People v. Zubeldia CA5 ( 2021 )

Filed 9/8/21 P. v. Zubeldia CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081018
Plaintiff and Respondent,
(Super. Ct. No. BF176034A)
v.
JOSE ALONSO ZUBELDIA, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. John D.
Oglesby, Judge.
Brad J. Poore, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Nikta
Allami, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P. J., Franson, J. and Snauffer, J.
Defendant Jose Alonso Zubeldia was convicted of several offenses arising out of a
single traffic stop, including driving under the influence of methamphetamine. (Veh.
Code, § 23152, subd. (f).) He raises three arguments on appeal. First, he contends there
was insufficient evidence he was “under the influence” of methamphetamine at the time
he was stopped. Second, he requests this court independently review the sealed in
camera record to determine whether the trial court properly denied the discovery he
sought in his motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
Third, he claims his abstract of judgment lists a fine imposed under Penal Code section
1202.51 that must be stricken because it was not orally pronounced at sentencing and not
applicable to any of the offenses of which he was convicted.
We reject his first contention, but his second and third contentions have merit. He
is entitled to an independent review of the Pitchess materials, and the section 1202.5 fine
must be stricken. We order the fine stricken and otherwise affirm the judgment.
STATEMENT OF THE CASE
The Kern County District Attorney filed an information charging Zubeldia with
transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 1),
possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 2),
possession of ammunition by a prohibited person (§ 30305, subd. (a)(1); count 3), using
or being under the influence of methamphetamine (Health & Saf. Code, § 11550,
subd. (a); count 4), possession of a device used for injecting or smoking a controlled
substance (Health & Saf. Code, § 11364; count 5), and driving under the influence of a
drug (Veh. Code, § 23152, subd. (f); count 6).
The information further alleged as to counts 1 through 3 that Zubeldia had
suffered a prior strike conviction within the meaning of the Three Strikes law (§§ 667,
subds. (c)—(j), 1170.12, subds. (a)—(e)), and that he had served six prior prison terms
1 Subsequent statutory references are to the Penal Code unless otherwise stated.
2.
(§ 667.5, subd. (b)). However, the People dismissed the prison prior allegations before
trial due to a change in the law.
A jury convicted Zubeldia on counts 3, 4, 5, and 6. The jury acquitted him on
count 1 and found him guilty of the lesser included offense of possession of a controlled
substance on count 2. The trial court found the prior strike allegations true as to count 3
in a bifurcated court trial.
The court sentenced Zubeldia to six years in prison on count 3. The court also
imposed concurrent terms of six months on count 2, one year on count 4, and six months
on count 5. The court imposed but stayed a six-month term on count 6 under section 654.
FACTS
On March 21, 2019, California Highway Patrol Officer Matthew Iturrira was on
duty in Oildale in Kern County. Around 4:00 p.m., he was parked on the side of a two-
lane road in a residential area monitoring traffic. The approximately 40-foot-wide road
had one lane going east and one going west. A double yellow line separated the lanes,
and there were houses on the north and south sides of the road. Traffic was light at the
time.
While monitoring traffic, Iturrira noticed a GMC pickup truck approaching him at
high speed. He estimated the truck was traveling at 50 miles per hour in the 25-mile-per-
hour zone, and his radar unit confirmed the truck was traveling 50 miles per hour.
Iturrira then watched the pickup cross the double yellow line and pass a car that was
traveling 25 miles per hour. The pickup continued going 50 miles per hour after the pass.
Iturrira activated his lights, drove after the pickup, and made an enforcement stop.
Iturrira did not see the pickup weave at any time, and the pickup pulled over and stopped
without issue.
Iturrira approached the pickup’s passenger side and saw Zubeldia alone in the
truck. As soon as Iturrira told Zubeldia why he stopped him, Iturrira noticed a glass
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smoking pipe with residue in the center console. Iturrira recognized it as the type of pipe
used to smoke methamphetamine, a central nervous system stimulant.
Iturrira observed Zubeldia was “extremely nervous” and “fidgety,” his eyes were
bloodshot, and he was perspiring. Zubeldia spoke rapidly but was able to understand and
appropriately respond to Iturrira’s questions. Iturrira suspected Zubeldia may be under
the influence of a stimulant and asked Zubeldia to step out of the pickup so Iturrira could
conduct a DUI investigation. Zubeldia exited the pickup and moved over to the sidewalk
without any difficulty. Iturrira asked Zubeldia if he had diabetes or epilepsy, which could
cause symptoms that mimic drug impairment, and Zubeldia said he did not have those
specific medical issues. Zubeldia did, however, say he suffered from shoulder and ankle
pain for which he took pain medication.
