Opinion
B229546
01-30-2012
THE PEOPLE, Plaintiff and Respondent, v. RICHARD ALLEN TUHOLSKI, Defendant and Appellant.
Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, and Mary Sanchez, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA368744)
APPEAL from a judgment of the Superior Court of Los Angeles County, Ray G. Jurado, Judge. Affirmed in part and reversed in part with directions.
Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, and Mary Sanchez, Deputy Attorney General, for Plaintiff and Respondent.
A jury found Richard Tuholski guilty of driving while under the influence of alcohol, and found true that he willfully refused a peace officer's request to submit to a chemical test and that he had a prior conviction for driving under the influence of alcohol. Tuholski appeals, and we reverse in part and remand with directions.
BACKGROUND
An amended information filed August 20, 2010 charged that Tuholski drove under the influence of alcohol, in violation of Vehicle Code section 23152, subdivision (a). The information also alleged that Tuholski willfully refused a police officer's request to submit to a chemical test within the meaning of section 23612, and had suffered two prior convictions for driving under the influence. Tuholski pleaded not guilty.
All further statutory references are to the Vehicle Code, unless otherwise indicated.
At trial, Wyman Thomas, a public safety officer for the University of Southern California (USC), testified that at 8:00 p.m. on March 4, 2010, Officer Thomas was driving his marked public safety car on the USC campus when he saw a white pickup truck back out of a diagonal parking space, hit a brown Honda, pull forward, and back up again, hitting the rear wheel of a passing bicyclist. The pickup truck then slowly proceeded forward. The bicyclist was knocked off balance but did not fall. Officer Thomas asked her if she was all right. She said she was fine, and did not want to make a report because she was in a hurry.
Officer Thomas followed the truck and tried to get the driver's attention with his public address system, horn, siren, and lights. When the driver did not stop, Officer Thomas radioed for backup and drove in front of the truck, blocking its path. The truck stopped, and Officer Thomas exited his car, identified himself, and asked the driver to turn off the truck. The driver turned off the truck engine.
Public Safety Officer Anthony Hamilton testified that he and his partner Officer Chuck Russom arrived on the scene in response to the call for backup. Tuholski was sitting in the driver's seat of the truck. Officer Hamilton noticed a strong smell of alcohol inside the truck's compartment. Tuholski was not very responsive to the officers' questions, and did not respond at all when they asked him to get out of the truck. Hamilton saw an open container of vodka on the passenger side. Tuholski's eyes were watery and bloodshot, which made Officer Hamilton believe he was under the influence of alcohol.
Officer Hamilton reached through the open driver's side window, unlocked the door, and opened it. He twice asked Tuholski to step out of the truck, and Tuholski declined each time. Officers Hamilton and Russom pulled Tuholski out of the truck and on to his feet, but he could not stand up without support. The officers took him over to their patrol vehicle and asked him to stand with his feet apart for a search; when Tuholski did not respond they called the Los Angeles Police Department (LAPD) to conduct a driving under the influence (DUI) investigation.
The officers handcuffed Tuholski and did a patdown search. The zipper on his pants was all the way down. They put Tuholski in the rear of the patrol car, where he appeared to sleep during the 30 to 45 minutes before the LAPD arrived.
LAPD Officer Pierre Olega testified that he and his partner Detective Garcia responded to the scene. Officer Olega opened the patrol car door and smelled a strong odor of alcohol. Tuholski did not respond when Officer Olega asked him his name and whether he knew where he was. Officer Olega helped Tuholski sit up, and, with Detective Garcia, got him out of the car. Tuholski was unable to focus on Officer Olega for a nystagmus (involuntary eye twitching) test; Tuholski could not keep his head up, and was so unsteady he had to lean on the police vehicle and hold on to Detective Garcia's arm for balance. Tuholski asked where he was, why he was handcuffed, who the officer was, and why they were harassing him; he raised his voice when he spoke. He failed to comply when Officer Olega told him to put his hands behind his head so the handcuffs could be removed, so the officers had to turn him around. He had no balance; Detective Garcia held him up. Officer Olega determined that Tuholski was too impaired to engage in the field sobriety tests (such tests as standing on one leg with eyes closed, walking in a straight line, and counting backwards), placed the handcuffs back on Tuholski, and placed him into the police vehicle. After talking to the public safety officers about the events before Officer Olega had arrived on the scene, the LAPD officers took Tuholski to the police station.
Field sobriety tests to determine a driver's balance, motor skills, and coordination, used by officers on site to determine whether there is probable cause to arrest, are distinct from postarrest chemical tests to determine blood alcohol level. (See People v. Kraft (2000) 23 Cal.4th 978, 1038-1040.)
