Filed 10/7/14 P. v. Garcia CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

EFRAIN SANCHEZ GARCIA,

Defendant and Appellant.

 H039229

 (Santa Clara County

 Super. Ct. No. C1226991)

Defendant Efrain Sanchez Garcia was convicted by jury trial of using 

methamphetamine (Health & Saf. Code, § 11550, subd. (a)).

1

 He pleaded no contest to 

driving with a 0.08 or higher blood-alcohol level with three or more prior convictions

(Veh. Code, §§ 23152, subd. (b), 23550) and guilty to two counts of driving with a 

suspended license (Veh. Code, §§ 14601.2, subd. (a), 14601.5, subd. (a)). The court 

imposed a prison term, suspended execution of sentence, and granted defendant 

probation. 

On appeal, defendant’s sole contention is that the methamphetamine count must be 

reversed because the trial court prejudicially erred in instructing the jury that it could 

 

1

Statutory references are to the Health and Safety Code unless otherwise specified.
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convict defendant of this offense if he had used methamphetamine within 48 hours of his 

arrest. We find no prejudicial instructional error and affirm the judgment.

I. Factual and Procedural Background

On January 1, 2012, at about 9:45 p.m., a police officer pulled defendant’s vehicle 

over because one of his brake lights was “inoperative.” The officer had not seen any 

driving by defendant that indicated he was impaired. When the officer approached 

defendant, he saw that defendant “was a bit agitated.” He had bloodshot eyes, slurred 

speech, and a strong odor of alcohol on his breath. Defendant told the officer that he had 

consumed two beers. When defendant got out of the vehicle, the officer saw that 

defendant had “an unsteady, uncoordinated gait.” Defendant did poorly on field sobriety 

tests. He consented to a preliminary alcohol screening (PAS) test, and it showed that his 

blood-alcohol level was 0.079. 

The officer arrested defendant and transported him to the police department’s 

“DUI trailer” for a further test of his blood-alcohol level. On the way there, the officer 

noticed that defendant “nodded off.” When they reached the trailer, the officer observed 

that defendant “had excited speech, fluttering eyelids, nonreactive pupils, [and] dry 

lips . . . .” Defendant continued to be “very hyper, agitated” and seemed unable to sit 

still, and his pulse was 110 beats per minute, which was high. When the officer took 

defendant’s pulse, defendant “spontaneously stated” “that he used methamphetamines 

yesterday,” “yesterday, but not today.” 

The officer believed that defendant was under the influence of a stimulant and 

requested that a blood sample be taken. A blood sample was taken at 10:22 p.m. 

Methamphetamine at a level of 0.128 micrograms per milliliter was detected in 

defendant’s blood sample. This test result did not indicate when the methamphetamine 

had been ingested. His blood-alcohol level in this blood sample was 0.10. 
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A jury trial was held on the methamphetamine count, two counts of driving under 

the influence of alcohol and drugs with prior convictions, and two counts of driving with 

a 0.08 blood-alcohol level with prior convictions. At the beginning of the trial, the court 

preinstructed the jury. These instructions included an instruction on the 

methamphetamine count. “The defendant is charged with using or being under the 

influence of methamphetamine, a controlled substance. To prove that the defendant is 

guilty of this crime, the People must prove that the defendant was willfully and 

unlawfully under the influence of methamphetamine, a controlled substance, when he 

was arrested. [¶] . . . [¶] Someone is under the influence of a controlled substance if that 

person has taken or used a controlled substance that has appreciably affected the person’s 

nervous system, brain, or muscles, or has created in the person a detectible abnormal 

mental or physical condition.” 

The prosecution’s expert testified at trial that methamphetamine “makes the 

person more active and sometimes agitated,” causes nonreactive pupils, an elevated heart 

rate, dry mouth, dry lips, and “fast speech.” She also testified that the level of 

methamphetamine in defendant’s blood was “higher than a normal therapeutic dose.” 

She opined, based on the blood test result and the officer’s observations, that defendant 

was under the influence of methamphetamine at the time of his arrest. 

The defense expert testified that the officer’s observations did not necessarily 

show that defendant was under the influence of methamphetamine. Defendant’s 

“nodding off” was, in her opinion, “really contrary” to being under the influence of 

methamphetamine. The level of methamphetamine in defendant’s blood did not by itself 

indicate he was under the influence of methamphetamine because people have different

tolerances. The defense expert testified that the half-life of methamphetamine is 12 

hours, and a study had shown that the average methamphetamine level in blood samples 

tested for methamphetamine was about twice the level found in defendant’s blood. She 
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testified that a person who had taken methamphetamine might no longer be under the 

influence of methamphetamine the next day. 

