Filed 4/16/15 P. v. Martinez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,

v.
MICHAEL RUBEN MARTINEZ,
Defendant and Appellant. 2d Crim. No. B253878 (Super. Ct. No. KA102283) (Los Angeles County)

Michael Ruben Martinez appeals afte r a jury convicted him of driving under the influence (DUI) with in 10 years of three prior DUI violations (Veh. Code, 1 § 23550) and driving with a susp ended license (§ 14601.5). Th e jury also found true the allegation that appellant refused to take a ch emical test to determine his blood alcohol level (§ 23578). Appellant ad mitted serving four prior prison terms (Pen. Code, § 667.5, subd. (b)). The trial court sentenced him to si x years in state prison. Appellant raises claims of prosecutorial misconduct, evidentia ry error, and insufficient evidence. We
affirm.
STATEMENT OF FACTS Paul Badell and Kaitlin Raley were driving in Pomona one night when another driver ran a red light and "cut [them] off[.]" The other driver, whom Badell and Raley later identified as appella nt, ran another red light and "s werved" into a gas station.

1 Unless otherwise noted, all further statut ory references are to the Vehicle Code.2 As Raley called 911 to report the incident, Ba dell pulled into the ga s station and parked near appellant's vehicle. A few minutes late r, Badell and Riley saw appellant get out of his vehicle and "stumble[]" into the gas statio n's convenience store. No one else was in appellant's vehicle. When the police arrived several minut es later, appellant was "stumbling" out of the store with his keys in his ha nd. The police stopped appellant as he was opening the driver's side door of his vehicl e. He exhibited signs of intoxication and
refused to submit to a blood or breath test. He claimed a friend had been driving but was unable to provide a name. A computer check revealed his license was suspended. He was arrested and taken into custody. Appellant's fiancée, Jennifer Rojo, testif ied in his defense. Rojo said she was driving that night because appellant had b een drinking. Appellant fell asleep in the back seat. As Rojo was driving to their hom e in Alhambra, appellant woke up and began arguing with her. She stopped at the gas station because appellant had to use the restroom. After appellant went into the store, she threw the car keys into a field. She walked away and called her mother, who picked her up abou t a mile away. Rojo admitted on cross-examination th at she never told the police she had been driving that night. On rebuttal, a defe nse investigator testified that Rojo never mentioned throwing the keys or dr iving erratically that night.
DISCUSSION Alleged Prosecut orial Misconduct Appellant contends the prosecuto r committed misconduct by (1) vouching for witnesses; (2) referring to facts not in ev idence; (3) appealing to the jury's passion and prejudice and expressing a pers onal belief in appellant's gu ilt; (4) misstating facts; (5) commenting on appellant's right to counsel and disparaging defe nse counsel; and (6) "using post-arrest silence to im peach." We are not persuaded. "A prosecutor commits misconduct when his conduct either infects the trial
with such unfairness as to re nder the subsequent conviction a denial of due process, or involves deceptive or reprehensible methods em ployed to persuade the trier of fact."3 ( People v. Avila (2009) 46 Cal.4th 680, 711.) Clai ms of prosecutorial misconduct are forfeited "unless in a timely fashion-and on the same ground-the defendant made an assignment of misconduct and requested that the jury be admonish ed to disregard the impropriety." ( People v. Samayoa (1997) 15 Cal.4t h 795, 841 ( Samayoa ).) All but a few of appellant's claims are forfeited due to his fa ilure to object. ( Samayoa, supra , 15 Cal.4th at p. 842.) He asserts that objections woul d have been futile (see, e.g., People v. Hill (1998) 17 Cal.4th 800, 821), ye t offers no support for such a
conclusion. 2 In any event, all of his claims fail on the merits. Improper Vouching Appellant asserts "the prosecut or made comments vouching for the credibility of the state's w itnesses no less than fifteen times," but only two such objections were raised. The first was made during opening arguments after the prosecutor characterized Badell and Raley as "two responsible young people[.]" The court sustained the objection and admonished the jury, "you are the exclusive judges of the credibility of the case, and counsel cannot v ouch or comment . . . th at they believe or
what their characterization of a person's truthfulness [ sic ]." The second objection came during closing arguments after the prosecuto r referred to Badell and Raley as "good young people." Although the court did not expr essly rule on the objection, it once again

