California Court of Appeal Nov 30, 2015 No. E061661Unpublished
Filed 11/30/15 P. v. Vega CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E061661
v. (Super.Ct.No. RIF1204332)
PATRICIA VEGA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Rafael A. Arreola, Judge.
(Retired Judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to
art. VI, § 6 of the Cal. Const.) Affirmed.
Arielle Bases, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Senior Assistant Attorney General, and Eric A. Swenson and
Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
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A car that defendant Patricia Vega was driving nearly hit a police officer’s cruiser;
she then continued to drive erratically until the officer stopped her. Two successive
breath tests indicated that defendant had a blood alcohol content of 0.12 and 0.13 percent,
With regard to subdivision (a), it was instructed, among other things, that the
People had to prove that “when she drove, . . . the defendant was under the influence of
an alcoholic beverage”; “[i]f the People have proved beyond a reasonable doubt that the
defendant’s blood alcohol level was 0.08 percent or more at the time of the chemical
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analysis, you may, but are not required to, conclude that the defendant was under the
influence of an alcoholic beverage at the time of the alleged offense.”
With regard to subdivision (b), it was instructed, among other things, that the
People had to prove that “when she drove the defendant’s blood alcohol level was 0.08
percent or more . . . .” It was also instructed that “[i]f the People have proved beyond a
reasonable doubt that a sample of the defendant’s breath 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 of more at the time of the alleged
offense.”
In light of these instructions, the jurors would have understood that the trial court’s
remark pertained only to subdivision (b) and not to subdivision (a).
As we have already held, the trial court did not misstate the law regarding
subdivision (b). Even assuming, however, that the jury could have misunderstood the
remark when it was made, these instructions would have cleared up any
misunderstanding.
In her reply brief, defendant shifts her focus to the portion of the trial court’s
remark that stated, “So it doesn’t matter whether your blood was taken with a needle or
your breath was taken with a breath machine.” She argues that this was not true because
(at least according to her expert) breath test results can be affected by reflux disease and
blood tests results cannot. However, it is simply absurd to suppose that the jury would
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have understood the trial court’s remark in this tortured fashion. Plainly, the trial court
meant that, regardless of whether in a particular case the defendant is given a blood test or
a breath test, the ultimate legal issue is what the defendant’s blood alcohol content was
(and whether this figure means that he or she was under the influence). It did not mean
that the jury should disregard all of the evidence about the possible fallibility of breath
alcohol testing.
Defendant briefly complains that, “in the presence of the jury, the court
continuously interrupted appellant’s expert[’s] testimony and repeatedly expressed doubts
as to the validity of the expert testimony.” However, she has not raised this as a separate
basis for reversal. (See Cal. Rules of Court, rule 8.204(a)(1)(B) [brief must “[s]tate each
point under a separate heading or subheading”].) She also has not explained, using
reasoned argument or citation of authority, why this was error. (See id.) We therefore do
not consider it.
Finally, defendant recounts her efforts to introduce both her medical history and
her expert’s testimony regarding reflux disease. However, as she concedes, this evidence
was ultimately admitted. She does not claim that the trial court made any particular
evidentiary ruling that was erroneous. Thus, this presents no issue for us to discuss.
We conclude that the trial court did not misstate the law.
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III
JURY INSTRUCTION ON ADOPTIVE ADMISSIONS
Defendant contends that the trial court erred by giving a jury instruction on
adoptive admissions.
A. Additional Factual and Procedural Background.
The prosecution asked the trial court to give CALCRIM No. 357 (“Adoptive
Admissions”). The prosecutor claimed the instruction was based on the evidence that,
when defendant heard the preliminary breath alcohol test results, she “shrugged” or
“dropped” her shoulders.
Defense counsel objected, arguing, “Her reaction is one of depression and being
upset that it reads that way. I don’t think in any way it is an acceptance or
acknowledgement that . . . the information is correct . . . .”
