THE PEOPLE, Plaintiff and Respondent, v. OSCAR JIMENEZ, Defendant and Appellant.
No. F067846
Fifth Dist.
Dec. 11, 2015.
1337
[CERTIFIED FOR PARTIAL PUBLICATION*]
Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Peter W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DETJEN, J.—On August 17, 2011, defendant Oscar Jimenez was indicted on two counts of second degree murder (
In connection with counts one through four, the indictment alleged defendant was previously convicted of (1) first degree burglary—a qualifying strike under the “Three Strikes” law (
On May 23, 2013, the jury convicted defendant on all counts and found true the allegations of his earlier DUI convictions on counts three and four. In a bifurcated proceeding, the trial court did not issue a finding as to the allegation of being convicted of driving with a suspended license on or around August 11, 2009, on count five, but found true all remaining allegations.
On August 6, 2013, defendant was sentenced to 30 years to life, plus five years for a prior serious felony conviction and four years for four prior prison terms,2 on count one; 30 years to life, plus five years for a prior serious felony conviction and four years for four prior prison terms (see ante, fn. 2), on count two, to be served consecutively; and 180 days in jail on count five, to be served concurrently. The trial court also imposed 30 years to life, plus five years for a prior serious felony conviction and four years for four prior prison terms (see ante, fn. 2), on counts three and four, respectively, but stayed execution of these sentences pursuant to
On appeal, defendant contends the evidence did not establish he was under the influence of a drug (counts three & four) or killed with malice aforethought (counts one & two); claims the trial court erred by refusing to instruct the jury on unconsciousness, denying his motion to supprеss blood test results, and admitting into evidence a detective‘s opinion about his state of intoxication, other-crimes evidence, and his mug shot profile; alleges various sentencing errors; and asks us to review the sealed reporter‘s transcript of the trial court‘s April 2, 2013, in camera hearing and determine whether the trial court properly ruled on his motion for discovery pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 [113 Cal.Rptr. 897, 522 P.2d 305].
In the published portion of the opinion, we conclude substantial evidence established defendant was under the influence of a drug, substantial evidence established implied malice, and defendant‘s blood test results were not subject to exclusion. In the unpublished portion of the opinion, we conclude an instruction on unconsciousness was unwarranted, the trial court did not
STATEMENT OF FACTS
I. Prosecution case.
On April 26, 2011, at approximately 9:00 a.m., Maria Rocha heard a loud collision while she was in her residence at 2701 Sierraglen Court in Bakersfield. Through a bedroom window, she saw a gray truck—which had plowed through a fence—in her backyard. Rocha‘s son called 911. Meanwhile, Rocha entered the backyard and observed defendant emerging from the driver‘s side of the vehicle. As he ran westward on Auburn Street, she warned, “Hey, don‘t run. I‘ve already called the cops.” Rocha believed defendant “was trying to get away.”
At 9:11 a.m., Detective Kevin Fidler arrived at the scene of the accident. He spotted Albert Cichy lying near the truck, Annabelle Cichy lying on the northeastern corner of Sierraglen Court and Auburn Street, defendant sitting on the curb close to Annabelle,3 and an upended fire hydrant. After Fidler recruited bystanders to stabilize the Cichys until the arrival of emergency medical services, he spoke to defendant.
Defendant told Fidler he was driving eastbound on Auburn Street between 35 and 40 miles per hour when he was cut off by another vehicle, which forced him to swerve and hit the fire hydrant and the Cichys. He was also “coming down off of speed.4” Defendant then mentioned he had “blacked out” until he crashed into the hydrant. He admitted having a suspended driver‘s license. When Fidler asked why the license was suspended, defendant answered, “For a DUI.” Defendant “appeared nervous and jittery,” “had an accelerated, mumblеd speech,” and “show[ed] signs of bruxism,” i.e., “consis-tent” “clench[ing],” “twitch[ing],” and/or “thrust[ing of] the[] jaw.” In view of defendant‘s remarks and actions, Fidler opined defendant was “impaired by methamphetamine.”
Officer Patrick Dillard, a vehicular accident reconstructionist, charted the truck‘s path of travel. The areas of impact, in sequence, included (1) the curb
Officer Scott Lazenby inspected the truck and found no mechanical issues with the steering mechanism, brakes, and tires. He surveyed the road and confirmed there were no objects that would have prompted defendant to abruptly change direction. The weather, which was clear and dry, was also excluded as a contributing factor. Inside the pocket in the driver‘s side door, Lazenby retrieved an eyeglass case, which was inscribed with defendant‘s last name and contained a glass pipe with methamphetamine residue.
At the scene of the accident, emergency medical services mеasured defendant‘s heart rate twice at 9:33 a.m. and 9:41 a.m., respectively. In both instances, the rate was at or below 90 beats per minute. Defendant was then transported to Kern Medical Center. Officer Jeffrey Paglia, who was present during intake, heard a nurse ask defendant “why he‘s shaking” and defendant say “he was withdrawing from methamphetamine.” Dale Robbins, a physician assistant, was informed of defendant‘s “altered mental status”5 by the paramedics. At approximately 9:50 a.m., Robbins evaluated defendant, who was “alert,” “verbally responsive,” and “oriented to person, place, time, and surroundings.” Aside from a slightly elevated blood pressure, vital signs were normal. Defendant was hydrated and his mouth was “normal.” In both eyes, he presented “small and mildly reactive” pupils and nystagmus, i.e., “fluttering of the eye movements,” signifying an injury to the central nervous system and/or intoxication. He also presented “twitching” of the extremities and dysphasia, i.e., “difficulty speaking.” A computed tomography scan of the brain was inconclusive. At 10:00 a.m., upon Paglia‘s request, a nurse drew blood from defendant‘s right arm. Paglia had not asked defendant for consent.
