P. v. Christensen

Filed 5/1/07 P. v. Christensen 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Trinity)

----

Defendant Mel Rex Christensen appeals following convictions of one count of assault with a deadly weapon (Pen. Code,  245, subd. (a)(1)), battery on a person with whom the defendant had a dating relationship (Pen. Code, 243, subd. (e)), driving under the influence of alcohol (Veh. Code, 23152, subd. (a)), and driving with a blood alcohol content of 0.08 percent or greater (Veh. Code, 23152, subd. (b)). The court suspended imposition of sentence and placed defendant on probation. On appeal, defendant raises claims of evidentiary, instructional and sentencing error with respect to his misdemeanor convictions. Since none of the contentions is meritorious, we affirm the judgment.

Facts and Proceedings

The charges arose out of a motor vehicle accident that occurred during a camping, fishing, and drinking vacation that defendant was sharing with his mistress (the victim). The accident occurred between 3:00 and 4:30 p.m., after the two left their campsite to drive to a general store to purchase more liquor. According to the victim, she and defendant already had consumed a half-gallon of whiskey that day, and defendant had an additional 12-pack of beer. While enroute to the store, defendant lost control of his vehicle, drove off the road and collided with a tree. Defendant blamed the victim for the accident, hurled rocks at her and threatened to kill her. A passing motorist interceded and took them both to the Ruth general store. The store manager, who also served as a bartender in the adjoining tavern, testified that defendant appeared to be severely intoxicated, so much so that he served him only one beer before asking him to leave the bar. Defendant left the bar and walked around to the general store, where a different clerk sold him a 12-pack of beer. Defendant walked outside, took a seat in front of the store, and opened one of the cans of beer. Defendant was asked to and did leave, walking across the road into a mobile home park before returning to his damaged vehicle. While defendant was assessing the damage to the vehicle, a California Highway Patrol officer stopped and arrested him. He was transported to a hospital, where two chemical breath samples showed his blood alcohol level (BAL) was 0.17 percent.

At the time of his arrest, defendant told the officer he had been drinking, but said he was not drunk at the time of the wreck. Defendant said he had purchased 12 beers at the Ruth store after having been thrown out of the bar but said he had buried most of the 12-pack of beer in some bushes across the street from the store. Defendant and the officer later drove past the place where defendant said he had buried the beer in the bushes, but defendant was unable to find it.

The prosecutions expert witness testified that a drink equals either one 12-ounce beer, one ounce of 100 proof liquor, or four ounces of wine. For an individual of defendants size one drink would raise his BAL by 0.02 percent, which the body would dispose of, or burn off in an hours time. The expert testified that defendants BAL would have measured 0.7 percent at the time of the breath tests had he consumed as much alcohol as the victim said he did. If the defendant did not start drinking until 4:30 p.m., he would have had to consume 11 drinks for his BAL to measure 0.17 at 7:00 p.m. According to the defense, defendants elevated BAL was attributable to his consumption of 11 of the 12 beers in the 12-pack while he was walking back to his vehicle.

The jury convicted defendant as set forth above. The jury also returned not guilty verdicts on single counts alleging a criminal threat (Pen. Code, 422), inflicting a corporal injury on a cohabitant (Pen. Code, 273.5, subd. (a)), and driving under the influence of alcohol causing bodily injury (Veh. Code, 23153, subd. (a)). The court stayed imposition of sentence and placed defendant on probation.

Discussion

I

Sufficiency of the Evidence

Defendant initially contends the evidence was insufficient to support the conviction for driving with a BAL of 0.08 percent or greater because the expert testimony did not explain how defendants BAL of 0.17 percent at 7:00 p.m. correlated to a BAL equal to or greater than 0.08 percent at the time of the accident, which occurred between 3:00 and 4:30 p.m. In defendants view, the jury was forced to experiment with respect to defendants alcohol consumption level in order to figure out how his BAL reached 0.17 percent at the time his blood was drawn. Since these experiments were not based on the testimony at trial, defendant asserts infringement of his rights to counsel, confrontation, and due process. The contention is meritless.

In reviewing the sufficiency of the evidence, we draw all inferences in support of the verdict that reasonably can be deduced and must uphold the judgment if, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. (People v. Estrella (1995) 31 Cal.App.4th 716, 725.) This standard of review is not altered where the People rely primarily on circumstantial evidence. (People v. Bloyd (1987) 43 Cal.3d 333, 346-347.)

