Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR 508694
SIMONS, J.
Defendant Malcolm McCoy (appellant) appeals his conviction by jury trial of driving under the influence (Veh. Code, § 23152, subd. (a)) (count 1) and driving with a blood alcohol level of.08 percent or more (Veh. Code, § 23152, subd. (b)) (count 2). The jury found true the allegation that appellant’s blood alcohol level was.15 percent or higher as to both counts. (Veh. Code, § 23578.) He admitted a prior prison term allegation. (Pen. Code, § 667.5, subd. (b).) Appellant raises numerous claims of error. We reject each and affirm.
Appellant was sentenced to four years in state prison.
BACKGROUND
At approximately 11:00 a.m. on February 20, 2007, Coast Guard Police Officer Dietler was purchasing some items at a market in Cotati. Appellant had excrement and feces on the back of his pants and “reeked of alcohol” as he purchased what appeared to be a bag containing alcoholic beverages. Dietler noticed that appellant had a very staggered gait and was unable to pick his grocery bag off the counter. According to Dietler, appellant seemed to be intoxicated.
Dietler followed appellant out of the market. As appellant approached his Mitsubishi Eclipse, Dietler asked him if he planned on driving and told him he did not seem “okay to drive.” Appellant grunted and reached for his door handle. Dietler told appellant he would call the police. After appellant drove off, Dietler contacted the Cotati police department and followed appellant in his own car because, based on his training and experience, he believed appellant was too intoxicated to drive.
Dietler did not see appellant open the car door, get into his car, or pull out of his parking space.
Dietler noticed that appellant failed to use his turn signal when making a left turn, rolled through a stop sign, and had a slight inability to maintain his lane. Dietler did not see appellant speeding. When appellant’s car came to a stop in the parking lot of a residence, he sat in the car for a few minutes. A man approached and helped appellant out of his car, grabbed the bag of liquor, and walked with appellant toward the residence. After watching them walk this way for about 50 feet, Dietler lost sight of them. Dietler said it took about five minutes to drive from the market to the parking lot.
At 11:07 a.m., Cotati Police Officer Smith received a call dispatching him to the residence. He arrived there at about 11:10 or 11:12 a.m. He was met at the residence by Dietler, who said appellant had gone inside. Sometime between 11:15 and 11:25 a.m., Smith knocked on the door and appellant answered. Smith asked him to come outside to talk; appellant refused and closed the door. Standing four or five feet away from appellant, Smith noted that appellant smelled of fecal matter and alcohol. Smith’s supervisor told Smith to refer the matter to the California Highway Patrol (CHP).
According to Dietler, Smith arrived at the residence no more than 10 minutes after Dietler arrived there.
At about 11:30 a.m. Dietler returned to the residence to meet with the Cotati police. CHP Officers Shada and Mota arrived about 15 minutes later. After the CHP officers knocked and received no response, they forced their way into the residence. No alcohol bottles or drinking utensils were seen in the residence. Appellant was lying on the bed. His eyes were open, but he was nonresponsive and extremely intoxicated. Because appellant could not stand unaided, he was in no condition to submit to a field sobriety test. Dietler told Shada that he saw appellant purchase alcohol and thereafter appellant was weaving in his lane and varying his speed from slow to fast.
Appellant was arrested at 12:20 p.m. Because the officers were concerned that appellant could not care for himself, they had him transported to a hospital. Appellant’s blood was drawn at the hospital at 1:56 p.m.
In the afternoon, Smith went to the Cotati market to ask the clerk whether the market had earlier sold alcohol to an obviously intoxicated person. Owner Gurdev Singh confirmed that appellant had purchased alcoholic beverages. Later that day, Smith returned to the market and watched the security camera videotape with the other market clerk, Yadvinder Singh. In the video appellant walked unsteadily to the coolers along the wall, selected an item, took it to the front counter and paid for it. After an exchange with Dietler, appellant left the market. On cross-examination, Smith said that when he watched the videotape he mentioned to Yadvinder Singh that appellant did not “look too bad.” Smith said the videotape did not depict appellant stumble, fall down, or drop any of the items he had picked up. Moreover, appellant did not appear to have difficulty opening the market’s cooler, and carrying the item to the counter or completing his purchase.
Smith opined appellant was under the influence of an alcoholic beverage when Dietler observed him driving. Smith asked the market to preserve the security videotape, but the market was unable to produce a copy, and it was not preserved.
Dietler testified he did not believe that anyone sober would wear pants containing the amount of excrement appellant’s pants contained. Based on the odor emanating from appellant’s person while in the market, the way he walked to his car, and his inability to respond to Dietler’s question, Dietler opined appellant seemed “way too intoxicated to drive.” As a result of their training, experience, conversation with Dietler and observations of appellant, Shada and Mota concluded appellant was under the influence of an intoxicating beverage when Dietler saw appellant driving.
Criminalist Popovich testified as an expert in forensic alcohol analysis. The blood alcohol content of appellant’s blood sample was 0.31 percent. Hypothetically, Popovich said if a person has an empty stomach and is in fairly good health, generally 90 percent of the alcohol consumed is absorbed within the first 15 minutes of consumption. He also said the average rate of alcohol metabolism is about.018 percent per hour. Popovich hypothesized that if a person, who drank no alcohol after 12:00 p.m., had a.31 percent blood alcohol level at 2:00 p.m., his blood alcohol level at noon would have been about.34 percent. Popovich also testified hypothetically that to reach a.31 percent blood alcohol level in one hour, a 170-pound man would have to drink fourteen 100 proof alcohol drinks, or seventeen to eighteen 80 proof alcohol drinks. A 200-pound man would need to drink sixteen 100 proof alcohol drinks to reach the.31 percent level. Popovich said that most vodka is 80 proof and one ounce of 100 proof hard liquor is the equivalent of four ounces of wine and 12 ounces of beer.
Appellant testified he weighs about 170 pounds.
