Opinion
G062282
10-11-2023
THE PEOPLE, Plaintiff and Respondent, v. IVAN ORTEGA OCAMPO, Defendant and Appellant.
Lisa A. Kopelman, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 20HF0779, Michael A. Leversen, Judge. Affirmed.
Lisa A. Kopelman, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
MOTOIKE, J.
A jury found defendant Ivan Ortega Ocampo guilty of criminal threats, driving under the influence of alcohol, and driving with a blood alcohol content of .08% or more. After waiving his right to a jury trial, the trial court found Ocampo had suffered a prior felony "strike" conviction and a prior conviction for reckless driving with alcohol in his system. Appointed appellate counsel for Ocampo filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), setting forth the facts of the case. Citing Anders v. California (1967) 386 U.S. 738 (Anders), appointed counsel also identified a potential issue to assist in our independent review. Ocampo was provided 30 days to file a supplemental brief on his behalf, but he did not do so.
We have examined the entire record and appointed counsel's Wende/Anders brief and found no reasonably arguable issue. (Wende, supra, 25 Cal.3d 436.) We therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 8, 2020, F.C. was at his place of employment drinking beers with some of his co-workers when he saw Ocampo, a former employee, arrive in his car. Ocampo got out of his car, approached F.C. with a gun in his hand, and said, in Spanish, "'With this I will kill you. I'm going to fucking kill you.'" Ocampo said F.C. was at fault for Ocampo's firing. F.C. did not know if the gun was real or fake, but F.C., who also spoke Spanish and understood what Ocampo had said, believed Ocampo was going to kill him and was in fear as a result. After taking a few steps towards F.C., Ocampo left.
Orange County Deputy Sheriff Jovan Correa was dispatched to F.C.'s workplace and also responded to a separate report of a witness having seen a man throw a gun into bushes about 500 yards from the workplace. Correa and his partners searched the area where a gun was reportedly thrown and found a black replica beretta pellet gun without an orange tip.
Later that same day, Orange County Deputy Sheriff Daniel Castillo conducted a high risk stop of a car driven by Ocampo. Before pulling the car over, Castillo noted Ocampo had failed to stop at the limit line and instead slammed on the brakes in the middle of the crosswalk. During a check of the vehicle, Castillo found a 25-ounce Cobra beer can that was three quarters empty and cold to the touch. Additional empty alcoholic containers were also inside the car. While speaking with Ocampo, Castillo noted a strong odor of alcohol and Ocampo had blood shot, watery eyes. When asked, Ocampo stated he had a sip or two of beer around noon. Ocampo stated he was 5 feet eight inches tall, weighed 200 pounds, had no physical defects or conditions, and was not on any medications.
Castillo had Ocampo complete three field sobriety tests and take a preliminary alcohol screening test twice. The first screening test result showed a blood alcohol content of .190% and the second screening test result showed a .191% blood alcohol content. Based on Ocampo's performance on the tests, Castillo formed the opinion Ocampo was under the influence of alcohol and placed him under arrest.
During a search of Ocampo's car incident to his arrest, deputies found .177 caliber pellets and Crossmen and Daisy brand CO2 canisters. The CO2 canister inside the gun matched one of the brands found in the vehicle. At some point, Correa spoke to Ocampo about the incident at his former workplace. Ocampo admitted talking with F.C. but denied having had a gun or having confronted F.C. with a gun.
After he was arrested, Ocampo chose to submit to a blood test. Ocampo's blood was drawn at 5:09 p.m. at Rancho Santa Margarita City Hall. Castillo watched the blood draw and signed his name on a form.
April Casillas was a phlebotomist with California Forensic Phlebotomy. She testified to having conducted hundreds of blood draws and described the procedures she follows. First, she stated she confirms the patient's name, applies a tourniquet to the patient's arm, and finds a vein that is palpable. She then cleans the arm, removes a needle from its sterile packaging, and inserts the needle into the arm to collect the patient's blood. The blood sample is thereafter transferred to a glass vial containing a preservative. The blood sample is placed into a manila envelope signed both by Casillas and the officer which is then sealed.
Casillas identified the blood sample request form identifying "Ortega Ocampo, Ivan," vial number "'637388,'" and her name; she testified she typically uses the same form that was used for Ocampo's blood draw. She testified she followed all the steps she described to collect a blood sample from Ocampo. She also stated that had there been any issues or problems with the blood draw she would have noted this on the back of the form.
