Opinion
G057256
02-07-2020
THE PEOPLE, Plaintiff and Respondent, v. STEVE CAMPBELL, Defendant and Appellant.
Johanna Pirko, under appointment by the Court of Appeal for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Daniel Rogers and Christopher P. Beesley, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15NF3134) OPINION Appeal from a judgment of the Superior Court of Orange County, Elizabeth G. Macias, Judge. Affirmed. Johanna Pirko, under appointment by the Court of Appeal for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Daniel Rogers and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Steve Campbell raises two issues in appealing from his conviction on two counts of driving under the influence of alcohol causing bodily injury (Veh. Code, § 23153, subds. (a) & (b)). First, he asserts the People failed to establish an element of each offense - doing an act forbidden by law while driving - because the jury failed to find that he had been driving on the wrong side of the freeway at the time of the collision. Second, he would have us find his counsel ineffective because he requested Campbell's blood sample from the Orange County crime laboratory too late - after the blood sample drawn at the time of the collision had been destroyed.
We affirm the conviction. Although it is true the jury hung on the wrong-way driving count, neglecting a duty imposed by law while driving also violates the Vehicle Code sections. Campbell crashed his vehicle into another car while driving; he neglected his legal duty to operate his vehicle safely and with due care. As for his ineffective assistance of counsel argument, Campbell failed to establish that there was no satisfactory explanation for his counsel's conduct or that counsel undermined the proper functioning of the adversarial process. Counsel explained that normal practice was to obtain a sample of the defendant's blood for independent testing only in cases where either the blood itself or the collection process raised the possibility of exculpatory evidence. Campbell did not raise any such possibility with his counsel until over a year after the blood sample had been destroyed. Nothing in the record indicates that his counsel should have anticipated this possibility before then.
FACTS
During the early morning of March 7, 2015, two California Highway Patrol officers were dispatched to the scene of a traffic collision in the fast lane of the westbound 91 freeway in Anaheim. Two cars were involved - a Toyota Sienna and a Toyota Corolla. The vehicles had collided head on. The Sienna had come to rest facing east.
One of the investigating officers approached Campbell and noticed red, watery eyes, slurred speech, difficulty in standing and walking, and the odor of alcohol from his breath. Campbell told the officer he had been driving the Sienna, which was registered to him.
Three people were in the Corolla at the time of the collision; all three were taken by ambulance to a hospital. Two had serious injuries, including broken ribs, a concussion, a fractured sternum, and a fractured neck.
Upon being questioned by a California Highway Patrol officer (CHP), Campbell admitted to drinking three to four light beers at a bar in Corona. He said he could not remember getting on the freeway. Campbell refused to participate in or to complete field sobriety tests. The officer had to do a manual capture of his breath with a breathalyzer because Campbell did not blow hard enough into the device. The manual capture gave a reading of .201 blood alcohol content. Campbell refused to give a second breath sample.
Ideally, a person using a breathalyzer takes a deep breath to blow into the device. The device then automatically captures air from deep in the lungs, where alcohol is being absorbed into the bloodstream, and gives a more accurate reading of alcohol level. If the subject does not blow hard enough, the automatic feature is not triggered.
Campbell was transported to a hospital, where he was found to have a seatbelt abrasion from his left shoulder downward across his chest. He was arrested at the hospital, and his blood was drawn by a phlebotomist. Upon analysis at the Orange County crime laboratory, Campbell's blood alcohol content was measured at .23 percent.
On November 20, 2015, the Orange County District Attorney filed a complaint charging Campbell with felony driving under the influence causing bodily injury (Veh. Code, § 23153, subds. (a) & (b)) and with driving on the wrong side of the road. (Veh. Code, § 21651, subd. (c)). Enhancements were pleaded for great bodily injury (Pen. Code, §§ 12022.7, subd. (a); 1192.7; 667.5), and a prior DUI conviction in Riverside was also pleaded.
Vehicle Code section 23153 provides, "(a) It is unlawful for a person, while under the influence of any alcoholic beverage, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver. [¶] (b) It is unlawful for a person, while having 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver. [¶] In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after driving."
Vehicle Code section 21651 provides, "(b) It is unlawful to drive any vehicle upon a highway, except to the right of an intermittent barrier or a dividing section which separates two or more opposing lanes of traffic. Except as otherwise provided in subdivision (c), a violation of this subdivision is a misdemeanor. [¶] (c) Any willful violation of subdivision (b) which results in injury to, or death of, a person shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code, or imprisonment in a county jail for a period of not more than six months."
Trial took place in September and October 2018. The driver of the Corolla testified that as she drove in the fast lane on the freeway, she was confronted with a car coming straight at her. She could not move to the right to avoid the collision because a car was in the lane next to hers or to the left because the collision happened too fast.
A crime lab representative who testified as an expert opined that a male of Campbell's weight whose blood alcohol content was .23 percent at the time of Campbell's blood draw would have had the alcoholic equivalent of between 11 and 12 drinks in his system at the time. The expert also calculated that, at the time of the crash (nearly two hours earlier), this person would have had the alcoholic equivalent of 13 drinks in his system, with a blood alcohol level of .25 to .26 percent.
