Opinion
D070375
03-13-2017
THE PEOPLE, Plaintiff and Respondent, v. ULYSSES GABRIEL WILLIAMS, Defendant and Appellant.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD264669) APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed. Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Ulysses Gabriel Williams of carjacking (Pen. Code, § 215, subd. (a)), hit and run (Veh. Code, § 20002, subd. (a)), and resisting an officer (Pen. Code, § 148, subd. (a)(1)) and acquitted him of robbery (Pen Code, § 211). The trial court sentenced Williams to a five-year prison term. On appeal, Williams argues the court erred in denying his motion to dismiss the carjacking and robbery counts, claiming the police failed to preserve exculpatory evidence on the issue of specific intent when they did not collect a blood or urine sample. Williams also argues the court erred when it denied his request for an instruction on expert testimony after police officers testified as to his apparent intoxication. We find no error and affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
On December 9, 2015, parking company employee Enrique R. parked his vehicle and left the engine running while he checked on a parking lot pay kiosk. Williams approached the unattended car, punched Enrique in the face, got in, and drove off. He swerved as he drove, nearly crashing into a tree across the street.
As of January 1, 2017, California Rules of Court, rule 8.90 (Rule 8.90) became effective. Rule 8.90, subdivision (b) requires appellate courts to "consider referring to" certain individuals "by first name and last initial or, if the first name is unusual or other circumstances would defeat the objective of anonymity, by initials only," in order to protect those individuals' privacy. The list of people to whom this rule applies includes victims of crimes. (Rule 8.90, subd. (b)(4).) After consideration, we have decided to refer to the victim in this case by his first name and last initial, and thereafter by his first name only, in order to try to provide the victim with some measure of anonymity. Our use of his first name is no way intended as a sign of disrespect.
Williams drove to a nearby hotel. He entered the hotel parking circle in the wrong direction and crashed head-on into a vehicle driven by Daniel D. After the accident, Williams struggled to take his seatbelt off, and he seemed to be speaking gibberish. Daniel later told officers Williams appeared to be under the influence.
San Diego Police Department (SDPD) officers Petra Saltzman and Juan Ponce arrived at the hotel. They reviewed hotel surveillance footage and identified the suspect. Hotel security received a call that someone was banging on the rooms of the 25th floor. Saltzman and Ponce went up to the 25th floor, where they found Williams. Williams did not comply with their verbal instructions, and Officer Ponce had to deploy his Taser twice before they could take him into custody.
During the encounter on the 25th floor, Williams was sweating profusely; his eyes were glassy and bloodshot, and some of his speech did not make sense. Williams asked Officer Saltzman for kisses as she escorted him to the patrol car. Saltzman did not evaluate Williams for drugs or alcohol but suspected he was under the influence of a central nervous system stimulant such as cocaine, methamphetamine, or ecstasy. She could not smell alcohol, marijuana, or any other type of drug on Williams's breath or sweat.
Officer Kara Ellison arrived at the hotel and helped take Williams into custody. Pursuant to SDPD protocol, Williams was transported to a hospital for medical professionals to remove the probes from the Taser. Ellison met with Williams at the hospital. Although medical staff had given Williams a sedative, he was animated, erratic, and incoherent; his eyes were glassy and bloodshot, and he had difficulty responding appropriately to Ellison's questions. Officer Ellison thought Williams may have ingested spice (a synthetic drug with marijuana-type effects). However, she did not ask Williams for consent or seek a warrant to obtain a blood sample.
On January 20, 2016, the San Diego County District Attorney filed an information charging Williams with carjacking in violation of section 215, subdivision (a) (count 1), robbery in violation of section 211 (count 2), misdemeanor hit and run in violation of Vehicle Code section 20002, subdivision (a) (count 3), and misdemeanor resisting an officer in violation of section 148, subdivision (a)(1) (count 4).
On March 21, 2016, Williams moved under California v. Trombetta (1984) 467 U.S. 479 (Trombetta) and Arizona v. Youngblood (1988) 488 U.S. 51 (Youngblood) to dismiss counts 1 and 2 on grounds the police failed to preserve a blood or urine sample that would have been potentially exculpatory on the issue of intent. Following an evidentiary hearing, the court denied the motion.
We discuss facts relevant to the Trombetta motion in the discussion section.