On cross-examination, Popovich said, if a person is still absorbing alcohol, a retroactive calculation to ascertain a particular blood alcohol level at a particular time cannot be done. Hypothetically, Popovich testified that if a 170 pound male had a 0.0 percent blood alcohol level at 11:00 a.m., and consumed 20 ounces of vodka on an empty stomach in the next 30 to 45 minutes, he could have a.31 percent blood alcohol level at 2:00 p.m., assuming he had consumed no more alcohol prior to the test. To reach the.31 percent level, the man would have to consume sixteen 100 proof drinks or twenty 80 proof drinks in the 45 minute period, roughly one drink every two minutes.
The Defense
Appellant testified that, several weeks prior to the charged incident, he injured his back and the injury was still painful when he woke up at about 9:30 a.m. on February 20, 2007. Appellant said he went to the market where he purchased a six pack of hard lemonade and a bottle of vodka. He then returned home and began drinking the alcohol he had purchased. His intention was to become numb, which he did. He then laid down, fell asleep, and next remembered being awakened when he was treated by ambulance personnel.
On cross-examination, appellant admitted he was an alcoholic at the time of the charged incident. He was not supposed to purchase or consume alcohol at that time. He also admitted suffering a felony conviction in December 2005. Although he had not sought medical treatment for his back injury, he drank alcohol on February 20, 2007, to self-medicate his back pain. Appellant said he never saw Smith on February 20, and Smith did not knock on his door and ask him to come out. He denied seeing or speaking to Dietler inside or outside of the market, and denied having fecal matter on his pants or having loose bowels or a loss of continence. However, he had a “crystal clear” recollection of making full and complete stops at each stop sign and using his turn signal for both left turns between the market and his home. Appellant said he began drinking at about 11:30 a.m., and had had nothing to eat prior to that time. Appellant conceded that in a prior incident he told his probation officer that he did not drink any alcohol until he got home.
Gurdev Singh, the owner of the market, testified that on February 20, 2007, appellant purchased a six-pack of beer and a 750 milliliter bottle of vodka. Singh did not smell alcohol or notice anything unusual about him.
Yadvinder Singh testified he watched the market security video with Smith several times. He said appellant did not appear to be intoxicated when he walked around the market. He also said that appellant was a regular customer at the market, and came in on a daily basis.
In rebuttal, Daniel Corona testified he worked at appellant’s residence on the day of the incident. When Corona arrived at about 8:00 a.m., appellant smelled bad and was not walking straight. Corona helped him walk about 10 feet to his door. When appellant returned home, Corona helped him into bed. Appellant smelled like feces and had difficulty walking. During the 10 minutes that Corona stayed at the house, appellant did not drink any alcohol.
DISCUSSION
I. The Trombetta Motion Was Properly Denied
Appellant contends his right to due process under California v. Trombetta (1984) 467 U.S. 479 (Trombetta) was violated because the market’s security videotape was not preserved for trial, and therefore the trial court erroneously denied his pretrial motion to dismiss.
As an alternative to dismissal of the information, appellant’s written Trombetta motion sought an evidentiary sanction prohibiting the People from introducing evidence regarding appellant’s actions, demeanor and appearance inside the market, or a “strongly worded curative jury instruction.”
A. Hearing on Trombetta Motion
At the hearing on the Trombetta motion, Yadvinder Singh (Singh) testified he watched the security videotape with Smith. Singh said the videotape showed appellant purchasing alcohol and groceries. When Smith asked Singh to make a copy of the videotape, Singh said he did not know how to do it, but offered to ask the market’s previous owner whether the market could make a copy of the tape. Subsequently, Singh left Smith a message saying he would be unable to copy the videotape. Singh said that following a later incident police officers brought their own video camera to the market and recorded the market’s videotape. On cross-examination, Singh said he recognized appellant when he came into the market because appellant was a regular customer. Singh said the videotape depicted appellant purchasing beer. On redirect, Singh said appellant did not appear to be intoxicated on the videotape. On recross, Singh said he knew that appellant had “defecated, peed or pooped in his pants earlier at the... [m]arket.”
Smith testified he watched the videotape with Singh, which depicted appellant as having an unsteady gait as he moved about the market to the cooler area, selected items from the cooler and approached the front counter. The tape showed appellant removing something from the market’s cooler where the beer was kept, but given the video’s “clarity” Smith could not tell what appellant purchased. Appellant appeared to be carrying a cardboard six-pack holder. Smith asked Singh to make a copy of the videotape. When Singh said he did not know how to use the equipment to do so, Smith asked him to call the prior owners of the market to see if they could help Singh copy the tape. Smith said that during the week after the incident, he stopped at the market several times trying to make contact with Singh. On February 27, 2007, Singh told Smith he did not know how to copy the videotape and was unable to get the previous owner to do so.
On cross-examination, Smith said he did not know whether the videotape showed appellant leaving the market. Other than depicting appellant’s gait as unsteady, the videotape did not show appellant acting under the influence. Smith said Singh gave him the impression that Singh had exhausted his efforts and did not want to put more time into attempting to have the videotape copied. Smith did not attempt to get video equipment to record the market’s videotape.
In denying the Trombetta motion, the court explained there was no evidence that the failure by the police to collect the tape was made in bad faith. The court noted, “It may remain that there’s a trial issue for the trial judge to determine if some other sanction is appropriate.” The court also stated there were at least four witnesses who could testify about the incident, “the two Mr. Singhs, the officer and Mr. Dietler.”
B. Analysis
“ ‘Law enforcement agencies have a duty, under the due process clause of the Fourteenth Amendment, to preserve evidence that “might be expected to play a significant role in the suspect’s defense.” [Citations.] To fall within the scope of this duty, the evidence “must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” [Citations.] The state’s responsibility is further limited when the defendant’s challenge is to “the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” (Arizona v. Youngblood [(1988)] 488 U.S. 51, 57.) In such a case, “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” [Citations.]’ ” (People v. Carter (2005) 36 Cal.4th 1215, 1246.) On appeal, we determine whether substantial evidence supports the trial court’s ruling. (Ibid.)
