People v. Bolourchi

325 Cal.Rptr.3d 3

103 Cal. App. 5th 243

The PEOPLE, Plaintiff and Respondent,

v.Haadi BOLOURCHI, Defendant and Appellant.

A167289

Court of Appeal, First District, Division 4.

Filed June 28, 2024

As Modified July 25, 2024

Trial Court: Superior Court of California, County of Marin, Trial Judge: Hon. Beth S. Jordan (Marin County Super. Ct. No. SC207297A) Heather E. Shallenberger, San Francisco, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Bridget Billeter, Supervising Deputy Attorney General, and Julia Y. Je, Deputy Attorney General, for Plaintiff and Respondent.

STREETER, J.

₂₄₉Under Vehicle Code ¹ section 23612, subdivision (a)(1)(B), "A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood for the purpose of determining the drug content of his or her blood, if lawfully arrested for" driving while under the influence of a drug in violation of section 23152, subdivision (f).² The question presented here is this: If, following a valid arrest for such an offense, a motorist refuses to cooperate in the taking of a blood test unless a warrant is first obtained, may the jury at the motorist’s ensuing DUI trial draw an adverse inference of consciousness of guilt based on that refusal?

Our answer is yes. In this case, a jury convicted defendant Haadi Bolourchi of a DUI offense in violation of section 23152, subdivision (f), and bribing an executive officer. The trial court suspended imposition of sentence, placed Bolourchi on three years’ probation, and ordered a jail term of 180 days. On appeal, Bolourchi contends the DUI conviction should be reversed. He argues the court erred by instructing the jury with CALCRIM No. 2130, an instruction that states a defendant’s refusal to submit to a chemical test as required by California’s implied consent statute (§ 23612) may show consciousness of guilt.

Seeing no instructional error, we affirm.³

I. BACKGROUND

A. The Charges

An information charged Bolourchi with driving under the influence of a drug with priors (§§ 23152, subd. (f), 23550, subd. (a); count 1) and bribing an executive officer (Pen. Code, § 67; count 2). Among the sentencing enhancement allegations for count 1 was a charge that Bolourchi willfully refused a peace officer’s request to submit to a chemical test and willfully failed to complete that test. (§§ 23612, 23577, 23578.)

B. The Evidence Presented at Trial

Officer Kevin Finerty testified as follows.

₂₅₀In the early morning hours of September 22, 2018, while on patrol in San Rafael, Officer Finerty noticed a black Dodge Challenger with tinted front windows, obscuring the driver. Loud noises were emitting from the car’s rear exhaust. Both conditions violate the Vehicle Code. After the car rolled slowly over the crosswalk and into the middle of an intersection against a red light, Officer Finerty pulled behind it and activated his emergency lights. When the car failed to stop, he activated his siren.

With Officer Finerty trailing close behind, the car proceeded 500 feet before pulling into the parking lot of a 7-Eleven store. The driver, Haadi Bolourchi, got out and began walking into the store, seemingly oblivious to the fact a patrol car with lights and siren activated had been behind him before he stopped. Officer Finerty directed Bolourchi to get back into his car, which Bolourchi refused to do, stating he did not consent to a search of the car. The officer found that odd, since he had not asked permission to search anything.

During the ensuing interactions between Officer Finerty and Bolourchi, Bolourchi exhibited a number of suspicious traits and behaviors suggesting paranoia and other indications of intoxication. His eyes were red and watery. His speaking tone was low and his speech was slow. And he said he was unaware Officer Finerty had pulled behind him, despite the lights and sirens immediately behind him before he pulled into the 7-Eleven lot.

Bolourchi gave a confused response to a simple question about where he was driving from and where he was going. He was unsteady on his feet. He failed to comply with multiple directions to sit on the ground, and had to be physically guided into a sitting position. He repeatedly asked the same questions about why he had been stopped even after being told he was suspected of Vehicle Code violations.

Faced with these various indications of intoxication, Officer Finerty conducted several field sobriety tests, including the horizontal gaze nystagmus test, the walk and turn test, the one-leg stand test, and the finger to nose test. Bolourchi’s poor performance on a number of these tests suggested that he was under the influence of drugs or alcohol, so Officer Finerty administered a preliminary alcohol screening (PAS) test.⁴

When the PAS results showed no evidence of alcohol use, Officer Finerty began to focus on possible drug intoxication. Bolourchi admitted to smoking ₂₅₁cannabis the day before, and indicated he normally kept his cannabis in the trunk of his car. Officer Finerty replied that he was concerned whether Bolourchi had been driving while under the influence of cannabis, not where he normally stored it. " ‘Yeah,’ " said Bolourchi, seemingly in agreement with the officer’s stated concern.

