P. v. McNealley
Filed 7/26/12 P. v.
McNealley CA3
NOT
TO BE PUBLISHED
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Siskiyou)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL LAWRENCE MCNEALLEY,
Defendant and Appellant.
C066215
(Super.
Ct. No. MCYKCRTR 10-0401)
Defendant Michael
Lawrence McNealley was convicted after a bifurcated jury trial of driving under
the influence of alcohol, with a blood-alcohol percentage of .08 percent or
higher, and having sustained three prior driving under the influence
convictions within the previous 10 years.
(Veh. Code, § 23152, subds. (a) & (b).) The trial court imposed and suspended a
three-year prison term and placed defendant on probation for three years with
the condition he spend one year in county jail.
Defendant
appeals. He contends the trial court’s
rulings on his motion in limine
regarding the reporting witness were in error and chilled his ability to mount
a defense in violation of his due process
rights. We affirm.
BACKGROUND
Because
defendant’s assignments of error relate to the trial court’s in limine rulings,
we set forth the evidence proffered by the parties at the time the rulings were
made, not the evidence presented at trial.
(People v. Welch (1999) 20
Cal.4th 701, 739 [in reviewing the trial court’s ruling, we consider the facts
that were before the court at the time of its ruling, not those produced at a
later date]; People v. Hernandez
(1999) 71 Cal.App.4th 417, 425 [same].)
On January 23,
2010, defendant was arrested for driving under the influence by California
Highway Patrol (CHP) officer Jason Morton.
Morton had been told by dispatch that a caller had reported to be on the
lookout for a silver sport utility vehicle (SUV), driving erratically on US-97,
with the last two numbers on the license plate possibly being 9-5. Morton proceeded to US-97 to look for the
vehicle.
Morton saw a gray
SUV with the last numbers on the license plate being 9-5-2. The driver of the vehicle was driving
erratically, repeatedly driving onto and over the painted lane lines. The vehicle’s registration tags were also
expired.
Morton contacted
defendant, who had been driving. There
was also a female passenger in the car, who had a suspended driver’s
license. Morton conducted a field
sobriety investigation, after which he determined defendant was under the
influence of alcohol. The two
preliminary alcohol screens registered .148 and .141. The subsequent chemical breath test
registered .12.
In May 2010,
defendant’s private investigator called a woman named Julia Blacketer. Blacketer said the passenger’s brother told
her that his sister, Leea, was driving the vehicle at the relevant time. Defendant asked Blacketer to talk to Leea and
tell her to accept responsibility for her actions, which Blacketer did. Blacketer tried but Leea said she could not do
what defendant was asking because she did not want to pick up another case for
driving on a suspended license.
Blacketer does not like Leea and told defendant Leea was not good for
him, but defendant loves her.
In June 2010, the
prosecutor’s investigator spoke with the individual who had called to report
the possible drunk driver –- Gabriel Trull.
Trull stated he had been driving on US-97 when a silver SUV approached
at a high speed. The vehicle swerved to
the right just before it almost hit his vehicle and a large semitruck. It was too dark to see the person driving the
silver SUV. After the near collision,
Trull stopped at a rest stop. While
there, he saw a man, who reeked of alcohol, leave the restroom and get in the
driver’s side of the same silver SUV that had nearly hit him. There was also a female passenger in that
vehicle. He called CHP because he was
concerned the driver was impaired and would cause a serious or fatal
accident.
DISCUSSION
Prior to trial,
the prosecutor successfully moved to exclude Blacketer’s testimony as
inadmissible hearsay. The trial court
noted, however, that its ruling could change if the passenger were to
testify. Defendant filed a motion in
limine to exclude any testimony from Trull.
Specifically, his motion sought to exclude Trull’s testimony (based on
asserted irrelevance and prejudice) and to require a pretrial, or
lineup if Trull were permitted to
testify.
The trial court
indicated that it tended to agree with the prosecutor’s argument that the
wished to first address the relevance and admissibility issue. The trial court confirmed that there was no
motion to suppress being brought or other challenge to the officer’s reasons
for looking for and following the SUV in question. It then excluded Trull’s testimony, at least
in the prosecution’s case-in-chief, pursuant to Evidence Code section 352. The trial court emphasized that its ruling
could change, depending on the defense case.
Upon further inquiry from defendant as to what would or would not tend
to change the admissibility, the court noted that, should the defense make a
significant issue out of whether defendant was driving, who Trull saw get into
the vehicle would be much more relevant.
