Opinion
NOT TO BE PUBLISHED
Appeal from orders of the Superior Court of San Diego County, Lawrence Kapiloff, Judge (retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) and the Superior Court of Orange County No. DL033203, Kimberly Menninger, Judge.
John F. F. Bovee, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting, Anthony Da Silva and Scott Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
INTRODUCTION
In March 2009, then 17 year old Samantha M. drove a truck off the side of a road and onto an embankment, where it rolled over and came to rest upside down; Samantha’s blood alcohol level was 0.17 percent. The juvenile court found Samantha had violated Vehicle Code section 23153, subdivisions (a) and (b), and declared Samantha a ward of the court under Welfare and Institutions Code section 602. (All further statutory references are to the Vehicle Code unless otherwise specified.)
Samantha contends substantial evidence did not support the juvenile court’s findings (1) she was the driver of the truck at the time of the accident, (2) she committed an unlawful act or neglected a duty while driving, and (3) an injury sustained by one of the truck’s occupants was proximately caused by Samantha’s unlawful act or neglect of duty. Samantha also contends she received ineffective assistance of counsel because her trial counsel failed to argue “critical omissions of proof” and failed to request, under Welfare and Institutions Code section 702, that the court declare the alleged felony offenses to be misdemeanor offenses.
We affirm. Evidence was presented showing that after the truck came to a stop upside down, Samantha was in the driver’s seat wearing the driver’s side seatbelt that remained engaged and held her in place. The only other occupant of the truck got out of the truck through the passenger side door. Sufficient evidence therefore supported the finding Samantha was driving the truck at the time of the accident.
Substantial evidence also supported the juvenile court’s reasonable inference that Samantha had negligently driven the truck off the road and onto an embankment; the truck was mechanically sound and there was no evidence of any other cause for the truck veering off the road. Furthermore, substantial evidence showed the severe cuts to the passenger’s left hand were proximately caused by Samantha’s negligent driving.
Samantha has failed to show she received ineffective assistance of counsel. Samantha’s attorney’s decision to focus his trial arguments on a key factual issue in the case—whether Samantha had been the driver of the truck at the time of the accident—was a tactical decision in light of inconsistent evidence on that point. Samantha’s counsel’s decision to not argue other elements of the alleged offenses (which were amply supported by the evidence) did not constitute deficient representation. Even if Samantha’s trial counsel rendered deficient representation by failing to request that the juvenile court declare the alleged offenses misdemeanors, it is not reasonably probable the juvenile court would have granted counsel’s request.
FACTS
At approximately 9:30 p.m. on March 8, 2009, Rosa Herrera was driving down a street at the top of a hill in Oceanside when she saw “lights of a car kind of go up the embankment and then kind of roll over.” Herrera approached the scene of the accident and saw two young women inside a truck that was upside down. Herrera called for an ambulance.
Herrera saw one of the young women, who was later identified as Crystal L., get out of the truck through the passenger side door with the assistance of Francisco Quintero, a bystander, who unbuckled her seatbelt. Quintero saw blood on Crystal’s arms. Herrera heard Crystal repeatedly yell, “I didn’t do it. I didn’t do it. I wasn’t the one driving.”
Quintero also attempted to help the other young woman, who was later identified as Samantha. Quintero saw blood on Samantha but did not know “where it was coming from.” He stopped trying to help Samantha after Herrera told him to wait until an ambulance arrived, so he did not cause Samantha any further injury.
Oceanside Police Officer Eric Anderson arrived at the scene of the accident at 9:38 p.m. According to Anderson, he saw Samantha sitting in the driver’s seat of the upside down truck; the driver’s seatbelt “was still engaged” and “holding her in place upside down.”
Anderson saw Crystal sitting on the side of the road. He noticed she had “numerous cuts and abrasions to her left hand, ” which he later reported were “severe.” Anderson determined Crystal’s injury “happened at some point during [the] traffic collision.” Quintero told Anderson that Crystal had been the passenger in the truck.
