Opinion
F040320.
7-7-2003
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL GARZA GONZALEZ, Defendant and Appellant.
David L. Saine, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Jeffrey D. Firestone and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
PROCEDURAL HISTORY
A criminal complaint filed on February 14, 2001, in the Kern Superior Court, charged appellant, Miguel Garza Gonzalez, with count I, felony driving of a vehicle while under the influence of alcohol or drugs, having previously suffered a felony conviction under Vehicle Code section 23153 , subdivision (b) within 10 years. (Veh. Code, §§ 23152, subd. (a), 23550.5.) Appellant was also charged in count II with a misdemeanor violation of Health and Safety Code section 11550, subdivision (a), using or being under the influence of a controlled substance.
Appended to the count I felony driving under the influence (DUI) charge were several sentencing enhancement allegations; a prior conviction for first degree burglary (Pen. Code, § 460, subd. (a)); the prior DUI with bodily injury (Veh. Code, § 23153, subd. (b)); both of these allegations were charged as strike offenses (Pen. Code, §§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)). In addition, both convictions were also alleged to have resulted in separate prison terms pursuant to Penal Code 667.5, subdivision (b).
Both the information and the probation report indicate appellants conviction was for violation of Penal Code section 460.1, a now non-existent Penal Code section. However, based upon appellants admission of this prior conviction it was for first degree burglary. Thus the reference is undoubtedly to the former first degree burglary designation, Penal Code section 460, subdivision 1.
On March 29, 2001, just prior to the conclusion of the preliminary hearing, the prosecutor made an oral motion to amend the complaint to include a third count, a violation of Vehicle Code section 23152, subdivision (c), again alleging the prior DUI conviction and the sentencing enhancement allegations. The court granted the prosecutors motion to amend and held appellant to answer on the felony charges; the misdemeanor charge was certified to the superior court for trial.
On April 12, 2001, the information was filed charging appellant with felony DUI (count I), the misdemeanor of being under the influence (count II), and driving a vehicle while addicted to any drug (count III). Again, the above-noted enhancement allegations were appended to the two felony counts, ostensibly making appellant subject to a sentence of 25 years to life under the three strikes law. Appellant was arraigned on April 12, 2001, entering pleas of not guilty to all charges, and denying the appended allegations.
On December 17, 2001, appellants jury trial commenced. During motions in limine the trial court inter alia granted appellants motion to bifurcate count III from counts I and II. On December 18, 2001, a mistrial was declared as to all counts due to a violation of the courts motion in limine order bifurcating count III.
Appellants second trial commenced on February 27, 2002. Appellants motion to bifurcate count III was at this time denied. After a three day trial, the jury returned their verdicts, finding appellant not guilty on count I and count II. The jury found appellant guilty on count III unlawfully driving while addicted to drugs. (Veh. Code, § 23152, subd. (c).) Appellant thereafter waived his right to a jury or court trial on the prior convictions and prison term allegations, admitting them in open court.
On March 27, 2002, after denying appellants motions for a new trial, to set aside the verdict in furtherance of justice, or reduce the offense to a misdemeanor, the court advised appellants trial counsel it had decided to strike both of appellants prior strikes, for purposes of sentencing under the three strikes law.
Appellants motions raised the sufficiency of the evidence to support the conviction as well as a constitutional challenge to the validity of the statute under which he was convicted. Appellant also requested the court exercise its discretion under Penal Code section 17, subdivision (b) and reduce the conviction to a misdemeanor.
Judge Randall struck both of appellants strikes, stating:
"Since the year — since the three strikes law was adopted, I have only once before stricken both strikes and that was a case very different from this, it was a man who had [a] pretty violent youth, but he was in his sixties and 30 years had passed since his last strike. And he was in possession of a set of nunchaku is what he had. I did strike both strikes. In fact, I put that man on probation. But other than that, three or four times I have stricken a strike. It is unusual for me to strike both strikes. [P] This is a case, however, where I believe it is appropriate to strike both strikes. And Im going to say why, because Im required to, and because it is appropriate that I do so. We are talking Romero [People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 917 P.2d 628], Williams [People v. Williams (1998) 17 Cal.4th 148, 948 P.2d 429] and Garcia [People v. Garcia (1999) 20 Cal.4th 490, 976 P.2d 831]. [P]. . .[P]
"I could never remember the third case. Williams a hard standard to follow. I have got to confess, I have read that opinion a couple of times and still dont fully understand it. But, certainly the defendants record does not — would not justify striking strikes. Nothing about his record that would justify striking strikes, particularly given that his last strike was a 1994 conviction in which people were killed. Albeit he was driving under the influence at the time of alcohol. [P] The reason that I am going to strike these strikes are this, first of all, if you analyze the defendants record, he had juvenile burglary in 1979, a vehicle burglary in 1980, and he had — then he had a burglary in 1981, a second degree burglary in 1981. So 20 years ago he committed three burglaries. After that he had a lot of 14601s, a lot of 11550s. In 1984, he had a 666 and his next felony was in 1992. And obviously, from looking at the record, he has been using drugs all this time. He does not, therefore, have an extensive criminal record, but he has a pretty significant criminal record. And very significant is the 1994 DUI with death conviction. Also, of course, he was on probation for being under the influence of drugs in two probations at the time that he picked up this offense. And he obviously violated probation by using heroin at least two days before, by his own admission two days before he was stopped. [P] Balanced against this, however, is the fact that this is a status crime. I have nothing against status crimes. And I have already indicated why I think the legislature adopted a status crime law with regard to driving while addicted. However, in this case, it was pretty obvious to me from the evidence that the defendant was not driving under the influence the night in question, and it was pretty obvious to me that the defendants status on that [instance] did not create a public safety hazard. And that I think justifies my finding that this is not a type of crime which falls within the purview of the three strikes law. And Im not making this decision based upon these two recent Ninth Circuit Court of Appeal, Im pretty confident the Supreme Court will reverse those because they are totally inconsistent with a case out of Texas that the Supreme Court decided 20 years ago. And it is pretty obvious to me that there are a lot of crimes that are committed that arent strike crimes that justify the imposition of three strike sentences, including many 666s. Having said that though, my finding is based primarily on the nature of this offense. I am going to strike the two strikes. Not going to reduce the case in any other way."
The court, finding circumstances in aggravation, imposed the upper term of three years. (Pen. Code, § 18.) This sentence was further enhanced by an additional two years for appellants two separate prior prison terms (Pen. Code, § 667.5, subd. (b)), resulting in an aggregate term of five years imprisonment. The court also imposed a 13-day sentence to run concurrently with count III, in lieu of a $ 390 fine, and imposed two $ 200 restitution fines under Penal Code sections 1202.4, subdivision (b) and 1202.45, suspending the latter pending successful completion of parole. Appellant was also advised that his privilege to operate a motor vehicle would be suspended for a period of four years, and that appellant would have to complete either an 18-month or 30-month program in order to be eligible for a California drivers license.
This timely appeal followed.
STATEMENT OF FACTS
As appellant was acquitted of the offenses of driving while under the influence, and being under the influence of a controlled substance, our recitation of the facts will focus upon the evidence presented in support of his conviction for driving while addicted to any drug.