The trial court stated, however, that it was “not going to give . . . a
preview of a ruling” but only indicated how it saw the evidence could become
more relevant.
The trial court
then revisited the Evans motion and
said it was untimely but that it would agree to hold an Evidence Code section
402 hearing prior to any testimony to see what Trull remembers “if it comes to
that.” Defendant agreed to the
procedure.
I
We emphasize,
initially, that the trial court granted
defendant’s motion in limine to exclude the testimony of Trull. Nonetheless, defendant takes this appeal,
essentially claiming the trial court’s comments
were “an abuse of discretion” and violated his due process rights. The claim is frivolous.
Defendant
complains about the trial court’s remarks that its ruling excluding Trull’s
testimony could change depending on
the evidence presented by defendant such as evidence that he was not
driving. He claims that the court would
have been in error to admit the testimony, even under those circumstances, because
Trull’s testimony still would not have been relevant. Not only is this all theoretical, since
Trull’s testimony was never even offered
at trial, he is simply wrong.
Defendant takes
great pains to emphasize that Trull had yet to be asked to identify defendant
as the man he saw getting into the driver’s side of the vehicle at the rest
stop. While such an identification would
certainly be helpful to the prosecution, it was not necessary to render Trull’s
testimony relevant. Trull’s testimony
that a man got into the driver’s side and a woman was in the passenger seat of
the vehicle that Morton ultimately encountered, tends in reason to establish
that the man, not the woman, in that vehicle had been driving -– at least at
the time Morton encountered them. And
the man in that vehicle was
defendant.
We also flatly
reject defendant’s contention that the trial court’s comments, indicating it
may revisit its ruling depending on evidence presented at trial, such as
evidence concerning whether Morton actually saw defendant driving the vehicle,
violated his due process rights by improperly forcing him to abandon his only
viable defense. He argues he would have
testified on his own behalf that he had not been driving but did not do so
because Trull’s testimony may have been permitted in rebuttal and Trull may
have been able to identify him at trial.
This, of course, is all speculation because none of it occurred.
Moreover, the
application of the ordinary rules of evidence does not generally infringe
impermissibly on a defendant’s constitutional rights. (People v. Boyette (2002) 29 Cal.4th
381, 427-428.) Defendant, like other
witnesses, is subject to impeachment with admissible evidence if he chooses to
testify. And a defendant who does not
testify cannot challenge a ruling admitting impeachment evidence. (People v. Ledesma (2006) 39 Cal.4th
641, 731; People v. Collins (1986) 42 Cal.3d 378, 383-388.)
II
Defendant also
contends the trial court abused its discretion and denied him due process when
it declined to order Trull to participate in a pretrial Evans lineup. This
contention is more frivolous than his last.
In a case where
a material issue and there exists a reasonable likelihood of a mistaken
identification which a lineup would tend to resolve, due process requires that
an accused, upon timely request, be afforded a pretrial lineup for
witnesses. (Evans, supra, 11 Cal.3d at p. 625; People
v. Farnam (2002) 28 Cal.4th 107, 183-184.)
The trial judge is vested with “broad discretion” in this realm, and the
timeliness of such a request plays a big part in that discretion. (Evans, supra, 11 Cal.3d at pp. 625-626.) “Such motion
should normally be made as soon after arrest or arraignment as practicable.
. . . [M]otions which are not
made until shortly before trial should, unless good cause is clearly
demonstrated, be denied in most instances by reason of such delay.” (Id. at p. 626.)
Here, the trial
court noted defendant’s Evans lineup
request was untimely. Defendant filed
the motion seven months after his arrest, six weeks after the investigator
obtained Trull’s statement, and on the day before trial. At the in limine hearing on defendant’s
motion, when the court remarked that he could have made the request “a long
time ago,” he responded, “I do understand that” and he provided no excuse for
failing to bring the motion sooner.
Under these circumstances, finding the request untimely is not an abuse
of discretion.
More importantly,
the trial court did not deny defendant’s request.
were to testify. Trull did not
testify.
DISPOSITION
The judgment is
affirmed.
NICHOLSON , J.
We concur:
RAYE , P. J.
MURRAY , J.
name="_ftn1" title="">[1] Evans
v. Superior Court (1974) 11 Cal.3d 617, 625 (Evans).
name="_ftn2" title="">[2] Although the trial court stated that the
request was untimely, it did not actually rule on defendant’s
Code section 402 hearing in the event the prosecutor sought to offer Trull’s
testimony in rebuttal. Defendant agreed
to this procedure.
