Filed 6/24/14 P. v. Le CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047868

         v.                                                            (Super. Ct. No. 12NF0242)

NGHIEM VAN LE,                                                         OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, David A.
Hoffer, Judge. Affirmed as modified.
                   Kenneth H. Nordin, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Chief Assistant
Attorney General, Peter Quon, Jr., Assistant Attorney General, and Linh Lam, Deputy
Attorney General, for Plaintiff and Respondent.
              A jury convicted Nghiem Van Le of driving while under the influence of
alcohol (Veh. Code, § 23152, subd. (a); count 1), driving with a blood-alcohol level of
0.08 percent or higher (Veh. Code, § 23152, subd. (b); count 2), and driving on a
suspended license (Veh. Code, § 14601.2, subd. (a); count 3).
              The trial court found true allegations Le drove with a blood-alcohol level of
0.15 percent or more (Veh. Code, § 23578), had three prior felony convictions for driving
while under the influence (Veh. Code, § 23578), a prior “strike” within the meaning of
the “Three Strikes” law, and served two prison terms (Pen. Code, § 667.5, subd. (b)).
              The trial court imposed a total sentence of five years, consisting of four
years for count 1 (twice the midterm), plus one year for one of the prison priors. The trial
court struck the remaining prison prior for sentencing only, stayed sentence for count 2
pursuant to Penal Code section 654, and suspended sentence for count 3.
              Le challenges the sufficiency of the evidence to prove count 2, driving with
a blood-alcohol level of 0.08 or greater, and the Vehicle Code section 23578 finding with
respect to counts 1 and 2. He further asserts the trial court improperly gave CALCRIM
No. 2111, an instruction on permissive inference. He also claims the trial court erred by
suspending imposition of sentence on count 3 rather than staying the imposition of
sentence. The Attorney General concedes the court should have stayed sentence on count
3, and we modify the judgment accordingly. In all other respects, the judgment is
affirmed.
                                          FACTS
1. Arrest
              Around 4:30 p.m. on January 23, 2012, Anaheim Police Officers Trang
Pham and Kevin Pedrosa saw Le sitting in the driver’s seat of a car stopped at a stoplight.
Le did not immediately proceed through the intersection when the light turned green.
Pham noticed Le’s hesitation, and the two officers drove ahead and waited for Le. When
Le drove by the officers, they pulled in behind him and activated their overhead lights.

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               It took a few minutes for Le to pull over. Pedrosa testified, “there was this
like stop and go kind of thing inside the parking lot. It was several minutes of that before
he finally decided he was going to stop for us.” Pham testified that he believed Le was
simply not paying attention. After 10 minutes, Le finally stopped his car.
               When Pham and Pedrosa approached Le’s car, they noticed that Le was
slumped over to his right and appeared to be passed out. His eyes were closed and he
was motionless. When Le opened his eyes, they were red and droopy, his speech was
slurred, and he mumbled when he tried to talk. Le staggered out of his car, and had to
use the car for support.
               Pedrosa helped walk Le to a nearby curb and asked him to sit down. When
he helped Le walk, Pedrosa smelled alcohol on Le’s breath and body. Pedrosa and Pham
asked Le about his recent activities and any medical conditions he may have, including
medications he might have taken. Le denied drinking any alcohol that night. Le told the
officers that he got six hours of sleep the night before, he had no physical defects or
medical conditions, and he denied being sick or injured, diabetic or epileptic, or on any
medicines or drugs. Based on the officers’ observations, they decided to have Le perform
field sobriety tests.
               About 40 minutes after they had first seen Le, the officers administered a
series of field sobriety tests.1 Le appeared to understand their directions, and he was told


       1  The officers asked Le to perform the Romberg test, the walk and turn test, and
the one-legged stand. In the Romberg test, the licensee is asked to stand at attention,
close his eyes, tilt his head back, and estimate the passage of 30 seconds. (People v.
Bejasa (2012) 205 Cal.App.4th 26, 33.) In the walk and turn test, the individual is asked
to walk heel to toe in a straight line for nine steps, then turn around and walk back heel to
toe. (See People v. Mathson (2012) 210 Cal.App.4th 1297, 1303, fn. 3.) The one-legged
stand required Le to stand with his feet together and his arms at his sides, then to raise
one of his feet 6 to 12 inches high, keeping his foot parallel to the ground and his knees
straight. Once Le achieved this position, the officer directed him to look at his toes and
count from 1,001 up until told to stop.