On February 9, 2001, Deputy Sheriff Dustin Downey of the Kern County Sheriffs Department, made a traffic stop on appellant because the license plate light on his vehicle was not operating. Downey also admitted he stopped appellant because he wanted to conduct a parole search of appellant. After stopping appellant, Downey had appellant exit his vehicle and step up onto the sidewalk. Downey noted appellants pupils were constricted, which based upon his training and experience, could indicate appellant was under the influence of heroin. During conversation with appellant, appellant admitted to Downey he would come up "dirty" on a blood or urine test. Downey testified appellant also said, "he hasnt used any heroin in the last couple days, which is why he is getting sick right now." However, Downey testified it did not appear that appellant was suffering from any of the physical symptoms of heroin withdrawal. Downey believing from appellants constricted pupils and his statement, appellant was under the influence of heroin arrested him.
Appellant was transported to the McFarland substation, where Downey did a "drug influence evaluation" on appellant, which included tests, completion of a drug influence worksheet and obtaining a urine sample. Downey administered a Rhomberg exam, which required appellant to close his eyes while tilting his head back and estimate the passage of 30 seconds. While appellant was performing this test, Downey was also looking for other signs of drug use such as, eyelid tremors, finger tremors, and body sway. Downey was also checking appellants nasal cavity to see if there was any "white residue," which could indicate appellant had snorted narcotics. Downey noted on the worksheet the presence of eyelid tremors during the Rhomberg test. Appellant estimated 30 seconds "as being 25," which, according to Downey, was not indicative of someone being under the influence of heroin.
The laboratory results of the urine sample indicated the presence of .30 micrograms per milliliter of codeine; .11 micrograms per milliliter of monoacetylmorphine (a heroin metabolite); benzoylecgonine (a cocaine metabolite) at a "very strong" level; and morphine (a metabolite of heroin) at a "very strong" level. However, from the presence of these metabolites in the urine sample it could not be determined how recently appellant had used the substances.
Downey next took appellants pulse, which he recorded as being 88 beats per minute, which Downey admitted was also not consistent with being under the influence of heroin. Although the "drug influence work sheet" Downey was using had boxes for body temperature, blood pressure, respiration, and muscle tone, Downey did not check appellant for these things. Downey explained he did not have the equipment for taking appellants temperature or blood pressure. Downey did believe that low blood pressure could be an indication someone was under the influence of heroin. He was not aware of the significance of a persons body temperature, respiration rate, or muscle tone, in determining whether someone was under the influence of heroin, and had not been taught they had any significance in evaluating whether a person was under the influence of heroin.
Downey also evaluated appellants pupils, by comparing their reaction to light and the absence of light, gauging the pupils reactions to a "pupillometer" card. In room light, appellants pupils were 3 millimeters; in darkness they were 4 millimeters; in indirect light they were 3.5 millimeters; appellants pupils went from 3.5 millimeters in darkness to 2.0 millimeters when Downey shined a light directly into appellants eyes. When asked, appellant indicated he was not under the care of a doctor or dentist; was not taking any medications or drugs; was not "sick" or "injured;" and had no physical defects. Downey examined appellants arms looking for injection sites, noting that "on his right arm he had an area over a vein that was red, it was swollen, and it had several injection sites that were scabbed over, appeared to be old or — not old, but within the last week injection sites. And then below that on his forearm he had an area where it appeared to be one fresh injection site," but he could not say how recently appellant may have injected at that site. Downeys opinion on the age of the injection sites was based upon their being scabbed over. Downey was not aware of how long the effects of heroin would last.
The card has numerous black circles on it which represent various pupil sizes.
California Highway Patrol Officer Amedee Irey, testified as a drug recognition expert, which is a person trained in evaluating persons who are, or believed to be, under the influence of drugs. Irey indicated that he uses a 12-step process in evaluating a person to determine whether they are under the influence. Irey opined that Downeys evaluation of appellant was consistent with a person under the influence of heroin and cocaine, and in his opinion appellant would have been impaired and should not have been operating a motor vehicle.
Deputy Sheriff Mark Christopher Downs, testified to his contact with appellant which had occurred on February 4, 2001. Downs noted appellants pupils were constricted, and that appellants "right inner elbow joint ... had evidence of trauma from IV drug use." Downs indicated that based on his familiarity with appellant, appellant was "nicer to me when he is under the influence." Downs arrested appellant for being under the influence of heroin. Appellant was transported to the McFarland substation, where Downs conducted a drug evaluation on appellant. In response to questioning, appellant admitted to Downs he had been "staying off of heroin for several months," but had relapsed and was using heroin again. Appellant told Downs within the last hour he had injected a "nickel" or $ 5 worth of tar heroin into his right inner elbow. Downs noted the presence of several injection sites on appellants right arm, three of which appeared to be recent. Downs believed they were between 12 to 36 hours old. Downs performed an evaluation, using the "under the influence worksheet." Appellant indicated he was not sick or injured; was not an epileptic or diabetic; and was not under the care of doctor or dentist. When asked if he was taking any drugs or medication, appellant admitted he was taking heroin. Appellants pupils were fixed at 2.0 millimeters, which was consistent with the use of heroin. A urine sample was obtained from appellant and submitted for analysis. Downs did not have him give an estimate of 30 seconds while conducting the Rhomberg test, but did note that appellant exhibited about a one-inch sway during the test. Downs noted appellants muscle tone was flaccid, which Downs stated was consistent with someone under the influence of heroin.
This was the first occasion Downs had ever testified as an expert with regard to a person being under the influence of heroin.
Downs also testified to a prior contact he had with appellant on March 15, 2000. At that time appellant was stopped while driving and arrested for being under the influence of heroin. Appellants pupils were fixed at 1.5 millimeters, and he had recent injection sites on his arm. Appellant told Downs he had injected $ 3 worth of tar heroin at 3:00 p.m. that day, due to recent problems at home. Downs later performed a drug influence evaluation of appellant, including administering the Rhomberg test. Appellant estimated that 30 seconds had elapsed within 28 seconds. In Downss opinion this was consistent with being under the influence of heroin. Appellant also exhibited a one to two inch sway during the Rhomberg test. Appellants speech was slower than when he was not under the influence of heroin. Downs marked on the drug influence evaluation worksheet that appellants respiration was "deep." However, Downs was unable to recall why he had checked that box, other than he normally would observe how a person was breathing: "And I wouldnt say it was anything out of the real ordinary. He was able to breathe okay, taking normal deep breaths." Downs did not take appellants temperature or blood pressure, nor check his respirations per minute. When questioned about the quantity of $ 3 worth of heroin, Downs stated: "It has usually been sold in $ 5.00 amounts. That varying amount of heroin can change though, it has changed." He assumed that when appellant said he had used $ 3 worth he had split "a nickel bag of heroin." A nickel bag, or $ 5 worth of heroin, was the lowest quantity of heroin sold on the streets. Downs testified that tearing of the eyes was one of the symptoms of withdrawal from heroin, but is also something you could see in a person who was under the influence of heroin. Downs testified that not everyone under the influence of heroin will exhibit the same signs or symptoms. There can be numerous factors which would alter the signs or symptoms, including the presence of other drugs, alcohol, or legal medications. As for heroin, some of the factors which could alter the signs and symptoms exhibited are: "[a] tolerance to the drug, person who is an experienced user would show less physical symptomatology than a person who is less experienced with the drug. Same as before, other drugs on board would have an effect." Downs admitted the drug influence evaluation was not a diagnostic test.