Iturrira administered two field sobriety tests to Zubeldia, the horizontal gaze
nystagmus (HGN) test and the modified Romberg test. Iturrira administered the HGN
test first and observed Zubeldia’s eyes tracked the pen smoothly and there was no
horizontal gaze nystagmus in his eyes. This led Iturrira to rule out the presence of certain
categories of drugs such as depressants—including alcohol—inhalants, and PCP. Iturrira
then administered the modified Romberg test. To perform this test, Zubeldia was asked
to stand with his feet together and arms by his sides, tilt his head back, close his eyes, and
estimate the passage of 30 seconds. Zubeldia’s eyelids and leg muscles trembled
throughout the test, he swayed 1—2 inches, and he estimated 22 seconds as 30 seconds,
revealing “a premature internal clock.” The results of this test indicated impairment and
were consistent with a central nervous system stimulant. Also, Zubeldia’s tongue was
white with large bumps at the rear, and his heart rate was 116 beats per minute. The
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bumps on the tongue were consistent with having smoked methamphetamine and his
heart rate was above normal for an average person without a heart condition.2
Based on Zubeldia’s driving (i.e., driving double the speed limit and the unsafe
passing), his demeanor, his performance on the modified Romberg test, his elevated heart
rate, and his signs of having smoked a controlled substance, Iturrira concluded Zubeldia
was under the influence of a drug and was unable to continue driving safely. Iturrira
placed Zubeldia under arrest for driving under the influence and searched Zubeldia and
his pickup incident to the arrest. Zubeldia had 23 grams of methamphetamine and a
smoking pipe in his pocket. In the pickup were 12 baggies, three non-operational cell
phones, and 32 rounds of .22 caliber ammunition.
Zubeldia was taken to a hospital where Iturrira completed a drug recognition
evaluation of him. Zubeldia continued to show signs and symptoms consistent with
methamphetamine use but stated he had too much shoulder and wrist pain to perform
field sobriety tests.
During Iturrira’s evaluation, Zubeldia admitted to being a heavy user of and
addicted to methamphetamine. He stated that the drugs found in his car were for personal
use and that he had taken “a couple of hits” about an hour before Iturrira stopped him.
His dilated pupils and pupillary reaction were consistent with being under the influence
of a central nervous system stimulant such as methamphetamine. Also, his voice had
become raspy, he remained very nervous, his face was flushed and red, he had “rancid”
breath, his eyes remained bloodshot, his pulse and blood pressure were elevated, and the
muscles in his arms were “very rigid.” The raspy voice and rancid breath were consistent
with having smoked a controlled substance, while his speech, flushed face, bloodshot
2Iturrira testified the normal heartrate of a person without a heart condition is 60
to 90 beats per minute.
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eyes, very rigid arms, heart rate, and blood pressure were consistent with having used a
central nervous system stimulant, specifically methamphetamine.
Zubeldia told Iturrira he had been prescribed and was taking Oxycodone, a
narcotic analgesic, for pain. During the drug evaluation at the hospital, Iturrira observed
a sign of impairment in Zubeldia’s pupils consistent with a narcotic analgesic. However,
Iturrira believed the methamphetamine was the predominant drug in Zubeldia’s system as
far as his symptomology was concerned.
After evaluating Zubeldia at the hospital, Iturrira concluded Zubeldia “was under
the influence of a central nervous system stimulant in combination with a narcotic
analgesic and was not able to drive safely.” His conclusion was based on his
observations during the traffic stop, Zubeldia’s driving pattern, Zubeldia’s demeanor,
Zubeldia’s admission he had smoked methamphetamine prior to the stop, the drug
recognition evaluation administered at the hospital, the elevated heart rate and blood
pressure, and the pupillary reaction. Finally, a blood test performed at the hospital
screened positive for methamphetamine, but Iturrira never received confirmation of the
final result.
At trial, Iturrira testified Zubeldia’s passing a car against a double yellow line was
“extremely dangerous.” He further testified that while it is not unusual for a sober person
to speed or make an illegal pass, he “[did not] see a lot of sober people” making that type
of pass, although he “guess[ed]” a sober person could attempt such a pass. Iturrira was
asked at trial if he determined Zubeldia was driving under the influence solely from his
driving pattern, and Iturrira responded, “No. That was simply one of the considerations.
It’s the totality of everything that I made that determination.”
Iturrira also testified regarding how methamphetamine affects an individual’s
mental function. He stated it is a central nervous system stimulant that “speeds
everything up,” including the user’s thought process, and causes a very nervous
demeanor. He explained the drug “impairs a person’s ability to drive because their
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thought process is sped up.” He also stated methamphetamine increases risk-taking
behavior and impairs judgment. He further testified Zubeldia’s driving pattern, which
included the unsafe speed and unsafe passing, was consistent with central nervous system
stimulant use as “speeding is very common” in drivers under the influence of stimulants.
