P. v. Cornelius

Filed 5/25/10 P. v. Cornelius CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

I. INTRODUCTION

After a four-day jury trial, appellant was convicted on all three charged counts, i.e., evading a police officer (Veh. Code,  2800.4),[1] driving under the influence of alcohol ( 23152, subd. (a), hereafter  23152(a)), and driving while having a blood alcohol level of 0.08 percent or higher. ( 23152, subd. (b), hereafter  23152(b)). At a later hearing, the trial court also found true a prior prison term conviction (Pen. Code,  667.5, subd. (b)), and sentenced appellant to a total of three years in state prison. Appellant appeals only his conviction under the last-noted Vehicle Code section, section 23152(b), claiming there was insufficient evidence to support the jurys verdict. We disagree, and hence affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

Shortly after midnight on January 14, 2009,[2] CHP Officers Borgen and Hampton were patrolling along State Highway 4 in Contra Costa County; that road is a two-lane highway with a posted speed limit of 65 miles per hour (mph). At about 12:20 a.m., the officers saw a car ahead of them weaving in their lane and going about 80-85 mph; the officers believed that the driver, later identified as appellant, was either drunk or otherwise impaired and promptly activated the lights on their patrol car (and later the siren) and gave chase. Appellant did not stop, however, and instead there ensued a high-speed chase covering about 23 miles and five separate and distinct highways. More specifically, appellant led the two officers, and then three other CHP cars, at speeds up to 120 mph, and did so via a route leading from Highway 4, to Route 160, to East 118, then to Route 242, and then back on those same roads to Interstate 680. During this chase, appellant made several illegal U-turns in an obvious effort to escape the CHP patrol cars, drove through several red lights at the bottom of exit ramps, and swerved around slower-moving vehicles.

At about 12:40 a.m., after a chase the officers estimated lasted 17 minutes, appellant stopped his car on Pacheco Boulevard near a railroad overpass. He jumped out of the car and ran up to the railroad tracks. Officers Borgen and Hampton followed him, and Borgen ordered him to stop, warning him that he would be tasered if he did not. Appellant continued to run away from the officers, so Borgen tasered appellant, knocking him down. As he placed handcuffs on him, Borgen noted that appellant spoke slowly, that an odor of an alcoholic beverage emitt[ed] from him, and that his eyes were [r]ed, watery, and droopy. Since he had just been tasered, the officers did not ask him to perform a sobriety test at that moment.

A passenger in appellants car remained there with his hands in the air; an open, half-full bottle of whiskey was found by the officers under the drivers seat of the car.

Appellant was promptly transported to the CHP station in Martinez. At about 1:57 a.m., i.e., about an hour and a half after the officers first saw appellants erratically-driven car, a phlebotomist drew four vials of blood from appellant. He was then taken to a hospital for clearance after being tasered, but he refused medical attention and did not appear to be at all injured. He weighed 200 pounds at that point.

On March 16, the Contra Costa County District Attorney filed an information charging appellant with the three counts noted above, and also alleging the prior prison term.

Jury trial commenced on June 4. Only three witnesses testified for the prosecution, namely CHP Officers Borgen and Hampton, whose testimony of course focused on the events of January 14, and Danielle Roberts, a criminalist (i.e., formerly a forensic toxicologist) employed by the Forensic Services Division of the Contra Costa County Sheriffs Office. She testified initially concerning the methodology of identifying alcohol in blood samples and also about the effects of the consumption of alcohol on the human body. She testified that a person is impaired for purposes of driving when his or her blood alcohol level (BAL) is 0.08 percent, although some people actually become impaired with a lower BAL, i.e., 0.05 percent. She also noted that individuals differ regarding their tolerance of alcohol in their blood, and that a person with a higher tolerance could consume considerable alcohol before exhibiting outward signs of impairment but, nonetheless, such a person would still be impaired if he or she had a BAL of 0.08 percent. As soon as a person stops drinking, she continued, his or her body starts eliminating alcohol and, thus, the BAL level decreases by an average elimination of 0.015 percent per hour.

