Filed 7/30/13 P. v. Burney 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,                                                                                  C069797

                   Plaintiff and Respondent,                                     (Super. Ct. No. 11F05012)

         v.

DONALD BURNEY,

                   Defendant and Appellant.




         A jury convicted defendant Donald Burney of felony driving under the influence
(DUI) of an alcoholic beverage (Veh. Code, §§ 23152, subd. (a), 23550.5) and felony
driving with a blood-alcohol content of 0.08 percent or above, having previously been
convicted three times within 10 years of DUI (Veh. Code, §§23152, subd. (b), 23550.5).
The defendant admitted that the prior conviction allegations were true. The trial court
sentenced him to four years in prison.
         Defendant was cross examined regarding two prior felony convictions involving
moral turpitude. During deliberations, the jury asked for a definition of “moral turpitude”
even though the phrase did not appear elsewhere in the instructions. The trial court, at
the urging of defense counsel, told the jury that a crime of moral turpitude was one that


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related to witness credibility. Defendant argues the trial court should have defined moral
turpitude for the jury.
       We shall conclude any error was invited, the instruction given was a correct
statement of the law, and defendant was not prejudiced. We shall affirm the judgment.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Officers Mark Riffie and Steve Rutledge were on patrol around 10:00 p.m. when
they noticed a vehicle on the right shoulder of Interstate 80 that had its emergency
flashers activated. As Officer Riffie approached the vehicle, he saw defendant exit the
front driver’s seat of the vehicle. Defendant told Riffie that “his vehicle had just died and
he was about to call Triple A.” Riffie touched the hood to determine how long the
vehicle had been there, and found the hood warm to the touch. Defendant said he had
been at that location approximately two minutes. There were no other individuals around
or in the vehicle.
       As Officer Riffie spoke to defendant he noticed a strong odor of alcohol and that
defendant had red and watery eyes. Defendant swayed when he stood. His speech was
often slurred. Riffie asked for defendant’s license, but defendant said he did not have
one, and upon checking, Riffie discovered that defendant’s driving privilege had been
suspended. A records check of the vehicle revealed that it was registered to Celia
Trevino, defendant’s girlfriend.
       Defendant told Officer Riffie he had driven to that location, and he did not have
any passengers when he drove to the location. He said he had not consumed any alcohol
since arriving at the location. He said he had half of a 24-ounce beer earlier in the
afternoon, around 5:00 or 6:00 p.m.
       Officer Riffie conducted field sobriety tests on defendant. Defendant did not pass
the field sobriety tests. Riffie had defendant blow into a preliminary alcohol screening
device. It showed defendant had a blood-alcohol level of 0.183 at 10:15 p.m. A second
test taken at 10:17 p.m. showed the same result. Riffie arrested defendant and took him

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to jail. Riffie administered a breath test at jail. The results of the breath test showed that
defendant had a blood alcohol level of 0.16 at 11:42 p.m., and the same level at
11:47 p.m.
       While he was in jail, defendant conducted two visits with his cousin which were
recorded and played for the jury. In the first recording, defendant told his cousin that he
had been coming home when his truck broke down. He said while he was on the side of
the road he looked in his glove box, but found he had left his wallet so could not call
AAA. He said he called Trevino to tell her to bring his wallet, but before she answered,
the highway patrol showed up. When asked whether he had been in the car or the truck,
defendant answered that he “just left the car at her house and took the truck . . . .”
Defendant said, “it’s a blessing cuz, you know, I shouldn’t have been out there, you
know, like that, but the only thing that dang car broke down, I was on my way home.”
       Defendant and his girlfriend, Trevino, both testified at trial. They both testified
that Trevino had been driving when the truck broke down. They said Trevino called her
daughter to pick up Trevino so Trevino could go back to her house to pick up the AAA
card, which was in defendant’s wallet at Trevino’s apartment. They testified Trevino had
called her daughter around 9:00 or 9:30 p.m., and Trevino testified her daughter picked
her up around 10:00 p.m.
                                       DISCUSSION
       “Any prior felony conviction that ‘necessarily involve[s] moral turpitude’ is
admissible to impeach a witness’s testimony. [Citation.] Moral turpitude is defined as the
‘general readiness to do evil.’ [Citations.]” (People v. Feaster (2002) 102 Cal.App.4th
1084, 1091, quoting People v. Castro (1985) 38 Cal.3d 301, 306, italics omitted.)
       The prosecutor made an in limine motion to admit defendant’s two prior felony
convictions for DUI for the purpose of impeachment in the event defendant testified. At
the hearing on the motion, defense counsel agreed that the convictions were both moral
turpitude convictions about which defendant could be questioned. However, counsel

