Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 06CM3902, James LaPorte, Judge.
James F. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Virna L. DePaul, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Appellant Patrick Hammond (appellant) was convicted of driving under the influence of alcohol in violation of Vehicle Code section 23152, subdivision (a). At the time of his arrest, he was informed by a deputy with the Kings County Sheriff’s Department that it was necessary for appellant to submit to a chemical test to determine the alcohol content of his blood. Since the Kings County Jail facility did not have equipment to perform a breath test, appellant was advised that his only option was a blood test. Appellant refused and no chemical test was performed. He was convicted of driving under the influence of alcohol based on the testimony of several deputies who had witnessed appellant’s condition. Appellant appeals, contending that since section 23612, subdivision (a)(2)(A) provides that a suspected drunk driver shall be given the option of either a breath or blood test, the trial court was required to sua sponte instruct the jury that it could consider “the failure of county police officials to comply with the California Vehicle Code testing requirements.” We disagree and therefore affirm the judgment.
Unless otherwise indicated, all further statutory references are to the Vehicle Code. Appellant was convicted of other counts that are not relevant to this appeal.
FACTS AND PROCEDURAL BACKGROUND
On August 29, 2006, at approximately 7:00 p.m., Sheriff McClain of the Kings County Sheriff’s Department was driving on 12th Avenue in Kings County when a white Toyota, traveling at 70 miles per hour, rapidly approached from behind McClain’s vehicle, crossed over the double yellow divider lines and passed him on the left. Sheriff McClain then observed the Toyota to reenter the lane and pass several other vehicles on their right side while driving over orange traffic cones. At that point Sheriff McClain activated the police lights and siren on his unmarked patrol car to stop the white Toyota, and it pulled over to the right.
When Sheriff McClain approached the stopped Toyota, appellant (the driver) got out of the driver’s side door. Appellant’s face was flushed, he could not stand still and he would not respond to McClain’s request to get back inside his Toyota. Appellant was very agitated in his behavior and kept saying he did not want to go back to jail. Based on his training and many years of experience in law enforcement, Sheriff McClain believed that appellant was intoxicated.
Minutes later, Deputy Johnson arrived. Deputy Johnson noticed that appellant’s eyes were bloodshot, watery and droopy, and that appellant had a strong odor of alcohol. When Deputy Johnson placed appellant in a patrol car, appellant began to yell, became belligerent and used profanity. Appellant’s speech was slow and slurred. Appellant refused to respond to Deputy Johnson’s request that he identify himself; however, another deputy later recognized appellant as Patrick Hammond. Based on his training and experience in law enforcement, Deputy Johnson believed that appellant was intoxicated and could not operate a vehicle safely.
Next to arrive at the scene was Deputy Torres. He noticed that appellant had a strong odor of alcohol, slurred speech, bloodshot watery eyes and other behavior that clearly indicated intoxication. Based on his training and experience as an officer, Deputy Torres was sure that appellant was drunk and could not safely operate a vehicle.
The officers did not perform field sobriety tests due to appellant’s extreme agitation and hostility, and because they believed he might run away. The officers arrested appellant for resisting and delaying peace officers and for driving under the influence of alcohol.
At the Kings County Jail, appellant continued his belligerent conduct. At one point, an officer had to use a “tazer” to subdue him and he was held on the floor to prevent a fight with the deputies. Deputy Gilson could not perform a field sobriety test at the jail because appellant was too combative. Deputy Gilson told appellant he was required to submit to a blood test. Deputy Gilson offered only the blood test because Kings County Jail did not have the equipment to perform a breathalyzer test. Deputy Gilson attempted to read the standard test admonition to appellant from the Department of Motor Vehicles form, but appellant yelled “‘Fuck you,’” and when Deputy Gilson continued to read, appellant yelled, “‘I refuse.’”
Appellant testified in his own behalf. He claimed he only had a small amount of beer before driving and was not drunk. He passed a white Ford Expedition because it was traveling slower than the regular speed of traffic. When appellant was pulled over, he told Sheriff McClain he was upset because his girlfriend had cheated on him. Appellant admitted he was very angry and reacted in anger toward the officers. Appellant testified that he was treated roughly, was handcuffed and was taken to jail. At the jail, appellant was placed face down on the floor and left there. Appellant could not remember whether he was asked about taking a blood test. He claimed he was exhausted and angry, but not intoxicated.
On January 25, 2007, the jury returned a guilty verdict on several of the counts charged against him, including driving under the influence of alcohol in violation of section 23152. Sentence was imposed on March 13, 2007. Appellant timely filed this appeal.