Roberts then testified concerning the tests she had personally performed on the samples of appellants blood that had been taken in the early morning of January 14. She testified that each sample tested at 0.09 percent BAL and that, assuming a standard margin of error of plus or minus three percent, appellants BAL was, at a minimum, 0.087 percent and, at a maximum, 0.092 percent. Using a standard absorption rate, Roberts continued, a man with a BAL of 0.09 who weighed 200 pounds had consumed about 4.7, plus or minus one drink of either one ounce of hard liquor, four ounces of wine, or twelve ounces of beer. Using a process of back extrapolation, she concluded that a person weighing 200 pounds who was driving a car an hour and a half before the blood samples were drawn and which samples measured 0.09 BAL probably had a BAL of 0.11 while driving-- assuming no further consumption of alcohol during that one and a half hour period. Such a person would have approximately 5.9, plus or minus one drink in their system at that time, to reach such a level, she testified.

Roberts concluded her direct examination by testifying that common symptoms of being impaired by undue consumption of alcohol included red and watery eyes, an unsteady gait, an odor of alcohol on ones breath, weaving while driving, going the wrong way on a road or highway, and driving over 100 mph.

After Roberts concluded her testimony, the prosecution rested. Appellant opted not to offer any evidence.

On June 9, after less than two hours of deliberation, the jury convicted appellant on all three charged counts.

On July 13, the trial court found the prior prison term allegation to be true, and sentenced appellant to two years on his conviction on the first count (i.e., the Veh. Code,  2800.4, charge), a consecutive one-year term on the prior prison term enhancement, and concurrent terms on the two other counts, for a total of a three-year state prison term.

Appellant filed a timely notice of appeal.

III. DISCUSSION

As appellants briefs make clear, his appeal is based principally on the proposition that there was no substantial evidence to sustain appellants conviction on the third count of the information, i.e., the alleged violation of section 23152(b). That is, however, the end of the uniformity between appellants briefs to us; there is much that is puzzlingly different between those two briefs, as we will subsequently detail.[3]

But first, regarding the alleged insufficiency of the evidence of the section 23152(b) violation, in his opening brief appellant acknowledges that our standard of review is whether there was substantial evidence to support the charge at issue. ( See, e.g., People v. Marshall (1997) 15 Cal.4th 1, 34; Brierton v. Department of Motor Vehicles (2005) 130 Cal.App.4th 499, 508.) Such was not the case here, appellant argues in his opening brief, because, according to Roberts testimony, depending on a persons physical characteristics, as well as the particular circumstances of a drinking session, without full evaluation of the factors, the prior blood alcohol content may not be possible to calculate. [] Several factors must be considered when determining whether a persons body was absorbing or eliminating alcohol at the time the blood was drawn. Notwithstanding the importance of each of these variables, the prosecution presented no evidence of appellants weight or body chemistry, no evidence regarding the amount of alcohol appellant consumed that night, and no evidence showing when he began drinking or when he stopped. The jury heard no evidence as to whether appellant was a heavy drinker, or whether his livers ability to eliminate alcohol was consistent with the elimination rates used by [Roberts in his testimony].

Appellants no substantial evidence argument then concludes by noting that, because the blood alcohol test was done a little over an hour after he was stopped and an open bottle of whiskey was found near the drivers seat in the car, there was a possibility that appellants BAC was less than 0.08 percent while he was driving, but due to a high volume consumption over a short period of time, the BAC could have continued to rise, resulting in a 0.09 BAC at the time of the blood draw and, thus, there was insufficient evidence to prove that appellants BAC was greater than 0.08 percent while he was driving.

The weaknesses in this argument are principally two: first of all, contrary to the express statement in appellants opening brief, there was express testimony from Officer Hamptonindeed, testimony adduced by defense counsel on cross-examinationthat appellant weighed 200 pounds at the time of his booking into the Contra Costa County jail.

