People v. Williams

• Court: California Court of Appeals
• Writing for the Court: THAXTER; ARDAIZ, Acting P.J., and DIBIASO
• Citation: People v. Williams, 5 Cal.Rptr.2d 130, 3 Cal.App.4th 1326 (Cal. App. 1992)
• Decision Date: 25 February 1992
• Docket Number: No. F015051,F015051
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert Darrell WILLIAMS, Jr., Defendant and Appellant.

Page 130

5 Cal.Rptr.2d 130

3 Cal.App.4th 1326

The PEOPLE, Plaintiff and Respondent, v. Robert Darrell WILLIAMS, Jr., Defendant and Appellant.

No. F015051.

Court of Appeal, Fifth District, California.

Feb. 25, 1992.

Certified for Partial Publication ^*

[3 Cal.App.4th 1328] Mark Alan Hart, Northridge, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Asst. Atty. Gen., Margaret Garnand Venturi and Harry Joseph Colombo, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

THAXTER, Associate Justice.

Appellant Robert Darrell Williams, Jr., was found guilty, after jury trial, on one count of driving under the influence of alcohol within seven years of at least three separate prior driving under the influence (DUI) offenses (Veh.Code, §§ 23152, 23175). The jury found that allegations of three such prior convictions (Veh.Code, § 23165), occurring in 1984, 1985 and 1989, were true. In addition, the jury expressly found that appellant refused a peace officer's request to submit to, or willfully failed to complete, a chemical test, a violation of Vehicle Code section 23159, subdivision (a)(5). ¹

Prior to trial, the court ruled on various motions in limine. One set of rulings thwarted appellant's efforts to keep the fact of his prior DUI convictions from the jury. Defense counsel stated that appellant was willing to admit all his prior convictions so the jury would not think he was contesting them. The People refused the offer, and the court refused to force a stipulation on the People.

In another pretrial ruling the court denied appellant's motion to exclude evidence regarding the "nystagmus" test (see infra ).

Appellant was sentenced to the upper term of three years. His driving privileges were ordered revoked for four years. ²

FACTS ^**

. . . . .

DISCUSSION

I. Refusing appellant's offer to stipulate to his prior convictions so that they would not be presented to the jury was reversible error.^**

. . . . .

II. Evidence of horizontal gaze nystagmus test results was improperly admitted.

Although we have determined in the unpublished portion of this opinion that the conviction on count 1 must be reversed, we are left with an evidentiary issue likely to arise in the event appellant is retried: Was evidence regarding a horizontal gaze nystagmus (HGN) test properly admitted?

"Nystagmus is an involuntary rapid movement of the eyeball, which may be horizontal, vertical, or rotatory. (The Sloane-Dorland Ann. Medical-Legal Dict. (1987) p. 504.) An inability of the eyes to maintain visual fixation as they are turned from side to side (in other words, jerking or bouncing) is known as horizontal gaze nystagmus, or HGN. (State v. Murphy (Iowa 1990) 451 N.W.2d 154, 156.) Some investigators believe alcohol intoxication increases the frequency and amplitude of HGN and causes HGN to occur at a smaller angle of deviation from the forward direction. (See State v. Bresson (1990) 51 Ohio St.3d 123 [554 N.E.2d 1330, 1332-1333].)" (People v. Ojeda (1990) 225 Cal.App.3d 404, 406, 275 Cal.Rptr. 472.)

At the beginning of trial appellant moved for an order excluding evidence of nystagmus unless the prosecutor first established a proper foundation outside the jury's presence. He cited People v. Brown (1985) 40 Cal.3d 512, 230 Cal.Rptr. 834, 726 P.2d 516, People v. Kelly (1976) 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240, and Frye v. United States (D.C.Cir.1923) 293 Fed. 1013. The court conducted a hearing outside the jury's presence pursuant to Evidence Code section 402, subdivision (b) before ruling on the motion.

Officer Jose Vega, the arresting officer, testified that he had been a state traffic officer for three years ten months, before which he attended the California Highway Patrol Academy for five months. While at the academy, Vega devoted 10 hours of classroom time and one 8-hour lab to learning about nystagmus. The instruction was given by a sergeant, whose qualifications were unknown to Vega. The lab work consisted of conducting individual nystagmus tests on a person who had consumed alcohol. Since becoming an officer, Vega gave the test, as part of his standard field sobriety test, in some 250 instances. In less than half of those cases he determined that the subject was not under the influence based in part on the nystagmus test. In cases in which he noted nystagmus and arrested the subject for driving under the influence, the results he obtained in the field were confirmed by subsequent blood, urine, or breath tests.

