People v. Gomez CA2/6 ( 2020 )

Filed 10/20/20 P. v. Gomez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B302102
(Super. Ct. No. 2017028765)
Plaintiff and Respondent, (Ventura County)
v.
ALBERT GOMEZ,
Defendant and Appellant.
Albert Gomez was stopped for driving under the
influence after sitting in a bar and drinking for eight hours.
When the officer asked if he had been drinking, appellant
responded, “Oh, yeah. I’m fucked.” A jury convicted him of
felony driving under the influence of alcohol (DUI) (count 1; Veh.
Code, § 23152, subd. (a))1 and driving with a 0.08 percent or more
blood alcohol level (count 2; § 23152, subd. (b)). Appellant
admitted three prior DUI convictions and was granted five years
All statutory references are to the Vehicle Code unless
1
otherwise stated.
probation with 300 days county jail. He appeals, contending that
the trial court erred in not dismissing count 2 (Pen. Code,
§ 1118.1), that rebuttal testimony on the retrograde extrapolation
of appellant’s blood alcohol content (BAC) was inadmissible, and
that the CALCRIM Nos. 2110 and 2111 permissive inference
instructions violated appellant’s due process right to a fair trial.
We affirm.
Facts
On August 13, 2017, California Highway Patrol Sergeant
Deanna Brummett saw appellant drift out of his highway lane
onto the right shoulder. Appellant jerked the Chevy Suburban
back into the number three lane, then swerved into the number
two lane. Transitioning onto Highway 126, appellant drifted on
to the right shoulder, swerved into the number one lane, and
jerked back to the number two lane.
Sergeant Brummett activated her overhead lights and
alternating headlights, but appellant was slow to react. Using
the patrol car’s public address system, Sergeant Brummett
directed appellant to take the next exit at Victoria Avenue and
stop on a side street near the Ventura County jail. Appellant did
so but hit the raised curb with his front right tire. It was 1:23
a.m. in the morning. As Sergeant Brummett walked up to the
vehicle, appellant blurted out, “I’m so fucked. I had a chance not
to drive and chose to [drive] anyway.” Appellant smelled of
alcohol, his eyes were red and glassy, and his speech was slurred.
California Highway Patrol Officer Christopher Byrd
stopped to assist and administered field sobriety tests. Appellant
said he just left the Star Lounge in Ventura and drank five beers
between 9:00 p.m. and 1:00 a.m. Appellant failed the field
sobriety tests and blew into an Alco-Sensor device, registering a
2
.095 and .099 percent BAC. Officer Byrd patted appellant down
before transporting him and saw that appellant had urinated in
his pants. At the jail facility, two breath alcohol tests were
administered at 1:53 and 1:56 a.m., registering a .093 percent
and .092 percent BAC.
Chrystal Craver, an alcohol toxicology expert, testified that
an adult with a BAC of .08 percent or higher is too impaired to
drive safely. Alcohol intoxication is manifested by slurred
speech, difficultly standing or walking, the lack of fine motor
skills, and difficulty visually tracking an object in what is called a
Horizontal Gaze Nystagmus (HGN) test. Craver said the HGN
test is accurate. (See Coffey v. Shiomoto (2015) 60 Cal. 4th 1198,
1212-1213 (Coffey) [quoting National Highway Traffic Safety
Administration study that HGN test, when administered by a
trained officer, is “‘extremely accurate in discriminating between
BACs above and below 0.08 percent’”].)
Craver stated that a standard alcoholic drink (i.e., one
12-ounce beer) would raise a BAC by .015 percent. A BAC of .09
percent required the consumption of six beers without factoring
in a “burn-off” rate of .018 percent per hour. Applying a
conservative burn-off rate of .015 percent per hour, Craver opined
that appellant drank more than six beers before the traffic stop.
Appellant defended on the theory that his BAC was rising
and below .08 percent at time of driving. Appellant said that he
arrived at the bar at 5:00 p.m., drank his first beer at 9:00 p.m.,
and drank two beers after midnight. In rebuttal, the prosecution
asked Craver to make a retrograde extrapolation of appellant’s
BAC based on the assumption that appellant started drinking at
5:00 p.m., consumed five beers, stopped drinking at 1:00 a.m.,
and had a BAC of .092 percent at 1:53 a.m. and a BAC of .092
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percent at 1:56 a.m. Craver opined that appellant’s BAC would
be .10 percent at time of driving. If the last beer was consumed
prior to driving between 12:17 a.m. and 1:00 a.m. (i.e., had not
yet been absorbed in the blood), appellant’s BAC would be .085
percent.
