to defendant’s decision to spend money on drugs rather than his children and “the answer was not a problem.” The court adjourned for the day.
The following morning, defense counsel moved for a mistrial based on prosecutorial misconduct. Defense counsel identified four alleged instances of misconduct: (1) the prosecutor’s mention of a court order in relation to defendant’s motive for attending an Alcoholics Anonymous meeting; (2) the prosecutor’s question about a ninja mask; (3) the prosecutor’s questions regarding where defendant got the money to purchase drugs and regarding his purchase of a new Toyota; and (4) the questions regarding defendant changing his appearance. Defense counsel argued that, cumulatively, the prosecutor’s questions invited the jury to draw an inference that “this person is going out with a ninja mask and other crimes are being done . . . and there are all kinds of crimes nobody knows about . . . .”
The prosecutor responded that the questions regarding defendant’s motive for going to the Alcoholics Anonymous meetings were relevant and reasonable in light of the timing of defendant’s arrest and Janes’s memory of the timeline. She also pointed out that the trial court had admonished the jury to disregard the mention of the court order. Regarding the reference to the ninja mask, the prosecutor pointed out that Pamela B. had herself described the face-covering defendant was wearing during the rape in similar terms. With regard to defendant’s spending, the prosecutor explained that she wanted to show defendant was choosing to spend his money on drugs, rather than on his children, and that her question about where the money came from was merely to see whether defendant had been taking the money from other sources such as a savings account or an inheritance. With regard to defendant changing his appearance, the prosecutor pointed out that Pamela B.’s neighbor had told the police that she thought defendant’s wife dyed his hair after the rape. The prosecutor thought evidence of defendant changing his appearance, especially with his wife’s help, went both to defendant’s lack of remorse as well as his wife’s bias.
After listening to both counsels’ arguments, the trial court concluded that there was not sufficient evidence to demonstrate prosecutorial misconduct and denied the request for a mistrial. The trial court concluded that evidence of defendant spending money on drugs instead of his children despite limited financial resources was probative. Additionally, evidence that defendant changed his appearance immediately after the rape was probative of his lack of remorse. While the court felt that evidence of defendant’s motivation for attending Alcoholics Anonymous meetings was relevant, it concluded that evidence about the court order was more prejudicial than probative. However, the court noted that it had already adequately admonished the jury. Defense counsel asked the court to admonish the jury that there was no other criminal activity related to other factors in the case and, in response, the court invited defense counsel to submit a proposed special instruction. The court, at defense counsel’s request, also directed the prosecutor to limit questions about defendant’s finances to the limited nature of the resources, rather than the source of the money. The court also excluded any further questioning with respect to defendant’s occasional changing of his appearance, but concluded that evidence of defendant changing his appearance immediately after the rape was permissible. The penalty phase proceeded.
Defendant did not submit a proposed instruction to the trial court admonishing the jury that there was no other criminal activity related to other factors in the case.
b. Analysis
Defendant argues that the prosecutor committed prejudicial misconduct by asking questions of Jenks Janes and defendant’s wife that improperly implied defendant had committed other crimes. He further argues the trial court erred by denying his motion for a mistrial and concludes that the misconduct and denial of his motion for a mistrial require reversal of the penalty verdict. We disagree.
At the outset we note defendant has forfeited this claim. After the trial court denied his motion for a mistrial, defendant asked the court to admonish the jury that there was no other relevant criminal activity. In response, the court invited defendant to submit a proposed instruction to give to the jury. Such an instruction could have cured any potential harm by informing the jury there was no evidence defendant had committed other crimes. Defendant’s failure to submit an instruction, even after the court invited him to do so, forfeits the claim. (People v. Earp, supra, 20 Cal.4th at p. 858.)
Even were the claim not forfeited, we conclude it is without merit. Regarding the cross-examination of Janes, defendant argues the prosecutor committed misconduct by attempting to elicit inadmissible evidence about defendant’s conviction for driving under the influence. We disagree. The point of the prosecutor’s question was to establish that defendant had an alternative motive for going to Alcoholics Anonymous meetings, not to prove he had been convicted of another crime. This was, as the trial court acknowledged, a logical inference that reasonably could be drawn from the evidence. (People v. Stewart (2004) 33 Cal.4th 425, 491-492.) Additionally, even if the question was improper, defendant suffered no prejudice. The trial court sustained defendant’s objection and admonished the jury to disregard the question and not draw any inferences from it. We assume the jury followed the admonition and that prejudice was therefore avoided. (People v. Jones, supra, 15 Cal.4th at p. 168.) Moreover, while the question made reference to defendant being “ordered” to go to meetings, it made no mention of a court order. Further, the court specifically admonished the jury there was no evidence of a court order. Thus, there is no “ ‘reasonable likelihood that the jury construed or applied any of the [prosecutor’s] complained-of remarks in any objectionable fashion.’ [Citation.]” (Ochoa, supra, 19 Cal.4th at p. 427.)
Regarding the prosecutor’s mention of a “ninja mask,” defendant argues the prosecutor insinuated defendant kept a mask to “disguise himself while committing more crimes.” To the contrary, the brief reference obviously alluded to Pamela B’s description of the disguise defendant used during the sexual assault. For that reason, the trial court stated, “I don’t see the ninja mask question being particularly significant.” The question did not constitute misconduct. Nor is there a reasonable likelihood the jury interpreted the question to mean defendant kept a ninja mask for use in a crime spree.
Regarding the question about defendant’s money, defendant argues the prosecutor implied defendant “was out committing other robberies and burglaries” to obtain money. We disagree. With regard to the source of defendant’s money, in context it is clear the question was part of an effort to show defendant chose to spend his limited resources on drugs rather than on his children. Indeed, in explaining her decision not to object to the question, defense counsel admitted as much. The question therefore did not constitute misconduct. Moreover, defendant suffered no prejudice. It was a single, brief question, defendant’s wife’s answer indicated the source of defendant’s money was his job, and the prosecutor moved on without following up.
The same is true of the prosecutor’s reference to defendant purchasing a new Toyota. The prosecutor was asking questions in an effort to show defendant was not acting remorseful or as if he had been affected by his commission of the crimes. To that end, the prosecutor elicited that defendant had taken his wife out for a romantic dinner, was sleeping well at night, and purchased a new Toyota. The reference to defendant purchasing a new Toyota was clearly intended to establish defendant was living a normal life, not that he was spending money other than that earned at work. The statement did not constitute misconduct. Additionally, there is no reasonable likelihood that the jury construed the stray reference to the new Toyota to mean defendant was engaged in a crime spree to get more money.
Regarding the question about the change in appearance, defendant argues the prosecutor committed misconduct by insinuating defendant was disguising himself in order to commit other crimes. We disagree. At sidebar, the prosecutor explained she thought defendant’s changes in appearance were probative of his “manipulative kind of character.” While the trial court was doubtful of the prosecutor’s theory of relevance, it did not rule on defendant’s objection nor did defendant press for a ruling. Back in front of the jury, the prosecutor asked the witness whether defendant had changed his appearance over the course of their relationship. Defense counsel immediately objected and the trial court sustained the objection. There was no misconduct. First, the prosecutor did not insinuate defendant was disguising himself to commit other crimes and there is no reasonable likelihood the jury construed her question in such a fashion. Second, the prosecutor did not violate a court order as the trial court did not rule on defendant’s objection and defendant failed to press for a ruling. Third, even if the prosecutor’s question was misconduct, defendant suffered no prejudice. It was a brief question, defendant’s objection was immediately sustained before the witness answered, and the prosecutor did not return to the subject.
Because we conclude the complained-of remarks did not constitute misconduct, either cumulatively or on their own, we also conclude the trial court did not err in denying defendant’s motion for a mistrial. That decision is within the sound discretion of the trial court (People v. Price, supra, 1 Cal.4th at p. 430) and the trial court did not abuse its discretion here.
5. Prosecutorial Misconduct During Closing Argument
Defendant identifies numerous alleged examples of prejudicial misconduct committed by the prosecutor during her penalty phase closing argument. Specifically, defendant claims reversal is required because the prosecutor mischaracterized the evidence, speculated about defense strategy, ignored the trial court’s rulings, and argued facts not in evidence. We disagree.
The prosecutor began her closing argument by discussing defendant’s rape of Pamela B. The prosecutor argued that, when Pamela B. tried to escape from defendant, he “lunged toward her with the knife.” Defense counsel objected that the argument misstated the evidence. The trial court did not rule on the objection, but nonetheless admonished the jury that it was “the exclusive judge of the evidence.” The argument did not misstate the evidence. Pamela B. testified that defendant had a knife in his hand during the entire assault and that, after she escaped and ran outside, defendant chased after her and “lunged at [her].” The prosecutor correctly recounted the testimony or, at a minimum, drew reasonable inferences from the testimony. (People v. Williams (1997) 16 Cal.4th 153, 221.) Additionally, we assume the jury followed the court’s admonition, avoiding any prejudice. (People v. Jones, supra, 15 Cal.4th at p. 168.)
The prosecutor later addressed Dr. Kaser-Boyd’s testimony. Discussing the expert’s statement that defendant had been “the victim of a child molest[er]. . . . the victim of a social system . . . the victim of a dysfunctional family,” the prosecutor argued defendant “wants to be the victim. He wants you to see him as the victim.” Defense counsel objected. At sidebar, the trial court stated that, so long as the argument was about the defense, rather than defendant, the prosecutor’s attack on the mitigation evidence was permissible. We agree. Prosecutors are allowed “wide latitude in penalty phase argument, so long as the beliefs they express are based on the evidence presented. [Citation.]” (People v. Cook (2006) 39 Cal.4th 566, 613.) The prosecutor’s argument was a fair comment on defendant’s mitigation evidence, specifically Dr. Kaser-Boyd’s testimony, and did not constitute misconduct.
The prosecutor continued to address Dr. Kaser-Boyd’s testimony, telling the jury it should reject her opinion because of her failure to use certain tests in assessing defendant. The prosecutor suggested Dr. Kaser-Boyd might have chosen not to give certain tests because she knew they would hurt the defense. Defense counsel objected and the trial court sustained the objection, ruling, “You can’t speculate as to defense counsel strategy.” The prosecutor then argued that the expert’s failure to give certain tests and to talk to defendant about his crimes undermined the value of her opinion. The prosecutor also argued that, as a result, certain relevant questions could not be asked. Defense counsel objected and the trial court again told the prosecutor not to speculate as to counsel’s reasoning process.
The prosecutor continued, specifically identifying particular questions she could have asked the expert had the expert talked to defendant about his crimes. Defense counsel objected and the court asked both counsel to approach and told the prosecutor that she was not permitted to speculate “as to why the defense did this or that.” Defense counsel complained that the prosecutor had ignored several of the court’s rulings and moved for either a mistrial or an admonition. The trial court indicated that it did not believe the prosecutor had violated a court order, but that she had kept to addressing what the expert had or had not said in her testimony. The trial court ruled the prosecutor could argue that the expert’s failure to give certain tests prevented the prosecutor from asking critical questions and, therefore, that the expert’s testimony should be given less weight. The trial court agreed that the prosecutor should not speculate about why the information was not offered. The trial court denied defendant’s motion for a mistrial, but admonished the jury that it should decide the case “based on the evidence and the law” and not “speculate as to why counsel did or did not do something or what they knew or did not know either in evidence or in argument.”
Defendant contends the prosecutor committed misconduct by improperly commenting on defense strategy and ignoring the trial court’s rulings. We disagree. After the trial court sustained defendant’s objection to the prosecutor’s hypothesizing about why the expert did not give certain tests, the prosecutor did not return to the subject. She subsequently argued that the expert’s testimony should be given less weight due to her failure to give certain tests. As the trial court concluded, such argument was not improper. “Prosecutors have wide latitude to discuss and draw inferences from the evidence at trial. [Citation.] . . . [A]nd counsel can argue from the evidence that a witness’s testimony is unsound, unbelievable, or even a patent lie. [Citation.]” (People v. Dennis (1998) 17 Cal.4th 468, 522.) Even assuming the prosecutor’s comments were improper, the trial court sustained defendant’s objection and admonished the jury not to speculate about defense counsel’s strategy. We assume any prejudice was thereby avoided. (People v. Jones, supra, 15 Cal.4th at p. 168.)
Later in the closing argument, the prosecutor argued that defendant’s efforts to stop using drugs and make changes to his life were insincere and hypothesized that defendant’s wife “gave him an ultimatum.” Defense counsel objected and the trial court sustained the objection. The prosecutor continued, “[d]id he want to appease her. Did he want to — she was contemplating leaving him.” Defendant argues the prosecutor improperly argued facts outside the evidence. We disagree. Initially we note that defendant forfeited this claim because he failed to request an admonition when an admonition would have cured any prejudice. (People v. Earp, supra, 20 Cal.4th at p. 858.) Moreover, the argument was fair comment on defendant’s wife’s testimony that she and defendant were having martial problems, she was contemplating leaving him, and she demanded he quit using drugs. Additionally, the prosecutor is afforded wide latitude in penalty phase closing argument and her argument about defendant’s possible motivation for making changes was based on permissible inferences from the evidence. (People v. Cook, supra, 39 Cal.4th at p. 613; People v. Williams, supra, 16 Cal.4th at p. 221.)
While discussing the testimony of defendant’s family members and arguing the witnesses were biased, the prosecutor commented on defendant’s failure to call “his best friend Troy Clark” as a witness. The prosecutor reminded the jury of testimony that Clark was the person who knew defendant best, “but they didn’t call his best friend who if they were going to try to portray to you —.” Defense counsel objected, noting “[w]e don’t know where Mr. Clark is.” The trial court told the prosecutor she could not speculate about why witnesses were not called or suggest that she knew why witnesses were not called. The prosecutor continued, arguing that “there are individuals out there that know the defendant, have had more exposure to the defendant than the people the defense called as witnesses, and if you didn’t hear from those people you have to ask yourselves why not.” Defendant’s failure to request an admonition when doing so would have cured any prejudice forfeits this claim. (People v. Earp, supra, 20 Cal.4th at p. 858.) Additionally, the prosecutor did not commit misconduct by arguing that defendant’s family members were biased and by commenting on defendant’s failure to call witnesses that knew defendant best. (People v. Davis (1995) 10 Cal.4th 463, 539.)
Defendant next claims the prosecutor committed misconduct by misstating the testimony regarding defendant’s confession to his mother, Rita Bennett. Not so. The pages of the record cited by defendant relate to defendant’s confession to his wife, Karen Bennett, not his mother, Rita Bennett. Although the prosecutor’s reference to “Ms. Bennett” could be understood to mean either defendant’s wife or his mother, the prosecutor clearly identified defendant’s wife, Karen Bennett, as the subject of that portion of her argument. Moreover, in response to defendant’s objection that the prosecutor had misstated the evidence, the trial court admonished the jury that it should follow the evidence as the jury believed it to be. We assume the jury followed the court’s admonition avoiding any prejudice. (People v. Jones, supra, 15 Cal.4th at p. 168.)
The prosecutor next addressed testimony about defendant’s confession to his wife. Recounting the wife’s testimony, the prosecutor noted that she said defendant had not given her many details about his crimes, but had told her that Evans had hit him in the head with a clock. Reminding the jury that defendant had allegedly confessed the rape and murder within the space of an hour-long conversation, the prosecutor remarked that it would have been odd for defendant to have told his wife the detail about being hit with a clock. The prosecutor then argued, “Now, more than likely she made that up because there had been testimony about the photo and the clock.” Defense counsel objected that the argument was improper, and the court ruled that “the more than likely is improper.” Defendant forfeited the misconduct claim by failing to request an admonition. (People v. Earp, supra, 20 Cal.4th at p. 858.) In addition, the prosecutor’s argument did not constitute misconduct. It was permissible to argue based on the evidence that the testimony was not credible. (People v. Dennis, supra, 17 Cal.4th at p. 522; People v. Williams, supra, 16 Cal.4th at p. 221.)
The prosecutor then addressed the testimony of James Waltz, arguing that he was biased because “[h]e’s involved with this family here and he doesn’t believe in the death penalty.” Defense counsel objected that the prosecutor had misstated the evidence, and the trial court sustained the objection. The prosecutor continued, arguing that Waltz “doesn’t support the death penalty. He said he could never vote for the death penalty regardless of what the case was.” Defendant did not request an admonition and thus forfeited the claim. (People v. Earp, supra, 20 Cal.4th at p. 858.) Additionally, the prosecutor did not commit misconduct. Waltz testified that he would never vote for the death penalty under any circumstances, and the prosecutor’s argument that Waltz was biased because of his ties to defendant’s family and his stance on the death penalty constituted fair comment on the evidence. (People v. Williams, supra, 16 Cal.4th at p. 221.)
The prosecutor returned to discussing the circumstances of the crime and invited the jury to speculate about Evans’s final moments. “That poor woman was raped and bludgeoned, beaten. Don’t you think she begged for mercy, if she couldn’t verbally, don’t you think she cried out with her eyes.” Defense counsel objected that the argument was speculative and the court said that, unless it was supported by the evidence, the prosecutor could not argue it. The prosecutor continued, “We know she was alive during this period of time. We know she didn’t consent to her murder and her bludgeoning.” Defendant failed to request an admonition and so forfeited the misconduct claim. (People v. Earp, supra, 20 Cal.4th at p. 858.) Moreover, the prosecutor’s argument did not constitute misconduct. As she explained, her argument that the victim likely sought mercy was a reasonable inference from evidence in the record. (People v. Williams, supra, 16 Cal.4th at p. 221; People v. Scott (1997) 15 Cal.4th 1188, 1220.)
At the close of her argument, the prosecutor anticipated defendant’s closing argument by saying, “Now he’s going to come in through his defense attorneys — when I sit down here sometime today. They’ll talk to you tomorrow and ask you through the defense attorneys [sic] do him a favor of not giving him the death penalty and I ask you please don’t do that. Do not give this man what he wants.” Defense counsel objected that there was no evidence about what punishment defendant wanted and the trial court sustained the objection. The misconduct claim is forfeited due to defendant’s failure to request an admonition when an admonition would have cured any prejudice. (People v. Earp, supra, 20 Cal.4th at p. 858.) Additionally, arguing that defendant did not want to be sentenced to death did not constitute an unreasonable inference from the evidence. (People v. Williams, supra, 16 Cal.4th at p. 221.) Moreover, while prosecutorial comment on what punishment a defendant wants may not be proper, no conceivable prejudice could have resulted from the brief remark.
Accordingly, we conclude the complained-of remarks did not constitute reversible misconduct.
6. Cumulative Effect of Prosecutorial Misconduct
Defendant contends the numerous alleged instances of prosecutorial misconduct rendered his trial fundamentally unfair, in violation of his federal constitutional right to due process and a reliable verdict. We disagree. Having found no prosecutorial misconduct, we conclude there was no cumulative effect.
7. Cumulative Error
Defendant contends the cumulative prejudicial effect of the various penalty phase errors he has raised on appeal requires reversal of his death sentence. With the exception of a single erroneous evidentiary ruling, which was harmless beyond a reasonable doubt, we have rejected all other claims of error, thus there is no cumulative error.
C. Juror Misconduct Issues
1. Juror No. 84
Defendant contends the trial court erred by failing to excuse Juror No. 84, thereby violating state law and the Eighth and Fourteenth Amendments to the federal Constitution. Specifically, defendant argues reversal is required because the trial court should have excused Juror No. 84 for being unable to perform her duty. We disagree.
After the trial commenced, the court told the jury it anticipated the trial would conclude by the end of Labor Day week. On August 16, 1996, during the penalty phase, the trial court told the jurors that closing argument would likely occur the day after Labor Day, with deliberations to begin thereafter, and if any of the jurors had any problem with the case going into the week of September 9, they should notify the bailiff. The court then recessed until August 26.
On August 29, the jurors were excused early and told to call the court clerk after 4:00 p.m. to see whether they should return on Friday, August 30 or Tuesday, September 3. After the jury exited the courtroom, the trial court advised counsel that Juror No. 84 indicated that, because she was the office manager of an elementary school, it would be difficult on the new students and the staff if she were not at school when the teachers returned on September 9. Defense counsel, concerned that deliberation might be affected if Juror No. 84 remained, requested that the juror be excused and an alternate be seated. The prosecutor asked the trial court to wait and see whether a problem would actually arise. Ultimately, the trial court agreed with the prosecutor and decided not to excuse the juror.
When the jurors called on August 29 to see when they should return, they were informed they should return on September 3. When Juror No. 84 called, the juror told the court clerk she was not happy that she had to return on Tuesday. The court clerk surmised the juror was unhappy because she had wanted to come back on Friday, August 30, and the court described the juror as being disappointed that the jury was not returning until September 3, instead of August 30. Defense counsel asked the court to voir dire the juror and the court agreed.
When the jury returned on September 3, the court told Juror No. 84 that it needed to talk to her, but would do so during a break. At the end of the day, outside the presence of the other jurors, the trial court told Juror No. 84 that it received her note and appreciated her concerns. “Your commitment to your job and your concerns about your job demonstrate you’re a responsible person and when you’ve got a job to do you’re going to do it, so that tends to cause us to believe you’d be a good juror because you understand your obligations and are true to them, but I’m very concerned with respect to divided attention, and the law sets up certain standards for me to review in terms of whether a juror should be excused on the basis of hardship, and I guess what I need to know from you is . . . whether you’ll be distracted.
“Juror No. 84: No, I just felt like I’ve already given up my summer vacation for this and I’ve got almost seven hundred students to worry about and a staff of sixty.
“The court: When you say I’ve already given up my summer vacation for this, it has been a hardship and I need to know either based on that you think subconsciously you would move more quickly either towards reaching a verdict or more quickly towards declaring an impasse saying we can’t reach a verdict. Again, I know you won’t consciously do that, but —
“Juror No. 84: I don’t even think subconsciously that would be a problem.
“The court: Because I know sometimes if I’m in a hurry to get out of here on Friday afternoon when I come back Monday and look at something I wrote, I think I didn’t spend a —
“Juror No. 84: I understand what you’re saying. That’s not a problem.
“The court: So if you are required to remain to the conclusion of the case, it could be two or three weeks into the school year.
“Juror No. 84: I understand.
“The court: You still feel you’d be able to approach this task with the same commitment you’ve had throughout the trial?
“Juror No. 84: Sure.
“The court: You won’t be distracted wondering what’s happening in school?
“Juror No. 84: Of course I’ll be wondering what’s happening at school, but it’s just — really, I feel strongly about continuing.
“The court: Continuing on the jury?
“Juror No. 84: Yes
“The court: And maintaining your focus on the jury?
“Juror No. 84: Yes.”
The next day, after the defense counsel finished its closing argument, the court excused the jury and asked counsel for feedback regarding Juror No. 84 while indicating that it “thought [Juror No. 84] made it pretty clear that she would continue to perform her duties as a juror in a competent fashion . . . .” Defense counsel continued to believe the juror should be excused and the prosecutor thought the juror should remain. The court decided not to excuse the juror, explaining that, “Based on what she said yesterday, although I initially had some concerns, after talking with her yesterday I think she appreciates the seriousness of her duties in connection with this case. And I’m not concerned that she will rush to a verdict or rush to an impasse in an effort to end her jury service.” The jury began deliberating later that day, continued to deliberate on Thursday, September 5 and Friday, September 6, stopped for the weekend, and reached a verdict on Monday, September 9.
Defendant claims the trial court erred when it decided not to excuse Juror No. 84. We disagree. Section 1089 authorizes the trial court to discharge a juror at any time before or after the final submission of the case to the jury if, upon good cause, the juror is “found to be unable to perform his or her duty.” A trial court “has broad discretion to investigate and remove a juror in the midst of trial where it finds that, for any reason, the juror is no longer able or qualified to serve.” (People v. Millwee (1998) 18 Cal.4th 96, 142, fn. 19.) A juror’s inability to perform “ ‘must appear in the record as a “demonstrable reality” and bias may not be presumed.’ [Citations.]” (People v. Beeler (1995) 9 Cal.4th 953, 975.) We review the trial court’s determination for abuse of discretion and uphold its decision if it is supported by substantial evidence. (People v. Boyette (2002) 29 Cal.4th 381, 462.)