The case proceeded to a three-day jury trial. The People examined six witnesses: three who witnessed the carjacking and hit and run, and SDPD Officers Saltzman, Ponce, and Ellison. At the close of trial, defense counsel requested the court instruct the jury with CALCRIM No. 332 regarding expert witness testimony. The court denied the request, stating none of the police witnesses were properly considered experts, but agreed to instruct the jury with CALCRIM No. 333 regarding opinion testimony by lay witnesses. The court stated defense counsel was free to argue during closing arguments that the police officers had extra training, experience, and knowledge on the effects of controlled substances.
CALCRIM No. 332 provides in relevant part, "(A witness was/Witnesses were) allowed to testify as [an] expert[s] and to give [an] opinion[s]. You must consider the opinion[s], but you are not required to accept (it/them) as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert's knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence."
CALCRIM No. 333 provides, "(A witness/Witnesses)[, who (was/were) not testifying as [an] expert[s],] gave (his/her/their) opinion[s] during the trial. You may but are not required to accept (that/those) opinion[s] as true or correct. You may give the opinion[s] whatever weight you think appropriate. Consider the extent of the witness's opportunity to perceive the matters on which his or her opinion is based, the reasons the witness gave for any opinion, and the facts or information on which the witness relied in forming that opinion. You must decide whether information on which the witness relied was true and accurate. You may disregard all or any part of an opinion that you find unbelievable, unreasonable, or unsupported by the evidence."
On March 29, 2016, the jury convicted Williams on the carjacking and misdemeanor charges (counts 1, 3, and 4) and acquitted him of robbery (count 2). On April 29, 2016, the court sentenced Williams to a middle term of five years in state prison on count 1, with credit for 164 days of presentence custody, $1,500 in restitution (§ 1202.4, subd. (b)), and various fines and assessments. The court sentenced Williams to time served for the two misdemeanor convictions (counts 3 and 4).
Williams timely appealed.
DISCUSSION
I.
TROMBETTA MOTION
Before trial, Williams moved under Trombetta, supra, 467 U.S. 479 and Youngblood, supra, 488 U.S. 51 to dismiss counts 1 and 2 on grounds the police did not take a blood or urine sample when they arrested him. As he does on appeal, Williams argued a sample might have shown a high level of controlled substances that could have been exculpatory on the issue of specific intent.
The trial court held an evidentiary hearing on Williams's motion. Defense counsel examined four SDPD witnesses. Officer Joshua Jones testified that Enrique told him Williams was driving erratically, as though he lacked control. Officer Saltzman testified Williams had bloodshot eyes, was speaking incoherently, and had difficulty walking. She thought Williams was under the influence, though she could not smell alcohol or narcotics on him and thought she may have struggled to understand him because he was at times speaking in a foreign language. Detective Hector Hoyte testified that Daniel, the hit-and-run victim, stated Williams appeared to be on drugs. Hoyte saw Williams at the hospital two hours after the incident and thought he appeared under the influence of some substance, but by that point, Williams had been medicated by hospital staff. Finally, Officer Kara Ellison testified that at the hospital, Williams could not answer her questions, did not make sense, and was acting erratically, leading Ellison to believe he was under the influence of some substance.
Saltzman, Hoyte, and Ellison all testified about their classroom and field training to recognize the symptomology of drugs and alcohol and to administer sobriety tests. Yet, none considered taking a blood or urine sample or conducting field sobriety tests. Saltzman and Ellison testified they were following SDPD procedures; while it is department policy to obtain a sample if a suspect is being evaluated for driving under the influence (Veh. Code, § 23152) or for being under the influence of a controlled substance (Health & Saf. Code, § 11550), the officers were investigating a carjacking, for which department policy did not require a sample. Hoyte stated the defense of voluntary intoxication did not cross his mind when investigating the case.
The trial court denied Williams's Trombetta motion on March 22, 2016. The court found the testimony of the SDPD witnesses "fairly consistent" "that Mr. Williams was under the influence of something, probably not alcohol, but some sort of drug or intoxicating substance." Nevertheless, the court determined the exculpatory nature of the evidence was not plainly apparent to officers at the time of the incident. The court further found no authority for the notion due process placed an affirmative duty on law enforcement to affirmatively collect, rather than merely to preserve or disclose, exculpatory evidence to the defense. The court rejected defense counsel's argument that the issue was not a failure to collect but rather a failure to preserve the blood coursing through Williams's veins.
