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People v. Hooker

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE
Jan 12, 2012
B227655 (Cal. Ct. App. Jan. 12, 2012)

Opinion

B227655

01-12-2012

THE PEOPLE, Plaintiff and Respondent, v. EZRA HOOKER, Defendant and Appellant.

Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Los Angeles County Super. Ct. No. TA110251

Appeal from a judgment of the Superior Court of Los Angeles County, Arthur M. Lew, Judge. Affirmed.

Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

A jury convicted Ezra Hooker of one felony count of evading an officer while driving a vehicle with a willful and wanton disregard for the safety of persons or property, in violation of Vehicle Code section 2800.2, subdivision (a); one misdemeanor count of driving while under the influence in violation of section 23152, subdivision (a); and one misdemeanor count of driving while having a 0.08 percent or higher blood alcohol level, in violation of section 23152, subdivision (b). A separate trial followed on Hooker's prior convictions, and a different jury found true that Hooker had been convicted of certain prior crimes. The trial court denied Hooker's motions under People v. Superior Court (1996) 13 Cal.4th 497 (Romero) and Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562], and sentenced Hooker to seven years in prison.

Unless otherwise indicated, all future statutory references are to the Vehicle Code.

Hooker filed a timely notice of appeal. We appointed appellate counsel to represent Hooker. After examination of the record, counsel filed an opening brief raising no issues and asking this court to independently review the record. On August 18, 2011, we advised Hooker he had 30 days in which to personally submit any contentions or issues he wished us to consider.

Hooker filed a supplemental brief summarizing the trial testimony and asking this court to consider 15 issues, which can be summarized as inconsistent and untruthful testimony by the officers; false evidence and evidence tampering; perjury; denial of a fair trial; jury failure to consider instructions; sixth and fourteenth amendment violations; Boykin/Tahl violations; and a violation of Penal Code section 1170.1, subdivision (g). Each individual issue is unaccompanied by reasoned argument. In response to Hooker's request that we augment the record on appeal with the trial exhibits, we ordered the exhibits and have reviewed them as necessary.

Boykin v. Alabama (1969) 395 U.S. 238 [89 S.Ct. 1709, 23 L.Ed.2d 274] and In re Tahl (1969) 1 Cal.3d 122.

BACKGROUND

An amended information charged Hooker with felony counts of evading an officer, throwing a substance at a vehicle with the intent to do great bodily injury, possession of a firearm with a prior conviction, possession of ammunition, and possession of a short barreled rifle. The information also charged misdemeanor counts of driving under the influence and driving with a blood alcohol level of 0.08 percent or higher. The information alleged that Hooker had a prior strike and a prior conviction for a violent felony, and had served a prison sentence and did not remain free for a period of five years.

The evidence at trial related to an incident beginning at 12:30 a.m. on January 5, 2010, when Los Angeles Police Department Officer McMahon and his partner attempted to stop Hooker's truck, which matched the description of a vehicle involved in a crime earlier that evening. The officers activated their patrol car's overhead lights and sirens, and Hooker accelerated rapidly and ran a red light. The officers pursued Hooker from about 30 feet behind, and Hooker entered the southbound ramp for the 110 freeway, throwing what appeared to be a shotgun out of his driver's side window. McMahon's partner requested backup to retrieve the shotgun from the onramp. LAPD Officer Chavarria in another patrol car also saw Hunter throw a firearm out of the truck, and stopped to retrieve the firearm. Both patrol cars pursued Hooker, with lights and sirens still going, on the 110 freeway. Hooker drove between 100 and 110 miles per hour in light to moderate traffic, cutting across lanes without braking to pass other vehicles.

Hooker then drove from the 110 freeway onto the southbound 405 freeway, continuing at 90 to 120 miles per hour in light traffic. The officers saw Hooker throw items out of the driver's side window. One item appeared to be a large brick, and others appeared to be tools or hard metal objects. The officers did not stop to recover the items.

