P. v. Aguilar
Filed 8/18/09 P. v. Aguilar 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, v. ISMAEL AGUILAR, Defendant and Appellant. | E046026 (Super.Ct.No. FSB703334) OPINION |
APPEAL from the Superior Court of San Bernardino County. Colin J. Bilash, Judge. Affirmed.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
On March 3, 2008, the San Bernardino County District Attorneys Office filed an amended information charging defendant and appellant Ismael Aguilar with driving under the influence (count 1) and driving with a blood-alcohol level of 0.08 percent or greater (count 2) under Vehicle Code section 23153, subdivisions (a) and (b). With respect to each count, the information also alleged great bodily injury enhancements under Penal Code sections 12022.7, subdivision (a), and 1192.7, subdivision (c)(8), and a serious or violent felony prior within the meaning of Penal Code sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i).
On March 11, 2008, a jury found defendant guilty of the two driving under the influence charges and found untrue the great bodily injury enhancements. In a bifurcated proceeding, the trial court found the serious or violent felony prior to be true. On April 15, 2008, the trial court denied defendants Romero[1]motion and sentenced defendant to six years in state prison.
On appeal, defendant contends that his conviction for driving with a blood-alcohol level of 0.08 percent or greater is not supported by substantial evidence. For the reasons set forth below, we shall affirm the judgment.
I
FACTUAL AND PROCEDURAL HISTORY
A little before midnight on August 20, 2007, defendant was driving his Chevrolet Tracker on the eastbound Interstate 10 freeway in San Bernardino County. He and his passenger, Donald Crowley, were returning to Yucaipa after picking up some concrete. On this trip, defendant had traveled at speeds of up to 100 miles per hour, swerved, and veered his truck. Crowley asked defendant if he was okay to drive since defendant had been drinking. Defendant maintained that he was.
After swerving and cutting off another car, defendant crashed his car, causing it to roll over. Crowley became trapped and had to be extracted from the car. Defendants car also sustained major damage: the roof was crushed, all of the windows were broken, all of the tires were flattened, and all sides of the vehicle were smashed or crushed.
Officer West responded to the scene. He testified that he smelled alcohol on defendants breath, and that defendant had red, watery eyes and thick slurred speech. Although defendant initially denied drinking, he later admitted drinking a six-pack of beer in the afternoon and early evening. Officer West also found crushed beer containers and spilled beer throughout the interior of defendants vehicle. Because defendant did not cooperate in taking the field sobriety tests and a preliminary alcohol screening test, his blood was drawn by a nurse at the Loma Linda University Medical Center emergency room. Criminalist Beverly White of the San Bernardino County Sheriffs Department performed a blood-alcohol analysis on defendants blood. The result showed that defendant had 0.10 percent blood-alcohol content in his blood.
II
ANALYSIS
Defendants sole contention on appeal is that there is insufficient evidence to show that [defendant] drove with a blood-alcohol concentration of .08 percent or more. We disagree.
When a defendant challenges the sufficiency of the evidence, the reviewing court must examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence from which the jury could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) Substantial evidencemeaning, evidence that is reasonable, credible, and of solid valuemust support each essential element of an offense. (Id. at pp. 577-578.) A judgment of conviction will not be set aside for insufficiency of the evidence unless it is clearly shown there is no basis on which the evidence can support the jurys conclusion. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (Jackson v. Virginia (1979) 443 U.S. 307, 319, 326; People v. Davis (1995) 10 Cal.4th 463, 509; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
In determining whether substantial evidence exists, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Cortes (1999) 71 Cal.App.4th 62, 71; see also People v. Jones (1990) 51 Cal.3d 294, 314 (Jones).) Although it is the duty of the [trier of fact] to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the [trier of fact], not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Bean (1988) 46 Cal.3d 919, 932-933.)
In this case, defendant was convicted of driving with a blood-alcohol concentration of 0.08 percent or more under Vehicle Code section 23153, subdivision (b). Defendant contends that there is insufficient evidence to support the conviction because [t]he prosecution introduced no evidence to show that the result of [defendants] blood test was based on grams of alcohol per 100 milliliters of blood.
Vehicle Code section 23153, subdivision (b), states:
It is unlawful for any person, while having 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.
Here, the jury was instructed pursuant to the standard jury instruction as follows:
To prove that the defendant is guilty of this crime, the People must prove one, the defendant drove a vehicle; and two, when he drove it, his blood alcohol level was 0.08 percent or more by weight.
At trial in this case, the expert criminalist testified that prior to analyzing defendants blood, she calibrated the measuring instrument called a gas chromatograph using three ethanol standards. She then twice ran two quality control reference samples. The following discussion then ensued:
Q And this gas chromatograph, is that a scientificallyactually is that generally accepted in the scientific community as a way of testing blood/alcohol content?
A Yes.
Q And thats what you use here in the San Bernardino Crime Lab?
A Correct.
Q So on this particular day, did you follow the proper procedure, the way you had been trained and known to analyze blood?
A Yes. [] . . . []
Q And what was that result?
A As I stated earlier the two samplesa sample must be analyzed twice. The first result was a .107. The second result was a .104. The two results are averaged, and the third decimal spot is just dropped off. So its not rounded up or rounded down. So the reported result was a .10 percent.
Based on the above testimony, which was not disputed, there is sufficient evidence to sustain defendants conviction for violating Vehicle Code section 23153, subdivision (b).
Nonetheless, defendant contends that the evidence is insufficient because [t]he prosecution introduced no evidence to show that the result of [defendants] blood test was based on grams of alcohol per 100 milliliters of blood under Vehicle Code section 23152, subdivision (b). Vehicle Code section 23152, subdivision (b), states that [f]or purposes of this article and [Vehicle Code] Section 34501.16, percent by weight, of alcohol in a persons blood is based upon grams of alcohol per 100 milliliters of blood . . . .
In this case, as provided above, the expert criminalist testified that she tested defendants blood with a gas chromatograph that is generally accepted in the scientific community as a way of testing blood/alcohol content. Under title 17 of the California Code of Regulations, governing forensic alcohol analysis, how blood-alcohol levels are measured has been standardized. Title 17, section 1220.4 of the California Code of Regulations states as follows:
(a) With the exception of tissue analysis, all analytical results shall be expressed in terms of the alcohol concentration in blood, based on the number of grams of alcohol per 100 milliliters of blood. [] (1) The symbols, grams %, %, and % (W/V), shall be regarded as acceptable abbreviations of the phrase, grams per 100 milliliters of liquid.
Based on the fact that the expert criminalist testified that she followed the proper procedure, the way [she] had been trained and known to analyze blood, it is implicit that she followed the procedure set forth under the lawthat the chromatograph measures a persons blood based upon grams of alcohol per 100 milliliters of blood. (See Cal. Code Regs., tit. 17, 1220.4.)
Therefore, because the expert criminalist testified that she followed the proper procedure in testing defendants blood and the result showed a blood-alcohol content of 0.10 percent, defendants conviction for driving under the influence with a blood-alcohol content of 0.08 percent or greater is supported by substantial evidence.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ McKinster
J.
We concur:
/s/ Hollenhorst
Acting P.J.
/s/ Gaut
J.
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