Filed 10/7/14 P. v. Garcia CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039229
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1226991)

         v.

EFRAIN SANCHEZ GARCIA,

         Defendant and Appellant.



         Defendant Efrain Sanchez Garcia was convicted by jury trial of using
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methamphetamine (Health & Saf. Code, § 11550, subd. (a)). He pleaded no contest to
driving with a 0.08 or higher blood-alcohol level with three or more prior convictions
(Veh. Code, §§ 23152, subd. (b), 23550) and guilty to two counts of driving with a
suspended license (Veh. Code, §§ 14601.2, subd. (a), 14601.5, subd. (a)). The court
imposed a prison term, suspended execution of sentence, and granted defendant
probation.
         On appeal, defendant’s sole contention is that the methamphetamine count must be
reversed because the trial court prejudicially erred in instructing the jury that it could




1
         Statutory references are to the Health and Safety Code unless otherwise specified.
convict defendant of this offense if he had used methamphetamine within 48 hours of his
arrest. We find no prejudicial instructional error and affirm the judgment.


                        I. Factual and Procedural Background
       On January 1, 2012, at about 9:45 p.m., a police officer pulled defendant’s vehicle
over because one of his brake lights was “inoperative.” The officer had not seen any
driving by defendant that indicated he was impaired. When the officer approached
defendant, he saw that defendant “was a bit agitated.” He had bloodshot eyes, slurred
speech, and a strong odor of alcohol on his breath. Defendant told the officer that he had
consumed two beers. When defendant got out of the vehicle, the officer saw that
defendant had “an unsteady, uncoordinated gait.” Defendant did poorly on field sobriety
tests. He consented to a preliminary alcohol screening (PAS) test, and it showed that his
blood-alcohol level was 0.079.
       The officer arrested defendant and transported him to the police department’s
“DUI trailer” for a further test of his blood-alcohol level. On the way there, the officer
noticed that defendant “nodded off.” When they reached the trailer, the officer observed
that defendant “had excited speech, fluttering eyelids, nonreactive pupils, [and] dry
lips . . . .” Defendant continued to be “very hyper, agitated” and seemed unable to sit
still, and his pulse was 110 beats per minute, which was high. When the officer took
defendant’s pulse, defendant “spontaneously stated” “that he used methamphetamines
yesterday,” “yesterday, but not today.”
       The officer believed that defendant was under the influence of a stimulant and
requested that a blood sample be taken. A blood sample was taken at 10:22 p.m.
Methamphetamine at a level of 0.128 micrograms per milliliter was detected in
defendant’s blood sample. This test result did not indicate when the methamphetamine
had been ingested. His blood-alcohol level in this blood sample was 0.10.



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       A jury trial was held on the methamphetamine count, two counts of driving under
the influence of alcohol and drugs with prior convictions, and two counts of driving with
a 0.08 blood-alcohol level with prior convictions. At the beginning of the trial, the court
preinstructed the jury. These instructions included an instruction on the
methamphetamine count. “The defendant is charged with using or being under the
influence of methamphetamine, a controlled substance. To prove that the defendant is
guilty of this crime, the People must prove that the defendant was willfully and
unlawfully under the influence of methamphetamine, a controlled substance, when he
was arrested. [¶] . . . [¶] Someone is under the influence of a controlled substance if that
person has taken or used a controlled substance that has appreciably affected the person’s
nervous system, brain, or muscles, or has created in the person a detectible abnormal
mental or physical condition.”
       The prosecution’s expert testified at trial that methamphetamine “makes the
person more active and sometimes agitated,” causes nonreactive pupils, an elevated heart
rate, dry mouth, dry lips, and “fast speech.” She also testified that the level of
methamphetamine in defendant’s blood was “higher than a normal therapeutic dose.”
She opined, based on the blood test result and the officer’s observations, that defendant
was under the influence of methamphetamine at the time of his arrest.
       The defense expert testified that the officer’s observations did not necessarily
show that defendant was under the influence of methamphetamine. Defendant’s
“nodding off” was, in her opinion, “really contrary” to being under the influence of
methamphetamine. The level of methamphetamine in defendant’s blood did not by itself
indicate he was under the influence of methamphetamine because people have different
tolerances. The defense expert testified that the half-life of methamphetamine is 12
hours, and a study had shown that the average methamphetamine level in blood samples
tested for methamphetamine was about twice the level found in defendant’s blood. She



