Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIF149095, Richard J. Hanscom, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI J.
A jury found defendant and appellant Jamal Hussien Mohamed guilty of driving a vehicle while under the influence of alcohol (Veh. Code, § 23152, subd. (a)). Defendant thereafter admitted that he had previously suffered three prior violations of Vehicle Code section 23152 within 10 years of the present offense (Veh. Code, § 23103.5). The trial court suspended imposition of sentence and placed defendant on formal probation for a period of 48 months on various terms and conditions, including serving 365 days in county jail. On appeal, defendant contends (1) the trial court erred in admitting the results of the preliminary alcohol screening (PAS) test; and (2) the trial court erred in imposing the $30 assessment fine pursuant to Government Code section 70373, subdivision (a)(1), because it could not be applied retroactively. We reject these contentions and affirm the judgment.
I
FACTUAL BACKGROUND
On December 31, 2008, about 9:40 p.m., Riverside County Sheriff Deputy Bradley Decker stopped defendant at a DUI (driving under the influence) checkpoint in the City of Perris. Defendant was the sole occupant of his vehicle.
While speaking with defendant, Deputy Decker smelled the odor of alcohol emanating from the vehicle. Deputy Decker asked defendant whether he had drunk any alcohol before driving. Defendant replied, “Nothing.” Deputy Decker administered the horizontal-gaze-nystagmus (HGN) test to defendant. Deputy Decker saw nystagmus at a 45-degree angle and therefore directed defendant to the secondary screening area.
At the secondary screening area, Deputy Decker asked defendant to step out of the vehicle to perform some field sobriety tests. Once defendant exited the vehicle, Deputy Decker noted that defendant’s eyes were bloodshot and watery and his speech was “a little bit slurred....” Deputy Decker again administered the HGN test, and both of defendant’s eyes demonstrated nystagmus, “before a 45-degree angle, ” indicating to the deputy that defendant had alcohol in his system. Defendant also failed to follow Deputy Decker’s instruction during the test.
Deputy Decker thereafter administered the modified-attention-stance test. Defendant was unable to satisfactorily complete that test, failing to count in the manner instructed by Deputy Decker. This too indicated to the deputy that defendant had alcohol in his system. Deputy Decker then administered the walk-and-turn test, which defendant failed to satisfactorily complete. Specifically, defendant failed to touch his heels to toe on every step, failed to count his steps out loud, and failed to take the proper number of steps. Defendant did not successfully complete the field sobriety tests as Deputy Decker instructed him to do so; however, the deputy acknowledged that he did “pretty good” compared to other people who had been under the influence of alcohol.
Finally, Deputy Decker, who had administered over 200 PAS tests, performed the PAS test on defendant in accordance with his training and the guidelines. After observing defendant for about 15 minutes to make sure he did not burp or vomit, which could corrupt the test results, Deputy Decker had defendant blow into the PAS device two separate times. The first PAS test indicated that defendant had a blood alcohol content of.145 percent. The second PAS test indicated that defendant had a blood alcohol content of.146 percent. Based on defendant’s performance on the field sobriety tests, Deputy Decker concluded that defendant had been driving a vehicle while under the influence of alcohol and arrested defendant.
Riverside County Sheriff Deputy Geoffrey Nancarrow testified that in December 2008 he was in charge of testing the accuracy and calibration of the PAS device. He described the procedure used to test the accuracy and calibration of the PAS device and explained that he had conducted calibration tests every 10 days at the Perris police station. He further noted that at the time he was testing the PAS devices, every device was working properly.
Law enforcement had a nurse available at the scene to draw blood or conduct a blood test. Defendant refused to provide a blood sample at the scene. He had twice admitted to Deputy Decker that he had been drinking.
Forensic toxicologist Ola Bawardi testified about the impact of alcohol on a person’s ability to drive. He also explained that field sobriety tests are geared toward testing a person’s ability to multitask because driving requires divided attention and driving is more complex than the field sobriety tests. Bawardi concluded that an individual with bloodshot eyes and the smell of alcohol on the breath and who was also unable to adequately perform on field sobriety tests would be an indication that the person was “impaired for the purposes of driving.” He also explained a PAS device: “It’s a device used to measure a person’s blood alcohol [level] through their breath.”
II
DISCUSSION
A. Admission of PAS Test
Defendant contends that the court improperly admitted evidence of the PAS test because the prosecution failed to lay a proper foundation. We disagree.