On April 28, 2011, an initial test of defendant‘s blood sample at the Kern County Crime Laboratory was positive for amphetamine and marijuana. On April 29, 2011, a confirmatory test found 0.2 micrograms per milliliter (µg/ml) of amphetamine and 0.44 µg/ml of methamphetamine. Additional analysis on June 14, 2011, detected 2.0 nanograms per milliliter (ng/ml) of delta-9-tetrahydrocannabinol (THC), the “parent compound in marijuana.” According to Thomas Sneath, the toxicologist who tested the blood sample
In the wake of the April 26, 2011, accident, Albert died due to multiple blunt force injuries and Annabelle died due to complications stemming from blunt force trauma.
At trial, the prosecutor indicated he would introduce evidence “of [defendant‘s] prior arrests or convictions . . . and things that he may have learned during the course of those arrests and convictions.” The trial court preemptively instructed the jury:
“During the trial certain evidence will be admitted for a limited purpose. You may consider that evidence only for that purpose and for no other. You may consider the evidence that [defendant] has allegedly been previously arrested and charged with [DUI] for the limited purpose of determining the following:
“Number one, whether or not at the time he acted he knew his act was dangerous to human life and he deliberately acted with conscious disregard for human life. [[] This is relevant to the implied malice counts in Counts 1 and 2.
“Numbеr two, whether or not he acted with gross negligence in Counts 3 and 4.
“Number three, whether or not he suffered the alleged [DUI] convictions as alleged in . . . section 191.5(d), allegations as to Counts 3 and 4.
“And number four, whether or not he had a suspended or revoked driver‘s license in Count 5.
“If you have a reasonable doubt that [defendant] learned from his prior conduct that that conduct was dangerous to life, you must disregard the evidence of that prior conduct.
“You must determine whether [defendant] knew that his conduct was dangerous to human life at the time of the present offense.
“You may not consider any evidence of prior incidences of [DUI] as evidence of [defendant‘s] bad character, criminal record, or violation of any laws.”
The parties agreed to the following stipulations:
“On . . . June 8th, 2009, . . . [defendant‘s blood] sample screened positive for amphetamines and marijuana. The sample was not confirmed. The sample was later destroyed after [defendant]‘s 2009 court case had concluded.
“. . . [D]efendant was arrested in March of 1987 and convicted in June of 1987 of . . . alcohol [DUI] in Pasadena, California. He received two days in jail, three years probation, and his license was suspended.
“. . . [D]efendant was arrested and convicted of . . . alcohol [DUI] in Kern County in December of 1988. He was sentenced to 45 days in jail, three years probation, and his license was suspended.
“. . . [D]efendant was arrested and convicted of . . . alcohol [DUI], Vehicle Code [s]ection 23152(a), in Kern County in March of 2002. He received 30 days jail, three years probation, and his license was suspended.”
Roderick Frye formerly directed WestCare California‘s residential substance abuse treatment program, which incorporated lectures, seminars, and video presentations on the consequences of drug use in certain scenarios, e.g., ingesting methamphetamine and driving. In 2008, defendant completed the program in approximately 90 days. Frye testified an individual could not “go through that 90-day program and not have that idea presented . . . that . . . methamphetamine [DUI] could result in somebody dying.”
On June 4, 2009, at about 1:15 a.m., California Highway Patrol (CHP) Officer Michael Phillips saw defendant nearly sideswipe another vehicle with his truck at an intersection in Bakersfield. Phillips followed defendant—who “was weaving consistently, going in and out of his lane“—and initiated a traffic stop. Defendant was “extremely fidgety,” slurred his speech, displayed constricted pupils, and had a heart rate of 104 beats per minute. He failed the field sobriety tests. Defendant admitted taking methamphetamine “a couple of days prior.” Roughly 45 minutes later, CHP Officer Kelly Walker, a drug recognition expert, evaluated defendant at Kern County jail. Defendant was “lethargic,” had “droopy” eyelids and a “slack” face, “struggl[ed] to stay awake,” and spoke “quickly” and “quietly.” His pupils were 2.0 millimeters (mm) in “normal room light,” 2.5 mm in “near darkness,” and 2.0 mm “with a pen light direct[ing] light in[to] his eye[s.]” Defendant‘s heart rate fluctuated between 64 and 72 beats per minute. He also exhibited “a thick white coating on his tongue [and/]or in his oral cavity” and injection marks “[i]n the bend of his right arm.”
On August 11, 2009, defendant pleaded nolo contendere to drug DUI, inter alia. Pursuant to
James Rabuse was defendant‘s substance abuse counselor at Turning Point Kennemer Center, where defendant participated in another residential substance abuse treatment program from January 29, 2010, to July 23, 2010. The program addressed, inter alia, “the possible legal ramificаtions stemming from . . . being a reckless driv[er] to a driv[er] under the influence.” In response to a written question about whether his substance abuse endangered the lives of others, defendant answered, “I‘ve driven while under the influence for starters.” He successfully completed the program in six months. Rabuse “could not see any reason why [a person going through the program] wouldn‘t be able to understand” “that using a drug, [like] methamphetamine, and driving could result in somebody dying.” On cross-examination, he testified a person “should” be able to operate a motor vehicle “[e]ight to 12 hours . . . after the last ingestion of [methamphetamine],” “even though the period of time where [the drug] shows up in the blood might not have lapsed,” and he offered this advice in “one-on-ones” and “group counseling.” On redirect examination, Rabuse conceded he did not know “what is a safe amount of methamphetamine to have in your blood to drive,” adding “[i]t depends on the individual and how much [he] ingested prior to.”