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to ask questions if he did not. According to Pham, Le failed every field sobriety test
administered.
                During the Romberg test, Le “swayed back and forth and side to side about
two to three inches,” and he had to be reminded to keep his eyes closed. Le
underestimated the passage of time, stating he believed 30 seconds had passed when, in
fact, only 21 seconds had actually elapsed. On the walk and turn test, Le deviated from a
straight line several times, took the wrong number of steps, turned improperly, and used
his arms to help him balance. During the one-legged stand test, Le did not raise the foot
that the officer instructed him to raise, he was unable to stand on one leg 30 seconds
without swaying back and forth and he was unable to use his arms for balance. The
officers did not administer the finger-to-nose test2 for fear Le would lose his balance and
be injured, nor did they administer the horizontal gaze nystagmus test, although this was
not out of concern for Le’s safety.3
                Based on the totality of the circumstances, including Le’s behavior, his
performance on the field sobriety tests, his driving, and the obvious signs and symptoms
of intoxication he exhibited, Pham formed the opinion that appellant was “impaired” for
the purpose of driving.
                Le was placed under arrest for suspected driving under the influence and
his car searched. The officers found two vodka bottles on the floor behind the front
passenger seat. One bottle was empty. The other bottle was half empty.


       2The finger-to-nose test requires an individual to place his feet together, tilt his
head back, lift one finger (left or right) and touch the tip of his nose and then put his hand
down.

       3  “Nystagmus’ is an involuntary rapid movement of the eyeball, which may be
horizontal, vertical, or rotary. [Citation.] 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. [Citation.]” (People v. Ojeda (1990) 225
Cal.App.3d 404, 406.)

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              A technician at the Anaheim Police Department drew Le’s blood at 6:15
p.m. Later testing revealed that Le had at 0.175 blood-alcohol level at the time of the
blood draw. Le was approximately five feet, seven inches tall and weighed
approximately 180 pounds.
2. Expert Testimony
              Erin Nixt, a forensic scientist at the Orange County crime laboratory,
testified as the prosecution’s expert. Nixt explained that alcohol is absorbed through the
stomach and small intestines during the first phase of alcohol absorption. During the
second phase, the distribution phase, the alcohol is “pumped around to the rest of the
body along with the blood.” In the third phase, the elimination phase, alcohol is removed
from the bloodstream, primarily by metabolism in the liver, but also by excretion in
breath and urine.
              There is no average rate of absorption of alcohol but, in general, a person
reaches maximum blood-alcohol concentration within 15 to 30 minutes after he has
stopped drinking, if he or she has an empty stomach. On the other hand, a large meal can
delay absorption. And, in general, blood alcohol is eliminated at the rate of about 0.015
percent per hour. Of course, a blood-alcohol test only establishes the amount of alcohol
in the blood at the time of the test.
              In Nixt’s opinion, “most people will be impaired for the purposes of driving
at a .05 [blood-alcohol content level]. That means that they may be mentally impaired or
may be mentally and somewhat physically impaired at that level.”
              The prosecutor asked Nixt to assume a “hypothetical male weighing 180
pounds,” a blood-alcohol test result of 0.175 percent roughly 90 minutes after the male is
seen driving. In addition, the prosecutor asked Nixt to assumed that while in his car, the
male had been observed slumped over to his right side in the driver’s seat of his car,
delayed moving forward when the light turned green, did not immediately stop when the
police initiated a traffic stop, had red, watery eyes, slurred speech, and an odor of alcohol

