P. v. Martinez CA1/3

Filed 7/18/13 P. v. Martinez CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A134714 v. ENRIQUE TORRES MARTINEZ, (San Mateo County Super. Ct. No. SC072999A) Defendant and Appellant.

This is an appeal from judgment after defendant Enrique Torres Martinez was convicted of two felony drunk driving offenses, one misdemeanor offense of failing to stop at the scene of an accident, and one misdemeanor offense of driving with a suspended license, with enhancements for certain prior felony violations. The trial court sentenced defendant to a total prison term of six years. Defendant challenges the judgment on the sole ground that the prosecutor violated his right to a fair and impartial jury by using peremptory challenges to strike four minority women from the jury panel, leaving the jury without Hispanic representation. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND On May 9, 2011, an amended criminal information was filed charging defendant with: (1) felony driving under the influence of alcohol (DUI) within ten years of two prior felony DUI violations (Veh. Code, §§ 23152, subd. (a), 23550.5, subd. (a)(1)) (count one);1 (2) felony driving with a blood-alcohol level of 0.08 percent or greater

1 Unless otherwise stated, all statutory citations herein are to the Vehicle Code.

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within ten years of two prior felony DUI violations (§§ 23152, subd. (b), 23550.5, subd. (a)(1)) (count two); (3) misdemeanor failing to stop at the scene of an accident (§ 20002, subd. (a)) (count three); and (4) misdemeanor driving with a driver’s license suspended for a DUI conviction (§ 14601.2, subd. (a)) (count four). The amended information alleged with respect to all counts that defendant had sustained four prior felony convictions for being under the influence of a controlled substance (Health and Safety Code, § 11350), and three prior felony DUI convictions (§ 23152). The charges and allegations set forth above stemmed from events occurring on the evening of January 21, 2011, in Daly City. Because the only issue raised on appeal relates to the circumstances of defendant’s trial rather than of his underlying offenses, we describe the events of this evening only briefly to provide the relevant background to the trial. Defendant, driving a blue-green Honda Civic, pulled in front of Enrique Tobar on San Pedro Avenue, cutting him off. Tobar reacted by repeatedly blowing his horn. After about two blocks, with Tobar’s vehicle still following behind the Civic at a distance of about 10 to 15 feet, defendant slammed on his brakes. Tobar, without time to brake, hit the Civic from behind, damaging his front-bumper. Tobar pursued defendant’s vehicle in an attempt to get the Civic’s license plate number. Defendant stopped, exited his vehicle, and walked to Tobar’s vehicle. Defendant complained Tobar had hit the Civic. Tobar responded that he would call the police, at which point defendant returned swiftly to his vehicle and drove away. Tobar then called 911 from his cell phone. According to dispatch records, this call was placed at 9:45 p.m. Tobar was subsequently able to provide the police with the Civic’s license plate information, which was then used to trace the vehicle to Maria Gutierrez, defendant’s girlfriend. Police officers went to Gutierrez’s residence around 10:00 p.m., where they found the slightly-damaged Civic and observed through a window defendant asleep on the living room couch with a near-full beer on a nearby table. Defendant admitted he had been driving the Civic earlier in the evening, and that he had consumed three beers before leaving work at about 6:00 to 6:30 p.m. He denied drinking more alcohol following the collision with Tobar’s vehicle. Nonetheless, defendant failed field sobriety tests and a