On appeal, Williams argues the trial court erred in denying his motion to dismiss counts 1 and 2. He argues law enforcement's failure to collect potentially exculpatory evidence deprived him of his constitutional due process right to a fair trial. Specifically, he argues the failure to collect a blood or urine sample deprived him access to evidence to support his affirmative defense that he was so severely impaired he did not form the specific intent required to commit carjacking or robbery.
Because the jury acquitted Williams of robbery, we direct our analysis solely to the carjacking charge.
We review the trial court's denial of Williams's Trombetta motion for substantial evidence. (People v. Montes (2014) 58 Cal.4th 809, 837 (Montes).) In applying that standard, we review the whole record in the light most favorable to the judgment to determine whether there is substantial evidence—that is, evidence of reasonable, credible, and solid value—in support of the court's decision. (People v. Alvarez (2014) 229 Cal.App.4th 761, 774 (Alvarez).) The mere fact the record might also support a contrary finding does not warrant reversal. (Ibid.)
"The Due Process Clause of the Fourteenth Amendment requires the State to disclose to criminal defendants favorable evidence that is material either to guilt or to punishment." (Trombetta, supra, 467 U.S., at p. 480, citing Brady v. Maryland (1963) 373 U.S. 83.) In Trombetta, the Supreme Court held due process further requires states to preserve "evidence that might be expected to play a significant role in the suspect's defense." (Trombetta, p. 488; Montes, supra, 58 Cal.4th at p. 837.)
This case does not involve a failure by law enforcement to preserve evidence that was already gathered. Instead, Williams contends law enforcement had an affirmative duty to collect potentially exculpatory evidence—a blood or urine sample that could be exculpatory on the mental state requirement for carjacking. At the outset, it is not clear that Trombetta and Youngblood even apply; as the trial court ruled, due process does not require law enforcement to collect particular items of evidence.
For example, in People v. Frye (1998) 18 Cal.4th 894 (Frye), the defendant moved to dismiss an allegation on the ground law enforcement failed to collect certain physical evidence from the crime scene. (Id. at p. 942.) The defense presented testimony of an expert criminologist, who criticized the failure to collect a bloody slipper and to process bloodstains, dog hair, and paw prints. (Ibid.) On review, our Supreme Court found no error. The court held that although the failure to collect or obtain evidence might justify sanctions against the prosecution at trial, "as a general matter, due process does not require the police to collect particular items of evidence." (Id. at p. 943.)
The Frye court further reasoned that even if Trombetta applied to the failure to collect evidence, there was no due process violation because the exculpatory value of the challenged evidence was not clearly apparent when investigators processed the crime scene, and nothing in the record suggested bad faith. (Frye, supra, 18 Cal.4th at p. 944; see Trombetta, supra, 467 U.S. at p. 489.)
Frye's conclusion comports with Youngblood, supra, 488 U.S. 51. In that case, a defendant arguing mistaken identity claimed law enforcement's failure to refrigerate the victim's clothing and test semen samples violated due process. (Id. at p. 54.) Rejecting that argument, the Supreme Court concluded due process did not impose "on the police an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution." (Id. at p. 58.) The court further rejected the notion due process required the police to use a particular investigatory tool, explaining, "the police do not have a constitutional duty to perform any particular tests." (Id. at p. 59.)
Several California cases have reached a similar result. In People v. Hogan (1982) 31 Cal.3d 815, the Supreme Court held that police did not have a duty to obtain evidence or conduct particular tests, stating, "[t]he police cannot be expected to 'gather up everything which might eventually prove useful to the defense.' " (Id. at p. 851 [failure to obtain fingernail scrapings from victim did not violate due process], disapproved on other grounds in People v. Cooper (1991) 53 Cal.3d 771.) In People v. Daniels (1991) 52 Cal.3d 815, the failure to test the victim's hands for gunshot residue did not violate due process. (Id. at p. 855.) In People v. Farmer (1989) 47 Cal.3d 888, the failure to take additional or better quality crime scene photos did not violate due process. (Id. at p. 911.) Likewise, in People v. Bradley (1984) 159 Cal.App.3d 399, the court concluded the prosecution's duty to preserve evidence did not encompass initial duty to collect or seize potential evidence for defendant's use. (Id. at pp. 405-406.)