2 Appellant alternatively offers that "c laims [of prosecutorial misconduct] may be considered absent an objection and request fo r admonition if . . . '"the case is closely balanced and there is grave doubt of defenda nt's guilt, and the acts of misconduct are such as to contribute materi ally to the verdict."'" ( People v. Lambert (1975) 52 Cal.App.3d 905, 908, quoting People v. Perry (1972) 7 Cal.3d 756, 790, and People v. Berryman (1936) 6 Cal.2d 331, 337.) The cases st ating this rule, however, have long since been overruled on this point. ( People v. Green (1980) 27 Cal.3d 1, 28-34, overruled on other grounds as noted in People v. Dominguez (2006) 39 Cal.4th 1141, 1155, fn. 8.) Appellant also notes that the failure to obj ect in this context can give rise to a claim of ineffective assistance of counsel (see People v. Rodrigues (1994) 8 Cal.4th 1060, 1126), yet he never actually raises such a clai m. Accordingly, any claim of ineffective assistance is also forfeited. ( People v. Gionis (1995) 9 Cal.4th 1196, 1214, fn. 11; Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448.) Because appellant fails to demonstrate prejudicial erro r, a claim of ineffective assistance would in any event fail. ( People v. Thompson (2010) 49 Cal.4th 79, 121, fn. 14 ( Thompson ).) Moreover, "a defendant cannot automatic ally transform a forfeited claim into a cognizable one merely by asserting ineffectiv e assistance of counse l. [Citation.]" ( Ibid. )4 admonished the jury th at "you determine the credibility of witnesses in this matter." These admonitions cured any prejudice that may have arisen from the prosecutor's comments. ( People v. Carr (2010) 190 Cal.A pp.4th 475, 484 ( Carr ).) 3 The remaining claims of improper vouching are forfeited and in any event
lack merit. "Pros ecutorial assurances, based on the record , regarding the apparent honesty or reliability of pros ecution witnesses, cannot be characterized as improper 'vouching,' which usually involves an attemp t to bolster a witness by reference to facts
outside the record." ( People v. Medina (1995) 11 Cal.4th 694, 757.) In his opening statement, the prosecutor expressly stated, "[ t]he evidence is going to show" that Badell and Raley had acted as responsib le citizens. In his closing argument, he referred to the "[u]ncontroverted evidence" supporting this conclusion. Appellant fails to identify a single instance when the prosecutor urged th e jury to find Badell and Raley credible based on anything other than the evidence pres ented at trial and the reasonable inferences to be drawn therefrom. The prosecutor's argu ments were also proper to the extent they suggested the jurors should re ly on their common sense and experience in evaluating the witnesses' credibility. (CALCRIM No. 226.) Appellant also misconstrues the prosec utor's attacks on Ro jo's credibility as improper vouching for the credibility of Badell and Raley. "'The pr osecutor is permitted to urge, in colorful terms, that defense witnesses are not entitled to credence . . . [and] to argue on the basis of inference from the eviden ce that a defense is fabricated . . . .'" ( People v. Boyette (2002) 29 Cal.4th 381, 433 ( Boyette ).) The prosecutor properly argued, based on the evidence, that Rojo ha d a motive to lie while Badell and Raley had no reason but to tell the truth. It was also pr oper to urge the jury to infer that Rojo had changed her story to comport with Badell a nd Raley's testimony, notwithstanding Rojo's self-serving claim that she had no knowledge of that testimony.

3 Appellant notes that he also raised an "argumentative" objec tion during opening statements after the prosecutor stated, "[t] he People are going to present sufficient evidence that these people were acting in acco rdance with duties as concerned citizens." That objection, however, was insufficient to preserve a claim of improper vouching. ( People v. Avila (2006) 38 Cal.4th 491, 609.)5 Referring to Facts Not in Evidence Both of appellant's claims that th e prosecutor referred to facts not in evidence, aside from being forfeited, are based on a tortured interpretation of the record. First, appellant construes the prosecutor's affi rmative attempts to pr event the disclosure of or speculation as to the reason for appe llant's license suspen sion, i.e., a prior conviction for drunk driving, as a ploy of reverse psychology intended to induce the jury's speculation. 4 Suffice to say that we are not persuaded these comments led the jury to speculate. (See People v. Szadziewicz (2008) 161 Cal.App.4th 823, 839 ( Szadziewicz ) ["When an appellant base s a prosecutorial misconduct claim on the prosecutor's arguments to the jury, we consider how a reasonable juror would or could have
understood the statement in the co ntext of the entire argument"].) Appellant next takes issue with th e prosecutor's comments regarding a "missing" videotape from the gas station's su rveillance cameras. Appellant's attorney faulted the police for failing to obtain the tape , which was apparently lost or destroyed when the surveillance sy stem subsequently "crashed." Counsel argued, "If we had the video, we wouldn't be sitti ng here. That vide o would have shown us clearly based on what the testimony was, who was driving, wh o got out of that car." The prosecutor responded, "Are you kidding me? How many times have we seen on TV somebody on tape committing a crime? Do the people say, 'I guess you got me'? No. There's other things. The tape didn't capture everything. Or they can contrive another lie to refute the evidence that is there on the tape." According to appellant, these commen ts suggested the tape would have shown appellant was driving. No reasonable juror would have interp reted the remarks to

