Opinion
NOT TO BE PUBLISHED
APPEAL from a Judgment of the Superior Court of Los Angeles County No. KA079759. Mike Camacho, Judge.
Alan Stern, under appointment by the Court of Appeal for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Defendant Bryant M. Avila appeals his convictions of one count of vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)); one count of driving under the influence causing injury (Veh. Code, § 23153, subd. (a)); and one count of driving with a blood alcohol level of.08 percent causing injury (Veh. Code, § 23153, subd. (b)), with true findings that defendant had a blood alcohol content of greater than.15 percent within the meaning of Vehicle Code section 23578; defendant personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (b); and defendant proximately caused bodily injury and death to two victims (Veh. Code, § 23558). He argues his counsel was ineffective for failing to object to an adoptive admission instruction given at trial. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On July 6, 2007, defendant, who had a blood alcohol content in excess of.20 percent, rear ended another car while traveling more than 80 miles an hour. Defendant severely injured the driver of the car, killed the driver’s mother who was a passenger, and seriously injured the driver’s two children in the back seat. Defendant’s theory at trial was mistaken identity – he claimed his passenger in the truck was actually the driver.
A. Prosecution Case.
Scott Jones was driving with his wife eastbound on Gladstone Street in San Dimas about an hour before sunset on July 6, 2007. He was approaching a set of railroad tracks that cross Gladstone Street when he saw a truck traveling westbound on Gladstone Street going approximately 100 miles an hour. The truck hit the railroad tracks and flew into the air. Jones could see the driver, and he later identified him as defendant, both at trial and to police at the time of the accident. Jones made a U-turn and saw that the truck had hit a white car that was traveling westbound. He asked his wife to call 911. Jones saw defendant get out of the truck, and saw that the passenger in the truck was trying to pull a little girl out of the car. Jones yelled at him to leave the people in the car alone because it was not on fire, and he was afraid they would be further injured. Jones’s wife got out of the car and walked over to where the victims had been placed on the sidewalk. The little boy was crying and the little girl was drifting in and out of consciousness. She did not see anyone get out of the truck.
Deputy Matthew Bodell responded to the scene. Defendant was seated in the back of a sheriff’s vehicle, and Deputy Bodell asked him to step out so he could determine whether defendant was under the influence of alcohol. Deputy Bodell could smell alcohol, and observed that defendant’s gait was uncoordinated. When Deputy Bodell spoke to defendant about field sobriety tests, defendant became very argumentative, refused to answer, and kept looking around. Defendant agreed to blow into a preliminary alcohol screening device, which showed a blood alcohol content of.22 percent. Deputy Bodell again asked defendant to perform a field sobriety test, but defendant would not answer. Deputy Bodell videotaped his questioning of defendant to document his responses.
The video was played for the jury. In the tape, Deputy Bodell told defendant that “we already have a witness who’s said that you were driving this evening,” to which defendant responded, “O.K.” Defendant repeatedly asked Deputy Bodell if the “cops [would] stop being a bitch” and complained that another Deputy had thrown him in the patrol car. Defendant stated, “I just want his face,” and in response to the Deputy’s request to take the field sobriety tests replied, “I don’t need to tie a shoe. If you take off these handcuffs and get that guy’s badge number....”
Defendant told Deputy Bodell that he had two tall cans of beer and two glasses of alcoholic beverages known as Alize and Hyptonic. Based upon Deputy Bodell’s observations, defendant was under the influence based upon defendant’s posture, walk, physical appearance, speech, and his argumentative responses to the Deputy’s questions. Immediately after taping the video, Deputy Bodell placed defendant under arrest.
Ida Leivo, the driver of the car and the mother of the two children injured in the crash, was in a coma for two weeks after the accident and suffered severe brain damage. Both of her children suffered broken bones in the accident. The children’s grandmother died from blunt force trauma.
Defendant had marijuana metabolite in his blood of 18 nanograms per milliliter. A baggie found in defendant’s truck contained 3.5 grams of marijuana. Defendant’s blood alcohol content was.25 to.29 percent.
