P. v. Shore
Filed 1/2/13 P. v. Shore
CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
CHRISTOPHER PAUL SHORE,
Defendant and Appellant.
G046826
(Super. Ct. No. 11HF1712)
O P I N I O N
Appeal
from a judgment of the Superior Court of
County, Carla Singer, Judge.
Affirmed.
Marta
I. Stanton, under appointment by the Court of Appeal, for Defendant and
Appellant.
No
appearance for Plaintiff and Respondent.
We
appointed counsel to represent Christopher Paul Shore on
appeal. Counsel filed a brief that set
forth the facts of the case. Counsel did
not argue against her client but advised the court no issues were found to
argue on his behalf. Shore was given 30
days to file written argument on his
own behalf. Shore subsequently filed a
brief with this court.
Pursuant to
to assist the court in conducting its independent review, counsel provided the
court with information as to issues that might arguably support an appeal. Counsel listed as
possible but not arguable issues: (1)
whether the prosecutor violated Shore’s Fifth Amendment rights by improperly
asking the officer about Shore’s silence in response to the officer’s questions
at the scene; and (2) whether the trial court abused its discretion by
admitting evidence of “highly inflammatory photographs.†In his brief, Shore raises numerous issues: (1) his drinking was not the cause of the
accident and evidence of his blood alcohol level should not have been admitted;
(2) he was not advised of his rights before questioning; (3) the results of the
field sobriety tests should not have been admitted because the test was
invalid; (4) the introduction of the photographs of his wife and her injuries
was improper; and (5) the jury improperly considered newspaper and Internet
material in violation of the trial court’s admonition.
We have
reviewed the information provided by counsel and Shore’s brief. We have also independently examined the
record. We found no arguable
issues. (People v. Wende (1979) 25 Cal.3d 436.) We affirm the judgment.
FACTS
At
approximately 10:00 p.m., on the night of the accident, Fua Vi Elaine Vaeena and her
husband, Tony Tauai, were driving from Santa Ana to Oceanside on the
Interstate 5 freeway. Somewhere near San Juan Capistrano,
Vaeena saw a truck cut across traffic from the left lane to in front of her car
in the right lane without signaling. The
truck went off the ramp and crashed into an open field. Vaeena called 911 to report the accident.
At
approximately 10:30
p.m., California Highway Patrol Officer
Matthew Butler responded to the Junipero Serra off-ramp. Butler saw a woman,
Tina Wilson Shore,
was the driver of the vehicle. Butler smelled the
odor of alcohol emitting from Shore and observed Shore’s eyes were red and
watery. The officer also observed
Shore’s speech to be slurred.
Shore
told Butler that he was struck by another car.
When asked about his drinking, Shore was nonresponsive and quiet. But Shore did tell the officer he had gotten
married that day and he drank a few drinks of alcohol earlier in the evening.
Shore
was unable to satisfactorily perform the various sobriety tests Butler
administered. When asked to complete the
one legged stand test, Shore complained he had leg pain. The officer discontinued administration of
that test. Shore became nonresponsive
and quiet when the officer asked him further questions about drinking. When asked if he wanted to submit to a
preliminary alcohol screening test, Shore did not respond. Shore told Butler he sustained
a bump to his head. Tina had trauma to
her head and cuts on her forehead. Shore
and Tina were transported to Mission Hospital.
Tina
was treated at the hospital that night for lacerations to her face, a fracture
of the left orbital and left frontal sinus, and a possible fracture of the
second lumbar vertebra. At the hospital,
Butler took pictures of Tina’s injuries.
A blood sample drawn from Shore shortly after midnight revealed
a blood alcohol content of
0.127 percent.
An
amended information charged Shore with the following: driving under the influence of alcohol
causing bodily injury with two or more prior violations of Vehicle Code section
23153, subdivision (b), in violation of Vehicle Code section 23153, subdivision
(a), a felony (count 1); and driving with a blood alcohol level of 0.08 percent
or more causing bodily injury, in violation of Vehicle Code section 23153,
subdivision (b), a felony (count 2).
As to count one, the amended information alleged Shore personally
inflicted great bodily injury upon Tina pursuant to Penal Code
section 12022.7, subdivision (a).
