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People v. Davis (Unpub., DCA3 – 4-10-08)
A jury convicted def. Davis of DUI of alcohol and drugs (VC §23152(a); count one), being under the influence of methamphetamine (H&S Code §11550(a); count two), and driving on a suspended license (VC §14601.2(a); count three). He admitted a prior DUI conviction as to count one (VC §23550.5(a)(1) ), a prior driving-on-a- suspended- license conviction as to count three (VC §14601.2(d)(2) ), and 3 prior prison terms (PC §667.5(b)). He was sentenced to state prison for 5 years, consisting of the middle term of 2 years on count one plus 3 years for the prior prison terms. The prosecutor amended count three to the lesser offense of violation of VC §14601.1. Concurrent county jail terms were imposed for counts two and three. On appeal, def. contends (1) the prosecutor committed several acts of prejudicial misconduct during closing summation, (2) evidence of a HGN test was erroneously admitted, and (3) his mistrial motion was erroneously denied.
Early in the morning of January 14, 2006, CHP Officer White observed def. driving a pickup truck without illuminated headlights. White effected a traffic stop of the truck. Def. did not have a driver’s license, and White detected the odor of alcohol from within the truck. After def. acknowledged that he had consumed some beer, White asked him to get out of the truck. Officer White had def. perform a series of FST’s on which he had various difficulties. In addition, White noticed that def.’s pupils were dilated and unresponsive to light or movement; he was unsteady on his feet; he appeared to have trouble paying attention; and he was fidgety. White asked def. when he had last consumed methamphetamine. Def. looked down and replied, “you got me.” White arrested def. At the station, Officer White administered a breath test, which showed that def.’s BAC was 0.068%. White also administered additional sobriety tests, on which def. had various difficulties. From his observations, White believed that def. had ingested a combination of substances. Following an advisement of his constitutional rights, def. admitted that he had smoked both marijuana and methamphetamine earlier in the day. Blood tests confirmed the presence of components of alcohol, marijuana, and methamphetamine. Records of the DMV indicated that def.’s driver’s license was suspended in August 2005.
The defense presented no evidence or testimony. During summation, defense counsel argued that def.’s driving pattern showed that he was not under the influence. Counsel further argued that Officer White prejudged def.’s level of sobriety and did not conduct a thorough investigation. The COA affirmed the judgment.