The California Supreme Court recently affirmed this basic principle in Montes, supra, 58 Cal.4th 809. As was the case here, the defendant moved to dismiss on grounds the police failed to take a blood sample that could have been used to mount an intoxication defense in the guilt phase. (Id. at pp. 836-837.) Affirming the trial court's denial of the defendant's Trombetta motion, the court restated the general rule that "due process does not require the police to collect particular items of evidence." (Id. at p. 837, citing Frye, supra, 18 Cal.4th at p. 943.) Thus, we reject Williams's argument that due process required law enforcement to collect particular evidence that was potentially exculpatory as to his intent to commit carjacking.
In Montes, the police officer testified he attributed the defendant's erratic behavior to shock, rather than drug use. (Montes, supra, 58 Cal.4th at p. 837.) The officer also questioned the usefulness of a blood sample when the defendant had been arrested more than 24 hours after the crime. (Ibid.) Citing this evidence, the court concluded that even if Trombetta and Youngblood applied to a failure to collect evidence, the record "failed to establish an apparent exculpatory connection between the possible presence of a narcotic in the defendant's blood when he was arrested and his level of intoxication, if any, when the murder was committed nearly 24 hours later." (Montes, supra, 58 Cal.4th p. 838.)
Even if Trombetta and its progeny apply to a claim of a failure to collect evidence, we find no error. To trigger the duty to preserve, "evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." (Trombetta, supra, 467 U.S. at p. 489.) Thus, for example, in Trombetta, the Supreme Court held law enforcement did not have a duty to preserve breath samples in a driving under the influence case. (Id. at pp. 489-490.) The chances were "extremely low" that preserved samples would have been exculpatory, and the defendant had alternative means to impeach the machine's reliability or measurements. (Ibid.) The same analysis applies here.
First, the exculpatory nature of Williams's blood or urine sample was not apparent at the time of his arrest. (Trombetta, supra, 467 U.S. at p. 489.) The trial court acknowledged there was ample evidence Williams appeared to be under the influence of some substance the night of the incident; all SDPD officers testified to that effect. However, the mere fact Williams seemed impaired did not render a blood or urine sample plainly exculpatory at the time. As the trial court explained, "to be exculpatory, the jury would have to have a reasonable doubt whether he, in fact, entertained what is a quite simple intent to take [a vehicle] that does not belong to him"; the mere presence of some drug in his system would not rise to that standard.
In 1981, the Legislature abolished the diminished capacity defense. (People v. Wright (2005) 35 Cal.4th 964, 978; § 25, subd. (a).) Pursuant to section 29.4, "[n]o act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition." (§ 29.4, subd. (a).) Evidence of voluntary intoxication is inadmissible to negate a defendant's capacity to form a mental state for the crimes charged. (Ibid.) Such evidence is admissible "solely on the issue of whether or not the defendant actually formed a required specific intent." (§ 29.4, subd. (b), italics added.) Whereas defense counsel argued the voluntary intoxication defense existed where "somebody willingly ingests drugs or alcohol and that it so impairs the person that they are unable to formulate a specific intent," the proper standard is whether due to voluntary intoxication, Williams actually formed the required specific intent for carjacking, not whether his intoxication negated his capacity to form such intent. (§ 29.4, subds. (a)-(b).)
Under this rubric, any exculpatory value of a blood or urine sample was remote at best at the time of Williams's arrest. Carjacking requires the intent to temporarily or permanently deprive a person of a motor vehicle. (CALCRIM No. 1650; People v. Dominguez (1995) 38 Cal.App.4th 410, 418.) Williams presented no evidence he did not actually form that mental state due to intoxication. (§ 29.4, subd. (b).) Williams struck Enrique, yelled at him to back off, jumped in his car, and drove away. He was able to drive several blocks to a hotel, albeit in an erratic manner. Somewhere along the 1.2-mile journey, Williams put on his seatbelt. After crashing into a car parked outside the hotel, Williams was able to remove his seatbelt, run out of the car into the hotel, and go up to the 25th floor. Based on this evidence, the trial court reasonably found the exculpatory nature of a blood or urine sample was not apparent at the time of his arrest. (See Trombetta, supra, 467 U.S. at p. 489.) Although Detective Hoyte was aware of the voluntary intoxication defense, its application did not even cross his mind here.