4 At appellant's request, the DMV document offered to prove hi s license had been suspended was redacted to eliminate any re ference to the prior conviction. When questioning the officer who ran the computer ch eck of appellant's license, the prosecutor urged the officer to refrain from disclosing the prior conviction to the jury. In referring to the DMV document during closing argument, th e prosecutor told the jury: "You're going to have this form. It's a DMV form. And, by the way, there's parts that have been redacted. Don't try to hold it up to the light and read the redacted part. It's redacted for a reason. Stuff is blacked out. [¶] You are not to consider, why is it blacked out? What are they trying to hide from me?"6 convey such an implication. The prosecutor did not assert or imply he had actually seen the tape. Moreover, his comments were a fair and proper response to defense counsel's
assertion that there would have been no trial if the tape had been produced. Appealing to the Jury's Passion and Prejudice; Personal Opinion on Appellant's Guilt Appellant contends that "[s]everal tim es throughout the trial the prosecutor subtly, but unequivocally, a ppealed to the jurors' pa ssion and prejudice—often by expressing his personal opinion and inducing th e jury to convict. Most egregious were his references to his personal belief in [a ppellant's] guilt." He offers the following
comments as evidence of this misconduct: "It's very straightforward, and we k now that when you have heard all this evidence, you will do your du ty and find the defendant gu ilty of these charges." "Contrary to what you hear on TV, in everyday life and everyday cases, jurors do the right thing. You may have he ard what happened in Brentwood a long time ago or other things you disagree with, but over the daily course of process, jurors use that collective wisdom, do the right thing, and we know y ou will too." "I don't know how good of a defens e it is, because, quite frankly, people
who are inconsiderate and selfish drive under the influence. It's an inconsiderate and selfish thing to do. It's consistent with that kind of personality." "We're going to ask you to give him one more thing he deserves. That's a
conviction. He's earned it." "Normally, DUI cases, you have to kind of infer that this person is driving under the influence. . . . But in this case, I don't think there's much inference to be drawn
here. . . . We know this man was driving under the influence." Appellant also faults the prosecutor for eliciting Raley's testimony that she called the police because "it was only a ma tter of time until somebody got injured or killed." Finally, he reiterates his claim that it was improper for the prosecutor to assert that Rojo was lying.7 It is improper for the prosecutor to appeal to the jury's passion and prejudice. ( People v. Simington (1993) 19 Cal.App.4th 1374, 13 78.) It is also improper for the prosecutor to express a personal opinion on the defe ndant's guilt "where there is substantial danger that jurors will interpret this as being based on information at the prosecutor's command, other than ev idence adduced at trial." ( People v. Thomas (2011) 51 Cal.4th 449, 487.) Appellant did not raise a single objection alleging either form of misconduct, so his claims are forfeited. In a ny event, none of the referenced remarks was improper. When the statements are considered in context, it is clear the prosecutor was either properly responding to defense argumen ts or properly urging the jury to find appellant guilty based on the evidence at trial. Appellant complains that the prosecutor referred to the O.J. Simpson trial, yet fails to explain how this wa s improper within the given context. Not once did the prosecutor su ggest or imply that his belief in appellant's guilt was based on personal knowledge to wh ich the jury was not privy. (See People v.
Gurule (2002) 28 Cal.4th 557, 658 [prosecuto r's statement of personal belief in defendant's guilt not erroneous because there was no sugges tion his belief was based on independent investigation or evidence not before the jury].) We also reject appellant's assertion that the prosecutor's comments abou t other DUI cases were "likely to resonate with and inflame a jury that had life experiences relating to DUIs." Moreover, there was nothing improper in asking Raley why she called the police. The prosecutor is not responsible for her purportedly offensive an swer, which was allowe d to stand without objection. Simply put, no reasonable juror would have construed any of the referenced remarks in a manner that would support a finding of prosecut orial misconduct. ( Szadziewicz, supra , 161 Cal.App.4th at p. 839.) Misstating the Evidence Appellant claims the prosecutor committed misconduct during closing argument by misstating the evidence regarding Ro jo's testimony. He takes issue with the prosecutor's comment that Ro jo "had to make up anothe r lie" after Badell and Raley offered testimony that conflicted with her version of the events. Defense counsel objected that the prosecutor was misstating Ro jo's testimony and adde d, "She testified8 that she didn't know what the other witnesses said." The court then told the jury, "You