Deputy Francis Moore testified to his contact with appellant on March 5, 1999. Moore had arrived at a residence where he came into contact with appellant, noting "his eyelids were kind of droopy," and his pupils were slow to react to the light of a small penlight as Moore moved the light across appellants eyes. Moore believed appellant was under the influence of heroin. According to Moore appellant told him: "That he was a heroin addict and that he used about three times a week and supplemented the heroin with the methadone treatment he was receiving. The methadone wasnt enough, and so he would use the heroin to offset the methadone treatment." Moore admitted he had not written the words "addict" or "addiction" in his report, and actually wrote down in his report, after asking appellant about some hypodermic syringes: "he told me that they belonged to him due to his heroin habit." Appellant indicated he "used approximately three times a week." When asked whether appellant ever said he was addicted, Moore said, "I believe he said that he was addicted sometime through the conversation, but I didnt write the word addict or addicted in there." Moore said that based upon his conversation with appellant he would not say there was a difference between a habit or an addiction, considering the amount appellant indicated he was using to supplement his methadone, and appellants saving of the hypodermic syringes. Moore did not discuss whether appellant was increasing his dosage, but believed appellant indicated he was "using just to stay normal." "They dont get that euphoric feeling. They just have to have the drug to get through the day and to be able to function in the normal way." Moore did not note that appellant was suffering from any withdrawal symptoms.
Deputy Sheriff Mark Petersen testified to his contact with appellant on October 9, 1992. Petersen immediately noticed that appellants pupils were constricted, his eyelids were "droopy," and he had fresh injection sites as well as old injection sites on his arm. Appellant told Petersen he was using $ 10 per day of heroin, and had injected himself an hour before Petersen came into contact with him. Petersen did not know how much $ 10 worth of heroin was in 1992. Appellant did not tell Petersen he was having to increase his dosage in order to obtain the same effects from the heroin. Petersen did not notice any signs appellant was suffering from withdrawals.
George Girgis, M.D., the chief medical director for Aegis Medical System, which operates two heroin addiction treatment clinics in Bakersfield, testified as an expert on heroin addiction. Dr. Girgis treats approximately 500 heroin addicts at his clinics. Dr. Girgis examines the patients upon their admission to the clinic, and then follows up with them during the course of their treatment.
Heroin was developed in the 1890s as a semisynthetic derived from morphine. Heroin and other opiates, attaches to receptors in the brain causing the release of endorphins. Unfortunately, heroin and opiates destroy the receptors, making them require larger and larger doses to cause the release of the endorphins. Heroin users will often use heroin in conjunction with other drugs, most notably cocaine or methamphetamine. Heroin provides a euphoric effect, but also causes drowsiness, and the use of cocaine or methamphetamine with the heroin will keep the user awake.
Heroin addicts suffering from withdrawal will exhibit various symptoms, including: dilated pupils; sweating; runny nose; agitation; increased respiration; increased heart rate; tiredness; watery eyes; yawning; aching pains; nausea; and vomiting. These symptoms can begin to manifest themselves after four or six hours if the addict quits taking heroin. Someone who had used heroin but did not suffer the withdrawal symptoms after discontinuing its use would not be addicted. These symptoms can be quite severe, and will last for a few days; within the first 24 to 48 hours the person will be unable to sleep. Dr. Girgis may treat those suffering withdrawals with Benzodiazepine or Valium to calm them down, and which will also allow them to sleep. The severity of the symptoms is dependent upon how long the individual has been using heroin, and the frequency of their use. It is not possible for a person who is an addict not to show signs of withdrawal if they quit taking heroin, but it is a question of severity depending upon the level of their addiction. An addict, who never quits using heroin will never go through the physical withdrawal symptoms.
The prosecutor read CALJIC No. 16.831.1, the definition of addiction:
"... One, that a person has become emotionally dependent on the drug in the sense that he, the person, experiences a compulsive need to continue its use; two, that a person has developed a tolerance to the effects of the drug and therefore requires larger and more potent doses; and three, that person has become physically dependent on such drug so as to suffer withdrawal symptoms if deprived of the dosage."
Dr. Girgis agreed that this is the definition of an addict, and would apply to a person who was addicted to heroin.
To build up an emotional dependence to heroin requires repeated use, and in Dr. Girgiss opinion at least a continual use over a 17-day period. A tolerance to heroin develops with repeated and consecutive use. The user will have to increase the dosage in order to obtain the same euphoric effect. In Dr. Girgiss opinion a tolerance will develop if the person is using heroin two or three times per day for a full week: "I can say yes, now I gonna feel it. If I cut down or I didnt get the dose." Another factor in developing a tolerance to heroin is the purity of heroin being used. Dr. Girgis explained that even if a person is using two times a day, but goes a day between uses, they will still eventually build up a tolerance, although it might take more than a week to do so. In response to the prosecutors question whether someone using heroin two or three times a week over a nine-year period would develop a tolerance to its effect, Dr. Girgis testified:
"Sure, you know, nine years means he is addicted to it."
The prosecutor asked Dr. Girgis to offer an opinion, based upon the following hypothetical, as to whether that person was or was not an addict:
"[MR. RAMIREZ]: If you were to find out that a person on February 9th of last year were to have been evaluated for being under the influence, and a test would have come back positive for high levels of morphine and high levels of cocaine, and that four days prior to that, on February 4th of last year, a person was found to be under the influence —[P] ... [P]
"And four days earlier than that, on February 4th, the person was found to be under the influence of heroin, saying that they were using a nickel a day, and that in March of 2000, the same person admitted to using $ 3.00 worth of heroin — [P] ..." ... And then even prior to that, March 5th of 1999, a person was found to be under the influence of heroin again, and then also in 1992 found to be under the influence of heroin. Based on the definition that we have discussed here in court and those findings, would you give the opinion that that person was an addict?
"[DR. GIRGIS]: Yes. You know, because more than one time in different period, in different years was tested and was positive. That is, mean that was the test for sure, you know, is addict."
Upon this testimony and evidence the jury found appellant guilty of driving while addicted to any drug.
DISCUSSION
I.
CONSTITUTIONALITY OF VEHICLE CODE SECTION 23152, SUBDIVISION (c)
Appellant contends Vehicle Code section 23152, subdivision (c) facially violates his due process right, because it is unconstitutionally vague. He asserts the two phrases "addicted to" and "any drug" are overly vague, thus making the statute unconstitutional. Appellant further contends that no "firm consensus exists in the medical or legal community as to what constitutes being addicted to a drug." Appellant requests this court declare the statute to be unconstitutional because "the legal standard for addiction under section 23152[, subdivision (c)] is vague, impractical, out-dated, and inaccurate ...." In support of this latter theory, appellant cites to an appellate court case upon which the Supreme Court granted review, which review was later dismissed on May 11, 1995, and the matter remanded to the Court of Appeal, resulting in the case being deleted from the Official California Reports.
