People v. Mata CA5

INTRODUCTION

A jury convicted appellant Mark Anthony Mata of felony driving under the influence, felony driving with a blood alcohol concentration of .08 or higher, and misdemeanor driving on a suspended license. He was arrested following a minor vehicle accident. Appellant was with his brother, David Mata, in David’s BMW when the accident occurred. At trial appellant argued the state failed to prove he was the driver. On appeal appellant raises four arguments. First, he contends the trial court violated his constitutional rights when it refused to instruct the jury regarding David’s failure to testify after David invoked his Fifth Amendment privilege against self- incrimination outside the jury’s presence. Second, he asserts the trial court abused its discretion when it denied a motion for new trial based on newly discovered evidence after David provided an unsworn letter indicating he drove the BMW on the night in question and appellant was a passenger. Third, he argues his trial counsel rendered prejudicially ineffective assistance because the defense moved an unredacted arrest report into evidence which mentioned appellant’s five previous DUI arrests. During deliberations,…