Opinion
A155461
04-14-2020
THE PEOPLE, Plaintiff and Respondent, v. AMERICA MARTINEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Del Norte County Super. Ct. No. CRTR173342)
A jury found defendant America Martinez guilty of bringing alcohol into a state prison. (Pen. Code, § 4573.5.) The sole issue on appeal is whether Martinez's trial counsel was ineffective for not requesting a jury instruction on voluntary intoxication. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The parties agree the following facts were shown at trial.
Martinez was a correctional officer at Pelican Bay State Prison. She worked as a control booth operator for the C-unit. This meant she was responsible for opening and closing the various doors within the unit. On October 31, 2017, Martinez arrived for her shift at 2:20 p.m., 20 minutes late.
Around 6:50 p.m., there was an accidental door opening in her unit while an inmate was outside of his cell. Although no one was harmed by this error, Officer Jeffrey Stout asked Martinez and other witnessing officers to write a report on the incident.
Stout left Martinez to write her report, but after 15 minutes he noticed she had not written anything. Stout did not smell alcohol, but Martinez appeared to be intoxicated. Witnesses observed that Martinez's speech was slurred, she seemed to have difficulty walking, and she was swaying or swinging back and forth.
The watch commander that night was Officer James Harlan. He met with Martinez and told her she was suspected of being intoxicated. Harlan had Martinez's belongings collected from the control booth. When Martinez's backpack was brought to Harlan, it smelled of alcohol. Martinez acknowledged the backpack was hers and gave Harlan permission to search it. In the backpack was a Gatorade bottle and a water bottle. The Gatorade bottle contained a brownish liquid that smelled like whisky. At first, Martinez said the Gatorade bottle contained Gatorade, but when Harlan asked if it was alcohol, she agreed it was.
Testing confirmed the liquid in the Gatorade bottle contained alcohol.
Martinez was taken to a testing facility to test her blood alcohol content (BAC). The first test showed a BAC of .18 and a test taken 15 minutes later showed a BAC of .19. Martinez was then taken home.
The tests were administered at 9:57 p.m. and 10:13 p.m.
Around 11:30 p.m., a prison officer saw Martinez driving toward the prison. The officer was aware of the earlier door-opening incident and suspicion that Martinez was intoxicated, and he called the California Highway Patrol (CHP). A CHP officer responded and spoke with Martinez. Martinez admitted that she drank one shot of alcohol around noon. The CHP officer administered breath tests, which showed she had a BAC of at least .15.
DISCUSSION
Martinez contends her trial counsel was ineffective "because he presented the defense of voluntary intoxication, but did not request that the jury be instructed on that defense." We reject this contention because we are not persuaded that, as a factual matter, trial counsel "presented the defense of voluntary intoxication."
Preliminarily, we recognize that evidence of voluntary intoxication may be admissible as relevant "to negate an element of the crime which must be proven by the prosecution." (People v. Reyes (1997) 52 Cal.App.4th 975, 982.) We further accept the premise that a trial court should instruct on voluntary intoxication if requested when there is evidence supportive of the theory, but the court has no sua sponte duty to give such an instruction. (People v. Saille (1991) 54 Cal.3d 1103, 1119.)
In People v. Reyes, the crime at issue was receiving stolen property, which requires knowledge that the property was stolen. (52 Cal.App.4th at p. 984.) The defendant testified he was intoxicated at the time he was found with stolen property. (Id. at p. 985.) But the trial court disallowed the defendant's proffered expert testimony on his voluntary intoxication and mental disorders. (Id. at p. 981.) The Court of Appeal concluded the trial court erred in precluding the defendant's proffered evidence, which "unfairly denied him the opportunity to prove he lacked the requisite knowledge." (Id. at p. 986.) --------
Here, Martinez was charged with bringing alcohol into a prison in violation of Penal Code section 4573.5. This offense requires that the perpetrator "knowingly bring[ ]" an alcoholic beverage or other drug into a prison or other facility where inmates are located. (Pen. Code, § 4573.5.) It is possible a defendant found in a prison with a bottle of alcohol in her backpack could argue she was not guilty of the offense because she lacked the requisite knowledge on account of voluntary intoxication. But we do not think that was Martinez's defense theory in this case. Her trial counsel certainly argued to the jury that the prosecution failed to prove the element of knowledge, but he did not specifically argue that Martinez's voluntary intoxication negated the element of knowledge.
To understand the actual theory of the defense in this case, we have to review the prosecution's case. Its theory was that the circumstantial evidence, including Martinez's intoxicated state four-and-a-half hours into her shift (which, in turn, suggested she was drinking on the job), showed Martinez knowingly brought alcohol into the prison.