Appellant argues that the subject videotape had exculpatory value because it showed him conducting his business in the market without difficulty and without the feces soiled clothes described by Dietler. He urges the videotape evidence was necessary to impeach the testimony of Smith and Dietler. He also argues Singh’s testimony was not an adequate substitute for the unpreserved videotape evidence because Singh had a motive to testify that appellant was sober. Moreover, appellant asserts Smith should have acted immediately to preserve the videotape after he reviewed it, and Smith unreasonably entrusted his duty to preserve the tape to the Singhs. Thus, he argues Smith’s failure to preserve the videotape satisfies the bad faith requirement in Arizona v. Youngblood, supra, 488 U.S. at page 57.
As the trial court found, the videotape was not material evidence under Trombetta because any exculpatory value was confirmed by Singh’s testimony that the tape did not depict appellant as intoxicated and Smith’s testimony conceding that at the time he watched the video he told Singh that appellant did not look that bad. Thus, to the extent the tape had exculpatory value, comparable evidence was available and presented.
We also conclude appellant failed to establish any bad faith on the part of Smith in failing to preserve the videotape. The rule of Trombetta is intended, in large part, to discourage law enforcement authorities from destroying evidence they know to be exculpatory before it can be disclosed to the defense. (Trombetta, supra, 467 U.S. at p. 488.) Bad faith, for purposes of Trombetta, is the intentional destruction of evidence in order to prevent the defendant from taking advantage of it. (Ibid.) Here, there is no evidence that Smith intentionally took steps to destroy the videotape evidence to prevent appellant from taking advantage of it. He made several attempts to have the videotape copied by the market. Smith’s failure to copy the videotape himself at most establishes his negligence, and negligent failure to preserve evidence does not violate due process. (People v. Ochoa (1998) 19 Cal.4th 353, 417.) The motion to dismiss for failure to preserve evidence was properly denied.
II. Defense Counsel Was Not Ineffective in Failing to Request a Curative Instruction
Appellant next contends defense counsel provided ineffective assistance by failing to request a curative instruction regarding the prosecution’s failure to preserve the videotape. He argues the curative instruction “could have included an admonition to acquit [him] if the jury found that the tape was wrongfully destroyed or a presumption that the tape would have revealed that [he] was not intoxicated when he drove away from the [m]arket.” He also argues the jury could have been instructed pursuant to Evidence Code section 413 regarding a party’s suppression of evidence. He also argues that since defense counsel generally requested a curative instruction in his written Trombetta motion and the court reserved the issue for trial, there was no tactical reason for counsel’s failure to request the instruction at trial.
Evidence Code section 413 provides: “In determining what inferences to draw from the evidence or facts in the case against a party, the trier of fact may consider, among other things, the party’s failure to explain or to deny by his testimony such evidence or facts in the case against him, or his willful suppression of evidence relating thereto, if such be the case.”
A defendant claiming ineffective assistance of counsel has the burden to show: (1) counsel’s performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) Prejudice is shown when “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, at p. 694.)
Moreover, “[r]eviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsel’s omissions. [Citation.]” (People v. Lucas (1995) 12 Cal.4th 415, 442.) “When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. [Citation.]” (People v. Anderson (2001) 25 Cal.4th 543, 569.)
As discussed above, the videotape was not material evidence, as defined by Trombetta, and the police merely failed to collect it. They did not destroy it or fail to preserve it. Appellant cites no cases suggesting a curative instruction or other sanction would be appropriate in these circumstances. Thus, counsel’s failure to seek such relief was not deficient. Further, evidence of the defendant’s guilt was so overwhelming no reasonable curative instruction would have led to a different result at trial.
III. The Suppression Motion Was Properly Denied
Preliminarily, we note that in reviewing the trial court’s ruling on the suppression motion, we consider only the evidence before the court at the time of the ruling (People v. Gibbs (1971) 16 Cal.App.3d 758, 761-762), viewed in the light most favorable to the trial court’s express and implied findings (People v. Orr (1972) 26 Cal.App.3d 849, 852-853).
Appellant next contends the police officers’ warrantless forced entry into his home was unreasonable, and therefore the court erroneously denied his motion to suppress evidence. “When we review a trial court’s ruling on a motion to suppress evidence under [Penal Code] section 1538.5, we apply the substantial evidence test to the factual determination made by the court. We do not substitute our judgment for the credibility determinations of the trial court. Once the facts are established, however, we review such facts de novo to determine whether such facts justify the actions of the law enforcement officer. [Citations.]” (People v. Oldham (2000) 81 Cal.App.4th 1, 9.)
At the hearing on the suppression motion, Smith testified that he was dispatched to appellant’s residence at approximately 11:07 a.m., and learned that appellant had been inside the residence less than five minutes before Smith arrived. Dietler told Smith he had seen appellant purchasing alcohol at the market and appellant appeared intoxicated, so Dietler followed appellant to appellant’s residence and saw appellant enter the residence. Smith spoke to appellant for about 30 seconds at appellant’s front door, which was open about three feet. During that time Smith observed that appellant had soiled himself and appeared unsteady. When Smith asked appellant to come outside and talk more, appellant refused and closed the door. According to Smith, the CHP officers arrived at appellant’s residence about 20 to 30 minutes after Smith. Smith told them that when appellant opened the door Smith smelled alcohol, feces, and urine coming from appellant’s direction and appellant was unsteady. Smith also told them he had been advised by dispatch that appellant had several prior driving under the influence (DUI) convictions, at least one of which was a felony. Smith also told the CHP officers about the call he received from Dietler regarding what transpired at the market and that Dietler had followed appellant to his residence.
Shada testified he arrived at appellant’s residence at about 11:45 a.m. Mota had been there for about five minutes when Shada arrived. Based on his conversation with Dietler, Shada understood that appellant had been seen driving approximately 45 minutes prior to Shada’s arrival at the residence. Prior to forcibly entering appellant’s residence, Shada learned from Smith and Dietler that appellant had fouled himself, had objective symptoms of being “highly intoxicated” and had driven at varying speeds and weaved side to side in his lane. Shada was concerned about the destruction of evidence, about appellant’s well-being, and that appellant might attempt to drive again.