People v. Schade (review granted Sept. 15, 1994, H009896). Appellant should not have cited this case in his brief, nor may we consider the case for any proposition put forward by appellant. (Cal. Rules of Court, rules 976, 977; County of Los Angeles v. Surety Ins. Co. (1984) 152 Cal. App. 3d 16, 22, 199 Cal. Rptr. 351.)
Respondent refutes appellants challenge, asserting that both terms "addicted to" and "any drug" are neither vague nor overbroad, correctly pointing out that the Vehicle Code itself defines the term "drug" and that the term "addicted" is a "well-established legal term."
Standard of Review
"The void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." (Kolender v. Lawson (1983) 461 U.S. 352, 357, 75 L. Ed. 2d 903, 103 S. Ct. 1855;Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1106-1107, 892 P.2d 1145.) The United States Supreme Court recognized that the second element of this doctrine is "the more important aspect of the vagueness doctrine." (Kolender v. Lawson, supra, at p. 358.) In this respect the statute must clearly define the minimal guidelines of its enforcement by the government. (Ibid .)
"To satisfy the constitutional command, a statute must meet two basic requirements: (1) The statute must be sufficiently definite to provide adequate notice of the conduct proscribed; and (2) the statute must provide sufficiently definite guidelines for the police in order to prevent arbitrary and discriminatory enforcement. [Citations.] Only a reasonable degree of certainty is required, however. [Citation.] The analysis begins with the strong presumption that legislative enactments "must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears. [Citations.] A statute should be sufficiently certain so that a person may know what is prohibited thereby and what may be done without violating its provisions, but it cannot be held void for uncertainty if any reasonable and practical construction can be given to its language." [Citation.]" (Tobe v. City of Santa Ana, supra, 9 Cal.4th at pp. 1106-1107.)
In deciding the question presented by appellant, we examine not only the statutory language, but also its legislative history and case law which has construed the statute. This is so because the public is required to apprise themselves, not only of the statutes themselves, but also of legislative history and judicial interpretations. (People v. Heitzman (1994) 9 Cal.4th 189, 199-200, 886 P.2d 1229; Wainwright v. Stone (1973) 414 U.S. 21, 22-23, 38 L. Ed. 2d 179, 94 S. Ct. 190 [federal courts deciding question of constitutionality of state statute must examine statute in light of highest state courts interpretation].) When the Legislature adopts words that have been judicially defined the words are to be similarly construed in the new legislation. (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571-572, 888 P.2d 1268; Perry v. Jordan (1949) 34 Cal.2d 87, 93, 207 P.2d 47; City of Long Beach v. Payne (1935) 3 Cal.2d 184, 191, 44 P.2d 305.)
Additionally, "in order to succeed on a facial vagueness challenge to a legislative measure that does not threaten constitutionally protected conduct ... a party must do more than identify some instances in which the application of the statute may be uncertain or ambiguous; he must demonstrate that the law is impermissibly vague in all of its applications. (Italics added.) [Citation.]" (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1201, 246 Cal. Rptr. 629, 753 P.2d 585.) Appellants illicit use of narcotics is not constitutionally protected conduct. (Stanley v. Georgia (1969) 394 U.S. 557, 568, fn. 11, 22 L. Ed. 2d 542, 89 S. Ct. 1243; People v. Aguiar (1968) 257 Cal. App. 2d 597, 603, 65 Cal. Rptr. 171 [use of marijuana]; People v. Mistriel (1952) 110 Cal. App. 2d 110, 111-112, 241 P.2d 1050 [possession of marijuana]; Matter of Yun Quong (1911) 159 Cal. 508, 511-515, 114 P. 835 [possession of opium]; but see People v. Woody (1964) 61 Cal.2d 716, 727-728, 40 Cal. Rptr. 69, 394 P.2d 813 [use of peyote as part of Native Americans religious services].)
Fair Notice
Vehicle Code section 23152, subdivision (c) provides:
"It is unlawful for any person who is addicted to the use of any drug to drive a vehicle. This subdivision shall not apply to a person who is participating in a narcotic treatment program approved pursuant to Article 3 (commencing with Section 11875) of Chapter 1 of Part 3 of Division 10.5 of the Health and Safety Code." (Italics added.)
The original statute was enacted in 1919, as Vehicle Act section 17, which read, in pertinent part: "... no person who is an habitual user of narcotic drugs shall operate or drive a motor or other vehicle ...." (Stats. 1919, ch. 147, § 11, p. 214.)
In 1935 the Legislature adopted the Vehicle Code, enacting Vehicle Code section 506, which prohibited those persons who were "addicted to the use, ... of narcotic drugs" from driving a vehicle. (See Stats. 1935, ch. 27, p. 176; Stats. 1935, ch. 764, p. 2141.) In 1957 the statute (Veh. Code, § 506) was again amended, expanding the scope to include those addicted to narcotic drugs, amphetamines or any derivative thereof. (See Stats. 1957, ch. 2088, § 1, pp. 3711-3712.) In 1959, the Vehicle Code was repealed, and reenacted adding section 23105, which adopted the language of former Vehicle Code section 506. (See Stats. 1959, ch. 3, §§ 1, 2, pp. 1523, 1708.) In 1971, Vehicle Code section 23105 was amended to provide an exemption for those participating in a methadone maintenance program. (See Stats. 1971, ch. 363, § 4, p. 730.) The amendment was passed as an urgency statute:
"Methadone maintenance treatment programs are putting many heroin addicts on the road to a normal life. A drivers license is often a basic part of rehabilitation because it enables participants in these programs to drive and hold regular jobs. It is necessary that this act go into effect immediately in order to avoid the disastrous effects upon rehabilitation due to an inability to drive to work." (Stats. 1971, ch. 363, § 5, p. 730.)
In November of 1971 Vehicle Code section 23105 was repealed (Stats. 1971, ch. 1530, § 15, p. 3027). Vehicle Code section 23105 was reenacted again prohibiting those persons who are addicted to the use of "any drug" from driving a motor vehicle. (Stats. 1971, ch. 1530, § 16, pp. 3027-3028.)
In 1981, Vehicle Code section 23102 was renumbered to Vehicle Code section 23152. Vehicle Code section 23152, subdivision (b) prohibited driving a vehicle while addicted to the use of any drug. (Stats. 1981, ch. 940, § 12, p. 3567.) Also, as part of this legislation Vehicle Code section 23105 was repealed, and the language prohibiting driving while addicted was moved from subsection (b) to subdivision (c) of Vehicle Code section 23152. (Stats. 1981, ch. 940, §§ 18, 19, 33, pp. 3568, 3578.)
As part of the 1971 revision of the Vehicle Code, the Legislature added, for the first time, Vehicle Code section 312, defining the term "drug" as used in the Vehicle Code. (See Stats. 1971, ch. 1530, § 1, p. 3022.)
"The term drug 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 ability to drive a vehicle in the manner that an ordinarily prudent cautious man, in full possession of his faculties, using reasonable care, would drive a similar vehicle under like conditions." (Veh. Code, § 312, italics added.)
