P. v. Hudon

Filed 12/18/09 P. v. Hudon CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Leo Valentine, Jr., Judge. Affirmed.

In September 2007 Michael Joseph Hudon was arrested after he evaded the police during a late-night car chase and then attacked one of the officers, breaking his nose, after the officers executed a traffic stop. At trial, Hudon's defense was that he must be completely relieved from criminal liability because when he committed the allegedly criminal acts, he was unconscious due to involuntary intoxication. Specifically, he claimed that as a result of ingesting the prescribed sleep-aid medication Ambien before he went to bed on the night of the incident, he was unconscious both when he drank an excessive amount of alcohol and when he drove his car and punched the police officer.

A jury convicted Hudon of (1) evading a peace officer with wanton disregard for safety (count 1: Veh. Code,  2800.2, subd. (a)); (2) simple battery (Pen. Code,[1]  242, as a lesser included offense of count 3 (battery with serious injury,  243, subd. (d))); (3) battery upon a peace officer resulting in injury (count 4:  243, subd. (c)(2)); (4) driving the wrong direction in the opposite lane while evading a peace officer (count 5: Veh. Code,  2800.4); (5) driving under the influence (count 6: Veh. Code,  23152, subd. (a)); and (6) driving while having 0.08 percent or more, by weight, of alcohol in his blood (count 7: Veh. Code,  23152, subd. (b)). Hudon admitted the allegations in counts 6 and 7 that in April 2006 he had suffered a prior conviction for driving under the influence (Veh. Code,  23152, subd. (a)) within the meaning of Vehicle Code section 23540. The jury found not true the count 4 allegations that Hudon personally inflicted great bodily injury upon San Diego Police Officer George D. Smith within the meaning of sections 1192.7, subdivision (c)(8), and 12022.7, subdivision (a). The jury was unable to reach a verdict on the count 2 charge of resisting an executive officer ( 69), and the court declared a mistrial as to that count and later dismissed it. The court suspended imposition of sentence and granted Hudon five years of formal probation.

Hudon appeals, contending (1) the court committed reversible error by allowing the prosecution to present evidence under Evidence Code section 1101, subdivision (b) (hereafter Evidence Code section 1101(b)) that following his arrest in this matter, Hudon indicated to a police officer that he "ran" from the officer and did not want to stop because he had a prior arrest for driving under the influence; and (2) the court abused its discretion and violated Hudon's constitutional rights by precluding the defense expert, Dr. Michel Cramer-Bornemann, from giving his expert opinion on the ultimate factual issue of whether Hudon was unconscious as a result of Ambien toxicity at the time of the incident. We affirm the judgment.

FACTUAL BACKGROUND

A. The People's Case

On September 17, 2007, at around 11:15 p.m., San Diego Harbor Patrol Officer Jim Dreher, who was in uniform, was on patrol in a marked car. He noticed a Jeep make a left turn from Hawthorn Street onto Pacific Highway. The Jeep was turning at an excessive speed with its tires squealing. Officer Dreher followed the vehicle, pacing its speed at around 60 miles per hour in a 35-mile-per-hour zone.

After following the Jeep about a quarter-mile on Pacific Highway, Officer Dreher saw it make an erratic lane change in front of two other cars that were going into the left-turn lane at the intersection of Pacific Highway and Ash Street. The Jeep stopped for a red traffic light at the limit line in the left-turn lane. Hudon was the driver and sole occupant of the Jeep.

Officer Dreher pulled up behind Hudon's car and waited for the green left-turn arrow, intending to initiate a traffic stop. The Jeep began moving, ran through a red light, and turned left onto Ash Street. Officer Dreher turned on his emergency lights and followed the Jeep through the intersection. Hudon started to slow down and pull over to the right side of the street, and Officer Dreher also pulled over behind the Jeep.

Hudon suddenly accelerated after almost coming to a complete stop, crossed all lanes of traffic to the left, and turned left on Kettner Boulevard, driving northbound against traffic on that one-way southbound street. Officer Dreher followed Hudon's Jeep, leaving his emergency lights on and activating his siren. The Jeep turned right onto Beech Street, then left onto State Street, driving through several stop signs in the process. The Jeep continued northbound on State Street, running through two more stop signs, and continued past Grape Street, running through a red traffic light, toward Hawthorn Street.

