Opinion
D073510
08-15-2018
In re MICHAEL S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. MICHAEL S., Defendant and Appellant.
Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. J240010) APPEAL from an order of the Superior Court of San Diego County, David M. Rubin, Judge. Affirmed. Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
Following a contested jurisdictional hearing, the juvenile court made a true finding that Michael S. (the Minor) drove a vehicle while under the influence of a drug, in violation of Vehicle Code section 23152, subdivision (f). The Minor was placed on probation.
All further statutory references are to the Vehicle Code unless otherwise specified. --------
The Minor appeals contending the way in which the petition was written, he was charged with driving under the influence of drugs and alcohol or the combined influence of both, although the code section cited referred specifically to driving under the influence of a drug. Based on his contention the prosecution was required to prove both the presence of drugs and alcohol, he argues the evidence is insufficient because the evidence was that he had used marijuana, not alcohol. The Minor did not challenge the pleadings in the juvenile court. There is no hint in the record of any confusion as to the alleged intoxicating substance which formed the basis of the charge. The prosecution did plead the violation in the conjunctive, i.e., drugs and alcohol, a standard practice. As we will discuss below, the prosecution was required to prove the Minor's driving was impaired under the influence of either drugs or alcohol. In this case, the blood tests showed only the presence of marijuana; the Minor admitted the use of marijuana; and the entire case was tried on the question of whether there was sufficient marijuana in his system to prove it impaired his ability to drive. We will affirm the true finding and the dispositional order.
STATEMENT OF FACTS
The Minor's challenge to the sufficiency of the evidence is based solely on his claim the prosecution was required to prove he had both alcohol and drugs in his system at the time of driving. Otherwise, he does not challenge the admissibility or sufficiency of the evidence to prove he was under the influence of marijuana at that time. Accordingly, we will adopt the People's summary of the facts to provide background for the discussion which follows.
Around 2:00 a.m. on March 18, 2017, California Highway Patrol Officer Salvador Castro, a trained drug recognition expert, saw Minor driving on the 78 freeway in San Diego County. Minor was swerving between lanes, weaving off onto the shoulder, and applying his brakes for no reason. At one point, Officer Castro estimated Minor was travelling 83 miles per hour. Officer Castro initiated a traffic stop and approached Minor's vehicle. Minor's eyes were bloodshot, his pupils were dilated and his speech was slow and slurred. Officer Castro performed a horizontal gaze nystagmus test, which showed a lack of convergence in Minor's left eye—a symptom that is consistent with marijuana usage. Officer Castro then conducted a series of field sobriety tests, on which Minor did not perform well. Minor admitted having "one snap of marijuana" at 5:00 p.m. Officer Castro determined he was under the influence of marijuana.
Officer Castro transported Minor to the police station and performed additional sobriety tests to assess whether Minor was under the influence of a drug. Again, Minor's performance on the sobriety tests was consistent with being under the influence of marijuana. Minor again admitted ingesting marijuana earlier that evening. Based on Minor's driving, his performance on the sobriety tests, and his admissions, Officer Castro opined that Minor was under the influence of marijuana while driving.
The parties stipulated that blood drawn from Minor shortly after his arrest on March 18 was tested and revealed the presence of marijuana. The forensic toxicologist who tested Minor's blood testified about the mental and physical effects of marijuana, and the levels at which such effects are expected. Based on a hypothetical tracking the facts of this case, the toxicologist opined that Minor was driving under the influence of marijuana.
The defense presented an expert witness to show Minor was not impaired such that he could not safely operate a vehicle. Defense called a forensic chemist who testified that in his opinion, Minor was not under the influence of marijuana while driving.
DISCUSSION
Section 23152 defines the crime of driving a vehicle under the influence of intoxicating substances. The section provides, in part: "(a) It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle. [¶] . . . [¶] (f) It is unlawful for a person who is under the influence of any drug to drive a vehicle. [¶] (g) It is unlawful for a person who is under the combined influence of any alcoholic beverage and drug to drive a vehicle."
A. Background
The way the petitions have been written in this case is interesting. The original petition under Welfare and Institutions Code section 602 alleged that the Minor was "driving under the influence of a drug, in violation of Vehicle Code section 23152, subdivision (a)." As we have shown above, subdivision (a) refers to alcohol, not drugs, but the wording of the charge referred only to a drug.
