P. v. Sotelo

Filed 2/9/06 P. v. Sotelo CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Esteban Hernandez, Judge. Affirmed.

A jury convicted Roberto Sotelo of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a); count 1); driving under the influence of a controlled substance (Veh. Code, § 23152, subd. (a); count 2); being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a); count 3); and giving false information to a police officer (Pen. Code, § 148.9, subd. (a); count 4). Sotelo admitted the allegations that he had served four prior prison terms (Pen. Code § 667.5, subd. (b)) and that he had two prior convictions under the three strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). The court sentenced Sotelo to a term of 10 years in state prison, consisting of the upper term, doubled, on count 1, and four prison prior enhancements, each imposed consecutively. The court dismissed one strike prior. Credit for time served was given on the misdemeanor counts 2, 3 and 4.

On appeal Sotelo asserts that the court erred in instructing the jury under CALJIC No. 16.832 because it precludes a jury from concluding that a defendant is not under the influence of a controlled substance based solely on the manner in which the defendant was driving. We conclude that CALJIC No. 16.832 is a correct statement of the law and was properly given to the jury. Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On February 9, 2004, National City Police Officer Marcus Macias was on patrol when he noticed a green Ford with expired registration pull in front of his patrol car. Officer Macias confirmed with his dispatch that the vehicle's registration was expired and pulled the car over.

After stopping the car, Officer Macias contacted the driver, Sotelo, and asked for identification. Sotelo told Officer Macias that he did not have any identification. Officer Macias then asked for Sotelo's name, date of birth and address. Sotelo responded that his name was Francisco Javier Sotelo and then hesitated for about 30 seconds before giving his date of birth. Officer Macias ran a records check through dispatch on the information provided to him and learned there was a Francisco Sotelo with a different date of birth whose license was suspended. Officer Macias asked Sotelo for his date of birth a second time and Sotelo gave him a different answer.

Officer Macias ordered Sotelo out of the car, at which point he noticed a glass pipe commonly used for smoking methamphetamine partially covered by a napkin on the driver's side floorboard. Officer Macias placed Sotelo under arrest and, while handcuffing him, noticed that he was very rigid and tense. Officer Macias placed Sotelo in the back of his patrol car and searched his car for contraband.

After Officer Macias searched Sotelo's car and found no additional contraband, he had another conversation with him to determine his identity. During the conversation he noticed that Sotelo had difficulty sitting still. Officer Macias had Sotelo stick out his tongue and noticed that it had a coating on it. Officer Macias had Sotelo stand outside his patrol car and perform a "Romberg" test to determine if he was under the influence of a central nervous system stimulant.^[1] Based upon Officer Macias's training, the results of the test, the coating on Sotelo's tongue, his tense muscles and the presence of the glass pipe, he determined that Sotelo was under the influence of a controlled substance. Officer Macias searched Sotelo and found a vial containing 0.54 grams of methamphetamine.

Officer Macias transported Sotelo to the police station for processing. While at the station Sotelo seemed dazed and confused. Officer Macias asked Sotelo if he was okay and Sotelo responded, "Yes, my high is going away now." While Officer Macias spoke to Sotelo, another officer ran a records check and determined Sotelo's true identity and date of birth. Officer Macias asked him if he was Roberto Sotelo, and he responded, "Yes." Officer Macias collected a urine sample from Sotelo that was later determined to have 64,301 nanograms of methamphetamine.

On cross-examination, Officer Macias admitted that he did not observe Sotelo weaving, swerving, straddling lanes, or otherwise driving erratically.

Forensic toxicologist Dr. John Treuting testified that the concentration of methamphetamine in Sotelo's system was a "fairly high level" and indicated that Sotelo had consumed methamphetamine. Dr. Treuting also explained that use of "methamphetamine or amphetamines at any level is inconsistent with good, safe driving habits."

DISCUSSION

Sotelo asserts that the court erred in instructing the jury under CALJIC No. 16.832 because it precludes a jury from concluding that a defendant is not under the influence based solely on the manner in which the defendant was driving. This contention is unavailing.

The court instructed the jury under CALJIC No. 16.832, entitled "Alcoholic or Drug Influenced Driving─Under The Influence Relates To Condition Of Driver," which provides:

"The manner in which a vehicle is being driven is not sufficient in itself to establish that the driver of the vehicle either is or is not [under the influence of an alcoholic beverage] [under the influence of a drug] [under the combined influence of an alcoholic beverage and a drug] [addicted to the use of a drug]. [¶] However, the manner in which the vehicle is being driven is a factor to be considered in light of all the proved surrounding circumstances in deciding whether the person operating the vehicle was or was not [under the influence of an alcoholic beverage] [under the influence of a drug] [under the combined influence of an alcoholic beverage and a drug] [addicted to the use of a drug]. (Italics added.)