The trial court observed that “it is a borderline case” but concluded, “[i]t is up to
the jury to decide whether it applies.” Thus, it instructed:
“If you conclude that someone made a statement outside of court that accused the
defendant of the crime or tended to connect the defendant with a commission of the
crime, and that the defendant did not deny it, you must decide whether each of the
following is true:
“One, the statement was made to the defendant or made in her presence;
“Two, that the defendant heard and understood the statement;
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“Three, that the defendant would, under all of the circumstances, naturally have
denied the statement if she thought it was not true; and
“Four, that the defendant could have denied it but did not.
“If you decide that all of these requirements have been met, you may conclude that
the defendant admitted the statement was true. If you decide that any of these
requirements has not been met, you must not consider either the statement or the
defendant’s response for any purpose.”
B. Discussion.
“It is an elementary principle of law that before a jury can be instructed that it may
draw a particular inference, evidence must appear in the record which, if believed by the
jury, will support the suggested inference. [Citation.]” (People v. Hannon (1977) 19
Cal.3d 588, 597.)
The instruction related exclusively to defendant’s failure to deny an accusation (or
similar statement). Hence, the true issue is not whether her gesture of “shrug[ing]” or
“dropp[ing]” her shoulders could be construed as an adoptive admission. Rather, it is
whether, under the circumstances, her mere failure to deny the accuracy of the
preliminary breath test results could be construed as an admission.
There was sufficient evidence that the statement was made to defendant, that she
heard and understood it, and that she could have denied it but did not. The only possible
dispute is as to whether she would naturally have denied the statement if it was untrue. A
juror could reasonably conclude that a person who had had only two beers more than five
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hours earlier, as defendant claimed, would have protested that a reading of 0.13 percent
had to be inaccurate.1 While this was not the only possible reasonable conclusion, it was
sufficient to support the trial court’s decision to give the instruction.
Defendant argues that her silence was “insolubly ambiguous” (Doyle v. Ohio
(1976) 426 U.S. 610, 617) and “of little probative force” (United States v. Hale (1975)
422 U.S. 171, 176) because she was effectively under arrest; thus, she may have been
relying on her right to remain silent. We know of no case holding that the mere
ambiguity of post-arrest, pre-Miranda silence makes it inadmissible per se; certainly
defendant has not cited any. Rather, “[t]he probative value of a defendant’s silence
depends peculiarly on a careful assessment of all of the relevant circumstances.
[Citations.]” (People v. Tom (2014) 59 Cal.4th 1210, 1236.) Defense counsel was free to
argue to the jury that defendant may have been relying on her right to remain silent, but
neither the trial court nor the jury was required to presume that in fact she was.
Defendant does not argue that the instruction violated her right to remain silent.
She forfeited any such argument by failing to object on such grounds below. In any
event, the argument would lack merit. Even assuming defendant was in custody, the “use
of a defendant’s postarrest, pre-Miranda silence is not barred by the Fifth Amendment in
the absence of custodial interrogation or a clear invocation of the privilege . . . .” (People
v. Tom, supra, 59 Cal.4th at p. 1236.)
1 Defendant even says herself: “She may have just been surprised by the results since she had not consumed enough alcohol for such a high reading.”
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Finally, we also conclude that the claimed error was harmless under any standard.
The instruction itself told the jury not to consider defendant’s response to the statement
“for any purpose” unless, among other things, “the defendant would, under all the
circumstances, naturally have denied the statement if she thought it was not true . . . .”
The jury was also told that “some of these instructions may not apply, depending on your
findings about the facts of the case.” (CALCRIM No. 200.) Thus, if, in fact, there was
insufficient evidence that defendant would naturally have denied the statement, we may
presume that the jury disregarded the evidence. (People v. Chism (2014) 58 Cal.4th 1266,
1299.)
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.
We concur:
KING J.
MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's convictions for driving under the influence, holding that the trial court did not misstate the law regarding breath alcohol testing and did not err in instructing the jury on adoptive admissions.
Issues
Whether the trial court misstated the law regarding breath alcohol testing in the presence of the jury.
Whether the trial court erred by giving a jury instruction on adoptive admissions regarding the defendant's failure to deny breath test results.