Filed 3/20/15 P. v. McClintock CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F066826
         Plaintiff and Respondent,
                                                                           (Super. Ct. Nos. BF141461A &
                   v.                                                               BF142714A)

MICHAEL A. McCLINTOCK,
                                                                                         OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. David R.
Lampe, Judge.
         J. Edward Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Julie A. Hokans and John A. Bachman, Deputy Attorneys General, for Plaintiff
and Respondent.
                                                        -ooOoo-


*        Before Levy, Acting P.J., Poochigian, J. and Smith, J.
       A jury convicted appellant Michael A. McClintock of two counts each of driving
under the influence of alcohol or drugs while having a prior felony DUI conviction within
10 years (counts 1 & 7/Veh. Code, §§ 23152, subd. (a) & 23550.5),1 driving with a
blood-alcohol content of 0.08 percent or greater while having a prior felony DUI
conviction within 10 years (counts 2 & 8/§§ 23152, subd. (b) & 23550.5), driving under
the influence of alcohol or drugs while having three prior felony DUI convictions within
10 years (counts 3 & 5/§§ 23152, subd. (a) & 23550), driving with a blood-alcohol level
of 0.08 percent or greater while having three prior DUI felony convictions within
10 years (counts 4 & 6/§§ 23152, subd. (b) & 23550), and driving while his driving
privilege was suspended (counts 11 & 12/§ 14601.2, subd. (a)) and one count each of
evading a peace officer (count 9/§ 2800.2) and resisting arrest (count 10/Pen. Code,
§ 148, subd. (a)(1)). In a separate proceeding, the court found true an on-bail
enhancement (Pen. Code, § 12022.1), two prior prison term enhancements (Pen. Code,
§ 667.5, subd. (b)), and five prior DUI convictions (§ 23540).
          On March 4, 2013, the court sentenced McClintock to an aggregate prison term of
eight years four months: the aggravated term of three years on his DUI conviction in
count 1, a consecutive eight-month term on his DUI conviction in count 7 (one-third the
middle term of two years), an eight-month term for his evading a police officer
conviction in count 9 (one-third the middle term of three years), a two-year on-bail
enhancement, two one-year prior prison term enhancements, and concurrent 90-day
terms, with credit for time served, on each of his convictions for driving while his driving
privilege was suspended and for resisting arrest, and stayed terms on the remaining
counts.
       On appeal, McClintock contends: 1) the court abused its discretion when it denied
his motion to sever; 2) the court denied him his constitutional right to due process when

1      Unless otherwise indicated, all further statutory references are to the Vehicle Code.


                                                2.
it denied this motion; and 3) the court abused its discretion when it denied his motion for
a new trial. We affirm.
                                           FACTS
The Trial
       During the trial in this matter, California Highway Patrol (CHP) Sergeant Shaun
Crosswhite testified that on April 7, 2012, at approximately 1:00 a.m., he was on patrol
traveling north on Highway 99 in Bakersfield when he observed a car driven by
McClintock drift from one lane into another. Crosswhite followed McClintock off the
freeway and saw the left side of McClintock’s car travel over the “gore point” that
divided the main highway from the off ramp. As it continued to travel on the surface
streets, McClintock’s car drifted out of its lane and within its own lane. Crosswhite
activated his overhead lights and, after passing F Street, he activated his siren but the car
did not stop until it made a right turn onto M Street.
       Crosswhite contacted McClintock through the driver’s window and noticed a
strong odor of alcohol in the car. CHP Officer Jeremiah Bridges arrived on the scene and
had McClintock exit the car. McClintock nearly stumbled as he exited the car and his
gait was unsteady as he walked to the rear of Bridges’s patrol car. Bridges also noticed
that McClintock had a strong odor of alcohol on his breath, his eyes were red and watery,
his speech was slurred, and he was lethargic and unresponsive most of the time. After
McClintock was unable to perform a field sobriety test, Bridges concluded that
McClintock was too inebriated to perform any tests and he did not conduct any more. A
breathalyzer test performed at 1:43 a.m. indicated that McClintock had a blood-alcohol
content of 0.22 percent. A second test performed at 1:47 a.m. indicated that he had a
blood-alcohol content of 0.21 percent.
       Bridges also testified that as part of the process of administering a breathalyzer
test, an officer must watch the subject that is going to be tested for at least 15 minutes to
make sure he or she does not burp, regurgitate, or drink or ingest anything. This prevents

