P. v. Lingefelt

Filed 10/30/07 P. v. Lingefelt CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

A jury convicted defendant Jodi Lingefelt of one count of possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)),[1] two felony counts of transportation of methamphetamine ( 11379, subd. (a)), one count of being under the influence of methamphetamine ( 11550, subd. (a)), one count of possession of drug paraphernalia ( 11364), one count of misdemeanor child endangerment[2] (Pen. Code,  273a, subd. (b)), and one count of driving with a suspended license (Veh. Code,  14601.1, subd. (a)). In a bifurcated proceeding, the court found true enhancement allegations that defendant had suffered two prior convictions for possession of a controlled substance for sale ( 11378), one prior conviction for attempted possession of stolen property (Pen. Code, 664, 496), and two prior prison terms (Pen Code, 667.5, subd. (b)).

The court sentenced defendant to the lower term of two years in prison on one of the transportation counts, plus one year each for the two prior prison terms, for a total term of four years. The court sentenced defendant to concurrent 90-day jail terms on each of the misdemeanor counts for child endangerment, driving on a suspended license, possession of drug paraphernalia, and being under the influence of methamphetamine. It dismissed the second transportation count and stayed the sentence on the conviction for simple possession under Penal Code section 654.

On appeal, defendant challenges her misdemeanor conviction for child endangerment on the ground that it is not supported by substantial evidence. We conclude the jurys verdict was supported by substantial evidence and affirm the judgment.

Facts

Prosecution Case

At approximately 11:10 p.m. on June 21, 2006, San Jose police officer Charles Castillo pulled up behind a car that had expired registration tags. He pulled the car over and contacted defendant, who was driving the car. An adult female named Rachel was in the front passenger seat. Defendants 16-month old son was riding in a child safety seat in the back.

When the officer asked defendant for her drivers license, defendant said she did not have her drivers license with her and gave him an identification card. Defendants drivers license had been suspended before the incident.

As defendant stepped out of her car and walked toward the patrol car, the officer noticed that defendant was having trouble standing still and kept moving her hands. She was fidgeting a lot and talking very rapidly. She appeared very nervous and her pupils were dilated. She had a hard time following basic, simple questions and asked the officer to repeat things.

Officer Castillo concluded defendant was under the influence of methamphetamine. He asked her to empty her pockets. She took a glass vial containing 0.2 grams of methamphetamine out of her left pants pocket. Officer Castillo placed defendant under arrest. During the search incident to her arrest, he found a baggie containing 6.6 grams of methamphetamine and a glass pipe in her right pants pocket.

Officer Castillo was behind defendant for less than a minute before he initiated the car stop. He observed her drive through an intersection and into a driveway. What little he saw of her driving seemed safe and normal.

When the officer pulled the car over, defendants son was in his car seat. The toddler was awake and cried at some point. The officer did not see any bruises or injuries on the child, but did not examine the parts of his body that were covered by his pajamas. There was a package of diapers in the car. The officer did not find narcotics in the car; all the drugs were on defendants person. The police did not search defendants home.

The officer asked defendant whether she had any relatives who could take her son, so he would not have to go to the childrens shelter and arranged for defendants mother to pick up the toddler. Rachel was not arrested. Later, at the pre-processing center, defendant appeared drowsy and became very sleepy. The officer ordered a blood test.

Trevor Gillis, a criminalist with the Santa Clara County crime lab, testified that defendants blood tested positive for methamphetamine, amphetamine, and hydrocodone, which is generic for Vicodin. Gillis testified regarding the effects of all three drugs on the human body. He told the jury that methamphetamine is a very strong stimulant, 100 or 1000 times stronger than caffeine. It increases the heart rate, body temperature, and breathing rates.

Defense Case

Defendant testified. She told the jury she was 35 years old and had used methamphetamine for 20 years. She has ADHD (Attention Deficit Hyperactivity Disorder) and is bipolar. She was diagnosed as bipolar at age 23, in 1994 or 1995. She was diagnosed with ADHD in 2001. The last time she took prescription medication for her bipolar condition was six or seven months before her arrest. She had not been properly medicated for her ADHD for a year. Defendant told the jury she is impulsive and does spontaneous, crazy things when she is not on her bipolar medications. She uses methamphetamine to help her think more clearly and focus, to eliminate racing thoughts, and to insure she is not impulsive. She believes methamphetamine alleviates the symptoms of her mental problems.