Hooker transitioned onto the southbound 710 freeway, where his truck struck the west curb of the transition road, drove across all lanes of traffic, and crashed into the center divider at 60 or 65 miles per hour. The pursuit had lasted 12.7 miles. Officer McMahon used the public address system to order Hooker to exit the truck, but there was no response.

Three to four minutes later, Hooker sat up in the seat, exited the truck through the window, and lay down on the ground. His face was bleeding and his hands were bloody. Hooker was taken into custody, treated by paramedics, and transported to the hospital. At the hospital, Hooker smelled strongly of alcohol, and his speech was slurred and rambling.

A registered nurse at the hospital testified that he drew Hooker's blood at about 2:00 a.m. The criminologist who tested the blood in the vial testified that the blood had .21 grams of alcohol per 100 millimeters of blood, and at the time that the police pursuit began, Hooker's alcohol level could have been as low as 0.17 percent or as high as 0.24 percent. A criminalist testified that the recovered rifle was loaded and operational, and the butt stock had been removed and the barrel sawed off so that the rifle was 14 to 15 1/2 inches long.

Hooker testified on his own behalf. He remembered nothing after 3:00 or 4:00 in the afternoon of January 4 until he woke up in the hospital in the early morning of January 5, and had no memory of driving on the 110 and 405 freeways and crashing his truck. He did not think it was likely that he was drinking on January 4. The truck was his, but he did not own a rifle, had never borrowed one, and had never seen the rifle that was introduced into evidence. Shown a bulletproof vest marked as exhibit 2, he did not remember putting it on when he got dressed on January 4, or ever having it. Officer Chavarria testified that he saw that Hooker was wearing the bulletproof vest under his shirt when the paramedics at the scene took off Hooker's clothing.

In closing argument, Hooker's counsel stated, "I'm going to concede that there is sufficient evidence in my opinion for you to find Mr. Hooker guilty of counts 5 and 6, which are the alcohol counts; that he was driving under the influence of alcohol and that he was driving with a blood alcohol level of .08 or higher. I think you should find him guilty of that. I think there is sufficient evidence." Counsel then argued that the jury should consider the level of Hooker's intoxication in determining whether he had the specific intent or knowledge required for the other charges, and to explain why Hooker could credibly testify that he could not remember anything.

During deliberation, the jury asked a number of questions. The jury found Hooker guilty of evading an officer, driving under the influence, and driving with a blood alcohol level above 0.08 percent. The jury was deadlocked and unable to reach a verdict as to the remaining counts.

After the presentation of the evidence at a separate trial with a new jury, regarding Hooker's prior convictions, the court took judicial notice that the person who had been convicted of certain prior crimes was Hooker. On September 1, 2010, the jury found that Hooker had been convicted of prior crimes, had served a prior prison term, and was convicted of another crime within five years after the conclusion of the prison term.

Hooker was sentenced on September 13, 2010 to seven years in state prison, consisting of the upper term of three years on the evasion of officers count, doubled because of Hooker's prior strike conviction, plus a one-year prior prison term enhancement. Hooker filed a timely notice of appeal.

DISCUSSION

Hooker's first three claims are that the police officers' testimony was inconsistent, and not truthful about the evidence recovered and his injuries. He does not explain where the testimony was in conflict or what specific testimony was untrue. We therefore cannot evaluate these claims, and in any event, the credibility of witnesses and the resolution of any inconsistencies were the province of the jury. (People v. Young (2005) 34 Cal.4th 1149, 1181.)

Hooker's fourth and fifth claims are that the evidence was tampered with and the officers collected false evidence. In his brief, Hooker does not identify what evidence was tampered with or falsely collected. In his request that we augment the appellate record with the trial exhibits, Hooker argues that the blood vial was not immediately sealed within an evidence envelope, which we address below. He also argues in his request that defense exhibits A and B demonstrate that the evidence was tampered with or the officers falsified reports. Defense exhibit A is a photograph of the driver's side of Hooker's badly damaged truck in the impound lot. Defense exhibit B, a vehicle report signed by Officer McMahon, was reviewed by Officer McMahon and marked for identification at trial, but was not received into evidence and is therefore not included in the trial exhibits. We therefore cannot evaluate Hooker's claim that exhibits A and B show that the officers falsified reports or tampered with the evidence.