Anderson watched members of the fire department remove Samantha from the truck. After Samantha was transported to the hospital, Anderson spoke to her at which time he saw her eyes were bloodshot and watery, noticed “[h]er speech was slow, thick, and slurred, ” and smelled alcohol on her breath. The parties stipulated that Samantha’s blood alcohol level at the time of the accident was approximately 0.17 percent. The parties also stipulated Samantha’s medical reports showed she suffered neck injuries and contusions on her forehead and in her nose; she did not have any cuts. Samantha testified she did not remember being in the accident.
Anderson opined, based on his examination of the truck’s tire marks, that the truck drove off the side of the road and onto an embankment, rolled over, and landed on its roof. The damage to the truck was consistent with a rollover accident. The truck had no preexisting mechanical deficiencies that would have caused or contributed to the crash. Photographs of the interior of the truck showed blood stains on the driver’s side sun visor, the driver’s side airbag, the car stereo, the “upper left” driver’s side of the roof, a pillar of the truck, and the headlamp indicator. There was no blood on the passenger side airbag.
BACKGROUND
Four months before the accident, a juvenile delinquency petition was filed in the Orange County Juvenile Court, alleging Samantha committed misdemeanor second degree burglary in violation of Penal Code sections 459 and 460, subdivision (b) (the first petition). The juvenile court placed her on informal probation for a period not to exceed six months pursuant to Welfare and Institutions Code section 654.
Following the March 2009 accident, a juvenile delinquency petition was filed in the San Diego County Juvenile Court (the second petition), alleging that on March 7, Samantha drove a vehicle (1) “while under the influence of an alcoholic beverage, and in so doing committed an act forbidden by law, ” and “neglected a duty imposed by law which proximately caused bodily injury to another, in violation of VEHICLE CODE SECTION 23153[, subdivision ](a)” (count 1); and (2) with a blood alcohol level of 0.08 percent and more “and in so driving concurrently did an act forbidden by law” and “neglected a duty imposed by law which proximately caused bodily injury to another, in violation of VEHICLE CODE SECTION 23153[, subdivision ](b)” (count 2). The second petition alleged, as to both counts, Samantha committed “an act forbidden by law” by violating section 22350.
Section 22350 provides: “No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property.”
After Samantha admitted having committed count 2 of the second petition, the San Diego County Juvenile Court dismissed count 1 “in the interest of justice.” Because Samantha’s legal residence is located in Orange County, the court ordered the matter transferred to the Orange County Juvenile Court for disposition.
The Orange County Juvenile Court granted Samantha’s request to transfer the matter back to San Diego County Juvenile Court because she wished to withdraw her admission to count 2 of the second petition and present new evidence in her defense. The San Diego County Juvenile Court thereafter granted Samantha’s motion to withdraw her admission to count 2 and reinstated count 1 of the second petition.
Following a trial, the San Diego County Juvenile Court sustained the second petition after finding Samantha committed the offenses alleged in counts 1 and 2. The court thereafter ordered the case transferred back to the Orange County Juvenile Court for disposition.
Samantha admitted in the Orange County Juvenile Court to having committed second degree burglary in violation of Penal Code sections 459 and 460, subdivision (b), as alleged in the first petition. The Orange County Juvenile Court declared Samantha a ward of the court, ordered her committed “to juvenile hall or appropriate facility for 120 days, ” and placed her on probation. The court conditioned probation on Samantha’s completion of drinking driver programs under sections 23145 and 23154. Samantha appealed.
DISCUSSION
I.
Substantial Evidence Supported the Juvenile Court’s Findings.
Samantha contends the juvenile court erred by sustaining the second petition because insufficient evidence showed (1) Samantha was the driver of the truck at the time of the accident, (2) she either committed an act which violated the law or neglected a duty imposed by law while driving, and (3) the injuries to Crystal’s left hand were proximately caused by Samantha’s commission of an act which violated the law or constituted a neglect of a duty imposed by law. We address each argument in turn.