The court instructed the jury after the close of evidence but before closing 

arguments.

2

 As to the methamphetamine count, the court instructed the jury: “The 

defendant is charged in Count 5 with using methamphetamine, a controlled substance. 

To prove that the defendant is guilty of this crime, the People must prove that, one, the 

defendant willfully used methamphetamine, a controlled substance, within 48 hours of 

his arrest.” 

The prosecutor argued to the jury that the methamphetamine count “is pretty 

straightforward.” “The defendant was exhibiting signs and symptoms of being under the 

influence. He admitted he had taken methamphetamine yesterday, within 48 hours of his 

arrest. And his blood tested positive for methamphetamine. And all that you have to find 

to convict on Count 5 is the defendant used methamphetamine within 48 hours of his 

arrest. It’s pretty simple, pretty straightforward.” 

Defendant’s trial counsel acknowledged that the sole question on the 

methamphetamine count was “Did Efrain Garcia use methamphetamine?” She also 

conceded that defendant had admitted using methamphetamine. “And we know, too, just 

based on his statement that he had taken methamphetamine yesterday. Okay. We have 

already reviewed that.” She did not contend that defendant had not used 

methamphetamine or was not guilty of the methamphetamine count. 

The jury returned a guilty verdict on the methamphetamine count, but it was 

unable to reach a verdict on the other four counts. 

 

2

The record does not contain a transcript of the instruction conference, which might 

have explained why the instruction on this count was inconsistent with the preinstruction 

on this count. 
5

II. Analysis

Defendant claims that the trial court’s instruction to the jury that he could be found 

guilty of the methamphetamine count if he “used methamphetamine, a controlled 

substance, within 48 hours of his arrest” was prejudicial error. 

Section 11550, subdivision (a) provides: “No person shall use, or be under the 

influence of any controlled substance . . . .” (§ 11550, subd. (a).) It makes no mention of 

any temporal limitation. CALCRIM No. 2400, the standard CALCRIM instruction for 

use of a controlled substance in violation of section 11550, tells the jury that the 

prosecution must prove that the defendant “used . . . a controlled substance[, a short time 

before (his/her) arrest].” (CALCRIM No. 2400.) The Bench Notes for CALCRIM No. 

2400 state: “A violation of Health and Safety Code section 11550 based on ‘use’ of a 

controlled substance requires ‘“current use” or “use immediately prior to arrest”. . . .’ 

(People v. Jones (1987) 189 Cal.App.3d 398, 403-404 [234 Cal.Rptr. 408]; see also 

People v. Velasquez (1976) 54 Cal.App.3d 695, 699-700 [126 Cal.Rptr. 656]; People v. 

Gutierrez (1977) 72 Cal.App.3d 397, 402 [140 Cal.Rptr. 122].)[

3

] In People v. Jones, 

supra, 189 Cal.App.3d at p. 406, the court found evidence of use within 48 hours prior to 

the defendant’s arrest sufficient. If there is an issue in the case over when the defendant 

allegedly used the substance, give the bracketed phrase ‘a short time before (his/her) 

arrest’ in element 1. (Ibid.) Alternatively, the court may insert a specific time or time 

frame in element 1, e.g., ‘24 to 48 hours prior to (his/her) arrest.’ ” 

 

3

People v. Gutierrez (1977) 72 Cal.App.3d 397 (Gutierrez) did not involve the 

sufficiency of the evidence to support a section 11550 conviction or the adequacy of an 

instruction on a section 11550 count. Gutierrez was a challenge to the denial of a 

suppression motion, and the issue was whether a police officer’s observation of 

withdrawal symptoms provided probable cause to believe that the defendant had violated 

section 11550. The court determined that withdrawal symptoms were not enough. 

(Gutierrez, at pp. 400-402.) That holding is not material to the validity of the trial court’s 

instruction in this case.
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In this case, there was no significant issue “over when the defendant allegedly 

used the substance.” Defendant admitted that he used methamphetamine the day before 

his arrest, and methamphetamine was found in his blood. The trial court did not elect to 

use the bracketed phrase “a short time before.” Instead, it chose the alternative of 

inserting a specific time, as suggested by the Bench Notes to CALCRIM No. 2400. 

