P. v. Ens

Filed 9/5/06 P. v. Ens CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. Robert Perry, Judge. Affirmed.

Seymour I. Amster, under appointment by the Court of Appeal for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________

Defendant Joseph A. Ens appeals from his conviction for second degree murder (Pen. Code, § 187, subd. (a)) and gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)). Defendant contends (1) the trial court erred in admitting evidence of prior acts of drunk driving; (2) the jury instructions improperly blurred the distinction between vehicular manslaughter and gross vehicular manslaughter; (3) the trial court erred in admitting evidence concerning a Florida drunk driving conviction and defendant's participation in a DWI school in Florida; (4) the admission of defendant's refusal to take a field sobriety test violated his Fifth Amendment rights; and (5) counsel was ineffective. We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On October 8, 2002, at approximately 11:00 p.m., defendant hit a pedestrian who was crossing the street at a crosswalk on Hollywood Boulevard at McCadden Place. The pedestrian died at the scene. Defendant's blood alcohol level was .26 percent.

A. The October 8, 2002 Accident.

Witness testimony established that shortly prior to the accident, defendant was driving his black BMW erratically down the 1700 block of Las Palmas,[1] at one point driving onto the curb. About five minutes later, defendant returned, driving erratically and hitting a parked car. Defendant did not stop, but kept driving and turned onto Hollywood Boulevard.

Shortly thereafter, witnesses observed defendant driving westward on Hollywood Boulevard at a speed of approximately 50 to 60 miles per hour:

Damian Story was driving west in the left lane on Hollywood Boulevard with his girlfriend when a black BMW came along to the left side going very fast, swerving left and right. The BMW crossed into the opposing lanes of traffic, going about 60 miles an hour. Story came to a stop at the light at Las Palmas, heard the black BMW hit something, and saw items flying through the air. The black BMW did not stop. Story tried to follow the BMW but was unable to find it, so he returned to the scene, where he saw a man lying under a car with a huge gash on his leg. The man appeared lifeless.

At the same time, Leia Douglas was walking to her apartment near McCadden Place and Hollywood Boulevard with her mother and several friends. Right before the victim was hit, she heard a screeching of tires. She looked over to the crosswalk and saw the car hit the pedestrian. The pedestrian flew into the air and landed on the ground. The BMW was going about 50 to 60 miles per hour, and it did not try to stop after it hit the victim. The victim was underneath a car and appeared to be lifeless.

A restaurant worker at a restaurant located at Hollywood and Vine looked out the window about 11:30 p.m. and saw a car crash to a stop at the corner facing the wrong way. The front window of the car was damaged. The driver got out and appeared to be drunk. The driver was attempting to get into a bar next to a parking lot.

Police responded to the scene, and were told defendant had fled to a bar down the street. The victim was being treated by paramedics. The victim left a trail of clothing and blood on the pavement from the point of impact to where he came to rest under a white Volvo about 65 feet from the edge of the cross walk. The victim's clothing and shoes were scattered about. Police testimony established that Hollywood Boulevard is very well lit, more than three times as bright as an average street.

When the police found defendant, he was bleeding from his forehead and right leg, and was covered in shattered glass. There was an empty bottle of vodka in the back of defendant's car, and the front passenger seat was covered with glass. Defendant was staggering and he had trouble keeping his balance, and his breath smelled of alcohol. Defendant was identified at the scene as the driver of the black BMW.

Defendant was placed under arrest and transported to the Hollywood station for a field sobriety test (FST). He was read the standard FST admonition,[2] and after defendant refused to submit to the test, he was given the admonition relating to obtaining a blood sample. Defendant refused. When it was explained to defendant that he would be given a blood test, defendant agreed to a breath test. Defendant was shown how to breathe into the mouthpiece, but failed to complete the test three times because each time, he allowed air to escape from his mouth. Defendant was taken to the dispensary to get a blood sample, and because defendant began to struggle, he was held down forcibly on a gurney.

The victim died from multiple traumatic injuries, and had low levels of cocaine metabolite in his blood.

William Arndt, a mechanic for the Los Angeles Police Department, inspected the brakes, throttle linkage, and steering of defendant's car and found that all were in good working order.

B. Evidence of Defendant's Prior Conduct.

1. November 25, 1999.

On November 25, 1999, at approximately 11:00 p.m., Steven Wright was near his home in the 1800 Block of North Kingsley Avenue in Hollywood. At the corner of Franklin and Kingsley, he saw a person trying to start a car that was in such bad shape it did not look drivable. The man, who was in his mid-thirties with blond hair, was unable to start the car.[3] Although Wright had not heard or seen a collision, he saw other damaged cars parked on Franklin. Alma Rufino, who was driving with her fiancé eastbound on Franklin, observed defendant's car weaving across the lanes and hit a parked car.

The police arrived. Defendant was out of the car, and to Wright, defendant looked like he had been drinking because he could not stand up straight and he was speaking incoherently.

Officer Julie Boyer of the Los Angeles Police Department responded to the scene. She observed four parked vehicles on the eastbound side of Franklin Street with traffic accident damage to them. Defendant's eyes were watery and bloodshot, his face was flushed, his speech was slurred, and his breath smelled of alcohol. Officer Boyer placed defendant under arrest for driving under the influence, but did not administer a FST to defendant at the location because defendant's demeanor was aggressive and hostile. Instead, she transported defendant to the Hollywood Station, where he performed a test, but failed. Defendant refused to take any other FSTs, instead saying, â€