At trial, during cross-examination of Officer McMahon, Hooker's counsel argued that exhibit A showed the driver's window on the truck was rolled only about a quarter of the way down, which was inconsistent with his statement that Hooker had climbed out of the vehicle through the window, which was rolled down all the way. Officer McMahon denied that the people who moved Hooker's truck tampered with the vehicle in any way.
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Hooker's sixth claim is that an "officer committed perjury by signing people's exhibit #7 and did not seal the evidence envelope." At Hooker's request, we obtained the trial exhibits. Exhibit 7 is the LAPD form "Analyzed Evidence To Be Refrigerated," with a signed affidavit by the registered nurse who drew Hooker's blood, which also was signed by LAPD Officer Argueta as witness. At trial, Officer Argueta testified that he witnessed the blood draw at the hospital. He gave the unsealed envelope to Officer McMahon. Sometimes officers did not carry seals with them and the seals were located in the evidence rooms or at the station. Officer McMahon testified that Officer Argueta gave him the vial of blood, and his partner Officer Simmons sealed it in an envelope at the division report writing room prior to booking. The envelope was open while Officer McMahon transported it from the hospital to the division office. Officer McMahon had the vial of blood in his custody from the time Officer Argueta handed it to him until he gave it to Officer Simmons, and no one else touched or did anything with the vial. The criminologist who tested Hooker's blood testified that the sample arrived at the laboratory in a sealed envelope, and she opened the envelope with a scalpel or razor blade to begin testing. If the tube had been tampered with, she would notice and write it in her notes, and she had not made any such notations about Hooker's blood sample. Defense counsel moved to strike the testimony as going beyond the information contained in the report, because the court allowed the criminologist to testify as an expert on the effect of alcohol on blood and driving ability. The court denied the motion. We see no indication in the record that Officer Argueta committed perjury, and the registered nurse's, the officers', and the criminologist's testimony established the chain of custody of the sample and did not violate Melendez-Diaz v. Massachusetts (2009) 557 U.S. ____ [129 S.Ct. 2527, 174 L.Ed.2d 314].

Hooker's seventh claim is that the evidence did not support a finding of guilt. We disagree. The credible evidence at trial was sufficient for a reasonable jury to find Hooker guilty, presuming as we must in support of the judgment the existence of every fact the jury could reasonably infer from the evidence. (See People v. D'Arcy (2010) 48 Cal.4th 257, 293.)

Hooker's eighth claim is that the court denied him his right to a fair trial on readback. The jury requested a readback of testimony, and after discussion with counsel the court ordered the court reporter to read back all the testimony of Officers McMahon and Chavarria, with the agreement of Hooker's counsel. The jury stopped the readback after the direct testimony of Officer McMahon, and told the judge they did not want to hear the cross-examination; they then heard the readback of the testimony of Officer Chavarria. Hooker does not explain, and we cannot discern, how this violated Hooker's right to a fair trial.

The ninth claim is that the jury violated the court's instruction by informing the court how they were voting. The court instructed the jury, "Do not reveal to me or anyone else how the vote stands on the (question of guilt [or] other issues in this case) unless I ask you to do so." The jury informed the court that they were hopelessly deadlocked in a note indicating the vote tally, and the court read out loud the jury's note that they were deadlocked on four counts, including the tally of votes. The court declared a mistrial on the deadlocked counts, after polling the jury whether further argument would be helpful. Hooker's failure to object to the procedure and the mistrial declaration waives his claim. (People v. Anderson (2009) 47 Cal.4th 92, 100, fn. 3.) He does not argue that the failure to object to the jury's disclosure of the vote was ineffective assistance of counsel, but in any event we see no prejudice from the procedure.

Hooker argues in his 10th and 11th claims that the jury did not consider the trial court's instructions on voluntary intoxication and evading a police officer. "We presume the jury followed these instructions. [Citation.]" (People v. Lindberg (2008) 45 Cal.4th 1, 26.)