Dr. Barry Logan, a forensic toxicologist, identified two phases of methamphetamine intoxication. In the first phase, also known as the “excited” phase, the user is alert, energetic, and euphoric. Common signs include an elevated pulse and blood pressure, dilated pupils, jumbled and/or accelerаted speech, tics, twitching, bruxism, and other fidgety behavior. In the second phase, also known as the “crash” or “withdrawal” phase, the methamphetamine has disseminated throughout the user‘s body, diluting the initial stimulative effects. As a result, the user—who had originally been invigorated by the drug—experiences depression, fatigue, and sleepiness, cannot concentrate, reacts slower, and craves further methamphetamine ingestion to “feel better again.” The pulse and blood pressure return to normal and the pupils sometime constrict.6 Marijuana is often consumed to offset the effects of the “crash” phase. Logan added: “[I]t‘s basically a continuum of effects. So you
In a study of methamphetamine DUI cases, Logan found the methamphetamine concentration ranged between 0.05 and 2.5 µg/ml. Defendant‘s blood sample contained 0.44 µg/ml of the drug, which was “consistent with abuse” rather than “therapeutic use.” Logan then explained how defendant‘s methamphetamine concentration at the time of the blood draw was a “pretty good estimate of what it was at the time of driving“:
“[D]rugs have a property called half[-]life. . . . [I]f you have a concentration of a drug in your blood right now that‘s [100], and the half[-]life of a drug is in an hour, then an hour later, instead of having [100], you would have 50. [¶] And then an hour [after] that, that 50 would have again fallen in half to 25. [¶] So over time, the drug concentration is going to decline.
“The half[-]life o[f] methamphetamine . . . varies from person to person. It‘s between probably eight and 12 hours. [¶] So [after] eight to 12 hours . . . the concentration would fall by half. [¶] So over a period of an hour, the amount of change in the blood concentration would be quite small.”
Based on percipient witnesses’ statements about defendant‘s appearance and conduct at the crime scene (i.e., “excited, accelerated speech,” “fidgety“) and hospital (i.e., “muscle tremors and shakes“), defendant‘s abnormal driving behavior (i.e., “los[ing] control of his vehicle, cross[ing] several lаnes of traffic, mount[ing] a curb, hit[ting] a number of fixed objects with no apparent effort to brake or to prevent hitting the[m],” “collid[ing] with the victims“), defendant‘s admission he was “coming down off of speed,” medical records, and the blood test results, Logan opined defendant fell asleep at the wheel due to methamphetamine withdrawal on April 26, 2011. He reiterated defendant‘s impairment was caused by methamphetamine intoxication: “[M]y view of methamphetamine intoxication is that it doesn‘t stop with somebody as soon as somebody reaches their peak and enters the downside. Intoxication is . . . the effect on an organism, a cell, a human being, an animal, as a result or consequence of their ingestion of a drug or
II. Defense case.
Teresa Jimenez testified defendant, her husband, “sle[pt] a full night‘s sleep” on each of the three nights preceding the morning of April 26, 2011. On the night of April 25, 2011, he “seemed normal” at bedtime. The following morning, defendant was “normal,” “didn‘t seem[] tired,” and “wasn‘t” “high.” On cross-examination, Teresa acknowledged defendant had used methamphetamine for years, had prior DUI convictions, and attended various programs for substance abuse treatment, but rarely observed him in an intoxicated state.
Vincent Jimenez woke defendant, his father, at around 7:45 a.m. on April 26, 2011, to get a ride to the school bus stop. According to Vincent, who had observed defendant in an intoxicated state,7 defendant was “normal.” They left their residence at 6009 Fairfax Road at around 7:55 a.m. En route to the bus stop on the corner of Auburn Street and Fairfax Road, defendant and Vincent talked about the latter‘s girlfriend troubles and physical training for the Marine Corps. Defendant drove and spoke “normal[ly].” His eyes were also “normal.” On cross-examination, Vincent acknowledged defendant had “a problem with methamphetamine.” In addition, he admitted telling either defense counsel or defense counsel‘s investigator he believed defendant was under the influence on the night of April 25, 2011, when he and defendant were “fixing a bumper on the truck” together.
Norma Jimenez saw defendant, her brother, at her residence near Bakersfield Memorial Hospital at or around 8:10 a.m. on April 26, 2011. He had visited to perform automotive work. However, Norma postponed the appointment because she needed to leave for her community college class by 8:30 a.m. Defendant was “acting fine,” but appeared “somewhat tired.” He stayed at Norma‘s home for five minutes at most.
Arthur Espinoza knew defendant through Maylean Jimenez, defendant‘s eldest daughter. On April 26, 2011, at or around 8:15 a.m., he encountered defendant in the parking lot of his apartment complex at 3901 Q Street. Defendant “persisten[tly]” asked Espinoza to “sell a camera for him,” but Espinoza was busy. According to Espinoza, who formerly used methamphetamine and recognized symptoms of methamphetamine intoxication, defendant was “clean and sober.”
“Since [methamphetamine]‘s a central nervous system stimulant, when the person is under the influence of it, everything in the central nervous system is speeded up. Body temperature. There may be piloerection. . . . [[] These things won‘t be present to a large degree or at all if a person is on the downhill side of it. . . . [¶] . . . [¶]
“. . . I looked at the clinical signs. I looked at the fact that everywhere I looked it said normal, normal, normal. Everywhere you went, to the blood pressure, his pulse, all were within normal limits. Even when he was admitted tо the hospital his pulse was . . . in normal limits.”
Sommers also inspected defendant‘s truck, which had a rear-wheel antilock braking system. Consequently, he expected front-wheel skid marks at the accident scene. The absence of such marks suggested defendant either (1) applied the brakes “to the point just short of lock-up” or (2) did not apply the brakes at all. Based on a mathematical formula, Sommers determined defendant drove between 31 and 49 miles per hour.