1. Additional factual and procedural background
Prior to trial, defense counsel filed a motion to exclude the results of defendant’s PAS test. The trial court initially indicated that the results of the PAS test would not be admissible, because the officer who had administered the test was not in charge of calibrating the device.
The court subsequently held an evidentiary hearing pursuant to Evidence Code section 402. At that hearing, the People presented the testimony of Deputy Geoffrey Nancarrow. Deputy Nancarrow, who had received training on how to properly use and maintain the PAS devices, testified in regard to the validity of the devices and the procedures used in maintaining and recording the maintenance of the devices. He explained the procedures he used to test the accuracy and calibration of the PAS devices and stated that he had conducted the calibration tests every 10 days at the Perris police station. He maintained that at the time he was testing the PAS devices, every device being used in the field was “functioning accurately and properly.” In approximately the one year of testing the devices, Deputy Nancarrow had only been unable to calibrate and maintain one PAS device due to malfunction. Improperly functioning devices are taken out of the field and stored in Deputy Nancarrow’s desk. In the time period that Deputy Nancarrow was checking the calibration on the devices, he never had to recalibrate any machine. He was the only person who had checked calibration of the PAS devices in December 2008 and had not missed any scheduled calibration checks in that month due to illness or being out of the office.
On cross-examination, Deputy Nancarrow stated that the calibration log record had been misplaced around May or June 2009. He also admitted that it was possible for someone else to calibrate a device without his knowledge, since the devices were not locked up.
Following argument from counsel, the court admitted the results of the PAS test.
2. Analysis
We review a trial court ruling on the admissibility of PAS test results solely for abuse of discretion. (People v. Williams (2002) 28 Cal.4th 408, 417.)
People v. Adams (1976) 59 Cal.App.3d 559 (Adams) laid out the foundational prerequisites for the admissibility of a breath test used to determine blood alcohol concentration: (1) the testing apparatus was in proper working order; (2) the test was properly administered; and (3) the operator was competent and qualified. (Id. at p. 561.) In Adams, expert testimony established that the machine was in good working order, that he had ascertained its reliability by running standard known samples before giving each actual test, and “that this served essentially the same function as the testing of unknown samples called for by the regulation....” (Id. at p. 567.) The court held that the failure to follow procedures promulgated by the Department of Health in administering the test did not result in the exclusion of evidence, as long as the foundational prerequisites were met. The court explained that noncompliance goes only to the weight of the evidence, not its admissibility. (Ibid.)
Our Supreme Court in People v. Williams, supra, 28 Cal.4th 408, revisiting the issue in Adams and analyzing that case, held that notwithstanding failure to comply with Title 17 of the California Code of Regulations, which sets forth standards for breath tests and provides that there should be two separate breath samples, a trial court had discretion to admit the evidence as long as a proper foundation had been laid. The court explained that the trial court can admit the evidence “after a showing of (1) the reliability of the instrument, (2) the proper administration of the test, and (3) the competence of the operator. [Citation.] To meet these requirements, the evidence would be admitted upon either a showing of compliance with the title 17 regulations or independent proof of the three elements. [Citation.]” (Williams, at p. 414, fn. omitted.) The court further noted: “[A]lthough the [Title 17] regulations are a standard of competency, they are not the only standard.” (Id. at p. 416.) “Compliance with regulations is sufficient to support admission, but not necessary. Noncompliance [with Title 17] goes only to the weight of the evidence, not its admissibility.” (Id. at p. 414.) “[A]dmissibility depends on the reliability and consequent relevance of the evidence, not the precise manner in which it was collected.” (Ibid.) The prosecution must “‘qualify the personnel involved in the test, the accuracy of the equipment used and the reliability of the method followed before the results can be admitted.’” (Id. at p. 416.)
In the present matter, defense counsel raised a foundational objection when the prosecutor attempted to introduce into evidence the results of defendant’s breath test. In response, the prosecutor laid a proper foundation for the admission of the results from the breath test. The accuracy and proper functioning of the PAS device was well established at the time of trial and the Evidence Code section 402 hearing. Forensic toxicologist Bawardi and Deputy Decker both explained that the PAS test measures the presence of alcohol in the subject’s system. Deputy Decker described the purpose for administering a PAS test and his training and experience relating to the administration of the PAS device. Deputy Decker further testified that he had received prior training in using the equipment, had used the equipment hundreds of times, and had used the same procedures on this occasion as he had used before. Deputy Nancarrow testified that in December 2008 he was in charge of testing the accuracy and calibration of the PAS device and described the procedure used to test the accuracy and calibration of the PAS device. He further noted that at the time he was testing the PAS devices, every device used in the field was working properly.