                                              3.
the introduction of alcohol into a subject’s mouth that does not come from his or her
breath, which can skew the test results. During the April incident, Bridges observed
McClintock at least 30 minutes prior to administering the breathalyzer test. During that
time, he did not observe McClintock do any of the above noted things that could affect
the test results.2
       Kern County Sheriff’s Deputy Daniel Willis testified that on June 16, 2012, at
approximately 12:50 a.m., he was traveling west on Hageman Road in Kern County when
he saw a car driven by McClintock in front of him swerve between lanes and almost hit a
pickup. Willis drove his patrol car behind McClintock’s car and activated his car’s
overhead lights. McClintock’s car came to a stop at a red light at Calloway Drive.
However, when the light turned green, McClintock made a U-turn, accelerated eastbound
on Hageman, and turned left into a shopping center parking lot. He accelerated through
the parking lot before exiting the lot and traveling northbound on Calloway Drive.
McClintock then made a left turn through a red left turn arrow and turned into a church
parking lot and traveled westbound through the lot. As he reached the edge of the lot,
McClintock turned north, knocked down a handicap parking sign, and accelerated
through a grassy field with a playground. When McClintock came to a brick wall, he
turned his car around and drove back toward Calloway Drive. McClintock then drove
over a sidewalk and traveled northbound in the southbound lane on Calloway Drive.3
       Kern County Sheriff’s Deputy Justin Sawaske testified that he responded to the
area and saw McClintock traveling north in the southbound lane of Calloway Drive.


2       Lab Technician Corina Anderson testified at trial regarding how the breathalyzer worked
and how its accuracy was maintained. She also testified that a weekly accuracy test performed
on the breathalyzer the previous week, on April 9, 2012, disclosed no errors or issues with the
machine during the previous week.
3      Willis estimated that during part of the chase in the shopping center parking lot,
McClintock traveled at 75- 80 miles per hour and that during part of the chase in the church
parking lot, he traveled between 50-65 miles per hour.


                                               4.
McClintock then turned left into a commercial complex parking lot and came to a stop
after his car ran into a planter and became “high centered.” McClintock got out of the car
and ran, but he was eventually tackled and handcuffed by Sawaske. McClintock’s eyes
were bloodshot and his speech was slurred. After he failed a horizontal gaze nystagmus
test, Sawaske concluded that McClintock was under the influence of alcohol. A test on a
blood draw taken from McClintock shortly after 4:19 a.m. indicated that McClintock had
a blood-alcohol content of 0.15 percent.
The Motion to Sever
       Counts 1, 2, 3, 4, and 11 were based on the April 7, 2012, incident, whereas the
remaining counts were based on the June 16, 2012, incident. On October 30, 2012, prior
to the start of trial, defense counsel moved in limine to sever counts 1 through 4 from the
remaining counts. During a pretrial hearing on in limine motions, defense counsel argued
the defense would be prejudiced by the failure to sever because: 1) the evidence
regarding the April 7, 2012, offenses was not cross-admissible at a trial of the offenses
that occurred on June 16, 2012, and 2) the facts of the second case and the knowledge
that McClintock “picked up” a DUI in April and another in June would inflame the jury.
The court denied the motion.
       Subsequently, during jury instructions, the court charged the jury that as to
counts 1 through 4 “[t]he breath sample shall be collected only after the subject had been
under continuous observation for at least fifteen minutes prior to collection of the breath
sample, during which time the subject must not have ingested alcoholic beverages or
other fluids, regurgitated, vomited, eaten, or smoked.”
       On November 5, 2012, the jury began deliberating at 4:30 p.m. The next day, at
9:56 a.m., the jury sent a note to the court asking as to counts 1 to 4: “What constitutes
‘continuous observation’?”; whether in counts 1 and 3 they were to consider the
15 minutes continuous observation time; and “When did the time begin, and when did it
end?” The jury also requested a readback of Lab Technician Corina Anderson’s

                                             5.
testimony. At 10:44 a.m., the court responded to the note by referring the jury to
CALCRIM No. 2110 (driving under the influence) and telling them to use the common
meaning of the word continuous. The court also had the court reporter read back
Anderson’s testimony.
       At 2:00 p.m., the jury sent a note to the court stating that they had agreed on
counts 5 through 12, but were unable “to reconcile” counts 1 through 4. The court wrote
a note back to the jury instructing them to take their afternoon break and “then come back
and continue to reasonably deliberate with one another according to [the court’s]
instructions.”
       At 4:00 p.m., the jury sent the court a note stating that they had reached a verdict.
       On January 4, 2013, defense counsel filed a motion for a new trial alleging, in
pertinent part, that the court erred in not severing counts 1 through 4 from counts 5
through 10.
       On March 4. 2013, the court denied McClintock’s motion for a new trial.
                                      DISCUSSION
The Motion to Sever
       McClintock contends that a consideration of the relevant factors support the
conclusion that he met his burden of showing he would be prejudiced by the failure to
sever. Thus, according to McClintock, the court abused its discretion when it denied his
motion to sever. We disagree.

