P. v. Bondiek
Filed 11/15/13 P. v. Bondiek CA4/3
OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
MIKE LOUIS
BONDIEK,
Defendant and Appellant.
G047030
(Super. Ct. No. 11HF2355)
O P I N I O N
Appeal
from a judgment of the Superior Court of
County, Steven D. Bromberg, Judge.
Affirmed.
Maureen
M. Bodo, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and
Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendant Mike Bondiek
appeals following a conviction of driving under the influence of alcohol. He argues there was insufficient evidence to
find him guilty, and further claims the prosecutor committed prejudicial
misconduct by failing to admonish two witnesses not to refer to excluded
evidence. He also contends he is
entitled to additional presentence credits due to a change in the relevant
statute which he argues should be applied retroactively. We find that none of these arguments have
merit, and therefore affirm.
I
FACTS
On the
afternoon of July 18, 2011, Sandra Zoepfel drove into a south Orange County gas station.
She saw a car that appeared to be disabled in the driveway and drove
around it. Defendant was in the driver’s
seat of that car. After parking, Zoepfel
and her passenger, Laura Torres, approached defendant’s car with the idea of
pushing it out of the driveway. Torres
asked defendant if he needed help, but he did not respond. He was looking down at the passenger seat and
putting items into a bag. Zoepfel
realized the car could not be pushed because it seemed to be disabled, with
damage to the right side of the vehicle and the axle, with one tire apparently
folded underneath the car.
By this
time, another driver, Solomon Ortiz, had parked and approached to assist in
moving defendant’s car. He also observed
the axle damage and bent front wheel. (At
trial, Ortiz thought the engine was running, but in a prior hearing, he said
the engine had been off.)
Zoepfel
approached the driver’s side door and noticed that defendant appeared to be
intoxicated. He responded to her in a
way that did not appear to be “normal†and had a strong odor of alcohol coming
from him. Ortiz also smelled alcohol
from a few feet away. Ortiz also
observed that defendant was flustered, his skin was very red, and he was
sweating.
All three
witnesses next observed defendant as he reached into a bag and pulled out a
bottle of vodka, poured it into a plastic cup, and drank. Zopefel eventually called police on her cell
phone, as did Ortiz. While speaking to
the 911 operator, Zopefel saw defendant get out of his car and walk down the
sidewalk. He walked like he was drunk, swaying
and staggering, and tripping at one point.
While
staying on the phone with the 911 operator, Zopefel followed defendant with her
car. Defendant eventually went up a
driveway and entered a residence’s backyard.
Zoepfel stayed in her car until law enforcement arrived.
Orange
County Deputy Sheriff Daniel Corwin arrived at the house and found defendant,
who had his bag with him, lying on a hammock in the backyard. Corwin asked defendant if he lived there, and
defendant said no. At Corwin’s request,
defendant went with him to the front of the house. Corwin noticed that defendant smelled like
alcohol, and that he was unsteady on his feet and his speech was slurred.
Corwin
then conducted numerous field sobriety tests on defendant, each of which
indicated that defendant was intoxicated.
Preliminary alcohol screening tests indicated defendant’s blood-alcohol
level was .156 and .159 percent. Taken
together, Corwin concluded that defendant was intoxicated for purposes of
driving. Corwin arrested defendant and
obtained two additional breath samples, taken approximately half an hour after
the initial tests, which reflected blood-alcohol levels of .21 and .20 percent.
In
the meantime, another officer had arrived at the gas station and found
defendant’s car with the keys still in the ignition. The car was registered to Susan Gulbro.
On
November 23, 2011,
defendant was charged with driving under the influence of an alcoholic beverage
(Veh. Code, § 23152, subd. (a); count one) and driving with blood-alcohol
concentration of .08 or more after a previous conviction for gross vehicular
manslaughter while intoxicated (Veh. Code, § 23152, subd. (b); count two). It was also alleged that defendant had a
prior serious conviction for gross
vehicular manslaughter while intoxicated.
(Pen. Code,
667, subds. (d), (e)(1), § 1170.12, subds. (b), (c)(1).)
The
case initially went to trial in April 2012, with the issue of the prior
conviction bifurcated. The jury was
unable to reach a verdict on count one and found defendant not guilty on count
two. A mistrial was declared on count one.
