P. v. Watanabe
Filed 9/6/12 P. v.
Watanabe 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NOT
TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
RANDALL WATANABE, JR.,
Defendant and Appellant.
C066796
(Super.
Ct. No. 10F01846)
A jury convicted
defendant Randall Watanabe, Jr., of driving under the influence of alcohol and
driving with a blood alcohol level of .08 percent or more. The trial court sentenced him to six years in
prison and awarded 201 days of presentence credit (134 actual and 67
conduct).
Defendant contends
on appeal that trial counsel was ineffective for failing to raise a
police. In a supplemental brief, he
contends that the prospective application of the Criminal Justice Realignment
Act of 2011 (Realignment Act) (Stats. 2011, ch. 15) violates his right to
We will affirm the
judgment.
BACKGROUND
Hannah Stringer
was riding in the front passenger seat of her sister’s Ford Mustang on March 7, 2010, at around 9:30 p.m.
Hannah’s sister was driving the Mustang on Elk
Grove Boulevard.
While the Mustang was stopped at the intersection of Elk
Grove Boulevard and Elk
Grove-Florin Road, Hannah saw a gold, older model
Cadillac speed through the intersection from the opposite direction. Hannah later saw the Cadillac on the side of
the road, straddling the southbound lane and a ditch.
As the Mustang
slowly approached, the Cadillac abruptly pulled out in front of the
Stringers. The Cadillac then sat in the
road for about 45 seconds before making a U-turn into the northbound lane. Hannah saw the Cadillac cut off two more cars
before heading southbound on the road.
The Cadillac drove
southbound in the northbound lane, pulled up next to the Mustang, and then
moved behind it. The Cadillac again
pulled up next to the Mustang at a stop sign.
Hannah saw the driver and something on the backseat floor large enough
to rise slightly above the backseat.
After pausing at
the stop sign, the Cadillac pulled forward and started to drive in circles
around the Mustang. The Cadillac drove
about eight times around the Mustang, then circled twice and drove southbound
on East Stockton Boulevard
toward Grant Line Road. As the Cadillac drove south on East
Stockton Boulevard, it swerved in and out of the
northbound lane, “playing chicken” with oncoming traffic. The Cadillac did circles in the intersection
at Grant Line Road. Hannah lost sight of the Cadillac as it drove
off to Kammerer Road.
Hannah described
the driver as a stocky, light-skinned Hispanic male between 25 to 30 years old,
wearing a baseball cap backwards. She
was unable to identify defendant as the driver, but she said a picture of
defendant’s father looked like an older version of the driver.
That same night,
Elk Grove Police Officer Chris Morrow responded to a dispatch about a reckless
driver near the intersection of Grant Line Road
and East Stockton Boulevard. The driver was reported as a light-skinned
Hispanic or white male with a backwards baseball cap, driving a gold Cadillac
and doing doughnuts in the middle of the intersection. At 9:51 p.m.,
Officer Morrow received a dispatch about a tan or silver Cadillac going off the
roadway and into a ditch at Kammerer Road
or Grant Line Road.
Officer Morrow
drove to Kammerer Road and
found a gold Cadillac in a ditch on the north side of the road about 50 feet
from McMillan Road. No one was in the car, but the keys were in
the ignition. Officer Morrow drove west
and found defendant heading west about 300 yards from the intersection of McMillan
Road and Kammerer Road. Defendant was stumbling just inside the white
line on the right side of the road.
Defendant was wearing a black tank top and a backwards baseball
cap.
Officer Morrow
exited his vehicle and asked defendant if he drove the gold Cadillac down the
road. Defendant admitted he drove the
Cadillac. Defendant said he parked the
car in a ditch after it stopped working.
Defendant’s eyes were glassy and bloodshot, his feet were unsteady, his
speech was extremely slurred, and he had a strong odor of alcohol. Officer Morrow detained defendant for public
intoxication and put him in the backseat of his patrol car.
Officer Morrow
then drove back to the Cadillac, where a check of the registration showed that
defendant owned the car. A wallet with
defendant’s driver’s license was on top of the center console. The top portion of the key in the ignition
was bent, and there was nothing in the backseat.
Defendant was
taken to a safe place to conduct field sobriety tests. Before conducting the tests, Officer Morrow
again asked defendant if he drove the Cadillac.
Defendant affirmed that he drove it.
Officer Morrow then asked defendant where he was going and whether there
was anything wrong with the Cadillac.
Defendant replied that he was coming from the main jail to his uncle’s
house, and there was nothing wrong with the car.
Following various
sobriety tests, Officer Morrow arrested defendant for driving under the
influence of alcohol. According to a
blood test at the police station, defendant had a .30 percent blood alcohol
level, with an estimated blood alcohol level of .33 percent at the time of his
arrest.
Defendant’s
father, Randall Watanabe, Sr., testified that on the night of the incident he
went with defendant to a barbecue at the house of defendant’s uncle, Jack
Ortega. The father had three to four
shots of vodka and about 12 beers between 2:30 p.m. and around 9:00 p.m. Seeing that defendant was slurring his words
and walking unevenly, the father said he decided that defendant was in no
condition to drive. The father testified
that he took defendant’s wallet and keys and drove defendant home.
The father
admitted driving erratically that night.
At some point, the low oil pressure light came on and the Cadillac
started losing power. The father allowed
the Cadillac to drift into a ditch.
According to the father, he turned off the ignition but broke part of
the key. He then left defendant passed
out in the car while he walked towards an AM/PM and the uncle’s house for
help.
The uncle
testified that the father and defendant left the uncle’s home on the night of
the incident and that the father was the driver.
