Opinion
G044520 G045845
01-04-2012
THE PEOPLE, Plaintiff and Respondent, v. ANGEL HERRERA LEAL, Defendant and Appellant. In re ANGEL HERRERA LEAL on habeas corpus.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant; Angel Herrera Leal, in pro. per., on petition for writ of habeas corpus. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 08NF4162)
OPINION
Appeal from a judgment of the Superior Court of Orange County, James Edward Rogan, Judge. Judgment affirmed. Petition for writ of habeas corpus denied.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant; Angel Herrera Leal, in pro. per., on petition for writ of habeas corpus.
No appearance for Plaintiff and Respondent.
An information charged defendant Angel Herrera Leal with one count each of murder (Pen. Code, § 187, subd. (a)) and misdemeanor driving on a suspended license (Veh. Code, § 14601.1, subd. (a)). Defendant pleaded guilty to the suspended license charge and was sentenced to his time served of 365 days in the Orange County jail. The murder charge was tried to a jury, which found defendant guilty of second degree murder. The court sentenced defendant to a prison term of 15 years to life.
All undesignated statutory references are to the Penal Code.
Defendant filed a notice of appeal, and we appointed counsel to represent him. Counsel did not argue against defendant, but advised the court she was unable to find an issue to argue on defendant's behalf. Defendant was given 30 days to file written argument in his own behalf. Defendant filed a supplemental brief together with a petition for writ of habeas corpus. We consolidated the habeas petition with the direct appeal.
We have examined the record and have not found an arguable issue. (People v. Wende (1979) 25 Cal.3d 436.) The writ petition is likewise without merit. Accordingly, we affirm the judgment and summarily deny the petition for writ of habeas corpus.
FACTS
While watching television in his home, defendant began drinking Tequila around 9:00 p.m. He recalled drinking five glasses of Tequila with five lime slices. Around 1:00 or 1:30 the next morning, he remembered he had agreed to do a favor for a friend by picking up some individuals and driving them to his friend's residence. Defendant took his pickup truck and entered the southbound Interstate-5 (I-5) freeway in Los Angeles. He was to exit the freeway at 17th Street (presumably in Santa Ana) and call his friend for further directions. In a subsequent interview with a California Highway Patrol (CHP) officer, defendant stated he was driving along, when suddenly he woke up as he was being extricated from his vehicle after his seat belt was cut away. Later in the interview, defendant recalled realizing at some point he was going the wrong way on the freeway, and seeing opposing vehicles pass him on both sides.
In fact, defendant had somehow ended up travelling northbound in the southbound lanes of the I-5 freeway. Several witnesses testified to their frightening experiences of travelling southbound on the I-5 at 4:45 that morning and being suddenly confronted with oncoming headlights on their side of the freeway. Several of those drivers used their cellphones to call 911 to report the wrongway driver. Southbound driver Dustin Hicks saw the wrongway driver collide with a green Toyota sedan some 80 to 100 feet ahead of him, causing the Hicks vehicle to spin out of control as Hicks attempted to avoid the flying debris.
CHP officers responding to the scene found the passenger in the crashed sedan "obviously deceased." When the officer approached defendant's crashed pickup truck, defendant was unconscious, but the officer noted "there was a strong odor of alcohol coming from the vehicle," and "the odor of alcohol" on defendant. Defendant regained consciousness after the ambulance arrived and he was transported to the hospital. CHP Officer Charity Hartzell had been assigned by her sergeant at the scene to be the investigating officer. In that capacity, Hartzell rode in the ambulance with defendant on the way to the hospital. When Hartzell entered the ambulance with defendant, she detected a strong odor of alcohol. Medical personnel were treating defendant, so Hartzell could not conduct her "D.U.I. investigation in the ambulance to the full extent that she would normally try to do." But she did administer a horizontal gaze nystagmus test. Defendant could not perform that test. Hartzell then "brought out a preliminary alcohol screening test or a P.A.S. device, to see if [she] could get a sample of [defendant's] blood alcohol . . . through his breath." Defendant was unable to close his lips around the mouthpiece of the device. Hartzell then used the "manual option" on the device to capture defendant's "heavy breath out" and the device gave a blood alcohol concentration reading of 0.29 percent. A blood sample taken at the hospital almost two hours later showed a blood alcohol concentration of 0.23 percent.
