People v. Hudson CA3 ( 2024 )

Filed 10/4/24 P. v. Hudson CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Placer)
----
THE PEOPLE, C099531
Plaintiff and Respondent, (Super. Ct. No. 62185828)
v.
DAVID EUGENE HUDSON, SR.,
Defendant and Appellant.
A jury convicted defendant David Eugene Hudson, Sr., of driving under the
influence (DUI) of a controlled substance and causing injury. Defendant claims the trial
court abused its discretion, in violation of his Sixth Amendment right to confrontation, by
excluding evidence, which defendant claims he would have used to impeach the
credibility of the prosecution’s drug recognition expert. We conclude the trial court did
not abuse its discretion or violate defendant’s constitutional rights. We will affirm the
judgment.
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FACTUAL AND PROCEDURAL BACKGROUND
In June 2022, E.F.1 was stopped at a stoplight. When the light turned green, she
drove into the intersection. As she passed through the intersection, defendant drove
through the red light and crashed into the side of E.F.’s car. E.F. got out of her car and
called 911. As she did, she saw two passengers from defendant’s car grab items from the
car and flee. E.F. suffered back, neck, and head pain because of the car crash.
D.A. was driving behind defendant at the time of the crash and saw defendant run
the red light and collide into E.F.’s car. D.A. saw defendant and two passengers get out
of defendant’s car. They acted as if they were under the influence of drugs or alcohol,
moving erratically, speaking in incomplete sentences, and could not focus their eyes.
Initially, all three fled, but defendant returned after a few minutes.
Roseville Police Officer Michael Keck was the first officer to arrive at the crash
scene and noticed defendant was agitated and cursing. Officer Keck had significant
training and experience in recognizing the signs and symptoms of someone under the
influence of drugs and was a certified drug recognition expert for the police department.
When Officer Keck arrived at the scene, he met with defendant and started the DUI
investigation.
Officer Keck observed defendant’s speech was slightly slow and slurred but would
momentarily become very rapid. Defendant had a hard time following instructions.
Based on his training, experience, and observations of defendant, Officer Keck asked
defendant when he last used methamphetamine. Defendant responded, “I don’t use
meth.” But defendant acknowledged he had taken Soma and Norco, which he said a
doctor prescribed.
1 To protect their privacy, we refer to the victim and witnesses by their initials. (Cal.
Rules of Court, rule 8.90(b)(4), (10).)
2
Officer Cassandra Mohring arrived after Officer Keck and completed the DUI
investigation at the crash scene. Officer Mohring had received training on drug-related
investigations, drivers under the influence, and field sobriety tests. She had also
investigated at least 50 people who were suspected of being under the influence of drugs
or alcohol and could recognize the common signs and symptoms of people using
methamphetamine.
Officer Mohring noticed defendant was very fidgety, appeared paranoid, and had
slightly slurred speech. He was also grinding and clenching his jaw and licking his lips.
Defendant told Officer Mohring that he was on DUI probation and denied taking any
drugs that day.
Officer Mohring had defendant take a breathalyzer test, which did not detect
alcohol in his system. Officer Mohring then conducted several field sobriety tests on
defendant, including the horizontal and vertical gaze nystagmus (HGN) test, the modified
Romberg test, and the finger-to-nose test.
During the HGN test, in which defendant followed the movement of a finger or
pen with his eyes, his eyes could not smoothly follow the movement from left to right;
involuntary jerked when looking left, right, and vertically; and did not converge when a
stimulus was moved closer to his nose. These results are consistent with impairment.
Defendant took the modified Romberg test, in which he stood with his feet together, eyes
closed, head tilted back, and estimated the passage of 30 seconds. He also did the finger-
to-nose test, in which he stood, arms stretched to the side, eyes closed, head tilted back,
and attempted to touch his nose with his left and right index fingers. During both tests,
defendant swayed in a slow circular motion, had a hard time keeping his head tilted back,
had a rigid and flexed body, and had rapid eyelid tremors when his eyes were closed.
Defendant also had difficulty focusing and following directions during the tests and could
only successfully complete half of the finger-to-nose touches. Based on her observations
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and the test results, Officer Mohring arrested defendant for DUI. The officers then took
defendant to the hospital to treat his injuries from the crash.