       “[P]ursuant to [Penal Code] section 954 an accusatory pleading may charge
       two or more different offenses so long as at least one of two conditions is
       met: The offenses are (1) ‘connected together in their commission,’ or
       (2) ‘of the same class.’” (People v. Soper (2009) 45 Cal.4th 759, 771, fn.
       omitted.)

              “A defendant, to establish error in a trial court’s ruling declining to
       sever properly joined charges, must make a ‘“clear showing of prejudice to
       establish that the trial court abused its discretion .…”’ [Citation.] A trial
       court’s denial of a motion to sever properly joined charged offenses


                                             6.
amounts to a prejudicial abuse of discretion only if that ruling ‘“‘“‘falls
outside the bounds of reason.’”’”’ [Citation.] We have observed that ‘in
the context of properly joined offenses, “a party seeking severance must
make a stronger showing of potential prejudice than would be necessary to
exclude other-crimes evidence in a severed trial.”’ [Citations.] [¶] … [¶]

       “In determining whether a trial court abused its discretion under
[Penal Code] section 954 in declining to sever properly joined charges, ‘we
consider the record before the trial court when it made its ruling.’
[Citation.] Although our assessment ‘is necessarily dependent on the
particular circumstances of each individual case, … certain criteria have
emerged to provide guidance in ruling upon and reviewing a motion to
sever trial.’ [Citation.]

        “First, we consider the cross-admissibility of the evidence in
hypothetical separate trials. [Citation.] If the evidence underlying the
charges in question would be cross-admissible, that factor alone is normally
sufficient to dispel any suggestion of prejudice and to justify a trial court’s
refusal to sever properly joined charges. [Citation.] Moreover, even if the
evidence underlying these charges would not be cross-admissible in
hypothetical separate trials, that determination would not itself establish
prejudice or an abuse of discretion by the trial court in declining to sever
properly joined charges. [Citation.] Indeed, [Penal Code] section 954.1 …
codifies this rule—it provides that when, as here, properly joined charges
are of the same class, the circumstance that the evidence underlying those
charges would not be cross-admissible at hypothetical separate trials is,
standing alone, insufficient to establish that a trial court abused its
discretion in refusing to sever those charges.

        “If we determine that evidence underlying properly joined charges
would not be cross-admissible, we proceed to consider ‘whether the
benefits of joinder were sufficiently substantial to outweigh the possible
“spill-over” effect of the “other-crimes” evidence on the jury in its
consideration of the evidence of [the] defendant’s guilt of each set of
offenses.’ [Citations.] In making that assessment, we consider three
additional factors, any of which—combined with our earlier determination
of absence of cross-admissibility—might establish an abuse of the trial
court’s discretion: (1) whether some of the charges are particularly likely
to inflame the jury against the defendant; (2) whether a weak case has been
joined with a strong case or another weak case so that the totality of the
evidence may alter the outcome as to some or all of the charges; or
(3) whether one of the charges (but not another) is a capital offense, or the
joinder of the charges converts the matter into a capital case. [Citations.]


                                      7.
       We then balance the potential for prejudice to the defendant from a joint
       trial against the countervailing benefits to the state.” (People v. Soper,
       supra, 45 Cal.4th at pp. 774–775, fn. omitted.)
       Here, except for the evading a police officer and the resisting arrest offenses that
were filed as a result of the June 16, 2012, incident, the other five charges were identical
to the five charges filed against McClintock as a result of the April 7, 2012, incident.
Thus, the charges were properly joined. Further, although during the June incident
McClintock attempted to evade officers and ultimately disabled his car by driving onto a
planter, his conduct was not so egregious during that incident that it was likely to inflame
the jury against McClintock with respect to its consideration of the charges that resulted
from the April incident. Moreover, the evidence of McClintock’s guilt was strong in both
cases because during both incidents McClintock drove erratically and exhibited obvious
physical symptoms of alcohol impairment and, in each case, his blood-alcohol content
measurement was well above the minimum illegal limit of 0.08 percent. Additionally,
none of the charges involved a capital offense.
       McClintock contends that the following circumstances shocked and inflamed the
jury against him and prejudiced the jury’s consideration of the charges arising from the
April incident. During the June 16, 2012, incident, McClintock’s car was observed
swerving from side to side and almost striking a pickup. He then led officers on a high
speed chase that traversed a shopping center parking lot, ran over a parking sign, drove
his car through a playground, and eventually came to a stop when he drove his car on top
of a planter. McClintock further contends that the charges that arose from the April
incident were weaker than those that arose from the June incident because during the
April incident he committed minimal driving violations and he did not perform any field
sobriety tests. He acknowledges that he had a higher blood-alcohol content reading
during the April incident. However, he contends the results of the breathalyzer test were
called into question “due to doubts [by the jury] as to whether the testing officer



