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People v. Hernandez10/11/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
A jury found defendant guilty of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)), using or being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), driving under the influence of drugs and the combined influence of drugs and alcohol (Veh. Code, § 23152, subd. (a)), and driving with a blood alcohol level of .08 or more (Veh. Code, § 23152, subd. (b)). Defendant admitted having suffered one prior "strike" conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12); the trial court struck a second strike allegation. Defendant was sentenced to 32 months in state prison. On appeal he contends his trial counsel provided ineffective assistance by failing to object to "the prosecutor `testifying' as to his opinion about the level of [defendant's] intoxication." (Capitalization and emphasis omitted.) Defendant also contends the trial court committed constitutional error by instructing the jury pursuant to CALJIC No. 17.41.1.
I. Facts
At approximately 12:30 a.m. on October 31, 2000, San Jose police officers Michael Dunnett and James Hussey were on patrol when they saw defendant driving. They stopped his car, and Dunnett asked defendant to produce a driver's license. Defendant was unable to produce a license, he and his car strongly smelled of alcohol, and there was a half-empty 40-ounce Budweiser beer bottle on the car's front passenger floorboard. While escorting defendant to the patrol car for questioning, Dunnett noticed that defendant walked with an unsteady gait, lost his balance, and stumbled. Dunnett saw that defendant had bloodshot watery eyes, and he noticed that defendant spoke with slurred speech. The officers further observed that defendant was nervous, he spoke quickly, his eyelids fluttered, his dilated pupils "barely react " to light, his skin was warm to the touch, and he was suffering from dry mouth. They checked defendant's pulse and found that his heart was beating 134 times per minute. Based upon all of the above observations, the officers reached the conclusion that defendant was under the influence of both alcohol and a stimulant.
Although Dunnett administered some field sobriety tests, he did not complete the Driving Under the Influence investigation once he discovered a baggie containing a white powdery substance in defendant's front pocket. A chemical analysis of the blood sample taken from defendant at 1:45 a.m. showed .08 percent alcohol content and the presence of cocaine, and tests revealed that the substance found in defendant's pocket contained cocaine.
Defense expert Anne Imobersteg testified defendant's blood test only indicated his blood alcohol content at the time the blood was drawn and that his blood alcohol content could have been more or less when he had been driving. She gave her opinion that, absent a full battery of field-sobriety tests, it was impossible to know whether defendant had been too impaired to be driving. Imobersteg testified the toxicology was inconsistent with defendant being under the influence of a stimulant because the blood sample contained a metabolite of cocaine, benzoylecgonine (BE), which itself does not produce a high. She explained that presence of BE suggests cocaine was used at some point, it does not necessarily indicate defendant was under the influence of cocaine when stopped. She add
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