While at the hospital, Officer Keck read defendant his Miranda2 rights, defendant
provided a blood sample, and Officer Keck conducted a drug recognition evaluation on
defendant. The drug recognition examination is a 12-step evaluation used to determine
whether someone is under the influence of drugs or alcohol. The evaluation starts with
an interview, includes the same field sobriety tests Officer Mohring previously conducted
at the crash scene, and concludes with the officer’s impairment opinion and a subsequent
toxicology report. During the interview, defendant said he took Soma between 8:00 a.m.
and 9:00 a.m. He also admitted to eating methamphetamine approximately four hours
prior to the examination. Defendant said he did not feel the effects from either the
methamphetamine or the Soma.
During the second HGN test, defendant’s eyes could not smoothly track, had a
sustained nystagmus, and his left eye would not converge. Defendant also did another
modified Romberg test. He swayed, mouth open, eyes fluttering, and estimated 30
seconds after only 17 seconds. Defendant could not perform the heel-to-toe test
correctly, had difficulty with the finger-to-nose test, and said he could not complete the
one-leg stand test for medical reasons.
At the hospital, defendant’s temperature, pulse, and blood pressure all lowered a
little, indicating to Officer Keck that defendant was sobering up. However, defendant’s
eyes were still dilated above the normal range and his reaction to light was slow. His
muscle tone was rigid and consistent with being under the influence of a stimulant.
Defendant also had burn bumps and green film on his tongue and suffered from tooth
decay, indicating potential drug use.
2 Miranda v. Arizona (1966) 384 U.S. 436.
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As Officer Keck finished the drug recognition evaluation, defendant said he
learned a lesson not to take the pills and drive and that he would have never taken
methamphetamine if his friend was not there or if he was not tired. Officer Keck asked
defendant, “[D]o you feel like . . . you were safe to be driving? Or do you feel like the
pills and the meth kind of threw you off?” Defendant responded, “It probably threw me
off.” After completing the drug recognition evaluation, Officer Keck rendered his
opinion that defendant was too impaired to drive.
The results from the toxicology report were consistent with Officer Keck’s
impairment opinion. The toxicology report found the levels of methamphetamine in
defendant’s system were at an amount that a person would expect to experience its
effects. Defendant also tested positive for Soma, Norco, Xanax, Ultran, and
amphetamine. Based on hypothetical facts mirroring the facts of the underlying case, the
prosecution’s toxicology expert opined that defendant was too impaired to safely drive a
car.
At trial, the prosecution played Officer Keck’s body camera footage for the jury,
which depicted Officer Keck’s interaction with defendant. Based on a hypothetical
scenario that tracked the underlying facts of the case, Officer Keck testified defendant
was not safe to drive his car because he was under the influence of a suppressant and a
stimulant.
Defense counsel cross-examined Officer Keck on how he conducted the drug
recognition evaluation. During closing argument, defense counsel attacked Officer
Keck’s credibility and the reliability of the drug recognition evaluation. Defense counsel
argued Officer Keck’s testimony showed he wanted the jury to believe defendant was
guilty. He further argued the results of the drug recognition evaluation were not reliable
and inconsistent, Officer Keck’s evaluation was not fair, and Officer Keck was not
credible. A jury found defendant guilty of DUI (a drug) and causing injury (Veh. Code,
§ 23153, subd. (f)). The trial court also found true two special allegations and four
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factors in aggravation. The trial court sentenced defendant to the upper term of four
years.
DISCUSSION
Defendant claims the trial court improperly excluded an e-mail that demonstrated
Officer Keck’s bias against defendant. Defendant argues the trial court abused its
discretion under Evidence Code3 section 352, which also violated his Sixth Amendment
right to confront an adverse witness. We conclude the trial court did not abuse its
discretion or violate defendant’s Sixth Amendment confrontation right.
Additional Facts
In August 2023, the prosecution sent Officer Keck an e-mail regarding three drugs
found in the toxicology report: Norco, Ultran, and Xanax. Officer Keck responded the
following day and stated in relevant part, “Regardless of impairment, it would be really
nice to just paint a picture of [defendant] being a drug addict because that is exactly what
he is. Imagine if you had to take Xanax, [Norco], [Ultran], Soma’s [sic] then
Methamphetamine to stay awake in a 24 hour period and try to function in a normal
society by doing things like driving.”
