P. v. Flippin

Filed 4/26/07 P. v. Flippin CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Butte)

----

A jury convicted defendant Danny Woodrow Flippin of driving under the influence of alcohol (Veh. Code, 23152, subd. (a); count one) and driving with a blood-alcohol content of .08 percent (Veh. Code, 23152, subd. (b); count two) and found four prior drunk driving convictions to be true (Veh. Code,  23550, subd. (a)).

The court sentenced defendant to state prison for the midterm of two years for a violation of Vehicle Code section 23152, subdivision (a) (count one), with four priors and a concurrent two-year county jail term for violation of Vehicle Code section 23152, subdivision (b) (count two).

Defendant appeals, contending his constitutional rights to due process were violated in that the trial court allowed an officer to testify about horizontal gaze nystagmus (HGN) test results, that the prosecutor committed misconduct in eliciting the inadmissible testimony, and that the harm was not cured. We reject defendants contentions. As the Attorney General notes, the trial court miscalculated presentence custody credit; we will modify the judgment to correct the error. We will also modify the judgment to stay sentence on count two.

FACTS

About 2:00 a.m. on March 10, 2005, defendant, driving a pickup truck at a high rate of speed, almost collided with Oroville Police Sergeant Chris Nicodemus at an intersection where defendant had a stop sign but the officer did not. Defendant stopped halfway over the limit line and then turned. Officer Christopher DAmato was behind Officer Nicodemus in another vehicle. The officers followed defendant.

Officer Nicodemus stopped defendant who admitted that he had failed to stop behind the limit line. Defendant smelled of an alcoholic beverage. The officers observed a spilled can of beer on the passenger floorboard. Defendant was uncooperative, arrogant, spoke slowly and slurred his words. His eyes were bloodshot and watery. When Officer Nicodemus had defendant walk to the rear of his truck, defendant had difficulties doing so. Officer DAmato described defendants movements as somewhat slow, somewhat lethargic and when he stood, he had a bit of a circular sway, appearing as if he was trying to gain his balance. He appeared to be under the influence.

Officer DAmato conducted field sobriety tests. The HGN test required defendant to track the tip of a pen which the officer moved slowly in front of defendants face. The officer instructed defendant not to move his head. Defendant was unable to comply. As defendant followed the pen, he moved his head and his eyes jerked at 30 degrees. Defendant was also unable to comply with a finger dexterity test and the finger-to-nose test. Defendant was arrested for driving under the influence.

At a hospital less than 30 minutes after the stop, defendants blood was drawn. Testing revealed a blood alcohol content of .23 percent.

A forensic alcohol supervisor testified that a person is impaired, that is, not safe to drive, at a blood alcohol content of .08 percent. The eye-tracking exercise administered by Officer DAmato, known as the HGN test, is a good indicator of impairment; if not impaired, a person can track the pen without jerking his or her eyes.

Defendant did not testify.

DISCUSSION

I

Defendant contends his constitutional rights to due process were violated in that the trial court allowed Officer DAmato to testify about HGN test results. He also contends the prosecutor committed misconduct in eliciting the inadmissible testimony. He finally contends the courts admonishment of the jury did not cure the harm. We disagree.

Background

In limine, defense counsel moved to exclude the field sobriety tests, specifically the nonscientific tests, as evidence without foundation. The prosecutor opposed the motion, arguing that the field sobriety tests were widely used and accepted. The court noted that the tests were used for probable cause for the fluid test, whether blood, breath or urine. Defense counsel moved to exclude the HGN test because there was no basis to conclude that defendant did not suffer naturally from HGN which occurs in four to five percent of the population due to fatigue, trauma or other natural causes. The court suggested that defense counsel cross-examine and present that evidence. Defense counsel agreed he could but still did not believe it was proper and added an objection based on foundation to Officer DAmatos opinion testimony on whether defendant was or was not under the influence of alcohol at the time he was arrested based on the HGN test results. The trial court instructed:

The Court: Mr. Worley [prosecutor], you will be limited in your examination of the officer with regard to the [HGN] test, to inquiring as to training and experience and administering it, what he actually observed when he administered it. He is not to render an opinion that because the defendant failed, or did not fail, that he was either under the influence or not under the influence.

[Prosecutor]: As a result of the [HGN] test.

The Court: Simply as a result of that. He observed many other things at the scene, and all of that can come into play, and that will be certainly fodder for the jury on the (a) count.