The witness defined a "drink" as 12 ounces of 4 percent beer, 4 ounces of 12 percent wine, or one and a quarter ounces of 40-proof or 80-proof liquor.
The jury returned a verdict of guilty on the two felony DUI counts and could not reach a decision on the wrong-way driving count. It also found the great bodily injury enhancements true. The wrong-way driving count was later dismissed.
The Blood Evidence
Campbell's blood was drawn at the hospital where he was arrested after the collision, on March 7, 2015, within the time period mandated in Vehicle Code section 23152, subdivision (b). It went to the Orange County crime lab, where it was analyzed for alcohol content.
At one point, the court referred to a seven-day delay between the date the Orange County crime lab received Campbell's blood sample and the date it was tested. The lab representative testified at trial that the blood was tested on March 10, 2015.
On August 30, 2016, defense counsel received approval from the Orange County District Attorney's office for a "blood split," that is, a release of a portion of Campbell's blood from the Orange County crime lab for testing in an independent lab. The approval form included the vial number of the blood sample and the forensic report number. As the deputy district attorney explained, the Orange County crime lab will not release a blood sample without the signed approval form; it is not, however, notice that defense counsel will actually seek the release. The form merely authorizes the lab to release the sample if defense counsel asks for it. Defense counsel explained that it is routine to obtain the authorization. Whether to take the authorization to the crime lab and obtain the blood split, however, depends on the individual case.
In this case, defense counsel did not request the blood split from the Orange County crime lab until sometime in late April or early May 2018, after the preliminary hearing. Defense counsel was informed on May 14, 2018, that the blood split was not available because the lab had destroyed the sample on March 23, 2017.
California Code of Regulations, title 17, section 1219.1, subdivision (f) requires preservation of the sample for one year after collection. The Orange County crime lab, however, preserves the sample for two years. After that time, if the case is a felony case, the lab returns the sample to the submitting agency. If the case is a misdemeanor, the sample is destroyed.
The envelope in which the Campbell sample was enclosed did not identify the case as a felony case.
Campbell made a motion in limine to exclude the evidence of the blood sample on the ground it had been destroyed before the defense could test it. Campbell argued that destroying the sample made it impossible to retest for alcohol level and to test for "possible date [rape] drugs, microbes, fermentation, preservative level, DNA, or coagulation" or for "expiration date, nature of the blood, tampering, etc.," as well as to challenge chain of custody. He also moved to exclude photos of the blood vials. During the hearing on this part of the motion, Campbell changed the latter request to exclusion of a copy of the envelope in which the vials had been sent to the lab.
The trial court denied the motion in limine, citing the lack of any indication of bad faith on the part of law enforcement, the district attorney's office, or the lab that caused destruction of the sample and the lack of any indication that the blood evidence would have been exculpatory. The court also ruled that the copy of the envelope that had contained the blood vials could be submitted in evidence.
DISCUSSION
Campbell has identified two issues on appeal. First, he asserts that his driving under the influence convictions must be reversed because the jury did not reach a decision about whether he had been driving the wrong way on the 91 freeway. Since the People had not proved that he had done "any act forbidden by law," i.e., driven the wrong way on a freeway, the People had not proved an essential element of Vehicle Code section 23153, subdivisions (a) and (b). Second, he asserts that his counsel was ineffective because he did not timely request a blood split from the Orange County crime lab. By the time he got around to submitting the proper form, the blood sample had been destroyed.
I. Vehicle Code Section 23153
An element of a Vehicle Code section 23153 violation is doing "any act forbidden by law" or neglecting "any duty imposed by law while driving a vehicle." The court instructed the jury on this subject as follows: "To prove that the defendant is guilty of this crime, the People must prove that, one, the defendant drove a vehicle; two, when he drove a vehicle, the defendant was under the influence of an alcoholic beverage; three, while driving a vehicle under the influence, the defendant also committed an illegal act or neglected to perform a legal duty; and four, the defendant's illegal act or failure to perform a legal duty caused bodily injury to another person. [¶] . . . [¶] The People allege that the defendant committed the following illegal act: driving on the wrong side of the road. . . . [¶] The People also allege that the defendant failed to perform the following legal duty while driving the vehicle: the duty to exercise ordinary care at all times and to maintain proper control of the vehicle. [¶] . . . [¶] You may not find the defendant guilty unless all of you agree that the People have proved that the defendant committed one illegal act or failed to perform at least one duty. You must all agree on which act the defendant committed or which duty the defendant failed to perform." Campbell argues that because the jury could not agree that he had committed an "act forbidden by law" (wrong-way driving), the People failed to establish an essential element of the violation.
Doing "any act forbidden by law" is one way that a person can violate Vehicle Code section 23153. Another way, however, is by neglecting "any duty imposed by law while driving a vehicle." Proving neglect of duty does not require proof of a violation of the Vehicle Code. (Veh. Code, § 23153, subd. (c).)
