People v. Randolph

28 Cal.App.5th 602

239 Cal.Rptr.3d 395

The PEOPLE, Plaintiff and Appellant,

v.Eddie RANDOLPH, Defendant and Respondent.

F075085

Court of Appeal, Fifth District, California.

Filed October 23, 2018

As Modified on Denial of Rehearing November 14, 2018

Lisa A. Smittcamp, District Attorney, Traci Fritzler, Chief Deputy District Attorney, and Douglas O. Treisman, Deputy District Attorney, for Plaintiff and Appellant.

Edgar Eugene Page, San Francisco, for Defendant and Respondent.

LEVY, Acting P.J.

INTRODUCTION

In 2014, respondent Eddie Randolph was arrested by two California Highway Patrol (CHP) officers under suspicion of driving under the influence (DUI) of alcohol. Later that year, appellant Fresno County District Attorney’s Office filed a criminal complaint charging him with one count of misdemeanor DUI in violation of Vehicle Code section 23152, subdivision (a).¹ Under this statute, "[i]t is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle."² It was further alleged respondent had refused an officer’s request to submit to chemical testing in violation of Vehicle Code section 23577.³

In July 2015, the case was assigned for trial. Before a jury was empaneled, the trial court expressed concern that, without an expert witness, the prosecution would be unable to prove the required elements beyond a reasonable doubt based solely on the testimony of the arresting officers. The prosecutor attempted to qualify her two officers as experts on alcohol. Following a hearing pursuant to Evidence Code section 402, the trial court refused to recognize the officers as experts. The court then dismissed the case pursuant to Penal Code section 1385.⁴

Appellant contends the trial court abused its discretion in dismissing this matter. We agree. (The court failed to apply People v. Joehnk (1995) 35 Cal.App.4th 1488, 42 Cal.Rptr.2d 6 ( Joehnk ) and relied incorrectly on People v. Williams (1992) 3 Cal.App.4th 1326, 5 Cal.Rptr.2d 130 ( Williams ).) Williams no longer represents the law regarding an officer’s testimony about a defendant’s performance on a nystagmus⁵ test. We will reverse the order of dismissal and remand this matter for further proceedings.

BACKGROUND

I. The Relevant Comments During The Hearing On Motions In Limine.

On July 16, 2015, the case was assigned for jury trial. On that day, the trial court met with the parties and discussed in limine motions. The court had "considerable confusion" about the case because "an arrest tag" in the file showed a blood-alcohol content of "0.13," but there was no indication of a preliminary alcohol screening (PAS) test administered to respondent.⁶ The prosecutor explained that the blood-alcohol content came from an arresting officer who estimated it "based on the objective symptoms and field sobriety tests."

The court expressed concern that the officer would be unable to lay a foundation for that evidence and the prosecution did not have a designated expert witness. The court did not know how the prosecutor expected "to get in an opinion that [respondent] was under the influence and unable to safely operate a motor vehicle, cause [sic ] you’re not gonna [sic ] get it from your CHP officers. I know people come in here all the time thinking officers can opine somebody’s under the influence, but they can’t, not in my courtroom; not in any courtroom I’m familiar with. So you may have to run out and find yourself [an expert], but I’m not gonna [sic ] allow ... any lay witness to testify he failed the nystagmus test, so I concluded he was over .08 or approximated him at .13 or any such testimony because they don’t have a foundation for it."

The trial court made the following statements.

"An officer with the CHP can testify to how a gaze nystagmus test is given, what clues he’s looking for, but conclusions to be drawn from those don’t come from him, it comes from some expert who can tell us about correlation studies, why the gaze nystagmus test tells us about people under the influence, what other common causes might result in somebody showing those symptoms, why a certain number of symptoms gives some assurance that, in fact, they have nystagmus as opposed to some other condition. None of that’s gonna [sic ] come from your CHP officer, so I don’t know how you plan to prove it otherwise, but you’re not gonna [sic ] get it in through them."

The court ordered the parties to be present on July 20, 2015, for jury selection and trial.

