Filed 9/12/13 P. v. Ontiveros CA3
                                          NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     THIRD APPELLATE DISTRICT
                                                        (Sierra)
                                                            ----



THE PEOPLE,                                                                             C072538

                   Plaintiff and Respondent,                               (Super. Ct. No. CR02964X)

         v.

MARTIN VENTURA ONTIVEROS,

                   Defendant and Appellant.




         A jury found defendant Martin Ventura Ontiveros guilty of driving under the
influence of alcohol (Veh. Code, § 23152, subd. (a))1 and driving while having 0.08
percent or more alcohol in his blood (id., § 23152, subd. (b)). The jury found true an
allegation that, within the previous 10 years, defendant had a prior felony conviction of
driving under the influence (DUI) with injury. (Id., §§ 23153, 23550.5, subd. (a)(2).)
The jury also found true an allegation that, within the previous 10 years, defendant had
three prior DUI convictions. (Id., §§ 23152, 23153, 23550, subd. (a).) The jury found

1 Undesignated statutory references are to the Vehicle Code.



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not true an allegation that defendant refused a peace officer’s request to submit to and
complete a chemical test. (Id., § 23577.) Defendant admitted allegations that he had a
prior robbery conviction (former Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and had
served a prior prison term (Pen. Code, § 667.5, subd. (a)).

          Defendant was sentenced to state prison for seven years, consisting of twice the
upper term of three years for the DUI plus one year for the prior prison term.

          On appeal, defendant contends his trial counsel rendered ineffective assistance by
(1) failing to request bifurcation of his three prior DUI convictions; (2) if that request
were unsuccessful, failing to stipulate to the allegations’ truth so that the jury would not
learn about the priors; and (3) failing to seek exclusion of his statements about his prior
convictions and the fact he had served a prior prison term for felony DUI. We shall
affirm.

                                FACTUAL BACKGROUND
Prosecution Case-in-chief

          On July 5, 2012, at 6:25 p.m., Sierra County Sheriff’s Deputy Matthew Boyd was
driving a marked patrol car northbound on Highway 49 between Downieville and Sierra
City. Deputy Boyd was driving behind a small red sport utility vehicle (SUV) driven by
defendant. The SUV “crossed over the double yellow line by the entire length of the car
and returned to his lane as if it was cutting a corner.” Deputy Boyd followed the SUV
about a “mile, mile and a half” and then turned on his headlights (but not his emergency
lights). Defendant activated his right turn signal and started trying to pull over. But then
he deactivated the turn signal and continued down the road. On three successive
occasions, defendant activated his right turn signal and started to pull over but then made
minor corrections within his lane and continued down the road.




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       Eventually, Deputy Boyd activated his emergency lights and defendant stopped at
a large turnout. Deputy Boyd asked defendant for his driver’s license, and defendant said
he did not have one. When defendant started to get out of the SUV, Deputy Boyd
“immediately noticed a heavy odor of alcohol emitting from his breath and person.”
Defendant was barefoot and took slow deliberate steps when he got out of the SUV.

       Deputy Boyd asked defendant whether he had been drinking; defendant answered
in the affirmative. Defendant said he had consumed approximately four beers at Bullards
Bar Dam in Yuba County and one beer more recently in the SUV. Defendant’s eyes
were red, watery, and bloodshot; and he continually smelled of alcohol.

       Defendant explained that he did not have a driver’s license because he “had a DUI
in the past” and had not paid off approximately $8,000 in fines.

       Deputy Boyd conducted field sobriety tests to determine defendant’s level of
intoxication and his ability, or inability, to drive. During the tests, Deputy Boyd asked
defendant three or four times whether he would like to stop to get his shoes from the
SUV; each time defendant declined.

       Deputy Boyd performed a horizontal gaze nystagmus (HGN) test, which requires
the subject to move his eyes, not his head, as he follows the movement of the officer’s
finger. At a point in the test, the subject’s eyes will begin to bounce back and forth.
Deputy Boyd carried a card that correlates the point at which the eyes begin bouncing to
the amount the subject had to drink. According to the card, defendant’s blood-alcohol
content was 0.20 percent. Deputy Boyd did not bring the card to the trial.

       Deputy Boyd also performed a “Romberg balance standing test” that required
defendant to close his eyes, tilt his head back, and count to 30. During the test, defendant
swayed back and forth two inches, which suggested he was under the influence of an
alcoholic beverage.



