P. v. Hernandez CA1/2

Filed 6/27/13 P. v. Hernandez CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A136580 v. JUAN O. HERNANDEZ, (Alameda County Super. Ct. No. H52078) Defendant and Appellant.

Juan O. Hernandez (appellant) was convicted, following a jury trial, of driving under the influence of alcohol. On appeal, he contends the trial court abused its discretion when it admitted into evidence the results of the preliminary alcohol screening (PAS) tests he was given. We shall affirm the judgment. PROCEDURAL BACKGROUND Appellant was charged by information with one count of felony driving under the influence of alcohol, with the additional allegation that he had suffered three prior driving under the influence (DUI) convictions (Veh. Code, §§ 23152, subd. (a); 23550; 23550.5),1 and one count of possession of metal knuckles (Pen. Code, § 21810). Following a trial, the jury found appellant guilty of the DUI offense and not guilty of possession of metal knuckles. Appellant waived a jury trial on the prior conviction allegations and the trial court found them to be true.

1 All further statutory references are to the Vehicle Code, unless otherwise indicated.

1

On August 24, 2012, the trial court sentenced appellant to one year, four months in state prison. On September 12, 2012, appellant filed a notice of appeal. FACTUAL BACKGROUND Santos Romo, a California Highway Patrol officer assigned to the Castro Valley office, testified that, on February 12, 2012, at approximately 2:15 a.m., he was on patrol when he noticed a green Ford Explorer traveling in a “serpentine fashion,” i.e., moving side to side into and out of lanes on the freeway.2 Romo initiated a traffic stop of the vehicle, activating the red and blue lights on his patrol car. The driver was slow to respond, but eventually pulled over to the side of the freeway. Romo then contacted the driver of the vehicle, whom he identified as appellant. The first thing Romo noticed when he approached appellant was that appellant had a clear bottle between his legs that was partially filled with a red substance. Romo also noticed that appellant “was somewhat confused, unaware of what was going on. He had red watery eyes, and I detected the odor of alcoholic beverage exhibiting [sic] from the vehicle.” Romo asked appellant whether he had been drinking and appellant said, “a little bit.” As he spoke, appellant slurred his words. Romo had appellant exit his vehicle and then asked a series of questions as part of his investigation. When he asked whether appellant was sick or injured, appellant said he had head pain. “He said he took alcohol for medication and ibuprofen.” Romo then administered the first of four field sobriety tests to appellant: the horizontal gaze nystagmus test, which required appellant to follow Romo’s finger with his eyes. Appellant failed the test in that he “displayed all six clues” of possible impairment, which involved his eyes jerking at different angles. Romo next administered the one-leg stand, which required appellant to stand on one foot and count while looking down at his toe. Appellant failed this test also in that he demonstrated all four “clues”