Officer DAmato testified that the first test he conducted was the HGN test with his pen, that is, the ability for the eye to track a[n] object smoothly. Defense counsels objection on the ground of foundation was sustained. Officer DAmato testified he had academy and on-the-job training on the administration of field sobriety tests. When DAmato was asked about the HGN test, defense counsel objected, arguing lack of proper foundation. The court overruled the objection. At a bench conference, defense counsel argued that the officer had not testified that he received instruction on the HGN test. The officer thereafter testified that he had been trained on the HGN test. When the prosecutor asked again about the HGN test, defense counsel objected on the ground of lack of proper foundation and asked to voir dire the officer. The court overruled the objection. The officer gave defendant the HGN test and noticed defendants eyes bounce[d]. The officer also performed an angle of onset test which determines their approximate alcohol level according to that test. Defense counsel objected. After an unreported bench conference, the prosecutor questioned and Officer DAmato answered as follows:

Q. What would it mean, in your observations, if nystagmus was present at a smaller angle?

A. The smaller the angle, the higher -

Q. One moment. My understanding is the purpose of this test is to observe whether alcohol is present, correct?

A. Correct.

Q. And with regards to that specifically, what would a smaller angle of onset indicate to you?

A. A smaller angle of onset would indicate that there was alcohol present.

Q. Okay. Is it in your experience have you conducted this test in situations in which you ultimately learn that alcohol was not present?

A. No. I take that back. Im sorry. To the best of my recollection, I cannot recall performing this test and there not being alcohol associated with this test for purposes of DUI.

Q. And now that we have kind of gone through the test, when you conducted that on defendant, what were your observations?

A. I observed a[n] approximate angle of 30 degrees, again by my course and per that card, indicated an approximate blood alcohol level of .20.

Defense counsels unspecified objection was then sustained. Defense counsel then moved for a mistrial, stating that the prosecutor was strictly instructed -- The court interrupted, reminding counsel that there would be no speaking objections.

At a bench conference, defense counsel stated,

As I earlier indicated, we were just here, that we werent going to go into that. If this prosecutor didnt instruct the witness that we werent going to go into that, but he has, is now cause for mistrial, Your Honor.

The prosecutor stated that he had attempted to not elicit that answer.

The court denied the mistrial motion. The court instructed the jury to disregard the answer given by the officer as to the alleged amount of alcohol. It will be stricken from the record, and you will not consider for any purpose in your deliberation. When asked if the admonition was clear, the jurors responded, Yes.

The prosecutor thereafter asked whether the officers observation led [him] to believe that the defendant had consumed alcohol and the officer responded affirmatively.

Officer DAmato also testified as to other field sobriety tests he attempted to conduct without success. Defendant claimed he did not understand the finger dexterity test or the finger-to-nose test despite repeated explanation and when asked if he was refusing to take the tests, he responded, I guess so. The prosecutor asked how the officer interpreted defendants comments and the officer responded, I took his statement as a refusal of the field sobriety test, which is a violation of the law in and of itself to refuse. Defense counsel objected, asking for an admonition that that was not the law, the prosecutor stipulated, and the court instructed, Ladies and gentlemen, the court is going to instruct you on what the law is. The officers opinion of the law is not evidence. You are to disregard it entirely. Is that clear? All agree.

On cross-examination, defense counsel clarified Officer DAmatos answer:

Q. Okay. And it was your training that these field sobriety tests are mandatory?

A. I believe its an administrative action through the DMV if you dont perform the test.

Q. I see. So that was the basis that you felt the refusal to perform the field sobriety test was not lawful?

A. Correct.

Q. You dont have any Vehicle Code Section or any DMV regulation that you could cite, do you?

A. Not off the top of my head, no.

Q. Do you recall being trained that there was such a Vehicle Code regulation or DMV regulation, and or Vehicle Code Section?

A. I dont have any independent recollection of any specific training on that, no.

After verdict, defense counsel moved for a new trial on the ground, inter alia, that the court had given an express order precluding the prosecution from even attempting to offer any evidence of defendants blood alcohol content as a result of the HGN test supposedly administered by Officer DAmato. Defense counsel asserted that in a recorded side bar during Officer DAmatos testimony, the court reiterated its order that the prosecutor not attempt to offer any testimony or evidence by Officer DAmato as to the HGN test and defendants blood alcohol level. At the hearing on defendants new trial motion, there was no discussion of these grounds and the court made no findings in denying the motion.

Analysis

Defendant contends that the trial court erroneously allowed Officer DAmato to opine that defendant was under the influence of alcohol based on the HGN test results. Defendant argues the officer lacked the proper scientific training to state his opinion. Defendant argues the trial court should have granted his mistrial motion after the officer expressed his opinion. Defendant also claims the trial courts admonition did not cure the harm from the evidence and the prosecutors misconduct in eliciting the evidence.

Citing People v. Leahy (1994) 8 Cal.4th 587 (Leahy), People v. Kelly (1976) 17 Cal.3d 24 (Kelly), People v. Ojeda (1990) 225 Cal.App.3d 404, and People v. Williams (1992) 3 Cal.App.4th 1326, defendant argues the evidence of HGN test results and the correlation with alcohol ingestion should have been excluded even if HGN meets the requirements of Kelly because Officer DAmato was not qualified to testify as to a particular blood alcohol content.

