P. v. Houston-Irving

Filed 7/31/06 P. v. Houston-Irving CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed.

Stephen A. Rodriguez, Jr., for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Raquel M. Gonzalez and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Defendant Stephen Anthony Houston-Irving was convicted of two counts of second degree murder (counts one & two), driving while under the influence of alcohol and causing great bodily injury or death (count three), driving with a blood alcohol level of 0.08 percent or higher and causing great bodily injury or death (count four), and felony hit-and-run driving (count five). The trial court imposed concurrent indeterminate terms of 15 years to life for counts one and two, and it imposed a total determinate term of three years and eight months for counts three, four and five.

Defendant contends he received ineffective assistance of counsel, the trial court committed instructional error and evidentiary error, the prosecutor engaged in misconduct, and the cumulative effect of these errors mandates reversal of the judgment. He also challenges the sufficiency of the evidence to support the second degree murder convictions. We find no merit in these contentions and affirm the judgment.

I

FACTS

On October 24, 2003, at approximately 11:30 a.m., defendant started to celebrate a new job by drinking alcohol at multiple food and beverage establishments at the Irvine Spectrum. After a couple of hours, defendant threw his cell phone against the wall and appeared emotional and upset as the result of an argument with his wife in one such establishment. At the end of seven hours, defendant had consumed a combination of saki, beer, martinis, and tequila.

At 6:30 p.m., Irvine Police Officer Shane Barrows received a call from Irvine Spectrum security requesting assistance with a patron who refused to leave the property. Defendant was walking toward the parking lot when Barrows contacted him. Barrows asked defendant why he had been asked to leave and to determine if defendant had broken any laws. He determined defendant had not broken any laws and there was no reason to take him into custody, but the encounter also convinced Barrows defendant should not drive his car. Although Barrows testified defendant was intoxicated, he was not falling-down drunk. Consequently, Barrows offered to call a taxi and defendant agreed to wait for one. They were waiting for the taxi to arrive when defendant's wife appeared and stated she would take defendant home.

Barrows walked away from the couple, but later returned to the parking lot to check on them. He saw defendant and his wife near a late-model black Chevrolet Camaro. He watched defendant remove the car's T-tops and place them in the trunk. After stowing the T-tops, defendant entered the passenger side of the car and his wife entered the driver's side. Barrows saw defendant's wife drive the car off the Irvine Spectrum property. Barrows testified defendant, â€