Travis Small saw a
light colored (possibly gold) sedan in a ditch on Kammerer Road near Grant Line
Road on March 7, 2010, at around 9:50 p.m. He saw two males, possibly Hispanic males,
near the car. They looked to be in their
20’s, but could have been older. They
appeared to be stuck, so Small called 911.
A jury convicted
defendant of driving under the influence of alcohol (Veh. Code, § 23152, subd.
(a); count one) and driving with a blood alcohol level of .08 percent or more
(Veh. Code, § 23152, subd. (b); count two).
The jury found true the additional allegation that defendant drove with
a blood alcohol level of .015 percent or more (Veh. Code, § 23578). Defendant admitted prior convictions for
driving under the influence and vehicular
manslaughter while intoxicated within the last 10 years (Pen. Code, § 192,
subd. (c)(3);
title="">[2]
Veh. Code, §§ 23550.5, 23152, subd. (a)), as well as a strike and two prior
prison term allegations (§§ 1192.7, subd. (c), 667.5, subd. (b)). The trial court sentenced defendant to six
years in state prison and awarded 201 days of presentence credit (134 actual
and 67 conduct).
DISCUSSION
I
Defendant contends
trial counsel rendered ineffective assistance by not raising
statements to Officer Morrow after the initial detention. We disagree.
interrogation unless the suspect “knowingly and intelligently has waived the
right to remain silent, to the presence of an attorney, and to appointed
counsel in the event the suspect is indigent.
[Citations.]” (
440.) “Custodial interrogation” occurs
when a law enforcement officer questions a suspect after placing him or her
under formal arrest, or restraining the suspect’s freedom of movement to the
degree associated with a formal arrest.
(California v. Beheler (1983)
463 U.S. 1121, 1125 [77 L.Ed.2d 1275, 1279].)
Defendant argues
he was in custody when Officer Morrow detained him for public drunkenness. Since Officer Morrow did not administer
statements he made after the detention were inadmissible.
The defense did
not raise a Miranda objection at
trial, which forfeits the claim on appeal.
(People v. Mattson (1990) 50
Cal.3d 826, 854 [“‘a defendant must make a specific objection on
order to raise a Miranda claim on
appeal’”].) Defendant instead argues
that his trial counsel was ineffective in failing to raise a
To prevail on a
claim of ineffective assistance of counsel, defendant must establish his
attorney’s representation fell below professional standards of reasonableness
and must affirmatively establish prejudice.
(Strickland v. Washington
(1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) Where the defendant has failed to demonstrate
prejudice, we need not determine whether counsel’s performance was objectively
deficient. (Id. at p. 697 [80 L.Ed.2d at p. 699].) To demonstrate prejudice, defendant must show
that “‘there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’ [Citations.]”
(People v. Ledesma (1987) 43
Cal.3d 171, 217-218.)
Officer Morrow
asked defendant a series of questions after the detention to prepare for the
field sobriety tests. The questioning
elicited from defendant that he had no medical or physical condition which
would impair his performance on the sobriety tests. Defendant also admitted that he had been
drinking, and he admitted several times that he had been driving.
Defendant’s
intoxication was conclusively established by his blood alcohol level of .33
percent at the time of his arrest; the only issue at trial was whether he or
his father was the driver of the abandoned Cadillac. While the post-detention interrogation did
get defendant to admit he was the driver, he made the same admission to Officer
Morrow in the initial encounter before he was detained. Defendant’s initial admission was not the
only evidence that he drove the Cadillac.
Defendant’s driver’s license was in a wallet lying on top of the car’s
center console, and defendant was the only person encountered by Officer Morrow
in the vicinity of the abandoned Cadillac.
Defendant argues
that his initial admission, if taken alone, could be seen as the product of a
confused and intoxicated mind. According
to defendant, if defendant’s first statement “was the only admission the jury
heard it would not be given as much weight as when coupled with later
admissions and statements.” Arguing that
the case against him was “weak,” defendant concludes he was prejudiced by trial
counsel’s failure to object to the “strongest evidence against [him],” his
admissions.
Defendant’s first
admission and the circumstantial evidence noted above provided compelling
evidence that defendant was in fact the driver.
His statements after the detention were merely duplicative of this
evidence; defendant’s claim that they made the initial admission more credible
to the jury is too speculative to establish prejudice. Since defendant has not established
prejudice, we reject his claim of ineffective assistance.
II
Defendant
committed his crime on March 7, 2010. He
admitted a strike allegation that he had a prior vehicular manslaughter conviction,
a serious felony. (§ 1192.7,
subd. (c)(8).) He was sentenced on
November 18, 2010.
The trial court
sentenced defendant under the September 28, 2010 revision of the presentence
credit law. Under that version, a
defendant with a current or prior serious or violent felony conviction was
entitled to two days of conduct credit for every four days of presentence
custody. (Former §§ 2933, 4019.)
The Realignment
Act amended the law, entitling defendants to two days of conduct credit for
every two days of presentence custody.
(§ 4019, subds. (b), (c), (f).)
The award of credit is not reduced by a defendant’s prior conviction for
a serious or violent felony. This
provision applies prospectively to defendants serving presentence incarceration
for crimes committed on or after October 1, 2011. (§ 4019, subd. (h).)
Defendant argues
that the prospective application of the conduct credit provisions of the
Realignment Act violates his right to equal protection under the law. This claim was rejected by the California
Supreme Court in a case decided after the conclusion of briefing. (People
v. Lara (July 19, 2012, S192784) 54 Cal.4th 896, 906, fn. 9.) Applying Lara,
we reject defendant’s claim.
DISPOSITION
The judgment is
affirmed.
MAURO
, J.
We concur:
HULL , Acting P. J.
ROBIE , J.
name="_ftn1" title="">[1]
[16 L.Ed.2d 694] (Miranda).
name="_ftn2" title="">[2] Undesignated statutory references are to the
Penal Code.