San Diego Police Officer George Smith was on duty in his marked patrol vehicle at Hawthorn Street and State Street. As Hudon and Officer Dreher, who was in pursuit, passed him, Officer Smith activated his overhead lights and joined the pursuit behind Hudon's vehicle. Hudon continued to lead the officers on a car chase along other streets in San Diego, failing to stop or slow down at numerous stop signs and traffic lights.

Eventually, Hudon turned into a cul-de-sac and Officer Dreher positioned his patrol car to block Hudon's car as Hudon attempted to make a U-turn,. Hudon's car struck the police car and stopped. During the pursuit, which lasted about 10 minutes and reached speeds between 40 and 70 miles per hour, Hudon ran through 26 stop signs and at least two red traffic signals. During the pursuit, Hudon's car bumped the curb at least twice due to his speed, he drove up onto the curb at one point, and at another point he briefly drove onto a sidewalk. Other vehicles were on the road during the pursuit, and pedestrians were near the street and on the sidewalks in some locations.

Officer Dreher drew his weapon and ordered Hudon out of the Jeep. As Officer Smith approached the Jeep, he detected the odor of alcohol emanating from one of its open windows. Officer Smith opened the driver's side door and told Hudon several times to step out of the car, but Hudon did not do so. Officer Smith started to pull Hudon out of the car and told him to remove his seatbelt, which he did.

Officer Smith held Hudon's left arm as Hudon stepped out of the Jeep. Once he was out of the car, Hudon pulled his arm away, turned, and punched Officer Smith in the nose with his right fist. Officer Smith then hit Hudon on the left side of his face, Hudon lost his balance, and both he and Officer Smith fell to the ground.

Officer Smith tried to hold Hudon down, but Hudon continued to struggle and kick his legs. Officer Smith struck Hudon several times on the legs and arms with his baton, but Hudon continued to resist. Officer Dreher told Officer Smith to move away and then shot Hudon with a taser. Hudon fell to the ground, but continued to resist and tried to stand up when the shock ended. When Officer Dreher tasered Hudon again, the two officers were able to hold Hudon down and handcuff him. Hudon was transported to a hospital to have the taser barbs removed. Officer Smith also went to the hospital for treatment and was diagnosed with an acute contusion and nasal fracture. At trial, Officer Smith opined that Hudon was intoxicated on alcohol.

Officer Dreher monitored Hudon at the hospital, and noticed that Hudon smelled of alcohol, his speech was slurred, and his eyes were red and watery. After Hudon was released from the hospital, Officer Dreher took him to police headquarters. Hudon was carrying his wallet, a cellular phone, and keys. He told Officer Dreher that he had four glasses of wine with dinner. Hudon stated he wanted to go home and expressed some remorse for hitting a police officer in the face. He also told Officer Dreher that before their vehicles collided, he saw Officer Dreher's vehicle at the last second and tried to drive around it.

At 12:35 a.m., about one-and-a-half hours after Officer Dreher first observed Hudon's Jeep, Hudon's blood alcohol level (hereafter referred to as BAC) was 0.13 percent. Janine Miller, a criminalist, opined that if a male of Hudon's weight had a BAC of 0.13 percent at 12:35 a.m., and assuming all of the alcohol was completely absorbed, then at 11:15 p.m.─an hour and 20 minutes earlier─the male would have had about six-and-a-half alcoholic drinks in his system, and a BAC of between 0.143 percent and 0.156 percent. Miller also opined that for purposes of driving, all people are impaired at a BAC of 0.08 percent.

Aaron Layton, a toxicologist, testified that Hudon's blood also contained 96 nanograms of zolpidem (or Ambien) per milliliter of blood. Layton opined that the amount of Ambien in Hudon's system was consistent with a person having taken 10 milligrams of Ambien between 9:30 p.m. and 10:00 p.m.

B. The Defense

Hudon testified that on the day of the incident, he had been feeling some flu-like symptoms. His girlfriend, Carol Shamrock, arrived home around 4:30 p.m., and they ate dinner around 5:30 p.m. Hudon stated he did not drink any alcohol, and Shamrock had half a glass of wine. He took 10 milligrams of Ambien, a prescription sleep aid, at around 9:30 p.m., and went to bed. The next thing he remembered after taking the Ambien was waking up in jail. He had no recollection of getting out of bed, driving, fleeing from police, or hitting a police officer.