DISCUSSION
I. Sufficiency of the evidence
Zubeldia contends the evidence was legally insufficient to sustain his conviction
for driving under the influence of a drug. (Veh. Code, § 23152, subd. (f).) Specifically,
he argues there was insufficient evidence showing he was “under the influence” of
methamphetamine when he was pulled over. We disagree.
A. Standard of review
In evaluating a sufficiency of the evidence claim, “we review the whole record to
determine whether any rational trier of fact could have found the essential elements of the
crime ... beyond a reasonable doubt. [Citation.] The record must disclose substantial
evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid
value—such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citation.] In applying this test, we review the evidence in the light
most favorable to the prosecution and presume in support of the judgment the existence
of every fact the jury could reasonably have deduced from the evidence. [Citation.]
‘Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the
reversal of a judgment, for it is the exclusive province of the trial judge or jury to
determine the credibility of a witness and the truth or falsity of the facts upon which a
determination depends. [Citation.] We resolve neither credibility issues nor evidentiary
conflicts; we look for substantial evidence. [Citation.]’ [Citation.] A reversal for
insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever
is there sufficient substantial evidence to support” ’ the jury’s verdict.” (People v.
Zamudio (2008) 43 Cal.4th 327, 357, italics omitted.)
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“ ‘Even when there is a significant amount of countervailing evidence, the
testimony of a single witness that satisfies the standard is sufficient to uphold the
finding.’ ” (People v. Lucero (2019) 41 Cal.App.5th 370, 411.) Furthermore, we will not
reverse “simply because the circumstances might also reasonably be reconciled with a
contrary finding.” (People v. Albillar (2010) 51 Cal.4th 47, 60.)
B. Law and analysis
Vehicle Code section 23152, subdivision (f), reads: “It is unlawful for a person
who is under the influence of any drug to drive a vehicle.” To prove a violation of this
statute, the People must prove (1) that the defendant drove a vehicle and (2) that, when he
or she drove, the defendant was under the influence of a drug. (CALCRIM No. 2110.)3
“A person is under the influence if, as a result of taking a drug, his or her mental or
physical abilities are so impaired that he or she is no longer able to drive a vehicle with
the caution of a sober person, using ordinary care, under similar circumstances.”
(CALCRIM No. 2110.)
We conclude there was sufficient evidence to support a finding beyond a
reasonable doubt Zubeldia was driving “under the influence of a drug,” as that term is
specially defined in CALCRIM No. 2110, when Iturrira pulled him over.
First, Zubeldia’s manner of driving provided evidence of his inability to drive with
the caution of a sober person. Iturrira observed Zubeldia driving 50 miles per hour—
more than twice the speed limit—in a residential neighborhood and watched him make an
“extremely dangerous” pass against a double yellow line. Iturrira testified it was a type
of pass he “did not see a lot of sober people make,” and further explained how it was
“very common” for people under the influence of central nervous system stimulants to
speed. We recognize a defendant’s manner of driving alone is insufficient to sustain a
conviction. (CALCRIM No. 2110.) However, “it is a factor to be considered, in light of
3 Zubeldia’s jury was instructed on this offense with CALCRIM No. 2110.
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all the surrounding circumstances, in deciding whether the person was under the
influence.” (CALCRIM No. 2110.)
Additionally, Iturrira testified Zubeldia’s modified Romberg test results “indicated
impairment and were consistent with a central nervous system stimulant.” Zubeldia
swayed during the test, his legs and eyelids trembled, and he estimated 22 seconds as
30 seconds, demonstrating a premature internal clock. This testimony evidenced that
Zubeldia was not just exhibiting symptoms of methamphetamine intoxication, but that he
was impaired.
Zubeldia’s manner of driving and his modified Romberg test results, considered
with Iturrira’s other observations and opinions and Zubeldia’s admissions, constituted
sufficient evidence that Zubeldia’s methamphetamine intoxication rendered him unable
to drive with the caution of a sober person.
Zubeldia’s reliance on People v. Torres (2009) 173 Cal.App.4th 977 (Torres) is
misplaced. In Torres, the Court of Appeal reversed the judgment convicting the
defendant of driving under the influence. (Id. at p. 985.) The appellate court concluded
that, while there was legally sufficient evidence to support the conclusion that the
defendant was under the influence of methamphetamine when he was arrested, there was
no evidence that the defendant’s methamphetamine use “actually impaired his driving
ability on the night of his arrest.” (Id. at p. 983.) There was nothing about the
defendant’s driving that would establish he was under the influence for driving purposes.
