Opinion
C085562
12-05-2018
THE PEOPLE, Plaintiff and Respondent, v. BILLY DAN TEAL, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15CRF07831)
Defendant Billy Dan Teal was pulled over in a truck he was driving because he was weaving. There was marijuana and 2,000 rounds of live ammunition in the truck and defendant performed poorly on field sobriety tests. A jury found defendant guilty of illegally possessing ammunition and driving under the influence of alcohol or drugs and the trial court found true the allegation that defendant was convicted of driving under the influence within the preceding 10 years.
Defendant appeals from his conviction. He claims there was insufficient evidence to sustain his driving under the influence conviction and his conviction for illegally possessing ammunition should be reversed in the interest of justice or reduced to a misdemeanor. None of defendant's claims have merit. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On November 15, 2015, around 11:48 p.m., California Highway Patrol Sergeant Sean Bridgett was driving on a highway when he noticed a truck weaving from side to side on the road. On several occasions he saw the truck drift over the solid white line and onto the shoulder, sometimes drifting as much as three feet over the line. When Sergeant Bridgett saw the truck drive for approximately 100 feet on the shoulder, he decided to conduct a traffic stop; he waited until there was a safe place to pull over and turned on his red lights.
The truck responded to the red lights and pulled over. Sergeant Bridgett approached the passenger side window and asked for the driver's identification. Defendant was the driver. Sergeant Bridgett smelled burnt marijuana in the truck; the smell, along with defendant's driving, led Sergeant Bridgett to believe defendant was impaired. He asked defendant if he had ingested marijuana that day; defendant said he had the day before. Sergeant Bridgett also asked defendant if he had any marijuana in the truck. Defendant initially said he did not have any marijuana in the truck, but ultimately admitted that he did. Defendant then produced a medical marijuana card, which Sergeant Bridgett did not believe was valid. Sergeant Bridgett asked defendant to step out of the truck so he could conduct field sobriety tests.
Before conducting the field sobriety tests, Sergeant Bridgett confirmed defendant did not have any medical conditions that could affect his driving. Defendant did tell Sergeant Bridgett that he was missing the big toe on his left foot. Sergeant Bridgett then conducted the horizontal gaze nystagmus test, which looks for an involuntary jerking of the eyeballs. Defendant's eyes tracked Sergeant Bridgett's fingers equally, ruling out any medical conditions that may render the test unreliable. Defendant's eyes also did not jerk at the extremes, ruling out the possibility that defendant was impaired by alcohol or certain depressants; it did not rule out the possibility he was impaired by marijuana.
Next, Sergeant Bridgett tested defendant to determine whether his eyes would converge or cross at the bridge of defendant's nose. Defendant's eyes were unable to converge, indicating he may be under the influence of marijuana. He noted defendant's slightly elevated heart rate because that too may indicate a person is impaired from ingesting marijuana. This prompted Sergeant Bridgett to continue with other field sobriety tests.
Sergeant Bridgett asked defendant to do the "walk-and-turn" test. He instructed defendant to walk heel-to-toe in a straight line and then pivot and walk back, all while counting out loud. During the test, defendant swayed from side to side, had to use his arms to steady himself, and had to ask Sergeant Bridgett to repeat the instructions. Defendant's performance was consistent with a person impaired by drugs.
Sergeant Bridgett also asked defendant to do the "one-leg-stand" test. He directed defendant to stand on his right foot and count out loud by thousands for 30 seconds. Standing on his right foot, defendant swayed left to right and, again, had to put his arms out to steady himself. After 30 seconds, Sergeant Bridgett told defendant to stop. Defendant was only to "one thousand twenty" in his counting, which demonstrated to Sergeant Bridgett a delayed internal clock. Defendant's delayed internal clock and struggle to balance were consistent with someone impaired by marijuana.
Sergeant Bridgett did not ask him to stand on his left foot because defendant was missing his big toe on that foot and it would impact balance.
Finally, Sergeant Bridgett asked defendant to perform the "finger-to-nose" test. He told defendant to close his eyes, slightly tilt his head back, and touch his nose with the tip of his index finger. The touch is repeated three times on each index finger, for a total of six touches. Defendant successfully completed the first two touches, but used his finger pad instead of his finger tip on the remaining four touches and missed the tip of his nose on three out of the remaining four touches. Again, defendant's performance was consistent with someone impaired by marijuana.