Second, the argument quoted above that there might have been other variables that could have influenced the precise BAC at the time appellant was driving (e.g., exactly how long it was before appellant was stopped that he consumed his last bit of whiskey, appellants body chemistry, and the total amount of alcohol that he consumed that night) was both the subject of (1) cross-examination and re-cross-examination of Roberts by appellants trial counsel and (2) later argument to the jury by that counsel. Thus, appellants trial counsel argued that Robertss testimony regarding appellants BAC at the time he was driving was based on assumptionsremember its their burden to convince you. Were lacking very crucial evidence. [] What is that evidence that were lacking? What was drunk? How much was drunk? When was that alcohol consumed? At what frequency was the alcohol consumed? What was in the stomach, what that person had to eat? All of these factors will change this.

Notwithstanding this argumentessentially the very same as quoted above from appellants opening briefthe jury did not take long to convict appellant of a violation of section 23152(b). Presumably, one of the reasons it did so was the courts giving of CALCRIM No. 2111 which, in pertinent part, instructed the jury: If the People have proved beyond a reasonable doubt that a sample of the defendants blood was taken within three hours of the defendants driving and a chemical analysis of the sample showed a blood alcohol level of 0.08 percent or more, you may, but are not required to, conclude that the defendants blood alcohol level was 0.08 percent or more at the time of the alleged offense.

As our Supreme Court noted in a 2009 decisiona decision not cited in either of appellants briefs to usthe statute at issue here, section 23152(b), is commonly known as the per se DUI provision. (People v. McNeal (2009) 46 Cal.4th 1183, 1187 (McNeal).) As Justice Corrigan explained for a unanimous court in that case, that statute was enacted in its present form in 1990 to respond to a series of appellate decisions questioning some aspects of the statute as previously written: The Legislature accomplished this purpose by defining the offense of per se DUI in terms of a prohibited level of blood alcohol or breath alcohol. As we explained in [People v. Bransford (1994) 8 Cal.4th 885] at page 890, the amendment of section 23152(b) providing for an alternative measurement based upon breath changed the definition of the offense. In the per se DUI statute, the Legislature has set a legal limit on permissible blood alcohol and has defined how that limit is to be measured in a breath sample. If the limit, measured as the statute sets out, is exceeded, the statute has been violated. . . . [] The Legislature passed section 23152(b) to facilitate the prosecution of drunk drivers. The creation of a per se DUI offense did away with the need to prove the defendant was actually impaired. (McNeal, supra, 46 Cal.4th at pp. 1196-1197, emphasis supplied.)[4]

Additionally, as the People correctly note in their brief, there was significant other evidence of appellants inebriation, i.e., he smelled of alcohol, spoke slowly, was unsteady, and showed an abundance of horrible judgment by engaging multiple CHP cars in a high-speed, U-turn, multiple highway chase, and then running from his car when he was finally stopped. As the McNeal court observed: Other evidence of actual impairment may include the driver's appearance, an odor of alcohol, slurred speech, impaired motor skills, slowed or erratic mental processing, and impaired memory or judgment. (McNeal, supra, 46 Cal.4th at p. 1198.)

As noted earlier, appellants argument changes significantly in his reply brief. Discoveringclearly via its initial citation in respondents briefan appellate decision reversing a conviction under section 23152(b), namely People v. Beltran (2007) 157 Cal.App.4th 235 (Beltran), appellant argues that that case provides a basis for reversing his conviction. He is wrong.

First of all, Beltran is not, as appellant says, on all fours with the case presented at bar. There, experts for both sides testified that it could well have been that appellants BAC was below the legal limit at the time he was driving. (Beltran, supra, 157 Cal.App.4that p. 239.) This was so because the defendant was subjected to two separate and distinct breath tests, the first a roadside preliminary alcohol screening (PAS) test and the second, taken less than a half-hour later, an intoxilyzer test. The first indicated a BAC of 0.08 and the latter a significantly- increased level of 0.10 percent. (Id. at pp. 238-239.)