                                             8.
complied with the 15 minute observation period requirements” and the jury’s note to the
court stating that they were not able to “reconcile” counts 1 through 4. We disagree.
       We do not find that any of the circumstances of the June incident were so
shocking or inflammatory that they affected the jury verdicts with respect to the offenses
arising out of the April incident. Although McClintock fled from police during the June
incident, during the April incident he also did not immediately stop. Further, the June
chase did not last very long and McClintock did not hit any other vehicle or injure anyone
during the chase.
       We also reject McClintock’s claim that the April DUI case was weaker than the
June DUI case. During the April incident, McClintock was observed weaving in his own
lane and drifting between lanes on Highway 99 and he continued to drift and weave after
he got off the highway until he was pulled over. Further, during the April incident,
McClintock’s car and person smelled like alcohol, his eyes were red and watery, his
speech was slurred, his gait unsteady, and McClintock was unresponsive and lethargic to
the extent that he was unable to perform any field sobriety tests. Additionally, two
breathalyzer tests within an hour after he was stopped showed that McClintock had a
blood-alcohol content of 0.21 or 0.22 percent.
       Moreover, Bridges unequivocally testified that he observed McClintock for
30 minutes prior to administering the breathalyzer tests to McClintock and that he did not
see McClintock eat, drink, regurgitate, burp, or smoke anything during that time.
Further, lab technician Anderson testified that the breathalyzer had a second safeguard
for ensuring accuracy. According to Anderson, air from deep inside the lung provides an
accurate measurement of a person’s blood-alcohol content. During a breath test, the
breathalyzer takes a measurement of the air at the beginning of the test and a second
measurement a few seconds later. The breath of a person who is blowing deep lung air
into the breathalyzer should show a consistent blood-alcohol level and if there was an
abnormal increase of alcohol, the machine would flag it as “mouth alcohol.” However,

                                            9.
no errors or issues occurred with the breath tests performed on McClintock. Thus, there
is no merit to McClintock’s contention that the results of the breathalyzer may not have
been accurate.
        Additionally, although the two notes to the court indicate that the jury was
confused over the meaning of the phrase “continuous observation,” they were eventually
able to resolve their confusion and reach a verdict. And, as noted by respondent, the
jury’s questions to the court and its request for a readback of testimony indicate that it
was being thorough and conscientious in reviewing the evidence. Accordingly, we
conclude that the court did not abuse its discretion when it denied McClintock’s motion
to sever.
McClintock’s Was Not Denied His Right to Due Process
        “[E]ven if a trial court’s ruling on a motion to sever is correct at the time it was
made, a reviewing court still must determine whether, in the end, the joinder of counts
resulted in gross unfairness depriving the defendant of due process of law. [Citation.]”
(People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 281.)
        McClintock contends that even if the trial court’s ruling on his motion to sever
was correct based on the information before it when it ruled on the motion, this court
should find he was denied due process and a fair trial because the full nature of the
inflammatory facts from the June incident were manifest during the trial. Thus,
according to McClintock, he was denied his right to a fair trial as a result of the court’s
denial of his motion to sever. We disagree.
        McClintock’s argument is based on the premise that the evidence relating to
counts 1 through 4 was weak. Since we rejected this contention in the previous section,
we also reject his claim that he was denied his constitutional rights to due process and a
fair trial.




                                              10.
The Motion for New Trial
       “A trial court has broad discretion in ruling on a motion for a new trial, and there
is a strong presumption that it properly exercised that discretion. ‘“The determination of
a motion for a new trial rests so completely within the court’s discretion that its action
will not be disturbed unless a manifest and unmistakable abuse of discretion clearly
appears.”’ [Citation.]” (People v. Davis (1995) 10 Cal.4th 463, 524.)
       McClintock relies on the same arguments he made in the two previous sections to
contend that the court abused its discretion when it denied his motion for a new trial.
Since we have already rejected these arguments, we reject this contention as well.
                                      DISPOSITION
       The judgment is affirmed.




                                             11.