The definition of drugs, as used in the Vehicle Code, was thus defined by the Legislature 30 years prior to appellants offense. Despite appellants protestations to the contrary, the term "any drug" does not include within its net substances which do not have any effect upon the "nervous system, brain or muscles," which would impair a persons ability to safely operate a motor vehicle. Appellants attempts to equate users of other drugs, such as Viagra or nicotine, with the symptoms of addiction necessary to sustain a conviction for violating Vehicle Code section 23152, subdivision (c) is not supported, unless the use of those substances falls within the definition of drug as used within the Vehicle Code.
For example, in People v. Olive (2001) 92 Cal.App.4th Supp. 21, the appellate department of the superior court reversed the trial courts ruling dismissing a misdemeanor prosecution for driving under the influence. The defendant challenged his prosecution for driving while under the influence of kava, contending kava was not specifically named as a drug within Vehicle Code section 23152 and therefore he could not be prosecuted for violating Vehicle Code section 23152, subdivision (a). The court held that the term "drug" as used in Vehicle Code section 23152, subdivision (a) was defined by Vehicle Code section 312, and thus did not render the term, as used in Vehicle Code section 23152, unconstitutionally vague. (People v. Olive, supra, at pp. Supp. 26-27.)
Additionally, it is not simply whether the substances consumed are addictive, even within the meaning of People v. ONeil (1965) 62 Cal.2d 748, 752-753, 44 Cal. Rptr. 320, 401 P.2d 928, but whether those substances also qualify as a drug as defined by Vehicle Code section 312. Officer Ireys testimony on the effects of a combination of heroin and cocaine on an individual and how it impairs their ability to safely operate a motor vehicle clearly brought heroin within this definition.
"Well, before determining if someone under the influence of drugs is unable to operate a motor vehicle, you have to know how the body works. And thats where some of my classes come into — come into play. There is — we have nerves in our systems that send messages to our brain and then our brain sends messages to our muscles to react to whatever we see, sensory nerves send messages to the brain. So, to give an example, if I see — I see a stop sign up ahead, okay, my sensory nerves are sending a message to my brain to hey, you are going to need to stop. Then my brain sends a message to my muscles to activate to stop. These drugs, when they are put into your system, they interfere with these messages sent to and from the brain. So they interfere with basically your body functions. Drugs impair your judgment, your decision making, your fine motor skills. And, in some instances, your vision."
Officer Irey also testified that the use of heroin, by itself, would also affect the users judgment, reactions and perceptions. Heroin clearly falls within the definition of drug.
People v. ONeil, supra, 62 Cal.2d 748, defined the meaning of addicted as used within then Vehicle Code section 23105:
"... The prosecutions burden is to show (1) that the defendant has become emotionally dependent on the drug in the sense that he experiences a compulsive need to continue its use, (2) that he has developed a tolerance to its effects and hence requires larger and more potent doses, and (3) that he has become physically dependent so as to suffer withdrawal symptoms if he is deprived of his dosage." (People v. ONeil, supra, 62 Cal.2d at p. 754, fn. omitted.)
This was the case law definition of "addicted" applicable in prosecutions for violating Vehicle Code section 23105, which was later adopted as Vehicle Code section 23152 by the Legislature in 1981. The Legislatures continued use of the judicially construed word "addicted" as currently used in Vehicle Code section 23152 , subdivision (c) indicates its intent that the definition as pronounced by People v. ONeil, supra, 62 Cal.2d 748, should be continued. (People v. Nash (1959) 52 Cal.2d 36, 47, 338 P.2d 416.) People v. ONeil, supra, 62 Cal.2d 748 by its definition of "addicted" expressly excluded, from the reach of the statute, those who were habitual users of narcotics. The rationale for doing so was based upon the purpose of the statute, which was to prohibit persons from driving a vehicle who could suffer the physical withdrawal symptoms and thus pose a hazard to the public. (Id. at p. 756.)
People v. ONeil, supra, 62 Cal.2d at page 754, footnote 10, recognized that some addictive drugs, notably amphetamine and cocaine, do not produce the debilitating withdrawal symptoms associated with opiate addiction, and the term "addiction" with respect those substances must be determined by a different formula, "Accordingly, addiction to such drugs-which can be as severe as opiate addiction-should be defined in terms of emotional or psychological dependence only" (quoting People v. Victor (1965) 62 Cal.2d 280, 304, fn. 17, 42 Cal. Rptr. 199, 398 P.2d 391). The Victor court realized its definition of addiction may be over inclusive with respect to other addictive drugs. However it must be remembered that Victor involved the interpretation of the term addiction as used in the statutes providing for involuntary commitment of those addicted, or in imminent danger of becoming addicted, to narcotics. The statutes in question in Victor had a much different goal in mind than Vehicle Code section 23152, subdivision (c).
It was in Victor the court recognized, with respect to addiction to opiates, the stages of the addiction process, adopting the definition of emotional dependence, tolerance and physical dependence (which was manifested by the abstinence syndrome or withdrawal illness), and which was later adopted as the definition of addicted as used in then Vehicle Code section 23105 by People v. ONeil, supra, 62 Cal.2d 748. (People v. Victor, supra, 62 Cal.2d at pp. 302-304.) The Victor statutes had as their primary goal intervention to protect the individual from the dangers of addiction, and to provide care, treatment and rehabilitation. (People v. Victor, supra, at pp. 305-306.) The goal of the statute, at issue here, is to protect those who are put at risk by appellants conduct of driving while addicted, during which time he could suffer the acknowledged debilitating consequences of physical withdrawal. (People v. ONeil, supra, at pp. 753-754.) Consequently, unless the "drug" a person is addicted to can cause the "physical infirmities of withdrawal" upon cessation of its use one may not be criminally punished under the statute. (Id. at pp. 752-754.) Here appellant was addicted to heroin, a "drug" within the meaning of the statute, and for which he could suffer the "physical infirmities" associated with withdrawal while driving.
Appellant also questions the validity of the statute contending no one but an expert in drug addiction can know when a person has crossed the line from habitual user to addict: "no one, least of all a drug user, will know precisely when or if he or she has become an addict such that the act of driving an automobile ... will subject that person to criminal penalties." A similar challenge to the validity of the then .10 percent blood-alcohol content of Vehicle Code section 23152, subdivision (b) was rejected by Burg v. Municipal Court (1983) 35 Cal.3d 257, 198 Cal. Rptr. 145, 673 P.2d 732. In that case, the defendant challenged the constitutionality of the statute claiming it did not provide fair notice because a person could not know whether their blood-alcohol content was .09 percent (which would not be sufficient to sustain a conviction under then Veh. Code, § 23152, subd. (b)) or the illegal .10 percent blood-alcohol content. (Burg v. Municipal Court, supra, at pp. 270-271.) "The very fact that he has consumed a quantity of alcohol should notify a person of ordinary intelligence that he is in jeopardy of violating the statute." (Id. at p. 271.) In a similar vein those who use drugs, as defined in the Vehicle Code section 312, and have reached the stage where they know the failure to continue their use will result in physical withdrawal, notifies a "person of ordinary intelligence [they are] in jeopardy of violating the statute" (Burg v. Municipal Court, supra, at p. 271), should they operate a motor vehicle.