Here, the juror never indicated at any point that her ability to deliberate would be affected by her concern about the impending school year. To the contrary, on numerous occasions, she affirmatively indicated she would not be distracted, would not feel pressure to reach a decision, and would not lose focus because of her job. Indeed, she told the court she felt strongly about remaining on the jury. The court was in the position to observe the juror’s demeanor (People v. Schmeck (2005) 37 Cal.4th 240, 298) and the court was persuaded that the juror could perform her duties. Defendant speculates the juror was biased; however, nothing in the record supports his assumption. (People v. Beeler, supra, 9 Cal.4th at p. 975.) Accordingly, we conclude the court did not abuse its discretion in declining to excuse Juror No. 84.
2. Juror No. 20
Defendant argues the trial court erred when it allegedly failed to adequately examine Juror No. 20, failed to excuse Juror No. 20, and declined to reinstruct the jury. Defendant contends reversal is required because his rights under state law and the Sixth, Eighth, and Fourteenth Amendments to the federal Constitution were violated. We disagree.
At 10:00 a.m. on September 9, the jury informed the court it had reached a verdict. The court excused the jury until 2:00 p.m. Before taking the verdict, the court called counsel into chambers and told them that, at 1:40 p.m., Juror No. 20 called the courtroom and spoke with the bailiff. The bailiff, who was in chambers, recounted that “The gist of the phone call was that [Juror No. 20] had a concern as to what was taking place in the jury room. At that point I told him if there’s any problems you need to write them down and I will forward them up and he said he just didn’t feel right and once again I told him to write it down and, you know, if he had any problems he had to put it on paper and I would pass it on.” The trial court then indicated that Juror No. 20 did not give the bailiff a note when he, along with the other jurors, assembled in the jury room.
The trial court was unsure whether it should inquire of Juror No. 20. Defense counsel felt an inquiry was necessary and the prosecutor wanted to take the verdict without doing so, reasoning that the juror’s failure to write a note must mean any concerns had been resolved. There was a lengthy discussion about how best to proceed and, ultimately, it was decided to bring Juror No. 20 into chambers, reference his phone conversation with the bailiff, and invite him to write down any concerns should he have any. Once Juror No. 20 had been brought into chambers, the court inquired and advised him to write any concerns on a note. The juror did so and then returned to the jury room. The court read the note aloud to counsel: “I have reached a verdict as to the proper verdict. It is just very hard for me to verbally say it when being polled. In my mind I do believe my verdict is true and correct, but my heart tells me I cannot do this. It’s very difficult. I don’t want this trial to go on any longer, but is there any way that an alternate can take my place to reach a verdict so I won’t have to verbally say it. I know I said I could do it, but it’s a lot harder than I thought, and if I must do it I will.”
The court and counsel discussed the note and discussed what action to take. Defense counsel argued that the note meant Juror No. 20 could not fulfill his oath and asked that he be excused and replaced by an alternate. Alternatively, defense counsel asked the court to tell Juror No. 20 that he should not have signed the verdict form unless he was prepared to state it was his verdict in open court. Defense counsel also asked the court to reinstruct the entire jury, pursuant to CALJIC No. 8.88, that it should only impose the sentence that each juror personally felt was warranted. The prosecutor asked the court to bring the juror into chambers and inquire what he intended to do when polled in open court. Because a verdict had been reached, if the juror intended to agree when polled, there was no problem to resolve. The prosecutor felt further intervention was warranted only if the juror said he intended to disagree when polled. The court ultimately concluded that there were not sufficient grounds to excuse the juror. It instead decided to tell the juror that the jury would be individually polled after the verdict was announced and to ask him whether he could answer yes. If not, the court could deal with it then. Then, referring to the bailiff’s recounting of Juror No. 20’s phone call, defense counsel noted that the juror had made reference to “some things going on in the jury room” and asked the court to conduct an inquiry into his concerns. The court pointed out that the statement was merely part of the bailiff’s best effort to paraphrase the conversation.
The court then brought Juror No. 20 into open court and told him that, as in the guilt phase, the jurors would be collectively and individually polled after the court clerk read the penalty phase verdict to determine whether the verdict expressed their votes. The court said it did not want to know what the verdict was, but wanted to know if the juror could give an answer when polled. The juror responded, “I think I could do it. It’s just, I guess, the nervousness if you want to call it. It would be easier for me — all the jurors. It’s not an easy thing. It’s difficult to do it, but I can do it. It’s just the nervousness was part of my concern.” The court followed up, “But when asked in open court if this expresses your verdict you can answer either yes or no?” The juror responded, “Yes” and was returned to the jury room. Defense counsel renewed his motion to excuse the juror and replace him with an alternate and to reinstruct the jury. Finding no good cause, the trial court denied the motion. The jury returned a death verdict and, when polled, Juror No. 20 responded that the verdict reflected his penalty determination.
Defendant argues the trial court erred. He contends the trial court’s inquiry was too limited, that the court should have excused Juror No. 20 for inability to fulfill his duty as a juror, and that the court should have reinstructed the entire jury. We disagree.
First, the court did not err when it concluded Juror No. 20 could fulfill his duty. (People v. Boyette, supra, 29 Cal.4th at p. 462.) The juror’s note and the court’s subsequent inquiry established that the juror’s concern was about having to state in open court that he felt a death sentence was appropriate. Any such anxiety was understandable given the consequences of his vote. However, the juror subsequently told the court that, while difficult, he could fulfill his duty by verbally affirming that he concurred in the jury’s penalty determination. Indeed, the juror ultimately did so. There is no evidence in the record to support the conclusion that the juror was unable to perform his duty. (People v. Beeler, supra, 9 Cal.4th at p. 975.)
Second, the court did not abuse its discretion in determining the scope of its inquiry. Defendant argues that Juror No. 20 communicated a broader concern about jury deliberations and it was incumbent upon the court to inquire. The record does not support his contention. The bailiff, in what the trial court described as his best effort to paraphrase the conversation with Juror No. 20, made a vague reference to “a concern as to what was taking place in the jury room.” However, despite being instructed to do so by the bailiff, Juror No. 20 did not write a note about any concerns. Even after the trial court brought the juror into chambers and invited him to write down any concerns, the juror’s note made no mention of concerns about anything taking place in the jury room. Nor, during the court’s subsequent inquiry, did the juror mention any other concerns. “ ‘The decision whether to investigate the possibility of juror bias, incompetence, or misconduct — like the ultimate decision to retain or discharge a juror — rests within the sound discretion of the trial court.’ [Citation.]” (People v. Cleveland (2001) 25 Cal.4th 466, 478.) Moreover, trial courts should use caution when making inquiries because of the need to protect the sanctity and secrecy of jury deliberations. (Id. at p. 475.) In light of the juror’s failure to raise concerns about anything taking place during jury deliberations, the court did not abuse its discretion when it chose not to conduct a broader inquiry.
Third and finally, the court did not abuse its discretion when it declined defendant’s request that it reinstruct the entire jury with CALJIC 8.88. The jury had already been so instructed and nothing suggests the trial court needed to do so again. The jury had already reached a verdict. Nothing in Juror No. 20’s note nor in his answers during the court’s inquiry called the validity of the verdict into question. Accordingly, the court’s decision not to reinstruct the jury was not error.
3. Defendant’s Motion for a New Trial
Defendant claims Juror No. 20 committed prejudicial misconduct during the penalty phase deliberations and that the trial court erred when it denied his motion for a new trial. Defendant further contends that reversal of both his conviction and penalty is required under state law and the Sixth, Eighth, and Fourteenth Amendments to the federal Constitution. We disagree.
On December 6, 1996, defendant filed a motion for a new trial, alleging Juror No. 20 had committed misconduct. Exhibit A to the motion was a November 26, 1996 declaration, signed by Juror No. 20 under penalty of perjury, in which he stated that, “In 1993 or 1994, I was arrested for my role in a bar fight. I spent two days in jail. The charges were eventually dropped. That experience was very difficult for me.” Exhibit B to the motion was the juror’s May 8, 1996 voir dire questionnaire, also signed under penalty of perjury, in which he stated that he had never been arrested. Defendant argued Juror No. 20 had committed prejudicial misconduct by lying during voir dire.
At a hearing on the motion, defense counsel indicated that a number of jurors indicated Juror No. 20 had said during deliberations that he had previously been arrested. Defense counsel asked the prosecutor to check whether the juror had any criminal arrests. The prosecutor opposed the request, unsure that he had the authority to obtain the juror’s arrest record and provide it to the defense. Moreover, the prosecutor argued that, even assuming the juror had committed misconduct, defendant had not established any prejudice. The trial court concluded further inquiry was warranted.
At subsequent hearings, both the prosecution and defense indicated they had inquired with several law enforcement agencies, but had been unable to locate any booking records for Juror No. 20. Defense counsel indicated that several jurors remembered Juror No. 20 talking about having been arrested. Juror No. 20 had also allegedly expressed “how horrible jail was.” Defense counsel argued that one could infer from such a statement either that the juror was advocating a life sentence verdict or that “it’s a lot easier to sentence somebody to death if you think jail is so bad anyway.” Defense counsel also acknowledged that it was alternatively possible that the “juror made up a story in deliberations then lied on a declaration.” The prosecutor indicated that “we have received some information that in fact the juror may not have been arrested in the sense of the word that we would consider an arrest.” It was decided that the prosecutor would obtain a declaration from Juror No. 20 addressing the apparent inconsistencies.
At the next hearing on the matter, the court discussed Juror No. 20’s most recent declaration, obtained by the prosecution. The court noted that the juror’s declaration “appears to suggest that he was not arrested, that he was detained, and he believes it might have been — it was with private security guards who detained him in an office, and it might have been overnight.” The court noted that the most recent declaration conflicted both with his previous declaration and with the recollection of the other jurors who clearly remembered Juror No. 20 mentioning “jail.” In light of counsel’s inability to verify that the juror had been arrested and of the new declaration, the court concluded Juror No. 20 did not lie on his juror questionnaire, but did lie to the other jurors when he told them he had spent time in jail and it was a horrible experience. Addressing whether defendant had suffered any prejudice, the court said its “initial take on it is [Juror No. 20] exaggerated his experience for attention getting.” Defense counsel was concerned about exactly what Juror No. 20 said to the other jurors and indicated that Juror No. 20’s behavior possibly indicated something about “his state of mind.” It was agreed that the court would have the juror come in and the court would further inquire.
At the next hearing, the court questioned Juror No. 20 at length under oath. In addition to inquiring about the alleged incident, the court asked what Juror No. 20 had said to other jurors during deliberations regarding his experience and Juror No. 20 responded that he had, on two occasions, told a juror in the presence of other jurors, “have you ever been in jail, it’s a very difficult — it was for me when I was there.” The court took a brief break to allow counsel to propose any additional questions. Upon resumption of the examination, the court asked additional questions about the alleged incident with the security guards.
At the conclusion of the hearing, after considering the evidence and hearing argument from both counsel, the court found that the juror did not lie on his juror questionnaire, but that he did lie when he told jurors he had been arrested and been in jail. The court further found that the juror had made only a brief “mention” of the alleged experience and did not have a “conversation” about it. The court found that the juror had not been truthful when he signed either of the posttrial declarations. The court concluded that the juror committed misconduct when he made a false statement during deliberations. The court further concluded, however, that there was no evidence of prejudice. In addition to the statement being brief, the court explained that jail is commonly known by the public to be a bad place. The court also noted that jail is portrayed as awful in popular media and that the defense had introduced testimony in the penalty phase about the difficulties of life in jail. The court denied defendant’s motion for a new trial.
Defendant contends the trial court erred when it denied his motion for a new trial. We disagree. At the outset, we note that the trial court found that the juror did not lie on his juror questionnaire and we accept that factual determination, as it is supported by substantial evidence, including the lack of any records indicating defendant had been arrested. (People v. Ramos (2004) 34 Cal.4th 494, 520.) As for the juror’s posttrial declarations, the court found that the juror had lied in them. However, a juror’s postverdict lies to cover up misconduct, “although certainly improper, does not show bias during the trial, deliberations, and verdict.” (In re Carpenter (1995) 9 Cal.4th 634, 657.) Accordingly, only the juror’s comments during deliberation constitute potentially prejudicial misconduct. While the court concluded these comments constituted misconduct, it nonetheless decided defendant had not established prejudice.
Misconduct by a juror raises a rebuttable presumption of prejudice. (People v. Danks (2004) 32 Cal.4th 269, 302.) However, we will set aside a verdict only where there is a substantial likelihood of juror bias. (Id. at p. 303.) We will find such bias if the misconduct is inherently and substantially likely to have influenced the jury. (Ibid.) Alternatively, even if the misconduct is not inherently prejudicial, we will nonetheless find such bias if, after a review of the totality of the circumstances, a substantial likelihood of bias arose. (Ibid.) While the existence of prejudice is a mixed question of law and fact subject to this court’s independent determination, we accept a trial court’s credibility determinations and factual findings when they are supported by substantial evidence. (Id. at pp. 303-304.)
We conclude Juror No. 20’s comments did not create a substantial likelihood of juror bias. First, the trial court found Juror No. 20’s comments were brief, and its finding was supported by substantial evidence including both the juror’s answers to the court’s questions as well as the other jurors’ declarations. For example, while Juror No. 17 said Juror No. 20 had stated he had spent a “very short stay” in jail, she indicated she could not recall any specific comments made by Juror No. 20. Similarly, Juror No. 94 told the defense investigator that Juror No. 20 had “mentioned only that he had ‘an experience’ in jail and that it was horrible,” and that the other jurors did not ask for any details nor did she recall any other information on the subject. In short, as the trial court concluded, Juror No. 20’s reference to being in jail was merely a fleeting comment.
Second, the trial court concluded that the substance of the juror’s brief comment — that jail was “scary” and “horrible” — did not create a substantial likelihood of juror bias. The court noted that jail is already widely understood to be a bad place to be and that it is portrayed as such in “novels, movies, television programs, . . . documentaries.” The court also pointed out defense witnesses testified in the penalty phase about unsavory jail conditions. For example, Emedio Sandoval, a convicted child molester, testified that defendant had been attacked by another inmate in jail and also testified about the social hierarchy among inmates. Considering the totality of the circumstances, Juror No. 20’s comment that jail was scary and horrible did not create a substantial likelihood of juror bias.
Alternatively, defendant also argues the trial court should have granted his motion for a new trial because Juror No. 20 was unfit to sit on the jury. Citing the juror’s numerous lies, defendant claims “something was off with Juror [No.] 20” and that he engaged in “bizarre” and “pathological” behavior. Nothing supports this interpretation. To the contrary, the record suggests the juror first lied to his fellow jurors about having been in jail in order to garner attention and then, once the defense investigator approached him about his comments, the juror understood he had committed misconduct and engaged in a series of contradictory explanations in an effort to get out of trouble. Nothing other than mere speculation supports defendant’s contention that Juror No. 20 was “pathological” or otherwise incapable of performing his duty as a juror. (People v. Beeler, supra, 9 Cal.4th at p. 975.) The trial court did not err when it denied defendant’s motion for a new trial.
D. Other Issues
1. Denial of Application to Modify the Penalty Verdict
Once the jury returned a death verdict, the trial court considered an automatic motion for a modification of the sentence (§ 190.4, subd. (e)), which the trial court denied. Defendant contends the trial court’s decision constituted error. Specifically, defendant asserts the trial court’s failure to “take into account the proportionality aspect of the death penalty” requires reversal. We disagree.
A trial court’s duty under section 190.4, subdivision (e), is to “independently reweigh the evidence of aggravating and mitigating factors presented at trial and determine whether, in its independent judgment, the evidence supports the death verdict.” (People v. Steele (2002) 27 Cal.4th 1230, 1267.) The record demonstrates that the trial court did so here. In aggravation, the trial court discussed the calculated nature of the crimes, the fact that defendant likely chose the women he attacked because he was aware they lived alone, and the brutality of the attacks. The court next identified numerous mitigating factors including, among other things, defendant’s lack of criminal history, his addiction to drugs, his childhood, and his devotion to his children. The trial court then independently reweighed the evidence and ultimately concluded that the circumstances of the crime were “so compelling that [their] weight alone substantially outweighed the totality of the mitigating factors.” The trial court carefully performed its duty under section 190.4, subdivision (e).
Defendant also argues that the circumstances of this crime were not so bad as to place defendant among “the worst of the worst.” To the extent defendant is claiming the trial court erred by failing to compare the crimes in this case with other death penalty cases, we have held such intercase proportionality review is not required by either the state or federal Constitution. (People v. Lenart (2004) 32 Cal.4th 1107, 1130; People v. Sapp (2003) 31 Cal.4th 240, 317.) To the extent he is arguing that his sentence was disproportionate to his personal culpability, we disagree. (People v. Steele, supra, 27 Cal.4th at p. 1269.) As the trial court explained, “[defendant] did not randomly select his victims but rather used his special knowledge as a workman or as a neighbor to assess their vulnerability before he preyed upon [them] . . . . [¶] There was unusual emotional brutality in the rape and forced oral copulation of the first victim. And there was unusual physical brutality in the killing of [Evans].” Defendant’s sentence “is not disproportionate to [his] personal culpability. It does not shock the conscience.” (People v. Steele, supra, 27 Cal.4th at p. 1269.) The trial court did not err when it declined to modify the sentence.
2. Equal Protection Challenge to Imposition of the Death Penalty
Defendant argues that the death penalty in California violates the California Constitution and the Eighth and Fourteenth Amendments to the United States Constitution because it is imposed arbitrarily and capriciously depending on the county in which the case is prosecuted. As defendant concedes, we have repeatedly rejected substantially similar claims, concluding that “prosecutorial discretion to select those eligible cases in which the death penalty [would] actually be sought does not . . . offend principles of equal protection, due process, or cruel and/or unusual punishment. [Citations.]” (People v. Keenan (1988) 46 Cal.3d 478, 505; People v. Brown (2004) 33 Cal.4th 382, 403; People v. Williams, supra, 16 Cal.4th at p. 278.) Defendant does not identify a reason to reconsider our prior holdings and we decline to do so.
3. Delay in Appointment of Appellate Counsel
Defendant contends that the four and a half years it took to appoint appellate counsel to represent him violates his rights under the United States Constitution. We have previously considered and rejected identical claims. (People v. Dunkle (2005) 36 Cal.4th 861, 942; People v. Snow (2003) 30 Cal.4th 43, 127; People v. Welch (1999) 20 Cal.4th 701, 775-776; People v. Holt (1997) 15 Cal.4th 619, 708-709.) Defendant relies on federal authority in noncapital cases, but as we have explained, “[n]one of those decisions address the unique demands of appellate representation in capital cases.” (People v. Holt, supra, 15 Cal.4th at p. 709.) Additionally, “defendant fails to demonstrate that the delay inherent in the procedures by which California recruits, screens, and appoints attorneys to represent capital defendants on appeal, is not necessary to ensure that competent representation is available for indigent capital appellants.” (Ibid.) Defendant has identified no reason to reconsider our prior holdings and we decline to do so.
4. Eighth Amendment Challenge to Pre-execution Delay
Defendant argues that executing defendant after his “lengthy confinement under sentence of death” would constitute cruel and unusual punishment in violation of the federal Constitution, the California Constitution, and international law. We have repeatedly rejected this claim and do so again here. As we have explained, “the delay inherent in the automatic appeal process ‘is not a basis for finding that either the death penalty itself or the process leading to it is cruel and unusual punishment.’ (People v. Hill [(1992)] 3 Cal.4th [959,] 1016.)” (People v. Massie (1998) 19 Cal.4th 550, 574, italics omitted; People v. Jones, supra, 29 Cal.4th at p. 1267; People v. Anderson (2001) 25 Cal.4th 543, 606; People v. Frye (1998) 18 Cal. 4th 894, 1030-1031.)
5. Other Constitutional Challenges to Death Penalty Statute and Instructions
Defendant contends a number of California’s death penalty provisions violate the federal Constitution. He acknowledges that this court has repeatedly rejected identical claims in prior decisions but argues that we should reconsider our holdings. Having found no reason to do so, we reject these claims without extensive discussion.
Defendant argues that California’s death penalty statute does not meaningfully narrow the pool of murderers eligible for the death penalty. We have repeatedly held that section 190.2 “does not contain so many special circumstances that it fails to perform the constitutionally mandated narrowing function. [Citations.]” (People v. San Nicolas (2004) 34 Cal.4th 614, 677; People v. Morrison (2004) 34 Cal.4th 698, 729; People v. Crittenden (1994) 9 Cal.4th 83, 154-156.)
Defendant contends section 190.3, factor (a) is unconstitutional because it has been applied in such a “wonton and freakish manner,” without the application of any reasonable limiting construction, that it results in the arbitrary and capricious imposition of the death penalty. To the contrary, section 190.3, factor (a) “instructs the jury to consider a relevant subject matter and does so in understandable terms.” (Tuilapea v. California (1994) 512 U.S. 967, 976.) Defendant further complains that factor (a) unconstitutionally permits circumstances to be considered aggravating in one case while neutral or mitigating in another case. We have rejected this precise claim, explaining that “there is no constitutional requirement that the sentencer compare the defendant’s culpability with the culpability of other defendants. [Citation.]” (People v. Jenkins (2000) 22 Cal.4th 900, 1051.)
Defendant argues that California’s death penalty statute violates the federal Constitution because it fails to incorporate certain “safeguards” against the arbitrary imposition of death. We address each alleged omission in turn.
First, citing Apprendi v. New Jersey (2000) 530 U.S. 460 and Ring v. Arizona (2002) 536 U.S. 584, defendant claims that jurors must find aggravating factors true beyond a reasonable doubt, unanimously agree on the presence of a particular aggravating factor, and find that the aggravating factors outweighed mitigating factors. We have repeatedly rejected such claims. (People v. Bell (2007) 40 Cal.4th 582, 620; People v. Rogers (2006) 39 Cal.4th 826, 893; People v. Morrison, supra, 34 Cal.4th at pp. 730-731.)
Second, defendant contends the state and federal Constitutions require that the jury be instructed that it may impose a death sentence only if it determines, beyond a reasonable doubt, that the aggravating factors outweigh the mitigating factors and that death is the appropriate penalty. We have rejected this contention on numerous occasions. (People v. Bell, supra, 40 Cal.4th at p. 620; People v. Avila (2006) 38 Cal.4th 491, 614; People v. Morrison, supra, 34 Cal.4th at p. 730.)
Third, defendant argues that the failure to assign the state a burden of proof renders unconstitutional California’s death penalty statute. Defendant claims that, at a minimum, a jury should have to find, by a preponderance of the evidence, that an aggravating factor exists, that the aggravating factors outweigh the mitigating factors, and that death is the appropriate sentence. We disagree. We have previously concluded that no burden of proof or burden of persuasion is required during the penalty determination. (People v. Elliot (2005) 37 Cal.4th 453, 487-488; People v. Lenart, supra, 32 Cal.4th at pp. 1135-1136.) Defendant identifies no reason to revisit our prior decisions.
Fourth, defendant contends that some burden of proof is constitutionally required at the penalty phase to break ties for those jurors who find themselves torn between imposing a death sentence and sentencing the defendant to life without the possibility of parole. As discussed above, no burden of proof or burden of persuasion is required during the penalty phase. (People v. Elliot, supra, 37 Cal.4th at pp. 487-488; People v. Lenart, supra, 32 Cal.4th at pp. 1135-1136.) Additionally, the jury was instructed it could return a sentence of death only if it “conclude[d] that the aggravating circumstances substantially outweigh the mitigating circumstances.” Accordingly, no “tie-breaking rule” was necessary.
Fifth, defendant alternatively argues that the jury should have been instructed that there was no burden of proof. We have repeatedly rejected identical claims. (People v. Elliot, supra, 37 Cal.4th at p. 488; People v. Cornwall (2005) 37 Cal.4th 50, 104.)
Sixth, defendant contends the failure to require written or other specific findings by the jury regarding aggravating favors violates the federal Constitution. We have rejected that contention on numerous occasions. (See People v. Elliot, supra, 37 Cal.4th at p. 488.)
Seventh, defendant claims that the lack of intercase proportionality review for death penalty cases is unconstitutional. We have, as defendant acknowledges, repeatedly held that intercase proportionality review is not required. (People v. Williams (2006) 40 Cal.4th 287, 338; People v. Elliot, supra, 37 Cal.4th at p. 488; People v. Anderson, supra, 25 Cal.4th at p. 602.)
Defendant argues that the California sentencing scheme denies capital defendants equal protection by denying procedural safeguards to capital defendants that are afforded to noncapital defendants. As we have previously explained, “[t]he death penalty law does not deny capital defendants equal protection because it provides a different method of determining the sentence than is used in noncapital cases.” (People v. Smith, supra, 35 Cal.4th at p. 374.)
Defendant contends the death penalty statute violates international law, a contention we have repeatedly rejected. (People v. Elliot, supra, 37 Cal.4th at p. 488.) Nor, contrary to defendant’s argument, does the death penalty violate the Eighth and Fourteenth Amendments to the United States Constitution. (People v. Blair (2005) 36 Cal.4th 686, 754-755.)
III. DISPOSITION
The judgment is affirmed.