Second, the evidence was not "of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." (Trombetta, supra, 467 U.S. at p. 489.) Defense counsel elicited testimony from every law enforcement witness at trial that Williams appeared under the influence of some substance on the night of the incident. As the People argue, even if drug testing would have corroborated that testimony, there is no suggestion such evidence would have been exculpatory beyond the existing evidence Williams was under the influence of some substance. In addition, as the trial court noted, Williams remained free to call an expert to testify about the effects of drugs on his actual mental state.
Third, there is no suggestion of bad faith. Where, as here, the defendant's challenge is to "the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant," the State's due process duty to preserve evidence is further limited. (Youngblood, supra, 488 U.S. at p. 57.) In such a case, "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." (Id. at p. 58; accord, People v. Farnam (2002) 28 Cal.4th 107, 166; Montes, supra, 58 Cal.4th at p. 838.) The bad faith requirement "both limits the extent of the police's obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant." (Youngblood, p. 58.) Thus, for example, in Youngblood, Arizona law enforcement's failure to preserve semen samples did not violate due process because "there was no suggestion of bad faith on the part of the police," even though the samples might have been useful to the defendant's mistaken identity defense. (Ibid.)
Here, the record does not suggest law enforcement acted in bad faith in failing to collect a blood or urine sample. Officers Saltzman and Ellison followed department procedures. Ellison testified SDPD policy "is to only ask for a blood sample for [a violation of Health and Safety Code section] 11550 or DUI." In accordance with SDPD protocol when a Taser is used, the officers called medics to the scene to remove the probes, and an ambulance transported Williams from the hotel to the hospital. By the time Hoyte and Ellison interviewed Williams at the hospital, it was hours after the incident, and he had been medicated by hospital staff. Saltzman, Hoyte, and Ellison all denied willfully and intentionally failing to obtain a blood or urine sample. Because substantial evidence supports the trial court's finding there was no bad faith, law enforcement's "failure to preserve potentially useful evidence [did] not constitute a denial of due process." (Youngblood, supra, 488 U.S. at p. 58; cf. Alvarez, supra, 229 Cal.App.4th at p. 777 [affirming dismissal on Trombetta motion and finding bad faith where officers did not preserve evidence from police-controlled surveillance video despite defendant's repeated requests].)
As he argued below, Williams's main argument as to bad faith is that officers deviated from what would have been normal procedure in a driving under the influence case, despite their knowledge Williams had been driving and appeared under the influence of some substance. However, on review for substantial evidence, the fact the record might support a contrary inference does not warrant reversal on appeal. (Alvarez, supra, 229 Cal.App.4th at p. 774.)
In short, substantial evidence supports the trial court's denial of the Trombetta motion. (Montes, supra, 58 Cal.4th at p. 838.)
II.
JURY INSTRUCTIONS
Williams next contends his carjacking conviction should be reversed because the court prejudicially erred by failing to instruct the jury under CALCRIM No. 332 (see fn. 3, supra). Although the trial court instructed the jury under CALCRIM No. 333 on opinion testimony of lay witnesses, it declined to give CALCRIM No. 332 on opinion testimony by expert witnesses. Williams contends that given the SDPD officers' training in the symptomology of drug use, their testimony regarding Williams's apparent state of intoxication on the night in question should have been treated as expert testimony. Williams suggests an expert testimony instruction would have led the jury to place greater weight on the officers' testimony and thereby lend "additional credence" to his intoxication defense.
We review Williams's claim of instructional error de novo. (People v. Waidla (2000) 22 Cal.4th 690, 733.) In assessing a claim of instructional error, we examine the instructions given as a whole. (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1246.)
When expert testimony is received in a criminal trial, the trial court must instruct the jury sua sponte on the weight and effect of such testimony. (§ 1127b ; People v. Reeder (1976) 65 Cal.App.3d 235, 241.) Relevant here, CALCRIM No. 332 instructs the jury to consider "the expert's knowledge, skill, experience, training and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion." By contrast, CALCRIM No. 333 instructs the jury to evaluate lay witness opinion testimony, considering "the extent of the witness's opportunity to perceive the matters on which his or her opinion is based, the reasons the witness gave for any opinion, and the facts or information on which the witness relied in forming that opinion."