Appellant states he is "unaware of any DMV procedures that are expressly designed to cull out prospective licensees because they are addicts." Appellant is mistaken.
Appellant contends the fact he had in his possession a valid drivers license is somehow supportive of his theory that a person may not know at what point they have become "addicted" within the meaning of Vehicle Code section 23152, subdivision (c) and thus violating the law. "In short, an epileptic is made aware, by the nature of the condition and by DMV, that he or she is an individual who may not drive."
However, there is such a provision in the Vehicle Code which permits the Department of Motor Vehicles to refuse to issue or renew a drivers license.
Vehicle Code section 12806 provides:
"The department may refuse to issue to, or renew a drivers license of, any person:
"(a) Who is rendered incapable of safely operating a motor vehicle because of alcoholism, excessive and chronic use of alcoholic beverages, or addiction to, or habitual use of, any drug.
"(b) Who is addicted to the use of narcotic drugs unless the person is participating in a narcotic treatment program approved pursuant to Article 3 (commencing with Section 11875) of Chapter 1 of Part 3 of Division 10.5 of the Health and Safety Code, in which case the person may be issued a probationary license, subject to reasonable terms and conditions, if that drug usage does not affect the persons ability to exercise reasonable and ordinary control in operating a motor vehicle on the highway." (Italics added.)
This is a permissive statute, and does not mandate that the Department of Motor Vehicles not issue or renew an addicts drivers license. Regardless of whether appellant had a valid drivers license in his possession he was nonetheless on notice of his consumption of heroin and the physical withdrawal symptoms which would follow if he did not continue taking it.
We note that there are numerous other provisions in the codes which prohibit other conduct by those addicted to narcotics, or any drugs. Such as prohibiting them from: purchasing, possessing or using tear gas if "addicted to any narcotic drug" (Pen. Code, § 12403.7, subd. (b)); purchasing, possessing or using stun guns if "addicted to any narcotic drug" (Pen. Code, § 12651, subd. (b)); operating water craft if "addicted to the use of any drug" (Harb. & Nav. Code, § 655, subd. (e)); obtaining a permit to possess, transport or use destructive devices if "addicted to the use of any narcotic drug" (Pen. Code, § 12305, subd. (b)(2)); obtaining a permit to possess, transport, store, sell, furnish, give away, manufacture, etc., explosives if "addicted to a narcotic drug" (Health & Saf. Code, § 12101, subd. (j)(1)(B)); or owning or possessing firearms if "addicted to the use of any narcotic drug" (Pen. Code, § 12021, subd. (a)(1)). These offenses, just as Vehicle Code section 23152, subdivision (c), are all based upon conduct apart from the defendants status as an addict, and thus do not violate the holding of Robinson v. California (1962) 370 U.S. 660, 8 L. Ed. 2d 758, 82 S. Ct. 1417, which held it was a violation of the Eighth Amendment to impose criminal punishment upon an addict based solely on their status as an addict. (People v. ONeil, supra, 62 Cal.2d at p. 754, fn. 9; see also Powell v. Texas (1968) 392 U.S. 514, 531-537, 20 L. Ed. 2d 1254, 88 S. Ct. 2145 [upholding Texas statute prohibiting public drunkenness because it was conduct apart from status as an alcoholic].)
Drug is defined in the identical language as used in Vehicle Code section 312. (Harb. & Nav. Code, § 651, subd. (i).)
It is clear from the statutes and case law interpreting them that both the term "drug" and "addicted" have been given the measure of definiteness necessary to survive the first portion of appellants vagueness challenge.
Sufficiency of Standard for Enforcement
Appellants vagueness claim also challenges the enforcement of the statute:
"Given the complexity and lack of consensus among even health professionals and the medical community regarding the definition of `addiction, any statute that attempts to proscribe such a common activity as `driving a motor vehicle when an individual is `addicted to any drug faces enormous difficulties. If addiction is indeed a technical, medical term, how are law enforcement officers making a field stop to determine that an individual is an `addict? Indeed, given the differences between the wide varieties of available drugs to which individuals may now be addicted—— from cough syrups to nicotine to cocaine to alcohol—-how is a police officer to properly determine when or if to apply such a standard in a given situation, even assuming he or she knows the proper standard to apply?"
However, under the interpretation and application of the statute neither law enforcement nor the prosecution may arbitrarily apply the statute in a discriminatory manner, either a person is addicted within the meaning of the statute or they are not. The statute gives fair and objective guidelines to potential offenders, law enforcement, prosecutors, judges and jurors that any driver who is addicted (as defined by case law) to any drug (as defined by Vehicle Code section 312) will be subject to arrest, prosecution and or conviction. The arrest and prosecution for violation of the statute is not left to the unfettered discretion of either the arresting officer or the prosecutor. The statute and case law have clearly defined the criteria necessary to establish probable cause to arrest as well as setting forth the necessary standard for the jury to determine guilt.
In People v. Superior Court (Caswell) (1988) 46 Cal.3d 381, 250 Cal. Rptr. 515, 758 P.2d 1046, the court upheld the constitutionality of Penal Code section 647, subdivision (d) in the face of the defendants facial challenge to the statute. In addressing the enforcement prong of the void-for-vagueness doctrine the court acknowledged that probable cause to arrest a person for loitering could be based not only upon the persons observable conduct at the time of the arrest, but could also be based in part upon the arresting officers pre-existing knowledge of the person, including prior arrests for the same or similar offenses. (People v. Superior Court (Caswell), supra, at pp. 395-396 & fn. 5.) Here too an officers knowledge based upon past experience with the person suspected of being an addict can combine with present observable facts to support probable cause to arrest for violation of Vehicle Code section 23152 , subdivision (c). In fact, at appellants preliminary hearing Downey testified he was aware of appellants prior arrest for being under the influence of heroin. It was this prior knowledge, plus the observable facts of recent injection sites and appellants constricted pupils, which led to appellants arrest, albeit for being under the influence of heroin, rather than driving while addicted to any drug. It was only at the preliminary hearing that the prosecution requested this specific charge be added to the information, which was based upon the testimony elicited at the preliminary hearing.
The statute provides fair notice of what conduct is prohibited, it does not confer impermissible discretion upon law enforcement to determine who is in violation of its proscription, nor does it allow prosecutors or juries to pursue their own personal predilections. (Kolender v. Lawson, supra, 461 U.S. at p. 358; People v. Superior Court (Caswell), supra, 46 Cal.3d at p. 402; Burg v. Municipal Court, supra, 35 Cal.3d at pp. 272-273.) "The wisdom of the legislation is not at issue in analyzing its constitutionality, and neither the availability of less drastic remedial alternatives nor the legislative failure to solve all related ills at once will invalidate a statute. [Citation.]" (Burg v. Municipal Court, supra, at p. 267.)
II.
SUFFICIENCY OF EVIDENCE TO SUPPORT CONVICTION FOR VIOLATION OF VEHICLE CODE SECTION 23152, SUBDIVISION (c)
Appellant contends the evidence adduced at trial is insufficient to support the jurys findings that appellant was "addicted to the use of any drug." (Veh. Code, § 23152, subd. (c).)