The law imposes a duty on drivers to exercise ordinary care at all times and to maintain proper control of their vehicles. As the jury was instructed, "A person fails to exercise ordinary care if he or she does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation." (See People v. Oyaas (1985) 173 Cal.App.3d 663, 669 [ordinary negligence sufficient to satisfy neglect element].) While operating a vehicle under the influence, either doing an act forbidden by law or neglecting a legal duty would violate Vehicle Code section 23153.
"A person must use reasonable care in driving a vehicle. Drivers must keep a lookout for pedestrians, obstacles, and other vehicles. They must also control the speed and movement of their vehicles. The failure to use reasonable care in driving a vehicle is negligence." (CACI No. 700.)
Regardless of whether Campbell was driving the wrong way on the freeway, he crashed his vehicle into someone else's car. He did not keep a lookout for other vehicles. He neglected his duty to exercise ordinary care while driving, and this neglect supports a violation of Vehicle Code section 23153.
II. Ineffective Assistance of Counsel
A criminal defendant is constitutionally "entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair." (Strickland v. Washington (1984) 466 U.S. 668, 685.) It is not enough that the attorney be present; his or her assistance must also be "'adequate.'" (Id. at p. 686, quoting Cuyler v. Sullivan (1980) 446 U.S. 335, 344.) "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." (Strickland v. Washington, supra, 466 U.S. at p. 686.)
"[S]crutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' [Citation.]" (Strickland v. Washington, supra, 466 U.S. at p. 689; see People v. Ledesma (1987) 43 Cal.3d 171, 216.) In addition, the purportedly defective performance must have prejudiced the defendant. (People v. Caro (2019) 7 Cal.5th 463, 488 (Caro).)
On direct appeal, when no explanation for counsel's conduct can be found in the record, "we must reject the claim [of ineffective assistance of counsel] unless counsel was asked for and failed to provide a satisfactory explanation, or there simply can be no satisfactory explanation." (People v. Scott (1997) 15 Cal.4th 1188, 1212; see People v. Mai (2013) 57 Cal.4th 986, 1009.)
During the argument on Campbell's motion in limine to exclude the blood evidence, his counsel explained that, while it is routine to get an authorization for a blood split from the district attorney's office, it is not routine to actually request the blood split from the crime lab. Although counsel had been representing Campbell since his arrest in March 2015 and had an authorization to obtain the blood split in August 2016, he did not send the authorization to the lab until April or May of 2018, nearly two years later and only a few months before trial. He explained that something Campbell had said after the preliminary hearing, which took place on April 25, 2017, about missing some money on the night of the collision prompted his counsel to wonder whether retesting the blood might turn up some exculpatory evidence.
The obvious conclusion is that nothing had happened during the prior three years to identify this case as one of those in which independent testing could create some issue beneficial to the defense. Moreover, both the breath test and the blood test were consistent with a high blood alcohol content, and both were consistent with Campbell's behavior at the scene of the collision, as observed and recorded by the CHP officer. Counsel had no reason, such as a borderline blood alcohol reading, to suspect that retesting the blood could provide Campbell with any exculpatory evidence.
Campbell relies on In re Sixto (1989) 48 Cal.3d 1247 (Sixto) to support his argument of ineffective assistance, but that case differs significantly from this one. Sixto was a first degree murder case in which alcohol and PCP consumption was front and center from the start as part of diminished capacity defense. (Id. at p. 1258.) Nevertheless, defense counsel did not have the defendant's blood tested for alcohol content at all. (Id. at p. 1253.) As for PCP testing, one lab reported no trace of PCP, while another lab found traces of PCP in the defendant's blood and urine, at which point the lab sought authorization to do a different test. Defense counsel never responded to this request. (Id. at pp. 1253, 1259-1260.) These failures of counsel, among others related to them, caused the court to determine the defendant's counsel had been ineffective. (Id. at pp. 1258, 1261 [PCP testing failure "cannot be attributed to reasonable trial tactics."].)
According to a PCP researcher involved in the defense testing, PCP, unlike alcohol, remains in the body "for many months or years while undetectable in the bloodstream or urine. It may be detected by an acidification test, which was recommended here but never done." (Sixto, supra, 48 Cal.3d at p. 1260.)
In this case, however, the record is devoid of anything indicating that a departure from routine trial tactics, which retesting the blood sample would represent, was necessary, or even advisable. Not until after the preliminary hearing in April 2017 did Campbell say something to his counsel to suggest there was a reason to question the results of the blood test.
To show defective performance, Campbell must establish that the failure to request a blood split before March 2017 (over two years after his arrest) was "objectively unreasonable - 'that is, contrary to prevailing professional norms.'" (Caro, supra, 7 Cal.5th at p. 488.) Defense counsel need not indulge in idle acts to appear competent. (People v. Torrez (1995) 31 Cal.App.4th 1084, 1091.) The evidence in the record shows that it is not in keeping with prevailing professional norms for defense counsel to retest a blood sample as a matter of routine. There must be something unusual about the sample or its collection to prompt such a departure from the norm. There was nothing like that in this case during the relevant time period.
DISPOSITION
The judgment is affirmed.
BEDSWORTH, J. WE CONCUR: O'LEARY, P. J. ARONSON, J.