(Ibid.) The defendant was pulled over for failing to stop before the limit line of an
intersection, an infraction the officers in that case conceded was neither unusual nor
indicative of impaired driving. (Id. at pp. 979, 983.) The defendant did not “blow
through” the intersection or lock up his brakes and come to a screeching halt, nor was he
involved in a near-miss accident. (Id. at pp. 979—980.)
Additionally, a toxicologist testified that certain symptoms the defendant
exhibited, including sweatiness and an elevated pulse rate, did not render a person an
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unsafe driver. (Torres, supra, 173 Cal.App.4th at p. 983.) Similarly, while the defendant
exhibited muscle rigidity, there was no evidence in the record to correlate that symptom
to impaired driving, and, although the jury could have inferred that the defendant’s
muscle rigidity had the potential to affect his driving ability, it could not infer that it
actually did so. (Id. at p. 984.) Additionally, while the toxicologist testified that dilated
pupils from methamphetamine use could cause momentary blindness while driving, there
was no evidence in the record that the defendant experienced such blindness. (Ibid.)
Further, the defendant was not administered field sobriety tests. (Id. at p. 981.)
Here, conversely, there was evidence from which the jury could infer Zubeldia’s
methamphetamine use impaired his ability to drive. First, Zubeldia was not stopped for a
technical violation like failing to stop before a limit line. Rather, he was stopped for
going double the speed limit in a residential area and making an “extremely dangerous”
pass that Iturrira testified he did not see a lot of sober people make. Second, unlike in
Torres, there was a lot of evidence correlating Zubeldia’s signs and symptoms, including
his risk-taking behavior, to his recent methamphetamine use. Additionally, there was
evidence that methamphetamine can increase risk-taking behavior, and that it is “very
common” for people under the influence of central nervous system stimulants to speed.
All of these facts, considered with the other evidence, support an inference Zubeldia’s
recent ingestion of methamphetamine caused his “extremely dangerous” manner of
driving.
Thus, unlike the circumstances in Torres, there was substantial evidence here from
which the jury could conclude not only that Zubeldia was under the influence of
methamphetamine, but also that, as a result, his driving ability was impaired at the time
he operated his vehicle to a sufficient degree to support the conviction.
Zubeldia also supports his argument by attempting to demonstrate differences
between his case and that of People v. Benner (2010) 185 Cal.App.4th 791 (Benner). In
Benner, the Court of Appeal affirmed the defendant’s conviction for driving under the
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influence of methamphetamine. (Id. at p. 796.) In addition to exhibiting signs and
symptoms of having ingested methamphetamine, the defendant was unable to perform
many of the tasks in the field sobriety tests. (Ibid.) She had “glaring deficits in balance,
coordination and concentration. And that did not bode well for her driving ability.”
(Ibid.)
The defendant in Benner also was “swaying and unsteady,” lost her balance during
the “walk and turn” test, and failed the “one leg stand” test. (Benner, supra,
185 Cal.App.4th at pp. 793—794.) Her eyes did not track smoothly. (Ibid.) She was
agitated and paranoid and accused the officer of following her all day and suspected his
ride-along was an undercover narcotics agent. (Ibid.)
It would appear the Benner defendant was more severely impaired than Zubeldia,
but Benner does not purport to describe the minimum level of impairment necessary to
support a conviction for driving under the influence of a drug. Instead, we read Benner
as a useful guidepost or point of reference. Benner’s analysis does not change our
conclusion that sufficient evidence supported a finding Zubeldia was “under the influence
of a drug” for purposes of Vehicle Code section 23152, subdivision (f).
II. In camera Pitchess review
Zubeldia requests we independently review the in camera Pitchess proceeding the
trial court conducted. The People do not object to our review.
A. Background
Prior to trial, Zubeldia filed a Pitchess motion seeking disclosure of information
concerning Iturrira. The motion sought to discover information contained in his
personnel file related to evidence or complaints of: (1) false statements in reports,
(2) fabrication of witness testimony in reports, (3) false testimony, (4) falsification of
probable cause and/or reasonable suspicion, (5) acts involving moral turpitude, and
(6) any other evidence of, or complaints of, dishonesty by Iturrira.
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The trial court granted Zubeldia’s request for an in camera hearing on July 17,
2019, and conducted an in camera review that day. A court reporter was present during
the closed hearing. A custodian of records on behalf of the California Highway Patrol
was sworn and testified. The custodian stated it had searched for potentially responsive
records pertaining to Zubeldia’s Pitchess motion. The custodian brought Iturrira’s
personnel file and two other items to court, and the court reviewed those documents. The
court declared no responsive documents existed and denied disclosure. The court asked
the custodian to confirm there was nothing in the documents “about dishonesty,” and the
custodian so confirmed.