DISCUSSION
Appellant contends the trial court had a duty on its own motion to instruct the jury that it may consider the fact that Kings County and/or law enforcement officers failed to provide appellant with a choice of both types of chemical tests to determine his blood-alcohol level as required by the implied consent law.
I. Standard of Review
Claims of errors in jury instructions, including contentions that the trial court had a duty to give an instruction sua sponte, involve questions of law that are reviewed de novo. (People v. Russell (2006) 144 Cal.App.4th 1415, 1424; People v. Guiuan (1998) 18 Cal.4th 558, 569.)
II. Overview of a Trial Court’s Duty to Instruct Sua Sponte
“‘“It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.”’” (People v. Breverman (1998) 19 Cal.4th 142, 154.) A trial court’s duty to instruct, sua sponte, on general principles closely and openly connected with the facts before the court has been held to include “‘giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present.’” (Ibid.) It also has been held to encompass a duty to instruct on defenses, but “‘only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’ [Citation.]” (Id. at p. 157.) There is also a duty to provide explanatory instructions when terms used in an instruction have a technical meaning peculiar to the law. (People v. Enriquez (1996) 42 Cal.App.4th 661, 665.) At the same time, a trial court has a correlative duty to refrain from instructing on irrelevant and confusing principles of law. (People v. Andersen (1994) 26 Cal.App.4th 1241, 1250.)
An erroneous failure to instruct is subject to harmless error review under People v. Watson (1956) 46 Cal.2d 818, 836-837. (People v. Rogers (2006) 39 Cal.4th 826, 867-868; People v. Breverman, supra, 19 Cal.4th at pp. 176-178.) Thus, reversal is required only if it is reasonably probable the jury would have returned a different verdict absent the error or errors complained of. (People v. Rogers, supra, at p. 868.)
III. There Was No Sua Sponte Duty to Instruct in This Case
As noted, appellant argues the trial court had a duty to instruct the jury that it may consider the failure on the part of Kings County law enforcement officers to fully comply with the California Vehicle Code testing requirement with respect to persons arrested for driving under the influence of alcohol.
The testing requirement referred to by appellant is that which is found in section 23612, also known as the implied consent law. Under that law, a person who drives a motor vehicle “is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood .…” (§ 23612, subd. (a)(1)(A).) A person lawfully arrested for driving under the influence of an alcoholic beverage “has the choice of whether the test shall be of his or her blood or breath and the officer shall advise the person that he or she has that choice.” (§ 23612, subd. (a)(2)(A).) The Legislature, however, has restricted an arrestee’s choice under certain circumstances. (Smith v. Department of Motor Vehicles (1986) 179 Cal.App.3d 368, 373-374.) If the person arrested is incapable of completing the chosen test, he or she shall submit to the remaining test. (§ 23612, subd. (a)(2)(A).) Also, if either a blood or breath test is not available, the person shall submit to the remaining test. (§ 23612, subd. (d)(2).) Thus, the arrestee’s choice of tests is limited by what is feasible and available under the circumstances, and the arresting officer is given broad discretion in that regard. (Smith v. Department of Motor Vehicles, supra, at p. 374.)
The implied consent statute was formerly numbered as section 23157 (see Stats. 1999, ch. 22, § 18.4) and prior to 1985, it was found at section 13353. (Smith v. Department of Motor Vehicles, supra, 179 Cal.App.3d at p. 374, fn. 3.) “[T]he immediate purpose of …, the implied consent law, is to obtain the best evidence of blood alcohol content at the time of the arrest of a person who is reasonably believed to be driving while intoxicated. Its ultimate purpose is to inhibit intoxicated persons from driving on the highways[.] [Citations.] It is also well recognized that, as a matter of public policy, it is desirable to obtain a sample of one of the tests in a noncoercive fashion thereby substituting volition for compulsion. [Citations.]” (People v. Ryan (1981) 116 Cal.App.3d 168, 182.)
An officer’s failure to offer an arrestee the choice of tests or to comply with the arrestee’s choice is not grounds for dismissal of criminal charges. (People v. Superior Court (Maria) (1992) 11 Cal.App.4th 134, 143-144.) Mere noncompliance with the implied consent law without more does not implicate any constitutional issue or invoke any statutory exclusionary rule. (People v. Fiscalini (1991) 228 Cal.App.3d 1639, 1645, fn. 7.)