In transit to LAPD's Southwest Station, Tuholski continued to refuse to answer questions regarding whether he had taken medication or was injured. Officer Olega and Detective Garcia assisted Tuholski into the station, each holding on to one of his arms, and seated him next to the intoximeter, where they observed him for the required 15-minute period before beginning the test. Officer Olega gave instructions and demonstrated how to blow into the intoximeter. Because Tuholski was still unable to stand on his own, the officers supported Tuholski on both sides while he placed his mouth on the mouthpiece of the machine, but he failed to blow into it (he puffed out his cheeks but the clear plastic showed no condensation to demonstrate that he was blowing). Officer Olega reminded Tuholski that he needed to provide a sample, gave him the standard admonition explaining that failure to complete a chemical test was an admission of guilt to driving under the influence, and again showed him how to use the machine. Tuholski failed to blow again on his second try. The same thing occurred four or five times overall. Tuholski said he had blown four times and wanted to speak to his lawyer; he was "'done cooperating.'" Officer Olega told him he had the option of a blood test or a urine test, but Tuholski said no. Officer Olega arrested Tuholski for driving under the influence, based on the account of the USC safety officers, the strong odor of alcohol on Tuholski's breath, his inability to respond to questions or basic commands, his unsteady gait, his slurred speech, his unpredictable and belligerent behavior, his raised voice, his lack of cooperation, and his bloodshot, watery eyes.
A criminologist for the LAPD testified that the intoximeter was a machine that tested a person's breath to measure the amount of alcohol in the person's body, and that the intoximeter at the station was in good working order on March 4, 2010. Tuholski's recorded breath attempts were very light blows into the machine.
Inglewood Police Department Detective Jose Barrios, after reviewing his police report, testified to its contents. The report indicated that in December 2000, Detective Barrios arrested Tuholski for driving under the influence. Tuholski refused to engage in any field sobriety tests and requested a breathalyzer test. At the station, Tuholski refused to take the breath test and requested a blood test. Detective Barrios told Tuholski they were going to the hospital for a blood test, and Tuholski responded, "'Okay, but if I am afraid of the needle we're going back to the station for the breath test.'" Upon arrival at the hospital, Tuholski refused to get out of the patrol car, and was transported back to the police station for booking.
David Henderson testified for the defense that he was a friend of Tuholski, that Tuholski's speaking voice was slow and slurred, and that he had never seen Tuholski drunk or drinking.
The prosecution introduced evidence that Tuholski entered a nolo contendere plea on June 28, 2004 to one count each of sections 23152, subdivision (a) (driving under the influence) and 14601.5, subdivision (a) (driving with knowledge of license suspension).
During deliberation and 45 minutes before rendering the verdict, the jury sent the following question to the trial court: "If we are not unanimous as to whether or not the defendant refused the test, how do we answer whether it's true or not true?" Thirty-five minutes after receiving the note, with counsel present, the court stated: "The question is if the jury's hung on that allegation do they mark yes or no on the verdict form[. M]y proposed answer would be leave it blank," and counsel agreed. The court answered, "Leave it [the verdict form] blank." Ten minutes after the written response was delivered, the jury returned a verdict finding Tuholski guilty of driving under the influence of alcohol, in violation of section 23152, subdivision (a), and finding true the allegations under section 23612 that Tuholski had refused a police officer's request to submit to a chemical test, and under sections 23550 and 23550.5 that Tuholski had suffered a 2004 conviction for driving under the influence.
The trial court sentenced Tuholski on December 6, 2010 to 16 months in state prison with 416 days of custody credit, and imposed fines and fees. Tuholski filed this timely appeal.
DISCUSSION
Tuholski contends that the trial court abused its discretion in admitting the testimony of Detective Barrios that in December 2000, when he arrested Tuholski for driving under the influence, Tuholski had refused to take any chemical tests. The prosecutor moved to admit the evidence of Tuholski's 2000 refusal to take a chemical test, to show a plan by Tuholski to refuse a breath test when he was arrested for driving under the influence ("this is what he does when he's arrested for DUI; he refuses or tries to undergo these games to avoid having—avoid to find out how intoxicated he is at the time of his arrest"). The defense objected that the cases were not similar, that the 2000 incident was remote, that the evidence was more prejudicial than probative, and that the admission of the evidence violated Tuholski's due process rights. The trial judge admitted the 2000 event "because the court finds that it does support an inference that it was the defendant's design or plan to refuse to submit to a blood or breath test when stopped for traffic violation and suspected drunk driving," and that the incident was not remote or unduly prejudicial. "Admission of Evidence Code section 1101, subdivision (b) evidence is addressed to the sound discretion of the trial court." (People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1609.) We will reverse an evidentiary ruling only if "'the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' [Citation.]" (People v. Hovarter (2008) 44 Cal.4th 983, 1004.)