At that point, Officer Finerty arrested Bolourchi and placed him in the back of his patrol car. The officer then conducted an inventory search of Bolourchi’s car. There were multiple packets of Swisher Sweets tobacco cigars in the car. According to Officer Finerty, people often replace the tobacco in these cigars with cannabis and smoke them. Also in the car was an empty pill container for the prescription drug Alprazolam. No cannabis was found on Bolourchi or in his car.

After driving Bolourchi to the police station, Officer Finerty told Bolourchi he was going to conduct a drug recognition evaluation (DRE). Bolourchi was still confused as to why he was there. The officer told Bolourchi that he believed he was under the influence of drugs, either prescription or nonprescription. Although Bolourchi adamantly denied that he was under the influence of prescription drugs, he did not deny driving under the influence of cannabis.

In conducting the DRE, Officer Finerty checked Bolourchi’s vital signs. Bolourchi’s blood pressure and body temperature were normal. His pulse was elevated, which is consistent with cannabis use. Bolourchi’s pupils were normal in varying light. Officer Finerty testified it is possible for an individual to be under the influence of marijuana and still have normal blood pressure, body temperature, and, pupil size.

Officer Finerty also administered the Modified Romberg Test to test Bolourchi’s internal clock. During an elapsed period of 35 seconds, Bolourchi estimated 30 seconds had passed. The officer observed that the condition of Bolourchi’s tongue was consistent with dry mouth and cannabis use and with smoking a cigar or a glass pipe. Bolourchi told Officer Finerty that on September 21, he had smoked approximately one gram of cannabis at 8:00 a.m. and again at 10:00 a.m., and he had taken some Alprazolam at 3:00 p.m.

Based on Bolourchi’s physical condition, behavior, and performance on the field sobriety tests, Officer Finerty formed the opinion that Bolourchi was under the influence of cannabis and asked Bolourchi if he would consent to a blood test. Bolourchi agreed to have a blood sample taken but wanted it done at the jail and not at the police department.

Officer Finerty then drove Bolourchi to the county jail. But at the jail, Bolourchi stated that he did not want to have his blood drawn and wanted the ₂₅₂officer to get a warrant for the blood test. Bolourchi also made statements to the effect that he wanted the officer to "work for [his] money." At this point, Officer Finerty drove Bolourchi back to the police department to obtain a warrant.

During the drive back to the police department, Bolourchi made a statement to the effect of " 'You can’t get any tips?’ " The officer was confused by Bolourchi’s remark. Bolourchi then told the officer that he would pay him $1,000 if he let him go. When Officer Finerty asked Bolourchi to confirm what he was saying, Bolourchi repeated that he would give the officer $1,000 if he let him go.

Bolourchi explained that the tow of his vehicle was only going to be $100 and that he would be paying the officer 10 times that amount. Officer Finerty did not think Bolourchi was joking, because "[h]e wasn’t laughing. He and I weren’t laughing back and forth or anything." Although Bolourchi did not have cash on his person, the officer believed that he was making a serious attempt to bribe him with $1,000.

Officer Finerty obtained a warrant for the blood test. The blood draw was performed at 5:57 a.m. The sample was sent to the Department of Justice for testing. Criminalist Cathralynn Cook testified about the results of that testing. Cook testified as an expert on the procedures and operations of the Department of Justice laboratory, blood analysis for the presence of drugs, and the effect of drugs on the human body and a person’s ability to operate a vehicle.

According to Cook, Alprazolam is a central nervous system depressant and can cause impairment by slowing that system down. Common symptoms include lowered heart rate, pulse rate, and body temperature. It can also cause sleepiness, confusion, muscle relaxation, a slowed perception of time, and difficulties with spatial awareness. Both Alprazolam and THC (the active ingredient in marijuana) can affect a person’s ability to do more than one task at a time, disrupting the divided-attention processing in the brain. Driving is a complex divided-attention task. The test of Bolourchi’s blood sample showed "[t]he presence of Alprazolam," and "2.2-nano-grams per milliliter of Delta 9-THC as well as...