After knocking on appellant’s door and receiving no response, Shada and Mota pried open the sliding wooden door with a crowbar and “popped” the latch. Shada said the forced entry occurred about 10 or 15 minutes after he arrived at appellant’s residence. Upon entering the residence, the officer saw appellant lying unresponsive on a bed in the center of the room. He had urinated and defecated on himself. Based on Shada’s experience, he assumed appellant was under the influence of alcohol. Dietler identified appellant as the person he had seen driving. After Shada unsuccessfully attempted to arouse appellant, he called an ambulance. Shada arrested appellant at 12:20 p.m. and then had him transported to the hospital. When asked if a warrant can be obtained within 60 minutes of a telephone call to the on-call judge, Shada said he did not know, and no evidence was presented as to such timing. When asked hypothetically whether 0.04 percent of blood alcohol would have been eliminated from a person’s blood if a warrant was obtained two hours after the person was seen driving, Shada responded, “Possibly.”
In denying the suppression motion the court found the instant case factually “indistinguishable” from People v. Thompson (2006) 38 Cal.4th 811, a California Supreme Court decision holding that a warrantless police entry into a home to arrest a person for DUI was constitutionally permissible to prevent the imminent destruction or dissipation of blood-alcohol evidence through the defendant’s metabolic processes. (Id. at pp. 825-827.) The trial court concluded there were two legitimate bases for the officers’ determination that exigent circumstances justified their warrantless entry: “the burnoff or destruction rate of the blood alcohol that they suspected [appellant] to have,” and “legitimate concerns for [appellant’s] own physical health.”
“The presumption of unreasonableness that attaches to a warrantless entry into the home ‘can be overcome by a showing of one of the few “specifically established and well-delineated exceptions” to the warrant requirement [citation], such as “ ‘hot pursuit of a fleeing felon, or imminent destruction of evidence,... or the need to prevent a suspect’s escape, or the risk of danger to the police or to other persons inside or outside the dwelling’ ” [citation].... [E]ntry into a home based on exigent circumstances requires probable cause to believe that the entry is justified by one of these factors such as the imminent destruction of evidence or the need to prevent a suspect’s escape.’ [Citation.]” (Thompson, supra, 38 Cal.4th at pp. 817-818.)
Appellant does not argue that the police lacked probable cause to arrest him for DUI. Instead his argument is that exigent circumstances did not justify the officers’ warrantless entry into his house for the purpose of effecting the DUI arrest. Thus, he argues the exigent circumstances present in Thompson were absent in this case. In particular, he asserts there was no evidence that he drove dangerously or attempted to flee from or mislead the police, and his blood alcohol sample could have been obtained by a telephonic warrant.
In Thompson, a witness called the police after seeing the defendant appear to be intoxicated, drive erratically, and speed in an area where children were present. (Thompson, supra, 38 Cal.4th at p. 815.) The police arrived after the defendant had entered his home. When the officer rang the doorbell, a woman came to the already open front door and told the officers the vehicle’s owner was asleep. When the officer asked if she could wake him, the woman entered a nearby bedroom, returned a few moments later saying she could not wake him, and refused the officers entry into the home. Through the open front door an officer saw a man matching the description of the reported drunk driver walk through the house and attempt to leave out the back door. At the officer’s request, the man, later identified as the defendant, came to the front door. He appeared to be staggering or swaying, had slurred speech and gave off a strong odor of alcohol. After being told he was suspected of driving under the influence, the defendant refused to submit to intoxication tests and began to walk away. At that point the officer entered the house and arrested him. (Id. at pp. 815-816.)
The Thompson court first concluded that the witness’s belief that the defendant was intoxicated based on his behavior was supported by the record and therefore established probable cause to justify the defendant’s warrantless DUI arrest. (Thompson, supra, 38 Cal.4th at p. 819.) In addition, the court found there was sufficient evidence that the defendant had driven the vehicle, since the witness had followed and identified the vehicle and the vehicle was parked in front of the defendant’s residence. (Id. at pp. 819-820.)
The Thompson court next concluded that the police officers’ warrantless entry into the defendant’s residence was justified by the exigency of imminent destruction of evidence. (Thompson, supra, 38 Cal.4th at p. 825.) The court recognized that the defendant’s blood alcohol level would have diminished through metabolization while the police sought a warrant, and thus affirmed the People’s interest in securing a blood alcohol test as soon as possible. (Id. at pp. 825-826.) It also concluded the officers had good reason to believe that the defendant, having learned of their presence, would again attempt to flee or otherwise act to conceal his intoxication. (Id. at p. 827.) The court noted that even if the defendant had been prevented from escaping, his manifested desire to evade police could have led to him corrupting the DUI evidence by continuing to drink at home. (Id. at pp. 827-828.)
Thompson clarified that it was not holding that in every case the police may conduct a warrantless entry into a home to arrest a DUI suspect. It reaffirmed that in considering the totality of the circumstances to determine whether the police conduct was reasonable, “reasonableness [is] measured as ‘ “a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” ’ ” (Thompson, supra, 38 Cal.4th at p. 827, citing Pennsylvania v. Mimms (1977) 434 U.S. 106, 109 and People v. Ramey (1976) 16 Cal.3d 263, 276.)
The Thompson court held that taking all of the circumstances into account, the warrantless entry in that case was reasonable. (Thompson, supra, 38 Cal.4th at p. 827.) The court noted there was strong evidence the defendant had committed a DUI and that proof of that crime was in imminent danger of destruction. (Id. at pp. 827-828.) The court also noted the intrusion on defendant’s privacy was diminished because the door had been left wide open during the encounter, a forcible entry was unnecessary, and the police only entered a few feet beyond the threshold to effect the arrest and did not conduct a search of the residence. (Id. at p. 828.)