MORENO, J.

WE CONCUR: GEORGE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Bennett
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S058472
Date Filed: January 29, 2009
__________________________________________________________________________________

Court: Superior
County: Orange
Judge: Kathleen E. O’Leary
__________________________________________________________________________________

Attorneys for Appellant:

Tamara P. Holland, under appointment by the Supreme Court, for Defendant and Appellant.




__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Holly Wilkens and Annie Featherman Fraser, Deputy Attorney General, for Plaintiff and Respondent.








Counsel who argued in Supreme Court (not intended for publication with opinion):

Tamara P. Holland
769 Center Boulevard, #132
Fairfax, CA 94930
(415) 488-4849

Annie Featherman Fraser
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
9619) 645-2427

San Diego California DUI defense attorneys & San Diego drunk driving criminal lawyers are very interested in a new Chicago Tribune series of articles "Forensics Under the Microscope":

Guilty, said bite expert. Bogus, says DNA.
In a cubicle at Marquette University, a professor of dentistry and a former prosecutor are trying to use computer science to shore up a beleaguered forensic discipline.

Exonerated by DNA, guilty in official's eyes
In the fall of 2002, DNA tests exonerated Jimmy Ray Bromgard in the 1987 rape of an 8-year-old girl in Billings, Mont. His case was dismissed and he was freed from prison.
Judge doubts lip print, orders retrial in murder
A Kane County judge has ordered a new trial for a man serving 45 years in prison for murder after finding a "grave question of reliability" about a lip print used to link him to the crime.

Top lab repeatedly botched DNA tests
One of the nation's premier crime labs repeatedly failed to catch botched DNA testing in the case of a Virginia Death Row inmate who spent 17 years in prison before being exonerated, according to an independent review.
U.S. seeks review of fingerprint techniques
Four years after scuttling a study into the reliability of fingerprinting, the research arm of the Justice Department is seeking answers to fundamental questions about the grandfather of forensic science.
12 years behind bars, now justice at last
Cook County prosecutors on Monday dropped murder and rape cases against two men who spent more than 12 years behind bars, after DNA tests undermined their purported confessions as well as the dubious forensics that had led to their convictions and life sentences.
Digitized prints can point finger at innocent
Deep inside a sprawling complex tucked in the hills of this Appalachian town, a room full of supercomputers attempts to sift America's guilty from its innocent.
Death Row inmate wins resentencing
A decade after sending a man to Death Row, an Arizona judge on Thursday granted him a new sentencing hearing based on inconclusive DNA tests and questions about the bite-mark evidence used to convict him.
Bad laboratory blood analysis took 17 years of his life
This story contains corrected material, published Dec. 22, 2004.

Man executed on disproved forensics
Strapped to a gurney in Texas' death chamber earlier this year, just moments from his execution for setting a fire that killed his three daughters, Cameron Todd Willingham declared his innocence one last time. More

DNA tests raise questions in case
The judge who sentenced a man to death a decade ago for rape and murder based on purported bite marks on the victim's body said Wednesday that he is considering options including granting the man a new sentencing hearing if not a new trial. More

Mother hoping DNA frees son
Susie Tankersley last saw her only son a decade ago, when he was convicted and sentenced to death for the rape and murder of a 65-year-old woman in a motel not far from the courthouse here.
Hearing highlights DNA tests' delicacy
Bobby Lee Tankersley sits on Arizona's Death Row largely because a forensic dentist asserted he could match Tankersley's teeth to marks found on a murder victim's body.

Bite-mark verdict faces new scrutiny
Thelma Younkin used an oxygen tube to help her breathe. Her killer used it as a murder weapon.
Report blasts FBI lab
Top FBI fingerprint examiners gave in to peer pressure when they rushed to link an Oregon lawyer to a terrorist attack in Madrid this year, according to a panel of forensic experts convened to explain the highest-profile mistake in the history of modern fingerprint comparison.

Scandal touches even elite labs
A decade ago, as Earl Washington Jr. neared his execution date, a leading DNA expert first suggested an analyst in the vaunted Virginia state crime lab might have erred in the case.

When labs falter, defendants pay
As John Willis sought to prove he had been wrongly convicted of a rape in the Chatham neighborhood, the Illinois State Police crime lab in Chicago came across a potential key to his innocence.
From the start, a faulty science
The nation's leading forensic experts held their annual meeting in 1970 at Chicago's Drake Hotel, and all of the old guard was there. Fingerprint experts. Document examiners. Pathologists.

Arson myths fuel errors
The prosecution of Beverly Jean Long for the 2003 murder of her husband in rural Georgia reveals a tale of two mistakes. One killed her husband, James. The other put her on trial for murder by arson.
Unproven techniques sway courts, erode justice
Settling into the witness chair of a Kane County courtroom, Stephen McKasson tutored jurors in a murder trial on the wonders of a rarely used divining tool: lip prints.

Critics tell experts: Show us the science

San Diego DUI criminal defense lawyers and San Diego drunk driving attorneys report guy arrested for a San Diego DUI is responsible for 2 two hit and run San Diego DUI crashes on surface streets and a freeway before slamming head-first into a vehicle in the Jamacha area, injuring himself and two women.

The guy and two girls were all hospitalized after the collision in the 8600 block of San Vicente Street around 8:20 p.m. Sunday, said San Diego DUI attorneys at SanDiegoDUI.com.

The guy was driving eastbound on San Vicente Street when he alegedly failed to negotiate a curve and crossed into the path of the women's westbound vehicle, San Diego California criminal attorneys report.

The guy was hospitalized with potential internal injuries, and that one woman driving the other vehicle was hospitalized with a fractured foot while another woman passenger suffered neck damage.

Is there abuse of oxycodone in San Diego? San Diego DUI Criminal Defense attorneys believe that new drug-testing practices are one way officials hope to learn more about what they believe may be a growing problem in San Diego County. The expensive, potentially addictive synthetic opiate is prescribed to treat pain, but is abused for the heroin-like high it gives. A year ago, San Diego sheriff's detectives on the narcotics beat said they noticed a spike in arrests related to the OxyContin brand of oxycodone, particularly in Ramona, Santee and Poway.

San Diego deaths involving the drug also appeared to have increased, and the findings prompted the creation of a regional task force in September 2008. San Diego County officials said they don't yet know the true number of OxyContin users and overdoses. Part of the problem is that while investigators expected positive tests for OxyContin in people with severe chronic pain or late-stage cancer, they weren't looking for it in healthy young people, the ones they now think are abusing it. Even if they had, there's no guarantee that OxyContin would have been detected in tests of a 17-year-old DUI suspect or overdose victim, they said. "Having talked to the labs that do toxicology screens for San Diego County, we learned that unless the investigating officers specifically asked for an oxy screen, (the labs) were just doing the 'dangerous drug' screen," reports medical examiner's investigator Jerry Simmons, who sits on a regional oxycodone task force formed last year.

