P. v. Sablan

Filed 5/31/07 P. v. Sablan CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Gina LaDonna Sablan was convicted of three misdemeanor violations. She claims the evidence does not support one of thema conviction for being under the influence of methamphetamine. As discussed below, we disagree and affirm because substantial evidence supports the conviction.

Background

On November 6, 2005, defendant used a counterfeit $100 bill to purchase items at a clothing store in El Cerrito. Police arrested her later the same day, after she made an unsuccessful attempt to pass another such bill at a nearby book store. An information filed the following month stated a number of counts and enhancements relating to these events. The more serious of these charged defendant with second degree burglary (Pen. Code,  459, 460, subd. (b)), petty theft with a prior theft conviction (Pen. Code,  484, 666), and uttering fictitious bills (Pen. Code,  476). As amended, the information also alleged three misdemeanor violations: possession of a fictitious drivers license (Veh. Code,  14610, subd. (a)(1)), giving false information to a police officer (Pen. Code,  148.9, subd. (a)), and being under the influence of a controlled substancespecifically methamphetamine (Health & Saf. Code,  11550, subd. (a)). On March 3, 2006, a jury found defendant guilty only as to the three misdemeanor charges. The trial court subsequently suspended execution of its jail term sentence, placing defendant on a probation that, among other things, required that she complete a six-month residential drug treatment program. This appeal followed. (Pen. Code,  1237, subd. (a).)

Discussion

Defendant challenges only her misdemeanor conviction for being under the influence of methamphetamine in violation of Health and Safety Code section 11550, subdivision (a). As we have noted, she essentially contends the evidence was not sufficient for the jury to find her guilty of this offense. In determining evidentiary sufficiency in a criminal prosecution, we review the entire record, in the light most favorable to the judgment, for the presence of substantial evidencethat which reasonably inspires confidence and is of solid valuesuch that . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  (People v. Marshall (1997) 15 Cal.4th 1, 34 (Marshall), quoting Jackson v. Virginia (1979) 443 U.S. 307, 319 [italics in original]; see also People v. Chatman (2006) 38 Cal.4th 344, 389.) In this particular case, the essential element is simply that defendant was willfully, or purposefully, under the influence of methamphetamine at the time of her arrest.^[1] (See CALJIC No. 16.060; CALCRIM No. 2400; see also Pen. Code,  7(1).)

The book store clerk, to whom defendant had presented the second counterfeit $100 bill, testified that she summoned a manager to approve the bill before accepting it. The manager took the bill to her office for examination. She did not return to the clerks register, but telephoned the police from her office. The clerk stated that, between the time the manager left the register and the time of the arresting officers arrival, defendant appeared to become antsy and was sweating quite heavily.

The arresting officer, William Zink, initially testified concerning his training and experience in recognizing individuals under the influence of methamphetamine. The trial court accordingly qualified him to give his expert opinion on that subject, in addition to his testimony as a percipient witness. Officer Zink then stated that using methamphetamine could increase the pulse rate. He said other symptoms included nervousness or anxious behavior, restlessness or an inability to remain still, sleeplessness, rapid talking, and sweating. Zink related that defendant appeared to be very nervous when he first escorted her from the book store. She spoke very rapidly and her hands were shaking slightly. During the booking process she was unable to sit still and continued to talk rapidly. Zink checked her pupils and estimated their dilation was not abnormal, although they failed to constrict normally when subjected to a flashlight. He had defendant stand with her feet together, with her head tilted back and her eyes closed, and asked her to count off 30 seconds in that position. She did so in 33 seconds. Meanwhile Zink looked for signs of body sway and tremors in the eyelids. He saw that she swayed slightly and exhibited slight tremors in her eyelids. Zink also checked defendants pulse. Whereas the normal range is 60 to 90 beats per minute, defendants pulse rate was 104. Zink testified that he suspected defendant might be under the influence of a stimulant, so he collected a urine sample from her with the help of another officer. According to a forensic toxicologist, that sample tested positive for methamphetamine, amphetamine, and MDMA.

A second forensic toxicologist, Arsenio Ricafrente, testified to his training regarding the effects of methamphetamine use on human performance and behavior. The trial court qualified him to give his expert opinion on this subject. Ricafrente stated that an analysis testing positive for methamphetamine indicated a prior ingestion of that substance. He said that physical symptoms of being under the influence of methamphetamine included dilated pupils, increased heart rate, rapid speech, restlessness, and a rapid flight of ideas. The prosecution then presented a hypothetical that involved a person who tested positive for methamphetamine and who exhibited symptoms corresponding to those Zink had observed during and after defendants arrest. Ricafrente said that such symptoms, combined with the positive test for methamphetamine, were consistent with being under the influence of methamphetamine.

Defendant argues that expert testimony was essential to prove the offense because the symptoms of methamphetamine use are beyond common experience. In her view, however, the expert testimony was insufficient because it lacked certainty. Zink merely formed a suspicion that defendant might be under the influence of methamphetamine, whereas Ricafrente merely described the combination of defendants symptoms and the positive test as consistent with being under the influence of that drug. Defendant claims the expert testimony was deficient in other respects as well. For example, Ricafrente agreed during cross-examination that several measurements of pulse, rather than just one, would have better shown a consistently high pulse rate. Zink admitted during cross-examination that there were additional tests he could have administered, such as measuring rather than merely estimating pupil size. Neither expert, in defendants view, adequately explained the significance of her nervousness, sweating, slight tremors, slight swaying, or the fact that her pupils were within a normal range of dilation. The urine analysis, she contends, was similarly deficient, showing only the presence of methamphetamine and not its concentration. The gist of defendants argument is that the evidence showed her symptoms were consistent with being under the influence of methamphetamine, but provided no rational basis for ruling out other explanations and was hence insufficient for the jury to find, beyond a reasonable doubt, that she actually was under the influence of methamphetamine.

We see no merit in defendants characterization of the evidence. As we have said, the element to be proved was that she was willfully under the influence of methamphetamine at the time of her arrest. To be under the influence for purposes of Health and Safety Code section 11550, an individual need only present,  . . . in any detectable manner[]   physical symptoms that show the influence of a controlled substance. (People v. Gutierrez (1977) 72 Cal.App.3d 397, 402.) The physical symptoms need not equate with misbehavior or an impairment of physical or mental ability. (People v. Canty (2004) 32 Cal.4th 1266, 1278.) After reviewing the entire record in the light most favorable to the judgment, we conclude there was reasonable, solid evidence showing defendant ingested methamphetamine prior to her arrest. Reasonable, solid evidence also demonstrated that at the time of her arrest defendant displayed a constellation of perceptible, physical symptoms commonly found in individuals who are actively under the influence of that drug. Taken together, we are satisfied there was substantial evidence such that . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  (Marshall, supra, 15 Cal.4th at p. 34.)

Disposition

The judgment is affirmed.

______________________

Marchiano, P.J.

We concur:

______________________

Stein, J.

______________________

Swager, J.

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^[1]Health and Safety Code section 11550 prohibits both the use and be[ing] under the influence of a controlled substance. (Health & Saf. Code,  11550, subd. (a).) In this case the information alleged defendant had unlawfully use[d] and [was] under the influence of methamphetamine. However, the prosecuting attorney made it clear during closing argument that the theory [she was] going on was that defendant had been under the influence of methamphetamine when she was arrested, not that she had been seen to use that substance. The jurys verdict similarly indicates that it found defendant guilty of being under the influence of methamphetamine.