Since her conviction for possessing methamphetamine for sale in 2001, defendant has tried to get clean and sober. Although she has completed three rehabilitation programs, she has continued to use off and on and has relapsed more than once since 2001. She relapsed about two months before her arrest in this case.

During the month prior to her arrest, a former boyfriend named Pancho gave her methamphetamine four times. He gave her seven grams each time. She got the large baggie Officer Castillo found in her pocket from Pancho around 4:00 p.m. on June 21, 2006, the day she was arrested. She last used the drug at 9:30 p.m. that night. She used it at a friends house and shared it with her friend and her sons father.

Defendant started taking Vicodin three days before her arrest after having some dental work done. She had a prescription for the Vicodin. She took it as needed for pain. Defendant could not recall whether she felt the effects of the Vicodin while driving.

At the time of her arrest, she carried her drugs with her because she had a 17-year-old daughter and a toddler at home and was worried about the kids having access to the methamphetamine. Defendant told the jury that she did not use methamphetamine around her son and that he was not present when she used the drug at her friends house the night she was arrested. Defendant could not recall what time she picked up her toddler that night. The child had been with her teen-aged daughter.

Defendant told the jury she pleaded guilty to possession of methamphetamine for sale in 1998 and 2001. However, she denied possessing the drug for sale in 2006.

Halle Weingarten, a forensic criminologist who worked for the Santa Clara County crime lab for 22 years and now does consulting work, testified on behalf of defendant. We shall discuss her testimony further.

Discussion

Standard of Review

When addressing a challenge to the sufficiency of the evidence supporting a criminal conviction, we examine the entire record in the light most favorable to the verdict to determine whether it discloses substantial evidenceevidence that is reasonable, credible and of solid valuefrom which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054, citing People v. Johnson (1980) 26 Cal.3d 557, 578.) In making this determination, we do not reweigh the evidence, resolve conflicts in the evidence, draw inferences contrary to the verdict, or reevaluate the credibility of witnesses. (See People v. Jones (1990) 51 Cal.3d 294, 314.) Moreover, because it is the jury, not the reviewing court, that must be convinced of the defendants guilt beyond a reasonable doubt, we are bound to sustain a conviction that is supported by only circumstantial evidence, even if that evidence is also reasonably susceptible of an interpretation that suggests innocence. (People v. Bean (1988) 46 Cal.3d 919, 932-933.) (People v. Little (2004) 115 Cal.App.4th 766, 771 (Little).)

Penal Code section 273a, subdivision (b) provides, Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor. (Italics added.)

Defendant argues the prosecutions child endangerment case was based on two theories: (1) defendant endangered her child by driving while impaired by controlled substances and (2) defendant used controlled substances around her child. She contends there was insufficient evidence to support either theory.

With regard to the first theory, defendant contends that driving under the influence of hydrocodone is not prohibited, the patient is just warned that his or her driving skills may be affected. She asserts that there is no evidence that her driving skills were impaired and that the experts had testified that methamphetamine could actually improve ones driving skills. She argues that the officer did not observe any problems with her driving and that she was not charged with driving under the influence.

With regard to the second theory, defendant argues that unlike the defendants in Little, supra, 115 Cal.App.4th 766 [substantial evidence supported conviction for child endangerment where defendant left baby alone on three foot high bed in a house full of animal feces, rotten food and vermin where the defendant and others used drugs] and People v. Toney (1999) 76 Cal.App.4th 618 [substantial evidence supported conviction for child endangerment where defendant set up a methamphetamine lab in the home], she was not a recreational drug user, did not operate a drug lab in her home, and there was no evidence persons under the influence of controlled substances were w[a]ndering around the house. Defendant argues she used methamphetamine to treat her bipolar condition and ADHD and there was no evidence she used drugs around her child.

There was substantial evidence that defendant was a heavy methamphetamine user and that she was impaired when she was pulled over. Officer John Barg testified that the average user uses methamphetamine one to two times per day and that a heavy user would ingest the drug two to three times per day. Defendant testified that she used the drug three times per day. She used a half a gram to one and a half grams per day. Weingarten testified that someone who uses one to two grams per day, like defendant did, is a heavy user and that the amount defendant used per week exhibited a heavy usage pattern. She also stated that the results of defendants blood test were reasonably significant and higher than average levels she had seen reported at the crime lab. Barg testified that the crystal methamphetamine defendant used was more potent than powdered methamphetamine.