On cross-examination, Sommers conceded the blood test results revealed “a non-therapeutic value of . . . methamphetamine.” He disregarded defendant‘s admission of “coming down off of speed” because “[it]‘s not a clinical sign.” Sommers did not recall Robbins‘s notes about defendant‘s twitching and dysphasia. However, such symptoms could be attributed to defendant “[j]ust being excited, having been involved in a traffic collision.” Additionally, bruxism may be “one of the symptoms of methamphetamine use, but . . . is not in and of itself an indicator that [one is] under the influence of it.” As for the reason behind defendant‘s erratic driving, Sommers remarked:
“There are no clinical signs to show that [defendant] was impaired. I can‘t say that he was under the influence of methamphetamine. I can say that he was under the influence of tired. Now, I can‘t tell you why hе was tired, but I can tell you that the clinical signs . . . do not reflect methamphetamine use or any other central nervous system stimulant. [][] . . . [¶]
“A person who is under the influence of a central nervous system stimulant is not going to go to sleep. They are . . . stimulated. Heart rate[‘]s up, breathing‘s up, temperature‘s up, hydration is down. [][] There are a lot of things that are going on, but one of them is not sleeping.”
“[T]he behavioral statements that were made about [defendant] could have matched methamphetamine or amphetamine [use], [e.g.,] being excitable, nervous, things like that, [but the observations were made] right after a major accident, so I kind of have to discount th[em]. I want to get more into clinical things. [[] . . . [[]
“. . . [I]f he was actually under the influence, [his pupils] should [have] be[en] somewhere between [7.0] and [9.0] m[m], and the light [should] not [have] affect[ed] it. . . . [[] The drug . . . take[s] over the pupil size and it will not move. [¶] . . . [¶] It‘s a dead give-away right there. The only two drugs that we know [will do that] are stimulants and hallucinogenics. . . .”
“[R]oughly between nine o‘clock and whenever he was transferred to the hospital, they took [multiple] pulses on him. And he was in the high normal range. . . . [¶] . . . [U]nder the influence [of methamphetamine and stimulant drugs,] you‘re going to be way up over 120 [beats per minute]. [[] . . . [[]
“[Methamphetamine] is . . . basically like taking cold medicine. . . . [I]t dehydrates you. It dries you up. [[] . . . [W]hen you get dehydrated, your tongue swells up and you have a white coating on the tongue. . . . If you have a white coating on your tongue, that‘s kind of a dead give away.
“But here again, I read records where trained medical personnel said he was hydrated. Not dehydrated, hydrated. So that‘s another thing that leads me to believe that he was not under the influence of the classic sense of being impaired at that time.” According to D‘Amico, the blood test results merely showed “methamphetamine had been in [defendant‘s] system in the past.” He maintained “it [was absolutely] possible to have methamphetamine still lingering in [one‘s] blood and not be under the influence of methamphetamine.” Also, “it [was not] possible to look at a level of . . . methamphetamine in a person‘s blood and extrapolate retroactively when . . . he last used methamphetamine.”
Dr. Todd Zorick, a psychiatrist specializing in addictive disorders, testified “the critеria for methamphetamine intoxication are entirely clinical, [i.e.], observations and self report[ing].” Blood test results are not considered “because there‘s no strict . . . , one-to-one correlation between the level of a blood test and someone‘s level of [methamphetamine] intoxication.” To illustrate, Zorick compared methamphetamine with alcohol:
“[A]lcohol is metabolized very, very rapidly, so it‘s very clear when someone has a certain level of alcohol in their blood. That very closely correlates with [his] behavioral performance. And then the next day alcohol is completely out of [his] system and [he‘s] back to normal.
“Methamphetamine and most other drugs of abuse have much longer half[-]lives9 and tend to stay around . . . in the body a lot longer. [¶] So even though [users] might not be under the acute influence of that substance, they wouldn‘t exhibit the signs and symptoms, they continue to have body fluid testing which will reveal the presence of recent drug use or sometimes even more long lasting drug use.”
Zorick reviewed the police and medical records and concluded “it‘s unlikely that [defendant] was intoxicated with methamphetamine at the time of the accident.” He clarified:
“What I discovered was that as few as 25 minutes after the inсident, [defendant‘s] blood pressure and pulse were reported to be in the normal range . . . . [[] And that was consistent . . . throughout the course of his hospitalization that day. [][] [[]
“. . . [R]eports from the emergency medical service and from the hospital where he was evaluated . . . indicated that he had normal reflexes, that he had no pupillary dilation, that he didn‘t seem to have any other abnormal physical signs that would indicate that he was intoxicated with methamphetamine. [¶] . . . [¶]
“So to me it‘s curious that, you know, he didn‘t have any sort of response over the extended period of time that he was evaluated during this day that would indicate that he was intoxicated with methamphetamine. [][] . . . [[]
“. . . [I]f he had been intoxicated with methamphetamine, let‘s say he had used methamphetamine within the last two hours or so prior to the accident, that should have been reflected in having elevated blood pressure, an elevated pulse rate, having dilated pupils, perhaps . . . other behavioral abnormalities, an abnormal mood, having some physical symptoms, for example, anxiety, nausea or having recent weight loss, that would have indicated that he was likely intoxicated with methamphetamine.” As for the reason behind defendant‘s erratic driving, Zorick—without offering a “firm diagnosis“—surmised the “likely cause” was “falling asleep.” Sleepiness could not be attributed to methamphetamine intoxication, however, since a person under the influence of methamphetamine would be “wide awake.”
On cross-examination, Zorick listed symptoms of methamphetamine withdrawal, including fatigue, hypersomnia, loss of concentration, dysphoria, depression, and anxiety. Even though he “did not diagnos[e] or feel that [defendant] met criteria for methamphetamine withdrawal,” he still concluded “the weight of all the evidence . . . makes it more likely than not that [defendant] fell asleep while driving the morning of April 26th, 2011, while experiencing fatigue and sleepiness of methamphetamine withdrawal[,] result-ing in the crash.”
