People v. Wilson

• Decision Date: 06 December 1985
• Docket Number: Cr. A,No. 22657,22657
• Court: California Superior Court
• Parties: 176 Cal.App.3d Supp. 1 PEOPLE, Plaintiff and Respondent, v. Ronald Adrian WILSON, Defendant and Appellant. Appellate Department, Superior Court, Los Angeles County, California

Page 540

222 Cal.Rptr. 540

176 Cal.App.3d Supp. 1

PEOPLE, Plaintiff and Respondent, v. Ronald Adrian WILSON, Defendant and Appellant.

Cr. A. No. 22657.

Appellate Department, Superior Court, Los Angeles County, California.

Dec. 6, 1985.

James M. Steck, Los Angeles, for defendant and appellant.

Ira Reiner, Dist. Atty., Maurice H. Oppenheim and Donald J. Kaplan, Deputy Dist. Attys., for plaintiff and respondent.

COOPERMAN, Presiding Judge.

Defendant Ronald Wilson appeals from a judgment of conviction following a jury trial at which time he was found guilty as charged in count I of a misdemeanor complaint with violating Vehicle Code section 23152, subdivision (a) (driving under the influence of an alcoholic beverage). ¹

The reporter's transcript of the trial proceedings reflects the following evidence:

California Highway Patrol Officer Jerelyn Albers and her partner, Officer Miranda, were on patrol on the 60 Freeway, in uniform and in a marked Highway Patrol vehicle, on September 15, 1983, at 3 a.m. At that time Officer Albers saw a vehicle "parked on the shoulder at an angle on the shoulder with the left rear portion of the vehicle partially into the No. 3 lane and the lights were all on." The officers pulled in behind the parked vehicle and upon illuminating its interior they observed one person in the vehicle.

Officer Albers approached the parked vehicle and as she did so she noticed that its engine was running, the vehicle was in park and the air conditioner was running. Upon approaching the vehicle, Officer Albers saw defendant behind the wheel and asleep. To avoid the possibility of an accident, Officer Albers opened the vehicle door and turned off the engine before awakening defendant.

After awakening defendant, Officer Albers asked him to exit the vehicle. When he exited his vehicle, defendant walked right into the middle of the traffic lane. Officer Albers had to grab him and pull him back. The officer noted an odor of an alcoholic beverage about defendant's person. Defendant also exhibited other symptoms of intoxication, including slurred speech, disorientation, and bloodshot, watery eyes.

When Officer Albers felt that defendant was completely awake, she asked him some questions. She asked defendant if he had been drinking. He answered in the affirmative. In response to further questions, defendant said he did not know how much he had to drink but said that he began drinking about 7 p.m. and stopped about 10 p.m. Further response from defendant indicated that he was disoriented as to time and location. Defendant said that he was "out" approximately two hours. Apparently, defendant did not know how long he had been asleep but felt that he had been driving about two hours. The vehicle belonged to defendant. He further indicated that there was nothing mechanically wrong with his vehicle. The location of defendant's vehicle was approximately one and a half miles from the nearest onramp.

Defendant was asked to perform a series of field sobriety tests. Officer Albers formed the opinion that defendant was under the influence of an alcoholic beverage based on his poor performance of those tests, the odor of an alcoholic beverage emanating from him and the other symptoms of intoxication he had exhibited.

Cynthia Wilson, defendant's ex-wife, testified that she had dinner with defendant on the evening preceding his arrest and that between about 6:30 p.m. and about 9 or 10 p.m. defendant drank two beers. He left her apartment about 11 p.m. Wilson said defendant's vehicle overheated but she did not recall defendant complaining about the vehicle overheating that evening.

Defendant testified in his own behalf. The substance of his testimony concerning what transpired until he left the company of his ex-wife was the same as her testimony. He then testified that he left his ex-wife's apartment between 11 and 11:30 p.m. and drove around for about two hours because he was lost. During his drive, defendant stopped to purchase cigarettes and at that time bought a six-pack of beer. His vehicle overheated on the freeway and defendant pulled over to the side.

Defendant testified that he probably did not do well on the field sobriety tests for the following reasons: He was tired. He also had a back problem. Moreover, he wore his glasses during the finger-to-nose test although he is not supposed to wear his glasses for close work. Additionally, the spotlights of the police vehicle were shining in his eyes.

After defendant stopped by the side of the freeway he put on his flasher lights. A truck stopped and the driver, who was drinking a beer, offered to help defendant. Defendant declined the offer. The driver then asked defendant if he wanted a beer. Defendant declined the offer of the truck driver and, instead, he gave the truck driver a beer. The truck driver and defendant each had about three beers and then the truck driver left.