Defendant claims that there is no case authority supporting the trial court’s use of the 

alternative suggested in the CALCRIM Bench Notes. He is incorrect.

People v. Velasquez (1976) 54 Cal.App.3d 695 (Velasquez) was a decision of the 

Second District Court of Appeal in which the court held, after a very brief discussion, 

that there was insufficient evidence to support a conviction for use of a controlled 

substance. The Second District’s analysis suggested that a use that occurred a week 

earlier did not fall within the statute’s “use” proscription. “The ‘use’ proscribed by 

section 11550 of the Health and Safety Code is a current use, not a use in the past. Even 

though defendant lied in claiming to have been free of narcotics for several months, the 

People’s own testimony supports no usage closer than the five-to seven-day period 

testified to by their own expert. We conclude that, while usage no more distant than that 

might support a finding of danger to become (again) addicted, it does not support a 

finding of a current addiction and use.” (Velasquez, at p. 700.) Velasquez stands for the 

proposition that the use must be “a current use” and that a use a week earlier is not “a 

current use.”

Bosco v. Justice Court (1978) 77 Cal.App.3d 179 (Bosco) was a Fifth District case 

in which the court relied on Velasquez. The issue in Bosco was whether the word “use” 

in section 11550 was unconstitutionally vague. (Bosco, at p. 191.) The Fifth District 

reasoned that “[t]he implication from [Velasquez] is that in order to secure a conviction 

under section 11550 the People must show that the defendant had used a controlled 

substance immediately prior to the arrest.” (Bosco, at p. 191.) The Fifth District 

concluded that the word “use” combined with what it viewed as Velasquez’s “time 
7

implications” rendered the statutory language not unconstitutionally vague. (Bosco, at 

p. 191.) Of course, Velasquez neither stated nor implied that the use must be

“immediately prior to the arrest,” as the Fifth District suggested, but only that it must be 

“a current use” and cannot be a week old. 

People v. Jones (1987) 189 Cal.App.3d 398 (Jones) was a subsequent Fifth 

District case. In Jones, at the time of the defendant’s arrest, he had an injection site on 

his hand “which appeared fresh, between one and three days old,” and he told a police 

officer “that he had ‘fixed’ two days before.” (Id. at p. 402.) A urine test revealed the 

presence of morphine, a metabolite of heroin. (Ibid.) A pathologist testified that the 

amount of morphine present in the defendant’s urine indicated that he had used heroin 

between 24 and 72 hours prior to his arrest, probably closer to 24 hours prior. (Ibid.) 

The defendant testified at trial that he had used heroin two or three days prior to his 

arrest. (Id. at p. 403.) The jury was instructed that “use immediately prior to arrest 

meant a very brief period of time before arrest.” (Id. at p. 406.) 

The defendant in Jones was convicted of use. On appeal, he challenged the 

sufficiency of the evidence on the ground that his use two days prior to his arrest was not 

“‘current use.’ ” (Jones, supra, 189 Cal.App.3d at p. 403.) The Fifth District viewed “the 

issue presented” as “whether the evidence of appellant’s heroin use within 24 to 72 hours 

before his arrest fits within the definition of ‘use’ as proscribed by section 11550.” 

(Jones, at p. 404.) The Jones court found that such use does come within section 11550’s

proscription on use. “[E]ven if the evidence were construed to show use within fortyeight hours before appellant’s arrest, such usage two days before arrest could clearly 

qualify for a finding of current use under [Velasquez].” (Jones, at pp. 405-406.) 

Jones supports the instruction given by the trial court. If a use two days before 

arrest “fits within the definition of ‘use’ as proscribed by section 11550,” then an 

instruction to that effect cannot be prejudicial error. The only purpose that such an 

instruction serves is to favor a defendant by precluding a conviction for use where, as in 
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Velasquez, the use was so temporally distant that it could not qualify as “a current use.” 

Here, defendant did not dispute that his use was no more temporally distant than one day 

prior to his arrest. Since such a use is clearly a “current use” under Jones, he could not 

have been prejudiced by the trial court’s addition of the alternative language suggested in 

the CALCRIM No. 2400 Bench Notes.

III. Disposition

The judgment is affirmed.
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_______________________________

Mihara, J.

WE CONCUR:

_____________________________

Bamattre-Manoukian, Acting P. J.

_____________________________

Grover, J.