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requested that the questioning be sanitized “so as to not give the appearance that
[defendant] had been convicted of a DUI as though it may be prejudicial to him and the
jury may take it as a propensity to commit a further DUI in this case.”
          The prosecutor agreed to sanitize the questioning so that it would not be apparent
to the jury that defendant had previously been convicted of a DUI, and suggested
defendant could be asked if he had been convicted of a felony involving moral turpitude.
Defense counsel stated he had “[n]o issue with that.” The trial court granted the
prosecution’s motion to admit the prior convictions for impeachment, and the defendant’s
request to sanitize the nature of the convictions.
          Thereafter, the prosecutor asked defendant if he had been convicted of a “felony
offense involving moral turpitude on November 18th, 2005?” Defendant responded,
“What is moral turpitude?” Counsel approached the bench. When questioning resumed,
the prosecutor asked, “Isn’t it true that you were convicted of a felony crime involving
moral turpitude in Sacramento County on November 18th, 2005” and “of a separate
felony crime involving moral turpitude on July 30th, 2009?” Defendant responded, “Yes,
it is.”
          The trial court instructed the jury that in evaluating a witness’s testimony it could
consider whether the witness had been convicted of a felony. During deliberations, the
jury requested the “definition of moral turpitude.” The prosecutor argued the term should
be defined as “a readiness to do evil,” the definition set forth in People v. Castro (1985)
38 Cal.3d 301, 314-315. The prosecutor allowed he would be willing to change the word
“evil” to “wrong” if defense counsel wanted, but argued the court should not simply point
the jury back to the instructions.
          Defense counsel stated that there had been no discussion about including a jury
instruction to define moral turpitude, nor would such an instruction have been
appropriate. He argued that the correct way to answer the jury was to refer them back to
the witness credibility instruction. The court stated: “I don’t think that there is a dispute

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over what the definition is under the law of the crime of moral turpitude.” Defense
counsel agreed. The court continued: “The question is whether it’s an appropriate
instruction in our particular case. That’s really the thrust of it.”
       The trial court responded to the jury’s question with the following: “A crime of
moral turpitude is an offense that is relevant to witness credibility. The court refers the
jury back to Jury Instruction 226, which includes certain factors that the jury may
consider in evaluating a witness’s testimony.”
       Defendant argues the court erred when it failed to adequately respond to the jury’s
request for a definition of moral turpitude.
       We conclude this is a case of invited error. Furthermore, the instruction given was
not incorrect, and defendant cannot show that he was prejudiced by the instruction
because it inured to his benefit.
       Invited error may be found “only if counsel expresses a deliberate tactical purpose
in suggesting, resisting, or acceding to an instruction . . . .” (People v. Wickersham
(1982) 32 Cal.3d 307, 332, disapproved on another point in People v. Barton (1995) 12
Cal.4th 186, 201.) The purpose of this rule is so that an appellate court can be certain
that counsel acted intentionally. (People v. Cooper (1991) 53 Cal.3d 771, 830.) The
record must show “only that counsel made a conscious, deliberate tactical choice between
having the instruction and not having it. . . . [The record] need not additionally show
counsel correctly understood all the legal implications of the tactical choice.” (Id. at
p. 831.)
       In this case defense counsel specifically stated it would agree to the court’s
proposed response, which was to refer the jury back to the witness credibility instruction,
but that it would be inappropriate to instruct the jury on the meaning of moral turpitude.
Clearly, defense counsel made a conscious, deliberate tactical choice between having the
instruction and not having it.



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       In any event, there was no error. The jury was essentially told that defendant had
been convicted of crimes of moral turpitude, that a crime of moral turpitude was one that
was relevant to his credibility, and that it could use such convictions as a factor in
determining defendant’s credibility. This was not an incorrect statement of law. (See
People v. Harris (2005) 37 Cal.4th 310, 337 [“Past criminal conduct involving moral
turpitude that has some logical bearing on the veracity of a witness in a criminal
proceeding is admissible to impeach . . . .”].)
       Finally, the instruction was not prejudicial. Although defendant does not explain
what instruction the jury should have been given, the only instruction being argued was
one that would have told the jury he had been convicted of a crime showing a readiness
to do evil. An instruction which merely told the jury that defendant had admitted he was
guilty of a felony that was related to his credibility was less damaging to his defense than
one that told the jury he admitted he was guilty of a felony demonstrating a readiness to
do evil. An instruction that inured to his benefit, even if error, is not cause for reversal.
(People v. Nguyen (1993) 21 Cal.App.4th 518, 535.)
                                       DISPOSITION
       The judgment is affirmed.



                                              BLEASE                     , Acting P. J.


We concur:


          HULL                      , J.


          MAURO                     , J.




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