Hudon also stated he was examined by his doctor after he was released from jail. He later did some research on Ambien on the Internet. Before the incident, he had been taking Ambien for about two years to help him sleep.

Shamrock testified she went to bed soon after Hudon went to bed. Later that night, she woke up and heard music coming from the living room; she went to investigate. Hudon was in the kitchen holding a brandy snifter that contained a clear liquid. Shamrock told Hudon he needed to go to bed because he had to get up for work in the morning and then she went back to bed.

At around 11:00 p.m., Shamrock heard another noise and saw that the door to the backyard and the yard gate were open. She then heard Hudon start the car and drive away. After Hudon left, Shamrock went to the refrigerator to get another half-glass of wine and saw that only half a glass of wine was left inside the wine bottle. She did not know what had happened to the rest of the wine that had been in the bottle. She did not hear from Hudon until he called her from jail at around 4:00 a.m.

Dr. Bornemann, co-director of the Minnesota Regional Sleep Disorder Center, testified about some reported side effects of Ambien, such as sleepwalking and sleepeating. He had been doing clinical work on Ambien for about five years. The Mayo Clinic in Minnesota first identified sleep-related eating, which is an unusual manifestation of sleepwalking, as a side effect of taking Ambien. Patients would "raid" the kitchen one to three hours after taking Ambien, eat foods they normally would not eat, and have minimal memory about it the next morning. When the physicians at the Mayo Clinic took the patients off Ambien, the forays in the kitchen subsided.

The Australian government's Therapeutic Goods Administration, which is the equivalent of the Food and Drug Administration (FDA) in the United States, uncovered over 1,000 cases of "bizarre" behavior among patients using Ambien, including 397 cases of "sleep driving." This led to a "black-box" labeling of Ambien in Australia, warning that Ambien could cause abnormal thinking, uncharacteristic behaviors, rage reaction, sleep-related eating and sleep-related driving, and anterograde amnesia (or memory loss). In December 2007 the FDA began requiring similar warnings in the United States.

Dr. Bornemann testified that Ambien has a clinical benefit, and the "really unusual side effects" were "few and far between." Ambien can provoke "really bizarre sleep-related behaviors." The most extreme version of these behaviors is "probably going to be violent" or "result in some type of unfortunate traffic consequence or misfortune."

Dr. Bornemann also testified that he had no personal stake in the outcome of this case, he "firmly ha[d] confidence that this is an Ambien defense," he "believe[d] Mr. Hudon," and he "ha[d] great confidence that this is a legitimate case" that "ha[d] merit." Ambien can cause significant memory loss, and a person can take the drug for years without suffering a side effect and then suffer a side effect.

Dr. Bornemann indicated that when someone has anterograde amnesia, that person can have a lucid conversation with other people. He stated that, from a neurologic standpoint, "the brain abhors a vacuum" and, in a process called "confabulation," it can "confabulate" by "mak[ing] up stories to basically fill up the void." He indicated that persons suffering from a side effect can state where they live and talk about "things prior to that effect." Confabulation can be very convincing. It would be unclear whether the affected person is talking about past memories or also mixing in confabulation. The influence of alcohol appears to increase the likelihood of having anterograde amnesia. In his opinion, Hudon's having 94 or 96 nanograms of Ambien per milliliter of blood was consistent with someone having the "unusual" side effects of anterograde amnesia, sleepeating, and sleepdriving.

On cross-examination, Dr. Bornemann acknowledged that anterograde amnesia can be caused by significant alcohol toxicity or by mixing Ambien with alcohol. He also acknowledged that sleepdriving behavior associated with Ambien was "a very, very rare side effect," and his belief in this case was based on his assumption that Hudon's lack of recall was true.

C. The People's Rebuttal

Katherine Crowley, a registered nurse, treated Hudon at UCSD Medical Center in Hillcrest at around midnight following his arrest. She conducted an overall assessment of Hudon, which included asking him a series of questions about his current and past medical history and whether he had any complaints. Hudon answered all of her questions. Crowley conducted a Glasgow Coma Scale assessment to determine whether Hudon was responsive, alert, and acting appropriately. The score ranges from 3, which means brain dead, to 15, which means awake and oriented. Hudon's assessment score was 15, meaning he was awake, alert, and oriented. Crowley had experience treating people suffering from toxic effects of Ambien, and she did not note any signs that Hudon was suffering from such effects.

