Filed 11/13/13 P. v. Elliott 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                     (Sacramento)
                                                            ----



THE PEOPLE,                                                                                  C071330

                   Plaintiff and Respondent,                                     (Super. Ct. No. 11F06594)

         v.

DION LYDALE ELLIOTT,

                   Defendant and Appellant.




         A jury convicted defendant Dion Lydale Elliott of driving under the influence of
alcohol (Veh. Code, § 23152, subd. (a); undesignated section references are to this code;
count one) and driving with a blood-alcohol content of 0.08 percent or more (§ 23152,
subd. (b); count two). The jury also found that defendant’s blood-alcohol content was
0.15 percent or more within the meaning of section 23578. Prior to trial, defendant
pleaded no contest to driving on a suspended or revoked driver’s license, a misdemeanor
(§ 14601.2, subd. (a); count three) and admitted three priors for the same conduct (§§
14601.1, 14601.2). In bifurcated proceedings, defendant admitted a strike prior [2008



                                                             1
criminal threats] (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and prior prison term
allegations (Pen. Code, § 667.5, subd. (b)).
       Sentenced to state prison for an aggregate term of 11 years, defendant appeals. He
contends counsel rendered ineffective assistance by failing to call an expert to challenge
the reliability of the breath-testing machine and the breath-test results. He also contends
his 11-year sentence constitutes cruel and unusual punishment. We affirm the judgment.
                                          FACTS
       At 2:08 a.m. on September 10, 2011, California Highway Patrol officers observed
defendant’s car weaving from lane to lane (a three-lane weaver) on the Business Loop of
Interstate 80 (Capital City Freeway) near Arden Way. The officers activated their
emergency lights and, using the public address system on the patrol car, directed
defendant to exit onto El Camino Avenue and then onto Albatross Way. Defendant did
so but drove abnormally, driving for a time on the shoulder of the highway and varying
his speed. When Officer Stephen Newman approached defendant’s car to explain the
reason for the stop, the officer could smell the odor of alcohol coming from defendant
through the open driver’s side window. Defendant’s eyes were very red and his speech
was very slow and thick. Officer Newman directed defendant to get out of his car.
Defendant got out slowly and when he walked, he staggered. The officer asked
defendant a series of questions to determine whether there was a reason for driving
poorly, such as whether he had any physical disabilities or mechanical problems with his
car. Defendant had none and did not indicate whether he had any problem with his eyes.
When the officer asked if defendant had anything to drink, defendant responded that he
had consumed “a lot of alcohol” at a bar in midtown between 9:00 p.m. and 11:00 p.m.
and that he was “lit.” Defendant failed the horizontal gaze nystagmus test and the officer
concluded that defendant had a blood-alcohol content (BAC) of at least 0.10 percent.
Defendant refused to perform other field sobriety tests including the preliminary alcohol
screening test. Defendant was arrested at 2:16 a.m. and transported to the county jail.

                                               2
Along the way, the officers stopped and arrested another drunk driver. At the jail, Officer
Newman used a Drager Alcotest machine and defendant provided two successful breath
samples, the first at 3:23 a.m. which tested at 0.17 percent and the second at 3:31 a.m.
which tested at 0.16 percent BAC.
       A criminalist testified as an expert in forensic alcohol analysis on the rate of
absorption and elimination. Based on a hypothetical question using defendant’s test
results of 0.17 BAC at 3:23 a.m., his weight of 320 pounds, and consumption of alcohol
between 9:00 and 11:00 p.m., the criminalist opined that a person would have consumed
between approximately 22 and 22 and a half drink equivalents, was fully absorbed at 2:08
a.m. and had a BAC of 0.195 when he was driving.
                                       DISCUSSION
                                              I
       Defendant first contends that defense counsel’s failure to retain a physiologist as
an expert to challenge the breath-test machine and test results constituted ineffective
assistance. We reject defendant’s contention.
       To establish ineffective assistance of counsel, defendant must demonstrate that
counsel’s performance was deficient and that defendant suffered prejudice as a result.
(Strickland v. Washington (1984) 466 U.S. 668, 687, 691-692 [80 L.Ed.2d 674, 693,
696]; People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) “In determining whether
counsel’s performance was deficient, a court must in general exercise deferential
scrutiny. [Citations.]” (People v. Ledesma, supra, 43 Cal.3d at p. 216.) To establish
counsel’s performance was deficient, defendant must show that “trial counsel failed to act
in a manner to be expected of reasonably competent attorneys acting as diligent
advocates.” (People v. Pope (1979) 23 Cal.3d 412, 425.) We review the record for any
explanation for the challenged act or omission. If an explanation exists, we must
determine whether “counsel was reasonably competent and acting as a conscientious,
diligent advocate.” (Id. at p. 425.) When the record is silent, “unless counsel was asked