A.
Standard of Review
The same substantial evidence standard of review that is applicable in criminal cases is applicable in juvenile proceedings. (In re Roderick P. (1972) 7 Cal.3d 801, 809.) “In considering the sufficiency of the evidence in a juvenile proceeding, the appellate court ‘must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. We must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence [citation] and we must make all reasonable inferences that support the finding of the juvenile court. [Citation.]’” (In re Babak S. (1993) 18 Cal.App.4th 1077, 1088 1089; accord, People v. Thomas (1992) 2 Cal.4th 489, 514; People v. Barnes (1986) 42 Cal.3d 284, 303.)
B.
Substantial Evidence Showed Samantha Was the Driver of the Truck.
The following substantial evidence showed Samantha was the driver of the truck at the time of the accident: (1) shortly after the accident, Herrera saw Crystal get out of the truck through the passenger side door; (2) after Quintero had helped Crystal get out of the car, he told Anderson that Crystal had been the passenger in the truck; (3) about eight minutes after the accident, Anderson arrived at the scene and saw Crystal sitting on the side of the road and Samantha sitting in the driver’s seat of the upside down truck; (4) Anderson saw Samantha was wearing the driver’s side seatbelt which “was still engaged” and “holding her in place upside down”; and (5) Anderson watched members of the fire department remove Samantha from the truck.
In her opening brief, Samantha argues no reasonable trier of fact could have found that she had been driving at the time of the accident because Crystal was the only one who was cut and bleeding immediately following the accident and blood was found on the driver’s side of the interior of the truck, not on the passenger’s side airbag. The evidence shows, however, that only Crystal’s left hand was cut and bleeding at the time of accident. It is reasonable to infer that while Crystal was sitting as the passenger in the truck, her cut left hand touched Samantha (who had blood on her but did not suffer any cuts), the driver’s side sun visor, the driver’s side airbag, the interior roof above the driver’s head, and other parts of the truck’s interior that were located to her left. Crystal’s bleeding hand came in contact with these areas as the truck rolled. Contrary to Samantha’s argument, such evidence does not prove that it was impossible for Samantha to have been the driver.
In arguing the insufficiency of the evidence, Samantha also challenges Anderson’s credibility as a witness because of inconsistencies between a report he prepared and his trial testimony. In People v. Thompson (2010) 49 Cal.4th 79, 125, the California Supreme Court rejected the defendant’s argument insufficient evidence supported his conviction because of alleged inconsistencies between a witness’s testimony and other evidence presented at trial. The Supreme Court explained: “We reject defendant’s attempt to reargue the evidence on appeal and reiterate that ‘it is not a proper appellate function to reassess the credibility of the witnesses.’” (Ibid.)
Here, Anderson unequivocally testified that when he arrived at the scene of the accident, Samantha was strapped into the driver’s side seatbelt inside the truck and that Quintero had told him that Crystal had been the passenger in the truck. Anderson testified statements in his report suggesting Samantha had moved from the driver’s seat were incomplete and inaccurate due to “sloppy police work.” The juvenile court was in the best position to assess Anderson’s credibility and ultimately found that Samantha was the driver. As substantial evidence, discussed ante, supports that finding, we find no error.
C.
Substantial Evidence Showed Samantha Neglected a Duty Required By Law.
By sustaining the second petition, the juvenile court necessarily found Samantha, while driving, committed an act forbidden by law or neglected a duty imposed by law. (§ 23153, subds. (a), (b).) Section 23153, subdivision (c) provides: “In proving the person neglected any duty imposed by law in driving the vehicle, it is not necessary to prove that any specific section of this code was violated.” In People v. Weems (1997) 54 Cal.App.4th 854, 858, the appellate court explained that to prove a violation of section 23153, subdivision (a) or (b), “‘the evidence must show an unlawful act or neglect of duty in addition to driving under the influence.’ [Citation.] The unlawful act or omission ‘need not relate to any specific section of the Vehicle Code, but instead may be satisfied by the defendant’s ordinary negligence.’”