No evidence was before the jury that the 2000 arrest resulted in a conviction.
The trial court did not admit evidence that Tuholski also refused to take chemical tests in 2004, because in that incident Tuholski eventually submitted to a blood test after initially refusing to take a blood or a breath test.
Under Evidence Code section 1101, subdivision (a), evidence of a person's character is inadmissible to prove conduct on a specified occasion, but subdivision (b) allows "the admission of evidence that a person committed a crime . . . when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act." "[E]vidence of [a] defendant's prior misconduct is relevant to prove a material fact other than [the] defendant's criminal disposition, [when] the similarity between the circumstances of the prior acts and the charged offenses supports the inference that the defendant committed the charged offenses pursuant to the same design or plan defendant used to commit the uncharged misconduct." (People v. Ewoldt (1994) 7 Cal.4th 380, 393, superseded by statute on other grounds as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505.) A design or plan "may be proved circumstantially by evidence that the defendant has performed acts having 'such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestation.' [Citation.]" (Id. at pp. 505-506.) Therefore, "evidence of a defendant's uncharged misconduct is relevant where the uncharged misconduct and the charged offense are sufficiently similar to support the inference that they are manifestations of a common design or plan." (Id. at pp. 401-402.) The similarity is sufficient if "the common features . . . indicate the existence of a plan rather than a series of similar spontaneous acts." (Id. at p. 403.) The evidence must show "'not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.'" (Id. at p. 402.)
Further, to be admissible "such evidence 'must not contravene other policies limiting admission, such as those contained in Evidence Code section 352. [Citations.]' [Citation.] We thus [must] examine whether the probative value of the evidence of defendant's uncharged offenses is 'substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.' (Evid. Code, § 352.)" (People v. Ewoldt, supra, 7 Cal.4th at p. 404; People v. Balcom (1994) 7 Cal.4th 414, 426-427.)
Detective Barrios testified that in 2000, Tuholski declined to perform field sobriety tests. Tuholski then refused to take a breath test, requested a blood test while warning he was afraid of needles, and then refused to get out of the car at the hospital, resulting in no test at all. In 2010, Officer Olega determined Tuholski was too impaired to perform field sobriety tests; he did not testify that Tuholski declined. At the station, Tuholski put his mouth on the machine but did not produce enough breath four or five separate times before he was "'done cooperating'" and wanted a lawyer. These two events do not share sufficient common features to show a common scheme or plan. In 2010, Tuholski did not decline to perform field sobriety tests as in 2000, but instead was too impaired. In 2010, once Tuholski was at the police station (still unable to stand on his own) he did not refuse outright to take a breath test as in 2000, but instead four (or five) times blew insufficient amounts into the intoximeter to complete the breath test before requesting his lawyer. While both the 2000 and 2010 events resulted in a failure to complete chemical tests after a DUI arrest, a similarity in result is not enough to establish a common design or plan. (People v. Ewoldt, supra, 7 Cal.4th at p. 402.)
Respondent argues that the 2000 event was relevant to show that Tuholski intentionally and deliberately did not blow properly into the intoximeter, but this is immaterial. "The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent." (People v. Ewoldt, supra, 7 Cal.4th at p. 402.) The 2000 event, however, was admitted not to prove Tuholski's intent, but (as the jury was instructed) to prove that Tuholski "had a plan or scheme to willfully refuse a peace officer's request to submit to, or willfully fail to complete a test." "A greater degree of similarity is required in order to prove the existence of a common design or plan" (ibid.), and the 2000 event did not possess this greater degree of similarity. The jury was specifically instructed: "Do not consider this evidence for any other purpose." "We need not, and do not, consider whether the evidence of defendant's uncharged misconduct was admissible to establish defendant's intent . . . because the evidence was not admitted for that limited purpose and the jury was not instructed to consider the evidence" to show intent. (Id. at pp. 406-407, italics added.)