Respondent refutes appellants challenge, asserting substantial evidence was presented to establish appellant was addicted to heroin.
Standard of Review
We review appellants claim, challenging the sufficiency of the evidence, by examining the record in the light most favorable to the judgment. We may not reverse a judgment simply because we believe the jury or fact finder could have also reasonably have found the facts or circumstances warranted an acquittal. Reversal is only required when the reviewing court concludes, after reviewing the evidence, that no rational fact finder could find the existence of each and every element necessary to convict. (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054; People v. Miranda (1987) 44 Cal.3d 57, 86, 241 Cal. Rptr. 594, 744 P.2d 1127, disapproved on another point in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4, 269 Cal. Rptr. 269, 790 P.2d 676; People v. Bolin (1998) 18 Cal.4th 297, 331, 956 P.2d 374 [reversal required only where under no hypothesis whatsoever is there sufficient substantial evidence to support the conviction].) We must uphold the verdict as long as it is supported by substantial evidence, which must be of credible and solid value. (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal. Rptr. 431, 606 P.2d 738.)
In order to prove a violation of Vehicle Code section 23152, subdivision (c), the prosecution must establish, in addition to the fact the defendant was driving a vehicle, that the defendant was in fact addicted to the use of a drug at the time they were driving the vehicle. Appellant does not challenge the jurys finding that he was in fact driving a vehicle.
"The prosecution need not prove that the individual was actually in a state of withdrawal while driving the vehicle. The prosecutions burden is to show (1) that the defendant has become emotionally dependent on the drug in the sense that he experiences a compulsive need to continue its use, (2) that he has developed a tolerance to its effects and hence requires larger and more potent doses, and (3) that he has become physically dependent so as to suffer withdrawal symptoms if he is deprived of his dosage." (People v. ONeil, supra, 62 Cal.2d 748, 754, fn. omitted.)
Appellant cites to People v. Duncan (1967) 255 Cal. App. 2d 75, 62 Cal. Rptr. 822, in support of his contention the evidence was insufficient to support the jurys finding he was addicted. Appellant relies upon the following passage:
"If on the other hand the question of addiction is to be determined in a case in which the defendant has not been seen exhibiting withdrawal symptoms, the People must establish not only that he would exhibit such symptoms if he were deprived of his dosage, but also that he is emotionally dependent on the drug and that he has developed a tolerance to it." (People v. Duncan, supra, 255 Cal. App. 2d at pp. 78-79.)
Appellant contends the evidence establishes, at best, that appellant was a habitual user of heroin, but fails to prove he was addicted to heroin. The court, at appellants request, gave the jury a special instruction regarding habitual use of drugs as follows:
"... Mere habitual or customary use which falls short of physical or emotional dependence is defined as drug habituation and is insufficient to prove that a person is addicted to a drug.
"Drug habituation is a condition resulting from the repeated consumption of a drug. Its characteristics include:
"One, a desire, but not a compulsion, to continue taking the drug for the sense of improved well-being which it engenders;
"Two, little or no tendency to increase the dosage;
"Three, some degree of psychic dependence on the effect of the drug, but absence of physical dependence and hence of an abstinence syndrome [withdrawal symptoms]; and
"Four, detrimental effects, if any, primarily on the individual.
"If you find that Mr. Gonzalezs drug use is merely habitual, you must find him not guilty of driving a motor vehicle while being addicted."
This instruction was preceded by CALJIC No. 16.831.1, defining addiction:
"As to Count 3, a person is addicted to the use of a drug if:
"One, he has become emotionally dependent on the drug in the sense that he experiences a compulsive need to continue its use;
"Two, he has developed a tolerance to the effect of the drug and hence requires larger and more potent doses; and
"Three, he has become physically dependent on such drug so as to suffer withdrawal symptoms if deprived of his dosage."
As explained in People v. Victor, supra, 62 Cal.2d at p. 304, "... addiction is more a process than an event ...." As previously indicated, Victor concerned itself with the civil commitment proceedings for those who are addicted or in danger of becoming addicted to narcotics. (Former Pen. Code, §§ 6550 to 6555, repealed by Stats. 1965, ch. 1226, § 1, p. 3062; now Welf. & Inst. Code, § 3300 et seq.) In People v. ONeil, supra, 62 Cal.2d 748, the Supreme Court adopted the definition of addiction as used in Victor, and set forth the elements required to establish a person was an addict under then Vehicle Code section 23105, the predecessor statute to Vehicle Code section 23152 . While the prosecution need not show the accused was actually suffering from physical withdrawals at the moment they were driving a vehicle, it still must show that the accuseds use of drugs has advanced to such a state that cessation of the use of the drug would result in physical withdrawals. In this context the prosecution must show the accused has developed an emotional dependence on the repeated use of the drug and has developed a tolerance to its effects so as to require larger and larger doses to obtain the desired effect which precipitated its original use. (People v. ONeil, supra, at p. 754.) This does not mean that the person suspected of being an addict, within the meaning of Vehicle Code section 23152, subdivision (c) is actually taking ever increasing doses, because, at least with respect to subdivision (c), the evil to be prevented is not so much the use of the drug, but the debilitating physical withdrawal symptoms which may manifest themselves while the person is operating a motor vehicle, thus endangering not only their own lives, but those of the public as well. (People v. ONeil, supra, at pp. 753-754, 755-756.)
People v. ONeil, supra, 62 Cal.2d 748, explained the significance of the physical withdrawal symptoms, or abstinence syndrome, upon the user in the following, pertinent and insightful passage:
"The focus of section 23105 is to prohibit the individual who presents a potential danger on the highway from driving a motor vehicle; we must discover, therefore, at what point in the addictive process the individual exhibits characteristics which could operate to impair his driving ability. An individual who has become physically dependent upon the use of narcotics undergoes the abstinence syndrome or withdrawal illness upon the sudden cessation of drug administration. The usual symptoms of the abstinence syndrome include yawning, lacrimation, sweating, pupillary dilation, abdominal cramps, muscle aches, and hot and cold flashes. When the withdrawal illness reaches its peak, vomiting, diarrhea and fever may result. After this experience the individual continues his drug intake not so much to achieve a sense of euphoria as to avoid the painful withdrawal symptoms. It is also at this stage that the individual, realizing he is physically dependent upon the drug, becomes cognizant of the fact that he is addicted." (People v. ONeil, supra, 62 Cal.2d at pp. 752-753, fns. omitted.)
People v. ONeil, supra, 62 Cal.2d at pages 754-755 rejected as coming within the scope of former Vehicle Code section 23105 those persons who were "habitually" using narcotics, because of the recognized distinction between the terms habituation and addiction. It was this theory upon which appellant relied on at trial, evidenced by his special instruction, given at his request, and which was derived from People v. ONeill, supra, 62 Cal.2d at page 755. The ONeil court rejected habituation as evidence sufficient to convict under this statute, because the accepted medical definition of the term did not include the element of physical withdrawal. (Id. at p. 755-756.)
