Filed 7/20/17 P. v. Hand CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

PHILIP M. HAND,

Defendant and Appellant.
D070423



(Super. Ct. No. SCD263476)

APPEAL from a judgment of the Superior Court of San Diego County, Laura W. Halgren, Judge. Affirmed.
Kyle D. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found defendant Philip Hand guilty of driving under the influence of methamphetamine. (Veh. Code, § 23152, subd. (e).) The court imposed a five-year sentence, consisting of the two-year middle term, doubled for Hand's prior strike (Pen. Code, § 667, subds. (b)-(i)), plus one year for a prior prison term (Pen. Code, § 667.5, subd. (b)).
Hand contends the trial court prejudicially erred in failing to sua sponte instruct the jury on the meaning of "driving." We reject this contention, and affirm.
FACTS AND PROCEDURE
Evidentiary Summary
In July 2015, a woman flagged down San Diego Police Officer Christopher Senior in Ocean Beach at about 4:00 p.m. The woman expressed concern about a nearby vehicle that was partially blocking a traffic lane at a blind curve. The street ran next to the beach area, and was busy with cars and pedestrians. When Officer Senior arrived at the location, he saw a pickup truck blocking traffic near the curved intersection. The truck was on a slant, almost fully occupying the eastbound lane and forcing eastbound cars to maneuver around the vehicle. The truck was idling with its motor on, and was at least five to 10 feet from a no-parking curb.
When Officer Senior approached the truck, he saw Hand asleep at the wheel with his seatbelt fastened. The truck had its brake lights on, indicating Hand's foot was on the brake pedal. Officer Senior put the truck in park and woke up Hand. Once awake, Hand appeared confused. Hand said he had recently dropped off his friend, with whom he had lunch. Hand claimed he fell asleep because he was "stressed out" and "tired." Hand said he consumed one drink during lunch. A 24-ounce, half-empty can of cold King Cobra beer was in the driver's cup holder. Hand said this beverage belonged to his friend. Officers found six unused hypodermic needles and one used hypodermic needle with a small amount of clear liquid in it and blood on the tip of the needle.
Officer Senior asked Hand for his driver's license, registration, and insurance information. After Hand had difficulty responding, Officer Nicholas Jehl, a trained drug recognition expert, arrived at the scene. Officer Jehl noticed Hand appeared unkempt and had watery eyes, poor body hygiene, a raspy low-volume voice, and it took a while for him to fully answer a question. Hand said he had slept eight hours the previous night. The coating on Hand's tongue and a lack of nystagmus in his eyes was consistent with having taken a stimulant. After the officers arrested him and transported him to headquarters, Hand failed to properly perform the walk-and-turn and nose-touch drug assessment tests.
A sample of Hand's blood tested positive for methamphetamine, and included methamphetamine metabolites, suggesting the drug had been in Hand's system for some time. Responding to a hypothetical question, the prosecution's expert, a forensic toxicologist, opined that Hand's symptoms reflected symptoms of "late phase" methamphetamine "crash," and said that in this stage, a person would be unable to drive with the care and caution of a sober person. The expert explained that although methamphetamine is a stimulant, after the drug has been in the body for a period of time, it acts as a "central nervous system depressant." The expert stated that during the "late" or "crash" methamphetamine phase, the individual might appear "tired, fatigued, sleepy"; have problems with balance and coordination; and experience difficulty focusing and responding to questions.
Hand did not testify, or present any of his own witnesses.
Jury Instructions and Argument
Hand was charged with a single count of driving under the influence of methamphetamine. (§ 23152, subd. (e).) The court instructed the jury that to establish this offense, "the People must prove that: [¶] 1. The defendant drove a vehicle; [¶] AND [¶] 2. When he drove, the defendant was under the influence of a drug." (Italics added.) (See CALCRIM No. 2110.)
At the outset of her closing argument, the prosecutor said: "This case is about two things, driving and under the influence." (Italics added.) The prosecutor explained she had the burden to prove both of these elements: to establish "beyond a reasonable doubt the defendant drove his vehicle and when he drove, he was under the influence of a drug." The prosecution's primary theory was that Hand's conduct in falling asleep while driving was a symptom of late-phase methamphetamine use, which she said manifests in a person feeling "tired, fatigued" and having "problems with balance and coordination. . . ." On the driving element, the prosecutor referred to the evidence that Hand's car was blocking a lane on a busy road, with the motor running.
