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People v. Nowlin6/4/2002
ke the conviction a denial of due process.'"' [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves `"`the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.'"' [Citation.]" (People v. Samayoa (1997) 15 Cal.4th 795, 841.) Bad faith is not required, however. (People v. Hill (1998) 17 Cal.4th 800, 822-823.)
The first instance of alleged misconduct arose when the prosecutor told the jury: "Mr. Dubrul was sober and is always a cautious driver. You never heard anything to contradict that. He indicated there are some times he speeds. But he is a cautious driver. You didn't hear he had any speeding tickets. You didn't hear about any other accidents."
Nowlin characterizes this as arguing facts outside the record because it asserted Dubrul had no speeding tickets or other accidents. Not so. The prosecutor argued what was not in the record. She argued an absence of evidence. Her assertion that Dubrul was always a cautious driver was, at most, an opinion of what the evidence showed. Moreover, it has some support in the record because Mrs. Dubrul testified she had ridden with her husband many times and he had never sped.
In any event, if misconduct occurred, it was non-prejudicial. The jury did not convict Nowlin of the felony charge, implicitly finding he did not cause the accident.
The second occasion of alleged misconduct occurred when the prosecutor asserted she represented the jury as part of the "People of this State." When defense counsel objected, the trial court responded, "Ladies and gentlemen, the plaintiff in a criminal case in California is called the People of the State of California. It doesn't mean you individually. [ ] . . . [ ] So, anyway, [the prosecutor] represents the State." This admonition was succinct and certainly corrected any misapprehension the jurors might have had. Nowlin suffered no prejudice as a result of the prosecutor's statement. (See People v. Millwee (1998) 18 Cal.4th 96, 140 [immediate admonition negated any misconduct].)
In the third instance, the prosecutor said Nowlin had no right to refuse to take a chemical test to determine his blood-alcohol level. Nowlin argues that misstated the law because Vehicle Code, section 23612, subdivision (a)(2)(A)(4) provides that an arrested motorist is to be advised that refusal to take a test may be used against him in a court of law. The section does not create a right to refuse a test; it merely states the consequences if one does so.
One might argue the right to choose one of three tests connotes a right to refuse the other two. (See Veh. Code, § 23612, subd. (a)(2)(A).) Even if that is true on some syntactical level, it does not render the prosecutor's statement improper. She said, "You're required to do one of those tests. . . . he law is that you can't refuse." Her position was Nowlin refused all tests, including the blood test, and he could not lawfully do so. There was no misconduct.
The judgment is affirmed.
WE CONCUR:
SILLS, P. J.
MOORE, J.
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