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about his breath and person, and who was also mumbling, stumbling, swaying, and could
not follow directions or adequately perform field sobriety tests, is consistent with being
impaired when he drove 90 minutes earlier.
              Nixt admitted she could not state with absolute certainty what Le’s blood
alcohol level was when he was driving because she did not know when he stopped
drinking. Nevertheless, Nixt opined that a male of Le’s physical stature would have to
consume between nine and ten standard drinks to achieve a blood-alcohol level of 0.175
percent.
3. Defense Case
              a. Expert Testimony
              Forensic toxicologist Darrell Clardy testified that the horizontal gaze
nystagmus test is usually the first test done by police officers to determine impairment,
and the test is not dangerous to give to intoxicated persons because it can be performed
with the subject sitting down or standing up. He agreed with Nixt’s explanation of the
three phases of alcohol absorption.
              Clardy testified that people who drink on an empty stomach reach their
peak level of blood-alcohol content between 30 minutes to two and one-half hours
whereas if there is food in the person’s stomach, the peak level of blood-alcohol content
happens between 90 minutes and four hours. In Clardy’s opinion, it was not possible to
determine what stage of absorption Le was in at the time he drove. Nevertheless, Clardy
opined, with “reasonable probability,” that Le was still absorbing alcohol at the time the
field sobriety tests were performed. And, in Clardy’s opinion, “most of us aren’t going to
be impaired until we’re above the .10 [percent level of blood-alcohol content].”
              Clardy also testified that poor performance on field sobriety tests could be
the result of intoxication, sleep deprivation, or poor hand-eye coordination. He also
challenged the efficacy and reliability of field sobriety tests.



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              Dr. Martha Rogers, a specialist in forensic psychology, also testified for the
defense. She administered a number of tests to Le, and explained the results. According
to Rogers, Le scored very low for verbal comprehension, perceptual reasoning, working
memory, and mental processing speed. She testified that Le had been shot in the head in
1993, which left Le “with some significant handicaps.” In fact, Rogers testified that the
1993 left brain injury rendered Le unable to use his right hand, and caused some
impairment to the right side of his body. She also testified that Le “has some kind of
visual handicap,” and he has difficulty with divided attention tasks.
                                      DISCUSSION
1. Sufficiency of the Evidence to Prove Driving With a 0.08 BAC or Higher
              Le asserts the prosecution failed to produce sufficient evidence to support
the conviction on count 2. He argues that “no rational fact finder could have found [him]
guilty” of driving with a blood-alcohol level of 0.08 or higher. We disagree.
              “‘“To determine the sufficiency of the evidence to support a conviction, an
appellate court reviews the entire record in the light most favorable to the prosecution to
determine whether it contains evidence that is reasonable, credible, and of solid value,
from which a rational trier of fact could find the defendant guilty beyond a reasonable
doubt.”’” (People v. Burney (2009) 47 Cal.4th 203, 253.) We presume all facts in
support of the judgment which could be deduced from the evidence, and do not reweigh
the evidence or redetermine credibility. (People v. Wilson (2008) 44 Cal.4th 758, 806.)
Reversal is warranted only if there is no substantial evidence to support the conviction
under any hypothesis. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
              Here, the officers’ observations of Le’s demeanor and behavior, and his
lackluster performance on the field sobriety tests, all of which occurred
contemporaneously with Le’s arrest, showed a significant level of impairment at that
time. Although Nixt could not give a precise estimate of Le’s blood-alcohol level at the
time of driving, she did testify Le’s performance of the field sobriety tests, and poor