Deputy John Rodriguez testified that a seat belt can leave bruises during an accident. A driver of a vehicle in an accident wearing a seat belt would have abrasions across his or her left shoulder and chest. Deputy Rodriguez observed defendant the day after the accident and noticed he had bruises consistent with driver’s seat belt marks resulting from a traffic collision.
Crash data retrieved from defendant’s truck indicated it was going 83 miles an hour at the time of the collision.
B. Defense Case.
Arthur Eggleston lived on West Gladstone in San Dimas. On July 6, 2007, he was in front of his house and observed the collision. Defendant’s truck was going about 50 or 60 miles an hour and had two people in it. He saw defendant’s truck jump the tracks and smash into the victim’s vehicle, and saw the truck pushing the victim’s car down the street. He did not hear any skids or any sounds like the brakes being applied. He ran down the street and saw someone get out of the truck. Two Hispanic males were pulling people violently through the windows of the car.
Jo-Ellen Latham, a private forensic consultant, examined defendant’s truck after the accident in September 2007. At the time, some repairs had already been done on the vehicle and any testing that she might have performed on the truck would have been useless.
James McInerny, a private investigator, testified that the sun set at 8:07 p.m. on July 6, 2007. In rebuttal, the prosecution presented evidence that twilight was at 8:37 p.m., which meant it was still light at that time.
The jury convicted defendant on all counts and found all special allegations true.
DISCUSSION
Defendant contends that his counsel was ineffective for failing to object to the giving of CALCRIM No. 357 in connection with the playing of the videotape made at the time of his arrest. On that tape, Deputy Bodell told defendant that “we already have a witness who’s said that you were driving this evening,” to which defendant responded, “O.K.” Defendant contends the statement is not an adoptive admission because merely responding “O.K.” to the deputy’s statement did not constitute adoption of the statement; furthermore, he was extremely intoxicated and argumentative at the time and surrounded by the chaos of the accident, and was unable to be interested in any questions posed by Deputy Bodell. He contends counsel’s insufficient performance was prejudicial because evidence of guilt was questionable and his statement was used by the prosecution during argument to weaken his defense that he was not the driver.
A. Factual Background.
During the consideration of jury instructions, the parties considered whether to give an adoptive admission instruction relating to defendant’s response to Deputy Bodell’s statement that a witness had observed that defendant was the driver of the truck. Defense counsel stated he believed the instruction was appropriate. Subsequently, the court reiterated that it thought the instruction was appropriate, and stated that the issue was not whether defendant was the driver of the truck, but rather the purpose of the instruction was to inform the jury that when a person fails to respond to an accusation, that failure can be construed as an admission. Defense counsel did not object.
The court instructed the jury with CALCRIM No. 357.
The version of CALCRIM No. 357 given provided, “If you conclude that someone made a statement outside of court that tended to connect the defendant with the commission of the crime and the defendant did not deny it, you must decide whether each of the following is true: [¶] 1. The statement was made to the defendant or made in his presence; [¶] 2. The defendant heard and understood the statement; [¶] 3. The defendant would, under all the circumstances, naturally have denied the statement if he thought it was not true; [¶] AND [¶] 4. The defendant could have denied it but did not. [¶] If you decide that all of these requirements have been met, you may conclude that the defendant admitted the statement was true. [¶] If you decide that any of these requirements has not been met, you must not consider either the statement or the defendant’s response for any purpose.”
B. Discussion.
1. Ineffective Assistance of Counsel.
The right to effective assistance of counsel derives from the Sixth Amendment right to assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 686-694; see also Cal. Const., art. I, § 15.) To demonstrate ineffective assistance, defendant must show (1) counsel’s conduct was deficient when measured against the standards of a reasonably competent attorney, and (2) prejudice resulting from counsel’s performance “‘so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’” (People v. Mayfield (1997) 14 Cal.4th 668, 784.) Prejudice is shown where there is a reasonable probability, but for counsel’s errors, that the result of the proceeding would have been different. (In re Harris (1993) 5 Cal.4th 813, 832-833.) Defendant must establish prejudice as a demonstrable reality, not simply speculation as to the effect of the errors or omissions of counsel. (In re Clark (1993) 5 Cal.4th 750, 766.)