Dr. David Krauss, a cognitive neuroscientist, testified a warning “needs to change the [perceiver‘s] behavior” to be effective. Factors that “increase the likelihood that a warning will work” relate to either “the warning itself” or “the person receiving that information.” Krauss scrutinized the judicial admonition read to defendant on August 11, 2009. (See ante, at pp. 1345–1346.) He deemed the admonition ineffective because, inter alia, (1) it did not provide “new” information (i.e., defendant “already . . . knew what the hazard was” because he was in a courtroom); (2) it did not specifically
On the other hand, Krauss believed Rabuse‘s advice (see ante, at p. 1346) was more effective than the judicial admonition on the basis of “source credibility“:
“If you‘re given just a passive warning or a passive admonition, . . . if you‘re reading sort of a []rote instruction that is a generic that‘s given to every person that passes through the court under these conditions, that‘s going to have some level of merit associated with it.
“If you‘re then in a drug rehab facility where you‘re presumably working with people who are trying to better your situation, are trying to make you write specifically not to do what got you in there, and they give you an instruction[, t]hat instruction that is direct[ed] solely to you by somebody who is specifically there to make sure you don‘t do what you did again is likely going to carry a lot more weight.”
DISCUSSION
I. Substantial evidence established defendant was under the influence of methamphetamine.
a. Standard of review.
“To determine the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the prosecution to determine whether it contains [substantial] evidence that is reasonable, сred-ible and of solid value, from which a rational trier of fact could find that the elements of the crime were established beyond a reasonable doubt.” (People v. Tripp (2007) 151 Cal.App.4th 951, 955 [60 Cal.Rptr.3d 534] (Tripp).) We “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Redmond (1969) 71 Cal.2d 745, 755 [79 Cal.Rptr. 529, 457 P.2d 321] (Redmond).) “‘We need not be convinced of the defendant‘s guilt beyond a reasonable doubt; we merely ask whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citation.]’ [Citation.]” (Tripp, supra, at p. 955, italics omitted.)
“Before the judgment of the trial court can be set aside for insufficiency of the evidence to support the verdict of the jury, it must clearly appear that upon no hypothesis what[so]ever is there sufficient substantial evidence to support it.” (Redmond, supra, 71 Cal.2d at p. 755.) ” ‘Conflicts and even testimony which 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.]” (People v. Lee (2011) 51 Cal.4th 620, 632 [122 Cal.Rptr.3d 117, 248 P.3d 651].)
b. Analysis.
The record indisputably shows that on the morning of April 26, 2011, defendant lost control of his truck while driving eastbound on Auburn Street, veered toward Auburn Street and Sierraglen Court, and—without braking—struck Albert and Annabelle as well as several fixed, inanimate objects, e.g., a fire hydrant, tree, fence, and various street and traffic signs. The truck had no mechanical issues, and external factors such as road debris and the weather did not play a role in the accident. On appeal, defendant concedes he fell asleep at the wheel and ingested methamphetamine “a day to three days earlier.” Nonetheless, he contends “there was no substantial evidence of [methamphetamine] intoxication while driving.” We disagree.
“Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of [s]ection [s] . . . 23152, [DUI] or 23153 [DUI and causing bodily injury to another person] of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligеnce, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.” (
” ‘A person is under the influence [of methamphetamine]’ . . . when, as a result of using methamphetamine, his physical or mental abilities are impaired to such a degree that he no longer has the ability to drive his vehicle
We conclude any rational jury could find—beyond a reasonable doubt—defendant was under the influence of methamphetamine while driving on April 26, 2011. The record—viewed in the light most favorable to the prosecution—shows he had smoked the drug at some point before the accident. Vincent, defendant‘s son, recognized alertness and dilated pupils, inter alia, as signs of methamphetamine use. Expert witnesses for the prosecution and the defense corroborated these physical traits are such indicia. Vincent—proven to be acquainted with the aforementioned symptoms—believed defendant was in a state of intoxication while they were repairing the truck‘s bumper on the night of April 25, 2011. A subsequent search of this vehicle uncovered defendant‘s glass pipe, which contained methamphetamine residue.
On April 26, 2011, less than an hour before the accident, defendant was “somewhat tired.” Approximately 10 minutes after the accident, he was “nervous and jittery,” “had an accelerated, mumbled speech,” “show[ed] signs of bruxism,” and confessed to a detective he had “blacked out” and was “coming down off of speed.” Defendant‘s heart rate at the scene was normal. Later, at the hospital, he was seen “shaking,” which he attributed to “withdrawing from methamphetamine.” During the physician assistant‘s evaluation, defendant presented “small and mildly reactive” pupils, “twitching” of the extremities, and “difficulty speaking,” but otherwise exhibited normal vital signs. According to Logan, a forensic toxicologist, defendant‘s accelerated speech, twitching, bruxism, and other fidgety behavior were indicative of the “excited” phase of methamphetamine intoxication while his fatigue, mildly reactive pupils, and normal vital signs were indicative of the “crash” or “withdrawal” phase. Logan testified these phases constitute a “continuum” rather than discrete intervals; thus, overlapping symptoms are not unusual.