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balance, appearance, and demeanor, were all consistent with a blood-alcohol level of
around 0.17 percent. And, she testified that while there is no standard rate for absorption,
the accepted average rate of elimination of alcohol is about 0.015 percent per hour.
              Even the defense expert conceded that Le’s performance could be the result
of significant impairment consistent with a 0.17 blood-alcohol level. However, in
Clardy’s opinion, Le’s blood alcohol was rising while he performed the field sobriety
tests, which means he did not drive with a blood-alcohol level of 0.17. With respect to
Rogers’s testimony that Le had mental and physical impairments that affected his
performance on the field sobriety tests, the jury was free to reject her testimony and
accept the testimony of the arresting officers. The officers said Le claimed no physical
impairment or medical condition when they questioned him. In short, the jury was free to
reject Le’s defense and accept the prosecution’s evidence.
              However, we believe the real flaw in Le’s claim is that the prosecution was
required to establish a precise blood-alcohol level at the time he drove. Rather, the
prosecutor’s burden was merely to prove Le’s blood-alcohol level was in excess of 0.08
percent at the time he drove. While it is possible Le ingested alcohol immediately before
the officers saw him stopped at a green light, i.e., because of the empty and half-empty
vodka containers under the driver’s seat, that evidence is not conclusive. There is no
evidence the bottles were accessible to him while driving.
              Moreover, even if the jury believed Le had continued his drinking until just
minutes before the accident, i.e., he was still in the absorption phase, that fact alone
would not preclude the jury from determining Le had achieved a blood-alcohol level of
0.08 percent or more at the time he drove. Given the expert’s testimony that the
absorption of alcohol into the bloodstream happens “fairly rapidly,” the jury could easily
conclude that the majority of the alcohol Le ingested had been fully absorbed when he
drove. In fact, the only way Le’s blood-alcohol level would increase after his arrest is if



                                              8
he had consumed alcohol just before or after the officers detained him. This scenario is
implausible and unsupported by the record.
              In any event, the permissive inference authorized by Vehicle Code section
23153 is sufficient to support the jury’s conclusion in the circumstance of this case. That
statute expressly authorizes a jury to draw an inference that a person whose blood test
reveals a blood-alcohol level of at least 0.08 percent within three hours of driving also
had a level of 0.08 percent or more at the time of driving. (Veh. Code, § 23153, subd.
(b).) Le relies on People v. Beltran (2007) 157 Cal.App.4th 235 (Beltran ) to argue
application of the inference is improper in his case, but the circumstances of Beltran are
distinguishable.
              In Beltran, the defendant’s blood test revealed a blood-alcohol level of
exactly 0.08 percent 45 minutes after he was cited, and then a second test, administered
30 minutes later, revealed his blood-alcohol level had risen 0.10 percent. Based upon
that rising level, the court noted “both parties presented expert testimony which
suggested that appellant’s [blood-alcohol level] was below the legal limit at the time he
was driving.” (Beltran, supra, 157 Cal.App.4th at p. 239.) Under those facts, the
appellate court concluded that allowing the jury to rely solely on the permissive inference
to establish a fact inconsistent with the evidence adduced at trial was improper because
“‘“the suggested conclusion is not one that reason and common sense justify in light of
the proven facts before the jury.”’” (Id. at p. 245.)
              On the other hand, the Beltran court also held that reliance on the
permissive inference is not a problem in a case where the proven facts were not
inconsistent with the inference. The court stated, “[W]hen used in appropriate cases,
permissive inferences do not shift the burden of production or lower the prosecution’s
burden of proof. Because they may or may not be drawn by the jury, they do not operate
in an unconstitutionally pernicious manner.” (Beltran, supra, 157 Cal.App.4th at p. 244.)