Application of Thompson’s balancing test mandates approval of the warrantless entry here. As in Thompson, the state’s interest in effecting the DUI arrest of appellant inside his residence was substantial. First, there was strong evidence appellant had committed the dangerous and jailable offense of DUI, based on the observations of him by Dietler and Smith. Second, the police knew appellant had several prior DUI convictions, at least one of which was a felony. Third, appellant arrived at his residence only minutes before police. Smith’s observations of appellant while talking with him at the open front door minutes after appellant arrived provided further evidence of appellant’s intoxication. Thus, the police had reasonable cause to believe the evidence of appellant’s intoxication would be fresh at the time of his arrest. Fourth, the officers could reasonably believe that evidence of appellant’s DUI was in imminent danger of destruction. Appellant’s desire to evade police was demonstrated by his refusal to come outside and to talk further to Smith and shutting the door. Combined with Smith’s knowledge that appellant had purchased alcohol at the market, the police could reasonably believe appellant might corrupt the DUI evidence by continuing to drink inside the residence. Fifth, appellant’s appearance and behavior reflected a health-threatening level of intoxication. Finally, no substantial evidence was presented on the practicality of getting a warrant in this case. Shada did not know how long it took to get a telephone warrant, and his response to a hypothetical about the percentage of elimination from a person where a warrant was obtained two hours after the time of driving was, at best, speculative.
No evidence was presented on the impact of the additional approximately 30 minutes between Smith’s conversation with appellant at the front door and the CHP officers’ forced entry into the residence.
Unlike Thompson, the intrusion on appellant’s privacy was not de minimis; the police undertook a forcible entry into appellant’s residence by prying open the front door and “popp[ing]” the latch. However, as soon as the officers gained entry, they found appellant lying on a bed in the center of the room. No evidence was presented at the suppression hearing that the officers conducted a search of the residence. We conclude the state’s substantial concern in preserving evidence of appellant’s blood alcohol level and in protecting his health outweighed his privacy interest, and therefore it was reasonable for the police to forcibly enter the residence without a warrant to arrest him. The motion to suppress was properly denied.
IV. Appellant Waived the Claim that Opinion Testimony Was Erroneously Admitted
Appellant contends the court erroneously admitted opinion testimony by Smith and Shada that he was intoxicated when Dietler observed him driving. He asserts that admission of the opinion evidence was prejudicial because it undermined his defense that he was not intoxicated while driving.
On direct examination Smith testified he had participated in the investigation of 50 to 100 DUI cases. He received training in conducting DUI investigations at the police academy and on-the-job training at the Cotati Police Department. Smith said he viewed the security camera in the market, and saw appellant when he spoke to appellant at his front door and when the CHP officers entered appellant’s home. Thereafter, without offering Smith as an expert witness, the prosecutor asked him if he had “an opinion based on [his] training and experience whether [appellant] was under the influence of an alcohol beverage at the time Mr. Dietler observed him driving a vehicle?” Defense counsel objected on the ground of “speculation.” The court “sustain[ed] the objection as phrased,” and stated, “I think you can render that opinion when he saw him.” Thereafter, the following colloquy occurred:
“[THE PROSECUTOR]: Officer Smith, without asking your opinion, do you have an opinion of whether [appellant] was under the influence of an alcoholic beverage at the time Mr. Dietler observed him driving?
“[SMITH:] Yes, I do have an opinion.
“[THE PROSECUTOR]: Okay. So tell me what you’re basing that opinion on.
“[SMITH:] It would be based on what Mr. Dietler told me, what I observed when I first spoke with [appellant] and what I observed when [appellant] was subsequently arrested by CHP.
“[THE PROSECUTOR]: Okay. And you also had some contact with [appellant] before he was passed out yourself; isn’t that correct?
“[SMITH:] That’s correct.
“[THE PROSECUTOR]: Are you using that as a basis as well?
“[SMITH:] That’s correct.
“[THE PROSECUTOR]: And your training and experience?
“[SMITH:] Mm-hmm.
“[THE PROSECUTOR]: So what’s the opinion?
“[SMITH:] I believe he was intoxicated when Mr. Dietler observed him driving.”
On direct examination Shada testified he had been a CHP officer for nearly 24 years. His academy training included the investigation of alcohol impaired drivers, including the objective signs of intoxication. He had participated in 800 to 900 drunk driving arrests and at least twice that many investigations. Without offering Shada as an expert witness, the prosecutor elicited Shada’s opinion that appellant was under the influence of an intoxicating beverage when Dietler saw him driving. Shada said his opinion was based on “Dietler’s statement of his observations... of [appellant] at the store and [of] his driving, [and appellant’s] condition when [Shada] contacted him.”
Subsequently, out of the presence of the jury during a recess in Shada’s cross-examination, the court memorialized its sidebar explanation of why it permitted “the previous witness” to render an opinion on whether appellant was intoxicated while driving: “This is kind of a non-standard DUI where the officer didn’t observe driving and... wasn’t even the investigating officer on the case. So what I was saying and what I had indicated at the side bar was in order for him to render an opinion, he needed to be qualified as an expert, which you laid most of the foundation for but never did in order to rely on those statements of another as we typically do with experts. [¶] And then because of the gap in his own participation in the investigation, I thought it important to lay the foundation as to what he was relying his opinion on as far as a foundation. [¶] So that’s really the comment I was making. And since there wasn’t any further objection; allowed the testimony to come forward.” When the prosecutor asked if the court was suggesting the witness was not qualified as an expert, the court stated, “I was saying you didn’t qualify him as an expert. You laid the foundation and didn’t ask to have [the officer] qualified.” Thereafter, the prosecutor asked the court if it “would like me to ask that certain people are qualified as an expert before I ask them about the opinion?” The court responded: “Well, again, if the explanation is this is somewhat of a non-standard -- it wasn’t an officer had this CHP officer watch the whole thing. I think you know it’s kind of pro forma to some extent to go through the foundation and have him qualified as an expert, but in a case, especially with the prior witness where he wasn’t the investigating officer, nor did he view any driving and he was relying mostly or predominantly on the statements of others, it would have been prudent to have him qualified as an expert before he relied on others[’] statements.” Thereafter cross-examination of Shada resumed.
The People assert that this appears to be a reference to Shada. However, at the time of the court’s comments, cross-examination of Shada was not yet completed, so “the previous witness” could have referred to Smith.
Though the court’s explanation of its ruling is not entirely clear, it appears that it did not conclude the witness lacked an expert’s qualifications, but, instead, believed counsel should have asked the court to deem the witness an expert following the foundational evidence. The court said, “I was saying you didn’t qualify him as an expert. You laid the foundation and didn’t ask to have [the officer] qualified.” In any event, the court clearly relied on the failure to raise any further objection after the court sustained the “speculation” objection, before the evidence was admitted.