Testing of defendant‘s blood samplе—taken within an hour of the accident—revealed a methamphetamine concentration of 0.44 µg/ml. This amount, which was “non-therapeutic” and “consistent with abuse,” fell within the 0.05-to-2.5 µg/ml range observed by Logan in a study of methamphetamine DUI cases. Also, given the drug‘s eight- to 12-hour half-life, 0.44 µg/ml was a “pretty good estimate” of defendant‘s methamphetamine concentration at the time of the accident. Testing also revealed 2.0 ng/ml of delta-9-THC, the principal ingredient in marijuana that only remains in the
In sum, the night before the accident, defendant—who had smoked a non-therapeutic amount of methamphetamine—was in the first or “excited” phase of intoxication. By the morning of April 26, 2011, he began to exhibit symptoms of the second or “crash“/“withdrawal” phase. Even so, defendant chose to drive his truck. Ultimately, he fell asleep at the wheel, lost control of his vehicle, and ran over the Cichys. Both Logan and Zorick, a psychiatrist specializing in addictive disorders, confirmed sleepiness is a symptom of methamphetamine withdrawal. Defendant experienced sleepiness because he ingеsted methamphetamine in the first place. Hence, “as a result of using methamphetamine” (People v. Bui, supra, 86 Cal.App.4th at p. 1194, italics added), his “physical or mental abilities [we]re impaired to such a degree that he no longer ha[d] the ability to drive his vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances” (ibid.). (Cf. People v. Mathson (2012) 210 Cal.App.4th 1297 [149 Cal.Rptr.3d 167] [prescription sleep drug DUI].)
On appeal, defendant argues he can only be convicted of methamphetamine DUI if his driving impairment stemmed from “the drug itself . . . actively influencing the body.” (Italics added.) In the context of this case, he is likely claiming he cannot be convicted of methamphetamine DUI because his driving impairment, i.e., sleepiness, was induced by withdrawal. As supporting authority, defendant cites the following excerpt from People v. Canty (2004) 32 Cal.4th 1266, 1278 [14 Cal.Rptr.3d 1, 90 P.3d 1168] (Canty): “[F]or a defendant to be guilty of driving while under the influence of drugs . . . , ’ “the . . . drug(s) must have so far affected the nervous system, the brain, or muscles [of the individual] as to impair to an appreciable degree the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties. [Citations.]“’ [Citations.]” (Italics omitted.)
To the extent defendant suggests Canty categorically prohibits drug DUI convictions where the driver‘s impairment was brought about by drug withdrawal, we disagree. In that case, the defendant—who pleaded guilty to transporting methamphetamine, a felony, and methamphetamine DUI, a misdemeanor—asked the trial court to be placed on probation and diverted to a drug treatment program pursuant to the Substance Abuse and Crime Prevention Act of 2000. (Canty, supra, 32 Cal.4th at pp. 1272–1274.) Under this law, an offender is eligible for probation and diversion to such a program if he or she has been convicted of a ” ‘nonviolent drug possession offense,’ ” e.g., ” ‘being under the influence of a controlled substance’ ” (id. at pp. 1272,
On appeal before the California Supreme Court, the defendant argued a DUI misdemeanor “should be equated with” the crime of “being under the influence of drugs” because “use of drugs is integral to each offense.” (Canty, supra, 32 Cal.4th at p. 1278, italics omitted.) In rejecting this argument, California Supreme Court emphasized three significant differences between being under the influence of drugs and driving while under the influence of drugs. First, whereas a person can be convicted of the former merely “by being in that state in any detectable manner” (ibid.), he or she can only be convicted of the latter if the drug ” ’ “so far affected [his or her] nervous system, the brain, or muscles . . . as to impair to an appreciable degree the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties” ’ ” (ibid., italics omitted). Second, whereas a simple drug-use misdemeanor focuses on “the individual offender‘s own private involvement with the proscribed substance” (id. at p. 1279), a DUI misdemeanor “primarily is concerned not with the offender‘s use of the proscribed substance, but with his or her use of a motor vehicle” (ibid.). Third, whereas the Legislature intended to “protect the user from the consequences . . . of his or her own conduct” in proscribing being under the influence (ibid., italics omitted), it intended to “protect the public and guard against the threat of injury to others” in proscribing DUI (ibid., italics omitted). The appellate court‘s judgment was affirmed. (Id. at p. 1286.)
At most, Canty—for purposes of the Substance Abuse and Crime Prevention Act of 2000—differentiated between two drug-related misdemeanors on the bases of degree of impairment and public policy. Canty never intimated an offender cannot be convicted of drug DUI if his or her driving impairment stemmed from drug withdrawal. Furthermore, we are unwilling to countenance this proposition in the instant case. Substantial evidence established defendant smoked methamphetamine and subsequently underwent withdrawal, resulting in somnolence that impaired his driving. We cannot overlook the fact defendant endured the effects of methamphetamine withdrawal—namely, sleepiness—precisely because he had used methamphetamine.10
a. Standard of review. (See ante, at pp. 1353–1354.)
b. Analysis.
“Second degree murder is defined as the unlawful killing of a human being with malice aforethought, but without the additional elements—i.e., willfulness, premeditation, and deliberation—that would support a conviction of first degree murder.” (People v. Nieto Benitez (1992) 4 Cal.4th 91, 102 [13 Cal.Rptr.2d 864, 840 P.2d 969], italics omitted; accord, People v. Superior Court (Costa) (2010) 183 Cal.App.4th 690, 697 [107 Cal.Rptr.3d 576] (Costa).) “Malice may be either express or implied.” (People v. Lasko (2000) 23 Cal.4th 101, 107 [96 Cal.Rptr.2d 441, 999 P.2d 666].) It is express “when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.” (
“Implied malice is determined by examining the defendant‘s subjective mental state to see if he or she actually appreciated the risk of his or her actions.” (Costa, supra, 183 Cal.App.4th at p. 697.) “It is not enough that a reasonable person would have been aware of the risk.” (People v. Moore (2010) 187 Cal.App.4th 937, 941 [114 Cal.Rptr.3d 540]; see People v. Olivas (1985) 172 Cal.App.3d 984, 988 [218 Cal.Rptr. 567] [“[T]he state of mind of a person who acts with conscious disregard for life is, ‘I know my conduct is dangerous to others, but I don‘t care if someone is hurt or killed.’ The state of mind of the person who acts with conscious indifferences to the consequences is simply, ‘I don‘t care what happens.’ “].) “It is unnecessary that implied malice be proven by an admission or other direct evidence of the defendant‘s mental state; like all other elements of a crime, implied malice may be proven by circumstantial evidence.” (Costa, supra, at p. 697; see People v. Nieto Benitez, supra, 4 Cal.4th at p. 110 [“Even if the act results in a death that is accidental, . . . the circumstances surrounding the act may evince implied malice.“].)