are the determiners of what th e facts are in this case. Y ou determine what the facts are and whether it's a misstatement or imprope r inference or proper inference from the
known fact." "Although prosecutors have wide la titude to draw inferences from the evidence presented at trial, mischaract erizing the evidence is misconduct." ( People v. Hill, supra, 17 Cal.4th at p. 823.) Even assuming that the prosecutor's remark amounted to this form of misconduct, the court's adm onishment was sufficient to cure the error. ( Carr, supra , 190 Cal.App.4th at p. 4 84.) In any event, the pr osecutor did not misstate Rojo's testimony, but rather argued that she was lying. This was proper. ( Boyette, supra , 29 Cal.4th at p. 433.) Commenting on Appellant's Right to Counsel and Disparaging Defense Counsel Appellant asserts that "[t]he pr osecutor took several opportunities to comment on [appellant's] . . . right to an attorney during trial, and to give his opinion on the quality of that representation." This assertion is both forfeited and specious. First, appellant offers no case law for the proposition that a prosecutor commits misconduct by referring to the fact a defendant has the right to counsel. Although it is improper for a prosecuto r to disparage defense counsel (see People v. Gionis, supra, 9 Cal.4th at p. 1215), appellant fails to demonstrate that defense counsel was denigrated here. He interprets as "sar casm" the prosecutor's remarks that appellant had a "good lawyer," but the record does not support that interpretation. He also complains that the prosecuto r (1) "mocked" defense coun sel's "my-client's-a-jerk defense," and (2) "implied that defense counse l was being deceptive" in telling the jury it could render a verdict without finding that so meone was lying. These complaints confuse denigrating counsel with denigrating counsel's tactics . The prosecutor did the latter, and properly so. ( People v. Bemore (2000) 22 Cal.4th 809, 846 [" [T]he prosecutor has wide latitude in describing the deficiencies in opp osing counsel's tactics and factual account"].) Commenting on Appellant's Right to Remain Silent9 Appellant claims the prosecutor committed Doyle 5 error by improperly commenting on his invocation of the right to rema in silent. In support of this claim, he offers that the prosecutor argued that appellant's failure to identify Ro jo as the driver of the car demonstrated he was lying. He cont ends: "To the extent that the prosecutor referred to [appellant's] silence before arrest this was permissible. However, this was prejudicial misconduct to the extent that the jury inferred [appellant] should have explained his defense after arrest or formal charges." Aside from the lack of any evidence th at appellant ever in voked his right to silence, the prosecutor was plainly referring to appellant's pre-arrest failure to identify Rojo at the scene. No reasonable ju ror would have inferred otherwise. Even if any of appellant's claims of prosecutorial misconduct had merit, the
error would be harmless. Given the overwhelm ing evidence of appellants' guilt, it is not reasonably probable he woul d have obtained a more favorable result but for the prosecutor's remarks. ( People v. Watson (1956) 46 Cal.2d 818, 836.) Admissibility of DMV Document Appellant asserts that the certified DMV document offered to prove he was guilty of driving on a suspended license s hould have been excluded as inadmissible hearsay. He claims the prosecution faile d to establish the document was admissible under the business records exception to the he arsay rule (Evid. Code, § 1271), and that
the document also contained testimoni al hearsay as contemplated in Crawford v. Washington (2004) 541 U.S. 36 ( Crawford ). Appellant's trial counsel did not object to the admission of the DMV document. Indeed, counsel expressly stated he had no objection. Appellant nevertheless
invites us to address the claim on the meri ts "to forestall a s ubsequent claim of ineffectiveness of counsel[.]" ( People v. Martin (1995) 32 Cal.App.4th 656, 661, disapproved on another ground in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10.)
Because the claim is eas ily resolved, we accept appellant's invitation.