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          Deputy Boyd offered to do a preliminary alcohol screening (PAS) test, but
defendant refused multiple times to do the test. The last time he refused to perform the
test, defendant stated “he would be over the limit and the test would not be necessary.”

          Based on his training and experience, as well as defendant’s general demeanor, the
strong smell of alcohol, and all the field sobriety tests, Deputy Boyd believed that
defendant was too intoxicated to continue driving.

          Deputy Boyd handcuffed defendant and placed him in the back of the patrol car.
Then Deputy Boyd spoke with defendant’s passenger, Michelle Killian, who agreed to
take a PAS test. She tested as 0.02 percent blood alcohol, which is “way under the limit.”
She was allowed to drive the SUV, and she followed the patrol car back to the sheriff’s
office.

          Deputy Boyd tried to test defendant’s breath using an intoxilyzer. A person
performing this test must blow air into the machine for at least one-half second and must
deliver 1.2 liters of air. If the person performs as required, the machine will process the
test and then ask for a second breath test. If the person does not do as required, the
machine asks that the test be repeated. The machine determines the percent of alcohol in
a person’s blood by measuring grams of alcohol per 210 liters of breath. (People v.
Williams (2002) 28 Cal.4th 408, 411, fn. 1 (Williams).)

          Defendant attempted to perform the breath test 12 to 14 times. On several
attempts he failed to blow sufficient air into the machine. On some attempts he appeared
deliberately to inhale small, insufficient amounts of air before exhaling into the machine.
On other attempts he appeared to manipulate his tongue in order to limit the flow of air
into the machine. The machine reported that one attempt was successful and the others
were insufficient or in error.




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       The successful test, at 7:07 p.m., showed a blood-alcohol level of 0.22 percent.
Based on this reading, a criminalist opined that defendant was too impaired to safely
operate a motor vehicle. Defendant’s blood-alcohol level at 6:00 p.m., prior to his arrest,
would have been 0.23 percent. In order for someone of defendant’s size to have a blood-
alcohol level of 0.22 percent, that person would have to have consumed approximately 15
shots of 86-proof alcohol or 15 bottles of beer.

       Deputy Boyd wanted to get another breath sample, but defendant stated that he
could not give another sample. Defendant also did not submit to a blood test. For
reasons of employee safety, the clinic that does blood tests for Sierra County will not
force a blood test upon a subject who does not consent to the test.

       Defendant became quite upset when Deputy Boyd told him that, if he had multiple
prior DUI’s, it “would be quite some time” before defendant was released. Defendant
was upset because he wanted to go fishing.

       When Deputy Boyd brought defendant to the jail, correctional officer Gary
McFarland observed that defendant’s speech was a bit slurred, his eyes were a bit
bloodshot and watery, and his breath smelled of alcohol. McFarland had been trained to
recognize people who are under the influence of alcohol, and he has dealt with “hundreds
and hundreds” of people who are under the influence.
Defense

       Michelle Killian, the girlfriend of defendant, testified for the defense. About 2:00
to 2:30 p.m., she picked up defendant to go fishing. The two left Oroville and she drove
them to Lake Francis. The trip took one hour and 20 minutes. They each drank four
alcoholic beverages and stayed at Lake Francis for three to three and a half hours.

       Killian testified that she and defendant left Lake Francis at “four” or 4:30 p.m.
They were headed to Gold Lake. Killian was not familiar with the territory so she let



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defendant drive, even though she knew he did not have a license. They did not stop at
Bullards Bar Dam.

        Killian testified that there had been something wrong with the alignment
mechanism of her SUV. Defendant said he could “make it so easier on” the SUV by
“straighten[ing] out” the tight turns on the winding road. Killian did not recall the SUV
going “all the way over the center line, the whole width of the car.” Instead, she
remembered the two driver’s side tires going over the center line.

        Killian testified that defendant has a back problem. She recalled that the officer
had asked defendant when he last drank a beer. Defendant replied that he “was just about
ready to crack one open.” Killian clarified that she does not let anyone drink and drive in
her car.

        Killian claimed her SUV smelled like beer because she had placed the empty cans
from Lake Francis in the back of the SUV for recycling and she had collected additional
cans.

        Killian testified that defendant was arrested when he refused to take the PAS test
at the side of the road. The officer gave Killian a breathalyzer test, and she was allowed
to drive her SUV. Killian testified that she and defendant had consumed the same
quantity of beer at Lake Francis.