With respect to counts 1 and 2, the amended information alleged Shore
suffered two prior convictions of Vehicle Code section 23152, subdivision (b).
At
trial, an expert testified that based on Shore’s height and weight, the test
results indicate Shore had approximately eight drinks. Based on a hypothetical mirroring the facts
of this case, the expert also opined there were six cues the driver was under
the influence for the purpose of driving.
The expert agreed a head injury could affect performance on one of the
sobriety tests.
Tina
testified she and Shore got married on the day of the accident at approximately
3:30 p.m. at the courthouse. After the
marriage ceremony, Shore returned to work.
At approximately 6:30 p.m., Tina and Shore went
to BJ’s Restaurant and Brewhouse (BJ’s) where they ate pizza and an appetizer,
and they each had one drink. At
approximately 8:00 p.m., they left BJ’s and sat in the car for an hour. They then went to Mugs Away Saloon (Mugs
Away) where Tina had one beer and Shore had one beer and two shots.
After
leaving Mugs Away, they headed home. On
their way home, they were involved in a car accident. Shore was driving the car. Tina sustained an injury above her left
eyebrow. She was treated and discharged
the same day. Tina testified she was
able to do all the things she normally does the next day, and did not think the
injury was serious.
The
trial court granted Shore’s motion to
bifurcate the prior convictions, and granted his Penal Code section 1118.1
motion to dismiss count two based on insufficiency of the evidence. Shore waived his right to a jury trial on the
prior convictions.
The
jury found Shore guilty of count one and found the enhancement
allegation that he personally inflicted great bodily injury pursuant
to Penal Code
section 12022.7, subdivision (a), to be not true. The prosecution dismissed the prior
convictions by electing not to proceed with a court trial on the prior
convictions.
The
trial court sentenced Shore to the upper term of three years in state prison on
count 1.
title="">[2] Shore filed a timely
DISCUSSION
We will first address
the issues suggested by counsel, and then address the issues raised in Shore’s
brief.
Prosecutor’s Questions and Comments about Shore’s
Silence
The prosecutor was
allowed to ask the officer about Shore’s failure to answer certain questions at
the scene and to comment on Shore’s failure to respond during
questions at a time when he was trying to determine whether Shore had been
driving under the influence and before any arrest was made.
At trial, defense
counsel first argued that when Shore failed to respond to the officer’s
questions during the field sobriety test, Shore was exercising his
Fifth Amendment
rights. A suspect “must articulate his
desire to [remain silent] sufficiently clearly that a reasonable police officer
in the circumstances would understand the statement to be [an invocation of the
right to remain silent].†(
452, 459.) The record shows Shore told
the officer he was the driver and provided information regarding his name and
date of birth. When asked how the
accident had occurred, Shore told the officer his car had been struck by
another vehicle. Shore only answered
some of the officer’s pre-sobriety test questions. He admitted to consuming alcoholic beverages,
but he did not specify the number. These
facts do not lead to an inference Shore was invoking his right to remain
silent.
Defense counsel also
suggested it would be Griffin
reluctance or failure to answer questions.
The trial
court overruled the objection and found no violation of Shore’s Fifth Amendment
rights. Under Griffin, the prosecutor is prohibited from commenting when the
defendant exercises his or her right to remain silent. (Griffin, supra, 380 U.S. at p.
615.) Concluding there was no invocation of the
right to remain silent, we find no Griffin
error.
Admission of Victim Photographs
Evidence Code section
352 provides: “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.†A trial court’s decision to admit photographs
under Evidence Code section 352 will be upheld on appeal unless the prejudicial
effect of such photographs clearly outweighs their probative value. (People
v. Lewis (2009) 46 Cal.4th 1255, 1281-1282.)
Two photographs of the
victim depicting her injuries were admitted over Shore’s objection. Shore argued the photographs did not tell the
jury much about the severity of the injuries and the prejudicial value
outweighed the probative value. Here,
the trial court expressly weighed the risk of undue prejudice against the
probative value of the photographs, and found the probative value outweighed
any prejudice. The court observed the
victim was depicted wearing a neck brace, with gauze over her left eye, and the
cuts were severe enough that bleeding could be seen. The court then noted the crux of the case was
whether there was infliction of great bodily injury, a fact the defense was
contesting. It was only after the
appropriate weighing process that the court admitted the photographs. We have reviewed the photographs and find no
abuse of discretion.