The
instant jury trial began on May 7, 2012, with the issue of the prior conviction
once again bifurcated. At trial, in
addition to the percipient witnesses, the jury also heard testimony from
Heather Lewis, a forensic scientist with the Orange County crime lab. She testified about how alcohol is absorbed
into the bloodstream, how it is eliminated, and related matters. When presented with a hypothetical mirroring
the facts of this case, she testified that it would have taken approximately
3.2 standard drinks that had not been absorbed into the bloodstream at the time
of the first tests to account for the difference between the preliminary
results and the results approximately half an hour later. When asked how many drinks would have been
absorbed, but not eliminated, in order for defendant’s blood-alcohol level to
reach .205 percent, she testified approximately 14.6 standard drinks. She also testified that alcohol would have
been eliminating itself from the body from the time the person stopped drinking
(approximately 35 to 40 minutes before the preliminary tests) to the time of
the later tests. Giving her most
conservative estimate, Lewis opined the person would have had to drink
approximately 15 to 17 standard drinks to account for that test result. Without knowing the exact time of driving,
however, Lewis conceded it was possible that defendant was not intoxicated
while driving the car.
On
May 14, the jury convicted defendant on count one. Defendant admitted the prior. On June 1, the court sentenced defendant to
six years in prison.
II
DISCUSSION
Evidence
When
a defendant calls into question the sufficiency of the evidence, our review is
a very limited one. “‘“When the
sufficiency of the evidence is challenged on appeal, the court must review the
whole record in the light most favorable to the judgment to determine whether
it contains substantial evidence—i.e., evidence that is credible and of solid
value—from which a rational trier of fact could have found the defendant guilty
beyond a reasonable doubt.â€â€™
[Citations.]†(People v. Hill (1998) 17
Cal.4th 800, 848-849.) We presume the
existence of every fact the trier of fact could have reasonably deduced from
the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) “In deciding the sufficiency of the evidence,
a reviewing court resolves neither credibility issues nor evidentiary
conflicts. [Citation.]†(People
v. Young (2005) 34 Cal.4th 1149, 1181.) “Conflicts and even testimony which is
subject to justifiable suspicion do not justify the reversal of a judgment, for
it is the exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts upon which a
determination depends. [Citation.]†(People
v. Maury (2003) 30 Cal.4th 342, 403.) This standard applies even “when the
conviction rests primarily on circumstantial evidence.†(People
v. Kraft, supra, 23 Cal.4th at p. 1053.)
Further,
before we reverse a judgment for insufficiency of evidence, it must be clear
there is no hypothesis under which we could find sufficient evidence. (People
v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1765.)
Defendant
argues that there is insufficient evidence to support his conviction for
driving under the influence because none of the witnesses saw him drive or could
say how long the car had been sitting in the gas station driveway. Therefore, he claims, it is possible that he
consumed all the alcohol later found in his bloodstream while sitting in the
driveway rather than while driving.
‘“The
question as to whether defendant drove the vehicle is a question of fact for
the jury [citation] . . . .’†(
Supp. 1, 7 (Wilson).) Further, whether the defendant was driving may
be established through circumstantial evidence.
(People v. Hanggi (1968) 265
Cal.App.2d. Supp. 969, 972.)
This
is not a close call. There was more than
sufficient circumstantial evidence from which the jury could have concluded
that defendant was intoxicated before his vehicle wound up in the gas station
driveway. The way he was parked was
itself indicative that something was amiss — ordinarily, drivers do not park in
driveways, blocking the ingress of other cars. Further, the vehicle was
damaged to the point where it could not be moved, a fact from which a reasonable jury could infer that defendant’s
intoxication and resultant poor driving caused the damage to the car. The jury also had Lewis’s testimony regarding
the number of drinks it would have taken to reach defendant’s level of
intoxication, from which they could infer that defendant had been drinking for
quite some time, including the period before he wound up in the gas station
driveway.
In
Wilson, the defendant was found
asleep behind the wheel of a car parked on the shoulder of a freeway at an
angle, protruding into a nearby lane. (
p. 3.) The court held the jury could
reasonably conclude that defendant had been driving while under the
influence. “Clearly, this was not a
normal parking place or position for a vehicle to be stopped. Moreover, the vehicle did not simply
materialize at that location. Obviously,
someone drove it there. [¶] That someone was defendant, according to the
jury. Defendant was the sole occupant of
the vehicle. He was found seated in the
driver’s seat.†(Id.at p. Supp. 8.) Such is
the case here. The jury was entitled to
conclude that defendant had driven the vehicle while intoxicated, damaged it,
and wound up in the gas station driveway.
They were similarly free to reject the notion that defendant, while
completely sober, during the middle of the day, damaged his vehicle to the
point where it was not drivable in an accident that apparently did not involve
another car, chose to park the vehicle in a place that blocked others, and then
proceeded to drink to the point of intoxication.