Appellant argues the opinion testimony by Smith and Shada that appellant was intoxicated when Dietler observed him driving was erroneously admitted because Smith and Shada were not qualified as expert witnesses and their lay testimony was improperly based on the observations of others. Appellant concedes he at no time objected to Shada’s testimony, and his sole objection to Smith’s testimony was that it was speculative. Thus appellant has waived the issue by failing to object on these grounds below. (Evid. Code, § 353, subd. (a); People v. Demetrulias (2006) 39 Cal.4th 1, 21-22 [a party may not make a “ ‘placeholder’ ” objection, based on general or incorrect grounds and revise the objection on appeal].) Moreover, “while Evidence Code sections 720, subdivision (a), and 802 provide that the person testifying as an expert must be qualified by special knowledge, skill and experience, these foundational requirements need not be established in the absence of a specific objection or unless the court, in its discretion, requires it. Likewise, hearsay evidence is competent and relevant in the absence of a specific hearsay objection. [Citation.]” (People v. Rodriguez (1969) 274 Cal.App.2d 770, 776.)
V. There Was No Ineffective Assistance of Counsel
Appellant contends defense counsel was ineffective in failing to object to Shada’s opinion testimony that appellant was intoxicated while driving, and failing to move to strike Shada’s and Smith’s opinion testimony after the court indicated they had not been properly qualified as experts. His argument is threefold. First, after the court sustained counsel’s “speculative” objection to Smith’s testimony, counsel “inexplicably stood silent while the prosecutor continued to elicit the opinion.” Second, given the fact the court had sustained the objection to Smith’s testimony, counsel had no tactical reason not to object to Shada’s testimony. Third, after the court stated that the prosecutor had not qualified the officer as an expert, counsel did not move to strike the testimony or ask for a curative instruction. Each of these arguments lacks merit because, as we understand the court’s ruling, it did not conclude the foundational evidence of expertise was inadequate, and it is reasonably probable the court would have found Shada and Smith to be qualified as expert witnesses had it been asked to do so.
See, ante, footnote 10.
In appearing to argue that Smith’s and Shada’s opinion testimony could not be based on the hearsay statements of Dietler, appellant cites Kalfus v. Fraze (1955) 136 Cal.App.2d 415, decided before the 1965 enactment of the Evidence Code (Stats. 1965, ch. 299, §§ 2, 151, pp. 1297, 1370, eff. Jan. 1, 1967). “ ‘An expert may generally base his opinion on any “matter” known to him, including hearsay not otherwise admissible, which may “reasonably... be relied upon” for that purpose.’ ” (People v. Carpenter (1997) 15 Cal.4th 312, 403, citing Evid. Code, § 801, subd. (b).)
We see no reason why Smith and Shada could not reasonably rely on Dietler’s statements. Dietler was an unbiased witness to appellant’s condition inside the market and while driving. Dieter testified and was cross-examined in the jury’s presence, allowing the jury to evaluate the reliability of the information he provided. Opinion testimony as to intoxication may be given by a lay witness as well as an expert. (People v. Ravey (1954) 122 Cal.App.2d 699, 703.) Moreover, on the basis of their training and expertise in DUI investigation, Smith and Shada could have formed their opinions that appellant was intoxicated while driving based on Dietler’s description of appellant’s driving together with Smith’s and Shada’s subsequent observations of appellant.
Because Dietler testified at the trial, the parties have not challenged the reliance on his statements under Crawford v. Washington (2004) 541 U.S. 36.
Because it is reasonably probable that the court would have found Shada and Smith to be qualified as expert witnesses and that their opinions could properly be based in part on the statements of Dietler, appellant has failed to establish any ineffective assistance of counsel in failing to object to the testimony of Smith and Shada.
VI. The Court Did Not Prejudicially Err in Permitting the Prosecutor to Impeach Appellant
Next, appellant contends the court erred in allowing the prosecutor to impeach him with evidence that at the time of the charged incident he was restricted from possessing or consuming alcohol.
A trial court’s decision to admit or exclude impeachment evidence is reviewed for abuse of discretion. (See People v. Wheeler (1992) 4 Cal.4th 284, 296-297.) The trial court’s discretion is abused when its ruling falls outside the bounds of reason. (People v. Osband (1996) 13 Cal.4th 622, 678.)
At trial, in an effort to impeach appellant’s credibility, the prosecutor sought to cross-examine appellant as to whether he was aware that he was prohibited from purchasing or consuming alcohol under the terms of his parole. Defense counsel objected that the prejudicial effect of such evidence outweighed its probative value. (Evid. Code, § 352.) The court ruled that so long as the issue was not tied to appellant’s prior felony conviction or any prior DUI offense, the prosecutor could cross-examine him about his being prohibited from using or possessing alcohol.
On cross-examination the prosecutor elicited appellant’s testimony that he is an alcoholic, and at the time of the charged offenses he was an alcoholic and was not allowed to possess or consume alcohol.
Appellant argues the prosecutor should not have been permitted to question him about violating the alcohol condition in his parole because the evidence was irrelevant as to whether he was truthful in testifying about when he drank on the day of the charged incident. He asserts the evidence was prejudicial because it permitted the jury to infer that he had suffered a prior alcohol-related conviction, thus undermining the court’s order that the jury not be told appellant had suffered a prior DUI. Though the relevance of this evidence is questionable, no prejudice resulted from admitting it. At no time did the prosecutor mention or elicit testimony from appellant that he suffered a prior alcohol-related conviction, was on parole or was subject to a parole condition. There is simply no basis to believe the jury inferred appellant’s restriction regarding alcohol was imposed as a condition of parole. No prejudicial abuse of discretion is demonstrated.
VII. The Trial Court Properly Permitted the Prosecutor’s Cross-Examination of Appellant Regarding a Prior DUI Incident
Appellant asserts the court erred in permitting the prosecutor to elicit appellant’s testimony on cross-examination that, in connection with a prior DUI incident, he told a probation officer he did not drink until he returned home.
