APPEAL from a judgment of the Superior Court of San Diego County, Roger W. Krauel, Judge. Reversed. (Super. Ct. No. SCD209467).
The opinion of the court was delivered by: Mcconnell, P. J.
CERTIFIED FOR PUBLICATION
A jury convicted Germemias Aguilera Torres*fn1 of misdemeanor driving while under the influence of a drug (methamphetamine).*fn2 (Veh. Code, § 23152, subd. (a).) The trial court sentenced Torres to 120 days in jail.
Torres appeals, arguing there is insufficient evidence to establish his use of methamphetamine appreciably impaired his ability to drive safely. Alternatively, Torres argues the trial court prejudicially erred by failing to give a unanimity instruction sua sponte. In addition, Torres argues the trial court prejudicially erred by allowing the prosecutor to question an expert witness about an article on methamphetamine use and driving impairment. To the extent defense counsel may have failed to preserve the latter issue for appeal, Torres argues defense counsel provided ineffective assistance of counsel.
We agree there is insufficient evidence to support the conviction and reverse the judgment. In view of our conclusion, we do not address Torres's other arguments.
I. Prosecution Evidence*fn3
San Diego Police Narcotics Detective Ray Morales was surveilling a house and saw Torres drive up to it in a pickup truck. Torres went into the house for about five minutes and then returned to the truck and drove off. Morales followed the truck and radioed to other officers it was seen leaving the house.
Shortly afterwards, San Diego Police Officer Ariel Savage pulled Torres over for failing to stop the truck at the limit line of an intersection. Before initiating the traffic stop, Savage followed the truck for about a half a block. Torres did not "blow through" the intersection, he did not lock up the truck's brakes and come to a screeching halt, and he was not involved in any near-miss accidents with other vehicles. He simply did not bring the truck to a complete stop until after half the truck had passed the limit line.
Torres cooperated with Savage during the stop; however, Savage noticed Torres was jittery, his face twitched, and he stuttered. Savage did not perform a drug recognition evaluation of Torres.
After observing the traffic stop, Morales approached Torres. Morales found Torres to be nervous and a bit agitated. Torres's demeanor fluctuated between remorsefulness, indifference, and paranoia. He was sweating profusely, his muscles were rigid, and he could not stand still. He appeared sleepy, but his eyes were wide open and watery. He also appeared unkempt, had bad breath, and had a chemical odor.
Torres was subsequently arrested and transported to the police station. When Morales questioned him about his drug use, Torres told Morales he used methamphetamine once a week and had last used it two weeks earlier. Torres then quickly revised his statement and said he had last used it two days earlier.
Morales examined Torres to determine whether he was under the influence of drugs. The examination occurred approximately 1 hour and 40 minutes after the traffic stop. Morales checked Torres's pulse and found it was elevated. Morales also checked Torres's pupils and found they were more dilated than normal, with signs of slow contraction (slow reaction to light) and rebound dilation (pupil resistance to constriction in light).
Although Morales has not been formally trained as a drug recognition expert, the trial court determined after an evidentiary hearing that he was qualified to testify as an expert on the recognition of a person under the influence of methamphetamine. Based on the examination and the symptoms he observed, Morales opined Torres had used methamphetamine on the day of his arrest and was in the middle of the euphoria stage when he was arrested.
During the examination, Morales obtained a urine sample from Torres. When he later received the results, he found them to be consistent with his observations of Torres's symptoms. In his opinion, the results ...