In the amended petition, which is the operative pleading in this case, the prosecution alleged the Minor drove a vehicle "while under the influence of an alcoholic beverage and a drug and under their combined influence . . . in violation of Vehicle Code section 23152, subd. (f)." Once again, the prosecution did not track the language of the section. Section 23152, subdivision (f) applies only to intoxication from a drug, not a combination of a drug and alcohol. The offense of driving under the influence of a drug and alcohol is defined in subdivision (g). It would have been helpful if the prosecution had more carefully reviewed its pleadings. However, Minor's counsel never complained, and the record is crystal clear that the parties all focused on the allegation the Minor was only under the influence of marijuana and that no alcohol was involved. The issue contested at the jurisdictional hearing was not what the alleged intoxicating substance might have been, but whether there was enough proof that the marijuana ingested by the Minor caused him to drive under its influence. Thus, there was no confusion, or failure to provide the Minor with the basis of the charged violation. The less than careful drafting of the petitions did not disadvantage the Minor on this record, nor did it create a requirement that the prosecution prove both alcohol and drugs contributed to the Minor's intoxication.
B. Analysis
Where a crime can be committed in more than one way, the prosecution may plead the various ways of committing the crime in the conjunctive. Although there is a statute cited, the wording of the pleading may create the availability of an instruction on lesser included offenses that would not otherwise be a lesser included offense based only on the elements in the statute. (People v. Smith (2013) 57 Cal.4th 232, 242-243 (Smith).)
In her concurring opinion in Smith, Justice Corrigan explained that the use of conjunctive pleading does not create a "fact" that the prosecution must prove, i.e., the allegation of several ways in which the crime might be committed, the prosecution does not create an additional element of the offense:
"[T]he prosecution, by pleading the statute in the conjunctive, puts the defendant on notice that he may face conviction under either theory. The prosecution does not, however, assume the burden of proving each theory. In re Bushman (1970) 1 Cal.3d 767 held that '[w]hen a statute such as Penal Code section 415 lists several acts in the disjunctive, any one of which constitutes an offense, the complaint, in alleging more than one of such acts, should do so in the conjunctive to avoid uncertainty. [Citations.] Merely because the complaint is phrased in the conjunctive, however, does not prevent a trier of fact from convicting a defendant if the evidence proves only one of the alleged acts.' [Citations.] Accordingly, conjunctive pleading does not necessitate conjunctive proof. It therefore differs from factual allegations ' " 'describing the offense in such a way that if committed as specified the lesser offense is necessarily committed.' [Citation.]" ' [Citations.]" (Smith, supra, 57 Cal.4th at p. 248 (conc. opn. of Corrigan, J.).)
The Minor relies on our decision in People v. Cady (2016) 7 Cal.App.5th 134, for the proposition that driving under the influence of alcohol in the felony drunk driving statute (§ 23153) is not a lesser included offense of driving under the combined influence of drugs and alcohol. Our court there dealt with a claim there should have been a lesser included offense instruction in that case. We rejected the argument that driving under the influence of alcohol was a lesser offense of driving under the influence of both drugs and alcohol. (Cady, supra, at p. 139.) Somehow, the Minor extracts the principle that in section 23152, the misdemeanor statute, sections (a) and (f) are somehow separate offenses and thus the court could not enter a true finding on only driving under the influence of a drug. Of, course, our opinion in Cady had nothing to do with section 23152. None of the subdivisions of that statute are lesser included offenses of the other. The statute defines one crime which can be committed in different ways, under the influence of different substances. The conjunctive pleading system, as outlined in Smith, supra, 57 Cal.4th 232, does not prohibit a conviction on one of the theories pleaded and does not create a new element of the offense requiring both alternatives to be proved.
Finally, the remaining question is whether the Minor received adequate notice of the charge. As we have noted, the amended pleading alleged violation of section 23152, subdivision (f), driving under the influence of a drug. As the court said in People v. Reed (2006) 38 Cal.4th 1224, 1231: "Courts should consider the statutory elements and accusatory pleading in deciding whether a defendant received notice, and therefore may be convicted, of an uncharged crime, but only the statutory elements in deciding whether a defendant may be convicted of multiple charged crimes."
As we have observed, it has been clear from the outset of the juvenile proceedings that the Minor was alleged to have driven under the influence of marijuana. That is what the plea bargain discussions were about and was the focus of the evidence at the jurisdictional hearing. The Minor's contentions he was denied due process and that the elements of the offense were not proved are not supported in this record.
DISPOSITION
The true finding on the petition and the disposition order are affirmed.
HUFFMAN, Acting P. J. WE CONCUR: HALLER, J. O'ROURKE, J.