Vega had no education in chemistry, physiology, or any subject showing how alcohol might affect the human body. He had not read any treatises or other documents concerning nystagmus except for some handouts provided at the academy. He had no understanding of how nystagmus occurs after ingestion of alcohol, but he had some experiences in which nystagmus resulted from other causes such as head injuries, illness, or medication.

The prosecution also called Dan DeFraga, who supervises the Forensic Alcohol Analysis and Drug Section of the Kern County Regional Crime Lab. DeFraga described nystagmus as an observable physiological effect that might be brought on by the presence of alcohol in the subject's system. He stated that the exact mechanism by which alcohol might produce nystagmus is unknown.

DeFraga acknowledged that factors other than alcohol impairment may cause nystagmus. He conceded that fatigue may be a factor, though "not to a significant degree." He admitted that circadian rhythm, that is, changes occurring in the body during the late night, has appeared in "the literature" as being a factor in nystagmus and remains under study. He also indicated that antihistamines may cause nystagmus. He did not know whether other noncontrolled substances such as caffeine or nicotine might cause nystagmus but conceded it to be a possibility. He agreed that because several factors might cause nystagmus, the test might produce both "false positives" and "false negatives."

DeFraga further acknowledged that various experts in the field disagree on the accuracy and reliability of the HGN test for identifying alcohol impairment. In fact, "there are not that many scientists around that have experienced or have done research in relation to nystagmus to alcohol impairment."

DeFraga said the test was developed in the early 1970's and is one of a battery of three field sobriety tests which, if the subject scores in a certain way, shows probable cause to believe the subject has a blood alcohol concentration above 0.10 percent.

DeFraga described the nystagmus test for impairment:

"The test is simple. A subject that is going to be looked at would be asked to look at a particular object in front of his or her face, would be required to follow that object while they're stationary, and while they followed that object with their eyes only. The movement of the eyes, the nystagmus bounce or jerking of the eyes is then detected or not detected as the eyes move from one side or the other."

DeFraga indicated that the focal object should be positioned 12 to 15 inches in front of the subject's face, elevated somewhat above eye level. The focal object is then moved side-to-side, the subject following its movement with the eyes only. The tester looks for a characteristic bounce or jerk as the eyes track sideways. The test is administered twice, the focal object moving 10 degrees per second during the first test, 20 degrees per second the second time. Movement faster than 30 degrees per second renders the test ineffective. When there is some oscillation or jerking of the eye, movement of the focal object should be stopped to determine the angle of onset.

As the Evidence Code section 402 hearing concluded, the court ruled that the HGN test had not been shown to be sufficiently reliable to support an opinion of a specific, numerical blood-alcohol level. The court further ruled, however, that Officer Vega could give an opinion that appellant had consumed alcohol, based on all of Vega's observations, including administration of the HGN test. For that limited purpose the court concluded Vega was offering lay, rather than expert, opinion.

Appellant contends the court erred. Because the issue is likely to arise at retrial, we will now address it.

A. Vega's testimony was not admissible as lay opinion.

In its ruling below, the trial court characterized Vega's opinion on the state of appellant's intoxication as lay, not expert, opinion. To the extent the opinion was based on administration of the HGN test, we disagree.

One of the fundamental theories of the law of evidence is that witnesses must ordinarily testify to facts, not opinions. (1 Witkin, Cal.Evidence (3d ed. 1986) § 447, p. 421.) An exception exists for expert witnesses. (Evid.Code, § 801.) In addition nonexperts are allowed to state opinions in limited situations. (Evid.Code, § 800.) "Lay opinion testimony is admissible where no particular scientific knowledge is required, or as 'a matter of practical necessity when the matters ... observed are too complex or too subtle to enable [the witness] accurately to convey them to court or jury in any other manner.' [Citations.]" (People v. Williams (1988) 44 Cal.3d 883, 915, 245 Cal.Rptr. 336, 751 P.2d 395.)

Lay witnesses have been permitted to give an opinion of another's state of intoxication when based on the witness's personal observations of such commonly recognizable signs as an odor of alcohol, slurring of speech, unsteadiness, and the like. (See, e.g., People v. Garcia (1972) 27 Cal.App.3d 639, 643, 104 Cal.Rptr. 69; In re Joseph G. (1970) 7 Cal.App.3d 695, 703, 87 Cal.Rptr. 25; People v. Ravey (1954) 122 Cal.App.2d 699, 703, 265 P.2d 154.) If Vega's opinion that appellant was under the influence of alcohol was based solely on such matters, it would be admissible as lay opinion. Here, however, Vega's...