People v. Profitt
8 Cal. App. 5th 1255
| Cal. Ct. App. | 2017Background
- Marvin Profitt was charged after a single 2013 stop with two felony DUI counts (driving under the influence and driving with BAC ≥ .08) and three misdemeanors for driving with a suspended license (two suspensions alleged to be due to prior DUI convictions). The felonies included allegations of three prior misdemeanor DUIs as sentence enhancements.
- CHP Officer Erickson observed unsafe driving and performed five field sobriety tests (FSTs); PAS readings were ~0.11 and EPAS breath tests about 30 minutes later read 0.13. The patrol car video recorded the stop but did not capture the FSTs or officer body mic audio.
- Defense presented an expert opining absorption could explain rising BAC and that FSTs are less reliable for older drivers; prosecution argued the pattern of drinking made it more likely Profitt was ≥ .08 while driving.
- The trial court bifurcated the bench trial on the prior-conviction sentence enhancements (Calderon-type bifurcation) but denied defense requests to bifurcate the misdemeanor counts from the felony counts so as to prevent the jury from learning of prior DUI convictions that were elements of the misdemeanors.
- Jury convicted on all counts; defendant admitted the enhancement allegations in bench phase. On appeal, Profitt challenged the refusal to bifurcate the misdemeanors and alleged ineffective assistance of trial counsel for certain closing remarks and for failing to move to dismiss or sanction the prosecution for not recording the FSTs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred by refusing to bifurcate misdemeanor counts that require proof of prior DUI convictions from felony counts | People: No authority requires or permits bifurcation of properly joined counts where a prior conviction is a substantive element; prosecution must prove elements to jury | Profitt: Court had discretion (Pen. Code §1044/ Evid. Code §352) to bifurcate to avoid undue prejudice from disclosure of prior DUIs | Court: No authority supports the requested bifurcation; Valentine/Sapp rule applies—where priors are elements, prosecution may present them to jury; denial not an abuse of discretion |
| Whether counsel’s closing remarks (calling client a “fool” re: misdemeanors and saying “I’m really not a drinker”) constituted ineffective assistance | People: Remarks were reasonable tactical concessions and credibility-building; trial court observed demeanor and found strategy | Profitt: Remarks demeaned him and prejudiced jury against him | Court: Counsel’s remarks were strategic concessions and not deficient; no IAC shown |
| Whether counsel was ineffective for failing to move to dismiss or obtain sanctions for failure to record FSTs (MVARS/body mic) | People: Failure to record is not the equivalent of destroying evidence; any recording would have been at best potentially useful and no bad faith shown | Profitt: Absence of video/audio was potentially exculpatory and counsel should have sought dismissal or adverse instruction | Court: No due process violation shown—evidence only potentially useful, no bad faith by police, and counsel cross-examined and argued the lack of recording; no IAC |
Key Cases Cited
- People v. Calderon, 9 Cal.4th 69 (1994) (trial courts have discretion to bifurcate prior-conviction allegations from guilt phase when undue prejudice exists)
- People v. Valentine, 42 Cal.3d 170 (1986) (when a prior felony is an element, the fact must be proven in open court; defendant cannot unilaterally sanitize by stipulation to hide nature of prior)
- People v. Sapp, 31 Cal.4th 240 (2003) (Valentine’s rule permits only proving the element to the jury or a court-stipulated sanitization; bifurcation not authorized where prior is an element)
- People v. Wade, 48 Cal.App.4th 460 (1996) (applies Valentine reasoning to prior misdemeanors used to elevate offenses; defendant cannot avoid jury learning prior by stipulation)
- People v. Bouzas, 53 Cal.3d 467 (1991) (prosecutor need not stipulate to elements such as prior convictions if doing so would impair the prosecution)
- People v. Balcom, 7 Cal.4th 414 (1994) (a not guilty plea places every element in issue)
- People v. Mitcham, 1 Cal.4th 1027 (1992) (strategic concessions to jury can be legitimate trial tactics)
- California v. Trombetta, 467 U.S. 479 (1984) (due process violation requires lost/destroyed evidence had apparent exculpatory value)
- Arizona v. Youngblood, 488 U.S. 51 (1988) (failure to preserve potentially useful evidence violates due process only upon bad faith)
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecution must disclose material exculpatory evidence)