A later inspection of defendant's truck did not reveal any mechanical defects, but the inspector found a nearly empty open 750-milliliter bottle of Tequilla under the front passenger seat. About one-eighth of an inch of liquid was in the bottle.
Defendant had suffered drunk driving convictions in 2005 and 2007. As a consequence of his 2005 conviction, defendant was required to attend a course that taught, inter alia, the dangers of driving while under the influence, and specifically, that a person may be charged with murder if they drive under the influence and cause a crash in which another person is killed. Defendant successfully completed that program on March 3, 2006. As a consequence of his 2007 conviction, defendant was required to attend a second offender course that also taught the dangers of drunk driving and that persons driving drunk and causing death can be charged with murder and "get up to 15 to life." The potential for being charged with murder is "mentioned . . . during every class[. The instructor] constantly repeat[s] it . . . over and over . . . ." Defendant attended this program from March 26, 2007 through September 29, 2008, missing only one class in 18 months. The current offense occurred on December 27, 2008, only three months after completion of the second offender program.
DISCUSSION
Counsel's Suggestions
To assist the court in conducting its independent review, and pursuant to Anders v. California (1967) 386 U.S. 738, counsel has suggested we consider two potentially arguable issues.
First, counsel suggests we review whether the court erred in allowing evidence of the result of the preliminary alcohol screening breath test (PAS), despite the officer's failure to follow the "correct" procedures for administering the test. Presumably, the "correct" procedures to which counsel refers are those set out in title 17 of the California Code of Regulations (title 17). As required by title 17, the officer had failed to observe defendant for 15 minutes before conducting the test (to check for burping or regurgitation), and had failed to do a second test. The officer explained that she could not conduct the test normally because of the exigent circumstances; defendant was being transported in an ambulance and was also being treated by medical personnel.
In People v. Williams (2002) 28 Cal.4th 408, the California Supreme Court reaffirmed the rule, enunciated in People v. Adams (1976) 59 Cal.App.3d 559, 567, that "[c]ompliance with regulations is sufficient to support admission [of a PAS test], but not necessary. Noncompliance goes only to the weight of the evidence, not its admissibility." (Williams, at p. 414.) PAS breath tests "are admissible upon a showing of either compliance with title 17 or the foundational elements of (1) properly functioning equipment, (2) a properly administered test, and (3) a qualified operator . . . ." (Id. at p. 417, italics added.) Here, the three foundational elements specified in Williams were satisfied. In an Evidence Code section 402 hearing, a CHP officer, certified and assigned as a "P.A.S. Coordinator," testified that the device used to collect defendant's breath was tested both the day before the crash and five days after the crash and the device passed the accuracy check on both occasions. The officer who took the breath sample from defendant testified to the circumstances requiring the use of the "option for a manual sample." No evidence was submitted suggesting that the use of the "option for a manual sample" was necessarily inaccurate. And the officer who administered the test had been certified in the use of the PAS device by the CHP academy. Under Williams, the foundation for receipt of the PAS result in evidence was satisfied. And even if it were not, any error was harmless in light of the subsequent blood sample showing defendant's blood alcohol concentration of 0.23 percent. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Second, counsel suggests we consider whether it was error to preclude the jury from considering the evidence of voluntary intoxication as negating the element of implied malice. It was not. Section 22, subdivision (a) provides: "Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act." (Italics added.) Section 22, subdivision (b) provides: "Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually informed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought." (Italics added.) Reviewing the language of section 22, the court in People v. Martin (2000) 78 Cal.App.4th 1107, 1114, noted: "It is clear that the effect of the 1995 amendment to section 22 was to preclude evidence of voluntary intoxication to negate implied malice aforethought." The Martin court also held section 22 was constitutional; it did not deprive a drunk-driving, implied malice murder defendant of his right to due process of law. The court concluded there is "nothing in [section 22] that deprives a defendant of the ability to present a defense or relieves the People of their burden to prove every element of the crime charged beyond a reasonable doubt, including, in this case, knowledge." (Martin, at p. 117.) We agree.
Defendant's Arguments
In his supplemental brief, defendant raises six issues. As we shall explain, none are meritorious.
