People v. BENNER

• Decision Date: 29 September 2010
• Docket Number: No. G042127.,G042127.
• Citation: 185 Cal.App.4th 791,111 Cal.Rptr.3d 98
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Melanie Marie BENNER, Defendant and Appellant.

185 Cal.App.4th 791

111 Cal.Rptr.3d 98

The PEOPLE, Plaintiff and Respondent,

v.Melanie Marie BENNER, Defendant and Appellant.

No. G042127.

Court of Appeal, Fourth District, Division 3, California.

June 14, 2010.

As Modified July 8, 2010.

Review Denied Sept. 29, 2010.

COPYRIGHT MATERIAL OMITTED.

Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Angela M. Borzachillo, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

BEDSWORTH, Acting P.J.

Appellant Melanie Benner was convicted of driving under the influence of methamphetamine, as well as being under the influence of, and possessing, that drug. She contends there is insufficient evidence to support her driving conviction and the court committed several errors in sentencing her to probation. We agree appellant's sentence must be modified in some respects, but otherwise affirm the judgment.

FACTS

One night, Costa Mesa Police Officer Brian Hernandez saw appellant driving a pickup truck with expired registration tags. He activated his overhead lights to initiate a traffic stop, but instead of pulling over to the curb, appellant got into the left lane and turned into the parking lot of a fast food restaurant. She then tossed a small, paper bindle out her window before coming to a stop.

Hernandez pulled up behind her and retrieved the bindle, which contained 100 milligrams of methamphetamine. He had appellant step out of her vehicle, handcuffed her, and placed her in his patrol car. Appellant was agitated, fidgety and very talkative. She was also sweating profusely, even though the patrol car was air conditioned. When drug recognition expert Allen Rieckhof arrived on the scene, he noticed appellant's tongue had a white film and blisters on it, and her breath had a chemical odor, which suggested she had been smoking methamphetamine. A subsequent blood test confirmed she had methamphetamine in her system.

Rieckhof transported appellant to the police station and gave her a series of sobriety tests. Even before the tests began, appellant was swaying and unsteady on her feet. During the “walk and turn” test, she lost her balance, stepped out of line and stopped walking. During the “one leg stand” test, she swayed and failed to follow Rieckhof's instructions. And during the “ Rhomberg” test, she did pretty well estimating time, but her fingers twitched and her eyelids fluttered. Rieckhof also noticed appellant's pupils were constricted and did not track smoothly. In addition, her pulse was about twice the normal rate.

After the testing, Officer Hernandez transported appellant to the Orange County jail. On the ride there, appellant was “agitated, paranoid [and just] kept on talking.” She accused Hernandez of following her all day and suspected his ride-along was really an undercover narcotics agent.

Based on all the circumstances, Rieckhof believed appellant was under the influence of methamphetamine. He testified methamphetamine is a stimulant that can cause emotional instability and mood swings. It also tends to make users very alert, jumpy and jittery. And, as evidenced in this case, it can cause various physiological effects, such as a rapid pulse and finger twitching. Rieckhof admitted that not all methamphetamine users are affected similarly and that some can function tolerably when they are under the influence. However, it has been Rieckhof's experience that people who are under the influence of methamphetamine are generally “unable to function properly given tasks.” He said field sobriety tests are designed to determine the degree to which a person suspected of drug use is impaired. Like driving, the tests involve “divided attention tasks,” which require the person to do more than one thing at a time. However, the tests are more controlled than driving a car, because they do not require the participant to react to the types of changing conditions and circumstances drivers are expected to deal with.

I

Appellant contends there is insufficient evidence to support her conviction for driving under the influence of a controlled substance, i.e., methamphetamine. We disagree.

“The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” ( People v. Jones (1990) 51 Cal.3d 294, 314, 270 Cal.Rptr. 611, 792 P.2d 643.) A reversal “is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the judgment].’ ” ( People v. Bolin (1998) 18 Cal.4th 297, 331, 75 Cal.Rptr.2d 412, 956 P.2d 374.)

[1] Under Vehicle Code section 23152, subdivision (a), it is unlawful for any person who is under the influence of any alcoholic beverage or drug to drive a vehicle. For purposes of this section, the term drug means any substance, other than alcohol, “which could so affect the nervous system, brain, or muscles of a person as to impair, to an appreciable degree, his ability to drive a vehicle in the manner that an ordinarily prudent and cautious man, in full possession of his faculties, using reasonable care, would drive a similar vehicle under like conditions.” (Veh.Code, § 312; see also People v. Canty (2004) 32 Cal.4th 1266, 1278, 14 Cal.Rptr.3d 1, 90 P.3d 1168.)

Appellant asserts there is no evidence methamphetamine could so affect a person. However, drug recognition expert Rieckhof testified methamphetamine tends to make people jittery, anxious and emotionally erratic. He said users are prone to mood swings and are generally unable to perform tasks they are given. While decreased agility and concentration does not result in all cases, the drug tends to make it harder for people to perform “divided attention tasks,” i.e., those tasks that require a person to do more than one thing at a time. Rieckhof put driving in that category, explaining that drivers must not only be able to operate a motor vehicle, but also react to “whatever comes [their] way, be it a red light [or] be it a kid [who] steps off the sidewalk into [their] path.” Methamphetamine's tendency to impair a person's ability to do these things is precisely what makes its use by drivers so dangerous.

Considering all the evidence, the jury could reasonably conclude methamphetamine is a drug that could impair a person's ability to drive a vehicle in a reasonably prudent manner. As such, it qualifies as a drug for purposes of Vehicle Code section 23152, subdivision (a).

[2] Appellant also contends there is insufficient evidence to support the jury's finding her ability to drive was actually impaired to an appreciable degree. However, upon being taken into custody, appellant was anxious, agitated and paranoid, which suggests she was not in the best state of mind to be driving a car. She also swayed and was unsteady on her feet, which suggests she was physically impaired, as well. And that was before she began her sobriety tests. Once the tests began, appellant continued to have problems keeping her balance, and she also had trouble following Rieckhof's directives. Needless to say, having a proper sense of balance and being able to follow rules are important aspects of safe driving. Thus, from a physical, emotional and cognitive standpoint, the evidence readily suggests appellant's driving ability was appreciably impaired, as compared to an ordinarily prudent and cautious driver in full possession of her faculties.

In arguing otherwise, appellant relies on People v. Torres (2009) 173 Cal.App.4th 977, 93 Cal.Rptr.3d 303. In that case, there was substantial evidence the defendant drove under the influence of methamphetamine, but after he was arrested, he was not subjected to “any field sobriety tests or other tests to measure [his] balance, coordination, concentration or divided attention.” ( Id. at p. 981, 93 Cal.Rptr.3d 303.) Under those circumstances, there was insufficient evidence to support a finding that his methamphetamine use actually impaired his driving ability. ( Id. at p. 983, 93 Cal.Rptr.3d 303.)

Here, in contrast, Rieckhof testified at length as to how appellant was unable to perform many of the tasks involved in the sobriety tests she was given. Her testing performance revealed glaring deficits in balance, coordination and concentration. And that did not bode well for her driving ability. Speaking to the relationship between taking a sobriety test and driving,...