Because the two events were not sufficiently similar to show a common scheme or plan, the probative value of the 2000 event was "'substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.'" (People v. Ewoldt, supra, 7 Cal.4th at p. 404, quoting Evid. Code § 352.) "Evidence of uncharged offenses 'is so prejudicial that its admission requires extremely careful analysis. [Citations.]' [Citations.] 'Since "substantial prejudicial effect [is] inherent in [such] evidence," uncharged offenses are admissible only if they have substantial probative value.' [Citation.]" (Ibid.)The evidence of the 2000 event did not possess substantial probative value on the issue of whether Tuholski acted pursuant to a scheme or plan, and the trial court abused its discretion in admitting the evidence. This is especially true given that the 2000 event occurred 10 years before the 2010 offense in issue in this case. The remoteness of evidence generally goes to its weight (id. at pp. 397-398), and the 10-year distance between the two events further lessened the probative value of the 2000 event.
We will reverse on this basis only if prejudice resulted, i.e., it is reasonably probable that a result more favorable to Tuholski would have resulted absent admission of the evidence of the 2000 incident. (People v. Welch (1999) 20 Cal.4th 701, 749-750.) We conclude that it is reasonably probable that the admission of the evidence of the 2000 event was prejudicial.
Officer Olega's testimony proffered that in 2010 Tuholski was too drunk to perform field sobriety tests or even to stand on his own at the scene. Tuholski still could not stand unassisted at the station. The two LAPD officers walked him inside from the patrol car, each holding on to an arm, and seated Tuholski at the intoximeter. After 15 minutes, Officer Olega gave him instructions and demonstrated how to use the intoximeter. Tuholski remained unable to stand on his own, and so the two officers stood Tuholski up from the chair, supported him, and had him place his mouth on the machine. Tuholski failed to blow sufficient breath into the machine four or five times, and then said he wanted to speak to his lawyer and was done cooperating, refusing a blood test or a urine test.
The evidence of refusal to take a chemical test is ambiguous. There is substantial evidence that Tuholski was too impaired to perform field sobriety tests; he could not even stand without support, on the scene and at the station. Tuholski made four apparent attempts at the intoximeter, but none were sufficient to show results. He then demanded a lawyer and refused to take other tests. Without the testimony that in 2000 Tuholski declined to engage in sobriety tests, requested a breathalyzer test which he then refused to take, and requested a blood test and then refused to get out of the patrol car at the hospital, we conclude that it was reasonably likely that the jury might have reached a more favorable result, and answered "not true" to the allegation that Tuholski refused to take a chemical test.
This conclusion is bolstered by the question asked by the jury question during deliberations (45 minutes before rendering the verdict) about how to mark the verdict form if they were not unanimous about the allegation that Tuholski had refused the test. The trial court responded that they should leave the allegation blank. Although the jury returned its verdict answering "true" to the allegation just 10 minutes after the court's written response, the question indicates that at a late stage in the deliberations, the jury was still deliberating whether Tuholski willfully refused to take a chemical test. Given that the jury had not finally decided the issue, there is a reasonable possibility that the erroneous admission of evidence that Tuholski had refused to take a chemical test in 2000 was prejudicial.
We therefore reverse the true finding on the allegation that Tuholski willfully refused to take a chemical test pursuant to section 23612.
Tuholski also argues, and respondent concedes, that he is entitled to additional presentence conduct credits. Tuholski's offense was committed on March 4, 2010. He was convicted on October 6, 2010, and he was sentenced on December 6, 2010, receiving 278 days of actual custody credit and 138 days of conduct credit, for a total of 416 days. These credits were calculated under an amended version of Penal Code section 4019 not effective until September 28, 2010, after Tuholski committed the instant offense. (Stats. 2010, ch. 426, § 2.) Tuholski should have been sentenced under the version of Penal Code section 4019 effective January 25, 2010, under which he was entitled to presentence conduct credits equal to the amount of actual custody credit. (Former Pen. Code, § 4019, subds. (b), (c), (f).) The correct calculation would give Tuholski 278 days of actual custody credit and 278 days of conduct credit, for a total of 556 days.
As required by Penal Code section 1237.1, Tuholski brought the miscalculation of presentence custody credits to the attention of the trial court by motion. (See People v. Clavel (2002) 103 Cal.App.4th 516, 518-519.) The trial court denied the motion.
The correct presentence custody credit, 556 days, exceeds Tuholski's 16-month sentence.
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DISPOSITION
The true finding as to the allegation of refusal to take a chemical test is reversed, and the case is remanded for further proceedings in accordance with this opinion. If the prosecution does not elect to retry that allegation, the court shall resentence defendant, awarding 556 days of presentence custody credit. In all other aspects, the judgment is affirmed
NOT TO BE PUBLISHED.
JOHNSON, J. We concur:
MALLANO, P. J.
ROTHSCHILD, J.