People v. Elliott CA3

Filed 11/13/13 P. v. Elliott CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C071330

Plaintiff and Respondent, (Super. Ct. No. 11F06594)

v.

DION LYDALE ELLIOTT,

Defendant and Appellant.

A jury convicted defendant Dion Lydale Elliott of driving under the influence of alcohol (Veh. Code, § 23152, subd. (a); undesignated section references are to this code; count one) and driving with a blood-alcohol content of 0.08 percent or more (§ 23152, subd. (b); count two). The jury also found that defendant’s blood-alcohol content was 0.15 percent or more within the meaning of section 23578. Prior to trial, defendant pleaded no contest to driving on a suspended or revoked driver’s license, a misdemeanor (§ 14601.2, subd. (a); count three) and admitted three priors for the same conduct (§§ 14601.1, 14601.2). In bifurcated proceedings, defendant admitted a strike prior [2008

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criminal threats] (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and prior prison term allegations (Pen. Code, § 667.5, subd. (b)). Sentenced to state prison for an aggregate term of 11 years, defendant appeals. He contends counsel rendered ineffective assistance by failing to call an expert to challenge the reliability of the breath-testing machine and the breath-test results. He also contends his 11-year sentence constitutes cruel and unusual punishment. We affirm the judgment. FACTS At 2:08 a.m. on September 10, 2011, California Highway Patrol officers observed defendant’s car weaving from lane to lane (a three-lane weaver) on the Business Loop of Interstate 80 (Capital City Freeway) near Arden Way. The officers activated their emergency lights and, using the public address system on the patrol car, directed defendant to exit onto El Camino Avenue and then onto Albatross Way. Defendant did so but drove abnormally, driving for a time on the shoulder of the highway and varying his speed. When Officer Stephen Newman approached defendant’s car to explain the reason for the stop, the officer could smell the odor of alcohol coming from defendant through the open driver’s side window. Defendant’s eyes were very red and his speech was very slow and thick. Officer Newman directed defendant to get out of his car. Defendant got out slowly and when he walked, he staggered. The officer asked defendant a series of questions to determine whether there was a reason for driving poorly, such as whether he had any physical disabilities or mechanical problems with his car. Defendant had none and did not indicate whether he had any problem with his eyes. When the officer asked if defendant had anything to drink, defendant responded that he had consumed “a lot of alcohol” at a bar in midtown between 9:00 p.m. and 11:00 p.m. and that he was “lit.” Defendant failed the horizontal gaze nystagmus test and the officer concluded that defendant had a blood-alcohol content (BAC) of at least 0.10 percent. Defendant refused to perform other field sobriety tests including the preliminary alcohol screening test. Defendant was arrested at 2:16 a.m. and transported to the county jail.