Here, Deputy Gilson did not violate the implied consent law. There was evidence that appellant was hostile and dangerously combative, and had to be held down by other deputies. Deputy Gilson determined that a field sobriety test could not be performed under such circumstances. When Deputy Gilson began reading the admonition concerning testing to ascertain the alcohol content of appellant’s blood, appellant screamed out expletives, and when the blood test option was mentioned he yelled, “‘I refuse.’” Appellant’s conduct demonstrated a lack of willingness to cooperate in any way or to undergo any type of testing. Even if a breath test had been available, it would have been pointless to offer it in light of appellant’s adamant and belligerent refusal to cooperate. (See Cahall v. Department of Motor Vehicles (1971) 16 Cal.App.3d 491, 496-497 [“There would have been no point in taking the appellant to a hospital or laboratory for the purpose of having a blood or breath test administered when he had already inferred that he would not take either of the alternative tests”].)
But even if the Kings County Sheriff’s Department and/or other county officials failed to fully comply with the implied consent law by not having adequate equipment on hand at the jail facility to perform a breathalyzer test, the trial court was not under a duty to sua sponte instruct the jury concerning that fact. The alleged noncompliance did not give rise to any defense, it was not relevant to any element of the prosecution’s case, and it did not affect the weight or credibility of any other evidence. If anything, it would likely have confused or misled the jury concerning its responsibilities.
Appellant cites People v. Adams (1976) 59 Cal.App.3d 559 (Adams) in support of his position. The Court of Appeal in that case decided that a lack of compliance with regulations pertaining to the calibration of a breathalyzer machine did not necessarily require exclusion of the test results, but merely went to the weight of the evidence. (Id. at p. 567.) “[A]s the regulations were not followed, appellants were entitled to attempt to discredit the results by showing that noncompliance affected their validity; indeed, the court instructed that any such noncompliance could be considered by the jury in evaluating the test evidence.” (Ibid.; see also People v. Williams (2002) 28 Cal.4th 408, 414-418 [approving approach used in Adams].) Adams is obviously distinguishable because there was a chemical test performed in that case and the law enforcement agency’s noncompliance with certain maintenance procedures was relevant to the weight of that evidence. Here, in contrast, the alleged noncompliance with the implied consent law did not in any way affect the weight or validity of any evidence relating to appellant’s guilt or innocence. Thus, Adams does not support the contention that the trial court had a duty to instruct the jury on this matter.
The jury was instructed concerning the driving under the influence charge under the standard instruction set forth at CALCRIM 2110. Appellant suggests that the bracketed portion of CALCRIM 2110, or a modification thereof, was also required. The bracketed portion states: “[In evaluating any test results in this case, you may consider whether or not the person administering the test or the agency maintaining the testing device followed the regulations of the California Department of Health Services.]” (CALCRIM No. 2110.) Obviously, the bracketed portion was irrelevant in the present case since no tests were taken.
Lastly, appellant cites a number of cases in which suppression motions were made in the trial court to exclude evidence of a chemical test to prove blood-alcohol content. (See, e.g., People v. McHugh (2004) 119 Cal.App.4th 202, 208, 212-214 [trial court correctly denied motion to suppress blood test where defendant refused any testing but later changed his mind and sought a breath test]; People v. Wilson (2003) 114Cal.App.4th 953, 959 [motion to suppress correctly denied]; People v. Sugarman (2002) 96 Cal.App.4th 210, 213 [same]; People v. Fiscalini, supra, 228 Cal.App.3d at pp. 1641-1642 [forceable blood test taken after defendant elected to take urine test and provided urine sample -- motion to suppress should have been granted].) These cases are clearly distinguishable. Obviously, appellant cannot and does not contend that any form of chemical testing was conducted in a manner contrary to his constitutional or other rights. No chemical tests were performed, none were requested by appellant, and no motion to suppress evidence was made. Although the above mentioned cases make reference to the implied consent law, including the requirement that a driver be given a choice of blood or breath tests, nothing set forth therein provides legal support for appellant’s position that the trial court in the instant case had a duty to instruct the jury sua sponte concerning the asserted noncompliance with the implied consent law.
In summary, appellant has failed to show that the noncompliance with the implied consent law was relevant to any defense or issue in the case, or to the weight or reliability of any other evidence presented at trial. Under the circumstances, the trial court had no duty to instruct the jury thereon and hence no instructional error occurred.
Furthermore, even if an error occurred, it was not prejudicial as the evidence of intoxication was sufficiently strong that it is not reasonably probable the jury would have returned a different verdict absent the instructional error. (People v. Rogers, supra, 39 Cal.4th at p. 868.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Levy, Acting P.J., Dawson, J.