THE PEOPLE v. JERRY SCHLAGER (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

At approximately 3:30 a.m. on April 9, 2010, Los Angeles County deputy sheriffs initiated a traffic stop of defendant Jerry S. Schlager after he crossed the center median while making a right turn and drove in excess of 80 miles per hour on a city street.   Defendant exhibited objective symptoms of intoxication and admitted he had consumed alcohol earlier.   After the deputies had defendant perform field sobriety tests and examined his eyes for the presence of horizontal gaze nystagmus, they arrested him for driving under the influence of alcohol.   Defendant refused to submit to a preliminary alcohol screening (PAS) test, and any chemical test to determine the alcohol and/or drug contents of his blood.   A search of defendant's car yielded an ice chest containing five unopened bottles of beer.

Defendant was charged by information on May 11, 2010, with driving under the influence of alcohol (Veh.Code, § 23152, subd. (a), count 1).   As to this count, it was alleged that defendant had willfully refused a peace officer's request to submit to and willfully failed to complete a chemical test pursuant to Vehicle Code sections 23577, 23578 and 23538, subdivision (b)(2).   It was further alleged that defendant had suffered five prior convictions for the same offense (Veh.Code, §§ 23550, 23550.5) and had served nine separate prison terms for felonies (Pen.Code, § 667.5, subd. (b)).  Defendant was also charged with three counts of driving on a suspended or revoked license within the meaning of Vehicle Code section 14601.2, subdivision (a) (counts 2 and 3), and section 14601.5, subdivision (a) (count 4), and with one count of driving with an open container of alcohol (Veh.Code, § 23222, subd. (a), count 5).

Defendant, represented by appointed counsel, pleaded not guilty to the charges and denied the special allegations.   Thereafter, defendant retained private counsel, and the public defender's office was relieved as counsel of record.

Defendant filed a motion for discovery under Evidence Code sections 1043

and 1045 and Pitchess v. Superior Court (1974) 11 Cal.3d 531.   The trial court conducted an in camera hearing after it granted the motion as to one of the two deputy sheriffs who had detained him.   The court reviewed that deputy's personnel and administrative records for complaints concerning the deputy's dishonesty.   The trial court found none of the incidents reviewed was relevant to defendant's case and, therefore, disclosure of material from the deputy's personnel files was not appropriate.

Following a jury trial, defendant was convicted of driving under the influence of alcohol and willfully refusing to submit to, and to complete, a chemical test.   In a bifurcated proceeding, defendant admitted the Penal Code section 667.5, subdivision (b) and Vehicle Code sections 23550 and 23550.5 allegations.

The trial court sentenced defendant to an aggregate state prison term of 12 years, consisting of the upper term of three years for driving under the influence, plus nine years for the prior prison term allegations.   The court ordered defendant to pay a $40 security fee, a $30 immediate and critical needs fine, a $50 lab fee, and a $2,400 restitution fine.   The court imposed and suspended a $2,400 parole revocation fine pursuant to Penal Code section 1202.45.   Defendant received presentence custody credit of 401 days (201 actual days and 200 days of conduct credit).   For driving on a suspended or revoked license, defendant was sentenced to one day in county jail, with credit for time served.   The court waived all attendant fees and fines.

We appointed counsel to represent defendant on appeal.

After examination of the record counsel filed an opening brief in which no issues were raised.   On July 15, 2011, we advised defendant that he had 30 days within which to personally submit any contentions or issues he wished us to consider.

On August 4, 2011, defendant filed a hand-printed supplemental brief in which he directed us to consider that during trial one of the jurors talked with his mother.   The trial court inquired of the jury, identified the juror and, out of the jury's presence, subsequently determined and advised counsel, “[T]he defendant's mother indicated that a juror sat next to her and asked her, ‘Is this your first time[?]’  The defendant's mother realized that the juror was asking if this was the first time she was serving as a juror.   She indicated that she was the defendant's mother.   The juror then asked if the defendant had a job, and the mother said, ‘Not anymore, but he will have one when he gets out.’  [¶] That is why we inquired.   There was no response so based on that, the attorneys—we are taking no further action.”   Both counsel agreed.

We have examined the entire record and are satisfied defendant's attorney has fully complied with the responsibilities of counsel and no arguable issues exist.  (Smith v. Robbins (2000) 528 U.S. 259, 277–284 [120 S.Ct. 746, 145 L.Ed.2d 756];  People v. Kelly (2006) 40 Cal.4th 106, 112–113;  People v. Wende (1979) 25 Cal.3d 436, 441.)

To the extent defendant is claiming the juror committed misconduct either by speaking to his mother or asking questions about him contrary to the court's instructions, we find no merit.   This innocuous and de minis contact, while improper, was not prejudicial to defendant.  (See People v. Cowan (2010) 50 Cal.4th 401, 507.)

The judgment is affirmed.

We concur:  

PERLUSS, P. J. ZELON, J.