As part of its case-in-chief, the prosecution called criminologist Kristina Rosenfeld to testify on forensic alcohol analysis. Rosenfeld testified that as blood-alcohol level rises, the first signs of impairment are mental; alcohol is "going to affect reasoning, judgment, risk taking, and divided attention." She continued, "The physical signs come later as the alcohol level continues to increase. And that's when you will start seeing things like red, watery eyes, slurred speech, loss of coordination, . . . stumbling around . . . ." Rosenfeld explained that a person typically reaches "peak alcohol level about half an hour after finishing the last drink." She also explained "burn-off rate," the rate at which alcohol is eliminated from the body. "[A]fter somebody reaches their peak and they stop drinking," she testified, "then their alcohol level is going to continuously and steadily decrease as the liver is metabolizing and breaking down that alcohol."
Using Martinez's test results of her BAC levels at around 10:00 p.m. and again after 12:30 a.m. (the time of the CHP tests) and assuming Martinez had stopped drinking alcohol at 1:00 p.m., Rosenfeld estimated Martinez's alcohol level would have been .3 percent at 2:00 p.m. She estimated a woman weighing 150 pounds would have to drink 10 shots to have a blood-alcohol level of .3 at 2:00 p.m.
The clear import of Rosenfeld's testimony was that it was highly improbable that Martinez could have stopped drinking, then driven to work and functioned at her job without being noticeably drunk for four-and-a-half hours if her blood-alcohol level were that high, and that a more likely explanation for her physical signs of intoxication after 7:00 p.m. (appearing drunk, slurred speech, swaying) and her .18 BAC test result at 10:00 p.m. was that Martinez continued drinking alcohol while she was at work. And if she was drinking alcohol on the job, then Martinez obviously knew she had alcohol, which she brought into the prison in her backpack disguised as Gatorade.
Put simply, the evidence of Martinez's voluntary intoxication was presented by the prosecution to support the inference that Martinez must have known she was bringing alcohol into the prison when she arrived at work because she later drank that alcohol during her shift. In her closing argument, the prosecutor acknowledged the case boiled down to the question of knowledge. She told the jury, "Did she know she brought [the alcohol] onto prison grounds. You can't get into her head. I can't get into her head. So I have to prove that she knew that she was bringing alcohol onto the prison grounds, based on all the testimony and all the evidence that's been presented here." The prosecutor then went through the circumstantial evidence suggesting Martinez's knowledge. She noted the Gatorade bottle was not full. "Who drank it? If she drank it, she knew it was there." The prosecutor also reminded the jury that Martinez initially lied that the bottle contained Gatorade, showing consciousness of guilt. She argued, "In order to drink at work, you're bringing the alcohol in for the purpose of drinking."
In response to the prosecution's evidence, defense counsel tried to show that it was possible Martinez simply arrived at work intoxicated and did not drink during her shift. Martinez's counsel asked Rosenfeld whether her calculations "eliminate the possibility, the reasonable possibility, that someone showed up to work at 2:00 or 2:30 really drunk?" Rosenfeld answered, no. Implicit in counsel's question was the suggestion that Martinez did not drink alcohol at work, and if that were the case, then she did not necessarily know there was alcohol in the backpack she brought to work.
In his closing, Martinez's counsel argued the prosecution failed to meet its burden of proving knowledge. He pointed out there was no direct evidence of knowledge: no witness saw Martinez pack the alcohol in her backpack before work nor did anyone see her drink alcohol at work. He emphasized that Martinez was never asked whether she had been drinking at work during the investigation of the door-opening incident. And he suggested that if Martinez had known about the alcohol in her backpack, she could have dumped it out in the bathroom right after the door-opening incident to avoid detection. "Did she do that? No. It's in her backpack. Why? Is it because she didn't know about it? Certainly that's a reasonable possibility. And that's the problem with the people's case. They have not eliminated the reasonable possibilities." He concluded, "Any person, just from our common experiences understands people forget things. People make mistakes even in clear circumstances."
Thus, it is not the case that defense counsel presented evidence of Martinez's voluntary intoxication, argued she did not have the requisite knowledge because of her intoxication, and then inexplicably failed to request a pinpoint instruction on voluntary intoxication. Rather, it was the prosecution that presented evidence of Martinez's voluntary intoxication to show she was drinking on the job, and therefore she must have been aware of the alcohol in her backpack when she brought it into the prison. Martinez's counsel did not claim Martinez's voluntary intoxication negated the element of knowledge; he merely argued the prosecution failed to prove the element of knowledge beyond a reasonable doubt.
"When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance. It is particularly difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (People v. Mai (2013) 57 Cal.4th 986, 1009.)
Here, the record does not show defense counsel was asked why he did not request a pinpoint instruction on voluntary intoxication. We have reviewed the trial transcripts, including closing arguments, and find that defense counsel did not present "the defense of voluntary intoxication" as now asserted by Martinez. On this record, we cannot say defense counsel was ineffective in not requesting a jury instruction on voluntary intoxication.
DISPOSITION
The judgment is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Richman, Acting P.J. /s/_________
Stewart, J.