                                       DISCUSSION

                           I. Ineffective Assistance of Counsel

        Defendant contends his trial counsel rendered ineffective assistance when he failed
to request bifurcation of his three prior DUI convictions. He further contends trial
counsel was ineffective for having failed to stipulate to the allegations’ truth so that the
jury would not learn about the priors. Defendant also claims trial counsel rendered
ineffective assistance by failing to seek exclusion of his statements about his prior


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convictions and the fact he had served a prior prison term for felony DUI. In a separate
argument, defendant claims trial counsel’s ineffective assistance was prejudicial. This
last claim is dispositive.
                                      A. Background
       Prior to trial, the prosecutor stated that he anticipated submitting some prior
convictions in his case-in-chief. The prosecutor identified DUI priors from Sutter,
Shasta, and Butte Counties. The prosecutor did not seek to admit a Fresno County prior
conviction of armed robbery or a Sacramento County prior conviction of burglary during
the case-in-chief.

       Defense counsel did not seek to bifurcate the trial of the DUI priors. The trial
court found the DUI priors were admissible. The jury received a redacted version of the
information that did not include the prison term and strike allegations.

       In his opening statement, the prosecutor told the jury that defendant was charged
with felony DUI because he had “three prior convictions within 10 years,” and because
he had “a prior felony [DUI] within 10 years.”

       During trial, Deputy Boyd testified that defendant said he did not have a driver’s
license because he had not paid off about $8,000 in fines from a DUI case. Deputy Boyd
also recounted defendant’s statement that he “had a prior DUI” and had been through the
process before. Deputy Boyd further recalled that defendant had become less cooperative
when he was told he would not be released due to his “multiple DUI’s.”

       In his opening summation, the prosecutor argued that the third prong of his case
was “prior intoxication.” He discussed defendant’s three prior convictions, including the
conviction of DUI with injury that resulted in a prison commitment of three years eight
months.




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       In his summation, defense counsel argued, “don’t let your consideration of the
prior convictions that have been mentioned here, don’t let that cloud affect your analysis
of the facts of this case. They have to rest on their own laurels. [¶] So, you know, it is a
bit prejudicial to hear about prior DUI’s, and assuming because he has priors, he must be
guilty in this case. Don’t allow yourself to do that.”

       The trial court instructed the jury that it could “[c]onsider the evidence presented
on these [DUI prior] allegations only when deciding whether the defendant was
previously convicted of the crimes alleged. Do not consider this evidence for any other
purpose.” (CALCRIM No. 2125.)
                                        B. Analysis
       “ ‘ “In order to establish a claim of ineffective assistance of counsel, defendant
bears the burden of demonstrating, first, that counsel’s performance was deficient
because it ‘fell below an objective standard of reasonableness [¶] . . . under prevailing
professional norms.’ [Citations.] Unless a defendant establishes the contrary, we shall
presume that ‘counsel’s performance fell within the wide range of professional
competence and that counsel’s actions and inactions can be explained as a matter of
sound trial strategy.’ [Citation.] If the record ‘sheds no light on why counsel acted or
failed to act in the manner challenged,’ an appellate claim of ineffective assistance of
counsel must be rejected ‘unless counsel was asked for an explanation and failed to
provide one, or unless there simply could be no satisfactory explanation.’ [Citations.] If
a defendant meets the burden of establishing that counsel’s performance was deficient, he
or she also must show that counsel’s deficiencies resulted in prejudice, that is, a
‘reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’ ” ’ ” (People v. Salcido (2008) 44 Cal.4th 93,
170 (Salcido).) “Finally, ‘there is no reason for a court deciding an ineffective assistance
claim to approach the inquiry in the same order [set forth above] or even to address both



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components of the inquiry if the defendant makes an insufficient showing on one. In
particular, a court need not determine whether counsel’s performance was deficient
before examining the prejudice suffered by the defendant as a result of the alleged
deficiencies.’ ” (People v. Cox (1991) 53 Cal.3d 618, 656.)

       Defendant has not shown any reasonable probability that, but for admission into
evidence of the prior convictions and prison term, the result of the proceeding would
have been different. (Salcido, supra, 44 Cal.4th at p. 170.) The evidence showed that
defendant had been driving the SUV when it crossed over the double yellow line by the
entire length of the car. Defendant’s eyes were red, watery, and bloodshot, and he
emitted a heavy odor of alcohol from his breath and person. Defendant admitted to
Deputy Boyd that he had been drinking, most recently a beer inside the SUV he had been
driving.