On August 17, 2020, we ordered the superior court to augment our record and
provide the oral proceedings of the in camera hearing conducted on July 17, 2019, along
with the documents that were reviewed and the reporter’s transcript.
On October 8, 2020, the sealed records from the superior court pertaining to this
Pitchess hearing were lodged with this court. Accompanying those documents was the
trial court’s confidential ruling, which indicated the judge who had presided over
Zubeldia’s Pitchess hearing had reviewed the court reporter’s transcript of the in camera
hearing and the materials supplied by the custodian of records. The court marked as
exhibit 3 the documents the custodian provided. The court determined that, although it
had no independent recollection of the in camera hearing, exhibit 3 “appears to be a copy
of the personnel file that this court reviewed on July 17, 2019.” The court’s ruling further
stated no other files were reviewed at the in camera hearing.
B. The standard of review
“ ‘A criminal defendant has a limited right to discovery of a peace officer’s
personnel records. [Citation.] Peace officer personnel records are confidential and can
only be discovered pursuant to Evidence Code sections 1043 and 1045.’ ” (People v.
Yearwood (2013) 213 Cal.App.4th 161, 180 (Yearwood).) “A defendant is entitled to
discovery of relevant information from the confidential records upon a showing of good
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cause, which exists ‘when the defendant shows both “ ‘materiality’ to the subject matter
of the pending litigation and a ‘reasonable belief’ that the agency has the type of
information sought.” ’ ” (Ibid.)
When the court finds good cause and conducts an in camera review pursuant to
Pitchess, it must make a record that will permit future appellate review. (People v. Mooc
(2001) 26 Cal.4th 1216, 1229—1230.) A custodian is not required to present to the trial
court any documents that are “clearly irrelevant” to the Pitchess motion. (Id. at p. 1229.)
However, if the custodian has any doubt, those documents should be presented to the trial
court. (Ibid.) “The custodian should be prepared to state in chambers and for the record
what other documents (or category of documents) not presented to the court were
included in the complete personnel record, and why those were deemed irrelevant or
otherwise nonresponsive to the defendant’s Pitchess motion.” (Ibid.) A court reporter
should memorialize the custodian’s statements and any questions asked by the trial court.
(Ibid.)
C. Analysis
We have reviewed the in camera proceeding. The trial court complied with the
procedural requirements of a Pitchess hearing. A court reporter was present, and the
custodian was sworn prior to testifying. (Yearwood, supra, 213 Cal.App.4th at p. 180.)
We have reviewed the sealed personnel file. Nothing in these records was subject
to disclosure under Pitchess. None of the materials were responsive to the information
which Zubeldia sought. Based on this record, the superior court properly conducted the
Pitchess hearing. No documents were discoverable. Accordingly, no error occurred
when the court denied any disclosure.
III. Section 1202.5 fine
Zubeldia’s abstract of judgment states he was ordered to pay a fine of $1,375
under section 1202.5. He contends this fine must be stricken for two reasons: (1) the
fine was not orally pronounced at sentencing; and (2) the fine does not apply to any of the
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offenses of which he was convicted. The People concede he is correct for both reasons,
and we agree.
First, fines not included in the trial court’s oral pronouncement of sentence must
be stricken from an abstract of judgment. “ ‘Courts may correct clerical errors at any
time, and appellate courts ... that have properly assumed jurisdiction [can] order[ ]
correction of abstracts of judgment that [do] not accurately reflect the oral judgments of
sentencing courts.’ [Citation.] ‘Where there is a discrepancy between the oral
pronouncement of judgment and the minute order or the abstract of judgment, the oral
pronouncement controls.’ [Citation.] ‘If the clerk includes fines in the court’s minutes or
the abstract of judgment that were not part of the oral pronouncement of sentence, those
fines must be stricken from the minutes and the abstract of judgment.’ ” (People v. Clark
(2021) 67 Cal.App.5th 248, __ [282 Cal.Rptr.3d 97, 107].) Second, a fine can only be
imposed under section 1202.5 for certain enumerated offenses, and Zubeldia was not
convicted of any of the enumerated offenses. The fine must be stricken from the abstract
of judgment.
DISPOSITION
Zubeldia’s section 1202.5 fine is stricken. The superior court clerk is directed to
amend the abstract of judgment accordingly and forward certified copies to the
appropriate entities. The judgment is affirmed in all other respects.
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