Deputy Decker’s testimony also showed that he had administered the PAS test to defendant in a reliable manner. He illustrated the process of administering the PAS test on defendant. Deputy Decker followed the procedures that he had been taught in administering the test. He observed defendant and conducted several field sobriety tests on defendant before administering the test. He waited the requisite time before administering the test to insure that the defendant did not burp or vomit. He had defendant breathe into the PAS device, and the PAS device showed that defendant’s blood alcohol level was.14. Similarly, in Williams, the officer utilized the procedures that he had been taught in administering the test. He observed the suspect for approximately 13 minutes before administering the PAS test, and the suspect did not burp or vomit during that period. (People v. Williams, supra, 28 Cal.4th at p. 412.) The officer then had the suspect blow into the PAS device and obtained a reading of.181. (Id. at pp. 411-412.) Deputy Decker’s testimony, like the testimony of the officer in Williams, supported the trial court’s finding that the PAS test had been properly administered.
In sum, we find the deputies’ testimony, which the trial court accepted, establishes that the machine was working, the operator was qualified, and the test was properly administered. Accordingly, the evidence supports the court’s conclusion that the foundational requirements had been established by the prosecution.
Even if we assume the court improperly admitted the PAS test results, it is not reasonably probable the court would have reached a result more favorable to defendant. (People v. Watson (1956) 46 Cal.2d 818, 836.) The record clearly shows that defendant drove while under the influence of alcohol. Defendant failed to follow instructions of the field sobriety tests and was unable to successfully complete two of the tests. In addition, he exhibited objective symptoms of intoxication, such as red, watery, bloodshot eyes; slurred speech; and an odor of alcohol emanating from his breath. Defendant admitted that he had been drinking. Hence, we do not find it reasonably probable that the jury would have acquitted defendant in the absence of any breath test error, or, stating the Watson standard another way, the error does not undermine our confidence in the jury’s verdict.
B. Imposition of $30 Assessment under Government Code Section 70373
Defendant also contends that imposition of the $30 assessment fine pursuant to Government Code section 70373 must be stricken because it cannot be imposed retroactively and it violated the constitutional prohibition against ex post facto laws. Defendant is mistaken.
Government Code section 70373 provides: “(a)(1) To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense.... The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony....” The effective date of the statute was January 1, 2009.
Defendant committed the subject crime on December 31, 2008. The jury convicted defendant in April 2010. As part of his sentence in May 2010, the court imposed on defendant the $30 court facilities assessment. Defendant contends the assessment is unauthorized and must be stricken because the crime was committed before Government Code section 70373’s effective date.
In People v. Lopez (2010) 188 Cal.App.4th 474 [Fourth Dist., Div. Two], “this court commented summarily [about People v. Tarris (2009) 180 Cal.App.4th 612, 628] that ‘the trial court erred in assessing a court construction fee under Government Code section 70373 because the fee statute was not yet in effect at the time of sentencing.’ Tarris is factually distinguishable from the present case, in which the crime was committed... before the statute became effective but defendant’s conviction and sentencing occurred after the statute’s effective date of January 2009.” (Id. at pp. 478-479.)
The circumstances here “dictate that we follow the persuasive reasoning of the Third District Court of Appeal, and subsequent cases, that the date of conviction, not the date of the crime, controls application of the statute. [Government Code s]ection 70373 can and does apply to crimes committed before its enactment. [Citations.]” (People v. Lopez, supra, 188 Cal.App.4th 474, 479; see also cases cited therein.)
“‘[I]t is the language of the statute that controls’ and... the Legislature intended [Government Code] section 70373 to apply to convictions occurring after its effective date. [Citation.]... ‘[T]he fact that [Government Code] section 70373 is part of a budgetary enactment [fn. omitted] supports application of the assessment to convictions regardless of the date of the underlying offense. [Citation.] The assessment “is but one component of a broader legislative scheme in which filing fees in civil, family, and probate cases were also raised. [Citation.]” [Citation.] Similarly, the court security fee considered in [People v. Alford (2007) 42 Cal.4th 749] was enacted as part of a larger budgetary measure. [Citation.]’ [Citation.]” (People v. Lopez, supra, 188 Cal.App.4th at pp. 480-481.)
We see no compelling reason to reconsider our holding in Lopez. We conclude the $30 assessment is not punitive and was properly imposed by the court.
III
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST Acting P.J., CODRINGTON J.