First, defendant contends that CALCRIM No. 520, as read to the jury, was inaccurate. CALCRIM No. 520 is the standard instruction used to define the crime of murder. It sets forth the definitions of both express malice and implied malice. The instruction as read to the jury omitted from the standard CALCRIM No. 520 instruction the explanation that "[t]here are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder." The court also omitted the following standard definition of express malice: "The defendant acted with express malice if (he/she) unlawfully intended to kill." (CALCRIM No. 520.) But defendant does not explain how this omission prejudiced him. The People proceeded entirely on the theory of implied malice murder. Thus, the definition of express malice, and the fact that the law distinguishes between express malice and implied malice, were matters not in issue. We fail to see how the court's modification of the standard instruction constituted error, and it surely did not prejudice defendant.
Second, defendant argues the court erred when it prohibited him from presenting evidence that the decedent was not wearing a seat belt, and that the driver of decedent's vehicle was under the influence of alcohol. The court did not err. "'"There may be more than one proximate cause of the death. When the conduct of two or more persons contributes concurrently as the proximate cause of the death, the conduct of each is a proximate cause of the death if that conduct was also a substantial factor contributing to the result. A cause is concurrent if it was operative at the time of the death and acted with another cause to produce the death."'" (People v. Sanchez (2001) 26 Cal.4th 834, 847.) Assuming the driver of the decedent's vehicle was impaired and the decedent was not wearing a seat belt, these facts would, at most, establish a concurrent cause of the death. Defendant's driving on the wrong side of the freeway while under the influence of alcohol was also a substantial factor in causing the death. "Facts attacking legal causation are only relevant if the defendant's act was not a substantial factor in producing the harm or injurious situation. [Citation.] The defendant is liable for a crime irrespective of other concurrent causes contributing to the harm . . . ." (People v. Wattier (1996) 51 Cal.App.4th 948, 953.) "In criminal prosecutions, the contributing negligence of the victim or a third party does not relieve the criminal actor of liability, unless the victim's or third party's conduct was the sole or superseding cause of the death." (People v. Autry (1995) 37 Cal.App.4th 351, 360.) Here, the victim's and third party's conduct were clearly not the sole or superseding causes of death.
Third, defendant contends the court erred when it refused to instruct the jury on involuntary manslaughter as a lesser included offense of second degree murder. The court did not err. As the court explained when declining to instruct, vehicular manslaughter (§ 192, subd. (c)) and gross vehicular manslaughter (§ 191.5) are not lesser included offenses of murder because both crimes have elements that are not elements of second degree murder, viz., driving a vehicle and intoxication. (See, e.g., People v. Sanchez (2001) 24 Cal.4th 983, 992, overruled on a different point in People v. Reed (2006) 38 Cal.4th 1224, 1228 ["under the general California standard for determining greater and lesser included offenses, gross vehicular manslaughter while intoxicated should not be treated as a lesser included offense of murder"].) And section 192, subdivision (b), the more general involuntary manslaughter statute provides expressly that it does "not apply to acts committed in the driving of a vehicle."
Fourth, defendant complains he was denied his constitutional right to counsel, because the police interviewed him while he was intoxicated and also medicated while in the emergency room of the hospital. The record does not support defendant's argument. Defendant was interviewed twice by a CHP officer. The first interview was conducted in the emergency room of the hospital, some two hours after the crash. The officer, who was a certified Spanish translator for the CHP, and who also was trained as an emergency medical technician, ascertained that defendant was able to give his name and was oriented to time and place. Next, the officer advised defendant in Spanish of his Miranda rights. Defendant stated he understood each of the Miranda advisements. After giving the advisement, the officer asked defendant whether he wished to continue talking. Defendant said, "'I already messed up. Why not?'" But after 10 or 15 minutes, defendant "just turned away to his left and ceased talking." The same officer interviewed defendant again, this time about 18 hours later at the Orange County jail. The officer once again determined that defendant was oriented in time and place and again advised defendant of his Miranda rights. Defendant was again asked whether he was willing to speak with the officers, and he stated, "Yes, I want to be cooperative with all of you." There is no evidence suggesting that defendant's statements to the officers during either of the two interviews were involuntary, nor is there any evidence that defendant was not lucid, with his mental faculties intact, during the interviews.
Defendant's fifth argument borders on the incomprehensible. The nearest we are able to discern, the argument appears to be similar to counsel's second suggested issue, i.e., whether evidence of voluntary intoxication can negate the element of implied malice. If that is defendant's argument, it has been answered above. To the extent defendant is arguing the evidence is insufficient to support a conviction for second degree murder, the facts in evidence, as outlined above, plainly supports his conviction.