Our review of counsel’s performance is deferential, and strategic choices made after a thorough investigation of the law and facts are “virtually unchallengeable.” (In re Cudjo (1999) 20 Cal.4th 673, 692.) However, defense counsel has an obligation to investigate all defenses, explore the factual bases for defenses, and evaluate the applicable law. (People v. Maguire (1998) 67 Cal.App.4th 1022, 1028.) The defendant “can be expected to rely on counsel’s independent evaluation of the charges, applicable law, and evidence, and of the risks and probable outcome of the trial.” (In re Alvernaz (1992) 2 Cal.4th 924, 933.)
“In some cases... the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged. In such circumstances, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, these cases are affirmed on appeal. [Citation.] Otherwise, appellate courts would become engaged ‘in the perilous process of second-guessing.’” (People v. Pope (1979) 23 Cal.3d 412, 426, fn. omitted.) On appeal, if the record shows a rational tactical purpose behind counsel’s act or omission, or if the record does not show counsel’s purpose but there could be a satisfactory explanation for the act or omission, the judgment will be affirmed. (People v. Fosselman (1983) 33 Cal.3d 572, 581-582; People v. Pope, supra, 23 Cal.3d at pp. 425-426.) Where the record sheds no light on the purpose behind counsel’s acts or omissions, the question of ineffective assistance of counsel more appropriately is resolved by a petition for writ of habeas corpus. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267; People v. Pope, supra, 23 Cal.3d at p. 426.) Habeas corpus proceedings allow defendant the opportunity to present additional evidence regarding trial counsel’s reasons for acting or omitting to act in the manner of which defendant complains. (People v. Pope, supra, at pp. 425-426.)
2. Instruction on Adoptive Admissions.
Evidence Code section 1221, which codifies the adoptive admissions exception to the hearsay rule, contemplates either explicit acceptance of the statement or acquiescence to its truth by silence or equivocal or evasive conduct. Two requirements must be met for admission: (1) the party has knowledge of the content of another’s hearsay statement, and (2) having such knowledge, the party used words or conduct indicating his or her adoption of or belief in the truth of such hearsay statement. (People v. Combs (2004) 34 Cal.4th 821, 842-843.) Under the adoptive admissions exception, once the defendant expressly or impliedly adopts the statements of another person, the statements become his own admission. (Id. at p. 842.) Thus, an adoptive admission is admissible when “‘a person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that [the defendant] was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution.’” (People v. Riel (2000) 22 Cal.4th 1153, 1189.)
Evidence Code section 1221 provides, “Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.”
“It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence…. The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” (People v. St. Martin (1970) 1 Cal.3d 524, 531.)
Here, the record supports the giving of an instruction on adoptive admissions. Under the circumstances, defendant would have been expected to deny the Deputy’s statement that he was the driver of the truck. For this reason, his response of “O.K.” could constitute an adoption of the Deputy’s statement, making instruction on the issue proper. (People v. Edelbacher (1989) 47 Cal.3d 983, 1011 [to fall within that exception to the hearsay rule, “it is sufficient that the evidence supports a reasonable inference that an accusatory statement was made under circumstances affording a fair opportunity to deny the accusation; whether defendant’s conduct actually constituted an adoptive admission becomes a question for the jury to decide”].) Further, even if the giving of the instruction was error, such error was not prejudicial. Although the prosecution relied on the admission in its argument, there was other strong evidence of defendant’s guilt: the seat belt bruises left after the accident, and witness Jones’s identification of defendant as the driver.
DISPOSITION
The judgment of the superior court is affirmed.
We concur: PERLUSS, P. J., JACKSON, J.