                                              3
for an explanation and failed to provide one, or unless there simply could be no
satisfactory explanation,” the judgment is affirmed on appeal. (Id. at p. 426.) We do not
engage “ ‘in the perilous process of second-guessing.’ [Citation.]” (Ibid.) We will
“ ‘reverse convictions on the ground of inadequate counsel only if the record on appeal
affirmatively discloses that counsel had no rational tactical purpose for his act or
omission.’ [Citation.]” (People v. Zapien (1993) 4 Cal.4th 929, 980.)
       Defendant claims that defense counsel should have called a physiologist expert to
testify that the breath-test machine was flawed. Defendant quotes from an American Law
Reports annotation, “ ‘[A] small error could conceivably turn a marginally legal reading
into an illegal reading. Based on statements made by expert witnesses and agreed with
by some of the courts represented in this annotation, that type of error is definitely
possible, although perhaps very rare.’ (See 90 A.L.R.4th 155, § 2, p. 161.)” Defendant
argues, “A physiologist expert could only have highlighted the shortfalls of the breath-
test results in a persuasive scientific context. There could be no downside or possible
explanation why [defendant’s] counsel should not have engaged an expert witness to
challenge the breath-test results.”
       Defendant cites People v. Vangelder (2011) 197 Cal.App.4th 1, review granted
October 19, 2011, S195423, even though he recognizes the Supreme Court granted
review. The case it not lawfully citable and will not be considered. (See Cal. Rules of
Court, rules 8.1105(e) [with an exception not applicable here, “an opinion is no longer
considered published if the Supreme Court grants review”], 8.1115 [with exceptions not
applicable here, “an opinion of a California Court of Appeal . . . that is not certified for
publication or ordered published must not be cited or relied on by a court or a party in
any other action”].)
       Defendant’s allegations are just that and do not establish counsel’s performance
was deficient. The blood-alcohol readings of .17 and .16 were not “marginally legal
readings.” They were twice the legal limit. Moreover, defendant does not cite any

                                              4
authority which requires defense counsel to call a defense expert on alleged defects of the
breath-test machine and results. “Criminal cases will arise where the only reasonable and
available defense strategy requires consultation with experts or introduction of expert
evidence, whether pretrial, at trial, or both. There are, however, ‘countless ways to
provide effective assistance in any given case. Even the best criminal defense attorneys
would not defend a particular client in the same way.’ [Citation.] Rare are the situations
in which the ‘wide latitude counsel must have in making tactical decisions’ will be
limited to any one technique or approach. [Citation.] It can be assumed that in some
cases counsel would be deemed ineffective for failing to consult or rely on experts, but
even that formulation is sufficiently general that state courts would have wide latitude in
applying it.” (Harrington v. Richter (2011) 562 U.S. ___, ___, [178 L.Ed.2d 624, 643].)
Harrington noted that in Richter’s case, “there were any number of hypothetical experts
-- specialists in psychiatry, psychology, ballistics, fingerprints, tire treads, physiology, or
numerous other disciplines and subdisciplines -- whose insight might possibly have been
useful. . . . [Citation.] Counsel was entitled to formulate a strategy that was reasonable at
the time and to balance limited resources in accord with effective trial tactics and
strategies. [Citations.]” (Id. at pp. ___ [178 L.Ed.2d at pp. 643-644.)
       Here, the record does not reflect that counsel was ever asked about not providing
an expert to challenge the breath-test machine and test results. However, there is a
satisfactory explanation. Defense counsel was entitled to formulate a strategy that was
reasonable at the time that did not require the use of a physiologist expert regarding the
machine and results. Defense counsel challenged the assumptions concerning when
defendant finished consuming his drinks and what he consumed, which the prosecution’s
criminalist admitted could change defendant’s BAC to 0.07 when he was driving.
Defendant has failed to demonstrate that counsel’s performance was deficient.




                                               5
                                              II
       Defendant contends his “eleven-year sentence for drunk driving, where no
accident occurred and no one was injured,” constitutes cruel and unusual punishment
under the state and federal Constitutions. We reject this claim.
       Defendant did not raise this issue at the time of sentencing so this issue is
forfeited. (People v. Russell (2010) 187 Cal.App.4th 981, 993.) Since defendant claims
counsel rendered ineffective assistance in failing to raise the issue, we reach the merits
and reject his claim. We start by noting that defendant’s premise is simply wrong. He
was not sentenced to state prison for 11 years for drunk driving or, as defendant contends,
“for being an alcoholic.” He was sentenced to the upper term of three years for drunk
driving (count one), doubled for his strike prior to six years. The court stayed sentence
on count two. The court imposed one year for each of his five prior prison terms. The
court also imposed 30 days, with credit for time served, for count three.
       The Eighth Amendment to the United States Constitution “forbids cruel and
unusual punishments” and “contains a ‘narrow proportionality principle’ that ‘applies to
noncapital sentences.’ [Citations.]” (Ewing v. California (2003) 538 U.S. 11, 20 [155
L.Ed.2d 108, 117] (Ewing).) The proportionality principle “ ‘does not require strict
proportionality between crime and sentence’ ” but does prohibit “ ‘extreme sentences that
are “grossly disproportionate” to the crime.’ [Citation.]” (Ewing, supra, 538 U.S. at p.
23.)
       In a proportionality analysis, we consider objective criteria: “(i) the gravity of the
offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in
the same jurisdiction; and (iii) the sentences imposed for commission of the same crime
in other jurisdictions.” (Solem v. Helm (1983) 463 U.S. 277, 292 [77 L.Ed.2d 637, 650].)
The second and third criteria are considered if, in the rare case, there is an inference that
the sentence is grossly disproportionate under the first criteria. (Harmelin v. Michigan
(1991) 501 U.S. 957, 1005 [115 L.Ed.2d 836] (Kennedy, J., conc. in pt. & conc. in