Prosecutorial Misconduct
Defendant
next contends the prosecutor committed misconduct that requires reversal. He contends the prosecutor failed to
adequately admonish two witnesses not to refer to excluded evidence.
Prior to
trial, the prosecutor informed the court that he wanted to introduce the fact
that defendant had removed a pair of bolt cutters from the car and threw them
in the bushes before leaving the scene.
The purpose of this evidence was to demonstrate that defendant was
familiar with the car. After hearing
argument, the court concluded the prosecutor could refer to the bolt cutters,
but not during the prosecutor’s case-in-chief.
Two
witnesses did refer to the bolt cutters during the prosecution’s case-in-chief. Ortiz was describing what happened after the
witnesses saw defendant drink the vodka.
The prosecutor asked what Ortiz observed afterward. Ortiz answered that defendant stepped out of the
car. The prosecutor asked, “And what
happened next?†to which Ortiz responded:
“He pulled these bolt cutters from the back of his car.†Defense counsel objected and moved to strike,
which the court sustained, and the court immediately instructed the jury: “It has nothing to do with this case. Nothing for you to consider. It can be confusing. Just has nothing to do with this case. Just ignore that.â€
This issue
was addressed between the court and counsel during a recess. The prosecutor had indicated to the court
that he told Ortiz not to talk about the bolt cutters, advising him of this
several times. He stated: “I actually told him quite a number of times
that there was to be no discussion, that the court had made a ruling that it
was misleading, and there was no point in bringing it up.â€
During
cross-examination, Corwin testified that he had returned to the gas station
later to ask the attendant about surveillance video. Defense counsel elicited testimony from
Corwin that he had testified otherwise at the first trial. On redirect, the prosecutor asked Corwin to
explain his two different answers.
Corwin responded: “Well, I
remember talking to someone about the video, one of the gas station attendants
when I [went] back. There was a pair of
bolt cutters that —†Defense counsel
objected, and the objection was sustained.
During a recess, the court asked the prosecutor if he had admonished
Corwin about references to the bolt cutters, and the prosecutor said he had
done so during the first trial a month earlier.
The court was concerned by the two separate references to the bolt
cutters. The prosecutor stated he had
not reminded Corwin about the bolt cutters because Corwin’s testimony did not
have anything to do with events at the gas station. The court instructed Corwin not to mention
the bolt cutters again. After the
recess, the court again instructed the jury that the reference to the bolt
cutters was not evidence and the jury should not consider it for any
purpose.
Prosecutorial
misconduct violates the federal
Constitution when it comprises a pattern of conduct “so egregious that it
infects the trial with such unfairness as to make the conviction a denial of
Harris (1989) 47 Cal.3d 1047, 1083-1084.) 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.â€â€™ [Citations.]â€
(People v. Espinoza (1992) 3 Cal.4th 806, 820.) Misconduct need not be intentional. (People
v. Bolton (1979) 23 Cal.3d 208, 214.)
A
prosecutor commits misconduct by violating a court order to elicit inadmissible
evidence. (People v. Crew (2003) 31 Cal.4th 822, 839.) Further, it is a prosecutor’s responsibility
to admonish and warn his or her witnesses about matters that cannot be
mentioned while testifying. (
1370, 1406.)
It
is doubtful that the prosecutor here committed misconduct. In neither case did the prosecutor directly
elicit forbidden testimony, and particularly with regard to Corwin, the
prosecutor had no reason to anticipate the bolt cutters arising. With regard to Ortiz, the prosecutor stated
that he had given appropriate warnings, and we have no reason to doubt the word
of an officer of the court. The most
likely explanation is that an inexperienced witness simply neglected to follow
instructions.
Further,
even if we found that misconduct did occur, the error was harmless beyond a
reasonable doubt. (Chapman v. California
(1967) 386 U.S. 18.) The bolt cutters
were not a “smoking gun†in this case; indeed, they were not even collaterally
relevant to the issues at hand, and both references were brief. Defendant argues that bolt cutters are
inherently prejudicial because they are associated with criminal activity, and
if this case was about burglary or theft, we might agree. But they were totally irrelevant to the
issues before the jury in this case, specifically whether defendant was
intoxicated at the time he drove. The
bolt cutters were simply neither here nor there. It is also worth noting, of course, that bolt
cutters do have legitimate uses, and there was no suggestion of other criminal
activity by defendant. Further, “‘[u]nder ordinary circumstances the
trial court is permitted to correct an error in admitting improper evidence by
ordering it stricken from the record and admonishing the jury to disregard it,
and the jury is presumed to obey the instruction. [Citations.]’†(People
v. Gurrola (1963) 218 Cal.App.2d 349, 357.) That is precisely what happened here, and there
is no indication that the brief bolt cutter references played any part in
defendant’s conviction. We therefore
conclude any error was harmless beyond a reasonable doubt.