Here, substantial evidence established implied malice. The record—viewed in the light most favorable to the prosecution—shows defendant was previ-ously convicted of alcohol DUI in 1987, 1988, and 2002. In 2009, after he nearly sideswiped another vehicle with his truck, he displayed symptoms suggestive of both the “excited” and “crash” phases of methamphetamine
Yet, despite several prior brushes with the law, a near collision in 2009, a straightforward judicial admonition, stints in two separate substance abuse treatment programs, his awareness of withdrawal effects, and his acknowledgement of the risks of DUI, defendant smoked methamphetamine sometime before April 26, 2011, experienced withdrawal on the morning of April 26, 2011, and—with a license revoked on account of his prior DUI conviction—chose to drive anyway. While driving, he succumbed to sleepiness—a symptom of withdrawal—and killed two pedestrians. Any rational jury could find—beyond a reasonable doubt—defendant knew his impaired driving endangered the lives of others, but acted “with conscious disregard for life.” (People v. Dellinger, supra, 49 Cal.3d at p. 1215; accord, Costa, supra, 183 Cal.App.4th at p. 697.)
On appeal, defendant insists he was advised by Rabuse, his former substance abuse counselor, “th[at] danger did not exist if he did not use methamphetamine for eight to [12] hours before driving,” which essentially “mooted” the judicial admonition. (Italics added.) We are not compelled to accept his self-serving interpretation of Rabuse‘s testimony in light of our obligation as an appellate court to view the record “in the light most favorable to the prosecution” (Tripp, supra, 151 Cal.App.4th at p. 955) and “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence” (Redmond, supra, 71 Cal.2d at p. 755). On cross-examination, Rabuse testified he informed multiple patients—not just defendant—in “one-on-ones” and “group counseling” that a
III. An instruction on unconsciousness was unwarranted.*
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IV. Defendant‘s blood test results were not subject to exclusion.
a. Background.
On May 8, 2013, defense counsel filed a motion in limine to “prohibit[] the [p]rosecution from directly or indirectly identifying to the jury or making any comment of the fact of a blood draw or analysis or of the results of or of any opinions based upon a blood draw or analysis of the defendant‘s blood.” He cited as supporting authority Missouri v. McNeely (2013) 569 U.S. ___ [185 L.Ed.2d 696, 133 S.Ct. 1552] (McNeely), inter alia. The trial court denied the motion.
b. Standard of review.
” ‘In reviewing a suppression ruling, “we defer to the superior court‘s express and implied factual findings if they are supported by substantial evidence, [but] we exercise our independent judgment in determining the legality of a search on the facts so found.” ’ [Citation.]” (People v. Tully (2012) 54 Cal.4th 952, 979 [145 Cal.Rptr.3d 146, 282 P.3d 173].) “On appeal we consider the correctness of the trial court‘s ruling itself, not the correctness of the trial court‘s reasons for reaching its decision.” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 145 [112 Cal.Rptr.3d 746, 235 P.3d 62].)
c. Analysis.
“A defendant may move . . . to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on . . . the . . .
*See footnote, ante, page 1337.
” ‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’ ” (
In 2011, Schmerber was controlling authority. (Accord, Rossetti, supra, 230 Cal.App.4th at pp. 1074–1075; People v. Youn (2014) 229 Cal.App.4th 571, 576 [176 Cal.Rptr.3d 652] (Youn); see People v. Jones (2014) 231 Cal.App.4th 1257, 1265 [180 Cal.Rptr.3d 407] [binding judicial precedent in California pre-McNeely consistently interpreted Schmerber to permit warrantless blood draws performed in a medically approved manner].) In that case, the defend-ant was involvеd in an automobile accident. (Schmerber, supra, 384 U.S. at p. 758.) At the scene of the accident, he “smelled [of] liquor” and had ” ‘bloodshot, watery’ ” eyes. (Id. at p. 769.) The defendant was taken to a hospital, where—at the direction of a police officer—a physician obtained a blood sample. (Id. at p. 758.) The defendant did not consent to the blood draw. (Id. at p. 759.) Testing revealed a percent by weight of alcohol indicative of intoxication. The toxicology report was later admitted into evidence at trial. (Ibid.) The defendant was convicted of alcohol DUI. (Id. at p. 758.)
One of the primary issues before the United States Supreme Court in Schmerber was “whether the chemical analysis [of the defendant‘s blood]
“The officer in the present case . . . might reasonably have believed that he was confrontеd with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence,’ [citation]. We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to [the defendant]‘s arrest.
“Similarly, we are satisfied that the test chosen to measure [the defendant]‘s blood-alcohol level was a reasonable one. Extraction of blood samples for testing is a highly effective means of determining the degree to which a person is under the influence of alcohol. [Citation.] Such tests are a common-place in these days of periodic physical examinations and experience with them teaches that the quantity of blood extracted is minimal, and that for most people the procedure involves virtually no risk, trauma, or pain. . . .
“Finally, the record shows that the test was performed in a reasonable manner. [The defendant]‘s blood was taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment—for example, if it were administered by police in the privacy of the stationhouse.” (Schmerber, supra, 384 U.S. at pp. 770–772, fns. omitted.)
