Opinion
D050961
9-3-2008
THE PEOPLE, Plaintiff and Respondent, v. OPHILEA BRADFORD, Defendant and Appellant.
Not to be Published
Ophilea Bradford was convicted by a jury of driving under the influence of alcohol (Veh. Code, §§ 23152, subd. (a), 23578), driving while having a blood alcohol of over .08 percent (§ 23152, subd. (b)) and driving with a suspended license (§ 12500, subd. (a)). As to the driving offenses, the jury also made true findings that her blood alcohol concentration was .20 percent or more. (Veh. Code, § 23578.) The court found she had three prior convictions for driving under the influence. (§§ 23626, 23550, subd. (a).) She was sentenced to two years in prison. We affirm the judgment.
During trial, Bradford was referred to be the alternate name of Anne Maddox.
All statutory references are to the Vehicle Code unless otherwise specified.
FACTS
On November 13, 2005, a San Diego police officer, who was stopped at a red light facing westbound, watched as Bradfords vehicle drifted from the eastbound lane closest to the curb to the left turn lane and then ran the red light. The officer activated his overhead lights and made a u-turn. Bradford made a sudden right turn, struck the curb and stopped, blocking traffic.
The officer approached Bradford who was alone in the car. She smelled of alcohol and spoke slowly with slurred speech. In response to his request for identification, Bradford gave him her California identification card and then at least three times tried to give him a military identification card. When the officer asked her if she had been drinking, she laughed and said she had had two beers. The officer detained Bradford while he waited for a special police unit to arrive. As they waited, the officer saw Bradford several times lean over as if she were trying to turn the key in the ignition even though the officer had removed the keys.
About 15 to 20 minutes later, Officers Henry Castro and his trainee Claudia Canto arrived. Canto observed that Bradford smelled of alcohol, her speech was slurred and her eyes were red and glassy. Bradford said she had two beers and had been drinking with a friend between 6:30 p.m. and 10:30 p.m. Bradford gave conflicting answers about where she had just been. At one point she said she was coming from a friends house, and at another point she said she was coming from church. Once outside her vehicle, Bradford swayed and stumbled. She said she had arthritis and cirrhosis and was taking Prozac. She had a difficult time following the instructions to keep her head still during the horizontal gaze nystagmus test and when she finally did so, her eyes involuntarily jerked, which was consistent with being under the influence of alcohol.
The officers conducted two field sobriety tests but Bradford was unable to perform either the one-leg lift test or walk in a straight line. The walking test was terminated for safety reasons because she lost her balance and nearly fell.
Bradford was offered a breath test at the scene, but failed to properly blow into the machine. At 3:40 a.m., a blood sample was taken from her at the police station. The blood was tested on November 21, 2005 and found to contain .25 percent alcohol, within a margin of error of plus or minus .01 percent. The expert testified that if fermentation in the blood sample had occurred, he would expect the blood alcohol reading to be "off the chart," well above .25 percent, and as "incredibly high" as a .7 or 1.0 percent.
When she was arrested, Bradfords drivers license was suspended.
Defense
Bradfords husband testified he was with her the night of November 13, 2005 at a church concert and dinner where no alcohol was served. They left about 11:00 p.m. When they got home, Bradford talked on the phone for about an hour with her sister and then she and Bradford delivered a wedding present to some friends. After returning home, Bradfords husband took a shower while she returned to the friends house to pick up her cell phone. Bradfords husband was awakened about 3:00 a.m. when he received a phone call from her stating that she had been arrested. She was coherent and her speech was not slurred.
An expert testified that his test of Bradfords blood sample showed a blood alcohol level of .26 percent, but the preservative within the sample was one-fourth the recommended amount and therefore there was a danger the blood may have fermented in the interval between when it was drawn on November 13 and when it was tested on November 21. However, the defense expert also admitted he had not been asked to test the blood sample for contaminants, which would have confirmed whether there had been any fermentation.
DISCUSSION
Appointed appellate counsel has filed a brief setting forth the evidence from the superior court. Counsel presents no argument for reversal, but asks that this court review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to possible, but not arguable, issues: (1) whether the trial court erred in denying Bradfords motion to suppress her blood sample and test results as a result of an unreasonable search and seizure; (2) whether the trial court erred in denying her motion pursuant to Penal Code section 1118.1 motion to dismiss at the close of the prosecutions case; (3) whether the trial court committed instructional error by giving CALCRIM Nos. 759, 760, 762, 2110 and 2111 over defense objections; (4) whether there was sufficient evidence to support the convictions, enhancement for a blood alcohol level of .20 percent or higher or prior convictions; (5) whether there was a valid waiver of the right to a jury trial on the prior convictions; and (6) whether the trial court erred in denying her motion to strike a 1997 driving under influence conviction as a violation of the ex post facto clause of the U.S. Constitution.
We granted Bradford permission to file a brief on her own behalf. She has not responded.
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, including the possible issues referred to by appellate counsel, has disclosed no reasonably arguable appellate issues. Competent counsel has represented Bradford on this appeal.
DISPOSITION
The judgment is affirmed.
We concur:
McDONALD, J.
OROURKE, J.