Presentence Credits
Defendant
argues that equal protection principles
require that the court award him additional presentence credits under the
October 1, 2011 amendment to section 4019.
Section 4019 permits prisoners awaiting sentencing for nonviolent
crimes to reduce their period of confinement with conduct credit in addition to
the credit they receive for the actual days spent in custody. (People v.
Brown (2012) 54 Cal.4th 314, 317.)
Before January 2010, defendants were entitled to two days for every four
days of actual time, or one for two, in presentence custody. (People
v. Rajanayagam (2012) 211 Cal.App.4th 42, 48 (Rajanayagam).) Effective
January 25, 2010, the statute was amended to allow two days of conduct credit
for every two days of time served. (People v. Garcia (2012) 209 Cal.App.4th 530, 535-536.) The purpose of this new, accelerated formula
was to reduce costs. (
Effective
September 28, 2010, a new formula went into effect due to an amendment to
section 4019. The less generous one for
two formula was restored. (Stats. 2010,
ch. 426, §§ 1, 2, 5.) This credit
formula was in effect when defendant committed the instant offense on July 18,
2011.
A new
version of section 4019 went into effect in October 2011. The 2011 amendment to section 4019 increased
the conduct credit formula under which prisoners earn two days of conduct
credit for every two days of time served. The first sentence of section 4019, subdivision
(h) provides: “The changes to this
section . . . shall apply prospectively and shall apply to prisoners who are
confined to a county jail . . . for a crime committed on or after October 1,
2011.†The second sentence of
subdivision (h) continues: “Any days
earned by a prisoner prior to October 1, 2011 shall be calculated at the rate
required by the prior law.†(Stats.
2011, ch. 15, § 482.)
We
concluded in Rajanayagam,
principles of statutory construction require that the credits awarded in the
October 2011 version of the statute be applied only prospectively. “[S]ubdivision (h)’s first sentence reflects
the Legislature intended the enhanced conduct credit provision to apply only to
those defendants who committed their crimes on or after October 1, 2011. Subdivision (h)’s second sentence does not
extend the enhanced conduct credit provision to any other group, namely those
defendants who committed offenses before October 1, 2011, but are in local
custody on or after October 1, 2011. Instead,
subdivision (h)’s second sentence attempts to clarify that those defendants who
committed an offense before October 1, 2011, are to earn credit under the prior
law. However inartful the language of
subdivision (h), we read the second sentence as reaffirming that defendants who
committed their crimes before October 1, 2011, still have the opportunity to
earn conduct credits, just under prior law.
[Citation.] To imply the enhanced
conduct credit provision applies to defendants who committed their crimes
before the effective date but served time in local custody after the effective
date reads too much into the statute and ignores the Legislature’s clear intent
in subdivision (h)’s first sentence. [Fn. omitted.]†Thus, we reject defendant’s claim that
statutory interpretation requires we award him the additional credits.
Defendant
also argues that principles of equal protection require awarding him conduct
credits under the October 2011 version of section 4019 rather than the version
in effect at the time he was sentenced.
As defendant admits, we rejected that argument in
“We conclude the classification in question does bear a rational
relationship to cost savings. Preliminarily, we note the California Supreme
Court has stated equal protection of the laws does not forbid statutes and
statutory amendments to have a beginning and to discriminate between rights of
an earlier and later time. (People v. Floyd (2003) 31 Cal.4th 179, 188 (Floyd) [‘[d]efendant has not cited a single
case, in this state or any other, that recognizes an equal protection violation
arising from the timing of the effective date of a statute lessening the
punishment for a particular offense’].) Although
Floyd concerned punishment, we
discern no basis for concluding differently here.†(Id.
at p. 55.)
Defendant
argues that because Floyd involved
punishment rather than custody credits, it is inherently distinguishable. He offers no citations or detailed argument
in support of this assertion. We
disagree and once again conclude that equal protection principles were not
violated by applying the statutorily mandated credits in defendant’s case.
III
DISPOSITION
The
judgment is affirmed.
MOORE,
J.
WE CONCUR:
O’LEARY, P. J.
BEDSWORTH, J.
name="_ftn1" title="">[1] All further statutory references are to the Penal Code.
