People v. Alders10/30/2001
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
A jury convicted defendant Glenn Norman Alders of driving under the influence of alcohol, causing bodily injury (Veh. Code, § 23153, subd. (a), count I, a felony); driving with a blood alcohol content (BAC) of 0.08 percent or more, causing injury (§ 23153, subd. (b), count II, a felony); driving when his driving privilege was suspended for a conviction of section 23152 (driving under the influence) (§ 14601.2, subd. (a), count III, a misdemeanor); and driving when his driving privilege was suspended or revoked under sections 13353 (for refusing to submit to chemical tests) and 13353.2 (for driving with a BAC of 0.08 percent or more) (§ 14601.5, subd. (a), count IV, a misdemeanor).
The jury also found it true, as to counts I and II, that defendant had a BAC of 0.20 percent or more (§ 23578) and committed the current crime while released on bail or his own recognizance for a felony (Pen. Code, § 12022.1).
In a bifurcated trial, for purposes of determining the ranges of punishment for counts I and II (§ 23566, subd. (a)), the court found it true that defendant suffered two prior convictions in 1998 for driving with a BAC of 0.08 percent or more (§ 23152, subd. (b)), and, as to punishment for counts III and IV (§§ 14601.2, subd. (d)(2), 14601.5, subd. (d)(2)), found it true he suffered prior convictions under sections 14601.2 and 14601.5, in 1999 and 1998, respectively.
On count I, the court sentenced defendant to three years plus a consecutive two-year on-bail enhancement. It imposed the same terms for count II, but stayed the punishment under Penal Code section 654. On count III the court imposed 20 days in jail, to run concurrently with the punishment for count I. The 10-day jail term for count IV was stayed. (Pen. Code, § 654.)
Claiming prosecutorial misconduct, defendant contends the trial court abused its discretion by denying mistrial motions he made after the prosecutor's opening and closing statements, during each of which the prosecutor mentioned that defendant had previously driven while under the influence or with an elevated BAC. We will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Sergio Romero was followed by a pickup truck while driving on Ridge Road at 2:00 p.m. As Romero was traveling about 35 mph, the pickup tried to pass him across a double yellow line. While alongside Romero's vehicle, the pickup driver apparently saw an oncoming vehicle, locked his brakes, lost control, went off the paved part of the roadway, hit a dirt embankment, rolled over, and landed upside down. According to other witnesses, Romero identified defendant at the scene as the driver of the pickup.
Linda Tucker, the driver of the oncoming vehicle, stopped about 30 feet from the overturned pickup. She saw the driver behind the steering wheel of the pickup, dangling from the seatbelt. The driver had light hair and was wearing a baseball cap. Tucker identified defendant in court as the driver. The other occupant of the pickup had brown hair.
Amador County animal control officer Robert Gilbert and his partner, Tony Tozy, came upon the scene immediately after the crash; the pickup's wheels were still spinning and dust was still in the air. Gilbert saw a dark-haired man climbing out the passenger window of the pickup. The dark-haired man was Robert Dikes, who was known by Tozy. Anothe
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