Prior to trial, the prosecution moved to exclude the e-mail arguing Officer Keck’s
opinion on trial strategy was not relevant, had no impeachment value, and any probative
value it may have had was substantially outweighed by the prejudice to the defendant.
The prosecution asserted defendant would suffer prejudice if defense counsel attempted
to impeach Officer Keck with the e-mail because it would open the door for the
prosecution to rehabilitate Officer Keck with evidence that the trial court excluded for the
benefit of defendant, such as: defendant’s prior DUI arrests, and that defendant had a
secure continuous remote alcohol monitoring (SCRAM) device and was on probation at
3 Undesignated statutory references are to the Evidence Code.
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the time of his arrest. The prosecution further argued that admitting the e-mail would
confuse the jury and unduly consume time.
Defense counsel argued the e-mail was “very probative to [Officer Keck’s] bias in
creating an impairment opinion.” Counsel continued that he was not seeking to admit the
e-mail for the truth of Officer Keck’s statement and therefore it would not open the door
for other excluded material to come into evidence. Defense counsel asserted because
Officer Keck’s testimony would be “all about impairment,” defendant should have the
opportunity to cross-examine Officer Keck on whether he could unbiasedly render an
impairment opinion.
The trial court disagreed with defense counsel, finding admission of the e-mail
would require the prosecution to rehabilitate Officer Keck by comparing what
information he had when he made the impairment assessment at the time of arrest in June
2022, versus what information Keck had at the time he drafted the e-mail in August 2023.
It found Officer Keck’s impairment opinion would necessarily include all the information
he had at the time he formed the opinion, and the trial court wanted to avoid a scenario
where previously excluded evidence came into evidence to rehabilitate Officer Keck’s
credibility. The trial court “really considered” the time when Officer Keck wrote the e-
mail and initially ruled defendant could ask Officer Keck about the e-mail at trial, but
also stated that questioning would open the door for the prosecution to admit any
evidence of defendant’s history that Officer Keck was aware of at the time he wrote the
e-mail.
During trial, defense counsel filed a supplemental motion to allow defendant to
introduce the e-mail into evidence. The trial court asked, “How does a statement in
August . . . of 2023 impact the determination of impairment in June of 2022 at the time of
arrest?” Defense counsel argued the e-mail showed Officer Keck had “become an
advocate” and was taking defendant’s character into account. The prosecution again
asserted the e-mail had no probative value. It additionally argued the e-mail was actually
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beneficial for defendant because it indicated that it would be difficult for Officer Keck to
conclude defendant was impaired by the Norco, Ultran, and Xanax.
The trial court emphasized the timing of the e-mail. It said Officer Keck wrote the
e-mail after he had received the results of the toxicology report, prescription drug report,
and defendant’s prior convictions, which he did not have at the time he rendered his
impairment opinion. The trial court found the e-mail was not relevant to the issue of
Officer Keck’s impairment opinion or the decision to arrest defendant based on that
opinion. The trial court also did not “want to have a trial within a trial,” which would be
“far more confusing to the jury than would be probative.” It found that allowing defense
counsel to cross-examine Officer Keck about the e-mail would create a substantial danger
of undue prejudice and be “extremely detrimental” to defendant because defendant’s
entire history would come in even though it was previously excluded to his benefit. The
trial court denied defendant’s supplemental motion pursuant to section 352.
Abuse of Discretion
We review the trial court’s ruling to exclude evidence under section 352 for abuse
of discretion. (People v. Lewis (2001) 26 Cal.4th 334, 374-375.) Under section 352,
“[t]he 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.” “ ‘[T]he latitude section 352 allows for exclusion of impeachment
evidence in individual cases is broad. The statute empowers courts to prevent criminal
trials from degenerating into nitpicking wars of attrition over collateral credibility
issues.’ ” (People v. Ayala (2000) 23 Cal.4th 225, 301.) “Because the court’s discretion
to admit or exclude impeachment evidence ‘is as broad as necessary to deal with the great
variety of factual situations in which the issue arises’ [citation], a reviewing court
ordinarily will uphold the trial court’s exercise of discretion.” (People v. Clark (2011) 52
Cal.4th 856, 932.) A trial court does not abuse its discretion under section 352 unless it
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rules in an arbitrary, capricious, or patently absurd manner. (People v. Johnson (2019) 8
Cal.5th 475, 521.) Defendant has not established an abuse of discretion.