Substantial evidence supported the reasonable inference Samantha neglected a duty imposed by law by not exercising reasonable caution while driving. The evidence showed the truck had no preexisting mechanical deficiencies that contributed to the accident. Herrera’s account of the accident and Anderson’s analysis of the truck’s tire marks showed Samantha drove the truck off the road and onto an embankment, ultimately causing the truck to roll over.
In her opening brief, Samantha cites People v. Levens (1938) 28 Cal.App.2d 455, 459 (Levens), in which the appellate court found insufficient evidence supported the finding the defendant committed an act forbidden by law or neglected to perform a duty imposed by law. In Levens, the defendant, whose vehicle collided with an unlit automobile parked at a 45 degree angle, was driving while intoxicated. (Id. at pp. 457 458.) Uncontradicted eyewitness testimony showed the defendant’s driving was “‘[p]erfect, ’” he made all boulevard stops, and he drove carefully at a speed of 20 to 25 miles per hour. (Id. at p. 458.) The defendant claimed he was not accustomed to driving on streets where cars parked at an angle and he drove too close to the curb. (Ibid.)
Levens, supra, 28 Cal.App.2d 455 is distinguishable. Here, substantial evidence supported the reasonable inference Samantha failed to use reasonable care while driving because she drove the truck off the road and onto an embankment. Unlike Levens, no evidence was presented showing the presence of an obstacle in the road. Furthermore, in contrast to Levens, in which eyewitness testimony stated the defendant had been driving carefully and even “‘[p]erfect[ly]’” (id. at p. 458), no evidence was presented here, which rebutted the inference Samantha drove negligently under the circumstances of the case.
Because substantial evidence supported the finding Samantha neglected to perform a legal duty, we do not need to analyze whether substantial evidence also showed she committed an act forbidden by law, whether proscribed by section 22350 as alleged in the second petition or otherwise, within the meaning of section 23153, subdivisions (a) and (b).
D.
Substantial Evidence Showed Samantha’s Neglect of a Duty Proximately Caused Bodily Injury.
Substantial evidence showed that following the accident, Crystal’s left hand was injured; Samantha does not argue that Crystal’s injury failed to constitute “bodily injury” within the meaning of section 23153, subdivisions (a) and (b). Instead, Samantha contends insufficient evidence showed her commission of an act forbidden by law or neglect of a duty imposed by law had “proximately cause[d]” Crystal’s injury within the meaning of section 23153, subdivisions (a) and (b).
Substantial evidence showed that following the accident, when Crystal emerged from the truck, she was bleeding from severe cuts to her left hand. This supported the inference she had suffered the injuries as a result of the accident. In her opening brief, Samantha argues no reasonable trier of fact could have concluded Crystal’s injury was proximately caused by Samantha’s negligence during the accident because there is no direct evidence of what specifically had cut her hand. Samantha argues it is more likely Crystal cut her hand after the truck had come to a stop.
Substantial evidence, however, supported the finding Crystal’s hand was cut during the accident. Specifically, evidence showed there were blood stains on Samantha, the driver’s side sun visor, the driver’s side airbag, the car stereo, the interior roof above the driver’s seat, a pillar of the truck, and the headlamp indicator. The evidence was sufficient for the juvenile court to reasonably infer Crystal cut her hand during the accident, her bleeding hand swung around while the truck rolled, and, as a result, her blood was found on multiple areas of the truck’s interior and on Samantha. In addition, Anderson opined, based on his investigation of the accident, Crystal’s injury “happened at some point during [the] traffic collision.”
Because substantial evidence supported the juvenile court’s finding Samantha’s neglect of a duty proximately caused bodily injury to Crystal, we find no error.
II.
Samantha Did Not Receive Ineffective Assistance of Counsel.
Samantha argues she received constitutionally ineffective assistance of counsel because her trial attorney “failed to argue critical omissions of proof” and failed to request, pursuant to Welfare and Institutions Code section 702, that the juvenile court declare counts 1 and 2 to be misdemeanor offenses. For the reasons discussed post, Samantha has failed to show prejudicial error.