       Defendant’s conduct during the subsequent intoxilyzer test raised an inference of
his consciousness of his guilt. Defendant attempted to perform the breath test 12 to 14
times. On several attempts he failed to blow sufficient air into the machine. On some
attempts he appeared deliberately to inhale small, insufficient amounts of air before
exhaling into the machine. On other attempts he appeared to manipulate his tongue in
order to limit the flow of air into the machine.

       The intoxilyzer also provided direct evidence of defendant’s guilt. The machine
reported that one of defendant’s multiple efforts to take the test was successful. This test
showed that defendant had a blood-alcohol level of 0.22 percent, which is almost three
times the legal limit.

       Defendant counters that “there was only one breath test, when two breath tests are
required under title 17 of the California Code of Regulations.” In other words, we should
ignore the one valid test because his subterfuge invalidated the others. The argument
earns high marks for chutzpah. (E.g., Lewis v. County of Sacramento (2001)

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93 Cal.App.4th 107, 113.) As defendant concedes, the lack of a second test as required
by the regulation does not make the existing test inadmissible. (Williams, supra,
28 Cal.4th at p. 417.) Defendant offers no reason to believe the one existing test was
inaccurate.

       Finally, there was evidence that, in order for a person of defendant’s size to have a
blood-alcohol level of 0.22 percent, he would have to have consumed approximately 15
shots of 86-proof alcohol or 15 bottles of beer.

       Thus, there was abundant evidence that defendant drove the SUV while under the
influence of alcohol and with a blood-alcohol level over 0.08 percent. There is no
reasonable probability that the result would have been any different had defendant’s
admissions and prior convictions been excluded.

       We need not join the parties’ debate whether defense witness Killian was credible
with respect to the timing of the duo’s travels to Lake Francis and Gold Lake. Killian’s
testimony about how much she and defendant consumed was problematic at best. Killian
testified that they each drank four alcoholic beverages during the same time frame, even
though their respective breath tests showed wildly divergent amounts of alcohol in their
blood. Even if Killian’s testimony as to the timeline was credible, reasonable jurors
could conclude her testimony about how much defendant drank that day was not.
Defendant’s claim that he “presented a plausible defense based on his girlfriend’s
testimony that he was not under the influence” has no merit.

       In sum, defendant has not shown any reasonable probability of a more favorable
outcome had his trial counsel sought to exclude his prior convictions and his statements
acknowledging those convictions. (Salcido, supra, 44 Cal.4th at p. 170.) Any deficient
performance by trial counsel could not have been prejudicial.




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                                        II. Verdicts

       We next consider an anomaly in the rendition and recordation of the jury’s
verdicts. The information alleged four counts of violation of section 23152: two under
subdivision (a), and two under subdivision (b). One subdivision (a) count and one
subdivision (b) count alleged a prior felony conviction within the meaning of section
23550.5. The other subdivision (a) count and subdivision (b) count alleged three
separate prior convictions within the meaning of section 23550, subdivision (a).

       The jury did not receive or return verdict forms for four separate counts of
violation of section 23152. Rather, the jury returned one verdict form for guilty of
section 23152, subdivision (a); one verdict form for guilty of section 23152, subdivision
(b); one verdict form finding the section 23550.5 enhancement true, and one verdict form
finding the section 23550 enhancement true. None of the verdict forms identified the
particular count to which it related.

       At sentencing, the trial court indicated its intent to impose sentence on “count 1”
and to stay sentence on “counts 2, 3, and 4” pursuant to Penal Code section 654. The
trial court stated that defendant had been charged under both subdivisions (a) and (b) of
Vehicle Code section 23152, “[b]ecause of high blood-alcohol level.” The court added
that “two additional counts [had been] charged because in this particular case the
underlying offenses are apparently from two separate reasons.” Neither court nor counsel
appear to have noticed that the jury had received and returned verdict forms for just two
counts of violation of section 23152. The abstract of judgment conforms to the oral
pronouncement of sentence.

       Because the jury returned verdicts for just two counts, not four, the trial court
erred by imposing sentence on four separate counts. This is so even though the court
subsequently stayed three of the counts. We modify the judgment by striking counts
three and four and direct the trial court to prepare an amended abstract of judgment.


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                                     DISPOSITION

      The judgment is modified by striking defendant’s convictions on counts three and
four. As so modified, the judgment is affirmed. The trial court is directed to prepare an
amended abstract of judgment and to forward a certified copy to the Department of
Corrections and Rehabilitation.




                                                      BUTZ                  , Acting P. J.



We concur:



             MAURO                , J.



             MURRAY               , J.




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