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              Here, unlike in Beltran, the evidence was consistent with the permissive
inference. Le had a blood-alcohol level of 0.17 percent 90 minutes after the stop, which
is nearly twice the legal limit. Without knowing when he last consumed alcohol, both
sides were free to argue their respective positions on whether Le was in the absorption
phase or the elimination phase. The fact that other evidence arguably undercut the
inference in this case, does not, as Beltran makes clear, preclude its use: “[a permissive
inference] may be given regardless of whether there is other evidence admitted at trial
‘rebutting’ the inference.” (Beltran, supra, 157 Cal.App.4th at p. 244.)
              Under these circumstances, the jury was entitled to rely on the permissive
inference authorized by Vehicle Code section 23153, subdivision (b). The permissive
inference, together with the other evidence presented at trial, is sufficient to support the
jury’s determination that Le drove with a blood-alcohol level of at least 0.08 percent.
Using the same analysis and set of facts, we conclude the evidence is also sufficient to
support the jury’s finding Le drove with a blood-alcohol level of 0.15 or above.
2. The Jury Instructions
              During a conference on jury instructions, Le objected to the trial court
instructing the jury with CALCRIM No. 2111. CALCRIM No. 2111 contains the
“permissive inference” discussed above, and allows the jury to infer a person drove a
vehicle with a blood-alcohol level of 0.08 percent or more if a blood sample taken within
three hours of driving records a blood-alcohol level of 0.08 percent or more. (Beltran,
supra, 157 Cal.App.4th at pp. 240, 242.)
              CALCRIM No. 2111 provides, in pertinent part, “If the People have proved
beyond a reasonable doubt that a sample of the defendant’s (blood/breath) was taken
within three hours of the defendant’s [alleged] driving and that a chemical analysis of the
sample showed a blood alcohol level of 0.08 percent or more, you may, but are not
required to, conclude that the defendant’s blood alcohol level was 0.08 percent or more at
the time of the alleged offense.” Because CALCRIM No. 2111 is a permissive inference

                                              10
not a mandatory presumption, it may be given regardless of whether there is other
evidence at trial which rebuts the inference. (Beltran, supra, 157 Cal.App.4th pp. 242-
244.)
              Le also argues CALCRIM No. 2111 should not have been given because
Clardy’s testimony was inconsistent with the permissive inference. Again we disagree.
              Vehicle Code sections 23152 and 23153 provide, “it is a rebuttable
presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her
blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight,
of alcohol in his or her blood at the time of the performance of a chemical test within
three hours after the driving” (Veh. Code, §§ 23152, subd. (b), 23153, subd. (b)). In
addition, Vehicle Code section 23610, subdivision (a)(3), sets forth a rebuttable
presumption that “[i]f there was at [the time of the test] 0.08 percent or more, by weight,
of alcohol in the person’s blood . . . the person was under the influence of an alcoholic
beverage at the time of the alleged offense.”
              Theses permissive inferences are appropriate where the conclusion the jury
is allowed (but not required) to draw is “‘“one that reason and common sense justify in
light of the proven facts before the jury.”’” (Beltran, supra, 157 Cal.App.4th at p. 245.)
Here, the conclusion that Le drove while under the influence of alcohol is nearly
inescapable. His speech was slurred, his eyes were watery, and he reeked of alcohol. He
failed every field sobriety test given, and the officers did not give one test for fear Le
would injure himself. His subsequent blood test revealed he had ingested between nine
and 10 drinks before he was stopped. These facts support giving CALCRIM No. 2111.
              In any event, even if there were an instruction error, we would deem that
error harmless. (See Beltran, supra, 157 Cal.App.4th at p. 247 [applying harmless error
analysis to jury instructions “erroneously allowing permissive inferences”]; People v.
Flood (1998) 18 Cal.4th 470, 505-507 [applying harmless error analysis to jury
instruction which omitted an element of the crime].) This is not a particularly close case.

                                              11
Le appeared very intoxicated to Pham and Pedrosa when they stopped him. They had to
help him walk, and he smelled like alcohol. His appearance and performance on the field
sobriety tests, coupled with the results of the blood-alcohol test administered about 90
minutes later, is sufficient to demonstrate that any error in the jury instructions was
harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.)
                                      DISPOSITION
              The clerk of the superior court is directed to modify the abstract of
judgment to reflect that punishment for count 3 is imposed but stayed, not suspended. In
all other respects, the judgment is affirmed.




                                                     THOMPSON, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



MOORE, J.




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