The court also instructed the jury under CALJIC No. 16.830, entitled "Misdemeanor Driving Under The Influence," which provides:

"[Defendant is accused [in Count[s] _______] of having violated § 23152, subdivision [(a)][(c)] of the Vehicle Code, a misdemeanor.] [¶] Any person who while [under the influence of any alcoholic beverage] [or] [under the influence of any drug] [or] [under the combined influence of any alcoholic beverage and drug] [or] [addicted to the use of any drug] drives a vehicle is guilty of a violation of Vehicle Code § 23152, subdivision [(a)] [(c)], a misdemeanor. [¶] [The term 'drug,' as used in this instruction, means any substance or combination of substances, other than alcohol, which could so affect the nervous system, brain, or muscles of a person as to impair, to an appreciable degree, [his] [her] ability to drive a vehicle in the manner that an ordinarily prudent and cautious person, in full possession of [his] [her] faculties, using reasonable care, would drive a similar vehicle under like conditions.] [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. A person drove a vehicle; and [¶] 2. At the time, the driver was [under the influence of] [any alcoholic beverage] [or] [any drug] [or] [under the combined influence of any alcoholic beverage and drug] [or] [addicted to the use of any drug]." (Italics added.)

The court also instructed the jury under CALJIC No. 16.831, entitled "Alcohol Or Drug Influenced Driving─'Under the Influence'─Defined," which provides:

"A person is [under the influence of an alcoholic beverage] [under the influence of a drug] [under the combined influence of an alcoholic beverage and a drug] when as a result of [drinking such alcoholic beverage] [and] [using a drug] [his] [her] physical or mental abilities are impaired to such a degree that [he] [she] no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances. [¶] [If it is established that a person is driving a vehicle [under the influence of an alcoholic beverage] [under the influence of a drug] [under the combined influence of an alcoholic beverage and a drug], it is no defense that there was some other cause which also tended to impair [his] [her] ability to drive with the required caution.]" (Italics added.)

Sotelo was charged with driving under the influence under Vehicle Code section 23152, subdivision (a), which provides that it is "unlawful for any person who is under the influence of any alcoholic beverage or drug or under the combined influence of any alcoholic beverage and drug, to drive a vehicle." CALJIC No. 16.830 (discussed, ante) correctly instructed the jury on the elements necessary to prove this crime. The jury was also properly instructed on the definition of "under the influence" in CALJIC No. 16.831. However, Sotelo asserts that CALJIC NO. 16.832 is inconsistent with CALJIC No. 16.831's definition of the phrase "under the influence." Specifically, Sotelo contends that with CALJIC Nos. 16.831 and 16.832 "the jury is told to consider whether the person is driving in a sober and prudent fashion while at the same time being told [under CALJIC No. 16.831] to give reduced weight to the manner in which a car is being driven." We reject this contention.

Preliminarily, "CALJIC No. 16.832 is a correct statement of the law." (People v. Weathington (1991) 231 Cal.App.3d 69, 84; People v. Rice (1988) 200 Cal.App.3d 647, 653.) Further, Sotelo's argument that CALJIC No. 16.832 undercuts CALJIC No. 16.831 is simply incorrect.

The comment to CALJIC No. 16.832 cites People v. McGrath (1928) 94 Cal.App. 520, wherein the Court of Appeal, in concluding that reckless driving was not a lesser-included offense of driving under the influence, explained, "It is not essential, therefore, to the existence of such an offense that the driver be so intoxicated that he cannot drive safely, nor is it any defense to such crime that he may have exercised due care to avoid injuring other travelers." (Id. at p. 524.) Thus, the gravamen of the offense of driving under the influence is not the quality of the defendant's actual driving prior to an arrest, but the state of intoxication under which a defendant drives. CALJIC No. 16.832 properly instructs the jury that evidence of safe driving alone is insufficient to establish, as a matter of law, that a defendant is not under the influence. A person under the influence may drive in a manner that, to an observer, appears safe and prudent. However, because that person is under the influence, he or she may not react to conditions or hazards that appear as would a sober person of ordinary prudence. Rather, "the jury may consider evidence 'having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.' [Citations.] If the issue is whether the ability of the driver to operate his vehicle is impaired, the manner in which the vehicle is driven is evidence which tends to prove or disprove that fact." (People v. Weathington, supra, 231 Cal.App.3d at p. 83.) CALJIC No. 16.832 properly informs the jury that evidence of the quality of one's driving, by itself, cannot conclusively prove a person was driving under the influence, nor can it conclusively disprove that fact. It also correctly states, however, that such evidence may be considered along with all the other evidence to determine if the defendant was or was not driving under the influence.

At trial, Sotelo was able to obtain testimony from Officer Macias that he did not observe Sotelo drive erratically or unsafely. Counsel for Sotelo argued this fact to the jury in closing argument. The jury, instructed under CALJIC No. 16.832, was allowed to consider this evidence in determining Sotelo's guilt or innocence. The jury rejected this evidence in favor of other substantial evidence that demonstrated that he was driving under the influence. The court did not err in instructing the jury under CALJIC No. 16.832.

DISPOSITION

The judgment is affirmed.

NARES, Acting P. J.

WE CONCUR:

HALLER, J.

AARON, J.

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^[1] Because ingestion of a central nervous system stimulant speeds up a person's internal clock, the Romberg test requires a suspect to close his or her eyes and estimate an elapse of 30 seconds.