Issues Raised in Shore’s Brief
Shore contends his
drinking was not the cause of the accident and evidence of his blood alcohol
level should not have been admitted. On
appeal, an appellate court’s role is to “ensure the evidence is reasonable,
credible, and of solid value,†and, “if the verdict is supported by substantial
evidence, we must accord due deference to the trier of fact and not substitute
our evaluation of a witness’s credibility for that of the fact finder.
[Citations.]†(People v. Jones (1990) 51
Cal.3d 294, 314.) In applying the
substantial evidence standard of review, the appellate court adopts all
reasonable inferences and presumes in support of the judgment the existence of
every fact that a jury reasonably could have deduced from the evidence. The trier of fact makes credibility
determinations and resolves factual disputes.
An appellate court will not substitute its evaluation of a witness’s
credibility for that of the fact finder.â€
(People v. Vazquez (2009)
178 Cal.App.4th
347, 352.)
The cause of the
accident was a factual issue for the jury.
We reject Shore’s contention his drinking and driving was not the cause
of the accident. Substantial evidence
supports a finding Shore was operating a motor vehicle while under the
influence of alcohol and committed two or more traffic violations. Shore fails to establish why the test results
should not have been admitted. After
reviewing the record, we conclude the results were properly admitted into
evidence.
Shore complains he was
not advised of his “rights†before he was questioned. We assume Shore means his
interrogation unless he or she has been advised of and knowingly and
intelligently has waived the right to remain silent, to the presence of an
attorney, and to appointed counsel if indigent.
(People v. Dykes (2009) 46
Cal.4th 731, 751.) Custodial
interrogation has two components. First,
the person being questioned must be in custody.
Second, the questioning must constitute an interrogation. (People
v. Mickey (1991) 54 Cal.3d 612, 648.)
“The phrase ‘custodial interrogation’ is crucial. The adjective [custodial] encompasses any
situation in which ‘a person has been taken into custody or otherwise deprived
of his freedom of action in any significant way.’ [Citation].â€
(Id. at p. 648.) The advisement of Miranda rights is only required when a person is subject to
custodial interrogation. Here, Shore was
not in custody when questioned at the scene.
Accordingly, there was no need to advise him of his Miranda rights.
Shore
complains the results of the field sobriety tests should not have been admitted
into evidence because the tests were invalid.
He argues his performance on the tests was influenced by his
injuries. Evidence of Shore’s physical
condition and injuries was before the jury.
Officer Butler testified that when Shore was initially asked if he was
sick or injured, he responded he was not.
When asked if he had any physical impairments, Shore said he did
not. Later, when he was asked to
complete the one legged stand test, Shore complained he had
of that test. The officer also recounted
Shore complained of head pain from a bump on his head. The officer conceded a head injury could
negatively affect performance on the nystagmus test.
Shore fails to establish
why the results of the field sobriety tests were invalid and therefore, should
not have been admitted into evidence.
The jury was aware of the injuries Shore claimed to have and could give
those factors whatever weight it felt appropriate in evaluating the results of the
tests. After reviewing the record, we
conclude the results were properly admitted into evidence.
Shore claims the jury
improperly considered newspaper and Internet material in violation of the trial
court’s admonition. He claims his wife
heard jurors outside the courtroom discussing the case and articles about the
case. Our review is limited to the
record before us. (People v. Barnett (1998) 17 Cal.4th 1044, 1183.) Shore offers no other support for his claim
of jury misconduct, and we find none in the record.
Lastly, Shore complains
about the admission of the photographs of his wife’s injuries. We have addressed the issue and need say
nothing more.
DISPOSITION
The
judgment is affirmed.
O’LEARY,
P. J.
WE CONCUR:
RYLAARSDAM, J.
IKOLA, J.
name="_ftn1" title="">[1] We refer
to the victim, Tina Wilson Shore, as Tina to avoid confusion. We intend no disrespect.
trial court found Shore to be in violation of probation in case number 09HF0274
(People v. Shore (Super. Ct. Orange
County, 2009)), with credit for time served, but that sentence is not a subject
of this appeal.