Hooker's 12th claim is that the court violated Boykin v. Alabama, supra, 395 U.S. 238 and In re Tahl, supra, 1 Cal.3d 122. Those cases discuss the constitutional requirements for advisements in connection with a guilty plea, and as Hooker did not plead guilty to any of the charges in the information, they are not relevant to this case.

Hooker's 13th claim is that the trial court violated the Sixth Amendment of the United States Constitution. Hooker does not specify what action by the trial court violated his Sixth Amendment rights, and we therefore cannot address this claim.

Hooker's 14th claim is that the court violated Hooker's jury trial rights safeguarded by the sixth and fourteenth amendments, citing Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham). That case does not apply, however, because Hooker committed his crimes and was convicted and sentenced in 2010. In 2007, the California legislature amended California's determinate sentencing law in response to Cunningham, giving the trial court the discretion to select the upper term upon any aggravating circumstance that the court deems significant. (People v. Jones (2009) 178 Cal.App.4th 853, 866.) Further, Cunningham allowed the trial court to consider Hooker's prior conviction in imposing an aggravated term (id. at p. 865), and the court stated that it selected the upper term on the basis of Hooker's criminal record. In addition, a separate jury found that Hooker had been convicted of prior crimes and had served a prior prison term.

Finally, Hooker's 15th claim is that his sentence violated Penal Code section 1170.1, subdivision (g). That section provides: "When two or more enhancements may be imposed for the infliction of great bodily injury on the same victim in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense." Hooker was not convicted of inflicting great bodily injury, and Penal Code section 1170.1, subdivision (g) is therefore not relevant to his case.

We note that Hooker's counsel conceded in closing argument that sufficient evidence existed to convict Hooker of driving under the influence and driving with a blood alcohol level of 0.08 percent or higher. For that concession to constitute ineffective assistance of counsel, Hooker must prove both that his counsel's representation fell below an objective standard of reasonableness given prevailing professional standards, and that it is reasonably likely that the representation prejudiced Hooker. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694 [104 S.Ct. 2052, 2064, 80 L.Ed.2d 674]; People v. Cain (1995) 10 Cal.4th 1, 28.) We reverse on appeal for ineffective assistance of counsel only when "the record on appeal demonstrates there could be no rational tactical purpose for counsel's omissions." (People v. Lucas (1995) 12 Cal.4th 415, 442.) It is not ineffective assistance of counsel to admit obvious weakness in a defense case. (People v. Mayfield (1993) 5 Cal.4th 142, 177.) Although "a defense attorney's concession of his client's guilt, lacking any reasonable tactical reason to do so, can constitute ineffectiveness of counsel," in some cases complete candor is a "'good trial tactic[].'" (People v. Gurule (2002) 28 Cal.4th 557, 611-612.) The record shows that in the face of strong evidence of Hooker's intoxication, counsel made the reasonable tactical decision in closing argument to concede that Hooker drove under the influence, in order to argue that as a result Hooker did not lie when he testified that he could not remember what happened, and that Hooker could not have formed the specific intent or knowledge required for conviction of the other charges. The record does not show that Hooker objected to his counsel's tactical decision, and the jury did fail to reach a verdict on all but one of the other charges. On this record, we do not find a reasonable possibility that the jury would have reached a different result absent counsel's concession in closing argument.

We have examined the entire record and are satisfied that appellant's counsel has fully complied with his responsibilities and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109-110; People v. Wende (1979) 25 Cal.3d 436, 441.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

JOHNSON, J.

We concur:

ROTHSCHILD, Acting P. J.

CHANEY, J.


Summaries of

People v. Hooker

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE
Jan 12, 2012
B227655 (Cal. Ct. App. Jan. 12, 2012)
Case details for

People v. Hooker

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. EZRA HOOKER, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE

Date published: Jan 12, 2012

Citations

B227655 (Cal. Ct. App. Jan. 12, 2012)