Opinion
A156163
02-26-2020
THE PEOPLE, Plaintiff and Respondent, v. OPHIR LAGUNAS-RODRIGUEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule (San Francisco County Super. Ct. No. 229811)
Defendant Ophir Lagunas-Rodriguez was found guilty of multiple DUI-related offenses, including driving under the influence of alcohol in violation of Vehicle Code section 23152, subdivision (a). He contends the jury verdict on that count is unsupported by substantial evidence. We disagree and affirm.
BACKGROUND
Evidence at Trial
At trial, the prosecution presented the testimony of three witnesses: percipient witnesses Mary Dang and San Francisco Police Officer Brian Donohue and expert witness Natashia Robinson. They testified as follows:
On March 16, 2018, Mary Dang was working as a cashier in an exit booth at the Pier 39 parking garage in San Francisco. At 10:10 p.m., Dang was in the booth when defendant drove up and handed her his parking ticket. She entered the ticket in her machine, and when she told defendant it would be $36, he asked why it was so much and became "really upset." She explained that the cost was actually $48 but the restaurant where he had dined had given him a $12 discount. He repeatedly told her he had paid $200 for his dinner bill and $36 for parking was too much. As he was arguing with her, she smelled "a strong odor of alcohol," so she called security.
Two security officers responded, one of whom asked defendant to back up his car because he was blocking the exit booth. Defendant moved his car, ultimately to an accessible parking space approximately 95 feet away.
Police officers then arrived. Dang provided one of them a description of the driver, and subsequently confirmed the officers had detained the correct person.
San Francisco Police Officer Brian Donohue and fellow officer Ryan McEachern were assigned to a city-wide driving under the influence (DUI) patrol that night. Donohue testified that they were the second set of officers to arrive, having responded at 10:28 p.m. to a call for assistance with a DUI investigation at the Pier 39 parking garage. When they arrived, Dang was in the exit booth and defendant was sitting on the ground next to his car, which was parked in an accessible parking space, with other police officers standing next to him.
Donohue spoke with Dang, who provided her account of the incident, identified defendant as the man with whom she had had a verbal argument, and signed a citizen's arrest form. Donohue, who was wearing a body-worn camera, also spoke with defendant, who had slurred speech, smelled of alcohol, swayed from side to side, and raised his voice and constantly repeated himself.
At 10:45 p.m., McEachern began asking defendant pre-field sobriety test questions, ultimately determining he had no conditions that would preclude him from taking the field sobriety tests. With Donohue watching, McEachern then administered the field sobriety tests. Recordings from Donohue's body-worn camera of defendant taking the tests were shown to the jury.
McEachern first administered the horizontal gaze nystagmus test. Donohue was able to see defendant's eyes during the test, but because he was not the officer conducting the test and was standing at a distance from defendant, he did not feel comfortable opining as to whether defendant was able to smoothly track the stimulus McEachern used to conduct the test. He did, however, testify that he observed what he described as a "bouncing ball," which is when an eye "shudders and is reflective of someone who is exhibiting signs of [being] under the influence of alcohol." On cross-examination, Donohue agreed with defense counsel that McEachern did not administer the test consistent with the standards established by the National Highway Traffic Safety Administration (NHTSA), specifically as to "the portion for distinct and sustained nystagmus at maximum deviation."
McEachern next administered the one-leg stand test, in which the subject is instructed to stand with his or her feet together and hands to the sides, lift one foot approximately six inches off the ground, and count while looking at his or her toes. According to Donohue, defendant put his foot down and was unable to keep his arms at his sides and to exceed eight or nine seconds on his count.
In the third test—known as the Romberg test—defendant was unable to accurately estimate 30 seconds, opening his eyes around 44 seconds instead.
In the fourth and final test McEachern conducted—the walk-and-turn test—defendant was unable to maintain his position on the line, failed to consistently walk heal to toe, and lost his balance.
Based on defendant's performance on the field sobriety tests, McEachern placed defendant under arrest. The prosecutor asked Donohue if he had reached a conclusion as to whether defendant could safely operate a vehicle. He answered that he had, but he was not asked, and did not provide, his conclusion.
Defendant was taken to the police station, where he submitted two breath samples at 12:23 a.m. and 12:25 a.m. on March 17. The samples registered a blood alcohol concentration (BAC) of 0.156 and 0.169 percent, respectively.