Defendant confuses experimentation with deduction. The Peoples expert testified that one drink (a 12-ounce beer or one ounce of 100 proof liquor) would put 0.02 percent alcohol into the bloodstream of an individual of defendants size, and that a like amount would burn off each hour. Assuming the jury concluded that defendant consumed two beers after the accident (one at the bar and another outside), and these two drinks were burned off prior to the breath test, and another had burned off in the hour after the accident, defendants BAL at the time of the accident would have at least equaled the 0.17 percent BAL at the time of the breath tests. Even if the jury concluded defendant consumed more than two beers after the accident, it easily could have concluded defendants BAL was greater than 0.08 percent at the time of the accident. A simple mathematical calculation is not an experiment, and the jury was by no means bound to accept defendants explanation of the high BAL in light of the convincing evidence to the contrary. Substantial evidence supports the conviction of driving with a BAL of 0.08 percent or more.

II

Instruction With Former CALJIC Nos. 12.61 and 12.61.1

The court instructed the jury with former CALJIC Nos. 12.61 and 12.61.1. Defendant challenges the use of those instructions given the evidence in this case, arguing that each was irrelevant, confusing, and permitted an inference not supported by the facts in violation of appellants right to due process of law under the Fourth Amendment to the federal Constitution. Specifically, he argues as to former CALJIC No. 12.61.1 that evidence showing that defendant consumed at least some alcohol after he had driven the van and before the test for his blood alcohol level rendered the permissible inference allowed by that instruction legally inapplicable. While he does not expressly set forth the same argument regarding the use of former CALJIC No. 12.61, we consider it to be made by implication.

Because the error analysis relating to the two instructions is different, we discuss each instruction separately.

A. FormerCALJIC No. 12.61

Former CALJIC No. 12.61, as read to the jury, said in pertinent part: If the evidence establishes beyond a reasonable doubt that at the time of the chemical analysis of the defendants blood, breath, or urine, there was 0.08 percent or more, by weight, of alcohol in the defendants blood, you may, but are not required to, infer that the defendant was under the influence of an alcoholic beverage at the time of the offense.

Although defendant concedes in his reply brief that his attorney at trial expressly requested this instruction, that concession appears improvident. His trial attorney did not request former CALJIC No. 12.61 in his written request for jury instructions and we are unable to find the request elsewhere in the record of trial.

In any event, although he does not cite the statute, defendants argument regarding the permissible inference allowed in former CALJIC No. 12.61 finds support in Evidence Code section 604 which provides in relevant part: The effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption. . . . (Evid. Code, 604.)

As such statutes bear on criminal cases affecting the prosecutions burden of proof, they are construed to establish not mandatory presumptions but only permissible inferences. (See People v. Roder (1983) 33 Cal.3d 491, 497-505; Bench Notes to CALCRIM No. 2100 (2006-2007) p. 130.) Thus, former CALJIC No. 12.61, used in the appropriate case, allows, but does not require, a jury to infer that a defendant was under the influence of an alcoholic beverage at the time of the offense if his blood alcohol level was established to be 0.08 or more when tested.

However, as is made plain by the language of Evidence Code section 604, where there is evidence placed before the jury that would support a finding of the nonexistence of the inferred fact--that is, that defendant was under the influence of an alcoholic beverage at the time of the offense--the inference must be disregarded. Arguably, there was such evidence here. The storekeeper/bartender testified that he sold the defendant one beer in the tavern but would sell him no more, and defendant told the investigating officer he drank some, perhaps a significant part, of a 12-pack of beer more or less immediately after he left the tavern. Arguably, in turn, the results of defendants blood alcohol test may have been affected by the alcohol he consumed after the offense. Thus evidence was placed before the jury that, depending on time and physiology, might have supported a finding of the nonexistence of the inferred fact.

We need not decide whether any contrary evidence is sufficient to defeat the inference (see In re Heather B. (1992) 9 Cal.App.4th 535, 561 [presumption affecting the burden of producing evidence has effect in the absence of other evidence and no effect if contrary evidence is introduced]), as opposed to whether such contrary evidence must be of sufficient weight to support the nonexistence of the inferred fact. That is so because we can assume that the evidence was sufficient and that former CALJIC No. 12.61 should not have been given to the jury and still find that the assumed error was harmless beyond a reasonable doubt. (People v. Flood (1998) 18 Cal.4th 470, 479-480 [instruction removing the prosecutions burden of proving every element reviewed under harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711]].)

By all accounts, defendant was extremely intoxicated when the accident occurred. The victim detailed how much alcohol defendant consumed prior to the accident. The woman who gave defendant a ride shortly after the accident testified that defendant appeared to be intoxicated. The bartender testified defendant was highly intoxicated not long after the accident, and the bartender refused to serve defendant more than one beer before ejecting him from the bar. According to the Highway Patrol officer, defendant said he buried most of the 12-pack of beer he bought at the store before walking back to his vehicle but he was then unable to find it. When the testimony of these witnesses is compared with defendants implausible tale of post-accident alcohol consumption, we are convinced the evidence of the defendants intoxication at the time of the accident was so compelling that the instructional error, if any, was harmless beyond a reasonable doubt.

