People v. Farias CA5 ( 2014 )

Filed 11/14/14 P. v. Farias CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F066500
Plaintiff and Respondent,
(Madera Super. Ct.
v. No. MCR039447)
RICHARD EUGENE FARIAS,
OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Madera County. Ernest J.
LiCalsi, Judge.
Kim Malcheski, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Sara
J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Appellant/defendant Richard Eugene Farias drove his Jaguar at high speed while
intoxicated and passed other cars on the road. Deborah Lyon was in the front passenger
seat, and Marcel Rodriguez and Valentino Valdez were in the backseat. Defendant lost
control of the car. It became airborne, flipped multiple times in the air, rolled on the
ground, and finally stopped in a field. Valdez and Rodriguez were ejected as the car
flipped in the air. When officers arrived at the scene, they found Lyon and Rodriguez
were dead. Defendant and Valdez survived. Valdez was able to describe what happened.
Defendant claimed he lost control because a bird hit the windshield. His blood-alcohol
content was .08 percent based on a test taken two hours after he was driving.
Charges
Defendant, who had a previous conviction for driving under the influence, was
charged with two counts of murder (Pen. Code, § 187, subd. (a)) for the deaths of Lyon
and Rodriguez. The jury was unable to reach verdicts on the murder charges and
mistrials were declared on those counts. However, the jury convicted him of the other
charged offenses: counts III and IV, gross vehicular manslaughter of Lyon and
Rodriguez while intoxicated (Pen. Code, § 191.5, subd. (a)); count V, driving under the
influence causing injury to Valdez (Veh. Code, § 23153, subd. (a)); and count VI, driving
with a blood-alcohol content of 0.08 percent or greater causing injury to Valdez (Veh.
Code, § 23153, subd. (b)). The jury also found true the special allegations as to counts III
and IV (Pen. Code, § 191.5, subd. (d)), and counts V and VI (Veh. Code, § 23566, subd.
(a)), that defendant had a prior conviction for driving under the influence; and as to
counts V and VI, that defendant caused great bodily injury to Valdez (Pen. Code,
§ 12022.7, subd. (a)). Defendant was sentenced to an aggregate term of 30 years to life
plus five years.
Appellate contentions
On appeal, defendant contends the court abused its discretion and violated his due
process rights when it permitted the prosecution’s expert to testify about retrograde
extrapolation as to what his blood-alcohol level would have been when he was driving –
based on the results obtained two hours later. Defendant also contends the court abused
its discretion when it imposed consecutive instead of concurrent terms because the
offenses arose from a single act. We affirm.
2.
FACTS
On the afternoon of November 13, 2010, Valentino Valdez and Marcel Rodriguez
walked to a liquor store in Madera.1 They saw defendant at the store. Valdez reminded
defendant that he was his neighbor and asked defendant for a ride home. Defendant
agreed and invited them into his car, a 1994 Jaguar XJ6 four-door sedan.
Deborah Lyon, defendant’s friend, was sitting in the front passenger seat. Valdez
sat in the rear driver’s side seat, and Rodriguez sat on the rear passenger side. Valdez
could not find any seatbelts in the back seat.
Valdez complimented defendant on his car. Defendant said the Jaguar had a
special passing gear called a “slapstick” shifter, and it “just makes the car jet, like from
50 to maybe 90 or 100, real quick.” Valdez testified defendant did not appear to be under
the influence of alcohol.
Valdez testified defendant was supposed to drive him home. Instead, defendant
drove in the opposite direction and into the country. The radio was loud and Valdez
could not talk to defendant to ask where he was going.
The crash
Valdez testified defendant was driving approximately 50 to 55 miles per hour on
the two-lane road. Defendant passed at least three cars which were traveling in front him.
A black BMW passed defendant on the left side, and it was going about 55 or 60 miles
per hour. Valdez thought defendant turned and said something to the BMW’s driver as
the car passed him.
1 Defendant and Valdez were the only survivors of the crash. Valdez testified for
the prosecution, admitted he was on probation for prior felony convictions, and that he
had problems with alcohol and drugs. Valdez failed to appear on the scheduled day of
his testimony because he was afraid he would be arrested for an unrelated probation
violation. When Valdez was recalled as a rebuttal witness, he admitted he had been taken
into custody for that violation.
3.
Valdez testified defendant suddenly “hit[] the gas” and accelerated. Valdez
looked at the speedometer over defendant’s shoulder, and the needle bounced between
100 and 110 miles per hour. Valdez again looked for a seatbelt and could not find it.
Valdez testified defendant came upon a slow-moving vehicle which was traveling
in the same lane in front of him. Defendant suddenly applied the brakes, and Valdez felt
the front of the car start shaking.