According to Barg, a methamphetamine high can last six to eight hours. Defendant testified that her high typically lasted 8 hours. Defendant last used methamphetamine at 9:30 p.m., one hour and forty minutes before she was pulled over by Officer Castillo.

Officer Castillo observed signs that defendant was under the influence of the drug. She was having trouble standing still and kept moving her hands. She was fidgeting and talking very rapidly. She appeared very nervous and her pupils were dilated. She had a hard time understanding simple questions and asked the officer to repeat himself.

Prosecution expert Gillis testified that methamphetamine is associated with higher risk taking with driving, including running red lights, making unsafe passes and driving at unsafe speeds. However, it does not necessarily impair driving. There is no set limit in the law, like there is with alcohol, which defines when a person is impaired by methamphetamine. Observable symptoms of methamphetamine use last eight to 12 hours. Methamphetamine can cause hallucinations or delusions.

Gillis testified that hydrocodone, on the other hand, is a narcotic, an opiate, and is used as a pain killer. Its side effects include sedation, sluggishness, clouded thoughts, and slower heart and breathing rates. Hydrocodone can affect driving; most prescriptions come with warnings regarding driving.

According to Gillis, it is hard to predict how methamphetamine and hydrocodone will interact. It depends on the amount taken, the persons experience with the drugs, whether the drugs were taken at the same time or separately, and how they were ingested. The two drugs do not necessarily cancel each other out. It is common to see narcotic symptoms mixed with the stimulant symptoms.

When asked whether methamphetamine use can impair driving, defense expert Weingarten testified that it would depend on the dose and the tolerance of the individual. She explained that methamphetamine is a stimulant and counteracts fatigue. If the driver is fatigued, the drug might actually make him or her a better driver for a period of time. However, if someone takes enough of the drug that its effects exceed the tolerance level of the individual, one might see a very aggressive risk-taking behavior in driving and an impairment of driving. This aggressive risk-taking behavior can occur in someone who is using high doses relative to his or her tolerance. At very high doses, it can cause someone to become delusional. Over a period of 10 to 15 years, a person can develop a tolerance to the drug.

Both experts testified that up until a few years ago, the military used methamphetamine to keep pilots awake. According to Gillis, the doses were very small (two to five milligrams) were nowhere near the amount an abuser will use (50 milligrams). Defendant testified that she used half a gram (500 milligrams) to one and a half grams per day. She was using significantly more than the therapeutic amounts used to keep pilots awake.

The last time defendant took prescription medication for her bipolar condition was six or seven months prior to her arrest. She also told the jury she is impulsive and does spontaneous, crazy things when she is not on her bipolar medications.

In summary, there was substantial evidence that supported the jurys finding that defendant placed her child in a situation where his person or health may be endangered by driving under the influence of methamphetamine. (Pen. Code, 273a, subd. (b).) Defendant was a heavy methamphetamine user and had ingested the drug just an hour and 40 minutes before she was stopped by Officer Castillo. She knew the effects of the drug typically lasted eight hours and took it in combination with Vicodin shortly before driving. Officer Castillo observed signs that defendant was under the influence of the drug and both experts testified that someone under the influence of methamphetamine could engage in high or very aggressive risk-taking behavior with regard to driving. Rather than take her bipolar medications, defendant elected to self-medicate with methamphetamine. For these reasons, we conclude that there was substantial evidence to support the jurys conclusion that defendant endangered her child by driving while impaired by controlled substances. We therefore shall not reach defendants contention that there was insufficient evidence to support the conclusion that defendant used controlled substances around her child.

Disposition

The judgment is affirmed.

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McAdams, J.

WE CONCUR:

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Bamattre-Manoukian, Acting P.J.

________________________________

Mihara, J.

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[1] Unless otherwise stated, all further statutory references are to the Health and Safety Code.

[2] The prosecution charged defendant with one count of felony child endangerment (Pen. Code, 273a, subd. (a)) and one felony count of possession of methamphetamine for sale ( 11378). On those counts, the jury convicted her of the lesser included offenses of misdemeanor child endangerment (Pen. Code, 273a, subd. (b)) and simple possession of a controlled substance ( 11377, subd. (a)).