To prevail on a claim of ineffective assistance of counsel, Samantha must prove (1) her attorney’s representation was deficient in that it fell below an objective standard of reasonableness under prevailing professional standards; and (2) her attorney’s deficient representation subjected her to prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Cain (1995) 10 Cal.4th 1, 28.) Prejudice means a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington, supra, 466 U.S. at p. 694.) A reasonable probability means a “probability sufficient to undermine confidence in the outcome.” (Ibid.)
Samantha contends her trial counsel rendered constitutionally ineffective assistance by failing to argue at the time he moved to dismiss the second petition under Welfare and Institutions Code section 701.1 and during closing argument that the People failed to prove either that Samantha violated a law or neglected a legal duty, or that Crystal’s injury was proximately caused by such a violation of law or neglect of a legal duty under section 23153, subdivisions (a) and (b). The record shows that after cross examining the People’s witnesses, Samantha’s counsel moved to dismiss the second petition pursuant to Welfare and Institutions Code section 701.1, on the ground the People failed to produce evidence showing Samantha was the driver at the time of the accident; the motion was denied. During closing argument, Samantha’s counsel focused his argument on the same key factual issue in the case—whether Samantha was the driver—and, in so doing, pointed out inconsistencies in the evidence. Her attorney’s decision not to specifically argue the other elements of the alleged offenses would serve the rational tactical purpose of focusing on Samantha’s strongest argument. (People v. Lucas (1995) 12 Cal.4th 415, 442 [the first prong of the Strickland v. Washington standard is met only “if the record on appeal demonstrates there could be no rational tactical purpose for counsel’s omissions”]; see People v. Diggs (1986) 177 Cal.App.3d 958, 970 [“Closing argument may be waived in an appropriate case as a matter of tactics”].) The evidence supporting the findings on those elements showing the truck was negligently driven off the road and such negligence proximately caused the truck’s passenger bodily injury was not only substantial, as discussed ante, but it was uncontradicted. Hence, Samantha’s counsel’s decision not to argue the state of the evidence as to those elements could have reasonably been designed to achieve credibility with the juvenile court in the presentation of Samantha’s strongest argument. Samantha’s counsel’s tactical decision did not constitute deficient representation.
In her reply brief, Samantha cites People v. Lang (1974) 11 Cal.3d 134 and People v. Rhoden (1972) 6 Cal.3d 519, in support of her contention her trial counsel’s representation was constitutionally ineffective. Both cases are inapplicable. In each case, the Supreme Court concluded appellate counsel was ineffective by failing to raise certain issues on appeal. (People v. Lang, supra, at p. 136; People v. Rhoden, supra, at pp. 525 529.)
Samantha also contends her counsel was ineffective because he failed to request that the juvenile court declare the offenses alleged in the second petition to be misdemeanors instead of felonies, pursuant to Welfare and Institutions Code section 702, which provides in part: “If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony.” We do not need to decide whether counsel’s failure to make such a request constituted deficient representation because, in light of the seriousness of the circumstances surrounding the alleged offenses, there is no reasonable probability the result of the proceeding would have been different. (Strickland v. Washington, supra, 466 U.S. at p. 694.)
As discussed ante, Samantha had a blood alcohol level of over twice the legal limit for an adult when she drove the truck, with Crystal in the passenger seat, off a road and onto an embankment where the truck rolled over and came to rest upside down; Crystal suffered serious cuts on her hand as a result of Samantha’s conduct. Because it is not reasonably probable under those circumstances that the juvenile court would have declared the alleged offenses, which constitute felonies under the Vehicle Code, to be misdemeanors pursuant to Welfare and Institutions Code section 702, Samantha’s ineffective assistance of counsel claim fails.
DISPOSITION
The orders are affirmed.
WE CONCUR: MOORE, ACTING P. J., IKOLA, J.