II. The Hearing Pursuant To Evidence Code Section 402.

On July 20, 2015, before jury selection began, a hearing occurred pursuant to Evidence Code section 402. The prosecutor asked for this hearing to qualify the two arresting officers, Walters and Hernandez, as experts. The prosecutor confirmed her belief that these officers had sufficient training and education on the effects of alcohol on a person, and they could testify as experts on whether, based on a given set of facts, a person is or is not driving in an unsafe manner.

We summarize the facts from the hearing. Both Walters and Hernandez had undergone the standard academy training that all CHP officers experience. They were both experienced patrol officers and each had conducted thousands of DUI investigations. Both had training and experience using field sobriety tests, including horizontal gaze nystagmus (HGN) tests, on drivers who were suspected to be under the influence of alcohol. They explained how the field sobriety tests worked and the clues they are trained to observe when discerning if a suspect is under the influence of alcohol. However, neither officer had any formal scientific or medical training. After extensive questioning from both counsel and the trial court, the court ruled that neither officer was qualified as an expert on the effects of alcohol on a person and its impact on operating a motor vehicle.

III. The Trial Court’s Ruling.

Following the Evidence Code section 402 hearing, the following exchange occurred:

"THE COURT: All right. We’re back in session in People vs. Randolph . Both counsel are present. [Respondent] is present.

"All right. I’ve heard from your two CHP witnesses in [an Evidence Code section 402 ] hearing, and as I understand it, the People’s intent is to call those two witnesses and those two witnesses only to prove their case?

"[THE PROSECUTOR]: Yes, Your Honor. The People have [respondent’s] poor driving, his poor performance on the field sobriety tests and the presumption, and we are prepared to move forward.

"THE COURT: All right. Well, let’s make a record of what your offer of proof is on that. And let me just start with your trial brief and see if there’s an agreement that this summarizes the observations that the officers have related in the report.

"You have the officer describing that the white Kia traveling westbound on Herndon was weaving within its lane, and at one point the left side tires crossed over the broken white lane lines.

"Officers then stopped the vehicle and performed their evidentiary tests or their field sobriety tests, after contacting him noting the standard symptoms of DUI intoxication and moderate odor emitting from within the vehicle,^[7] his eyes red and watery and his speech slow and slurred, his movements clumsy. When asked if he consumed alcohol that evening, he stated he had one beer around 6:00 p.m. at the rodeo, slept eight hours the night before and ate nachos at 6:00 p.m.

"Then the officer gave the field sobriety tests. According to the officer then, [respondent] displayed six of the six scientifically validated clues and the horizontal gaze nystagmus test. During the finger count, he failed to touch his fingers to the tip of his thumb on his final attempt and completed three sets before stopping the tests. He counted one, two, three, four, five; four, three, two, one; one, two[,] three, four; four, three, two, one; and one, two, three, four; four, three, two, one.

"During the instruction phase of the walk-and-turn, [respondent] could not keep his balance. Once the test began, he missed heel to toe and stepped off the line on his first nine steps, made an improper spinning turn and missed heel to toe and stepped off on his second set of nine steps, and totally displayed four of the eight clues in the walk-and-turn.

"During the [Romberg] balance test, [respondent] displayed eyelid tremors, swayed two to three inches from front to back, and estimated 30 seconds after 15 seconds had elapsed.

"During the finger-to-nose test, [respondent] missed the tip of his nose on five of the six attempts and raised his left hand when instructed to raise his right hand on two consecutive attempts, and then he declined to take the—refused to take the preliminary alcohol screening test and refused to give a breath or blood sample as required under the law."

The prosecutor agreed this represented the substance of her case. Defense counsel interjected that dash cam evidence also existed. According to defense counsel, the video does not show any "bad driving" and respondent did not cross over the centerline. The prosecutor disagreed with this representation.

The trial court presumed that the video would show "some level of weaving and arguably a striking of the centerline, which is what the officers will testify was their observation, whether it’s specifically clear on the [video] or not." According to the court, the issue was whether, if all of this evidence was presented "without any expert opinion testimony to validate the science of this HGN test to establish that there is some substantial correlation between performance on that and the other field sobriety tests and one’s level of alcohol, and without an expert then to view all of the evidence that you present and give an expert opinion based on the totality of those circumstances that the person was or was not under the influence, without that, the question is, does that evidence rise to a level that is sufficient to prove the case beyond a reasonable doubt."

The court cited William...