According to Donohue, defendant had been compliant when he and McEachern arrived at the scene, but he subsequently became increasingly confrontational and frustrated that he was being detained, protesting his arrest and maintaining that he was "in a private parking lot." As time went on after his arrest, he became more and more uncooperative, finally calming down by the time he took the breath tests.
Defense counsel showed Donohue a security video recording of what appeared to be police officers in the parking garage asking defendant to move his car to an accessible parking space and defendant complying. Donohue testified that in viewing the security tape, it was also possible they were security officers, although he thought they looked like San Francisco police officers. Donohue agreed with defense counsel that an officer who observed a strong odor of alcohol, slurred speech, and rosy cheeks on a person would not have that person get behind the wheel of a car and drive. Donohue also testified that in watching the security footage of defendant moving his car, he did not notice defendant have any trouble controlling the car, although he seemed "a little slow behind the wheel" and was not wearing his seatbelt.
San Francisco Police Criminalist Natashia Robinson testified as an expert on the operation, maintenance, and calibration of the Intoxilyzer 5000EN, a breath-testing instrument used by the San Francisco Police Department. She described at length the procedures for administering an intoxilyzer breath test and the steps taken to ensure the accuracy of intoxilyzer results. And Robinson also testified as an expert on the effects of alcohol on the human body, as follows:
Alcohol generally impairs an individual both mentally and physically, with mental impairment occurring first. Mentally, it slows down information processing, impairs an individual's ability to multitask and follow directions, decreases inhibitions, impairs reaction time, and influences decision-making abilities. Physically, it decreases ability to perform tasks because it depresses the central nervous system. Physical symptoms of alcohol impairment include unsteady gait, lack of muscle coordination, red, watery eyes, and slurred speech. According to Robinson, while alcohol affects individuals differently, studies have shown that physical impairment can occur with a BAC as low as 0.02 percent. Mental impairment can also occur with a BAC as low as 0.02 percent, with 50 percent of people impaired at 0.05 percent and 100 percent impaired at 0.08 percent. Impairment in this context means the inability to operate a vehicle with the care and caution of a sober person.
Robinson confirmed that defendant's BAC at 12:23 a.m. on March 17—two hours 15 minutes after he drove up to the exit booth in the parking garage—was 0.156 and 0.169. When tested an hour earlier, his BAC was 0.282 and 0.275. Asked a hypothetical using these numbers and assuming full absorption and an elimination rate of 0.015 to 0.018 percent, Robinson testified that a man who is five feet three inches tall and weighs 150 pounds would have had a BAC of 0.195 to 0.202 percent two hours 15 minutes earlier. According to Robinson, someone with a 0.162 BAC (the average of defendant's two breath test results two hours after driving) would be impaired and unable to operate a motor vehicle, as would someone with a 0.195 BAC at the time of driving.
Full absorption occurs once all alcohol is out of the stomach and in the bloodstream.
Elimination, which starts when alcohol enters the bloodstream, is the process of removing alcohol from the body.
Robinson also provided testimony on the field sobriety tests used in DUI investigations. She described the horizontal gaze nystagmus test, explaining that the administering officer is looking for six clues and that the presence of four of the six clues represents an 88 percent chance the person has a BAC of 0.08 percent or higher. If the officer does not perform the test correctly, the result would not be valid.
She also described the walk-and-turn test, in which the officer looks for eight clues, the presence of two of which represents a 79 percent chance the individual has a BAC of 0.08 percent or higher. The clues include the driver stepping off the line, counting the improper number of steps, using his or her arms for balance, and performing an improper turn.
In the one-leg stand test, the officer is looking for four clues, including using arms for balance, hopping, swaying, or putting the foot down.
Finally, as to the Romberg test, alcohol delays a person's processing of time. Accordingly, if someone is asked to measure 30 seconds and is unable to do so, it can be a sign of a central nervous system depressant like alcohol. If someone estimates 30 seconds and it was actually 44 seconds, that would be consistent with someone who has a BAC above 0.08 percent and is impaired.
Procedural Background
An information charged defendant with four counts: (1) felony driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)); (2) felony driving while having 0.08 percent or higher blood alcohol (§ 23152, subd. (b)); (3) driving while driving privilege is suspended due to a prior DUI conviction (§ 14601.2, subd. (a)); and (4) driving with a 0.01 percent or higher blood alcohol while on probation for a prior DUI conviction (§ 23154, subd. (a)). As to counts 1 and 2, it was alleged that defendant had a BAC of 0.15 percent or higher within the meaning of section 23578. As to counts 1 through 3, it was alleged defendant previously suffered three DUI convictions within 10 years of the present offense within the meaning of sections 23550 and 23550.5.