San Diego County officials believe OxyContin may be a dangerous drug, one growing in popularity with young people in the county. But the standard "dangerous drug" screen won't identify the synthetic opiate in the pill, Simmons has indicated. Simmons said OxyContin might register generally as an opiate, one of the classes detected by the standard screen but not until it reaches well into lethal levels. There are specific San Diego DUI tests that can detect oxycodone in blood and urine, though, and investigators are going to be using them more, Simmons said. If police find a 17-year-old kid with a roll of aluminum foil in his car, they will likely look for oxycontin then.

Foil is used to smoke OxyContin, which initially takes the form of a pill and is crushed to make it easier to burn and inhale. If the foil has been used to smoke crushed pills, it will have black "skid" marks of residue where the drug was burned.
Addicts typically have foil with them, or in their cars or bedrooms, though some ingest the pills, snort them, or dilute them in water and inject the solution, officials say. OxyContin isn't a new drug. Introduced in 1995, OxyContin ---- specifically designed to continuously release oxycodone over a 12-hour period ---- gained notoriety as a popular drug of abuse in rural areas throughout the nation. Other oxycodone products such as Percocet typically contain less of the active ingredient and may be paired with other painkillers, such as acetaminophen.

OxyContin isn't entirely new to San Diego. In a six-month period spanning 2004 and 2005, two San Diego State University students and one SDSU graduate suffered fatal overdoses involving the drug. San Diego County deputy district attorneys indicate OxyContin cases rarely crossed their desks back then, while they've seen more than 20arrests for possession since July 2008. It appears that OxyContin abusers in San Diego County tend to be young, between the ages of 18 and 25, and from affluent areas such as Torrey Pines, Rancho Bernardo and Poway, San Diego DUI officials indicate.

San Diego DUI investigators believe young people are getting the drug prescribed for them by doctors, buying it off other people who use, or bringing it back from Mexico, they said. Some may also find it in their homes if they live with people who take it for pain management, San Diego DUI officials report.

San Diego youngsters may think that OxyContin is safer than "street drugs" because it's been tested and approved for pain treatment by the federal Food and Drug Administration but OxyContin can be highly addictive and cost as much as $80 per pill when purchased outside of the medical system. A number of young people, when they find OxyContin inaccessible or too expensive, have turned to heroin, which is cheaper in San Diego County, San Diego DUI officials believe. And in the medical examiner's office, changes in OxyContin testing will be applied to old cases. That's particularly true if testing for OxyContin might corroborate or refute an informant's claims about an alleged OxyContin dealer, perhaps.

San Diego California DUI attorneys report Team DUI recently received Mothers Against Drunk Driving (MADD)'s most prestigious award. Team DUI Founder Judy Thein and members Captain Russ Perdock and Officer Adam Garcia were present April 18 to accept the "Heart of MADD" award at the 2009 California Law Enforcement and Community Recognition Dinner in Sacramento.

"Receiving this award is a milestone for our community and our county. It means that the work that Team DUI is doing is reaching beyond our county boundaries," Thein said. "I want to thank all of our members, especially those who took time from their busy schedules to accept this award; for their service, sacrifice and their commitment to keeping our communities safe and free of drunk drivers."

Team DUI was born through the tragic death of Thein's daughter Kellie. Kellie had held a special place in her heart for children. In memory of her daughter's life and legacy, Thein created Team DUI in order to teach children about the consequences of underage drinking and intoxicated driving. The team is a coalition of law enforcement, county and city officials, social service providers, educators and others who have personal experience with DUI-related incidents. The program is designed to help youth understand the consequences of their decisions.

"Team DUI is truly the Heart of MADD," it states in the informational booklet that described the awards event. "Thanks to Thein's and Team DUI's effort, people in Lake County are changing the way they think regarding the responsibility and accountability when they choose to drink. Team DUI matches MADD's mission of stopping drunk driving, supporting the victims of this violent crime and preventing underage drinking. The end result being lives changed and lives saved."
"It was overwhelmingly exciting to receive this award. It is the most prestigious award MADD presents and to say it was an honor to receive it doesn't quite express all the gratitude Team DUI has for this recognition," Thein said. "The whole evening was very awe-inspiring. There were a lot of awards for very important efforts that are going on around our state. It's very encouraging to know that so many are contributing to the safety of our communities and our youth."

The 11th annual event was attended by more than 600 people with 158 California agencies represented including 19 sheriff's departments, 128 police departments and nine divisions of the California Highway Patrol.

"I'm really proud of all the members of Team DUI and it was really fitting that we have outstanding members like Captain Russ Perdock and Officer Adam Garcia who were able to attend this event and represent Lake County among law enforcement agencies across the state," Thein said. "Chief Allan McClain is also another big contributor to the successes of Team DUI. Unfortunately, he was unable to attend the event due to family issues."

Team DUI was responsible for bringing multi-media MADD presentations into area schools last spring. Different programs were presented to high school and elementary and middle school students.

California DUI defense attorney strategy and to vigorously protect your important driving privilege at SAN DIEGO DUI & DMV DEFENSE "EVALUATION FORM" reports that California Highway Patrol will conduct a joint sobriety checkpoint with the South Lake Tahoe Police Department on Saturday, April 25.

The checkpoint will be located on Highway 50 between Fairway Avenue and Herbert Avenue in South Lake Tahoe, said Lt. Timothy Malone, CHP’s South Lake Tahoe area commander.

The sobriety checkpoint will be staffed by CHP and SLTPD officers who are trained in the detection of alcohol and/or drug impaired drivers, Malone said.

“Each year members of our community are needlessly maimed or killed on our roads. Our goal is to insure the safe passage of each and every motorist by targeting roads where there is a high frequency of drunk driving,” Malone said in a press statement. “A sobriety checkpoint is an effective tool for achieving this goal and is designed to augment existing patrol operations. By publicizing our efforts we believe that we can deter motorists from drinking and driving.”

Traffic volume permitting, all vehicles will be checked and drivers who are under the influence of alcohol and/or drugs can expect to be arrested and spend the night in the county jail.

San Diego DUI Lawyer Rick Mueller, a San Diego Drunk Driving / DWI Defense Attorney handling San Diego California DUI & DMV cases, shows how a San Diego DUI Lawyer will help you.

San Diego DUI Defense Resource Center reports these checkpoints for California:

The El Cajon Police Department will conduct a Sobriety Checkpoint beginning Tuesday, May 5, 2009 at approximately 7 p.m. until 2 a.m. Wednesday, May 6, 2009. The checkpoint is designed to reduce the number of D.U.I. incidents in the City of El Cajon. The exact location of the checkpoint will not be announced until two hours prior to the start of the operation.*

Motorists approaching the checkpoint will be diverted into an area where an officer will contact them. The drivers will be stopped only for a few moments while the purpose of the checkpoint is explained. Those who appear to be under the influence of alcohol and/or drugs will be given field sobriety tests and face possible arrest. Traffic volume permitting, all vehicles will be checked.

Three drivers were arrested on suspicion of DUI and one driver was arrested for an outstanding warrant during a recent DUI/driver's license checkpoint conducted by the Citrus Heights Police Department, according to information released today.

More than 1,000 vehicles passed through the checkpoint between 7:30 p.m. Friday and 2:30 a.m. Saturday on Greenback Lane, west of Sunrise Boulevard, Lieutenant Eric Mattke said in a news release.

In addition to the arrests, 15 drivers were given sobriety tests and thirteen vehicles were towed, Mattke said.

The checkpoint is one in a series that are being funded by a grant from the California Office of Traffic Safety through the National Highway Traffic Safety Administration


San Diego DUI Criminal Defense Lawyer list:

Effective San Diego DUI Lawyer information provided by San Diego County DUI Law Center's Drunk Driving Attorney for those accused of a San Diego California DUI. Hassle-free San Diego DUI help for San Diego DUI court and San Diego DMV. Help to save your license. San Diego DUI Attorney Rick Mueller is a Top-Rated San Diego Drunk Driving Lawyer, San Diego DUI & DMV Defense Attorney with over 25 years of experience. Known as a California DUI - DMV Guru, San Diego DUI Lawyer Rick Mueller dedicates 100% of his San Diego DUI law practice to aggressively defending those accused of San Diego Driving Under the Influence. San Diego California Criminal Defense Attorney Rick Mueller recently spoke at the California Attorneys For Criminal Justice annual DUI seminar in Rancho Mirage, California: http://www.cacj.org/Events/forms/DUI%20Brochure%20Final.pdf . The California criminal defense lawyers who attended provided favorable responses to the President of the California DUI Lawyers Association. San Diego DUI Defense Evaluation at http://www.sandiegodui.com/survey.html for your best San Diego DUI defense attorney strategy and to vigorously protect your important driving privilege, as has been done for many good people who necessarily become Clients.

San Diego California DUI criminal attorneys and San Diego drunk driving lawyers are told a 27-year-old man was killed in a head-on crash Sunday night after a suspected drunken driver fleeing from officers slammed into his vehicle on state Route 76 north of Escondido.
A California Highway Patrol officer spotted 23-year-old Silvero Morales Romero of Vista speeding south on Interstate 15 in a 2001 Ford Explorer and pulled him over at Rainbow Valley Boulevard just after 7 p.m., San Diego California DUI lawyers believe.
Romero, who did not have a driver's license, briefly stopped but when the officer asked for his identification he took off down the freeway driving 100 mph and weaving in and out of lanes, San Diego California DUI attorneys have heard.
Romero exited at state Route 76, headed west and ran a red light at the intersection with Old Highway 395, according to San Diego California Drunk Driving attorneys.
At that point, the officer who was pursuing him backed off and continued to follow with his lights and sirens off, per San Diego California Drunk Driving lawyers.
Seconds later, Romero crossed over the double yellow lines and collided head-on with a 1999 Toyota pickup. The driver was taken to a hospital, where he was pronounced dead on arrival. His name has not been released.
Romero's truck then crashed into a 2004 Ford F-350 being driven by a 50-year-old man from Barstow. He and his 43-year-old wife suffered minor injuries, San Diego California DUI lawyers suspect.
Romero's truck rolled several times down an embankment until it came to a stop in a ditch.
One of his legs was severed at the knee but he still tried to escape o - fficers and hopped about 50 feet before he fell to the ground.
He was taken to a hospital and will be booked on several felony charges including manslaughter, hit and run, San Diego California DUI driving under the influence and evading arrest.

To contact a San Diego DUI Lawyer who can help
San Diego California Criminal Defense Attorney Rick Mueller recently spoke at the California Attorneys For Criminal Justice annual DUI seminar in Rancho Mirage, California: http://www.cacj.org/Events/forms/DUI%20Brochure%20Final.pdf .

Filed 4/20/09
CERTIFIED FOR PUBLICATION



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----



THE PEOPLE,

Plaintiff and Respondent,

v.

JASPER DWIGHT BRANNER,

Defendant and Appellant.
C059288

(Super. Ct. No. 04F11213)



APPEAL from a judgment of the Superior Court of Sacramento County, Troy L. Nunley, Judge. Affirmed.

Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, David A. Rhodes, Supervising Deputy Attorney General, Darren K. Indermill, Deputy Attorney General, for Plaintiff and Respondent.

After the magistrate denied his motion to suppress evidence, defendant Jasper Dwight Branner pled no contest to possession of cocaine base for sale and admitted a prior conviction in exchange for dismissal of the remaining two counts and enhancement allegations. The trial court imposed the low term with additional years for the prior conviction for a total of six years in state prison.
On appeal, defendant contends the magistrate erroneously denied his suppression motion. Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2004, Sergeant Kenneth Georges of the Sacramento County Sheriff’s Department was watching an apartment complex on Howe Avenue because of complaints regarding narcotics sales in its parking lot. On November 27, 2004, Sergeant Georges saw a Jeep and ran a records check on the license number. From this check, he learned defendant was the registered owner. Sergeant Georges then ran a records check on defendant and learned defendant was required by law to report his residence to local law enforcement because of a prior narcotics conviction. Sergeant Georges did not know if defendant was at the apartment complex that night.
The next month, Sergeant Georges watched the complex again with several officers, including Detective Jeff Spackman, because there were still complaints about narcotics sales. On December 17, 2004, Sergeant Georges and Detective Spackman were both wearing plain clothes and driving an unmarked car. Because they could not find a suitable parking space when they first drove into the parking lot, they exited to reenter the lot to look again.
As they turned back into the parking lot, they saw the same Jeep from the previous surveillance “start to pull in front of [them and] go into the complex.” They followed the Jeep, which stopped at the northwest corner of the complex near a laundry room for approximately 10 minutes. At one point while it was stopped, the officers saw all of the Jeep’s passengers get out. Eventually, three people returned to the Jeep, including defendant, who was the driver. The defendant drove east through the parking lot and turned south, passing the officers. At this time, the officers saw the rear license plate light was not working and one of the headlights was misaligned so it would light the ground four to five feet in front of the Jeep.
After the defendant passed the officers in the Jeep, “[i]t continued southbound and then made a left-hand turn around the corner of the apartment complex to head east out to Howe Avenue.” When the officers followed and began turning to leave the parking lot onto Howe Avenue, they saw the Jeep had pulled over with a passenger door open, and a man was urinating on a wall inside the complex less than 10 feet from the Jeep. The officers approached the Jeep while it was still inside the parking lot.
While Sergeant Georges contacted the man urinating on the wall, Detective Spackman approached defendant and identified himself. Detective Spackman “explained what was going on” and asked defendant and the other passenger if they were on probation or parole or had any outstanding warrants; they said no. When Detective Spackman asked for identification, defendant produced a driver’s license and the other passenger produced a California ID card. The male who urinated was placed in the car of another officer who had just arrived. Ultimately, the officers gave the man a warning.
Detective Spackman went to his car and called the records division to determine if defendant and the other passenger were on probation or parole or had any outstanding warrants. The records check took “probably less than five minutes.” During this records check, Sergeant Georges began asking defendant and the other passenger if they were on probation or parole, “basic questions of that nature.”
As a result of the records check, Detective Spackman learned defendant was listed as a “[Health and Safety Code section] 11590 registrant” and learned his last registered address. He relayed these results to Sergeant Georges. Sergeant Georges, then roughly 10 minutes into what was ultimately a 15-minute conversation with defendant, asked him about his residence. Defendant responded he had not lived at his last registered address for at least eight months. Consequently, Sergeant Georges told defendant he was under arrest for not registering his address. He took the other passenger out of the Jeep and, with another deputy’s help, searched it. The parties stipulated the officers’ search of the Jeep produced cocaine base and a gun. No officer wrote a citation for the traffic offenses that night.
DISCUSSION
Defendant contends the magistrate erred in not suppressing evidence the officers acquired when they detained him. We disagree.
I
Standard Of Review
“In reviewing the trial court’s ruling on the suppression motion, we uphold any factual finding, express or implied, that is supported by substantial evidence, but we independently assess, as a matter of law, whether the challenged search or seizure conforms to constitutional standards of reasonableness.” (People v. Hughes (2002) 27 Cal.4th 287, 327.)
II
Defendant Was Lawfully Detained In The
Parking Lot For Traffic Violations
Because the People concede defendant was detained, we first address defendant’s assertion that the detention was unlawful because the officers did not have the requisite suspicion that he committed traffic violations on a highway. “[T]o justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place . . . , and (2) the person he intends to stop or detain is involved in that activity.” (In re Tony C. (1978) 21 Cal.3d 888, 893.) The officer must have been objectively reasonable in entertaining such a suspicion. (People v. Perrusquia (2007) 150 Cal.App.4th 228, 233.)
Here, Sergeant Georges and Detective Spackman had specific and articulable facts to suspect defendant committed traffic violations on a highway because the rear license plate on his Jeep was not illuminated (Veh. Code, §§ 24252, subd. (a), 24601) and one of the headlights was out of alignment (id., § 24409). Although they detained defendant in the parking lot, which is not a “highway” under the Vehicle Code (see id., §§ 21001, 360), Detective Spackman testified that when they were waiting to turn into the complex, they saw the Jeep “start to pull in front of [them and] go into the complex.” The officers saw the Jeep with its lighting malfunctions when it passed them roughly 5 to 10 minutes after entering the complex.
From these facts, the officers could have reasonably suspected two lights on opposite ends of the Jeep did not begin malfunctioning within that short amount of time. At the very least, the officers could have reasonably suspected that at least one of the lighting malfunctions occurred while the Jeep was on Howe Avenue. Accordingly, they had a valid basis to detain defendant in the parking lot.
II
The Police Validly Ran A Check On Defendant’s
Driver’s License Because They Had
Probable Cause For A Custodial Arrest
Defendant next contends his detention was unduly prolonged. We disagree.
An investigatory detention is unconstitutional if it is “‘extended beyond what is reasonably necessary under the circumstances that made its initiation permissible.’” (People v. McGaughran (1979) 25 Cal.3d 577, 586.) “A detention that is unreasonably prolonged amounts to a de facto arrest that must be supported by probable cause to be constitutionally valid.” (People v. Gomez (2004) 117 Cal.App.4th 531, 538.) “Probable cause to arrest exists if facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that an individual is guilty of a crime.” (People v. Kraft (2000) 23 Cal.4th 978, 1037.)
Furthermore, if a law enforcement officer has probable cause to believe a person has committed even a very minor criminal offense in his presence, the officer may, without violating the Fourth Amendment, effect a custodial arrest of that person. (See Atwater v. City of Lago Vista (2001) 532 U.S. 318, 354 [149 L.Ed.2d 549, 577].) “[T]here is nothing inherently unconstitutional about effecting a custodial arrest for a fine-only offense.” (People v. McKay (2002) 27 Cal.4th 601, 607 [riding a bicycle in the wrong direction in violation of the Vehicle Code].)
Here, Sergeant Georges and Detective Spackman had probable cause to believe defendant violated the Vehicle Code because they saw him driving in the parking lot minutes after following him from Howe Avenue. (In Re Tony C., supra, 21 Cal.3d at p. 893.) Thus, under Atwater these violations also provided probable cause to effect a custodial arrest. (People v. Gomez, supra, 117 Cal.App.4th at pp. 538-539.) Stopping his Jeep for Vehicle Code violations, even if done as a pretext to investigate some other unlawful conduct, was legally justified. (Id. at p. 537, citing Whren v. United States (1996) 517 U.S. 806, 812-813 [135 L.Ed.2d 89, 97-98].)
Defendant’s assertion that he was not subject to a custodial arrest, while correct (see Pen. Code, § 853.5, subd. (a)), is nonetheless irrelevant because state arrest procedures are not a part of our inquiry in determining whether the Fourth Amendment has been violated. (People v. McKay, supra, 27 Cal.4th at p. 605.) Indeed, Atwater forecloses defendant from challenging his custodial arrest on Fourth Amendment grounds after a valid traffic stop. (People v. Gomez, supra, 117 Cal.App.4th at pp. 538-539.)
Because defendant heavily relies on People v. McGaughran, a closer look into the case is warranted. In McGaughran, a police officer on patrol saw the defendant driving in the wrong direction on a one-way public street and stopped him. The officer explained why he pulled the defendant over and asked for identification; the defendant produced his driver’s license. (People v. McGaughran, supra, 25 Cal.3d at p. 581.) A discussion ensued for the next three to four minutes, including the defendant’s explanation that he was lost. (Ibid.) The officer returned to his patrol car and began a radio check for outstanding arrest warrants in the defendant’s name. Roughly 10 minutes later the dispatcher reported a warrant for the defendant. (Ibid.) The officer called for assistance and requested a confirmation of the warrant. It was confirmed by radio 20 to 25 minutes later, and the defendant was arrested. (Ibid.)
In its analysis, the court concluded the 10-minute detention was unconstitutional based on both the Vehicle Code and the Fourth Amendment. (People v. McGaughran, supra, 25 Cal.3d at pp. 586-587.) The Vehicle Code required the officer to release the defendant from custody after giving a written promise to appear. (Ibid.) For the Fourth Amendment rationale, the court reasoned all that was reasonably necessary was for the officer to examine the defendant’s license and registration, explain the violation, and either give a citation or a warning; thus, the additional 10-minute detention for the warrant check was not reasonably necessary for “that process.” (McGaughran, at p. 587.)
The reasoning in McGaughran reveals why the case conflicts with the current state of the law. First, the McGaughran court clarified it was not addressing those traffic offenses “for which the officer is either required or authorized to take the defendant into custody and transport him . . . for the filing of a complaint.” (People v. McGaughran, supra, 25 Cal.3d at p. 583.) Further, in framing the issue, the court relied on the fact that the defendant could not be arrested for that particular Vehicle Code violation, stating “the issue is whether a police officer who (1) has stopped a motorist for a traffic violation for which the latter cannot be taken into custody and (2) has already detained the offender for the period necessary to perform his functions arising from the violation, can thereafter lawfully detain him for an additional period of time solely for the purpose of conducting a warrant check.” (Id. at p. 586, italics added.)
Defendant’s reliance on McGaughran is misplaced. Defendant cites McGaughran for the principle that “a driver cannot be detained beyond the time needed to deal with the traffic offense. [¶] [I]f the officer delays the completion of his duties [incurred by virtue of the traffic stop] to await the response to his warrant inquiry, and the additional period of detention is not ‘reasonably necessary’ to the process of dealing with the initial offense, the rule permitting such checks is inoperative and the delay will be unconstitutional.”
Although we are bound by a decision from the California Supreme Court (People v. Haynes (1998) 61 Cal.App.4th 1282, 1298), we must read McGaughran in light of subsequent changes in the law. First, article I, section 28(d) of the California Constitution was amended into the law by Proposition 8, which was adopted by voters three years after McGaughran, eliminated “a judicially created remedy for violations of the search and seizure provisions of the . . . state Constitution[], through the exclusion of evidence so obtained, except to the extent that exclusion remains federally compelled.” (People v. McKay, supra, 27 Cal.4th at p. 605, italics omitted.) Thus, when analyzing the admissibility of evidence under the Fourth Amendment, we cannot impose stricter standards than those of the United States Supreme Court. (People v. Banks (1993) 6 Cal.4th 926, 934.) Second, the United States Supreme Court’s holding in Atwater now allows law enforcement officers to effect a custodial arrest for a fine-only traffic offense without violating the Fourth Amendment. (Atwater v. City of Lago Vista, supra, 532 U.S. at p. 323 [149 L.Ed.2d at p. 558].) Third, the California Supreme Court’s holding in McKay, which relied on Atwater, clarified that the constitutionality of a custodial arrest does not depend on state procedures that the federal Constitution does not compel. (People v. McKay, supra, 27 Cal.4th at p. 614.)
Defendant contends Atwater and McKay do not affect the outcome here because the police did not effect a custodial arrest -- and, in fact, could not have effected a custodial arrest -- under state law. Gomez, which defendant ignores, clarified that the permissibility of a custodial arrest under state law has no bearing on whether there was a Fourth Amendment violation. (People v. Gomez, supra, 117 Cal.App.4th at p. 539, citing People v. McKay, supra, 27 Cal.4th at p. 610.) Gomez also explained that where law enforcement officers have probable cause for a custodial arrest, even for a minor infraction, then a prolonged detention does not violate the Fourth Amendment, even if the detention is used for investigatory purposes unrelated to the crime for which they have probable cause to effect the custodial arrest. (Gomez, at pp. 539-540.)
Gomez provides the answer here: if the law enforcement officers had probable cause to believe defendant committed traffic infractions, then detaining him longer than necessary to simply cite him did not violate the Fourth Amendment. (People v. Gomez, supra, 117 Cal.App.4th at pp. 539-540.) To the extent McGaughran conflicts with this principle, we believe it is no longer good law. Thus, the magistrate did not err in denying the suppression motion.
DISPOSITION
The judgment is affirmed.



