Opinion
D070887
03-28-2017
THE PEOPLE, Plaintiff and Respondent, v. DOUGLAS DWAYNE TUDOR, Defendant and Appellant.
Conrad Petermann, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD262892) APPEAL from a judgment of the Superior Court of San Diego County, Timothy R. Walsh, Judge. Affirmed. Conrad Petermann, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
In this criminal case, appointed appellate counsel has filed a brief presenting no argument for reversal, but requesting this court to review the record for error in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende). We offered defendant Douglas Dwayne Tudor the opportunity to file his own brief on appeal, and he has not done so. After independently reviewing the record for error, as required by Anders v. California (1967) 386 U.S. 738 (Anders) and Wende, we affirm.
BACKGROUND
Tudor was charged with two offenses: (1) driving under the influence of an alcoholic beverage (DUI, Veh. Code, § 23152, subd. (a)) and (2) driving while his driving privilege was suspended and revoked for a prior DUI conviction (§ 14601.2, subd. (a)). A jury convicted him of the first offense, and he pleaded guilty to the second. Tudor further admitted (1) the first offense was committed within 10 years of a prior felony DUI conviction (§ 23550.5, subd. (a)(1)), and (2) enhanced sentence allegations in connection with his prior felony DUI conviction (Pen. Code, §§ 667.5, subd. (b), 668). The trial court sentenced Tudor to a total prison term of three years and ordered him to pay restitution and other fees.
Further unspecified statutory references are to the Vehicle Code. --------
The jury found Tudor guilty after two days of testimony in which various witnesses described a June 2015 incident. Tudor's son Jacob was destroying property outside his mother's house, and his mother was not home. While calling 911, a neighbor saw Tudor appear at the house, collect Jacob, the pair walk toward a gray sport utility vehicle (SUV), and drive off. A few seconds later, two police officers responding to the 911 dispatch call drove by in their patrol car, and the neighbor pointed them in the direction that the gray SUV had gone.
The officers quickly caught up to the SUV and observed it make a left turn at a stop sign without stopping. As the SUV pulled over, the officers saw the car hit the curb, back out, and finally stop. Tudor was driving, and Jacob was in the passenger seat. The lead officer smelled a strong odor of alcohol on Tudor, observed his glassy eyes, heard his slurred speech, and watched him stumble out of the SUV and use the car for support. The officer's partner observed the same. In the car, Jacob was holding an open alcoholic beverage for his father. Tudor denied drinking to the officers, but admitted at trial that the beverage was his and he had been drinking. A backpack in the car contained a partially consumed bottle of vodka.
Tudor initially agreed to do a roadside preliminary alcohol screening test, but then would not properly complete the test. About an hour and 45 minutes later at the police station, officers used the Intoxilyzer device to determine Tudor's blood alcohol level based on his breath. His first test (at 11:33 a.m.) yielded a 0.063 percent and his second test (at 11:36 a.m.) yielded a 0.061 percent.
The prosecution and defense presented their own experts on rates of alcohol absorption and the impairing effects of alcohol. The prosecution's expert opined that, assuming a person with Tudor's physical characteristics had fully absorbed the alcohol at the time he was stopped at 9:47 a.m., his blood alcohol level would have been between 0.07 and 0.09 percent. The expert provided other estimates of blood alcohol level based on different hypotheticals. She testified that a person can be impaired after taking one drink and that everyone is impaired to drive at a blood alcohol level of .08 percent or greater. In comparison, Tudor's expert opined that Tudor's blood alcohol level was less than 0.06 percent when he was stopped by the police and that Tudor was not under the influence of alcohol.
Jacob, Tudor, Tudor's ex-wife, and Tudor's friend, testified regarding how Tudor came to be drinking alcohol that morning and driving the SUV. He had been drinking because he and some friends were celebrating a business victory. Tudor decided to drive Jacob a short distance from the home to calm him down; Jacob was mentally disturbed and had been threatening his mother. According to Tudor, he was not impaired by the alcohol he had been drinking that morning.
DISCUSSION
As we have indicated, appellate counsel filed a brief summarizing the facts and proceedings in the trial court. Counsel has presented no argument for reversal and asks this court to review the record for error as mandated by Wende, supra, 25 Cal.3d 436. Pursuant to Anders, supra, 386 U.S. 738, the brief identifies three potential issues:
1. Whether Tudor should have been permitted to introduce evidence of Jacob's psychiatric treatment record. Tudor asserted that the treatment record was relevant to his necessity defense.
2. Whether the jury should have received a pinpoint instruction that if it found Tudor's blood alcohol level to be "below 0.05 at the time of driving[,] then [there is] a presumption that [he was] not under the influence of alcohol."
3. Whether Tudor should have been permitted to introduce evidence on an "industry standard" for law enforcement reports in DUI arrests. Tudor asserted the industry standard evidence was relevant to show the police officers fabricated their observations of him.
We find that none of the issues identified by counsel are arguable on their merits, and a review of the entire record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Tudor on appeal.
DISPOSITION
The judgment is affirmed.
/s/_________
BENKE, J. WE CONCUR: /s/_________
McCONNELL, P. J. /s/_________
HALLER, J.