The People v. Miller
| Decision Date | 06 October 2010 |
| Docket Number | No. CM029221,C061194,CM029221 |
| Court | California Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. RUSSELL WADE MILLER, Defendant and Appellant. |
THE PEOPLE, Plaintiff and Respondent,
v.
RUSSELL WADE MILLER, Defendant and Appellant.
No. CM029221
COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
Filed 10/6/10
CANTIL-SAKAUYE, J.
A jury convicted defendant Russell Miller of driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)1 [the "generic DUI" conviction]) and with a blood-alcohol level of greater than 0.08 percent (id., subd. (b) [the "per se DUI" conviction]), 2 and the misdemeanor of failing to stop after involvement in an accident that resulted in property damage.
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Before trial, defendant had admitted a prior felony generic DUI conviction. The trial court sentenced defendant to state prison (staying execution of sentence on the generic DUI conviction).
On appeal, defendant argues that the trial court erred in excluding defense evidence of habit. He also asserts that he cannot be convicted of both driving offenses. We deem defendant to have raised the additional issue (without further briefing) of whether the January 2010 amendments to Penal Code section 4019 apply to his pending appeal and entitle him to presentence conduct credits at a higher rate. We shall affirm the judgment as modified.
When the bartender at The Bungalow bar in Gridley arrived for work, defendant was already present. She had been working there a month and was familiar with him, because he drank there on both days of her weekend evening shift. She served him a pint glass of beer, and then cut him off because he was showing signs of inebriation. He left about 7:00 p.m. with a man the bartender knew as Gus. Gus had earlier left the bar and returned with a short Hispanic male with whom the bartender was not familiar. She could not remember if defendant was wearing a hat, and did not think Gus was wearing one. The bartender saw Gus on one other occasion after that evening.
A neighbor of defendant was returning to her home on their narrow country road at about 8:30 p.m. When she reached a stop sign, she saw an oncoming pickup truck driving down the middle of the road. She could see two men with cowboy hats in the
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truck. As she headed forward, she first steered onto the dirt shoulder to make room and then swerved perpendicularly off the road, but the truck still managed to sideswipe her car as it passed. It continued down the road without stopping, so she decided to pursue it.
She followed it back down the road past the stop sign, south of which it turned into the driveway of a home. She pulled into the driveway behind the truck. The two men got out of the truck. She called out to them about hitting her car. The driver approached and pointed his finger at her, telling her that she had hit his truck. The accident victim at this point decided to call 911. The two men walked into the house. The driver was defendant, with whom she was not previously familiar. The passenger was an older male, whom she thought she had seen on previous occasions feeding the horses on the property when she drove by. She identified defendant's father in court as the passenger. Neither of the occupants of the truck were Hispanic. She did not see any other vehicle drive away from the residence.
While the accident victim waited, a woman came out of the house and suggested they deal with the matter in the morning. The accident victim rejected the suggestion, and the woman went back inside. The police arrived about 30 to 45 minutes later. When the police came out of the house with defendant, who had changed clothes, the accident victim identified him as the driver, pointing out the ring on his forehead from the cowboy hat.
At first, defendant denied being aware of a collision and
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said his friend Gustavo had borrowed the truck. He then told the police that he had been home from The Bungalow for a few hours and had not driven home, which people at The Bungalow would corroborate. He asserted the accident had been the fault of the accident victim, and would not assist the police in locating Gustavo. Defendant was extremely inebriated and barely able to walk. (A later blood test indicated a blood-alcohol level of 0.29 percent.) The keys to the truck were in defendant's pants pocket. Defendant would not explain how the keys had come to be in his possession.
Contrary to her trial testimony, the accident victim told the police at the time that she had seen the passenger walk around the side of the house off into the dark, and had never told them at any point that the passenger was defendant's father. The police did not find Gustavo on the property. Defendant's parents asserted that they did not know anything about the events of the evening other than defendant having been out with an unknown friend and returning home. The police could not find an address for Gustavo.
Defendant's father told the police (and testified) that he had been at home with his wife when defendant returned home with an unknown friend. Defendant told his parents that the friend had brought him home. The father had seen a vehicle belonging to Gus in the driveway while defendant was out. It was gone by the time the police arrived. Defendant's mother testified that defendant had gone out with Gus, who was driving defendant's truck. Gus left his vehicle in the driveway over by the barn.
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She had seen the truck return; Gus got out of the driver's side. It took Gus a few minutes to walk the distance over to his own vehicle. He got in and drove off.
Before trial, the prosecutor sought to exclude defense evidence from two Bungalow bartenders and defendant's parents that defendant had the habit of having other people drive when he was drinking (Gus in particular). Defense counsel asserted this was proper habit evidence. The prosecutor riposted that he would then be entitled to introduce evidence of defendant's prior driving convictions (which antedated 2002). The court initially signaled its belief that both types of evidence were admissible, but reserved its ruling.
The parties revisited the issue toward the end of the prosecution's case. Defense counsel made an offer of proof that the Bungalow bartenders would testify that either they had given defendant a ride home or he had sought out rides from others (leaving his truck in the parking lot) on "numerous occasions." His parents would corroborate the habit. The court ruled that this offer of proof was insufficient to transform character evidence into evidence of habit. The defense could still ask questions about his reputation for having others drive him, but that would entitle the prosecution to ask the witnesses about their knowledge of whether defendant had driven under the influence.
Defendant contends this ruling was an abuse of the trial
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court's discretion...
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