Post-Schmerber and pre-McNeely, a period spanning nearly 50 years, ” ‘California cases uniformly interpreted Schmerber to mean that no exigency beyond the natural evanescence of intoxicants in the bloodstream, present in every DUI case, was needed to establish an exception to the warrant requirement.’ [Citation.]” (Youn, supra, 229 Cal.App.4th at p. 577; see
“[T]he warrant requirement is subject to exceptions. ‘One well-recognized exception’ . . . ‘applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.’ [Citation.] A variety of circumstances may give rise tо an exigency sufficient to justify a warrantless search . . . . [W]e have also recognized that in some circumstances law enforcement officers may conduct a search without a warrant to prevent the imminent destruction of evidence. . . .
“To determine whether a law enforcement officer faced an emergency that justified acting without a warrant, this Court looks to the totality of circumstances. [Citations.] We apply this ‘finely tuned approach’ to Fourth Amendment reasonableness in this context because the police action at issue lacks ‘the traditional justification that . . . a warrant . . . provides.’ [Citation.] Absent that established justification, ‘the fact-specific nature of the reasonableness inquiry,’ [citation], demands that we evaluate each case of alleged exigency based ‘on its own facts and circumstances.’ [Citation.] [[] . . . [[]
“It is true that as a result of the human body‘s natural metabolic processes, the alcohol level in a person‘s blood begins to dissipate once the alcohol is fully absorbed and continues to decline until the alcohol is eliminated. . . . This fact was essential to our holding in Schmerber, as we recognized that, under the circumstances, further delay in order to secure a warrant after the time spent investigating the scene of the accident and transporting the injured suspect to the hospital to receive treatment would have threatened the destruction of evidence. [Citation.]
“But it does not follow that we should depart from careful case-by-case assessment of exigency and adopt [a] categorical rule . . . . In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. . . . We do not doubt that some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test. That, however, is a reason to decide each case on its facts, as we did in Schmerber, not to accept the ‘considerable overgeneralization’ that a per se rule would reflect. [Citation.] [[] . . . [¶]
“In short, while the natural dissipation of alcohol in the blood may support a finding of exigency in a specified case, as it did in Schmerber, it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances. [[] . . . [[] We hold that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.” (McNeely, supra, 569 U.S. at pp. ___ [133 S.Ct. at pp. 1558–1561, 1563, 1568], fn. omitted.)
Notwithstanding McNeely and the general rule the United States Supreme Court‘s new interpretation of the federal Constitution must be given retroac-tive application to pending cases (Rossetti, supra, 230 Cal.App.4th at p. 1076), in the instant case, we “need not resolve the question [of] whether the warrantless blood test was reasonable under the[] circumstances [per McNeely], because even if it were not, the results of the test would not be excluded from evidence” (Youn, supra, 229 Cal.App.4th at p. 578).
The Fourth Amendment ” ‘contains no provision expressly precluding the use of evidence obtained in violation of its commands’ ” (Herring v. United States (2009) 555 U.S. 135, 139 [172 L.Ed.2d 496, 129 S.Ct. 695]), but the United States Supreme Court “establish[ed] an exclusionary rule that, when applicable, forbids the use of improperly obtained evidence at trial” (ibid.). The exclusionary rule “is a ‘prudential’ doctrine, [citation], created . . . to ‘compel respect for the constitutional guaranty.’ [Citations.]” (Davis v. United States (2011) 564 U.S. 229, 236 [180 L.Ed.2d 285, 131 S.Ct. 2419, 2426] (Davis).) “Exclusion is ‘not a personal constitutional right,’ nor is it designed to ‘redress the injury’ occasioned by an unconstitutional search. [Citations.] The rule‘s sole purpose . . . is to deter future Fourth Amendment violations. [Citations.]” (Id. at pp. 236–237 [131 S.Ct. at p. 2426].) In other words, the exclusionary rule is limited “to situations in which [deterrence] is ‘thought most efficaciously served.’ [Citation.] Where suppression fails to yield ‘appreciable deterrence,’ exclusion is ‘clearly . . . unwarranted.’ [Cita-tion.]” (Id. at p. 237 [131 S.Ct. at pp. 2426–2427].)
“[T]he deterrence benefits of exclusion ‘var[y] with the culpability of the law enforcement conduct’ at issue.” (Davis, supra, 564 U.S. at p. 238 [131 S.Ct. at p. 2427].) “When the police exhibit ‘deliberate,’ ‘reckless,’ or ‘grossly negligent’ disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs. [Citation.]” (Ibid.) “But when the police act with an objectively ‘reasonable good-faith belief’ that their conduct is lawful, [citation], or when their
Here, the record shows defendant, after having run over two pedestrians with his truck, informed a hospital nurse he “was withdrawing from metham-phetamine.” Paglia, who was present, overheard this remark. In “objectively reasonable reliance” (Davis, supra, 564 U.S. at p. 232 [131 S.Ct. at p. 2423]) on Schmerber, then still authoritative, Paglia could “reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence’ ” (Schmerber, supra, 384 U.S. at p. 770), i.e., the natural evanes-cence of methamphetamine in the bloodstream. His request for a blood draw to secure evidence of defendant‘s drug intoxication fell “within the param-eters of the ‘good faith’ exception to the exclusionary rule.” (Rossetti, supra, 230 Cal.App.4th at p. 1076.) Therefore, denial of the motion to suppress was proper.14
V.–IX.*
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DISPOSITION
The additional two-year term entered in the August 6, 2013, abstract of judgment and the September 11, 2013, amended abstract of judgment is stricken. The trial court is directed to prepare a corrected abstract of judgment
*See footnote, ante, page 1337.
Kane, Acting P. J., and Peña, J., concurred.
Appellant‘s petition for review by the Supreme Court was denied March 16, 2016, S231968. Kruger, J., did not participate therein.