B. FormerCALJIC No. 12.61.1

As noted earlier, the defendant advances the same argument of error regarding the trial courts instruction taken from former CALJIC No. 12.61.1. But defendant specifically requested this instruction, which brings into play the doctrine of invited error.

Former CALJIC No. 12.61.1 permitted the jury to infer that defendants BAL was 0.08 percent or greater at the time of the accident so long as it found the chemical test was administered within three hours of the time the defendant operated the motor vehicle. Former CALJIC No. 12.61.1 stated in pertinent part: If the evidence establishes beyond a reasonable doubt that (1) a sample of the defendants blood, breath or urine was obtained within three hours after [he][she] operated a vehicle and (2) that a chemical analysis of the sample established that there was 0.08 percent or more, by weight, of alcohol in the defendants blood at the time of the performance of the chemical test, then you may, but are not required to, infer that the defendant drove a vehicle with 0.08 percent or more, by weight, of alcohol in [his][her] blood at the time of the alleged offense.

Where a defendant expressly agrees to an instruction, he is barred from challenging it on appeal under the doctrine of invited error. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1135; People v. Cooper (1991) 53 Cal.3d 771, 830-831.) (People v. Davis (2005) 36 Cal.4th 510, 539.)

In his written request for instructions, defendant specifically asked the trial court to give former CALJIC No. 12.61.1. While the error was thus plainly invited, there is authority for the argument that the invitation was not made out of ignorance or mistake. The doctrine of invited error is designed to prevent an accused from gaming a reversal on appeal because of an error made by the trial court at his behest. If defense counsel intentionally caused the trial court to err, the defendant cannot be heard to complain on appeal. . . . [I]t also must be clear that counsel acted for tactical reasons and not out of ignorance or mistake. In cases involving an action affirmatively taken by defense counsel, we have found a clearly implied tactical purpose to be sufficient to invoke the invited error rule. [Citations.] (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49.)

During closing argument, defendants attorney addressed the concept set forth in former CALJIC No. 12.61.1 as follows: Also, in driving under the influence with injury, there is a requirement that you cant draw an inference based upon a blood alcohol read that somebody had at least a 0.08 blood alcohol level at the time of an accident unless that blood alcohol read happens within three hours of the accident. It cant be more than three hours after the accident. I think it would be ludicrous to suggest that the prosecution can prove beyond a reasonable doubt that this accident happened within three hours of 7:02. You may have a suspicion that it happened within three hours of 7:02. The prosecutor very conveniently suggested it was 4:30, obviously. No, it isnt obvious. Its reasonable to assume that that accident could have happened an hour before that or an hour and a half before that, based on Mel Christiansens testimony. And I dont think Vivian really knows when it happened. I really dont think she does.

In general terms the defense theory at trial, at least as to the charges relating to driving under the influence of alcohol, was that defendant was sober at the time of the accident and that he became intoxicated thereafter. To support that theory, it was to defendants advantage to place the time of the accident as early as possible in the afternoon to allow him to have consumed enough alcohol before his blood alcohol level was tested to account for the readings those tests revealed.

As can be seen, defendants attorney attempted to use the concepts set forth in former CALJIC No. 12.61.1 to argue that the accident happened between 3:00 and 3:30 in the afternoon and not at 4:30, thus giving defendant an extra hour to an hour and a half to drink after the accident. The argument is contorted and, in part because it works backwards chronologically from the fact to be inferred, logically flawed. In any event, however, it is apparent that the defense attorneys request for the instruction was not inadvertent or made by mistake and that is all that is required. It is not necessary that the tactic was either logical or effective.

Defendant, having invited any error by the trial court in giving former CALJIC No. 12.61.1, cannot now be heard to complain about an error made at his behest.

III

Penal Code Section 654

The court suspended imposition of sentencing on all convictions and placed defendant on probation for three years. Defendant asserts the court should have stayed sentencing on one of his two convictions under Vehicle Code section 23152 because they both arose from an identical course of conduct, for which multiple punishment is prohibited by Penal Code section 654. This argument, too, is meritless.

Defendant proceeds on the mistaken assumption that he is entitled to raise a challenge under Penal Code section 654 even though the trial court suspended imposition of sentence and placed him on probation. Probation, whether or not accompanied by a jail term, is not considered punishment within the meaning of Penal Code section 654. The proper time for determining whether Penal Code section 654 applies, and implementing its protection if it does, is when the court pronounces judgment and imposes sentence. (People v. Lofink (1988) 206 Cal.App.3d 161, 168; People v. Wittig (1984) 158 Cal.App.3d 124, 137.) In his reply brief, defendant asks us to carve out an exception to this rule in the interest of judicial economy. Judicial economy favors the rule, not the proposed exception. We decline the invitation.

Disposition

The judgment is affirmed.

HULL , J.

We concur:

SIMS , Acting P.J.

ROBIE , J.

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