In Leahy, the Supreme Court held that HGN test results are subject to the Kelly rule which requires the proponent of evidence derived from a new scientific methodology must satisfy three prongs, by showing, first, that the reliability of the new technique has gained general acceptance in the relevant scientific community, second, that the expert testifying to that effect is qualified to do so, and, third, that correct scientific procedures were used in the particular case. (People v. Roybal (1998) 19 Cal.4th 481, 505, italics omitted; Leahy, supra, 8 Cal.4th at pp. 604-607; Kelly, supra, 17 Cal.3d 24.)^[1]

Subsequent to Leahy, People v. Joehnk (1995) 35 Cal.App.4th 1488, 1504 through 1508 held that HGN evidence along with other observations of being under the influence meets the requirements of Kelly and expert testimony is not required. Joehnk held HGN test results are admissible as the basis for the officers opinion but not to quantify blood-alcohol content or to prove guilt alone. Here, defendant argues Officer DAmatos opinion that defendant was under the influence was based on the HGN test results. True, but not standing alone.

Officer DAmato testified about the HGN test results, defendants inability/refusal to perform the finger dexterity test and the finger-to-nose test, and his personal observations of defendant. Defendant was unable to stop at the limit line and almost collided with Officer Nicodemuss car. When

defendant walked to the rear of his truck, Officer DAmato described defendants movements as somewhat slow, somewhat lethargic. As defendant stood, Officer DAmato described defendant as having a bit of a circular sway, appearing as if he was trying to gain his balance. Officer DAmato detected an odor of an alcoholic beverage on defendants person. Officer DAmato was qualified to testify that defendant was under the influence of alcohol.

A prosecutors conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. (People v. Morales (2001) 25 Cal.4th 34, 44; People v. Samayoa (1997) 15 Cal.4th 795, 841.) The deliberate asking of questions calling for inadmissible and prejudicial answers is misconduct. [Citations.] (People v. Bell (1989) 49 Cal.3d 502, 532; People v. Smithey (1999) 20 Cal.4th 936, 960.) The prosecutor has a duty to guard against inadmissible statements from his witnesses . . . . [Citation.] (People v. Parsons (1984) 156 Cal.App.3d 1165, 1170.)

Initially, we note that the prosecutor stated that he attempted not to elicit the objectionable testimony concerning the correlation between the angle at which defendants eyes

jerked to the blood alcohol content. Defendant suggests that Officer DAmato was never admonished about the courts order restricting his HGN testimony. There is nothing on the record which reflects the prosecutor did not admonish Officer DAmato not to testify about the blood alcohol content. Since the error concerning Officer DAmatos opinion on blood-alcohol content was limited to a single question, we conclude that it did not constitute federal constitutional error. Defense counsel promptly objected and the court instructed the jury to disregard the officers answer. At the time, defense counsel did not indicate that the admonition failed to satisfy his concerns. He later raised the issue in his new trial motion. The record does not establish prosecutorial misconduct.

Defendant was not denied a right to a fair trial. The court struck the testimony and instructed the jury to disregard it. Contrary to defendants arguments otherwise, the objection and admonition cured any harm. Moreover, a forensic expert testified that based on defendants blood draw, defendants blood alcohol content was .23 percent. Any error was harmless beyond a reasonable doubt. The trial court properly denied defendants motions for a mistrial and new trial.

Defendant also complains that Officer DAmato was allowed to testify that defendants refusal to submit to field sobriety tests was in itself a violation of the law. Defendant objected and the trial court admonished the jury. Any harm was cured. Officer DAmatos objectionable testimony was brief. Moreover, defense counsel cross-examined the officer as to what he meant.

II

The court awarded 55 actual days and 27 conduct days for a total of 82 days of presentence custody credit. As the Attorney General notes, defendant was entitled to 26 conduct days. We will modify the judgment accordingly. (Pen. Code,  4019; People v. Autry (1995) 37 Cal.App.4th 351, 364.)

III

The trial court sentenced defendant to state prison for the midterm of two years for driving under the influence with four priors (Veh. Code, 23152, subd. (a); count one) and a concurrent county jail term of two years for driving under the influence with a blood-alcohol content of .08 percent (Veh. Code, 23152, subd. (b); count two). For count two, the abstract reflects a concurrent midterm of two years in state prison. Defendant could be punished for one of the two drunk driving offenses but not both. (People v. Subramani (1985) 173 Cal.App.3d 1106, 1110-1111.) We will order the punishment for count two stayed pursuant to Penal Code section 654.

DISPOSITION

The judgment is modified, reducing the number of conduct days to 26 for a total of 81 days of presentence custody credit and staying punishment (Pen. Code, 654) for count two. The trial court is directed to prepare an amended abstract of judgment accordingly and to forward a certified copy of the

amended abstract to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.

SIMS , Acting P.J.

We concur:

NICHOLSON , J.

ROBIE , J.

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^[1] Until 1993, this rule was generally known in this state as the Kelly-Frye rule because this court in Kelly had relied on the reasoning of a federal appellate court decision, Frye v. United States (D.C. Cir. 1923) 293 Fed. 1013 (Frye). In 1993, the United States Supreme Court held that the Federal Rules of Evidence had superseded Frye [citation], and our state law rule is now referred to simply as the Kelly test or rule. [Citation.] (People v. Bolden (2002) 29 Cal.4th 515, 545.)