P. v. Hidalgo

Filed 3/6/08 P. v. Hidalgo CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Michael K. Kellogg, Judge, Anne H. Egerton, Judge, Michael Pastor, Judge.

Affirmed.

Meredith Fahn, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * * * * * * * * *

After hearing evidence that appellant had a blood alcohol level of 0.17 percent, a jury convicted appellant of driving under the influence of alcohol and of driving while having a blood alcohol level of 0.08 percent or higher. The jury initially deadlocked on another charge of possessing a dirk or dagger, but ultimately convicted him of that charge. On appeal, Hidalgos counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, stating that no arguable issue exists. We have independently reviewed the record, find no arguable issue, and affirm the judgment.

PROCEDURAL BACKGROUND

On October 21, 2005, Hidalgo was charged with violation of Vehicle Code section 23152, subdivision (a), (driving under the influence of alcohol or drugs); Vehicle Code section 23152, subdivision (b) (driving while having a 0.08 or higher blood alcohol level); and Penal Code section 12020, subdivision (a)(4) (carrying a dirk or dagger). Three convictions pursuant to Vehicle Code sections 23550 and 23550.5, and one pursuant to the Three Strikes law were alleged. Hidalgo pled not guilty. Hidalgo moved to strike the prior three strikes allegation. The court denied the motion. The court found the facts of the prior conviction for vehicle manslaughter to be horrific because three people could have been killed even though only one person was killed.

Hidalgo had two private attorneys before a bar panel attorney was appointed. Hidalgo made a Marsden motion with respect to appointed counsel, which was denied.^[1] Hidalgo also made a Faretta^[2]motion and requested a continuance. The court denied the continuance and deemed the Faretta motion withdrawn. Then a second Faretta motion was granted. At that time, the court indicated that there would be no further continuances because Hidalgo had numerous lawyers and his request had already been denied as untimely. The court asked, Are you ready for trial? Hidalgo replied, Yes, I am. A second time Hidalgo answered, Yes, Sir, Im ready for trial.

After asking Hidalgo several questions, the court found that he voluntarily and intelligently waived his constitutional right to have counsel represent him. Hidalgos motion to bifurcate the priors was granted. The court denied Hidalgos request for a continuance.

After the jury was selected, Juror No. 13 indicated that English was difficult for him. The court found: I had a chance throughout this proceeding to observe juror 13 and to listen to him. Certainly, he was born in Armenia. But in view of my questions to him as well as those of Ms. Knight [the prosecutor], and in view of his answers to questions and my observations of his demeanor, he is certainly competent and capable to serve as a juror in this case.

Just before trial, the court again denied a continuance requested by Hidalgo. Two police officers testified for the prosecution and Hidalgo did not object to any of their testimony. Hidalgo waived his right to testify and called no witness for the defense. Hidalgo did not object to any of the jury instructions.

The jury requested to see Peoples exhibit 2, the alleged dirk or dagger. They sent a note saying that they were undecided on the dirk or dagger count. The court dismissed them for the day and ordered them to return the next day and continue deliberating. The jury requested clarification of the words substantially concealed and readback of Officer Aaron Skivers testimony regarding the dagger.

While the jury was deliberating, appellant gave up his right to represent himself on the priors portion of trial. The court appointed counsel (who had been standing by) to represent him. Appellant then waived jury trial on the priors.

The jury found Hidalgo guilty of driving while under the influence of alcohol, driving with an alcohol level greater than 0.08, and carrying a dirk or dagger. The court found all the priors to be true. The court also found the alleged prior under the Three Strikes law to be true.

The court denied Hidalgos renewed Romero motion with respect to the vehicular manslaughter.^[3] The court reasoned that since 1985, Hidalgo has persisted in driving while under the influence and without a license. He persists in violating other laws, including commission of an act of violence by the infliction of corporal injury upon a spouse or cohabitant, by possession of a firearm by a convicted felon. And in the process, he has 24 arrests. He has ten misdemeanors and three felonies. Numerous probation violation matters. The court further concluded Hidalgo is precisely the type of individual for whom the strike law is designed because Mr. Hidalgo has not learned from his prior misconduct.

The court ordered appellant to serve the high term of three years for count 1 and doubled that term pursuant to the Three Strikes law. The court found appellants prior convictions were numerous and of increasing seriousness and that Hidalgo was on probation at the time of the instant offenses and served a prior prison term. The court imposed the same sentence on count 2, but stayed the sentence pursuant to section 654. The court imposed a sentence of one-third the midterm of 24 months on count 3. The court then doubled the eight-month term pursuant to the Three Strikes law. The aggregate term was seven years four months. Hidalgo received 533 days actual credit, plus 267 days good time credit for a total of 800 days.

We appointed counsel to represent Hidalgo in this appeal. Counsel for Hidalgo filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436, finding no arguable issue for our review. Hidalgo was appraised of his right to file a supplemental brief and exercised that right.

FACTUAL BACKGROUND

On April 27, 2005, Rufus Ward, a police officer for the Los Angeles Police Department saw appellant driving a blue Oldsmobile Cutlass Sierra in which appellants father Ramon Hidalgo was a passenger. Appellant was speeding at night, without lights, in a residential area and ran two stop signs. Ward stopped the vehicle and, when she approached, she immediately smelled alcohol. Appellants eyes were red. Appellant stumbled when he exited the car and swayed as he walked. Appellants father also appeared intoxicated.