About an hour and a half later, when his vehicle cooled down, defendant tried to start it, but he was unsuccessful. He had turned on his vehicle lights so he could see where to add coolant to the radiator and fell asleep at the wheel. Defendant stated that his vehicle heater was on, not the air conditioner. Defendant thought the officer believed the air conditioner was on because there was not enough fluid in the vehicle radiator to cause hot air to come out of the heater.

Defendant testified that when he began drinking beer by the side of the freeway, he had assumed he would not be able to drive and was planning on calling his roommate at 6 a.m. Defendant also testified that he told Officer Albers about his back problem. She did not ask him if he was having vehicle trouble.

Defendant conceded that he did not do well on the tests in part because of the effects of the beer.

Defendant's position on appeal is threefold: (1) Vehicle Code section 23152, subdivision (a), is unconstitutionally vague for the reason that the word "drive," specifically its derivative, "driving," fails to give a person adequate notice of what is proscribed; (2) The trial court committed reversible error by failing to instruct on the definition of "driving"; and (3) There is insufficient evidence to show that defendant had been "driving" while under the influence.

We find no merit to defendant's position and affirm.

Initially, we reject defendant's contention that the word "drive" as used in Vehicle Code section 23152, subdivision (a) ² is impermissibly vague. "A statute or ordinance violates fundamental due process if it requires or prohibits the doing of an act with such vagueness that a person of common intelligence must guess at its meaning. It must be sufficiently definite to provide a standard of conduct, or notice, and a standard for ascertaining guilt. (Bowland v. Municipal Court (1976) 18 Cal.3d 479, 491 [134 Cal.Rptr. 630, 556 P.2d 1081]; People v. Barksdale (1972) 8 Cal.3d 320, 327 [105 Cal.Rptr. 1, 503 P.2d 257].) However, a statute is presumed valid and courts will uphold it 'if its terms may be made reasonably certain by reference to other definable sources.' (People v. Superior Court (Hartway ) (1977) 19 Cal.3d 338, 345 [138 Cal.Rptr. 66, 562 P.2d 1315].)" (People v. Katrinak (1982) 136 Cal.App.3d 145, 156, 185 Cal.Rptr. 869.)

Such sources include the dictionary definition of the word or phrase in question. (Ibid.) In this context, Webster's Third New International Dictionary (1976) defines the transitive verb "to drive" as meaning "to operate the mechanism and controls and direct the course of (... a motor vehicle ...)." (Id., at p. 692.) Moreover, the noun "driving" is defined as the "management of an automobile or other vehicle on the road." (Ibid.)

From the foregoing, we conclude that a reasonable person would construe the phrase "to drive a vehicle" in subdivision (a) of section 23152 of the Vehicle Code as encompassing any act or action which is necessary to operate the mechanism and controls and direct the course of a motor vehicle. As construed by reference to the dictionary definitions, the word "drive" and its derivatives are not constitutionally infirm for vagueness. (See also People v. Jordan (1977) 75 Cal.App.3d Supp. 1, 8, 142 Cal.Rptr. 401.)

We next reject defendant's related contention that the trial court committed reversible error by refusing to instruct the jury on the definition of "driving."

"The language of a statute defining a crime or defense is generally an appropriate and desirable basis for an instruction.... If the jury would have no difficulty in understanding the statute without guidance, the court need do no more than instruct in the statutory language. [Citations.]" (People v. Jones (1971) 19 Cal.App.3d 437, 447, 96 Cal.Rptr. 795.) "Ordinary words and phrases in statutes require no definition because they are presumed to be understood by jurors. [Citations.]" (People v. Stewart (1979) 89 Cal.App.3d 992, 999, 153 Cal.Rptr. 242.)

In the present case the court instructed the jury pursuant to CALJIC No. 16.830 (rev.ed.1981), which defines the offense in question in the language of Vehicle Code section 23152, subdivision (a). The record reflects that there was no request from the jury for clarification or explanation in this regard. Accordingly, we conclude that it was not error for the court to refuse to instruct the jury concerning the definition of the word "drive" or its derivative, "driving," which are words in common usage and are ordinarily understood.

We also reject defendant's remaining contention that there was insufficient evidence to establish that he had been "driving" or that he had been intoxicated at the time of driving.

"The question as to whether defendant drove the vehicle is a question of fact for the jury (People v. Quarles [(1954)], 123 Cal.App.2d 1 ) .... An appellate court will assume every fact and inference which the trier of fact could resonably have deduced from the evidence (People v. Powell [ (1960) ], 187 Cal.App.2d...