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testified that a person who had taken methamphetamine might no longer be under the
influence of methamphetamine the next day.
       The court instructed the jury after the close of evidence but before closing
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arguments. As to the methamphetamine count, the court instructed the jury: “The
defendant is charged in Count 5 with using methamphetamine, a controlled substance.
To prove that the defendant is guilty of this crime, the People must prove that, one, the
defendant willfully used methamphetamine, a controlled substance, within 48 hours of
his arrest.”
       The prosecutor argued to the jury that the methamphetamine count “is pretty
straightforward.” “The defendant was exhibiting signs and symptoms of being under the
influence. He admitted he had taken methamphetamine yesterday, within 48 hours of his
arrest. And his blood tested positive for methamphetamine. And all that you have to find
to convict on Count 5 is the defendant used methamphetamine within 48 hours of his
arrest. It’s pretty simple, pretty straightforward.”
       Defendant’s trial counsel acknowledged that the sole question on the
methamphetamine count was “Did Efrain Garcia use methamphetamine?” She also
conceded that defendant had admitted using methamphetamine. “And we know, too, just
based on his statement that he had taken methamphetamine yesterday. Okay. We have
already reviewed that.” She did not contend that defendant had not used
methamphetamine or was not guilty of the methamphetamine count.
       The jury returned a guilty verdict on the methamphetamine count, but it was
unable to reach a verdict on the other four counts.




2
       The record does not contain a transcript of the instruction conference, which might
have explained why the instruction on this count was inconsistent with the preinstruction
on this count.

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                                         II. Analysis
       Defendant claims that the trial court’s instruction to the jury that he could be found
guilty of the methamphetamine count if he “used methamphetamine, a controlled
substance, within 48 hours of his arrest” was prejudicial error.
       Section 11550, subdivision (a) provides: “No person shall use, or be under the
influence of any controlled substance . . . .” (§ 11550, subd. (a).) It makes no mention of
any temporal limitation. CALCRIM No. 2400, the standard CALCRIM instruction for
use of a controlled substance in violation of section 11550, tells the jury that the
prosecution must prove that the defendant “used . . . a controlled substance[, a short time
before (his/her) arrest].” (CALCRIM No. 2400.) The Bench Notes for CALCRIM No.
2400 state: “A violation of Health and Safety Code section 11550 based on ‘use’ of a
controlled substance requires ‘ “current use” or “use immediately prior to arrest”. . . .’
(People v. Jones (1987) 189 Cal.App.3d 398, 403-404 [234 Cal.Rptr. 408]; see also
People v. Velasquez (1976) 54 Cal.App.3d 695, 699-700 [126 Cal.Rptr. 656]; People v.
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Gutierrez (1977) 72 Cal.App.3d 397, 402 [140 Cal.Rptr. 122].)[ ] In People v. Jones,
supra, 189 Cal.App.3d at p. 406, the court found evidence of use within 48 hours prior to
the defendant’s arrest sufficient. If there is an issue in the case over when the defendant
allegedly used the substance, give the bracketed phrase ‘a short time before (his/her)
arrest’ in element 1. (Ibid.) Alternatively, the court may insert a specific time or time
frame in element 1, e.g., ‘24 to 48 hours prior to (his/her) arrest.’ ”



3
       People v. Gutierrez (1977) 72 Cal.App.3d 397 (Gutierrez) did not involve the
sufficiency of the evidence to support a section 11550 conviction or the adequacy of an
instruction on a section 11550 count. Gutierrez was a challenge to the denial of a
suppression motion, and the issue was whether a police officer’s observation of
withdrawal symptoms provided probable cause to believe that the defendant had violated
section 11550. The court determined that withdrawal symptoms were not enough.
(Gutierrez, at pp. 400-402.) That holding is not material to the validity of the trial court’s
instruction in this case.