ROBIE , J.



We concur:



SCOTLAND , P. J.



NICHOLSON , J.

San Diego DUI criminal defense lawyers are told the Moreno Valley Police Department, in its continued dedication to public safety, conducted a DUI warrant sweep in the City of Moreno Valley. This focused enforcement effort is part of the ongoing public safety awareness effort being made by the City of Moreno Valley. The focus of the warrant sweep was to reduce DUI and injury collisions by serving outstanding arrest warrants for those subjects that are wanted in connection with a DUI. The Moreno Valley Police Department takes a proactive approach dealing with education and enforcement of the citizens of the city with regard to the issue of drinking and driving.

The Moreno Valley Police Department has a “Zero Tolerance” approach toward DUI drivers. During this operation 61 warrants for misdemeanor DUI were served, one on-sight DUI arrest (driving under the influence), and 3 vehicles were impounded.

The City of Moreno Valley is dedicated to making the roadways safe for all motorists. The Moreno Valley Police Department will continue this increased enforcement throughout the year.


Contact a San Diego DUI Lawyer:

San Diego DUI criminal defense lawyers report DUI Saturation Patrol & Drunk Driving news for San Diego County.

The Escondido Police Department San Diego County conducted a San Diego County DUI saturation patrol Friday night April 17, 2009 from 6:00 PM until 1:00 AM. The emphasis of the San Diego County drunk driving saturation patrol was to detect and arrest intoxicated drivers as well as to enforce all traffic laws within the City.

The following activity resulted from this San Diego County dui saturation patrol:

- 5 drivers were arrested for San Diego County dui - driving under the influence of alcohol / drugs
- 9 field sobriety tests were administered
- 1 driver was cited for having an open container of alcohol in the car
- 35 traffic citations were issued
- 6 vehicles were impounded for drivers who were arrested, did not have a driver
license, or had their driving privilege suspended

Funding for this San Diego County Drunk Driving program was provided by a grant from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration.

Officials confirmed that the passenger in a drunk-driving crash on Highway 78 died early Saturday, and the driver was arrested on suspicion of drunken driving and gross vehicular manslaughter.

Authorities came upon the crashed vehicle around 11:30 p.m. Friday just west of Melrose Drive on Highway 78 and found that the vehicle had come from the area of West Vista Way and Santa Clara Drive, San Diego DUI lawyers are told.

Lorenzo Gabriel-Lopez-Gonzalez, a 45-year-old married father from Oceanside, was thrown from the car and died about 45 minutes after the crash, according to the San Diego County Medical Examiner's Office.

The driver, Jesus Alonzo, 26, was treated for injuries at a hospital and then arrested for San Diego DUI.


San Diego's DUI & DMV online consultation at San Diego Drunk Driving Defense Resource Center: San Diego DUI Criminal Defense Lawyer list.

Lot of lawyers try to handle San Diego drunk driving cases, including public defenders, general practitioners, criminal defense lawyers, and DUI Specialist attorneys. A San Diego County public defender is a California attorney provided at little or no cost to provide defense services to people who financially are unable to hire a private San Diego lawyer. Most San Diego County Districts generally do not offer public defenders services unless you are unemployed, significantly under-employed and/or have no assets.

In San Diego California you could get arrested on the highway and detained because they think you were drunk. Well, thinking is certainly not enough reason to detain you, as your San Diego California attorney is sure to tell them. San Diego California DUI occasionally comes with a few more appendages if it gets serious. Sometimes you could get slapped with San Diego California manslaughter or even a San Diego California murder charge if someone died. However, the lines are not always clear. Often it takes a professional touch to draw them out properly so that you don’t lose every step of the way; a touch like that of a San Diego California DUI attorney. The police have a knack for breaking the rules sometimes when they think no one is watching. Your San Diego California DUI attorney can see to it that you don’t get the short end of the stick.

Who you need to good information from are lawyers, specifically San Diego California DUI lawyers. They are the ones you need to get in touch with when the law come calling on one of those intoxicated driving cases. A San Diego California DUI attorney is invaluable in a San Diego California DUI case. Why, that’s what they’re trained for. Try to pull a fast one around them and they’d catch it, yet they’d pull the wool over your own eyes so well that you’d wonder what hit you. San Diego California Cops don’t like them around, and they might just let you go without filing a charge if your San Diego California DUI attorney does a good job.

A few excellent questions to begin asking when searching for a California DUI lawyer are:



What are his or her California DUI attorney's qualifications?



Is he or she a Specialist member of the California DUI Lawyers Association?



Is he or she a member of the National College for DUI Defense?



Whether or not you ultimately end up hiring a California DUI Specialist attorney, it is a smart idea to speak to a California DUI Specialist lawyer in this highly complex field.



You can read more -Why use San Diego County's Specialist in DUI and DMV Law Or try a Free California DUI Evaluation.

San Diego California Criminal Defense Attorney Rick Mueller recently spoke at the California Attorneys For Criminal Justice annual DUI seminar in Rancho Mirage, California: http://www.cacj.org/Events/forms/DUI%20Brochure%20Final.pdf .

To contact a San Diego DUI Lawyer who can help:

San Diego DUI / Drunk Driving Criminal Defense Lawyers are told that a man accused of killing a pedestrian while driving drunk in Pacific Beach was aware he struck the victim before leaving her and going to eat a hamburger, a San Diego DUI / Drunk Driving police officer testified yesterday.

Alan Mabrey, 45, is charged in the death of Emily Cathleen Dowdy, 24, who worked as a shift supervisor at a local Starbucks. He has pleaded not guilty to murder and other San Diego DUI / Drunk Driving charges.

San Diego DUI / Drunk Driving police investigators from San Diego and Colorado testified Friday in Mabrey's preliminary hearing, after which a San Diego DUI / Drunk Driving judge determined that there was sufficient evidence for a San Diego DUI / Drunk Driving trial.

San Diego DUI / Drunk Driving authorities said Mabrey was driving a 2004 Dodge Ram pickup the evening of Feb. 7 when he struck Dowdy as she crossed Mission Boulevard at Reed Avenue. A male passenger in the truck got out to help her.

Officer Blake Cheary, a San Diego DUI / Drunk Driving / collision investigator for the San Diego Police Department, said that Mabrey admitted to hitting someone to police officers investigating the San Diego DUI / Drunk Driving crash.

“After walking in the roadway and checking on the person he hit, he went to Burger King to 'eat a burger,' ” Cheary testified. San Diego DUI / Drunk Driving police said Mabrey told them at the time that he gets hungry when he is nervous.
San Diego DUI / Drunk Driving Prosecutor Patty Herian has said Mabrey's blood-alcohol content measured 0.22 percent after the San Diego DUI / Drunk Driving accident. The San Diego DUI / Drunk Driving legal limit is 0.08.

An officer from Colorado who also testified said that she arrested Mabrey in April 2008 for a suspected hit-and-run crash. At the time, the officer said Mabrey had a revoked driver's license related to an alcohol offense and she warned him that his actions could hurt someone. “I told him, 'If you continue to drive like this, you're going to kill somebody, ” the officer said.

Mabrey has five convictions for drunk driving in Texas, two of which were felonies. He served five years in prison for his latest DUI conviction in 1999 and has a 2006 conviction in Colorado for false imprisonment, Herian said. Mabrey's premier San Diego criminal defense attorney, Bruce Kotler, objected to some of the San Diego DUI / Drunk Driving officers' testimony, saying Mabrey was not read his Miranda rights when he spoke with some San Diego DUI / Drunk Driving officers outside Burger King.

Superior Court Judge Michael D. Wellington overruled the objection. If convicted of second-degree murder, Mabrey could be sent to prison for 15 years to life. Seven to nine years could be added to the sentence if he is convicted of the other charges – gross vehicular manslaughter while intoxicated, hit-and-run causing death and San Diego DUI / Drunk Driving driving under the influence.
San Diego DUI Lawyer Rick Mueller, a San Diego Drunk Driving / DWI Defense Attorney handling San Diego California DUI & DMV cases, shows how a San Diego DUI Lawyer will help you.

SAN DIEGO DUI & DMV DEFENSE "EVALUATION FORM"
San Diego DUI Defense Resource Center & DMV Video Information: San Diego DUI Criminal Defense Lawyer list.

San Diego DUI criminal defense lawyers, who regularly face a DUI Prosecutor with a Prosecution's "Retrograde Extrapolation" Lab person say in court one's BAC is higher at time of driving than at time of test most of the time, are having trouble believing this breaking Drunk Driving news.

San Diego Chargers defensive lineman Jamal Williams will be charged with reckless driving – not San Diego DUI / San Diego drunk driving – in connection with his arrest Feb. 1, according to San Diego DUI criminal defense attorneys.

Williams, 32, was arrested on suspcion of San Diego DUI San Diego drunk driving, but his blood sample showed a blood-alcohol level of 0.07 percent, under the California limit of 0.08. The blood was drawn well after the San Diego DUI arrest which means his blood may have been different at the time of driving. Usually the San Diego DUI Prosecutor has her or his San Diego DUI Prosecuting Lab Person say the driver was in a post-absorptive phase and the BAC was higher before the blood was drawn.

The San Diego City Attorney's Office will not be filing charges for San Diego DUI as they claim they do not believe they can prove a San Diego DUI charge beyond a reasonable doubt, say San Diego DUI & Drunk Driving Defense Attorney informants.

Williams was pulled over for speeding in his 2008 Bentley about 1:30 a.m. on state Route 94 east of downtown. His arraignment in San Diego Superior Court is set for April 23.

San Diego Chargers receiver Vincent Jackson also has a court date later this month after pleading not guilty in his own San Diego DUI case. He was arrested January 6, 2009 for San Diego DUI.

You wonder how your true BAC can be attempted by the San Diego City's Attorney to be claimed to be higher at time of driving based on a test done later.

It’s a good qustion. One can try to guess what the true BAC was in a San Diego DUI case by projecting backwards, using average alcohol absorption and elimination rates, but it’s only an inaccurate guess based on assumptions.

It's called "retrograde extrapolation" — a pretty name for trying to guess backwards. The San Diego DUI prosecutor in a San Diego DUI trial often offers BAC test evidence guessing one's BAC...back to the time of driving.

The blood-alcohol level at the time of a San Diego DUI chemical test is not relevant to the San Diego DUI charge. The San Diego DUI prosecutor therefore attempts offer evidence to show what the BAC was when the San Diego DUI arrestee was actually driving.

This is commonly done by “extrapolating” backward - i.e. computing the earlier blood-alcohol level by estimating how much alcohol had been eliminated or “burned off” in the period between San Diego driving and DUI testing.

But retrograde extrapolation requires two assumptions:

(1) The San Diego DUI arrestee's blood-alcohol level was declining; and
(2) The San Diego DUI arrestee's the rate of elimination is known.

This second assumption further involves the San Diego DUI prosecution lab employee's (aka expert's) assumption that the “burn-off” rate was .015 percent per hour (sometimes the assumed rate is .02 percent).

Over the San Diego DUI Defense Attorney's objection, how does the San Diego DUI prosecution know that the San Diego DUI arrestee was eliminating (assuming he or she was eliminating rather than still absorbing) at that rate and not at .005 percent, .3 percent or some other possible scientific rate?!

Quite simply, the San Diego DUI prosecution does not know. The San Diego DUI prosecution laboratory employee merely assumes that the San Diego DUI arrestee was eliminating and that he or she eliminated at the average rate.

The problem is that everyone has a different metabolism, and even a given person will metabolize alcohol at different rates depending on many variables.

In one important study, researchers found a wide range of metabolism rates: some individuals can absorb alcohol and reach peak blood-alcohol levels ten times faster than others. (Kurt Dubowski, “Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects”, Journal on Studies of Alcohol (July 1985)).

As a result, scientists have concluded that the practice of estimating earlier BAC levels in DUI cases is highly inaccurate and should be discouraged.

From the recognized expert in the field, Professor Dubowski of the University of Oklahoma:
It is unusual for enough reliable information to be available in a given case to permit a meaningful and fair value to be obtained by retrograde extrapolation. If attempted, it must be based on assumptions of uncertain validity, or the answer must be given in terms of a range of possible values so wide that it is rarely of any use. If retrograde extrapolation of a blood concentration is based on a breath analysis the difficulty is compounded.” 21(1) Journal of Forensic Sciences 9 (Jan. 1976).
“[T]he practice of making back estimation of a person’s BAC is inevitably a controversial issue in DUI litigation and should be avoided whenever possible.”

A.W. Jones & Barry K. Logan, Drug Abuse Handbook 1012. Reprinted in “Forensic Alcohol Supervisor Course” California Criminalistics Institute – California department of Justice Hosted by OC Crime Lab 2000

“Making back extrapolations of BAC is not recommended because of the wide variations in absorption, distribution, and elimination patterns of ethanol both within and between different individuals.” Id. at 347

Citing: Allanowai et. al. Ethanol Kinetics – Extent of Error in Back Extrapolation Procedures. 34 Br. J Clin Pharmacology 316 (1992); Lewis, Back Calculation of Blood Alcohol Concentrations 295 Br. Med J 800 (1987)

“This raises the issue of retrograde extrapolation and there are well-known problems and pitfalls associated with this practice.”

Jones, Status of Alcohol Absorption Among Drinking Drivers, 14 Journal of Analytical Toxicology (1990)

“Retrograde Extrapolation – A Dubious Practice”

A.W. Jones, Medical Conditions and DWI/DUI Challenges, NACDL 9th Annual Seminar (2005)


Dr. Kurt Dubowski (Department of Medicine & Toxicology Laboratories University of Oklahoma)

“It is unusual for enough reliable information to be available in a given case to permit a meaningful and fair value to be obtained by retrograde extrapolation. If attempted, it must be based on assumptions of uncertain validity, or the answers must be given in terms of a range of possible values so wide that it is rarely of any use. If retrograde extrapolation of a blood alcohol concentration is based on a breath analysis the difficulty is compounded.”