Finally, defendant makes a Fourth Amendment challenge to the admission of the PAS breath test, arguing: "The only reason [the CHP officer] was able to obtain the breath sample was that the defendant was already in such a chronic alcoholic state of mind, plus after having the airbag implode in his face, he was not able to comprehend to any questions on the night of the accident." The administration of field sobriety tests upon detention of a driver suspected of being under the influence, for the purpose of determining whether probable cause exists to arrest, is merely a reasonable investigation, not an unreasonable search or seizure in violation of the Fourth Amendment. (People v. Bennett (1983) 139 Cal.App.3d 767, 770-771.) And a PAS test "'is simply another form of field sobriety testing[;] . . . [it is] no more intrusive than to ask [a suspect] to walk a straight line or perform other physical and verbal coordination tests.'" (People v. Bury (1996) 41 Cal.App.4th 1194, 1204; Veh. Code, § 23612, subd. (h) ["A preliminary alcohol screening test . . . is a field sobriety test and may be used by an officer as a further investigative tool"].) "In a day when excessive loss of life and property is caused by inebriated drivers, an imperative need exists for a fair, efficient, and accurate system of detection, enforcement and, hence, prevention." "A wrongful refusal to cooperate with law enforcement officers does not qualify for such protection. A refusal that might operate to suppress evidence of intoxication, which disappears rapidly with the passage of time [citation], should not be encouraged as a device to escape prosecution." (People v. Sudduth (1966) 65 Cal.2d 543, 546.) There was no Fourth Amendment violation.
We have independently reviewed the record on appeal and conclude that defendant's appellate counsel was correct in her evaluation of that record. There are no arguable issues which, if resolved favorably to defendant, would result in a reversal or modification of the judgment.
Defendant's Habeas Petition
In defendant's consolidated petition for writ of habeas corpus, he makes various conclusory allegations. He contends that his trial counsel was ineffective because counsel "failed to request a [c]hange of [v]enue . . . ." Also, somewhat incomprehensibly, defendant contends: "Defense counsel['s] decision was tainted by Dwayne Beckner, a Forensic Chemist, its expert opinion while the prosecution expert discredited every aspect of his direct examination of the problem relating to the PAS test and possible contamination." As best we can tell, defendant is complaining that it was a mistake for counsel to have called Beckner as a witness because the prosecution successfully discredited him. Defendant further contends his trial counsel should "have asked for a continuation until its witness a Forensic Alcohol Expert, Daryl Clardy was made available." Defendant also asserts his counsel was ineffective for failing "adequately" to raise a Fourth Amendment claim. Finally, defendant complains that his trial counsel failed to interview witnesses who would have testified that defendant was trying to exit the highway, and failed to consult with or retain any expert witness "to testify in regards to the effect that petitioner's alcoholic psychosis would likely have mitigated the jury's finding of murder," or to consult with "an accident reconstruction expert," and that counsel "never argued in closing any alcoholic disease that effected [sic] the mind at the time of the accident."
Beckner was an expert called as a defense witness. He gave opinions regarding the reliability of the PAS test and possible sample contamination. The prosecution called a forensic scientist to rebut the opinions offered by Beckner.
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"To satisfy the initial burden of pleading adequate grounds for relief, an application for habeas corpus must be made by petition . . . . [Citation.] The petition should both (i) state fully and with particularity the facts on which relief is sought [citations], as well as (ii) include copies of reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits or declarations. [Citation.] 'Conclusory allegations made without any explanation of the basis for the allegations do not warrant relief, let alone an evidentiary hearing.' [Citation.] We presume the regularity of proceedings that resulted in a final judgment . . . ." (People v. Duvall (1995) 9 Cal.4th 464, 474-475.)
Defendant has not met this burden. To the extent his claims can be evaluated based on the appellate record on his direct appeal, our independent examination of that record has not revealed an arguable issue, much less an issue on which habeas relief would be warranted. And to the extent defendant relies on off-record matters, he fails to present any evidence or argument beyond his bare conclusory allegations. Accordingly, defendant's habeas petition is summarily denied.
DISPOSITION
The judgment is affirmed. The petition for writ of habeas corpus is denied.
IKOLA, J. WE CONCUR: O'LEARY, ACTING P. J. ARONSON, J.