Sergeant Bridgett has performed these tests over 800 times. Based on his experience, defendant's driving pattern, the smell of burnt marijuana in the truck, defendant's admission that he had marijuana in the truck, his admission that he ingested marijuana, and his performance on the field sobriety tests, Sergeant Bridgett determined defendant was too impaired to drive safely. Sergeant Bridgett arrested defendant and searched his truck.
Inside defendant's truck, Sergeant Bridgett found approximately 2,000 live rounds of .22-caliber bullets. He also found 3.18 pounds of marijuana split in one-pound vacuum sealed bags stashed inside a five-gallon paint bucket. Sergeant Bridgett drove defendant to the hospital where defendant's blood was tested for drugs and/or alcohol. Defendant's blood tested positive for methamphetamines and marijuana, though the amount of each drug could not be determined. Defendant's blood pressure also was elevated, indicating he may be under the influence of marijuana. Defendant refused to participate in a drug recognition expert evaluation done in a controlled environment.
Before trial and pursuant to Penal Code section 1385, defendant moved to dismiss the charge of illegally possessing ammunition in the interest of justice. In October 2011, defendant was placed on Proposition 36 probation. He argued that, after completing his Proposition 36 probation, he had the underlying felony dismissed pursuant to section 1210.1. With that dismissal, defendant argued, his right to possess a gun was reinstated, except that he could not carry a concealed gun. Thus, according to defendant, he could not be convicted of illegally possessing ammunition because he was carrying ammunition that was capable of being used in a gun that could not be concealed.
Undesignated statutory references are to the Penal Code. --------
The People opposed defendant's motion. The People argued the underlying felony was not dismissed until April 2017, nearly two years after defendant committed the current crimes. Thus, he was still a felon at the time he was arrested and carrying ammunition. Moreover, even after the underlying felony was dismissed, defendant was prohibited from possessing firearms under section 29800, which also prohibits defendant from possessing ammunition. Finally, the People argued dismissal was not in the interest of justice.
The court denied defendant's motion. The court found defendant was a felon at the time he committed the current offenses. The court also found that even if the underlying felony had been dismissed, defendant still would have been prohibited from possessing ammunition under section 29800. In any event, the court ruled: "I don't think given the fact that he is in possession of a large amount of marijuana and the number of rounds that this is appropriate for the Court to exercise its discretion under 1385."
At trial, defendant called a forensic toxicologist to challenge the results of his blood test and to rebut Sergeant Bridgett's finding that defendant was impaired on the night of his arrest. The expert also testified that the mere presence of a drug in the system does not, by itself, indicate impairment.
Defendant called his own doctor and cannabis consultant who testified that he prescribed marijuana for defendant's previously diagnosed chronic low back pain and osteoarthritis. The prescription was for approximately one ounce of marijuana per week, about four to five "joints" per day.
Defendant also called a marijuana expert who gave an opinion that impairment on driving from smoking marijuana is "quite minimal from the studies that have gauged it," except as to persons who are not used to it.
The jury found defendant guilty of illegally possessing ammunition and driving under the influence of a drug. The trial court found true the allegation of a prior conviction for driving under the influence.
Defendant later moved to reduce to a misdemeanor his felony conviction for possessing ammunition. The court denied the motion finding defendant was a felon at the time of the offense and ruling that "[t]his isn't the case of a single bullet or ammunition being found. This was a case where there was two thousand rounds of ammunition in the vehicle. And, therefore, on that basis, the Court is denying the motion." The court suspended imposition of sentence and placed defendant on formal probation for five years.
DISCUSSION
A
Sufficiency Of The Evidence
Defendant contends his conviction for driving under the influence must be reversed because there is insufficient evidence that drugs impaired his ability to drive.
We review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence -- that is, evidence that is reasonable, credible, and of solid value -- from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Maciel (2013) 57 Cal.4th 482, 514-515.) We must decide whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, presuming the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. (Id. at p. 515.)
"[F]or a defendant to be guilty of driving while under the influence of drugs . . . , ' "the . . . drug(s) must have so far affected the nervous system, the brain, or muscles [of the individual] 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." ' " (People v. Canty (2004) 32 Cal.4th 1266, 1278.) "The detailed testimony of the observable physical and mental reactive state of the defendant . . . experienced in observing such details" is "sufficient to establish defendant's condition" for a driving under the influence conviction. (People v. Macknic (1967) 257 Cal.App.2d 370, 374-375.)