Officer Dreher testified that he had experience with people who were intoxicated on prescription medication, and on the night of the incident in this case he did not notice anything in Hudon's behavior to make him suspect Hudon was under the influence of any kind of prescription medication. Hudon's behavior was consistent with that of someone who was under the influence of alcohol.

Officer Dreher also testified that Hudon told him at the police station that one of the reasons he did not want to stop was that earlier he had a couple glasses of wine with dinner, and he had a prior arrest for driving under the influence.

DISCUSSION

I. EVIDENCE OF HUDON'S PREVIOUS DRIVING UNDER THE INFLUENCE CONVICTION

Hudon first contends the court committed reversible error by allowing the prosecution under Evidence Code section 1101(b) to present the rebuttal testimony by Officer Dreher that, following Hudon's arrest, Hudon told him that one of the reasons he did not want to stop was that he had a couple glasses of wine with dinner earlier that night, and he had a prior driving under the influence (DUI) arrest. We conclude this evidence, which was highly relevant and probative both with respect to Hudon's motive and intent and with respect to whether he was unconscious during the incident, was admissible under Evidence Code sections 1101(b) and 352. Accordingly, we reject Hudon's contention.

A. Background

Before trial, Hudon brought a motion in limine seeking to exclude under Evidence Code sections 1101(b) and 352 evidence of his statement to Officer Dreher regarding his prior DUI arrest. Defense counsel argued the statement was not relevant to show Hudon's intent, it had little probative value, and it was highly prejudicial. The court ruled that the evidence of the statement was not admissible, and no reference should be made to it in the prosecution's case-in-chief, but the court might revisit the issue when the defense started putting on its case. The court thus reserved its ruling on the admissibility of the statement in the People's rebuttal case until after the defense presented its case.

Following Hudon's and Shamrock's testimony, but before Dr. Bornemann testified for the defense, the court revisited the issue of the admissibility of Hudon's statement to Officer Dreher and found that because Hudon was presenting a defense of unconsciousness, the evidence was relevant and admissible on the issues of intent, motive, absence of mistake, and whether his actions were unconscious.

Following Dr. Bornemann's expert testimony, the parties discussed with the court, outside the presence of the jury, the admissibility of Hudon's statement about his prior DUI arrest. The prosecutor argued that evidence of the statement was admissible to show Hudon's intent and motive and to "directly attack the credibility of the defense." The court ruled that because he had placed his state of mind directly at issue it would permit the evidence of the statement to be admitted to rebut Hudon's defense that he was unconscious during the entire incident.

During the prosecution's rebuttal case, Officer Dreher testified that when he interviewed Hudon, Hudon told him that one of the reasons why he did not want to stop was that earlier he had a couple glasses of wine with dinner, and he had a prior DUI arrest.

B. Applicable Legal Principles

Evidence of other crimes or bad acts is inadmissible when it is offered to show that a defendant had the criminal disposition or propensity to commit the crime charged. (Evid. Code, 1101, subd. (a).)[2] However, evidence of other crimes or misconduct by a defendant is admissible under Evidence Code section 1101(b)[3] to prove a fact other than a disposition to commit such acts (e.g., motive, intent, absence of mistake or accident), and may be admissible to negate a claim of good faith belief or other innocent mental state. (People v. Ewoldt (1994) 7 Cal.4th 380, 402.)

If the trial court determines that uncharged misconduct is admissible under Evidence Code section 1101(b), it must then determine under Evidence Code section 352[4] whether the probative value of the evidence is substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, confusing the issues, or misleading the jury. (People v. Ewoldt, supra, 7 Cal.4th at p. 404.) The fact that evidence of other crimes or misconduct is inherently prejudicial simply "means the court must exercise its discretion, not that it must always exclude the evidence." (People v. Steele (2002) 27 Cal.4th 1230, 1245.)

We review the trial court's rulings under Evidence Code sections 1101 and 352 for an abuse of discretion (People v. Lewis (2001) 25 Cal.4th 610, 637), and we will not reverse an evidentiary ruling unless the appellant demonstrates a manifest abuse of that discretion (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10).