All statutory references are to the Vehicle Code except where otherwise noted.
Prior to trial, defendant filed a number of motions in limine, including one in which he sought exclusion of "any opinion by the prosecution's witnesses in this case that defendant was unable to operate a motor vehicle safely or with the care and caution of a sober person." He argued that although "lay witnesses may give general opinions that someone appears intoxicated, the opinion must be limited to their observations and recollections of the facts that occurred."
At a December 17, 2018 hearing on motions in limine, the following discussion occurred with respect to that motion:
"MR. LONGORIA [defense counsel]: Your Honor, I think this is—kind of overlaps with—I know there's a motion I made on opinions of ultimate issues—8; it's similar to that. I just don't want any expert or lay witnesses making decisions that jurors should be making is what I'm getting at here.
"THE COURT: What's your view on this, Mr. Niedermeyer?
"MR. NIEDERMEYER [the prosecutor]: I think I've written it's overly broad. I think multiple witnesses should be able to describe the effects of impairment, the effects of how that impairment might affect a person's ability to drive with the same care and caution as a sober individual, but—so I think it's overly broad and it should be denied.
"THE COURT: Do you think that it would be permissible for me to allow you to ask a witness: Based on what you observed at the scene, do you think that the defendant could operate a motor vehicle in the same manner as a sober person?
"MR. NIEDERMEYER: So if we're asking what you observed on the scene, that might be to an officer, but it's certainly a reasonable question to ask Natashia Robinson who will be an expert relying on observations on the scene to say is this person capable of driving or not at a specific blood alcohol content.
"THE COURT: And your view on that last point?
"MR. LONGORIA: Well, it definitely should not be directly aimed at Mr. Lagunas-Rodriguez. At most it should be a hypothetical question."
After both counsel submitted the issue, the court ruled: "So I don't think that opinion testimony about the defendant's ability to drive should be presented. I agree with you, Mr. Niedermeyer, that asking the expert—given her training and experience—about whether someone in certain circumstances may not be able to operate a motor vehicle in a hypothetical rooted in the facts presented here . . . would be acceptable. [¶] . . . [¶] So it's granted as modified."
Counts 1 and 2 proceeded to a jury trial, with the jury returning guilty verdicts on both counts. It found the additional allegation that defendant's BAC was 0.15 percent or higher to be not true.
In a bench trial, the court found defendant guilty of counts 3 and 4, and found true two of the three prior DUI conviction allegations. Because the prosecution only proved two prior DUI convictions, the court reduced counts 1 and 2 to misdemeanors.
Defendant was sentenced to an aggregate term of one year in county jail, consisting of one year on counts 1 and 2, with the sentence on count 2 stayed under Penal Code section 654, and time-served, 10-day terms on counts 3 and 4, concurrent to the sentence on count 1. He was awarded 297 days of presentence credits.
Defendant filed this timely appeal.
DISCUSSION
Defendant's only argument claims there is insufficient evidence to support his conviction on count 1, which charged him with driving under the influence of alcohol in violation of section 23152, subdivision (a). As he would have it, "[T]he state of the evidence left the jury without substantial evidence on which to make a determination that [defendant's] mental or physical abilities were so impaired that he was no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances." This is so, he submits, because "there was no opinion offered by the People on the critical issue of [defendant's] ability to properly operate a motor vehicle, i.e., whether he was actually impaired."
The People take exception with this argument, claiming defendant "lacks standing" and "is estopped" from asserting it. They point to his motion in limine in which he successfully moved " 'to exclude any opinion by the prosecution's witnesses in this case that the defendant was unable to operate a motor vehicle safely or with the care and caution of a sober person.' " According to the People, defendant should be barred from arguing that "the evidence is insufficient owing to the exclusion of evidence he sought . . . ."
Defendant responds that his motion in limine "moved rather unremarkably that the People be precluded from offering witness opinions on the ultimate issue of guilt of the charged offenses. [Citation.] The citations of authority in [his] pretrial brief on the subject are standard ones, citing long-established rules of law on this subject. [Citation.] [His] Opening Brief did not mean to suggest that the People were barred from offering proper expert testimony describing the manner in which [defendant] drove his car." As he understands it, "The trial court's ruling on [his] motion to exclude improper expert opinion evidence on the subject of guilt did not prohibit the prosecutor from seeking to admit proper expert opinion evidence regarding [defendant's] ability to operate a motor vehicle."
