P. v. Flippin
A jury convicted defendant Danny Woodrow Flippin of driving under the influence of alcohol (Veh. Code, 23152, subd. (a); count one) and driving with a blood-alcohol content of .08 percent (Veh. Code, 23152, subd. (b); count two) and found four prior drunk driving convictions to be true (Veh. Code, 23550, subd. (a)).
The court sentenced defendant to state prison for the midterm of two years for a violation of Vehicle Code section 23152, subdivision (a) (count one), with four priors and a concurrent two-year county jail term for violation of Vehicle Code section 23152, subdivision (b) (count two).
Defendant appeals, contending his constitutional rights to due process were violated in that the trial court allowed an officer to testify about horizontal gaze nystagmus (HGN) test results, that the prosecutor committed misconduct in eliciting the inadmissible testimony, and that the harm was not cured. Court reject defendants contentions. As the Attorney General notes, the trial court miscalculated presentence custody credit; Court modify the judgment to correct the error. Court also modify the judgment to stay sentence on count two.
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