C. Analysis

The court did not abuse its discretion in permitting Officer Dreher to testify during the prosecution's rebuttal case to Hudon's postarrest statement about his prior DUI arrest. Hudon placed his state of mind at issue by presenting the defense that as a result of his ingesting Ambien, he was unconscious both when he drank an excessive amount of alcohol and when he later led the police in a high-speed car chase and punched Officer Smith. Hudon's statement was admissible under Evidence Code section 1101(b) because it was relevant and probative with respect to the factual issues of (1) whether he had a motive to flee from the police, given the undisputed fact that he was driving under the influence of alcohol during the car chase; (2) whether he was conscious during the car chase that he was driving while intoxicated; and (3) whether he formed the intent to evade the pursuing police. Evidence showing that Hudon admitted to Officer Dreher that he tried to escape─while driving under the influence of alcohol─because he had a prior DUI arrest was highly relevant to show he was aware of what he was doing not only when he led the police on the car chase, but when he attacked Officer Smith and broke his nose. Hudon's defense expert, Dr. Bornemann, indicated that a person rendered unconscious due to Ambien toxicity would not be aware of what he was doing or what was happening around him until the effects of the drug wore off. Hudon's statement, if believed by the jury, showed that he knew the police were trying to detain him and that he did not want to get caught driving while under the influence of alcohol again. Officer Dreher's testimony about Hudon's statement was relevant to Hudon's unconsciousness defense, and the prosecution was entitled to present that evidence during its rebuttal case to assist the jury in determining whether Hudon was unconscious at the time of the alleged offenses.

Furthermore, because the highly probative value of Hudon's statement was not substantially outweighed by a probability that its admission would create a substantial danger of undue prejudice to the defense, we also conclude the court did not abuse its discretion under Evidence Code section 352. The prejudice that exclusion of evidence under that section is designed to avoid "is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence." (People v. Karis (1988) 46 Cal.3d 612, 638.) " '[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case[, and t]he stronger the evidence, the more it is "prejudicial." ' " (Ibid.) " 'The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying [that section], "prejudicial" is not synonymous with "damaging." ' " (Karis at p. 638.) Here, Hudon's statement to Officer Dreher was damaging to Hudon's defense, but it was not unduly prejudicial for purposes of Evidence Code section 352.

II. EXCLUSION OF EXPERT TESTIMONY

Hudon also contends the court abused its discretion and violated Hudon's constitutional rights by precluding his defense expert, Dr. Bornemann, from giving his expert opinion on the ultimate factual issue of whether Hudon was unconscious as a result of Ambien toxicity at the time of the incident.

We need not reach this issue. Assuming, without deciding, that the court abused its discretion, we conclude that Hudon has not, and cannot, demonstrate prejudice. The record shows the court permitted Dr. Bornemann to testify that he "firmly ha[d] confidence that this is an Ambien defense," he "believe[d] Mr. Hudon," and he "ha[d] great confidence that this is a legitimate case" that "ha[d] merit."

The record also shows that during in limine proceedings, the court ruled that Dr. Bornemann "can be asked about the effects of [Ambien], his . . . knowledge on that drug, what it is based upon, and maybe proffer a hypothetical that asks whether or not [the] hypothetical facts are consistent with whatever it is that the expert would offer to testify to." During his direct examination of Dr. Bornemann, defense counsel did ask Dr. Bornemann for his expert opinion on the following hypothetical question:

"Would it be consistent, in your opinion, if somebody had reported taking a dosage of Ambien in a therapeutic amount and their blood some two to three hours after taking it, after that event, indeed showed that they had taken Ambien in that amount or in an amount that was therapeutic levels, acted erratic, acted impulsively, aggressively, is that consistent with someone that is having anterograde amnesia, sleep driving─sleep eating and sleep driving?"

Dr. Bornemann answered: "His level was either 94 or 96 nanograms per [milliliter]. That would be consistent with that unusual side effect."

On this record, we conclude any reasonable jury would have found that Dr. Bornemann did give his expert opinion that Hudon was unconscious due to Ambien toxicity at the time of the incident.

DISPOSITION

The judgment is affirmed.

NARES, Acting P. J.

WE CONCUR:

McDONALD, J.

McINTYRE, J.

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[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] Evidence Code section 1101, subdivision (a), with exceptions not pertinent here, provides: "[E]vidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion."

[3] Evidence Code section 1101(b) provides in part: "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, . . . intent, . . . absence of mistake or accident . . .) other than his or her disposition to commit such an act." (Italics added.)

[4] Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."