People v. Garcia CA6

Filed 10/7/14 P. v. Garcia CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

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

v.

EFRAIN SANCHEZ GARCIA,

Defendant and Appellant.

Defendant Efrain Sanchez Garcia was convicted by jury trial of using 1 methamphetamine (Health & Saf. Code, § 11550, subd. (a)). He pleaded no contest to driving with a 0.08 or higher blood-alcohol level with three or more prior convictions (Veh. Code, §§ 23152, subd. (b), 23550) and guilty to two counts of driving with a suspended license (Veh. Code, §§ 14601.2, subd. (a), 14601.5, subd. (a)). The court imposed a prison term, suspended execution of sentence, and granted defendant probation. On appeal, defendant’s sole contention is that the methamphetamine count must be reversed because the trial court prejudicially erred in instructing the jury that it could

1 Statutory references are to the Health and Safety Code unless otherwise specified.

convict defendant of this offense if he had used methamphetamine within 48 hours of his arrest. We find no prejudicial instructional error and affirm the judgment.

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