Motion to Dismiss
Appellant argues that the trial court erred in not
dismissing count 2 (§ 23152, subd. (b); driving with a BAC of .08
percent or more) for insufficient evidence. (Pen. Code, § 1118.1.)
Craver, in response to a defense hypothetical, could not say with
confidence that appellant’s BAC was .08 percent or greater at
time of driving because it takes 30 to 45 minutes for the body to
fully absorb alcohol and the BAC tests were not taken 30 to 40
minutes apart. The trial court denied the motion to dismiss,
finding there was additional evidence that appellant was driving
with a BAC of .08 percent or greater. The evidence included
appellant’s erratic driving pattern, his statements to the officers,
the objective signs of alcohol intoxication, the failed field sobriety
tests, and the Alco- Sensor BAC tests. Although appellant did
make statements that supported a rising BAC defense, it was up
to the jury to determine whether those statements were true. “I
do think a reasonable juror could convict under both counts
[based on] the evidence that’s currently . . . being presented. So
[the] 11[1]8.1 motion is denied.”
“A motion under [Penal Code] section 1118.1 seeks
a judgment of acquittal for insufficient evidence. . . . [¶] In
ruling on an 1118.1 motion for judgment of acquittal, the court
evaluates the evidence in the light most favorable to the
prosecution. If there is any substantial evidence, including all
inferences reasonably drawn from the evidence, to support the
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elements of the offense, the court must deny the motion.
[Citations.] In considering this legal question, ‘a court does not
“‘ask itself whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt.’ [Citation.] Instead,
the relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond
a reasonable doubt.” [Citation.]’ [Citation.]” (Porter v. Superior
Court (2009) 47 Cal. 4th 125, 132.) Because the standard of
review is like a sufficiency of the evidence appeal, we do not
determine the facts. (People v. Houston (2012) 54 Cal. 4th 1186,
1215.) Nor is it our function to reweigh the evidence or
reevaluate witness credibility. (Ibid.)
Appellant argues that count 2 should have been dismissed
because his BAC was still rising and may have been less than .08
percent at time of driving. That was a factual issue for the jury
to decide and much of it hinged on appellant’s credibility. The
prosecution’s case was compelling. Two officers observed
appellant weave in and out of his traffic lane, drive on the road
shoulder, and hit the curb with his tire. Appellant exhibited the
classic signs of alcohol intoxication, urinated in his pants, and
said he consumed five beers and should not be driving.
Appellant’s alcohol impairment was confirmed by the field
sobriety tests and Alco-Sensor tests which registered a BAC of
.09 percent or greater less than 20 minutes after the traffic stop.
Based on the evidence presented, the trial court did not err in
denying the motion to dismiss count 2.
Rebuttal Expert Testimony
Appellant complains that the prosecution, on rebuttal,
asked Craver to make a retrograde extrapolation of appellant’s
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BAC based on the assumption that appellant starting drinking at
5:00 p.m. “‘The trial court [had] broad discretion to determine
the admissibility of rebuttal evidence and, absent palpable abuse,
an appellate court may not disturb the trial court’s exercise of
that discretion.’ [Citations.]” (People v. Landry (2016) 2 Cal. 5th
52, 117.) The jury was instructed: “[J]ust because counsel asked
an expert to assume a certain factor, that doesn’t necessarily
mean it’s proved during the trial.”
Craver was asked to calculate appellant’s BAC if he started
drinking at 5:00 p.m. and drank the last beer between 12:17 a.m.
and 1:00 a.m. Craver assumed the last beer had not been
absorbed when appellant was stopped. Applying a conservative
BAC “burn-off” rate of .015 percent per hour for the alcohol
already absorbed, Craver opined that appellant’s BAC was .085
percent at 1:23 a.m. Assuming that appellant consumed two
drinks just before driving, Craver calculated the BAC would be
less than .08 percent at time of driving, a scenario that favored
the defense.
The testimony was proper to rebut appellant’s self-serving
statements that he sat in the bar for four hours before drinking
the first beer. The retrograde extrapolation showed that
changing the drinking pattern did not significantly change
appellant’s BAC. The jury was instructed that a hypothetical
question is not evidence and “[i]t is up to you to decide whether
an assumed fact has been proved. If you conclude that an
assumed fact is not true, consider the effect of the expert’s
reliance on that fact in evaluating the expert’s opinion.”
(CALCRIM No. 332.)