Mason and Dubowski, Breath- Alcohol Analysis: Uses, Methods, and Some forensic Problems – Review and Opinion 21 J. Of Forensic Sciences 29.

Reprinted in “Forensic Alcohol Supervisor Course” California Criminalistics Institute – California Department of Justice Hosted by OC Crime Lab 1998

“Finally, no forensically valid forward or backward extrapolation of blood or breath alcohol concentrations is ordinarily possible in a given subject and occasion solely on the basis of time and individual analysis results”

Dubowski, Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects, 10 Journal of Studies on Alcohol 98, 106 (1985)

Reprinted in “Forensic Alcohol Supervisor Course” California Criminalistics Institute – California Department of Justice Hosted by OC Crime Lab 1998

“Extrapolation of a later alcohol test result to the time of the alleged offense is always of uncertain validity and therefore forensically unacceptable”

Dubowski, Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects, 10 Journal of Studies on Alcohol 98, 106 (1985)

Reprinted in “Forensic Alcohol Supervisor Course” California Criminalistics Institute – California Department of Justice Hosted by OC Crime Lab 1998

DO NOT USE RETROGRADE EXTRAPOLATION
(7 REASONS)
According to Dr. Dubowski, the existing information on blood alcohol and breath alcohol versus time curves, the following conclusions can be reached:
1. Not all blood and breath alcohol curves follow the Widmark patterns nor is the elimination necessarily linear.
2. Alcohol absorption is not always complete within 60 to 90 minutes, as often claimed.
3. The peak alcohol concentration cannot be validly predicted or established in an individual instance without frequent and timely measurements of alcohol concentrations.
4. It is not possible to establish whether an individual is in the absorption or elimination phase, or to establish the mean overall rate of alcohol elimination from the blood or breath, from the results of two consecutive blood or breath alcohol measurements, however timed.
5. Significantly large short-term fluctuations occur in some subjects and result in marked positive and negative departures from the alcohol concentration trend line.
6. Short-term, marked oscillation of the blood or breath alcohol concentration can occur at various points of the curve, resulting in repeated excursions of the alcohol concentration above and below a given concentration (such as 80 or 100 mg/dl) within a few minutes or for hours.
7. No forensically valid forward or backward extrapolation of blood or breath alcohol concentrations is ordinarily possible in a given subject and occasion solely on the basis of time and individual analysis results.
Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects, Journal of Studies on Alcohol Supplement No. 10, July 1985, Dr. Kurt M. Dubowski, Department of Medicine, and Toxicology Laboratories, The University of Oklahoma Health Sciences Center, Oklahoma City, Oklahoma 73190.

DR. DUBOWSKI found that elapsed time from end of alcohol intake to peak blood alcohol concentration varying from 14 to 138 (2hrs. 18 min) minutes, a nearly 10-fold variation.

Equations for blood alcohol concentrations require knowledge of many various factors (times of drinking, quantities of alcohol, food, weight, etc.). As such, numbers can be worked in the direction of the Prosecution or the Defense.

Most San Diego DUI Prosecution "experts" make wrong or questionable assumptions (for example, they usually assume the subject has an "average" rate of alcohol elimination and they usually assume absorption is complete) and, therefore, they come up with questionable, unreliable estimates that should not be allowed into evidence.

If all complete and accurate information is known (San Diego DUI Prosecution lab employees usually do NOT know), BAC calculations may be estimated but only with broad ranges of absorption times and a range of elimination rates. The calculations MUST NOT ASSUME SOME AVERAGE VALUES AND MUST NOT ASSUME COMPLETE ABSORPTION. Retrograde extrapolation without this type of information and without ranges of values is junk science. Normally, the State does not have the required information to perform retrograde extrapolation correctly.

Q. for San Diego DUI Prosecutor: You have a San Diego DUI breath test machine reading of .09% an hour or two after the driving. Scientists say you cannot accurately project that BAC back to the time of driving. If the BAC was rising, it could have been a .07% or even lower. Problem. What to do?

A. You attempt to use California legislation saying that the blood-alcohol when tested is presumed the same as it was when driving.

(But that is not true because BAC constantly changes as alcohol is metabolized.)

Q. How can one legally presume what we know is incorrect?

A. One can never really know.

(But it makes the San Diego DUI prosecutor’s job easier.)

Despite a Presumption of Innocence, make the San Diego DUI defendant try to prove what his or her BAC was an hour or two earlier. California somehow says one's BAC was the same 3 hours earlier — unless one can prove it was not! Here is California’s DUI law:
"In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08% or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent, by weight, of alcohol in his or her blood at the time of performance of a chemical test within three hours after the driving”. (Vehicle Code sec. 23152(b))
POINTS & AUTHORITIES TO EXCLUDE RETROGRADE EXTRAPOLATION AS IT DOES NOT MEET THE DAUBERT “GATEKEEPER” STANDARD (FEDERAL RULES OF EVIDENCE, RULE 702)

In order for scientific evidence to be admissible, it must satisfy the Daubert Standard. Under Daubert, courts must engage in a difficult, two-part analysis. First, a court must determine nothing less than whether the expert’ testimony reflects scientific knowledge, whether their findings are derived by the scientific method, and whether their work product amounts to good science. Second, a court must ensure that the proposed expert testimony is relevant to the task at hand, i.e., that it logically advances a material aspect of the proposing party’s case. The United States Supreme Court refers to this second prong of the analysis as the “fit” requirement. (Daubert v. Merill Dow Pharmaceuticals 43 F.3rd 1311; (1995) Judges perform a gatekeeping role; to do so they must satisfy themselves that scientific evidence meets a certain standard of reliability before it is admitted. An expert’s bald assurance of validity is not enough. Rather, a party presenting an expert must show that the expert’s findings are based on sound science, and requires some objective, independent validation of an expert’s methodology. (Daubert)

Under Federal Rules of Evidence, Rule 702, the court’s responsibility is to determine whether proffered scientific evidence is sufficiently reliable and relevant to assist the jury. “The proponent of the scientific evidence must demonstrate by clear and convincing evidence that the evidence is reliable. This is accomplished by showing the validity of the underlying scientific theory, the validity of the technique applying the theory, and the proper application of the technique on the occasion in question” (Mata v. The State of Texas, 46 S.W.3rd 902 (Tex.Cr.App. 2001):

Factors that may affect reliability include, but are not limited to, the following: (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained; (2) the testifying expert’s qualifications; (3) the existence of literature supporting or rejecting the underlying scientific theory or technique; (4) the technique’s potential rate of error; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying scientific theory and technique can be explained to the court; and (7) the experience and skill of the person who applied the technique on the occasion in question.

In Mata, the court analyzes the science of “retrograde extrapolation” - the computation back in time of the blood-alcohol level. The estimation of the level of the blood-alcohol at the time of driving based on the result of a test taken some time later. The court determined that multiple tests will increase the ability by an expert to plot a subject’s BAC curve, a test nearer in time to the time of the alleged offense increases the ability to determine subject’s offense-time BAC, and the more personal information known to the subject increases the reliability of an extrapolation. In determining the reliability of retrograde extrapolation, the court should consider:

(a) the length of time between the offense and the test(s) administered; (b) the number of tests given and the length of time between each test; and whether, and if so, to what extent, any individual characteristics of the defendant are were known to the expert in providing his extrapolation. These characteristics and behaviors might include, but are not limited to, the person’s weight and gender, the person’s typical drinking pattern and tolerance for alcohol, and how much the person had to drink on the day or night in question, what the person drank, the duration of the drinking spree, the time of the last drink, and how much and what that person had to eat either before, during, or after the drinking.

The court went on to recognize that the expert does not need to know every single personal fact about the defendant in order to produce an extrapolation with the appropriate level of reliability. If the State had more than one test, each test a reasonable length of time apart, and the first test were conducted within a reasonable time from the time of the offense, then an expert could potentially create a reliable estimate of the defendant’s BAC with limited knowledge of personal characteristics and behaviors. In contrast, a single test conducted some time after the offense could result in a reliable extrapolation only if the expert had knowledge of many personal characteristics and behaviors of the defendant. Somewhere in the middle might fall a case in which there was a single test a reasonable length of time from the driving, and two or three personal characteristics of the defendant were known to the expert. We cannot and should not determine today the exact blueprint for reliability in every case. Suffice it to say that the factors must be balanced.

In the present case, the State of California intends to extrapolate back to prove this San Diego DUI arrestee was under the influence while driving. There are times of driving, PAS tests and implied consent breath tests. Because of the remoteness of the alleged driving and the test results, an expert must have knowledge of many personal characteristics and behaviors of defendant in order for the retrograde extrapolation to be reliable.

From defendant's driver’s license information, an "expert" can attempt to obtain his height and weight (at one time), but nowhere in the police report does it state defendant's typical drinking pattern and tolerance to alcohol, and how much and what he had to eat either before, during, or after the drinking. The only information available is in the police report which states that defendant admitted to having drinks. This clearly is not enough to make a reliable extrapolation.

RETROGRADE EXTRAPOLATION DOES NOT MEET THE KELLY/FRYE “GENERAL ACCEPTANCE” TEST

Under the Kelly/Frye rule, a new scientific technique must be sufficiently established to have gained general acceptance in the particular field in which it belongs, in order to be admissible in evidence. The proponent of the evidence bears the burden of proving a consensus of opinion and must establish (1) the reliability of the method, usually by expert testimony; (2) the qualifications of the witness providing the testimony; and (3) that correct scientific procedures were used in the particular case. The expert witness must possess academic and professional credentials that permit him to understand the scientific principles involved and any differing viewpoints regarding reliability. The witness must also be impartial -- not so personally invested in establishing the technique's acceptance that he might not be objective about disagreements within the relevant scientific community. People v. Morris, 199 Cal. App. 3rd 377, (1988).

RETROGRADE EXTRAPOLATION IS MORE PREJUDICIAL THAN PROBATIVE, IT WILL NECESSITATE UNDUE CONSUMPTION OF TIME, AND IT WILL CONFUSE THE ISSUES, AND MISLEAD THE JURY

Evidence Code § 352:
The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.

Here, any evidence of “Retrograde Extrapolation” is going to be predicated upon assumed hypothetical facts that cannot be proved by the prosecution. Assumptions are therefore of the highest speculative nature. It will create a very high risk of confusing the issues and misleading the jury. Moreover, it will result in a definite undue consumption of time.

San Diego DUI Defense Lawyers point out that error in such an assumption translates into error in the extrapolation. Legendary Don Nichols, one of the most respected DUI defense attorneys & author of "Drinking Driving Litigation" knew how to properly handle possible error in assumptions. Don pointed out to juries that his client is female, Chinese and deceased despite obvious evidence to the contrary.

Don then explained that statistically there are more women than men in the world, more Chinese than any other nationality, and more dead human beings than living ones. Statistically, then, the average person is female, Chinese and deceased. So must be his client, according to the DUI Prosecutor. Don further asked his juries how many of them have 2.3 children, the average in the United States.

So why does the San Diego DUI prosecution "expert" presume facts that are clearly untrue? Simple. It's very expedient - it makes San Diego DUI prosecution and possible San Diego DUI conviction after trial much easier. Which is one more reason why you want to hire a San Diego DUI Attorney Specialist. Why not in this case?

San Diego's DUI & DMV online consultation at San Diego Drunk Driving Defense Resource Center and San Diego DUI Defense Video Resource Center.

San Diego California DUI Lawyers suggest one may visit below sites:

Shasta County prosecutors are touting their “tougher stand” toward drunken driving as the force behind their standing as the county with the second-highest DUI conviction rates in California.

Some 96.9 percent of drivers arrested for DUI in 2006 and 2007 were convicted, according to a statement released today by the Shasta County District Attorney’s office, citing a California Department of Motor Vehicles report.

Of the state’s 58 counties, only Placer County had a higher conviction rate, with 99.2 percent of drunken driving cases resulting in convictions.

“The increased conviction rate is indicative of better investigated DUI cases by law enforcement and higher-quality prosecutions coupled with a tougher stand on DUI cases by the Shasta County District Attorney’s Office,” District Attorney Jerry Benito said in the statement.

The report also touts a 40 percent increase in DUI arrests between 2006 and 2007.

In 2006, 1,276 people were arrested. The following year, 1,796 were.

The increase in part is due to the Redding Police Department assigning two full-time patrol officers devoted entirely DUI patrols those years, as well as stepped up drunken driving enforcement efforts from other county law enforcement agencies, Benito said.

The grant that funded the two Redding police officers dried up at the start of this year.

The Assembly Public Safety Committee just approved, with bi-partisan support, a pilot program requiring those convicted of their first DUI offense to have an Ignition Interlock Device, or IID, in their cars for five months. Assemblyman Mike Feuer (D) of Los Angeles is championing the move.
"That habitual use of this device assures that they are in a condition in the future to drive sober again," said Assemblyman Feuer.
The program, paid for by grants and the offender, would be tested in five counties where DUI arrests are high: Los Angeles, Orange, San Diego, Alameda, and Sacramento.
A positive blow for alcohol into the breathalyzer prevents the car from starting. The American Beverage Institute fought hard to kill the bill because it takes away judicial discretion for those not too much over the legal limit.
"When it comes to speeding, for example, you don't punish somebody going five miles over the speed limit the same way you do for somebody going 30 miles over the speed limit," said Sarah Longwell, from the American Beverage Institute.
But California's own DMV concluded the IID's were not effective in reducing DUI convictions or incidents for first time offenders.
Still, there's no denying what might have happened had Assemblyman Feuer been successful in getting the ignition lock bill approved last year. The suspected drunk driver in the Adenhart crash, Andrew Thomas Gallo, already had a DUI conviction and the Orange County District Attorney says he was three times over the legal limit this time.
"If we had this law, those three young people in that car quite possibly would have been alive today. The offender would have an IID as a protection device, not so much as a penalty, but to protect him too," said Mary Klotzbach, from Mothers Against Drunk Driving.

San Diego Drunk Driving Defense Resource Center

San Diego DUI lawyers are told of a new report from the AAA finds that while men are still the most frequent DUI offenders, a growing number of young women are driving drunk behind the wheel in California.

According to the Sacramento Bee, AAA researcher Stephen Bloch says the statistics show that DUIs of women age 21 to 24 more than doubled in the last decade.

Bloch told the state's Office of Traffic Safety that the increase may have something to do with Hollywood and the increase in DUI arrests of young female celebrities.

Adrian Quintero of the California Highway Patrol says the DUI figures show that women have not increased their consumption of alcohol, but have been increasingly behind the wheel.

"If women go out drinking as a group, it's not that women are drinking more but that women are in the driver's seat when the car is pulled over," he told the paper.

Last month Lindsey Lohan had an arrest warrant issued against her stemming from a 2007 DUI arrest - her first of two DUI offenses that year. The arrest warrant was later dropped after a judge said a paperwork mix-up appeared to show Lohan had met the conditions of her probation.

DUI Criminal Defense Lawyer in San Diego, California

San Diego DUI lawyers say if you are ever arrested for a DUI, there is only one chemical test you are legally obligated to take that is either a breath test or blood test after you have been lawfully arrested.

California’s “Implied Consent” law under Vehicle Code Section 23612 states: “Any person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purposes of determining the alcoholic content of his or her blood, if lawfully arrested for any offense allegedly committed in violation of section 23140, 23152 or 23153 (the California DUI laws).”

Refusal to submit to a chemical test acts as an enhancement allegation in a DUI case and carries with it additional penalties above and beyond what is normally imposed for a DUI conviction. However, just because you refuse to take a test, does not mean your case is a loser.

It is actually one less piece of evidence the prosecution has to use to prove that you were under the influence of alcohol.

There are a number of defenses available in a chemical test refusal DUI case in San Diego.

The following are leading chemical test refusal DUI case defenses in San Diego drunk driving cases:

Unlawful Arrest: If it can be shown that the officer had insufficient cause to pull you over or arrest you, then whether or not you validly refused a chemical test is of no consequence.

Officer Failed to Properly Advise You: In order for a chemical test refusal to be valid, the officer must follow a specific set of instructions to both advise your of your legal obligation to submit to a chemical test, as well as, advise you as to the consequences for refusing to do so. An improper advisement in this regard will invalidate any alleged refusal.

Office Induced Confusion: If the manner in which the officer advises you of your legal obligation to submit to chemical test and the potential consequences for failing to do so causes you to be confused, then this can negate the validity of the refusal.

You Did NOT Refuse: An officer may get frustrated with an individual who understands that they do not have to submit to the field sobriety tests (FSTs) or the Preliminary Alcohol Screening test (PAS) to the extent that their refusal to submit to those tests will be deemed by the officer as an outright refusal to all tests. In these instances, the officer may never even give the advisement and just railroad the person into a refusal situation despite their attempts to inform the officer of their willingness to submit to a post-arrest chemical test.

To contact a San Diego DUI Lawyer who can help

San Diego DUI Lawyer Rick Mueller, a premier San Diego County Drunk Driving, DUI & DMV Defense attorney with over 25 years of experience, tells of a state bill to require ignition interlock devices on vehicles driven by anyone with a previous California DUI / drunk driving conviction may gather more support after last week's California DUI / drunk driving crash that killed Angels pitcher Nick Adenhart.

Assemblyman Kevin Jeffries, R-Lake Elsinore, co-authored a California DUI / drunk driving bill , AB 91, which would create a pilot program to require California DUI / drunk driving offenders to install ignition interlock devices on their vehicles or any vehicle they drive.

Assemblyman Mike Feuer, D-Los Angeles, introduced the California DUI / drunk driving bill in January. The Assembly's Public Safety Committee will hear the California DUI / drunk driving bill Tuesday.

An alcohol ignition interlock, paid for by the convicted California DUI / drunk driving driver, is a breath-test device linked to a vehicle's ignition system, according to Mothers Against Drunk Driving, which has been pushing for laws to require them. When a driver wishes to start the vehicle, they must blow into the device first. The vehicle won't start if alcohol is detected in the driver's system, according to California DUI / drunk driving criminal lawyers.

The California DUI / drunk driving pilot program in the bill would only require the devices in Los Angeles, San Diego, Alameda and Sacramento counties, where MADD says 40 percent of California's DUI arrests were made in 2007.

Police arrested Andrew Thomas Gallo, 22, of Riverside on suspicion of causing the crash that killed Adenhart and two others in Fullerton early Thursday morning. Gallo, who was on probation in connection with a 2005 California DUI / drunk driving conviction in San Bernardino County, and is charged with three counts of second-degree murder as well as other felony counts related to California DUI / drunk driving.

