P. v. Burney CA3

Filed 7/30/13 P. v. Burney CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento)

THE PEOPLE, C069797

Plaintiff and Respondent, (Super. Ct. No. 11F05012)

v.

DONALD BURNEY,

Defendant and Appellant.

A jury convicted defendant Donald Burney of felony driving under the influence (DUI) of an alcoholic beverage (Veh. Code, §§ 23152, subd. (a), 23550.5) and felony driving with a blood-alcohol content of 0.08 percent or above, having previously been convicted three times within 10 years of DUI (Veh. Code, §§23152, subd. (b), 23550.5). The defendant admitted that the prior conviction allegations were true. The trial court sentenced him to four years in prison. Defendant was cross examined regarding two prior felony convictions involving moral turpitude. During deliberations, the jury asked for a definition of “moral turpitude” even though the phrase did not appear elsewhere in the instructions. The trial court, at the urging of defense counsel, told the jury that a crime of moral turpitude was one that

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related to witness credibility. Defendant argues the trial court should have defined moral turpitude for the jury. We shall conclude any error was invited, the instruction given was a correct statement of the law, and defendant was not prejudiced. We shall affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND Officers Mark Riffie and Steve Rutledge were on patrol around 10:00 p.m. when they noticed a vehicle on the right shoulder of Interstate 80 that had its emergency flashers activated. As Officer Riffie approached the vehicle, he saw defendant exit the front driver’s seat of the vehicle. Defendant told Riffie that “his vehicle had just died and he was about to call Triple A.” Riffie touched the hood to determine how long the vehicle had been there, and found the hood warm to the touch. Defendant said he had been at that location approximately two minutes. There were no other individuals around or in the vehicle. As Officer Riffie spoke to defendant he noticed a strong odor of alcohol and that defendant had red and watery eyes. Defendant swayed when he stood. His speech was often slurred. Riffie asked for defendant’s license, but defendant said he did not have one, and upon checking, Riffie discovered that defendant’s driving privilege had been suspended. A records check of the vehicle revealed that it was registered to Celia Trevino, defendant’s girlfriend. Defendant told Officer Riffie he had driven to that location, and he did not have any passengers when he drove to the location. He said he had not consumed any alcohol since arriving at the location. He said he had half of a 24-ounce beer earlier in the afternoon, around 5:00 or 6:00 p.m. Officer Riffie conducted field sobriety tests on defendant. Defendant did not pass the field sobriety tests. Riffie had defendant blow into a preliminary alcohol screening device. It showed defendant had a blood-alcohol level of 0.183 at 10:15 p.m. A second test taken at 10:17 p.m. showed the same result. Riffie arrested defendant and took him