5 ( Doyle v. Ohio (1976) 426 U.S. 610, 627.)10 Aside from the possible tactical reasons counsel may have had for declining to object, the DMV document wa s admissible as an official record (Evid. Code, § 1280) because the DMV is required to maintain r ecords of all suspended and revoked licenses (§ 1800, subd. (b)). The prosecu tion did not have to present a witness to testify as to the document's identity or manne r of preparation. (See People v. George (1994) 30 Cal.App.4th 262, 274.) Moreover, the documen t was not prepared for trial and does not amount to prior testimony or statements obtained during a po lice interrogation. It was prepared in the DMV's normal course of business of the DMV, i.e., "to provide a
chronicle of some act or event relati ng to the public employee's duty." ( People v. Taulton (2005) 129 Cal.App.4th 1218, 12 25.) Accordingly, the documen t does not fall within the
"core class of 'testimonial' statements" identified in Crawford and its progeny. ( Crawford, supra
, 541 U.S. at pp. 51-52; Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 309-310.) It follows that defense co unsel's failure to object was not ineffective assistance. ( Strickland v. Washington (1984) 466 U.S. 668, 687–696; Thompson, supra
, 49 Cal.4th at p. 121, fn. 14.)
Prior Prison Term Enhancements (Pen. Code, § 667.5, subd. (b)) In a bifurcated court trial, appella nt admitted he had suffered four prior convictions "within the meaning of Pena l Code section 667.5(b)." Relying on People v. Epperson (1985) 168 Cal.App.3d 856 ( Epperson ) and People v. Lopez (1985) 163 Cal.App.3d 946 ( Lopez ), appellant contends there is insu fficient proof of the prior prison
term enhancements because the colloquy of his guilty plea only refers to the fact of his convictions. We disagree.
In Epperson , the court concluded that the de fendant's admission of his prior convictions, which did not include an exp licit admission of the separate prison term requirement, could not be c onstrued "as including admissions of all the necessary elements of the enhancements alleged under Penal Code section 667.5, subdivision (b)." (168 Cal.App.3d at pp. 864–865.) In Lopez , the court stated: "[T]he record does not indicate that the amendment to the felony co mplaint was read to defendant, that he waived a reading thereof, or th at he was ever advised that by admitting the validity of the11 prior convictions he would also be admitti ng that he served separate prison terms therefor. Thus, his admission that the prior co nvictions were valid ca nnot be construed as an admission of the allegations that he serv ed prior, separate prison terms for each of those convictions." (163 Cal.App.3d at p. 951.)
We decline to follow Epperson or Lopez to the extent they are understood to require reversal of a section 667.5, subd ivision (b) enhancement where, as here, the defendant's admission of a prior conviction does not include an express admission of the separate prison term element. Our Supreme Court has since made clear that the totality
of the circumstances must be considered in determining whether a defendant has admitted serving a prior prison term. ( People v. Mosby (2004) 33 Cal. 4th 353, 356 ( Mosby ).) The record unequivocally expresses appellant's understanding that he was admitting his prior convictions "pursuant to Pena l Code section 667.5(b)." Appellant also answered "yes" when asked if he "had enough time to discu ss those convictions with [his] attorney and the rights and consequences [he had] with regard to them[.]" Moreover, the information alleged that appellant had suffere d four prior convictio ns pursuant to Penal Code section 667.5, subdivision (b), "and that a term was served as described in Penal Code section 667.5 for said offense(s), and that the defendant did not remain free of prison custody for, and did commit an offense resulting in a felony conviction during, a period of five years subsequent to the conclusion of said term." Viewing appellant's admissions in the context of the entire proceedings ( Mosby, supra , 33 Cal.4th at p. 356), it is clear he was admitting the allegations set forth in the information. (See People v. Ebner (1966) 64 Cal.2d 297, 303["[d]efendant's admission of the prior convictions is not limited in scope to the fact of the convictions but extends to all allegations concerning the fe lonies contained in the information"]; People
v. Cardenas (1987) 192 Cal.App.3d 51, 61 ["admi ssion of prior convictions where the charging information specifically alleges the convictions resulted in prior separate prison
terms is deemed an admissi on such prison terms were se parately served"]; see also People v. Welge (1980) 101 Cal.App.3d 616, 623, italics added ["admission of prior
convictions cannot be construed as an admissi on that separate terms were served therefor,12 in the absence of an allegatio n in the information or compla int that the defendant served separate terms on the prior convictions "].) Appellant's claim of insufficient evidence accordingly fails. The judgment is affirmed.
NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P. J.

YEGAN, J.13 George Genesta, Judge
Superior Court County of Los Angeles

________________ ______________

Marilee Marshall and Galia Amram Phillips, under appointment by the Court of Appeal, for De fendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney Genera l, J. Michael Lehma nn, Deputy Attorney General, for Plain tiff and Respondent.