The record shows the trial court carefully considered the probative value of the e-
mail related to Officer Keck’s alleged bias in forming his impairment opinion. It found
the e-mail was not relevant because Officer Keck formed his impairment opinion at the
time of arrest and he wrote the e-mail 14 months later. When Officer Keck wrote the e-
mail, he had significantly more information regarding defendant’s history than he did
when he formed his opinion. For example, at the time of arrest, Officer Keck was
unaware of the toxicology report, which indicated defendant had Xanax, Norco, and
Ultran in his system; defendant’s prior DUI arrests, and that defendant had a SCRAM
device and was on probation at the time of his arrest. Any attack of Officer Keck’s
credibility related to bias in rendering his impairment opinion would have had to look to
contemporaneous statements and actions made by Officer Keck during the DUI
investigation when he formed the opinion. The e-mail did not include any evidence
contemporaneous to the time of arrest and therefore, the e-mail was not relevant to
Officer Keck’s impairment opinion.
Moreover, to the extent the e-mail had any probative value, it was substantially
outweighed by the prejudicial effect to defendant. As the trial court noted, if defendant
used the e-mail to impeach Officer Keck’s credibility, it would open the door for the
prosecution to rehabilitate him with evidence that the trial court previously excluded to
defendant’s benefit. This evidence would be “far more confusing to the jury than would
be probative” and “extremely detrimental” to defendant. The trial court also stated it did
not “want to have a trial within a trial.” The trial court did not abuse its discretion by
excluding the e-mail.
Sixth Amendment
“Generally speaking, the Confrontation Clause guarantees an opportunity for
effective cross-examination, not cross-examination that is effective in whatever way, and
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to whatever extent, the defense might wish.” (Delaware v. Fensterer (1985) 475 U.S. 15,
20.) “[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned
to impose reasonable limits on such cross-examination based on concerns about, among
other things, harassment, prejudice, confusion of the issues, the witness’ safety, or
interrogation that is repetitive or only marginally relevant.” (Delaware v. Van Arsdall
(1986) 475 U.S. 673, 679.) This means “ ‘reliance on . . . section 352 to exclude
evidence of marginal impeachment value . . . generally does not contravene a defendant’s
constitutional rights to confrontation and cross-examination.’ ” (People v.
Riccardi (2012) 54 Cal.4th 758, 809-810, disapproved on another ground in People v.
Rangel (2016) 62 Cal.4th 1192, 1216.) “A trial court’s limitation on cross-examination
pertaining to the credibility of a witness does not violate the confrontation clause unless a
reasonable jury might have received a significantly different impression of the witness’s
credibility had the excluded cross-examination been permitted.” (People v.
Quartermain (1997) 16 Cal.4th 600, 623-624.) We review this issue de novo. (People v.
Castaneda-Prado (2023) 94 Cal.App.5th 1260, 1283.)
The trial court did not violate defendant’s constitutional right to confront an
adverse witness because the e-mail was not relevant to demonstrate Officer Keck’s bias
in rendering an impairment opinion at the time of arrest. The statement in the e-mail,
sent over a year after defendant’s arrest, was Officer Keck’s opinion on trial strategy.
The e-mail referenced defendant’s use of three drugs that Officer Keck was unaware
were in defendant’s system when he formed his impairment opinion.
Had the trial court admitted the e-mail, the prosecution indicated it would have
rehabilitated Officer Keck’s credibility by introducing evidence of defendant’s history,
which he learned about after the date of the arrest. Furthermore, defense counsel was
afforded the opportunity to cross-examine Officer Keck on his credibility and the
reliability of the drug recognition evaluation. At closing, defense counsel argued Officer
Keck’s drug recognition examination results were unreliable and inconsistent and that
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Officer Keck wanted to show defendant was guilty. As such, we cannot conclude a
reasonable jury would have had a significantly different impression of Officer Keck had
the trial court permitted cross-examination on the excluded e-mail. The trial court’s
ruling did not violate defendant’s Sixth Amendment right to confrontation.
DISPOSITION
The judgment is affirmed.
/s/
WISEMAN J.*
We concur:
/s/
HULL, Acting P. J.
/s/
BOULWARE EURIE, J.
* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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