Prior to appellant’s direct examination, the prosecutor said he anticipated that appellant would testify he did not drink prior to returning home from the market. The prosecutor sought to admit appellant’s prior DUI incident and described it as follows: At about 3:00 p.m. on December 29, 2005, appellant backed his vehicle up, hitting another vehicle outside his home. When appellant tried to drive away, a witness took the keys out of the ignition to prevent appellant from leaving the scene. After pleading guilty to the offense, appellant told his probation officer he had started drinking when he returned home and had not been drinking before he drove. Defense counsel objected that the proffered testimony was inadmissible character evidence under Evidence Code sections 1101 and 352.
After reviewing the probation report the court ruled it would admit the statement appellant gave to the probation officer in 2005 because it reflected the same defense appellant raised in the current case. But the court determined the prosecution could not tie the statement to a prior DUI conviction.
Subsequently during cross-examination, the following colloquy occurred:
“[THE PROSECUTOR:] In another situation, do you recall telling a probation officer that there hadn’t been any drinking before an incident and it only occurred once you got into your home?
“[APPELLANT:] I believe so.”
Thereafter, the prosecutor elicited appellant’s testimony, that in the instant case, appellant did not start drinking until he returned home from the market.
The jury was later instructed pursuant to CALCRIM No. 318: “You have heard evidence of statements that a witness made before the trial. If you decide that the witness made those statements, you may use those statements in two ways: [¶] 1. To evaluate whether the witness’s testimony in court is believable; [¶] AND [¶] 2. As evidence that the information in those earlier statements is true.”
Appellant contends the court erred in permitting the evidence of his statement to the probation officer on the ground it was a “similar defense” because the statement was made in the course of a presentence probation report prepared after appellant entered a guilty plea, not in conjunction with a defense in the case. He argues the evidence did not have a logical relationship to his credibility and its only relevance was to establish that he was predisposed to alcohol-related criminal activity. He asserts the error was prejudicial because the erroneously admitted evidence permitted the jury to infer that appellant had previously been convicted of DUI.
Evidence Code section 1101, subdivision (c), provides that the general rule of exclusion contained in subdivision (a) does not affect “the admissibility of evidence offered to support or attack the credibility of a witness.” Thus, a defendant’s explanation of criminal conduct can be impeached with evidence that the same innocent explanation has been offered by him to justify other misconduct. (See People v. Millwee (1998) 18 Cal.4th 96, 129-131; People v. Moody (1976) 59 Cal.App.3d 357, 361.) In evaluating a defendant’s claim that the trial court erred by admitting prior crimes evidence under Evidence Code sections 1101, we review the trial court’s determination to admit the evidence under the abuse of discretion standard. (People v. Tapia (1994) 25 Cal.App.4th 984, 1021.)
In Millwee, the defendant was charged with murdering his mother and testified the gun went off accidentally. The trial court admitted rebuttal evidence that two days after the shooting, the defendant shot another victim, and again claimed the gun had gone off accidentally. (Millwee, supra, 18 Cal.4th at p. 129.) In upholding the trial court’s admission of the subsequent shooting evidence, our Supreme Court stated: “The jury could readily find that defendant’s credibility in the present case was diminished by the fact that he offered the same explanation for another shooting that occurred only 48 hours later. In light of the foregoing, the evidence was not subject to exclusion under Evidence Code section 1101.” (Id. at p. 131; Moody, supra, 59 Cal.App.3d at p. 361 [“[i]t is settled that when a defendant uses the same excuse to explain his conduct on more than one occasion his prior statements are admissible to prove his present explanation is fabricated”].)
Appellant argues this case is factually distinguishable from Millwee and Moody because in those cases the defendant was impeached with similar exculpatory statements made either to the police or at trial. Here, appellant’s testimony was impeached with a statement made to a probation officer in a prior case. We conclude the distinction is without a difference. Appellant offered the same exculpatory explanation, that he began drinking at home, in both his testimony and in the statement to the probation officer following his plea in the earlier incident. Each statement was intended to minimize his culpability. The trial court did not abuse its discretion by permitting the prosecutor to use the prior statement to the probation officer to cross-examine appellant in order to show that defendant’s “credibility in the present case was diminished by the fact that he offered the same explanation for another” intoxication case several years earlier. (Millwee, supra, 18 Cal.4th at p. 131.)
VIII. The Prosecutor Properly Impeached Appellant with His Prior Felony Conviction
Next, appellant contends the trial court erred in permitting the prosecution to impeach him with evidence of his prior felony DUI conviction. He argues that in light of the other impeachment evidence regarding his statement to the probation officer and his violation of an alcohol possession/consumption prohibition, informing the jury of his prior felony conviction “was tantamount to telling them he had been convicted of a felony alcohol-related offense.”
Prior to trial, the prosecutor moved in limine for the court to deem appellant’s prior felony DUI conviction a crime of moral turpitude for purposes of impeachment should appellant choose to testify. In reliance on People v. Forster (1994) 29 Cal.App.4th 1746, the court ruled that the prior conviction was admissible to “show a propensity to continue to commit offenses.” The court also stated that “under [Evidence Code section] 352 and Castro” the prior conviction was admissible for impeachment if appellant testified, and ordered the prior conviction evidence sanitized, ensuring the jury would not be informed of the nature of the conviction. On cross-examination appellant admitted he suffered a “felony conviction” on December 2, 2005.
The jury was subsequently instructed pursuant to CALCRIM No. 316: “If you find that a witness has been convicted of a felony, you may consider that fact only in evaluating the credibility of a witness’s testimony. The fact of a conviction does not necessarily destroy or impair a witness’s credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable.”
The People correctly assert that appellant has waived this claim of error by failing to object below. (People v. Visciotti (1992) 2 Cal.4th 1, 53, fn. 19; Forster, supra, 29 Cal.App.4th at p. 1756.) In any case, we reject the claim on the merits.
Prior felony convictions are admissible to impeach a witness’s credibility if they involve moral turpitude. (People v. Castro (1985) 38 Cal.3d 301, 314-315.) We review a court’s admission of impeachment evidence for abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 201.)