Adenhart, Cal State Fullerton student Courtney Stewart and law student Henry Pearson died in the accident. Another passenger in that crash, former Cal State Fullerton baseball player Jon Wilhite, remained hospitalized Saturday in serious but stable condition at UC Irvine Medical Center, California DUI / drunk driving attorneys report.

Jeffries said he's not familiar enough with Gallo's history to know if such a California DUI / drunk driving device would have prevented Thursday morning's crash but said people are frustrated by California DUI / drunk driving drivers and the California DUI / drunk driving accidents they cause. Many California DUI / drunk driving questions remain and things are unknown.

San Diego California DUI / drunk driving attorney Rick Mueller dedicates 100% of his law practice to aggressively defending those accused of driving under the influence of alcohol. He has successfully saved the driving privileges of many clients in the past year alone. Complete the important Free San Diego County Drunk Driving Defense Survey to find out your best strategy and to protect your driving privileges in California. San Diego DUI Defense Attorneys, with a video.

San Diego DUI criminal lawyers and San Diego Drunk Driving criminal defense attorneys are told the defense attorney for the third and final Marine charged with killing an unarmed insurgent in Iraq says prosecutors should heed the acquittals of two co-defendants and drop the case against his client.

Attorney Joseph Low said Friday that it makes no sense for the Marine Corps to pursue the case against Sgt. Jermaine Nelson.

"I am submitting that request to the Marine Corps," Low said. "The Marine Corps should have gotten the message loud and clear now that these cases should never have been brought."

Nelson is charged with murder and dereliction of duty for allegedly killing one of four unarmed prisoners that he and members of his Camp Pendleton squad captured during a battle for the city of Fallujah in November 2004. He has pleaded not guilty.

On Thursday, Sgt. Ryan Weemer was acquitted by a jury of eight Marine officers on identical charges.

In August, Weemer and Nelson's squad leader at Fallujah, former Marine Sgt. Jose L. Nazario Jr., was acquitted on two counts of manslaughter by a civilian jury that heard his case in U.S. District Court in Riverside. Nazario was tried as a civilian because he had left the Marine Corps and was not subject to recall into the service.

Low said that Nelson, 26, was elated with Weemer's acquittal following a six-day trial.

"He was very excited for him," Low said. "He loves Ryan and he's just very, very happy for him."

Nelson remains on duty at Camp Pendleton pending resolution of his case. His trial date has not been set, but is expected to take place soon if the Marine Corps rejects Low's plea to drop the case.

A Marine Corps spokesman, Lt. Col. David Griesmer, said Friday that there is no change in the status of Nelson's case.

Nelson was on his second combat tour in Iraq when the Fallujah killings occurred.

Weemer first disclosed the incident during a job interview, telling an investigator about the capture of four suspected insurgents and revealing that they were ultimately shot even though none was armed.

His defense was that the man he was guarding lunged for his gun, prompting him to shoot in self-defense.

Jurors who decided Nazario's case said that they did not believe it was their place to second-guess actions that took place in battle.

Prosecutors had no autopsy reports, no bodies, no names to attach to the victims and no witnesses. Their case was built entirely on statements from the three defendants.

Low said Nelson is a quality Marine who overcame a difficult childhood to join the service and achieve the rank of sergeant.

"This is a kid ... who never met his father and found his mother dead of a drug overdose at age 8," Low said. "He was then passed around from friend to friend and pretty much grew up on his own."

His life turned around when a lacrosse coach in Connecticut took him under his wing, Low said.

Nelson was so eager to join the Marine Corps after leaving high school that he requested and won approval to get on a plane for boot camp within hours of being accepted into the service, Low said.

Besides preparing a formal request for the Marine Corps to drop the case against Nelson, Low also is circulating a petition citing the two acquittals and arguing that continuing the prosecution "may only serve to erode the credibility of the military justice system."

San Diego DUI Criminal Defense Lawyer list

San Diego DUI criminal defense attorneys report the California chapter of Mothers Against Drunk Driving chose the Chula Vista Police Department as its "Law Enforcement Agency of the Year," a department spokesman said Thursday.

The San Diego California DUI award will be presented at the Statewide Law Enforcement and Community Recognition Dinner on April 18 in Sacramento.

Police spokesman Bernard Gonzales said he believes Chula Vista's numerous traffic-focused campaigns impressed MADD officials who selected them.

"We've done a lot of work in the last five years in trying to curtail San Diego DUI but also people driving illegally on suspended licenses or no licenses."

Chula Vista Police Department also has a number of campaigns going on from pedestrian safety to combating street racing.

San Diego's DUI & DMV online consultation San Diego Drunk Driving Defense Resource Center:
San Diego DUI Lawyer - San Diego Attorney Drunk Driving can help you beat the San Diego drunk driving charge

San Diego California DUI Evaluation reports Lawrence Thompson was arraigned Wednesday in the alleged drunk-driving death of 8-year-old Brandon Brownen.

Thompson, 54, is accused of hitting the Oildale boy in February while Brownen was riding a skateboard on Sherman Peak Drive.

Thompson reportedly didn't stop driving his pickup, and California Highway Patrol officers and Kern County Sheriff's deputies found him at home asleep on his bed.

He's charged with DUI vehicular manslaughter, driving under the influence and hit-and-run. Thompson has previous offenses and pleaded guilty in 1990 to disorderly conduct and pleaded guilty in 1992 to misdemeanor driving under the influence.

If you see more highway police writing tickets on Inland freeways, it's because of stepped-up efforts to reduce injuries and fatal wrecks by cracking down on speeders.

As part of a $3.5 million statewide grant by the California Office of Traffic Safety, more officers will be paid overtime hours to patrol major freeways and county roads in Riverside and San Bernardino counties.

The nine-month campaign, dubbed Comprehensive Approach to Reducing Speed, or CARS, is aimed at ticketing drivers for speeding, following too closely, improper turning or lane changes, and driving under the influence of drugs or alcohol.

California Highway Patrol officials say the three largest contributors to injuries or fatalities are speeding, not wearing seat belts and DUI.

"We felt it necessary to put enforcement efforts to keep drivers from killing themselves and other people," said Chris Cochran, spokesman for the California Office of Traffic Safety. "It primarily puts officers on the road actively seeking out speeders."

Some of the most problematic areas are along remote stretches of Interstate 10 between Cabazon and Arizona and along the stretch of Interstate 15 near Barstow, said CHP Officer Mario Lopez.

"A lot of motorists travel far and above the natural speed limit and the long stretch of highway in that area," Lopez said. "There are a large number of fatalities tied to the high speed and some tired drivers."

Following the speed limit can reduce the chance of collisions in case of a sudden stop or if a driver loses control of a vehicle, Lopez said. Many violations, such as vehicles traveling too closely or unsafe lane changes, may be left to an officer's judgment as to what's unsafe.

Though officers expect to write more tickets, the move is not going to necessarily fill the coffers, Lopez said. Funding from the tickets generally goes to county or city governments and to pay court fees, Lopez said.

"The CHP does not receive any funding from the tickets we write," Lopez said. "It doesn't matter if we write five tickets or 10 tickets, our goal is to reduce accidents and fatalities."

For your best San Diego California DUI defense attorney strategy, here's a list of San Diego DUI Lawyers.

San Diego Drunk Driving Defense Center reports a man suspected of intentionally crashing his truck into a North County convenience store in an alleged drunk rage led officers on a lengthy road chase Tuesday before finally pulling over and being arrested.

San Diego DUI Lawyer - San Diego Attorney Drunk Driving can help folks beat the San Diego drunk driving charge.

Police got a report shortly before 3:30 a.m. that a motorist was ramming the Circle K market at College Boulevard and Vista Way in Oceanside in anger over being told that the business had closed for the night and could not sell him gasoline,
sources said.

Following the destructive outburst, the irate man -- later identified as 33-year-old Edward Mone of Vista -- drove off, and responding officers caught up with his rust-colored Ford Ranger on College Boulevard, near Oceanside Boulevard, sources said.

When the officers activated their overhead lights, Mone pulled over, but took off when they got out of their cruisers and were walking toward his vehicle.

As the officers gave chase, one of them crashed her squad car near the intersection of College Boulevard and Chroma Drive, according to sources. Medics took her to Palomar Hospital for treatment of minor bumps and scrapes.

Mone, meanwhile, continued fleeing at high speed to the north, then to the east on State Route 76. When the pursuit entered Bonsall, the officers tailing Mone were called off for safety reasons, due to the suspect's reckless driving and speeding.

Mone eventually doubled back and headed to the west on SR-76, at which point he cut off an off-duty Border Patrol officer's car in traffic, prompting him to began following the suspect.

Mone continued toward the coast, then headed south and entered Carlsbad, finally stopping at a gas station on La Costa Avenue, presumably to get the gas he had been unable to buy at the convenience store in Oceanside, sources indicate.

Carlsbad police arrived a short time later and arrested Mone without further incident. He was booked into county jail on suspicion of vandalism, evading police and drunken driving, allegedly. The suspect allegedly caused about $1,000 worth of damage to the front doors of the Circle K store, according to San Diego California DUI Attorneys.

San Diego DUI Lawyer Rick Mueller, a San Diego Drunk Driving / DWI Defense Attorney handling San Diego California DUI & DMV cases, shows how a Superb San Diego DUI Lawyer will help you.
FREE SAN DIEGO DUI & DMV DEFENSE "EVALUATION FORM"
San Diego DUI Defense Video Resource for DMV hearings.

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San Diego DUI Lawyer Rick Mueller, a San Diego Drunk Driving / DWI Defense Attorney handling San Diego California DUI & DMV cases, shows how a Top-Rated San Diego DUI Lawyer will help you.


A woman who crashed into a line of stopped vehicles while text-messaging on her cell phone has been sentenced to six years in a California prison for killing a woman in one of the vehicles.

Investigators said Deborah Matis-Engle was speeding while text messaging when she slammed into the vehicles stopped at a construction zone in August 2007. Deborah Matis-Engle was sentenced March 3, 2009, by a judge in Redding, California.

A Shasta County prosecutor said 49-year-old, Deborah Matis-Engle had paid several bills by cell phone in the moments before the crash, and she was in the middle of one of those transactions when she struck a vehicle that burst into flames, killing 46-year-old Petra Winn. The defense is expected to fiel an appeal.

San Diego Drunk Driving Defense Resource Center reports that a man suspected of driving while drunk ran into a 7-year-old boy in Logan Heights, unfortunately breaking one of his legs, San Diego DUI police said yesterday. Phillip Jones, 48, was allegedly driving west in the 2900 block of Imperial Avenue about 8:40 p.m. Saturday when the boy, chasing a basketball, ran out into the street in front of his car, according to San Diego DUI lawyers.

Even though it does not appear to be his fault, Jones was booked on suspicion of driving under the influence, San Diego DUI attorneys are told.
San Diego DUI Lawyer - San Diego Attorney Drunk Driving can help you beat the San Diego drunk driving charge:

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San Diego DUI Criminal Defense Lawyer Video

San Diego DUI defense attorneys report a lab technician's laboratory work - who tested evidence in more than 7,000 criminal cases across Riverside, San Diego and San Bernardino counties - has been called into question after authorities learned he admitted to lying under oath and falsifying reports during his work at a lab in Colorado.

Last week, the San Diego district attorney's office sent a letter to defense attorney organizations to inform them about former lab technician Aaron Layton's work history and criminal record, said Victor Nunez, an official with the district attorney's office.

Layton worked on thousands of regional cases while employed at Bio-Tox Laboratories in Riverside, a private forensic toxicology laboratory that tests evidence in many drug- and alcohol-rated cases for law enforcement agencies in Riverside, San Diego and San Bernardino counties. Layton, 30, worked there for about 20 months until he was fired in February, said Tracey Stangarone, Bio-Tox's business manager.

Blood or urine samples Layton worked on came from a variety of cases including DUIs, vehicular manslaughter cases and drunk-in-public citations, announced John Hall of the Riverside County district attorney.

In December, investigators for the district attorney discovered during a background check that Layton was a convicted sex offender. Later prosecutors found that Layton had previously admitted to breaking several laws including DUI - driving under the influence on numerous occasions.

The district attorney's office had declined routine requests from defense attorneys to investigate Layton for more than a year, said Riverside County Supervising Public Defender Christine Voss. His criminal record surfaced after a rookie public defender demanded that prosecutors check whether the technician had a criminal past. Now public defenders may seek to overturn convictions based on Layton's lab work, she said.

Scandals involving crime labs have led to the release of prisoners and monetary damages across the nation in recent years; the most prominent example led to a shakeup at the FBI's crime laboratory in the late 1990s. But he stood by his work in a Jan. 22 letter to Riverside County Assistant District Attorney Kelly Keenan.

"I know that the work I perform is exceptional," Layton said in the letter. "I believe I am a good person; one who has made some poor choices in life but is looking forward to a long and productive career in a field that I am very good in."

In Riverside County, Layton worked on about 3,200 cases, Hall said. In San Bernardino County, Layton worked on as many as 4,700 cases, said Assistant District Attorney Dennis Christy.

Earlier this year, Riverside prosecutors sent letters to defense attorneys in the county to inform them about Layton's past, and San Bernardino officials followed suit in March.

San Diego County officials have yet to determine how many cases Layton had a hand in, Nunez said, adding that he could not speculate at this stage whether it was as few as a dozen or in the thousands.

Nunez said about 60 letters were being sent last week. When more information about the specific San Diego cases Layton worked on is determined, letters will be mailed to individual defense attorneys, he said.

Stangarone said Bio-Tox was retesting blood and urine samples for cases Layton worked on at no cost to the counties.

Retesting of about 500 cases for which Layton processed evidence showed no inconsistencies from the original results, Stangarone said. An official with the Riverside County public defender's office disputes that contention, however, saying at least one retest that she was aware of showed different results.

"We remain confident that we will continue to show that there was no misconduct," Stangarone said. "Our work experience with Mr. Layton was that he was reliable, hardworking, cooperative and knowledgeable. While we are deeply disappointed by this discovery, his history from years ago does not match the type of employee he (was) at Bio-Tox. ... We didn't see this coming."

In probing Layton's past, Riverside County prosecutors discovered that he had admitted to several criminal acts during a pre-employment lie-detector test he took when applying for a job with a police department in Ohio in 2003.

As detailed in letters to defense attorneys written by Riverside County prosecutors, Layton acknowledged that when he worked for Forensic Laboratories in Colorado in the early 2000s, he:

-- lied under oath in 2001 when asked whether he had performed two toxicology tests on a sample;

-- did not conduct so-called confirmatory tests on samples, then falsified reports "hundreds of times" by stating those second tests had been done;

-- forged his employer's signature, including on court affidavits involving evidence;

-- stole from his employer and others;

-- drove under the influence numerous times;

-- and purchased alcohol for minors 10 times.

Prosecutors also said that Layton was convicted of sexual assault on a minor in El Paso County, Colo., and subsequently failed to register as a sex offender when living in Colorado, which led to him being placed on probation until November 2009. They did not list any other convictions.

After the discovery, the district attorney's office in Riverside County began informing defense attorneys of Layton's criminal history, Hall said. Officials sent letters summarizing the polygraph test results to defense attorneys in February. Letters continue to go out as more cases Layton worked on are identified, he said.

San Bernardino County prosecutors are taking a different approach. Its district attorney's office has sent six letters to defense attorneys in cases in which Layton testified, said Christy, the county's assistant district attorney. Those attorneys have the option of reopening the case or requesting that blood samples be retested, he said. At least one defense attorney has asked that a case be reopened, and Christy said he expects more such requests.

Christy said his office was not legally compelled to notify all defense attorneys whose cases involved Layton's work, and only would notify them if court-ordered.

He said Layton has not admitted to making up results, only skipping confirmatory tests. "I don't want to defend the conduct in any way, but I want to put it in context," Christy said.

But officials with the Riverside County's public defender's office said that in at least one case, retesting of Layton's work has produced different results.

Voss, the county's supervising public defender, said that in a recent DUI case, the initial lab work conducted by Layton in May 2008 indicated the defendant had a blood-alcohol level of 0.08 percent. A driver with that concentration of alcohol in their blood is considered legally impaired in California.

She said that when the sample was retested by Utica Toxicology a few months later, it came back as 0.06, an acceptable blood-alcohol level while driving.

Retested a third time by Bio-Tox in February, the 0.06 results were confirmed, she said.

"When they say they have done 500 retests that have come back within acceptable limits, I can say with certainty that at least one is unacceptable," Voss said. "What does it say about the other 499?"

Bio-Tox's Stangarone said alcohol is a volatile substance, and repeated exposure to air, which can occur when collection tubes are opened, may lead to minor changes in the results.

"Varying factors exist with regard to evaporation, exposure to air, the amount of head space in the collection tube, and storage of the sample," she said. "There are going to be slight variations, but no sign of misconduct by Mr. Layton has been identified, and we don't expect to ever find any."

Voss said the DUI case she mentioned was recently dismissed when there was no available courtroom in which the case could be heard before the legal deadline for the trial to begin.

It is standard practice for public defenders to ask prosecutors to produce documents indicating whether potential witnesses have been convicted of any crimes or have incidents in their past that could hurt their credibility, Voss said.

Defense attorneys generally can't conduct background checks to determine witnesses' criminal histories because they do not have access to local and national criminal databases, she said.

For more than a year, routine requests for Layton's background failed to produce results, Voss said.

"My assumption is they (prosecutors) did not act upon (the requests)," she said.

Layton's conviction finally was discovered in December after a public defender demanded his criminal history.

"It was one of our relatively young new lawyers who had the gumption to say, 'I want to see it with my own two eyes,' " Voss said, referring to Layton's rap sheet. "Had he not done that, we probably still wouldn't know to this day."

The district attorney's office relied on Bio-Tox to perform background checks for its employees, said Hall, the Riverside County spokesman. He said prosecutors run background checks on witnesses "when deemed necessary." Layton was considered a professional witness, he said.

"Attorneys are not going to run every single witness," he said. "They primarily do it with civilian witnesses."

Bio-Tox's Stangarone said it was her company's standard policy to conduct pre-employment background checks, but she wouldn't say whether they performed a background check on Layton, citing an ongoing investigation.

Layton testified on behalf of prosecutors on Jan. 13, many weeks after officials in the district attorney's office discovered his criminal record, Voss said.

Both the prosecutor and public defender in the case were unaware of Layton's past until a day after he testified, she said. Both of them ultimately agreed to let his testimony stand.

Voss said district attorney's office officials refuse to hand over a list of all the names of defendants whose blood or urine was tested by Layton, citing privacy concerns.

"We are at the DA's mercy of being notified, one by one, of which of our clients are affected by Layton's testing," Voss said.

Hall disagreed with Voss' assessment.