Here, Sergeant Bridgett was well versed in spotting the symptoms of driving under the influence, having administered more than 800 field sobriety tests. Sergeant Bridgett tested defendant's eyes to see if they would converge at his nose; his eyes did not, suggesting defendant may be under the influence of marijuana. Sergeant Bridgett noted defendant's pulse was elevated, also suggesting defendant was under the influence of marijuana.
Sergeant Bridgett then gave defendant the "walk-and-turn" test, the "one-leg-stand" test, and the "finger-to-nose" test; defendant performed poorly on all three. Based on his experience, defendant's driving pattern, defendant's failure on the eye convergence test, and defendant's performance on the field sobriety tests, Sergeant Bridgett concluded defendant was unable to operate a vehicle safely. The jury was free to reject an innocent but reasonable interpretation of these symptoms. (CALCRIM No. 224.) This evidence was sufficient to convict defendant of driving under the influence. (See People v. Benner (2010) 185 Cal.App.4th 791, 796 [defendant's poor performance on tests for balance, coordination, and concentration provided sufficient evidence to prove defendant impaired].)
B
Motion To Dismiss
Defendant next contends the trial court abused its discretion in refusing to grant his section 1385 motion to dismiss the charge for illegal possession of ammunition. We find no abuse of discretion.
Section 1385, subdivision (a), provides in pertinent part: "The judge . . . may . . . of his or her own motion . . . , and in furtherance of justice, order an action to be dismissed." " ' " '[T]he language of [section 1385], "furtherance of justice," requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal. [Citations.]' . . . At the very least, the reason for dismissal must be 'that which would motivate a reasonable judge.' " ' " (People v. Allan (1996) 49 Cal.App.4th 1507, 1519, italics omitted.) "The standard for appellate review of a decision to dismiss charges . . . in the furtherance of justice is whether the trial court abused its discretion in making that decision." (People v. S.M. (2017) 9 Cal.App.5th 210, 218.)
Defendant was placed on two years of Proposition 36 probation in October 2011. Under section 1210.1, defendant was permitted to move the court to dismiss the underlying conviction "[a]t any time after completion of drug treatment and the terms of probation." (§ 1210.1, subd. (e)(1).) Thus, presumably, defendant could have moved to have his underlying conviction dismissed as early as October 2013. Defendant did not, however, move to have his felony conviction dismissed until April 2017, nearly two years after Sergeant Bridgett found 2,000 rounds of live ammunition in defendant's truck. He was, therefore, still a convicted felon at the time of his arrest. As a felon, defendant was prohibited from being in possession of any ammunition. (§ 30305, subd. (a).)
Moreover, the trial court determined that the circumstances of defendant's case did not warrant the court exercising its discretion to dismiss the charge: "I don't think given the fact that he is in possession of a large amount of marijuana and the number of rounds that this is appropriate for the Court to exercise its discretion under 1385." On this record, we find no abuse of discretion.
C
Motion To Reduce Felony To A Misdemeanor
Defendant further contends the court abused its discretion in refusing to reduce his conviction for illegally possessing ammunition to a misdemeanor. We are not persuaded.
Section 17, subdivision (b) "authorizes the reduction of 'wobbler' offenses -- crimes that, in the trial court's discretion, may be sentenced alternately as felonies or misdemeanors -- upon imposition of a punishment other than state prison (§ 17[, subd.] (b)(1)) or by declaration as a misdemeanor after a grant of probation (§ 17[, subd.] (b)(3))." (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974.) "The governing canons are well established: 'This discretion . . . is neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not impede or defeat the ends of substantial justice. [Citations.]' [Citation.]" (Id. at p. 977.) On appeal, " '[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' " (Id. at pp. 977-978.)
Here, defendant has not carried his burden of establishing an abuse of discretion. In denying defendant's motion to reduce his possession of ammunition conviction to a misdemeanor, the trial court noted defendant's status as a felon when he committed the offense. The court also noted defendant was not found with a single bullet but with 2,000 rounds of ammunition in his truck. On that basis, the court denied defendant's motion. We cannot say this decision was irrational or arbitrary. We thus conclude there was no abuse of discretion.
DISPOSITION
The judgment is affirmed.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Murray, J. /s/_________
Renner, J.