In People v. Duncan, supra, 255 Cal. App. 2d 75, the court found sufficient evidence to support the defendants conviction for violating former Vehicle Code section 23105, which prohibited driving while addicted to the use of narcotics, based upon an officers testimony that after the arrest of the defendant he began to suffer physical withdrawals, and in the officers opinion the defendant had developed both an emotional dependence and a physical tolerance to the narcotics he was taking. In addition, the arresting officer testified to the presence of recent injection sites on the defendants arms. In spite of this conclusion, the court in Duncan, went on to state, in dicta, that absent evidence of actual physical withdrawal the prosecution must establish the defendant would suffer physical withdrawal if deprived of the narcotic, that the defendant has become emotionally dependent on the narcotic and developed a tolerance to its use. (Id. at pp. 78-79.) It is this language in which appellant seeks refuge, contending the evidence presented at his trial did not establish either his emotional dependence on heroin, or his tolerance to it. We disagree with appellants interpretation, not only of the evidence, but also his reliance on the dicta of Duncan.
The evidence presented at trial established that in 1992 appellant was found to be under the influence of heroin, exhibiting fresh injections sites on his arm, as well as older injection sites. At that time, appellant admitted using $ 10 worth of heroin daily. Admittedly there was no testimony to explain what quantity $ 10 worth of heroin was in 1992, nor any testimony comparing that quantity to todays illegal narcotics trade. In 1999 appellant was once again observed to be under the influence of heroin. Appellant admitted he had a heroin habit, and was using heroin three times a week. Appellant also admitted he was using the heroin to supplement the methadone he was taking at the time. Appellant admitted he was using heroin "just to stay normal." This, at least at this time, was evidence of appellants addiction in 1999. Appellants statement he was using heroin to stay normal, permits the reasonable inference that a cessation of its use would trigger the physical withdrawal symptoms associated with heroin addiction. Similarly, Deputy Moores testimony, as well as Dr. Girgiss testimony, that persons using heroin to stay normal are no longer obtaining the euphoric feeling associated with heroin use permits the reasonable inference that appellant had developed a tolerance to its use.
Downss testimony involved his contacts with appellant in March of 2000 and again on February 4, 2001, five days before his arrest on the current charges, where appellant exhibited signs of being under the influence of heroin. In March 2000, appellant was arrested for driving under the influence of heroin. Appellants pupils were fixed at 1.5 millimeters; appellant had recent injection sites on his arm; and he admitted he had recently injected himself with $ 3 worth of tar heroin. On February 4, 2001, Downs again found appellant to be under the influence of heroin. Appellants pupils were constricted and he had numerous injection sites on his right inner arm, three of which appeared to be recent. Appellant admitted he had been off heroin for several months, but had relapsed and was using heroin again. He told Downs he had just injected himself with $ 5 worth of tar heroin.
The reasonable inference to be drawn from this testimony is that appellant had once again become addicted to the use of heroin. His statement that he had been off of heroin but relapsed and began using again, evidences the compulsion of the need to take heroin, which is one of the factors necessary to show addiction. Additionally, appellants admission to using $ 5 worth of tar heroin, the lowest quantity of heroin sold on the street, compared with his 1999 admission to using only $ 3 worth of heroin, is indicative of increasing doses and reasonably leads to the conclusion appellant had developed a tolerance to heroin. Appellants arm again showed signs of recent injection sites, as well as older injection sites.
Which Downs took to mean that appellant had split "a nickel bag of heroin."
Finally, appellants admission to Downey that he had not used any heroin in the past couple of days which was why he was getting sick leads to the reasonable inference that appellant was beginning to suffer from withdrawals at the time he was stopped by Downey. "It is also at this stage that the individual, realizing he is physically dependent upon the drug, becomes cognizant of the fact that he is addicted." (People v. ONeil, supra, 62 Cal.2d at p. 753, fn. omitted.)
"The difference between the habitual user and the addict of heroin has been stated essentially in the following terms: The addict constantly takes the drug to avoid the pain of withdrawal illness; the habitual user takes it in anticipation of the euphoria it creates for him. The one is compelled by fear to use the drug constantly, while the other is induced to such constant use by the prospect of pleasure." (People v. Garcia (1967) 256 Cal. App. 2d 570, 575, fn. 9, 64 Cal. Rptr. 370, italics added.)
All of these determinations were for the trier of fact to determine. We may not second guess their determination that appellant was in fact addicted to heroin at the time he was driving a vehicle, unless the evidence is so insubstantial that no reasonable trier of fact could have found the requisite elements necessary to convict appellant of this charge. (People v. Kraft, supra, 23 Cal.4th at pp. 1053-1054.) We conclude such is not the case here. The evidence is sufficient to support appellants conviction.
III.
CALJIC NO. 17.41.1
Appellant contends the court committed reversible error by instructing his jury with CALJIC No. 17.41.1, which provided:
"The integrity of a trial requires that jurors, at all times during their deliberations, conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on [penalty or punishment, or] any [other] improper basis, it is the obligation of the other jurors to immediately advise the Court of the situation." (CALJIC No. 17.41.1 (1998 new) 6th ed. 1996.)
Appellant contends this instruction interfered with his right to a fair trial because it told the jury their deliberative process was subject to the trial courts review; violated jury unanimity by instructing the jury that even after reasonable deliberations had been conducted a juror could not inform the other jurors "further discussion will not alter his or her views" of reasonable doubt of appellants guilt; the instruction stripped the jury of it prerogative of nullification, or at least the free and open discussion of the concepts of "justice, fairness, and oppression."
Respondent disagrees, first contending appellant waived this challenge by failure to object to this instruction, and requesting this court find the failure to object as a procedural bar to appellants claim. Respondents second argument contends there was no indication the giving of this instruction affected the jurys deliberative process; and that appellant had no "right to jury nullification." As a fallback argument, respondent contends that even if it was an error to give this instruction, the error was harmless and reversal of appellants conviction is not required.
We first reject the respondents contention that the issue has been waived. No objection was required because the instruction is one that could have affected appellants substantial rights. (Pen. Code, § 1259; People v. Baca (1996) 48 Cal.App.4th 1703, 1706; but see People v. Elam (2001) 91 Cal.App.4th 298, 310-313 [finding CALJIC No. 17.41.1 does not affect any fundamental rights and therefore claim waived].) Thus, appellants challenge to CALJIC No. 17.41.1 is cognizable on appeal. We conclude, however, that reversal is not required.
There is no indication in the instant matter that any juror intended to act contrary to the law or that CALJIC No. 17.41.1 had any affect on this case whatsoever. Additionally, "... the instruction [CALJIC No. 17.41.1] does not infringe upon defendants federal or state constitutional right to trial by jury or his state constitutional right to a unanimous verdict ...." (People v. Engelman (2002) 28 Cal.4th 436, 439-440.) While the court concluded the instruction should not be given in future trials, it rejected defendants claim that his conviction should be reversed because the instruction was given to the jury in his case. In accordance with Engelman, we therefore reject appellants constitutional claims and conclude his convictions need not be reversed simply because the instruction was given in this case. As was true in Engelman, there is no allegation the jury had difficulties with respect to deliberations in the present case, so the prospective ban on the instruction has no impact here.
DISPOSITION
The judgment is affirmed.
WE CONCUR: VARTABEDIAN, Acting P.J., and CORNELL, J.