People v. Enriquez (42 Cal. App. 4th 661, 1996)

Opinion

MIHARA, J.

In this action we hold that when a jury is instructed pursuant to CALJIC No. 12.65 (1992 rev.) an instruction defining “under the influence” such as set forth in CALJIC No. 16.831 (1992 rev.) must also be given.

Facts and Procedural History

On June 19, 1994, after smoking a cigarette laced with phencyclidine (PCP), defendant and Christine Martinez were outside Martinez’s mother’s house at 369 Fleming Avenue. When her mother came to the door, she observed Christine was under the influence of PCP and told her she had to leave. Her mother then called 911.

Reserve Deputy Sheriff Michael Phillips, who was on patrol in the area, was told to be on the lookout for a blue Chevy Sprint, occupied by a Hispanic male and female who were possibly under the influence. Phillips drove down Fleming Avenue, passed number 369, and saw a blue Sprint with two occupants parked three houses away. As he slowly passed the parked vehicle, Phillips observed defendant in the driver’s seat and the female in the passenger seat. After he passed the automobile, Phillips made a U-turn and parked 25 yards behind the Sprint. After approximately five minutes, defendant started the Sprint and drove in a normal manner into the driveway at 369 Fleming Avenue. Phillips followed the vehicle and parked 10 feet behind its rear bumper.

Defendant and Christine exited their automobile and Phillips got out of the patrol car. Defendant, walking in a staggered motion, moved toward the rear of his vehicle. When Phillips asked for defendant’s driver’s license, he noticed defendant was sweating, his eyes appeared glossy, and he had difficulty standing. In slurred and broken speech, defendant asked why he had been stopped.

Phillips checked defendant’s pulse, which was beating at 130 beats per minute. The pulse for a normal person is 50 to 60 beats per minute. Phillips measured defendant’s pupils with a pupillometer. Defendant’s pupils were dilated and fixed; they would not react to light. He had both vertical and horizontal nystagmus. Phillips asked defendant whether he was under the influence, and defendant gave an affirmative response.

After defendant was taken to jail, a blood sample was taken. Laboratory tests confirmed the presence of PCP in defendant’s blood.

Based on this evidence, a jury found defendant guilty of driving under the influence and being under the influence of a controlled substance. (Veh. Code, §23152, subd. (a); Health & Saf. Code, § 11550, subd. (a).) They also found defendant had committed three prior violations of section 23152, had incurred three prior serious felony convictions, and had served two prior prison terms. (Pen. Code, §§ 667, subds. (b)-(i), 667.5.)

Discussion

When instructing the jury on the charge of driving under the influence, the court read CALJIC No. 12.65. As given, the instruction stated in relevant part: “Count One of the information charges a violation of section 23152, subdivision (a), of the Vehicle Code, defined as follows: Every person who, while under the influence of any drug drives a vehicle, is guilty of a violation of section 23152[a], a crime. [