People v. Martinez
| Decision Date | 09 April 1998 |
| Docket Number | No. F026595,F026595 |
| Citation | 73 Cal.Rptr.2d 358,62 Cal.App.4th 1454 |
| Court | California Court of Appeals Court of Appeals |
| Parties | , 98 Cal. Daily Op. Serv. 2709, 98 Daily Journal D.A.R. 3708 The PEOPLE, Plaintiff and Respondent, v. Serafin Arebalo MARTINEZ, Defendant and Appellant. |
The published portion of this opinion clarifies the meaning of the term "convicted" as used in Evidence Code section 788, which addresses when the credibility of a witness may be attacked. Defendant was convicted by jury of felony driving under the influence the week before his trial in this case. At the time he testified in the case which is the subject of this appeal, sentencing in the earlier case had not yet occurred. The trial court allowed him to be impeached in the new case with the jury conviction even though he had not yet been sentenced on the prior wobbler offense. We conclude this was proper.
Evidence Code section 788 provides that the credibility of a witness may be attacked by showing a witness has been convicted of a felony. We hold the term "convicted" includes otherwise qualifying felony convictions suffered even though sentence has not yet been imposed on the charge. Further, the fact the felony conviction is a wobbler does not change the result since a wobbler is regarded as a felony for every purpose until judgment is entered.
Serafin Arebalo Martinez (defendant) was charged by information in count one with driving a vehicle while having .08 percent or more of alcohol in his blood in violation of VEHICLE CODE SECTION 231521, subdivision (b); and in count two with driving a vehicle while under the influence in violation of section 23152, subdivision (a). It was further alleged with respect to both count one and two that defendant had previously suffered four prior separate convictions within the meaning of section 23175, within seven years of the commission of the charged offenses. Defendant was charged in count three with driving when his driving privilege had been suspended and revoked in violation of section 14601.2, subdivision (a). It was alleged with respect to count three that within five years of the charged offense, defendant had two prior convictions within the meaning of section 14601.2, subdivision (d)(2). Finally, it was specially alleged that at the time of the charged offenses, defendant was released from custody in a prior case within the meaning of Penal Code section 12022.1.
Prior to trial, the People moved to dismiss both prior convictions alleged with respect to count three. The motion was granted. The People then moved in limine to be permitted to impeach defendant with his felony conviction that occurred the week before his present trial. The court initially denied the motion, but reconsidered its decision and ruled defendant could be impeached with the prior conviction in the event he testified. Defendant's motion to bifurcate the trial on the prior convictions was granted. During voir dire of the jury, defendant made a Wheeler 2 motion which was denied.
The jury found defendant guilty as charged and found the allegation under Penal Code section 12022.1 to be true. Defendant then admitted the four prior convictions. The court denied defendant probation and sentenced him to a total of five years eight months in state prison. Defendant filed a timely appeal raising three contentions: (1) The trial court erred in denying his Wheeler motion; (2) the trial court erred by allowing him to be impeached with a conviction which was not final; and (3) the definition of reasonable doubt in CALJIC No. 2.90 violated his right to due process.
On the afternoon of February 26, 1996, Officer Darrell Olivas of the Firebaugh Police Department was dispatched to the vicinity of 13th and P Streets. As he approached P street Olivas observed a small brown truck come to a stop at the intersection. Olivas testified he saw the vehicle move about two feet as it came to a stop. Olivas observed defendant step out of the driver's side door and begin to walk to the front of the vehicle. Olivas did not see anyone else in the truck. Olivas testified defendant staggered as he walked. When defendant reached the front of the truck, he tried to open the hood, but was unable to do so because it was secured by a piece of rope. At that point, Olivas approached defendant and asked him what was wrong. Olivas testified defendant's eyes were glazed, he had a strong odor of alcohol on his breath, and his speech was thick and slurred. Olivas looked in the truck and saw an open beer can between the driver and passenger seats and a six-pack of unopened cans on the passenger seat. Olivas testified the keys to the truck were still in the ignition switch.
Based on his observations, Olivas conducted field sobriety tests of defendant. Olivas concluded defendant was intoxicated and transported him to the Firebaugh Police Department where defendant underwent an intoxilyzer test. It was stipulated: (1) The two intoxilyzer tests taken by defendant approximately one hour after he was arrested indicated he had a blood alcohol level of .30 and .29 percent, respectively; (2) when approached by Olivas defendant's blood alcohol level was greater than .08 percent; (3) on February 26, 1996, defendant knew his driving privilege had been suspended or revoked; and (4) he was released from custody in Fresno Superior Court case No. 559354-6 which was still pending.
Defendant testified through an interpreter that on February 26, 1996, when Olivas approached him, he had not been driving the truck. He admitted he had been drinking that day, but claimed he was a passenger in the truck which was being driven by his friend, Hector Tapia. Defendant had asked Tapia to drive because defendant had been drinking for a week. Defendant stated he and Tapia were on their way to the home of Tapia's aunt in Firebaugh. Tapia was driving and defendant was asleep on the passenger side when defendant felt the truck jerk as they came to a stop. Defendant awoke and Tapia said there was something wrong with the truck. Tapia went to the front of the truck but then disappeared. Defendant testified at that point he got out on the passenger side and tried to push the truck out of the road. Defendant was in the process of attempting to open the hood to see what was wrong when Olivas approached him. Defendant claimed that when he woke up, he looked for the keys to the truck but could not find them.
During cross-examination defendant admitted he had been convicted of a felony the previous week.
I. The Wheeler motion **
II. Impeachment with a prior conviction
Defendant levels a two-pronged attack on the trial court's ruling that he could be impeached with his prior conviction for felony driving under the influence. First, he contends the prior conviction was not final at the time of his trial on the present charges because he had not yet been sentenced. Defendant argues that a guilty verdict does not constitute a conviction. Rather, defendant contends he had not been "convicted" of a felony until a guilty verdict was rendered and a sentence imposed. Second, defendant claims that even if his conviction was final, the trial court erred in allowing the People to impeach him with it based on Evidence Code section 352. 6 Defendant asserts the prejudicial effect of this prior conviction far outweighed any probative value it may have had because it involved the same offense with which he was charged. Defendant also argues that the potential for the jury to misuse the evidence of the prior conviction was exacerbated by the People's emphasis on it during closing argument. Defendant's argument fails on both counts.
(People v. Alvarez, supra, 14 Cal.4th at p. 201, 58 Cal.Rptr.2d 385, 926 P.2d 365; see People v. Davis (1995) 10 Cal.4th 463, 530, 41 Cal.Rptr.2d 826, 896 P.2d 119 [].) This standard of review is applicable both to a trial court's determination of the relevance of evidence as well as to its determination under Evidence Code section 352 of whether the evidence's probative value is substantially outweighed by its prejudicial effect. (People v. DeJesus (1995) 38 Cal.App.4th 1, 32, 44 Cal.Rptr.2d 796 [ ]; People v. Cudjo (1993) 6 Cal.4th 585, 609, 25 Cal.Rptr.2d 390, 863 P.2d 635 [].)
The week before his trial on the charges in the present case, defendant was convicted in a jury trial of felony driving under the influence with previous multiple convictions. However, at the time of his trial defendant had not been sentenced on these charges. 7 When first considering the People's motion in limine to impeach defendant with the prior conviction, the trial court expressed reservations because the judgment was not final.
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