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       In this case, there was no significant issue “over when the defendant allegedly
used the substance.” Defendant admitted that he used methamphetamine the day before
his arrest, and methamphetamine was found in his blood. The trial court did not elect to
use the bracketed phrase “a short time before.” Instead, it chose the alternative of
inserting a specific time, as suggested by the Bench Notes to CALCRIM No. 2400.
Defendant claims that there is no case authority supporting the trial court’s use of the
alternative suggested in the CALCRIM Bench Notes. He is incorrect.
       People v. Velasquez (1976) 54 Cal.App.3d 695 (Velasquez) was a decision of the
Second District Court of Appeal in which the court held, after a very brief discussion,
that there was insufficient evidence to support a conviction for use of a controlled
substance. The Second District’s analysis suggested that a use that occurred a week
earlier did not fall within the statute’s “use” proscription. “The ‘use’ proscribed by
section 11550 of the Health and Safety Code is a current use, not a use in the past. Even
though defendant lied in claiming to have been free of narcotics for several months, the
People’s own testimony supports no usage closer than the five-to seven-day period
testified to by their own expert. We conclude that, while usage no more distant than that
might support a finding of danger to become (again) addicted, it does not support a
finding of a current addiction and use.” (Velasquez, at p. 700.) Velasquez stands for the
proposition that the use must be “a current use” and that a use a week earlier is not “a
current use.”
       Bosco v. Justice Court (1978) 77 Cal.App.3d 179 (Bosco) was a Fifth District case
in which the court relied on Velasquez. The issue in Bosco was whether the word “use”
in section 11550 was unconstitutionally vague. (Bosco, at p. 191.) The Fifth District
reasoned that “[t]he implication from [Velasquez] is that in order to secure a conviction
under section 11550 the People must show that the defendant had used a controlled
substance immediately prior to the arrest.” (Bosco, at p. 191.) The Fifth District
concluded that the word “use” combined with what it viewed as Velasquez’s “time

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implications” rendered the statutory language not unconstitutionally vague. (Bosco, at
p. 191.) Of course, Velasquez neither stated nor implied that the use must be
“immediately prior to the arrest,” as the Fifth District suggested, but only that it must be
“a current use” and cannot be a week old.
       People v. Jones (1987) 189 Cal.App.3d 398 (Jones) was a subsequent Fifth
District case. In Jones, at the time of the defendant’s arrest, he had an injection site on
his hand “which appeared fresh, between one and three days old,” and he told a police
officer “that he had ‘fixed’ two days before.” (Id. at p. 402.) A urine test revealed the
presence of morphine, a metabolite of heroin. (Ibid.) A pathologist testified that the
amount of morphine present in the defendant’s urine indicated that he had used heroin
between 24 and 72 hours prior to his arrest, probably closer to 24 hours prior. (Ibid.)
The defendant testified at trial that he had used heroin two or three days prior to his
arrest. (Id. at p. 403.) The jury was instructed that “use immediately prior to arrest
meant a very brief period of time before arrest.” (Id. at p. 406.)
       The defendant in Jones was convicted of use. On appeal, he challenged the
sufficiency of the evidence on the ground that his use two days prior to his arrest was not
“ ‘current use.’ ” (Jones, supra, 189 Cal.App.3d at p. 403.) The Fifth District viewed “the
issue presented” as “whether the evidence of appellant’s heroin use within 24 to 72 hours
before his arrest fits within the definition of ‘use’ as proscribed by section 11550.”
(Jones, at p. 404.) The Jones court found that such use does come within section 11550’s
proscription on use. “[E]ven if the evidence were construed to show use within forty-
eight hours before appellant’s arrest, such usage two days before arrest could clearly
qualify for a finding of current use under [Velasquez].” (Jones, at pp. 405-406.)
       Jones supports the instruction given by the trial court. If a use two days before
arrest “fits within the definition of ‘use’ as proscribed by section 11550,” then an
instruction to that effect cannot be prejudicial error. The only purpose that such an
instruction serves is to favor a defendant by precluding a conviction for use where, as in

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Velasquez, the use was so temporally distant that it could not qualify as “a current use.”
Here, defendant did not dispute that his use was no more temporally distant than one day
prior to his arrest. Since such a use is clearly a “current use” under Jones, he could not
have been prejudiced by the trial court’s addition of the alternative language suggested in
the CALCRIM No. 2400 Bench Notes.


                                     III. Disposition
       The judgment is affirmed.




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                                   _______________________________
                                   Mihara, J.



WE CONCUR:




_____________________________
Bamattre-Manoukian, Acting P. J.




_____________________________
Grover, J.




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