Although the reporter's transcript shows Casillas identified the vial number as "'637388,'" this appears to be a typographical error by the court reporter as the blood sample request form which was used during the examination of Casillas, identified by Casillas, and admitted into evidence (People's Exhibit No. 2) identifies the vial number as 687388. People's Exhibit No. 2 also indicated a "draw date" of May 8, 2020.
Kelly Brown is employed by the Orange County Crime Laboratory (Lab) as a forensic scientist. She is assigned to the forensic alcohol section of the Lab which includes both blood and breath alcohol analyses. She stated that after a sample is received, it is logged into the Lab's management system, given a forensic report number, and placed in a locked refrigerator until it can be analyzed.
Brown testified she tested the blood sample from "Ortega Ocampo, Ivan" that had come to the Lab sealed and contained in vial number 687388. Following her analysis, Brown determined the blood alcohol content of the sample to be 0.183%. Brown opined a man weighing 200 pounds would have to drink 11 or 12 standard drinks to achieve a .18% blood alcohol content. She further opined, assuming the same man had been driving at approximately 3:18 p.m. (before the 5:09 p.m. blood draw containing a blood alcohol level of 0.18%), she would expect the man's blood alcohol content to have been between 0.20% and 0.21% at the time he was driving. Brown opined under such circumstances, the man would have been impaired to safely operate a motor vehicle.
Ocampo was charged in an information with one felony count of criminal threats (Pen. Code, § 422), one misdemeanor count of driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)), and one misdemeanor count of driving with a blood alcohol content of .08% or more (Veh. Code, §23152, subd. (b)). The information also alleged Ocampo suffered prior convictions pursuant to sections 667, subdivisions (a)(1), (d) and (e)(1) and 1170.12, subdivisions (b) and (c)(1), as well as Vehicle Code section 23103.5.
All further references are to the Penal Code unless otherwise indicated.
The jury found Ocampo guilty of all counts and, after waiving his right to jury trial on the prior conviction allegations, the trial court found all such allegations true. The trial court sentenced Ocampo to four years in state prison on the criminal threats count and 360 days in jail on the driving under the influence counts, to be served concurrently to his prison sentence. Pursuant to section 654, the court stayed execution of the sentence imposed on the Vehicle Code section 23152, subdivision (b) count. Ocampo appealed.
DISCUSSION
Ocampo's appellate counsel suggests we consider whether the trial court erred in overruling Ocampo's chain of custody objection to the blood result evidence. "A chain of custody is adequate when the party offering the evidence shows to the satisfaction of the trial court that '"'taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration.'"' [Citation.] The reasonable certainty requirement is not met when some '"'vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received. Left to such speculation the court must exclude the evidence.'"' [Citation.] However, when there is only the barest speculation that the evidence was altered, '"'it is proper to admit the evidence and let what doubt remains go to its weight.'"'" (People v. Hall (2010) 187 Cal.App.4th 282, 294.) "We review a trial court's exercise of discretion in admitting evidence over a chain of custody objection for abuse of discretion." (Ibid.)
Here, Castillo testified to being present at the time blood was drawn from Ocampo at 5:09 p.m. at Rancho Santa Margarita City Hall. He further testified the blood vial number for Ocampo's blood sample was 687388.
Casillas testified as to her background as a phlebotomist with California Forensic Phlebotomy, the blood collection kit she uses, and the procedure she follows for collecting blood and placing the sample in a sealed envelope. Casillas identified the blood sample request used in this case and confirmed it included her name and the name of "Ortega Ocampo, Ivan." She testified she used the same procedures she utilizes in collecting samples as those she used to draw blood from "Ortega Ocampo, Ivan" at 5:09 p.m., and that she collected the sample in vial number 687388.
Brown testified as to her expertise as a forensic scientist at the Lab, the blood alcohol kits used by the lab phlebotomists to collect samples from individuals, and the testing she personally did on a blood sample for "Ortega Ocampo, Ivan," contained in vial number 687388. Brown also testified this vial was sealed when the Lab received it, and that the vial was logged into the Lab's management system, given a forensic report number, and then placed into a locked refrigerator until it was analyzed. Brown testified she was the forensic scientist who performed the analysis on Ocampo's sample.
The trial court did not abuse its discretion in admitting the blood result evidence. The testimony of Castillo, Casillas, and Brown provided the requisite link in the blood draw's custodial chain, i.e., its collection, storage, and testing, and the record is devoid of any evidence to show there was any tampering with the blood sample.
We have otherwise reviewed the entire appellate record as obligated under Wende and Anders, and we find no arguable issues on appeal. (People v. Kelly (2006) 40 Cal.4th 106, 110, 120, 124.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: MOORE, ACTING P.J. GOETHALS, J.