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People v. Cross3/14/2003
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
OPINION ON REHEARING
A jury convicted defendant Douglas Charles Cross of the following four counts: count 1 -- driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)) ; count 2 -- driving with a blood alcohol content in excess of 0.08 percent (§ 23152, subd. (b)); count 3 --knowingly driving when his driving privilege was suspended for driving under the influence (§ 14601.2, subd. (a)); and count 4 -- knowingly driving when his privilege was suspended for other specified offenses (§ 14601.5, subd. (a)). The jury also found true an allegation that his blood alcohol was 0.20 percent or higher. (§ 23578.) After the defendant admitted three prior convictions of driving under the influence (§ 23550), and the trial court found that he had served two prior prison terms (Pen. Code, § 667.5, subd. (b)), the defendant was sentenced to state prison for five years.
On appeal, defendant contends that the trial court erred (1) by overruling his chain-of-custody objection to a vial containing a sample of his blood, (2) by refusing to instruct the jury pursuant to the last paragraph of CALJIC No. 12.61.1 that any failure to follow the regulations for administering blood-alcohol tests may be considered, and (3) by failing to address the prosecutor's purported violation of defendant's statutory and constitutional discovery rights, by which the prosecutor failed to disclose that defendant's key defense witness had had a prior child molestation conviction.
We granted defendant's petition for rehearing to give him an opportunity to brief the issue of waiver of his chain-of-custody objection. We have reviewed his supplemental brief as well as the parties' original briefs and shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Prosecution's Case-in-Chief
On November 18, 2000, at 7:40 a.m., while stopped at an intersection, Karen Myers saw a one-car accident. A red car passed by her, rolled over three times in front of her, and came to rest on its wheels. After the accident, Myers stopped to see if the driver, the defendant, needed assistance.
Defendant climbed out of the car through the driver's side window. He appeared "dazed and confused." They conversed for a minute or two. Myers offered to make a telephone call for him, but he said that it was not necessary.
Based on her 12 years of experience as a bartender and waitress, and growing up around alcoholic uncles, Myers concluded that defendant was "smashed" on alcohol. She drove to a market where she telephoned the police. She called the police because she was concerned that defendant might be hurt, and because he might pass out on the roadway and be run over by a passing car.
California Highway Patrol (CHP) Officer William Winter was dispatched to the accident scene. He found a 1987 Ford Bronco II with rollover damage parked facing the wrong direction. After investigating the scene, Officer Winter concluded that the truck had drifted to the right, possibly owing to defendant's intoxication, that defendant had overcorrected to the left and then swerved to the right again, and that his truck had then spun and rolled. This would be consistent with other accidents caused by intoxicated drivers that Winter had investigated. Because the truck had first drifted to the right rather than initially swerving,
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