People v. Randolph

• Decision Date: 04 August 1989
• Docket Number: No. 2556,2556
• Citation: People v. Randolph, 262 Cal.Rptr. 378, 213 Cal.App.3d Supp. 1 (Cal. Super. 1989)
• Court: California Superior Court
• Parties: 213 Cal.App.3d Supp. 1 The PEOPLE, Plaintiff and Respondent, v. Kerry Don RANDOLPH, Defendant and Appellant. Crim. A Appellate Department, Superior Court, Ventura County, California

Page 378

262 Cal.Rptr. 378

213 Cal.App.3d Supp. 1

The PEOPLE, Plaintiff and Respondent, v. Kerry Don RANDOLPH, Defendant and Appellant.

Crim. A No. 2556.

Appellate Department, Superior Court, Ventura County, California.

Aug. 4, 1989.

Kenneth I. Clayman, Public Defender, and Brian Fitzpatrick, Deputy Public Defender, for defendant and appellant.

Michael D. Bradbury, Dist. Atty., and Robert MacKenzie, Deputy Dist. Atty., for plaintiff and respondent.

OSBORNE, Judge.

INTRODUCTION

Appellant was convicted by jury of violation of Vehicle Code section 23152, subdivision (a), driving while under the influence of alcohol, and section 23152, subdivision (b), driving with 0.10 percent or more of alcohol in his blood. He admitted a prior similar conviction. He was placed on probation, and appeals.

In Burg v. Municipal Court (1983) 35 Cal.3d 257, at pages 261-266, 198 Cal.Rptr. 145, 673 P.2d 732, the Supreme Court reviewed the background leading up to the statute we consider. The death, pain, grief and physical and emotional injury the drunk driver causes need not be retold. Over 75 years ago, the Legislature prohibited driving while intoxicated. (Id. at pp. 261-262, 198 Cal.Rptr. 145, 673 P.2d 732.) With the development of scientific measurement of blood-alcohol levels, the Legislature created a presumption of being under the influence if a driver had 0.10 percent or more by weight of alcohol in his blood. (Id. at p. 263, 198 Cal.Rptr. 145, 673 P.2d 732.) "Celerity and certainty of punishment were frustrated by the ambiguity of the legal criteria; no matter what his blood-alcohol level, a defendant could escape conviction merely by raising a doubt as to his intoxication." (Ibid.) In response to this continuing problem, and the continuing threat to public safety posed by drinking drivers, in 1981 the Legislature enacted Vehicle Code section 23152, subdivision (b), which makes it unlawful for any person who has 0.10 percent or more, by weight, of alcohol in his or her blood to drive a vehicle. (Burg, supra, 35 Cal.3d at pp. 263-266, 198 Cal.Rptr. 145, 673 P.2d 732.)

ISSUE

After his arrest, appellant chose to submit to breath tests. Both breath test results showed a blood-alcohol level of 0.10 percent. Appellant contends that as a matter of law, the evidence was not sufficient to sustain the conviction of count 2, driving a vehicle while having 0.10 percent or more alcohol in his blood.

This case addresses the issue whether the Legislature limited evidence to prove a violation of Vehicle Code section 23152, subdivision (b), solely to chemical tests with results so far above 0.10 percent that the range of the margin of error cannot extend below 0.10 percent. We conclude that neither the statute nor general principles of law support such a limitation to the evidence. ¹

TEST FOR SUFFICIENCY OF EVIDENCE

In determining whether evidence is sufficient to support a conviction, our inquiry is not whether we believe the evidence established guilt beyond a reasonable doubt, but whether the evidence is such that any reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 575-579, 162 Cal.Rptr. 431, 606 P.2d 738.) "If the circumstances reasonably justify the trial court's findings, an appellate court cannot reverse merely because the circumstances might also be reasonably reconciled with a contrary finding." (People v. Mosher (1969) 1 Cal.3d 379, 395, 82 Cal.Rptr. 379, 461 P.2d 659; People v. Newland (1940) 15 Cal.2d 678, 104 P.2d 778.)

Appellant quotes the familiar jury instruction which states, in part, that a finding of guilt may not be based on circumstantial evidence, unless the proved facts and circumstances are not only consistent with guilt, but are inconsistent with any other reasonable conclusion. (CALJIC No. 2.01) Both breath tests taken by appellant after his arrest resulted in readings of 0.10 BAL. Appellant cites testimony of the expert witness that the manufacturer of the test instrument states its accuracy is better than plus or minus 0.010 percent, and therefore a 0.10 BAL could be reasonably interpreted as between a 0.09 and 0.11 BAL. Appellant argues that the conviction of violation of Vehicle Code section 23152, subdivision (b), must therefore be reversed, citing People v. Campos (1982) 138 Cal.App.3d Supp. 1, 188 Cal.Rptr. 366.

Campos, supra, 138 Cal.App.3d Supp. 1, 188 Cal.Rptr. 366, was decided before Burg, supra, 35 Cal.3d 257, 198 Cal.Rptr. 145, 673 P.2d 732, without the benefit of the Supreme Court's interpretation of the statute and its statement, discussed post, that circumstantial evidence other than test results is admissible to establish that a defendant did or did not have the proscribed level of blood alcohol. In discussing only test evidence, the Campos court discussed the circumstantial evidence rule as if it were the jury, and did not discuss the rules stated by the Supreme Court for appellate review of the sufficiency of evidence to support a conviction. We decline to follow Campos.