"We are providing the information in a timely fashion to the defense in every case that we find Mr. Layton is involved in," he said.

In addition to the letters sent out in February, the DA's office is subsequently providing defense attorneys with retest results when they come in, Hall said.

Voss said the situation is far from resolved.

"More cases involving Layton's work will be coming before judges, and we plan to question the validity of the test results, as well as work to obtain more information and documents about Layton's work and Bio-Tox," Voss said.

Her office is also considering broader action: "We are investigating the possibility of (seeking to set aside the convictions) on any and all cases in which the outcome was dependant on (Layton's) lab work," she said.

Possible is a consolidated motion to set aside the convictions of all the defendants whose samples were tested by Layton, she said. Public defenders in other counties could be asked to join in that action.

On April 3, 2009, the Escondido Police Department conducted a DUI Sobriety / Drivers License Checkpoint in the 700 block of West Grand Avenue from 6:00 PM until 12:15 AM. The emphasis of this checkpoint was to detect intoxicated and unlicensed drivers as well as to provide a highly visible operation to deter driving under the influence.

The following activity resulted from this checkpoint:

- 2,794 vehicles entered the checkpoint eastbound on Grand Avenue
- 1,189 vehicles were screened in primary
- 91 vehicles sent to secondary (drivers who could not produce a drivers license or who were suspected of being under the influence of alcohol or drugs)
- 3 drivers were arrested for driving under the influence of alcohol or drugs
- 1 misdemeanor criminal arrest was made
- 11 field sobriety tests were administered
- 46 vehicles were impounded at this checkpoint, 21 drivers did not have auto insurance, 12 drivers had a suspended drivers license and 35 drivers did not have a drivers license
- 53 citations were issued at this checkpoint

This checkpoint operated in conjunction Mothers against Drunk Drivers and the North County Law Enforcement Traffic Safety Council.

Drunk Driving Over the Limit Under Arrest. Report Drunk Drivers, Call 911


San Diego DUI Lawyer Rick Mueller, a San Diego Drunk Driving / DWI Defense Attorney handling San Diego California DUI & DMV cases, shows how a San Diego DUI Lawyer will help you.

SAN DIEGO DUI & DMV DEFENSE "EVALUATION FORM" reports driving under the influence and how it affects your family.

It is called "Real DUI Court in Schools." The National Center for Statistics and Analysis says in 2006, 31 percent of all drivers under 20 who died in car crashes were under the influence.

Thursday, students from a High School heard from real life suspects and victims.

There were real lawyers, a real judge, and an actual drunk driving defendant.

The defendant, identified only as "John Doe," spoke to the students about the decision that ruined his life.

"I'm actually really lucky to be here talking to you guys, because I almost died," John Doe said.

Doe got behind the wheel with a 0.18 blood alcohol level. Now, he is on probation, owes thousands in fines, and has permanently ruined vision from his accident.

The students admit alcohol is a part of many of their classmates' activities.

"Most people won't even hide the fact that they'll drink and party. It's just something that they do," said a 10th-grader.

But alcohol destroyed Santa Maria residents Demi Urias and her grandmother, Esmerelda Gonzales. Esmerelda lost her daughter, Michelle, when a drunk driver killed her last year.

"When you lose a child, it's like losing an arm or a leg. I feel like an amputee and my daughter has been severed from me," Gonzales said.

It is a message which hit home for the young students.

"It's really sad...I just felt really bad for [Esmerelda], just looking at her, just kind of makes me feel bad," said a ninth-grader. "I've never lost anyone, but it's definitely something powerful."

It is a lesson out of the classroom-a lesson organizers hope the kids do not learn too late. Real DUI Court is in nine different counties across California.


San Diego DUI Defense Video

San Diego DUI / DMV Defense Attorney Rick Mueller has a new informative video on how to handle these cases:

IN DUI/ DMV cases, California Vehicle Code Section 23612(g)(2)(A)must be adhered to.



(2) (A) Notwithstanding any other provision of law, a document
containing data prepared and maintained in the governmental forensic
laboratory computerized database system that is electronically
transmitted or retrieved through public or private computer networks
to or by the department is the best available evidence of the
chemical test results in all administrative proceedings conducted by
the department. In addition, any other official record that is
maintained in the governmental forensic laboratory, relates to a
chemical test analysis prepared and maintained in the governmental
forensic laboratory computerized database system, and is
electronically transmitted and retrieved through a public or private
computer network to or by the department is admissible as evidence in
the department's administrative proceedings. In order to be
admissible as evidence in administrative proceedings, a document
described in this subparagraph shall bear a certification by the
employee of the department who retrieved the document certifying that
the information was received or retrieved directly from the
computerized database system of a governmental forensic laboratory
and that the document accurately reflects the data received or
retrieved.
(B) Notwithstanding any other provision of law, the failure of an
employee of the department to certify under subparagraph (A) is not a
public offense.

Contact San Diego DUI Attorneys

San Diego DUI Lawyer Rick Mueller, a San Diego Drunk Driving / DWI Defense Attorney handling San Diego California DUI & DMV cases, shows how a San Diego DUI Lawyer will help you.

A California appeals court has upheld the second degree murder conviction of Eric Dungan in the DUI death of Rocklin police officer Matt Redding.

The Third District Court of Appeals issued the ruling April 1 after hearing arguments last month.

Dungan was driving home after a night of drinking with friends in 2005 when he struck Redding on Highway 65 just north of Interstate 80. The officer was standing in the left lane, removing hazard cones after an earlier incident on the highway.

Court testimony showed Dungan's blood alcohol at .18, twice the legal limit. He had also been sending text messages on his cell phone around the time of the crash.

Dungan had been recently discharged from the U.S. Air Force just before the crash. California DUI Criminal Defense attorney Michael Bowman argued during trial that based on Dungan's lack of a criminal record, his apologies and admission of responsibility, the more appropriate charge would be vehicular manslaughter.

Instead, the Placer County jury agreed with prosecutors and convicted Dungan of second degree murder after the 2007 trial. Dungan is currently serving a sentence of 15 years to life.

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San Diego DUI Defense Resource Center:

http://www.youtube.com/watch?v=clR4URQL4nI
http://www.sandiegodrunkdrivingattorney.net/articles.html
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http://www.sandiegoduilawyer.com/articles.html
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The California Highway Patrol plans to use a recently obtained $265,000 grant to combat California DUI / drunk driving along state Route 67 between El Cajon and Ramona.
The funding comes from the state's Office of Traffic Safety, which is targeting high-collision areas for increased California DUI enforcement. Between 2005 and 2007, 11 people died and 65 people were injured in California DUI-related collisions along the 25-mile-long highway.
More recent statistics are unavailable, but there have been numerous other fatalities along Route 67 in the past year and a half.
“The grant will pay for aggressive California DUI enforcement, public education and community outreach to try to reduce California DUI-involved collisions,” said CHP El Cajon Area Captain Teresa Sumprer.
The California money must be spent in the next year. California DUI Enforcement efforts will include roving California DUI patrols and California drunk driving sobriety checkpoints.

San Diego DUI Lawyer Rick Mueller, a San Diego Drunk Driving / DWI Defense Attorney handling San Diego California DUI & DMV cases, shows how a San Diego DUI Lawyer will help you.

San Diego DUI Lawyer Rick Mueller is a premier San Diego County Drunk Driving, DUI & DMV Defense attorney with over 25 years of experience. Known as a "DMV Guru," Rick Mueller dedicates 100% of his law practice to aggressively defending those accused of driving under the influence of alcohol. He has successfully saved the driving privileges of many clients in the past year alone. Complete the important Free San Diego County Drunk Driving Defense Survey to find out your best strategy and to protect your driving privileges in California.

San Diego DUI attorneys report that California's Implied Consent Law applies to Boaters accused of DUI / Drunk Boating or BUI / Boating Under the Influence. If the Peace Officer requests a chemical or DUI test, do not refuse - it's not worth it.

655.1. (a) As used in this section, "mechanically propelled vessel"
means any vessel actively propelled by machinery, whether or not the
machinery is the principal source of propulsion.
(b) A peace officer, having reasonable cause to believe that any
person was operating a mechanically propelled vessel or manipulating
any water skis, aquaplane, or similar device under the influence of
an alcoholic beverage or any drug, or under the combined influence of
an alcoholic beverage and any drug, who lawfully arrests the person
for any violation of subdivision (b), (c), (d), (e), or (f) of
Section 655, may request that person to submit to chemical testing of
his or her blood, breath, or urine for the purpose of determining
the drug or alcoholic content of the blood. The arrested person
shall be informed that a refusal to submit to, or failure to
complete, the required chemical testing may be used against the
person in a court of law and that the court may impose increased
penalties for that refusal or failure, upon conviction.
(c) (1) If the person is lawfully arrested for operating a
mechanically propelled vessel or manipulating any water skis,
aquaplane, or similar device under the influence of an alcoholic
beverage and submits to the chemical testing, the person has the
choice of whether the chemical test shall be of his or her blood or
breath and the person shall be advised by the arresting officer that
he or she has that choice. If the person arrested either is
incapable, or states that he or she is incapable, of completing the
chosen test, the person shall submit to the remaining test. If a
blood or breath test, or both, are unavailable, then subdivision (n)
applies.
(2) If the person is lawfully arrested for operating a
mechanically propelled vessel or manipulating any water skis,
aquaplane, or similar device under the influence of any drug or the
combined influence of an alcoholic beverage and any drug and submits
to the chemical testing, the person has the choice of whether the
chemical test shall be of his or her blood, breath, or urine, and the
officer shall advise the person that he or she has that choice.
(d) The arresting officer shall advise a person submitting to
chemical testing under this section that he or she does not have the
right to have an attorney present before stating whether he or she
will submit to the chemical testing, before deciding which chemical
test or tests to take, or during the administration of the chemical
test or tests chosen.
(e) A person who chooses to submit to a breath test may also be
requested to submit to a blood or urine test if the arresting officer
has reasonable cause to believe that the person was operating a
mechanically propelled vessel or manipulating any water skis,
aquaplane, or similar device under the influence of any drug, or the
combined influence of an alcoholic beverage and any drug, and if the
arresting officer has a clear indication that a blood or urine test
will reveal evidence of the person being under the influence. The
arresting officer shall state in his or her report the facts upon
which that belief and that clear indication are based. The person
shall have the choice of submitting to and completing a blood or
urine test, and shall be advised by the arresting officer that he or
she is requested to submit to an additional test, and that he or she
may choose a test of either blood or urine. If the person arrested
is either incapable, or states that he or she is incapable, of
completing either chosen chemical test, the person shall submit to
and complete the other remaining chemical test.
(f) (1) A person who chooses to submit to a breath test shall be
advised before or after the breath test that the breath-testing
equipment does not retain any sample of the breath, and that no
breath sample will be available after the breath test which could be
analyzed later by the person or any other person.
(2) The person shall also be advised that, because no breath
sample is retained, the person will be given an opportunity to
provide a blood or urine sample that will be retained at no cost to
the person so that there will be something retained that may be
subsequently analyzed for the alcoholic content of the persons's
blood. If the person completes a breath test and wishes to provide a
blood or urine sample to be retained, the sample shall be collected
and retained in the same manner as if the person had chosen a blood
or urine test initially.
(3) The person shall also be advised that the blood or urine
sample may be tested by either party in any criminal prosecution.
The failure of either party to perform this chemical test shall place
no duty upon the opposing party to perform the chemical test nor
affect the admissibility of any other evidence of the drug or
alcoholic content of the blood of the person arrested.
(g) If the person is lawfully arrested for any offense allegedly
committed in violation of subdivision (b), (c), (d), (e), or (f) of
Section 655, and because of the need for medical treatment, the
person is first transported to a medical facility where it is not
feasible to administer a particular chemical test of, or to obtain a
particular sample of, the person's blood, breath, or urine, the
person has the choice of submitting to those chemical tests which are
available at the facility to which that person has been transported.
In this event, the arresting officer shall advise the person of
those chemical tests which are available at the medical facility, and
that the person's choice is limited to those chemical tests which
are available.
(h) Any person who is unconscious or otherwise in a condition
rendering him or her incapable of refusal may be subjected to
chemical testing of his or her blood, breath, or urine for the
purpose of determining the drug or alcoholic content of the blood,
whether or not the person is informed that a refusal to submit to, or
failure to complete, the required chemical testing may be used
against the person in a court of law, and that the court may impose
increased penalties upon conviction.
(i) Any person who is afflicted with hemophilia is exempt from the
blood test provided for in this section.
(j) Any person who is afflicted with a heart condition and is
using an anticoagulant under the direction of a licensed physician
and surgeon is exempt from the blood test provided for in this
section.
(k) A person lawfully arrested for any offense allegedly committed
while the person was operating a mechanically propelled vessel or
manipulating any water skis, aquaplane, or similar device in
violation of subdivision (b), (c), (d), (e), or (f) of Section 655
may request the arresting officer to have a chemical test made of his
or her blood or breath for the purpose of determining the drug or
alcoholic content of the blood and, if so requested, the arresting
officer shall have the chemical test performed. However, if a blood
or breath test, or both, are unavailable, then subdivision (n)
applies.
(l) Any chemical test of blood, breath, or urine to determine the
percentage, by weight, of alcohol in the blood shall be performed in
accordance with Section 23158 of the Vehicle Code.
(m) Nothing in this section limits the authority of a peace
officer to gather evidence from a person lawfully arrested for a
violation of subdivision (b), (c), (d), (e), or (f) of Section 655.
(n) If a blood or breath test is not available under paragraph (1)
of subdivision (c) or under subdivision (k), the person shall submit
to the remaining test in order to determine the percent, by weight,
of alcohol in the person's blood. If both the blood and breath tests
are unavailable, the person shall be deemed to have given his or her
consent to chemical testing of his or her urine and shall submit to
a urine test.

655.5. Penalty for refusal of chemical test
(a) Whenever a person convicted of any violation of subdivision (b), (c), (d), (e), or (f) of Section 655 is found by the court to have willfully refused the request of a peace officer to submit to chemical testing of the blood, breath, or urine pursuant to Section 655.1, the court may impose enhanced penalties either by fine or imprisonment, or both, not to exceed the maximum of the penalties prescribed in Section 668.
(b) A willful refusal to submit to chemical testing pursuant to subdivision (a) shall be pled and proven.
(c) This section shall become operative on January 1, 1992.



San Diego DUI Defense Resource Center:
San Diego DUI Lawyer Rick Mueller, a San Diego Drunk Driving / DWI Defense Attorney handling San Diego California DUI & DMV cases, shows how a San Diego DUI Lawyer will help you.

San Diego DUI Lawyer Rick Mueller is a premier San Diego County Drunk Driving, DUI & DMV Defense attorney with over 25 years of experience. Known as a "DMV Guru," Rick Mueller dedicates 100% of his law practice to aggressively defending those accused of driving under the influence of alcohol. He has successfully saved the driving privileges of many clients in the past year alone. Complete the important Free San Diego County Drunk Driving Defense Survey to find out your best strategy and to protect your driving privileges in California.

San Diego DUI attorneys with a video report that the San Diego City Attorney's Office is deciding whether to file misdemeanor drunken-driving charges against Chargers defensive lineman Jamal Williams now that the results of his blood-alcohol test have come in.
Williams, who was arrested Feb. 1, had a blood-alcohol level of 0.07 percent, which is just under the state legal limit of 0.08, according to the California Highway Patrol's public information officer report on Wednesday.

Because the blood sample was drawn well after the arrest, meaning Williams could still may have been legally .08 at the time of the driving, depending in part on the reliability of retrograde extrapolation, a pseudo-science technique overzealously used by San Diego DUI prosecutors and often criticized by respected scientists and toxicologists.

The City Attorney's Office indicates the case is still under review and is being investigated further. The CA tries to make filing decisions as soon as possible after the arrest, but sometimes further investigation takes time, such as in this case.
Williams, 32, a three-time Pro Bowl nose tackle, was stopped about 1:30 a.m. on state Route 94 in his 2008 Bentley on a speeding violation, according to San Diego DUI lawyer information.

Drivers traveling State Route 67 can expect stepped-up enforcement and community outreach as a result of a $265,000 grant California Highway Patrol has received from the state Office of Traffic Safety (OTS) for a war on drunk drivers.
In the past three years, from 2005 through 2007, 11 people died and 65 were injured in DUI-related collisions along the 25-mile stretch of SR-67 between Ramona and Lakeside, reports the public information officer with the CHP’s El Cajon office.
The grant will pay for the “Arrive Alive—Don’t Drink and Drive” SR-67 Sober Driving Coalitions project.
“The grant will pay for aggressive DUI (driving under the influence) enforcement, public education and community outreach to try to reduce DUI-involved collisions,” said CHP El Cajon Area Capt. Teresa Sumprer.
CHP enforcement efforts will include roving DUI patrols and sobriety checkpoints during times there historically has been a high incidence of DUI driving violations. CHP will be working with the San Diego County Sheriff’s Department and Probation Department.
A task force of elected officials, community members and other government partners is being formed to look at the broad picture of DUI and how to address DUI issues along the corridor. The task force will be tasked with recommending what community outreach program will be most effective. The grant took effect April 1 and will end March 31, 2010.

San Diego DUI Lawyer Rick Mueller, a San Diego Drunk Driving / DWI Defense Attorney handling San Diego California DUI & DMV cases, shows how a San Diego DUI Lawyer will help you.

San Diego DUI Lawyer Rick Mueller is a premier San Diego County Drunk Driving, DUI & DMV Defense attorney with over 25 years of experience. Known as a "DMV Guru," Rick Mueller dedicates 100% of his law practice to aggressively defending those accused of driving under the influence of alcohol. He has successfully saved the driving privileges of many clients in the past year alone. Complete the important Free San Diego County Drunk Driving Defense Survey to find out your best strategy and to protect your driving privileges in California.

San Diego DUI criminal defense attorneys and San Diego Drunk Driving defense lawayers are told a bicyclist was struck and injured by a man suspected of a San Diego DUI - driving under the influence in Clairemont yesterday morning.

The driver, in his 20s, was arrested for drunk driving in San Diego. The bicyclist was struck while riding on Balboa Avenue near Charger Boulevard about 11:30 a.m. He was taken to a hospital with a chipped front tooth and a cut on his forehead, Wells said.

The driver allegedly had a suspended license from a previous DUI at the time of the crash.

San Diego Drunk Driving Defense Resource Center:

San Diego DUI Lawyer Rick Mueller, a San Diego Drunk Driving / DWI Defense Attorney handling San Diego California DUI & DMV cases, shows how a Top-Rated San Diego DUI Lawyer will help you.
San Diego DUI Lawyer - San Diego Attorney Drunk Driving can help you beat the San Diego drunk driving charge. Don't drivve on a suspended license!

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