In Forster, the defendant, charged with DUI under Vehicle Code section 23152, testified at trial and was impeached with evidence of a prior conviction for DUI with three prior DUI violations within seven years (former § 23175, now codified as § 23550). (Forster, supra, 29 Cal.App.4th at pp. 1752, 1754-1758.) Foster held that a felony DUI with three or more DUI convictions within seven years of the charged offense was a crime involving moral turpitude under Castro. (Forster, at p. 1756.)
All further undesignated section references are to the Vehicle Code.
See Historical and Statutory Notes, 67 West’s Annotated California Vehicle Code (2000 ed.) following section 23550, page 481.
Appellant argues Forster was wrongly decided and urges us not to follow it. He asserts that DUI “does not involve the dishonesty, willfulness, maliciousness or wantonness normally identified in crimes of moral turpitude,” and argues that a sentencing enhancement based on prior convictions cannot “form the basis for an ‘implied mens rea’ consisting of the defendant’s conscious indifference to grave risks to life.” We reject that contention and agree with Forster that the offense involves moral turpitude and therefore may properly be used for impeachment. In addition, the jury was informed only of the fact of a prior felony conviction and was not told the nature of the offense or that it was a crime of moral turpitude. Based on the record before us, we reject appellant’s assertion that the jury necessarily understood that the December 2005 conviction was for an alcohol-related offense. No abuse of discretion is demonstrated.
IX. There Was No Prejudicial Error in Instructing the Jury with CALCRIM No. 2111
Appellant contends the court prejudicially erred in instructing the jury with CALCRIM No. 2111. We disagree.
In order to convict appellant of this count, the prosecution had to prove that (1) he drove a vehicle and (2) while driving, his blood alcohol level was 0.08 percent or more. CALCRIM No. 2111 contains a “permissive inference” which allows the jury to infer that appellant 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. (People v. Beltran (2007) 157 Cal.App.4th 235, 240, 242.) The instruction provides, “If the People have proved beyond a reasonable doubt that a sample of the defendant’s blood was taken within three hours of the defendant’s 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 provides for a permissive inference, and not a mandatory rebuttable presumption, it may be given regardless of whether there is other evidence at trial which rebuts the inference. (Beltran, at pp. 242-244.)
In this case, the record establishes that appellant’s blood was drawn at the hospital at 1:56 p.m. For the permissive inference of CALCRIM No. 2111 to apply, the prosecution had to prove beyond a reasonable doubt that appellant drove after 10:56 a.m. The evidence justified giving the instruction. Dietler testified that he arrived at the market at approximately 11:00 a.m., observed appellant making a purchase, followed him out of the store and, after a brief conversation, saw him drive away. Shada testified he arrived at appellant’s residence at 11:45 a.m. and learned from Dietler that appellant had been driving approximately 45 minutes before Shada’s arrival. Obviously this testimony placed the timing of the driving at the outer edge of the three-hour maximum. But the two consistent statements provide substantial evidence from which the jury could conclude beyond a reasonable doubt that the chemical test was taken within three hours of appellant’s driving.
In any event, any error in providing the instruction was harmless. We assume that the Chapman standard applies when determining if an error in giving an instruction on permissive inferences is prejudicial. (Beltran, supra, 157 Cal.App.4th at p. 247.) Beyond a reasonable doubt any error in providing the instruction was harmless. The trial court also instructed the jury with CALCRIM No. 200, which provides in pertinent part, “Some of these instructions may not apply, depending on your findings about the facts of the case. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.” Thus the jury was informed that, depending on its determination of the facts, some instructions would be inapplicable. We presume the jury followed this instruction (People v. Anderson (2007) 152 Cal.App.4th 919, 938), and, if the facts failed to justify a conclusion beyond a reasonable doubt that appellant drove within three hours of the chemical test, the jury ignored CALCRIM No. 2111.
Chapman v. California (1967) 386 U.S. 18.
Even without the permissive inference provided in that instruction, substantial evidence supports the verdict in count 2. Where the chemical test results obtained lack an adequate foundational basis, the prosecution may rely on expert testimony regarding “retrograde extrapolation,” in which the expert starts with an individual’s blood alcohol level at the time of the chemical test and uses circumstantial evidence to convince the jury that the level was significantly higher or lower at the time of driving. (People v. Warlick (2008) 162 Cal.App.4th Supp. 1, 7, fn.2.) Here, Popovich testified that appellant’s blood sample, taken at 1:56 p.m., showed a blood alcohol level of 0.31 percent. He testified further that the average burn off rate of alcohol is.018 percent per hour. Thus, if appellant consumed no alcohol after driving, a fact supported by substantial evidence, his blood alcohol when driving slightly more than three hours before the test would be approximately 0.36 percent. Thus, appellant’s count 2 conviction for driving with a blood alcohol level of 0.08 percent or greater (§ 23152, subd. (b)) is well supported by the evidence.
Based on the identical reasoning, we reject appellant’s argument that no substantial evidence supports the jury finding pursuant to section 23578 that he had a blood alcohol level of.15 or greater when he drove. Section 23578 provides: “In addition to any other provision of this code, if a person is convicted of a violation of Section 23152 or 23153, the court shall consider a concentration of alcohol in the person’s blood of 0.15 percent or more, by weight,... as a special factor that may justify enhancing the penalties in sentencing, in determining whether to grant probation, and, if probation is granted, in determining additional or enhanced terms and conditions of probation.”
We also reject appellant’s argument that given Popovich’s testimony that “nearly everybody in the world[] is too impaired to operate a motor vehicle at the.08 [percent] blood alcohol level,” the CALCRIM No. 2111 instruction, if erroneously given, prejudiced appellant’s defense as to the count 1 charge of DUI. Simply stated, the evidence of appellant’s guilt on the first count was overwhelming. Under the Chapman standard, it is clear beyond a reasonable doubt that any error in giving CALCRIM No. 2111 was harmless as to the conviction on count 1.
DISPOSITION
The judgment is affirmed.
We concur: JONES, P.J., NEEDHAM, J.