Beltran, holds that, as a general rule of law, the instruction at issue there, CALJIC No. 12.61.1,[5] may be properly given even when other evidence [is] admitted at trial rebutting the inference authorized by the instruction. (Beltran, supra, at p. 244.) However, in a second section of its opinion, the court reversed the conviction because of the strong evidence that the defendants BAC was rising at the time he was stopped and, thus, even per the prosecutions expert assuming the reliability of the earlier PAS test results, appellants BAC was around 0.068 percent when he was stopped. (Id. at p. 239.) This meant, Presiding Justice Ruvolo wrote: Taken as a whole, the connection between the proved fact (test result demonstrating a BAC of 0.08 percent or greater within three hours of driving) and the inferred fact (BAC of 0.08 percent or greater at the time of driving), which is an element of the charged crime, was not established beyond a reasonable doubt. . . . . [] There is no reasonable doubt that in this case the jury relied on the inference to convict. Indeed, as we have made abundantly clear already, the permissive inference was the only evidence used to establish appellants guilt of a violation of . . . section 23152, subdivision (b). (Id. at p. 247.)

Such was clearly not the case here. First of all, as noted above there was considerableevidence over and above the BAC content and the inference arising from it concerning this appellants apparent intoxication. More importantly, there was only one set of tests given here, i.e., those taken at the CHP station 1 hour and 17 minutes after the end of the chase, both showing a BAC of 0.09. And, unlike Beltran, there was no testimony from the prosecutions expert (or anyone else) suggesting a rising level of BAC in appellant when he was being tested, i.e., a probable lower level when he was driving. There was no expert testimony presented by the defense here.

Finally regarding the arguments presented in appellants reply brief, perhaps the most disturbing is that the instruction his appellate counsel claims was erroneous because of the evidence in the record[6] was CALCRIM No. 2110. But that instruction related only to the second count in the information, charging a violation of section 23152(a), the so-called generic DUI statute. (See McNeal, supra, 46 Cal.4th at p. 1187.) Although appellant was also convicted of violating that statute (1) he is not appealing from that conviction and (2) CALCRIM No. 2110 pertains only to a section 23152(a) violation. Nowhere in either of her briefs to us does appellants counsel mention CALCRIM No. 2111, the instruction relating to the offense of which appellant was convicted.

In any event, any error in instructing the jury was harmless. We assume that the Chapman standard[7] applies when determining whether an erroneous instruction on permissive inferences is prejudicial. (Beltran, supra, 157 Cal.App.4th at p. 247.) Beyond a reasonable doubt, any error in instructing the jury with CALCRIM No. 2111 was harmless. The trial court also instructed the jury with CALCRIM No. 200, which provides in pertinent part: Some of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them. Thus, the jury was informed that, depending on its determination of the facts, some instructions might be inapplicable. We presume the jury followed this instruction (People v. Anderson (2007) 152 Cal.App.4th 919, 938) and, if the facts failed to justify a conclusion beyond a reasonable doubt that appellant drove within three hours of the chemical test, the jury ignored CALCRIM No. 2111.

IV. DISPOSITION

The judgment appealed from is affirmed. The case is remanded to the trial court for consideration of the issue of whether appellant is entitled to a recalculation of presentence work and conduct credits under amended Penal Code section 4019 and, if so, to undertake such a recalculation.

_________________________

Haerle, J.

We concur:

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Kline, P.J.

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Richman, J.

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[1] All subsequent statutory references are to the Vehicle Code, unless otherwise noted.

[2] All further dates noted are in 2009.

[3] The first such difference is that, in his reply brief, appellant asks this court to independently recalculate the presentence and work and conduct credits to which appellant might be entitled because of amendments to Penal Code section 4019 which became effective January 25, 2010. We decline to reach that issue but will, hereafter, remand the case to the trial court for its consideration of that matter.

[4] See also, to the same effect as the italicized sentence above, People v. Bransford (1994) 8 Cal.4th 885, 890; Hamilton v. Gourley (2002) 103 Cal.App.4th 351, 361.

[5] CALJIC No. 12.61.1 also addresses a charged violation of section 23152(b), but does so in somewhat different wording than CALCRIM No. 2111.

[6] Actually, as noted above, not so much evidence as questions and answers between defense counsel and the prosecutions expert.

[7] See Chapman v. California(1967) 386 U.S. 18.