In defense, Hand's counsel did not dispute that Hand had been driving when he fell asleep at the wheel, nor did she challenge that Hand's vehicle was blocking the roadway when he was found. The defense theory instead was that Hand was not under the influence of the methamphetamine found in his blood sample. Defense counsel argued there was no credible evidence showing Hand suffered from any methamphetamine-use symptoms, highlighting the facts that Hand answered questions appropriately and performed satisfactorily on some of the field sobriety tests, and that one month earlier the prosecution's expert had opined there was insufficient evidence to show that Hand was under the influence of methamphetamine when he was found in his car. Defense counsel also argued the law enforcement officers were biased and/or had insufficient expertise or experience to draw conclusions about Hand's condition.
After a brief deliberation, the jury found the prosecution proved that Hand drove while under the influence of methamphetamine.
DISCUSSION
Hand was convicted of violating section 23152, subdivision (e), which states: "It is unlawful for a person who is under the influence of any drug to drive a vehicle." (Italics added.) The court instructed the jury that to prove Hand was guilty of this offense, the prosecution must prove two elements beyond a reasonable doubt: (1) "defendant drove a vehicle" and (2) "[w]hen he drove, the defendant was under the influence of a drug." Hand's sole appellate contention is that the trial court erred in not also instructing on the meaning of "drove." Hand did not request this instruction, but argues the court had a sua sponte duty to define this term.
Generally, a trial court has a sua sponte duty to instruct on legal principles that are closely and openly connected to the facts and necessary to the jury's understanding of the case. (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) But a court "has no duty to give clarifying or amplifying instructions, absent a request." (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1331.) Under these rules, a court has the obligation "to define terms that have a technical meaning peculiar to the law," but "[a] court has no duty to sua sponte define terms that are commonly understood by those familiar with the English language." (People v. Bland (2002) 28 Cal.4th 313, 334; see People v. Cross (2008) 45 Cal.4th 58, 68.) We independently review the correctness and adequacy of the trial court's instructions, examining whether the court " 'fully and fairly instructed on the applicable law.' [Citation.]" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
It is settled that to prove the "drive" element of the driving-under-the-influence crime (§ 23152), the prosecution must establish the person exercised actual physical control over the vehicle and caused the vehicle to move at least a slight distance. (See Mercer v. Department of Motor Vehicles. (1991) 53 Cal.3d 753, 761-769 (Mercer); People v. Lively (1992) 10 Cal.App.4th 1364, 1368; People v. Weathington (1991) 231 Cal.App.3d 69, 79; People v. Wilson (1985) 176 Cal.App.3d Supp. 1, 8; see also People v. Nelson (2011) 200 Cal.App.4th 1083, 1091; In re F.H. (2011) 192 Cal.App.4th 1465, 1472.)
Hand contends the court had a sua sponte duty to inform the jury of this definition, citing CALCRIM No. 2241, which states: "A person drives a vehicle when he or she intentionally causes it to move by exercising actual physical control over it. The person must cause the vehicle to move, but the moving may be slight."
Hand does not cite any authority supporting that a court has a sua sponte obligation to provide this instruction, and we conclude there was no duty in this case. The term "drive" or "drove" would have been understood by a reasonable juror. Under the dictionary definition, the common meaning of drive includes more than control, it also encompasses motion. (See Random House Unabridged Dict. (2d ed. 1993) p. 597, col. 3.) This dictionary definition comports with a reasonable layperson's understanding of the term. As our high court observed more than 25 years ago, "In everyday usage the phrase, 'to drive a vehicle,' is understood as requiring evidence of volitional movement of a vehicle. Numerous dictionary definitions . . . support a definition of 'drive' that includes movement. . . . We believe these definitions are consistent with the usual and ordinary understanding of that term . . . ." (Mercer, supra, 53 Cal.3d at pp. 762-763, fn. omitted.)
Because the word "drive" used in section 23152, subdivision (e) does not have a technical meaning different from its commonly-understood meaning, the court did not have a sua sponte duty to give an additional instruction on the definition of the word. (See People v. Bland, supra, 28 Cal.4th at p. 334; see also People v. Cross, supra, 45 Cal.4th at p. 68.) In urging this court to reach a different conclusion, Hand cites to a Court of Appeal decision that defined "driver" to include individuals in physical control of a vehicle, even if there was no actual movement of the vehicle. (Henslee v. Department of Motor Vehicles (1985) 168 Cal.App.3d 445, 451-452.) However, as the California Supreme Court pointed out, this prior judicial interpretation was based on legislative policy favoring detection and prevention of drunk driving, rather than an interpretation of the plain meaning of the