With the assistance of Officers Skiver and Mares, appellant was taken to the police station. Appellant said he had drunk two beers. Appellant was unable to perform field sobriety tests at the police station. (They were not performed at the stop because of the conditions of the sidewalk there.) Ward performed a Breathalyzer test. The results showed appellant had 0.17 or 0.18 percent blood alcohol level.

Aaron Skiver, a police officer with the City of Los Angeles, helped transport appellant to the police station. Skiver noticed an object with an orange handle sticking out of appellants underwear and concealed in his buttocks. The object was a four-inch pointed file. Peoples exhibit 2 the object Skiver retrieved was shown to the jury.

DISCUSSION

On appeal, Hidalgo filed a supplemental brief making the following arguments, which we quote in their entirety:

1. My Romero motion was denied

2. No access to the law lib[r]ary

3. No access to a phone

4. No access to a private investigator

5. I was not ready to proceed in trial. I wasnt fully prepared. Due to the facts stated above and also lack of time to defend my self by my self

6. Breathalyzer test results should have yielded 7 readings and there were only 5, and three of them were blanks. Two of the readings varied slightly. What happened to the other two readings? And of the two readings, why did they vary?

7. The officer testified that the machine readings vary[] when you dont blow hard enough. I believe that the officer is not a[n] expert to determine[] this fact

8. Im driving my car, I get pulled over, the officer finds a[n] open container on the passenger side. The open container belonged to the passenger. Takes me to the police station, Im released with no charges. 4 months later, I have a[n] officer come to my front door. The officer serves me with a warrant, places me under arrest. Im booked in the county jail. The charges filed against me are D.U.I, possession of a dagger (Im not on parole or probation). Why was I released from the police station with no charges not even for the possession of the dagger[?]

We have reviewed the entire record and appellants contentions and find no arguable issue. We briefly discuss why appellants arguments lack merit in accordance with People v. Kelly (2006) 40 Cal.4th 106.

Issue 1- Romero Motion: The trial court reasoned that Hidalgo is precisely the repeat violator for whom the Three Strikes law was designed. The probation report supports the conclusion that even after a vehicular manslaughter appellant continued to drive while under the influence and without a license. The trial court acted well within its discretion in choosing not to strike appellants prior conviction under the Three Strikes law. (See People v. Carmony (2004) 33 Cal.4th 367, 374 [courts decision on a Romero motion not to strike a prior is subject to review for abuse of discretion].)

Issues 2, 3, 4, and 5: Appellant states that he was denied access to the law library, a phone, a private investigator and was not ready to proceed to trial. Appellants statement that he was not ready to proceed to trial is contradicted by his statement to the court at the time of trial. On September 14, 2006, one judge denied appellants Faretta motion. Appellant raised the motion a second time the next day before a different judge. Appellant told that judge that he was ready for trial.

Before trial, appellant told the court that he could not get to a phone and did not get the list for an investigator. However, appellant also told the court that the only witness he intended to call his father was present. Appellant made clear, I dont have no witnesses except for my dad. Therefore, appellant does not show that access to a phone or investigator would have affected in any manner the outcome of trial. Nor does he show that he was denied access to the law library.

Nor was there any error in denying appellant a continuance. He had already been through several attorneys; it had been almost a year since the preliminary hearing; and the court granted his Faretta motion on the day trial was scheduled to start with the understanding that appellant was ready to go to trial.

A Faretta motion is considered timely if it is made within a reasonable time prior to the commencement of trial.  (People v. Burton (1989) 48 Cal.3d 843, 852, quoting People v. Windham (1977) 19 Cal.3d 121, 128.) A motion made on the eve of trial is not timely and it is addressed to the sound discretion of the trial court. (People v. Frierson (1991) 53 Cal.3d 730, 742.) Hidalgos motion made on the eve of trial was untimely. The court acted in its discretion in allowing Hidalgo to proceed in pro. per. only if Hidalgo were ready to start trial.

Issues 6 and 7: Officer Ward explained that with the breathalyzer test between every time he tries to blow into the machine, the machine has to purge itself, make the air sterile to get another positive reading for the next attempt. The machine shows .000 when it clears itself between readings. That evidence explains what appellant describes as blanks. There was no evidence that there should have been seven readings or that a discrepancy between 0.17 and 0.18 is significant.

Appellant challenges Officer Wards testimony that people usually have to blow into the Breathalyzer several times to get a reading and that everybody thinks they can beat the machine by blowing lightly. You have to blow really hard to get a reading. They think if they blow light, it will give them a lower reading. That is never true. Eventually, they blow and blow until it registers.

On appeal, he argues that Officer Ward was not qualified to render this testimony. This objection, however, was not made in the trial court and is forfeited. (Evid. Code,  353, subd. (a).) In any event, Officer Ward testified that she had training in DUI investigations, teaches other officers how to do DUI investigations, made approximately 40 DUI arrests, and evaluated numerous DUI subjects.

Issue 8: Appellant asks, Why was I released from the police station with no charges not even for the possession of the dagger[?] Appellant does not explain how this statement constitutes a challenge to his conviction or sentence.

We have reviewed the entire record and find no arguable issue on appeal and are satisfied that Hidalgos attorney has fully complied with the responsibilities of counsel. (Smith v. Robbins (2000) 528 U.S. 259, 278; see also People v. Kelly, supra, 40 Cal.4th at p. 111 & People v. Wende, supra, 25 Cal.3d at p. 441.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COOPER, P. J.

We concur:

RUBIN, J.

FLIER, J.

Publication Courtesy of California attorney referral.

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^[1]People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

^[2]Faretta v. California(1975) 422 U.S. 806 (Faretta).

^[3]People v. Superior Court (Romero) (1996) 13 Cal.4th 497.