                                              6
judg.).) In a noncapital case, a successful challenge to proportionality is “ ‘exceedingly
rare.’ ” (Ewing, supra, 538 U.S. at p. 21.)
       Ewing upheld the defendant’s three strikes prison sentence of 25 years to life for
grand theft of a few golf clubs with four prior serious or violent felonies. (Ewing, supra,
538 U.S. at pp. 17-20.) In considering the gravity of the offense, Ewing cited the
defendant’s current felony as well as his lengthy criminal history. “Any other approach
would fail to accord proper deference to the policy judgments that find expression in the
legislature’s choice of sanctions. In imposing a three strikes sentence, the State’s interest
is not merely punishing the offense of conviction . . . ‘It is in addition the interest . . . in
dealing in a harsher manner with those who by repeated criminal acts have shown that
they are simply incapable of conforming to the norms of society as established by its
criminal law.’ [Citations.]” (Id. at p. 29; see also People v. Meeks (2004) 123
Cal.App.4th 695, 708.) “Recidivism has long been recognized as a legitimate basis for
increased punishment.” (Ewing, supra, at p. 25.)
       Here, defendant’s 11-year sentence is far less severe than the term of 25 years to
life imposed upon the defendant in Ewing. While defendant’s overall sentence may seem
grossly disproportionate to the crime of drunk driving by someone without a serious or
violent criminal history, defendant has shown he is incapable of conforming to the
criminal law.
       Defendant misplaces his reliance on People v. Carmony (2005) 127 Cal.App.4th
1066 in which this court held that a three strikes sentence of 25 years to life for “failure to
provide duplicative [sex offender] registration information is grossly disproportionate to
the offense” because the defendant’s offense was “an entirely passive, harmless, and
technical violation of the registration law . . . .” (Id. at pp. 1073, 1077.) Here, drunk
driving is not passive, harmless, or a technical violation of the law and defendant was not
sentenced to a prison term of 25 years to life. Defendant’s sentence is not grossly
disproportionate to his offense.

                                                7
       The California Constitution prohibits “[c]ruel or unusual punishment.” (Cal.
Const., art. I, § 17, italics added.) “[A] punishment may violate the [California
Constitution] if, although not cruel or unusual in its method, it is so disproportionate to
the crime for which it is inflicted that it shocks the conscience and offends fundamental
notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch), fn. omitted.)
Lynch described three “techniques” to use “in administering this rule”: (1) an
examination of the “nature of the offense and/or the offender, with particular regard to
the degree of danger both present to society” (id. at p. 425); (2) a comparison of the
challenged penalty with the punishments prescribed in the same jurisdiction for more
serious offenses (id. at p. 426); and (3) “a comparison of the challenged penalty with the
punishments prescribed for the same offense in other jurisdictions having an identical or
similar constitutional provision.” (Id. at p. 427, italics omitted.)
       With respect to the first Lynch technique, the offense of drunk driving is not a
minor offense -- it endangers others on the road. When considered in light of defendant’s
history of recidivism which includes many drunk driving offenses, prior felony offenses
including battery with serious injury, discharging a firearm, and criminal threats, and
prior prison terms, harsh punishment is justified. (See People v. Meeks, supra, 123
Cal.App.4th at pp. 709-710.) With respect to the second Lynch technique, defendant’s
punishment is no more severe than punishment for an offender, with a similar criminal
history, who commits a more serious offense in California. With respect to the third
Lynch technique, defendant offers no comparison of the challenged penalty with the
punishments prescribed for the same offense in other jurisdictions having an identical or
similar constitutional provision. Defendant has not shown that his punishment shocks the
conscience or offends fundamental notions of human dignity.
       Defendant’s 11-year sentence for drunk driving and his life of crime does not
constitute cruel and unusual punishment under either the state or federal Constitutions.
Thus, defense counsel’s failure to object to defendant’s sentence does not constitute

                                               8
ineffective assistance of counsel. The frailty, indeed, futility of defendant’s argument
becomes self-evident by noting the trial court’s exercise of discretion, as requested by the
prosecutor and the probation officer, to impose consecutive one-year terms for only five
of his seven admitted prior prison terms.
                                      DISPOSITION
       The judgment is affirmed.



                                                        NICHOLSON             , J.



We concur:



      BLEASE                , Acting P. J.



      HULL                  , J.




                                             9