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CALCRIM Nos. 2110 and 2111 - Permissive
Inference Instructions
Appellant argues that the CALCRIM Nos. 2110 and 2111
permissive inference instructions violated his due process rights
by reducing the prosecution’s burden of proof. The jury was
instructed that it could infer that a person is under the influence
of alcohol if his or her BAC is .08 percent or higher. (CALCIM
No. 2110.) CALCRIM No. 2111 instructed it could infer that
appellant drove with a BAC of .08 percent or more if a blood
sample taken within three hours of driving revealed a BAC of .08
percent or more. The instructions are based on sections 23152
and 23610 which permit the trier of fact to draw a factual
inference based on the proof of another fact. (People v. Beltran
(2007) 157 Cal. App. 4th 235, 241-243, fns.5 & 7 (Beltran).)
Citing Coffey, supra, 60 Cal. 4th 1198, appellant argues that
a permissive inference unfairly skews the evidence in favor of the
prosecution. Coffey was an administrative license suspension
case in which section 23152, subdivision (b) 2 created the
rebuttable presumption that the driver had a BAC of .08 percent.
(Coffey, at pp. 1209-1210.) Coffey’s expert testified that Coffey’s
BAC was rising and that her BAC was less than 0.08 percent at
time of driving. Our Supreme held that “Vehicle Code section
23152’s presumption will apply unless the driver presents
evidence which, if believed, ‘would support a finding of [the]
2Vehicle Code section 23152, subdivision (b) provides in
pertinent part: “In any prosecution under this subdivision, it is a
rebuttable presumption that the person had 0.08 percent or more,
by weight, of alcohol in his or her blood at the time of driving the
vehicle if the person had 0.08 percent or more, by weight, of
alcohol in his or her blood at the time of the performance of a
chemical test within three hours after the driving.”
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nonexistence of’ (Evid. Code, § 604) the presumed fact.” (Coffey,
at p. 1210.) “[I]f evidence sufficient to negate the presumed fact
is presented, the ‘presumption disappears’ [citation] and ‘has no
further effect’ [citation], although ‘inferences may nevertheless be
drawn from the same circumstances that gave rise to the
presumption in the first place’ [citations].” (Ibid; cf. Beltran,
supra, 157 Cal.App.4th at pp. 246-247 [prejudicial error to
instruct jury on permissive inference where experts on both sides
agree blood alcohol is rising at time of first alcohol screening
test].)
Beltran is inapposite because “the permissive inference
was the sole evidence used to convict” (Beltran, supra, 157
Cal.App.4th at p. 245) and there was no other evidence on which
the jury could have concluded the defendant had a BAC of .08
percent at time of driving. Craver, on cross-examination, agreed
that appellant’s BAC would be rising if it was theoretically below
.08 percent at 1:10 a.m. and appellant gulped down the last beer
10 minutes before he was stopped. But that is of no consequence
in determining whether the CALCRIM Nos. 2110 and 2111
instructions violated appellant’s due process right to a fair trial.
“[T]he presence of conflicting evidence on the predicate question
of whether there is sufficient evidence to trigger the inference
instructions does not preclude giving the instructions. If a jury
finds the predicate facts not true, it will not apply the inferences.
And even if it finds the predicate facts true, it is not compelled to
apply the inferences, which are wholly permissive.” (People v.
Yushchuk (2018) 28 Cal. App. 5th 120, 129.)
CALCRIM Nos. 2110 and 2111 instruct on permissive
inferences, not mandatory inferences. It is an important legal
distinction. (Beltran, supra, 157 Cal.App.4th at p. 243.)
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“[P]ermissive inferences do not shift the burden of production or
lower the prosecution’s burden of proof. Because they may or
may not be drawn by the jury, they do not operate in an
unconstitutionally pernicious manner. For these reasons,
[CALCRIM No. 2111] may be given regardless of whether there is
other evidence admitted at trial ‘rebutting’ the inference.”
(Beltran, at p. 244.)
Appellant argues that his BAC could have been below .08
percent when he left the bar. Substantial evidence review
requires that the evidence be substantial, real and of ponderable
legal significance, as opposed to metaphysical, speculative,
theoretical, or hypothetical. (See Conservatorship of the Person of
O.B. (2020) 9 Cal. 5th 989, 1006.) The jury received a wide
spectrum of evidence to find, beyond a reasonable doubt, that
appellant’s BAC was .08 percent or more at time of driving and
that he was too intoxicated to drive. Appellant said as much to
the officers.
Appellant’s remaining arguments have been considered
and merit no further discussion.
Disposition
The judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
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Ferdinand Inumerable, Judge
Superior Court County of Ventura
______________________________
Bases & Bases and Arielle Bases, under appointment by the
Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Senior Assistant
Attorney General, Steve Oetting, Supervising Deputy Attorney
General, Paige B. Hazard, Deputy Attorney General, for Plaintiff
and Respondent.