Section 1127b provides: "When, in any criminal trial or proceeding, the opinion of any expert witness is received in evidence, the court shall instruct the jury substantially as follows: [¶] Duly qualified experts may give their opinions on questions in controversy at a trial. To assist the jury in deciding such questions, the jury may consider the opinion with the reasons stated therefor, if any, by the expert who gives the opinion. The jury is not bound to accept the opinion of any expert as conclusive, but should give to it the weight to which they shall find it to be entitled. The jury may, however, disregard any such opinion, if it shall be found by them to be unreasonable. [¶] No further instruction on the subject of opinion evidence need be given." --------
We assess the failure to give CALCRIM No. 332 under the Watson standard. (People v. Reeder, supra, 65 Cal.App.3d at pp. 241, 243, citing People v. Watson (1956) 46 Cal.2d 818, 836.) The test is whether "it is reasonably probable that a result more favorable to defendant would have occurred had the instruction required by Penal Code section 1127b been given." (Reeder, at p. 243.) Probability under Watson "does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility." (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 918.)
Applying that standard, we find no prejudicial error in the court's failure to instruct the jury under CALCRIM No. 332. Opinion testimony regarding a person's state of intoxication does not necessarily require qualification as an expert. (People v. Navarette (2003) 30 Cal.4th 458, 493.) Although Saltzman and Ellison testified they had been trained on the symptomology of controlled substances, they also testified they did not perform any tests on Williams to evaluate his sobriety. Both testified to their observations that night indicating that Williams appeared to be under the influence of some substance. This testimony was not expert opinion testimony so as to fall within the scope of section 1127b. (See People v. Lynch (1971) 14 Cal.App.3d 602, 609-610 [doctor's "testimony concerning the physical condition of the victim did not involve expert opinion"] (Lynch).)
In any event, assuming the officers gave expert testimony, the trial court's failure to instruct the jury with CALCRIM No. 332 was harmless error. In light of the other instructions given, we do not find it reasonably probable the jury would have reached a verdict more favorable to Williams had CALCRIM No. 332 been given. (People v. Reeder, supra, 65 Cal.App.3d at pp. 241, 243; see Lynch, supra, 14 Cal.App.3d at p. 609 [no prejudice in failure to give expert testimony instruction].)
Although the court did not give CALCRIM No. 332, it instructed the jury on how to evaluate lay opinion testimony under CALCRIM No. 333 (see fn. 4, supra). As the People argue, the main difference between CALCRIM Nos. 332 and 333 is that the former directs the jury to consider the expert's formal background. (CALCRIM No. 332 ["consider the expert's knowledge, skill, experience, training, and education"].) It is not reasonably probable that jurors would have reached a more favorable verdict if they had been instructed to consider the officers' formal background. Significantly, the trial court allowed Williams to argue to the jury that the officers had superior training and experience to evaluate Williams's apparent intoxication. Defense counsel availed of that opportunity, arguing during closing arguments:
"Officer Saltzman has training, specialized training police officers get with recognizing a person who is under the influence of a controlled substance. Specifically, I went over with her symptomology of somebody under the influence of a central nervous system stimulant[:] agitated, aggressive, red bloodshot eyes, rapid speech, lack of coordination, disordered thinking. Check, check, check, with every observation that every witness who encountered Mr. Williams made that night."
In addition to CALCRIM No. 333, the court instructed the jury under CALCRIM No. 226 that, "[y]ou alone, must judge the credibility or believability of the witnesses," based on "your common sense and experience" and "may believe all, part, or none of any witness's testimony." The court also gave CALCRIM No. 200, which informed jurors that they were the exclusive judges of the facts and that it was "up to all of you, and you alone to decide what happened, based only on the evidence that has been presented to you in this trial."
We presume the jury understood and followed the instructions given under CALCRIM Nos. 333, 200, and 226. (People v. Brady (2010) 50 Cal.4th 547, 566 fn. 9; People v. Gray (2005) 37 Cal.4th 168, 217.) Together, these instructions substantially covered the concepts under CALCRIM No. 332 and adequately equipped the jury to evaluate the officers' testimony as to Williams's apparent intoxication. Any error in not providing CALCRIM No. 332 was harmless.
DISPOSITION
The judgment is affirmed.
BENKE, Acting P. J. WE CONCUR: O'ROURKE, J. DATO, J.