People v. Towler (1982) 31 Cal.3d 105, 181 Cal.Rptr. 391, 641 P.2d 1253 is dispositive. Appellant in that case likewise focused on the circumstantial evidence jury instruction and argued for a stricter standard of appellate review in circumstantial evidence cases. The Supreme Court rejected that argument. "As numerous decisions of our court explain, however, the circumstantial evidence rule on which defendant relies is 'primarily for the guidance of the trier of fact.' [Citations.] 'The rule ... does no more than to instruct the jury that if a reasonable doubt is created in their minds for any reason they must acquit the defendant. But where the jury rejects the hypothesis pointing to innocence by its verdict, and there is evidence to support the implied finding of guilt as the more reasonable of the two hypotheses this court is bound by the finding of the jury.' [Citation.] Thus, even though the appellate court may itself believe that the circumstantial evidence might be reasonably reconciled with the defendant's innocence, this alone does not warrant interference with the determination of the trier of fact. [Citations.]" (People v. Towler, supra, 31 Cal.3d 105, 118, 181 Cal.Rptr. 391, 641 P.2d 1253; People v. Gleghorn (1987) 193 Cal.App.3d 196, 202, 238 Cal.Rptr. 82; In re Richard M. (1988) 205 Cal.App.3d 7, 12, 252 Cal.Rptr. 36.)

TYPES OF EVIDENCE

Appellant discusses only the evidence regarding the breath test results. The evidence relevant to violation of Vehicle Code section 23152, subdivision (b), is not so limited. The Burg case is instructive. "Section 23152, subdivision (b), prohibits driving a vehicle with a blood-alcohol level of 0.10 percent or higher; it does not prohibit driving a vehicle when a subsequent test shows a level of 0.10 percent or more. Circumstantial evidence will generally be necessary to establish the requisite blood-alcohol level called for by the statute. A test for the proportion of alcohol in the blood will, obviously, be the usual type of circumstantial evidence, but of course the test is not conclusive: the defendant remains free to challenge the accuracy of the test result, the manner in which it was administered, and by whom. (People v. Lewis (1983) 148 Cal.App.3d 614, 620, 196 Cal.Rptr. 161; accord, Fuenning v. Superior Court (1983) 139 Ariz. 590, 680 P.2d 121, 127 ...; Cooley v. Municipality Anchorage (Alaska App.1982) 649 P.2d 251, 254-255.) Of course, both parties may also adduce other circumstantial evidence tending to establish that the defendant did or did not have a 0.10 percent blood-alcohol level while driving. (See, e.g., Fuenning, supra, at p. 130.)" (Burg v. Municipal Court, supra, 35 Cal.3d 257, 266, fn. 10, 198 Cal.Rptr. 145, 673 P.2d 732.)

The case of Fuenning v. Superior Court (Ariz.1983) 680 P.2d 121, cited above by the California Supreme Court, is also instructive. The Arizona Supreme Court noted testimony that Intoxilyzer results are subject to three types of error: a margin of error of plus or minus 10 percent in machine accuracy, a margin of error of up to 30 percent resulting from the adoption of a standard breath-alcohol to blood-alcohol conversion ratio, and variation in the rate at which alcohol is absorbed into the bloodstream. ² (Fuenning, supra, at p. 124.) "Thus, the defendant may offer expert testimony to show that for one reason or another the test results of .10% or higher do not prove beyond a reasonable doubt that the level at the time of driving was in excess of that proscribed. At the same time, the state may introduce evidence to explain the methodology and corroborate or establish the accuracy of the particular test as an indicator of alcohol level at the critical time.... The question of whether the evidence as a whole satisfies the necessary standard of proof beyond a reasonable doubt is ordinarily for the jury." (Id. at pp. 129-130.)

Evidence regarding the manner in which a defendant drove, performed field sobriety tests, and behaved is admissible and relevant as tending to establish that he did or did not have a 0.10 BAL while driving. (Burg v. Municipal Court, supra, 35 Cal.3d at p. 266, fn. 10, 198 Cal.Rptr. 145, 673 P.2d 732; Fuenning v. Superior Court, supra, 680 P.2d at p. 130. See also Cal. Const., art. 1, § 28, subd. (d) (Prop. 8); Evid.Code, §§ 210, 351 & 352.)

THE EVIDENCE AT TRIAL

As required by People v. Johnson (1980) 26 Cal.3d 557, 162 Cal.Rptr. 431, 606 P.2d 738, we have reviewed the detailed 31-page engrossed settled statement on appeal to determine whether it discloses substantial evidence such that any reasonable trier of fact could find appellant guilty beyond a reasonable doubt.

At the trial the witnesses were an experienced traffic officer and an experienced criminalist.

1. Testimony of the Officer:

The officer testified to the driving, arrest, and tests. At 11:55 p.m., the officer saw two cars southbound on Victoria Avenue...