Opinion
B323582
08-09-2023
THE PEOPLE, Plaintiff and Respondent, v. ANDREW TIBBS, Defendant and Appellant.
NOT TO BE PUBLISHED
(Los Angeles County Super. Ct. No. TA157039)
THE COURT:[*]
Defendant and appellant Andrew Tibbs (defendant) appeals following his conviction of carjacking. After reviewing the record and finding no arguable issues, appointed counsel filed an opening brief asking this court to review the record independently pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). After defendant was notified of his counsel's brief he filed a letter asserting error in the exclusion of medical evidence to show he lacked specific intent. Finding no error or other arguable issues, we affirm the judgment.
BACKGROUND
In June 2022 defendant was charged with carjacking, in violation of Penal Code section 215, subdivision (a). The information also alleged sentencing factors in aggravation set forth in California Rules of Court, rule 4.421. After a jury trial defendant was convicted as charged, and the jury found true the aggravating factor of rule 4.421(b)(1), that defendant had engaged in violent conduct presenting a serious danger to society. On September 14, 2022, the trial court sentenced defendant to the middle term of five years, with 233 days of total custody credit. Defendant filed a timely notice of appeal.
All further unattributed code sections are to the Penal Code unless otherwise stated.
See generally, section 1170, subdivision (b)(2); People v. Pantaleon (2023) 89 Cal.App.5th 932, 937, review denied (June 14, 2023, S279595).
Our review of the record shows that on March 23, 2022, at around 11:00 a.m., Vitalina Ortiz Morales (Ortiz) was driving alone in her Toyota Tacoma truck in the right lane on four-lane Broadway Street near 103rd Street when a man, later identified as defendant, stepped out and placed a traffic cone in her way. As she tried to pass the cone he stepped in front of her truck and again put the cone in her way. Ortiz stopped, and defendant reached into the partly open passenger side window, opened the window all the way, and entered the front seat through the window. He then held her by her ponytail, hit her, and pushed her toward the driver's side door. Ortiz managed to open the door and hung there, restrained by her seat belt, until she slipped her head out and she fell to the ground. Defendant then drove away in Ortiz's truck. Ortiz called the police. She was frightened during the ordeal and thought defendant was going to kill her. Surveillance video obtained from two cameras at a nearby marketplace showed the action from two angles, from when defendant stepped into the street until he drove away.
Defendant drove about two blocks before he crashed and damaged the truck. He was soon arrested.
In his defense, defendant presented the testimony of emergency physician Ryan O'Connor, M.D. concerning the effects of the dissociative anesthetic PCP on human body, such as delusions, bizarre thoughts, confusion, paranoia, anxiety and auditory hallucinations, depending on the dosage. In higher doses it can lead to psychosis, violent behavior, and self-harm.
The defense also presented a page from a medical report from St. Francis Medical Center dated March 23, 2022, showing defendant's urine test that day was positive for PCP. On crossexamination, Dr. O'Connor testified that urine tests can have false positives, particularly when certain other drugs such as Benadryl are in the system, and therefore urine tests are usually followed-up with a confirmatory blood test which is presumptive. Also, he testified that screening tests do not show the quantity or time PCP was taken. The prosecution produced another page from the St. Francis medical report that indicated there had been an order for injectable Benadryl, that was not performed and the order was discontinued.
DISCUSSION
In a letter filed May 16, 2023, defendant asserted the court erred in excluding as irrelevant, medical evidence that would have shown a lack of specific intent. In essence defendant stated he had not yet found case law or the necessary facts in the record. As defendant's letter appeared to request additional time for legal research, we granted an additional 30 days to prepare. That time has elapsed, and defendant has submitted no additional brief or letter. We have reviewed the trial record for any arguable issues, and we also consider defendant's contention the trial court erroneously excluded relevant medical evidence to show he lacked specific intent.
"Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) As defendant has not indicated or described the medical evidence regarding specific intent that the trial court found irrelevant, we are unable to determine whether it was or was not admissible.
Not all medical evidence was excluded at defendant's trial, and defense medical evidence relating to specific intent was admitted. Dr. O'Connor testified concerning the effects of PCP on human body and mind, as well as defendant's positive toxicology screen for PCP, but defendant's medical records did not contain enough information to determine his PCP level at the time of the crime. While evidence of voluntary ingestion of any intoxicating drug is admissible on the issue of specific intent, Dr. O'Connor was prohibited by law from testifying that the drug actually negated defendant's capacity to form specific intent. (See § 29.4; see generally People v. Rangel (1992) 11 Cal.App.4th 291, 300-303.) Regardless, the jury was instructed with CALCRIM No. 3426 regarding voluntary intoxication.
The trial court read the instruction as follows: You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with intent to temporarily or permanently deprive the owner of her vehicle. [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect. [¶] In connection with the charge of carjacking, the People have the burden of proving beyond a reasonable doubt that the defendant acted with the intent to temporarily or permanently deprive the other person of possession of the vehicle. If the People have not met this burden, you must find the defendant not guilty of carjacking. [¶] You may not consider evidence of voluntary intoxication for any other purpose."
We have examined the entire record and are satisfied that defendant's appellate counsel has fully complied with his responsibilities and that no arguable issue exists. We conclude that defendant has, by virtue of counsel's compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 123-124.)
The judgment is affirmed.
[*]LUI, P. J. ASHMANN-GERST, J. CHAVEZ, J.