word "driving." (Mercer, supra, 53 Cal.3d at pp. 762-763.) Thus, the earlier Henslee line of cases do not support that the jury would have been confused about the commonly-understood meaning of the term "drive" as including movement. Hand's reliance on section 305 is likewise misplaced. Section 305 (not applicable to section 23152) defines a "driver" as "a person who drives or is in actual physical control of a vehicle." (Italics added.) Because section 305 includes a technical definition of "driver" to include not only a person who drives (moves the car), but also one who is in actual physical control of the vehicle (without driving), it is not helpful to Hand's position. (See Mercer, at p. 763.) Neither Henslee nor section 305 support that the definition of "drive" within the meaning of section 23152, subdivision (e) has a technical definition requiring a trial court to explain its meaning to a jury.
In concluding there was no sua sponte instructional duty in this case, we note the jury did not express any confusion over the term, and there was no dispute between counsel regarding the meaning of the element in the jury instructions. In their arguments, both counsel essentially assumed Hand had driven (operated the car with movement) to travel into the eastbound lane, and instead focused on the "under the influence" portion of the crime. (§ 23152, subd. (e).)
Finally, even if the court had a sua sponte duty to instruct the jury, there was no prejudicial error. Generally, we evaluate the erroneous failure to provide a clarifying or amplifying instruction under the Watson standard. (People v. Watson (1956) 46 Cal.2d 818, 836; see People v. Rodrigues (1984) 8 Cal.4th 1060, 1130-1132.) But even under the stricter Chapman test, the alleged instructional error was harmless. (Chapman v. California (1967) 386 U.S. 18, 24.) The Attorney General met its burden to show beyond a reasonable doubt that a rational jury would have reached the same verdict absent the claimed error. (Ibid.; see People v. Merritt, supra, 2 Cal.5th at p. 831.)
It was undisputed Hand was asleep in the driver's seat while the car's motor was running, and the car was partially blocking the eastbound lane of the roadway. Hand admitted he had recently driven his friend home after they had lunch. Under this factual scenario, a reasonable jury would not have concluded that Hand did not cause the car to be at the location where it was found. As the prosecutor told the jury: "If you find that the defendant didn't drive his vehicle to that location, you would . . . have to reasonably believe that that car beamed down out of nowhere; it just showed up."
Hand argues for the first time that the jury could have believed he took the drugs after he drove the vehicle into the middle of the lane. His counsel posits that Hand "may have stopped the vehicle, injected the drugs, and then fallen asleep without moving the vehicle at all."
Defense counsel never suggested this factual scenario, likely realizing it was unreasonable on its face and would have significantly weakened the defense case. This injecting-methamphetamine-after-driving-into-the-roadway theory contradicted Hand's central defense that he was not under the influence of methamphetamine when he was found asleep in the car. Additionally, the theory is inconsistent with the undisputed scientific evidence that methamphetamine is a stimulant when first taken, and it is not until the later "crash" stage that it becomes a depressant. Thus, if Hand stopped his vehicle in the middle of the street to inject methamphetamine, it is not reasonable to conclude he could or would have immediately fallen asleep. Further, because the area where Hand's vehicle was found is a busy street next to the beach, it is highly unlikely that his truck would have remained partially blocking the lane on a summer afternoon for a sufficiently lengthy period to allow him to reach the late stage of methamphetamine use while sleeping in his vehicle.
We agree with the Attorney General no rational jury would have believed Hand's new theory. As the Attorney General asserts: "For the jury to believe appellant did not drive under the influence, it would have had to believe that, sober, he stopped his truck on a summer afternoon in the middle of a busy intersection in Ocean Beach in order to shoot up with methamphetamine, that while doing so he made no effort to actually park, but left the truck in gear and running, and that after shooting up [with a stimulant] he simply sat there, foot on the brake, as traffic surged around him, for so long that by the time the police found him, the effects of the methamphetamine had largely worn off and he had fallen asleep."
On the record before us, we are satisfied the jury understood the word "drove" in the court's CALCRIM No. 2110 instruction to include the requirement that a person cause the vehicle to move to a location while under the influence. Additionally, the record here shows beyond a reasonable doubt that a reasonable jury would have returned the same verdict even if the court had told the jury of this "movement" requirement.
DISPOSITION
Judgment affirmed.


HALLER, J.

WE CONCUR:



NARES, Acting P. J.



AARON, J.