We agree with the People: given the in limine ruling defendant obtained—that "opinion testimony about the defendant's ability to drive" would not be allowed—he cannot now complain that the People did not offer opinion testimony "on the critical issue of [his] ability to properly operate a motor vehicle, i.e., whether he was actually impaired."
In any event, there is substantial evidence supporting the jury's guilty verdict on count 1. Section 23152, subdivision (a) makes it unlawful to drive a vehicle while "under the influence of any alcoholic beverage . . . ." A charge under this subdivision "requires proof that the defendant's ability to drive safely was impaired because he had consumed alcohol." (McNeal, supra, 46 Cal.App.4th at p. 1188; accord, People v. Randolph (2018) 28 Cal.App.5th 602, 604, fn. 1.) According to the Supreme Court, the phrase "under the influence" as used in the Vehicle Code means the alcohol "must have so far affected the nervous system, the brain, or muscles as to impair to an appreciable degree the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties." (McNeal, supra, 46 Cal.App.4th at p. 1193; accord, People v. Enriquez (1996) 42 Cal.App.4th 661, 665.) The substantial evidence of defendant's impairment includes the following:
As the Supreme Court has explained, "A defendant accused of driving under the influence of alcohol can be charged under two separate code sections. The 'generic DUI' provision prohibits driving 'under the influence' of alcohol. (Veh. Code, § 23152, subd. (a) (hereafter section 23152(a)).) The 'per se DUI' provision prohibits driving with a blood-alcohol level of 0.08 percent or more. (§ 23152, subd. (b) (hereafter section 23152(b)).)" (People v. McNeal (2009) 46 Cal.4th 1183, 1187, fn. omitted.)
First, Robinson's expert testimony established that defendant's BAC at the time he was driving was 0.195 to 0.202 percent. She testified that 100 percent of people are impaired when their BAC reaches 0.08 percent, and that someone with a 0.195 percent BAC at the time of driving would be impaired and unable to safely operate a motor vehicle.
Second, Donohue described having observed defendant slurring his speech, swaying from side to side, repeating himself, and becoming agitated and belligerent, behaviors that expert Robinson described as indicators of impairment.
Third, Donohue described defendant's poor performance on the field sobriety tests. On the horizontal gaze nystagmus test, he observed defendant's eye shuddering like a bouncing ball, which is reflective of someone who is under the influence of alcohol. On the one-leg stand, defendant was unable to maintain his foot off the ground and keep his arms to the side for the requisite 30 seconds. Instead, he put his foot on the ground after nine seconds. On the Romberg test, defendant estimated 44 seconds to be 30 seconds. During the walk-and-turn test, defendant failed to stay on the line and consistently walk heel to toe, raised his arms to maintain his balance, and nearly fell over. The field sobriety tests were recorded by Donohue's body-worn camera, with the video recordings of the tests shown to the jury and reviewed by this court. While Officer McEachern did not testify at trial, the evidence showed that in light of defendant's poor performance on the field sobriety tests, the officer placed defendant under the arrest for driving under the influence of alcohol. All of this was corroborated by Robinson's expert testimony in which she answered hypotheticals predicated on defendant's performance on the field sobriety tests, consistently answering that the performance suggested impairment.
Defendant challenges the results of the horizontal gaze nystagmus test, arguing that because Donohue did not administer the test he could not opine on whether defendant could smoothly track the stimulus used by McEachern, and he in fact testified he did not see " 'distinct and sustained nystagmus' " and that McEachern did not administer the test consistent with the NHTSA standards. Even if we accept this argument and agree that that the results of the horizontal gaze nystagmus test were invalid, defendant offers no challenge to his failing results on the remaining field sobriety tests, all of which support his conviction. --------
Fourth, on the charge of driving under the influence, the court's instructions to the jury included CALCRIM No. 2110, which states, "If the People have proved beyond a reasonable doubt that the defendant's blood alcohol level was 0.08 percent or more at the time of the chemical analysis, you may, but are not required to, conclude that the defendant was under the influence of an alcoholic beverage at the time of the alleged offense." By finding defendant guilty of driving while having a BAC of 0.08, as alleged in count 2, the jury necessarily found that defendant's BAC was 0.08 or higher when he was driving. This was supported by the evidence that at the time of the chemical analysis, defendant's BAC was 0.195 and 0.202, from which the jury could have concluded, per CALCRM No. 2110, he was impaired at the time he drove.
DISPOSITION
The judgment of conviction is affirmed.
/s/_________
Richman, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.