Valdez testified defendant lost control of the Jaguar. It fishtailed, veered off the
road, became airborne, and flipped. Valdez desperately held onto the seat, but he was
ejected. The Jaguar flipped in the air, crashed onto the ground, rolled several times, and
finally landed in an alfalfa field.
The witnesses
Joey Rodriguez, Philip Rodriguez, and Lorena Bravo were traveling in a black
BMW sports car on Avenue 14. Joey Rodriguez was driving about 45 to 50 miles per
hour. The speed limit was 55 miles per hour. At some point, Rodriguez got in front of
defendant’s Jaguar.
As they continued on Avenue 14, Bravo heard a car come up behind them, and
Philip said the car was going to crash. Bravo heard the tires lock as if the driver hit the
brakes. Bravo turned and looked through the BMW’s rear window, and saw the Jaguar
“coming toward us very fast and I thought they were gonna hit us.”
Bravo testified the Jaguar was going over 70 miles per hour. She watched as the
Jaguar flipped into the air, spun at least twice, hit the ground, and rolled over several
times. Bravo saw one person ejected from the car as it was in the air.
Bravo and her companions immediately stopped, called 911, and then ran to the
Jaguar. A body was lying near the car. The driver had gotten out of the car and was
holding his bloody head. They told the driver to sit down, which he did.
Sandra Gonzalez was also driving on Avenue 14 and noticed the Jaguar was
traveling “really quick” and “tried to pass.” The car appeared to hit the dirt and gravel on
4.
the shoulder. The car became airborne and flipped several times, and someone was
ejected from the car.
The scene
At approximately 3:00 p.m., California Highway Patrol Officer Isler responded to
the scene at Avenue 14, west of Road 23. The Jaguar was in an alfalfa field and on its
wheels, but had substantial damage from rolling over numerous times. Isler described the
roadway as straight and completely flat, the pavement was very good, and there were no
hazards on the road such as oil or water.
Valdez had been ejected from the car, but he was conscious and survived. He was
in tremendous pain in the area of his ribs and back.
Rodriguez also had been ejected from the car and he was lying in the field. He
was dead at the scene from crushing injuries to his head and body.
Lyon was still buckled into the front passenger seat. Her head was split open and
she was dead at the scene from massive head and brain injuries.
Defendant was sitting sideways in the driver’s seat. He was conscious and
suffered a head injury. Officer Isler briefly spoke to defendant and asked for his name,
whether he was driving, and what happened. Defendant identified himself. Defendant
said it was his car, and something hit the windshield and he lost control.
Officer Isler only spoke to defendant for a minute. He stood a couple of feet away
and did not detect the odor of alcohol from defendant. Defendant was bleeding from a
laceration to his skull. The medical personnel arrived and Isler stepped away for
defendant to receive treatment. Defendant and Valdez were taken to the hospital.
Defendant’s statements at the hospital
Around 4:45 p.m., Officer Isler spoke to Valdez at the hospital and obtained his
statement about what happened. Valdez had suffered fractured ribs and dislocated
fingers and was in the hospital for three days.
5.
After he spoke to Valdez, Officer Isler spoke to defendant in the emergency room.
Defendant was lying on a stretcher. He was wearing a neck collar, and his head injuries
were bandaged. Isler again asked defendant if he was driving and how the collision
happened. Defendant said he was driving, Lyon was in the front seat, and the two men
were in the back seat. They were going to a friend’s house. Defendant said something
struck his windshield, but he was not sure what it was. He thought it might have been a
bird. Defendant said he lost control, and the car rolled over.
As they talked, Officer Isler noticed defendant’s eyes were watery and bloodshot,
which was not unusual after having been in that type of collision. However, Isler also
smelled an odor of alcohol from defendant. He moved closer to defendant as he was
talking, and realized the odor was coming from defendant’s mouth. He was close enough
to defendant’s mouth to “get a good sniff of the alcohol that was coming out of his
breath.” Isler described the alcohol odor as “moderate to weak … it wasn’t strong. I just
could smell it coming from his breath, from past experience. [A]nd I could tell it
probably wasn’t beer either,” because “hard liquor has a different smell than beer.”
After smelling the alcohol, Officer Isler performed the horizontal gaze nystagmus
test on defendant and asked him to follow his finger with his eyes. Based on defendant’s
reaction, Isler believed he was under the influence of alcohol. Isler was unable to
perform any physical field sobriety tests because of defendant’s condition.
Officer Isler advised defendant of the Miranda2 warnings and asked if he had
eaten anything. Defendant said he had sausage and eggs. Isler asked if he drank
anything. Defendant said he had one shot of gin at his house at 11:00 a.m. Defendant
said he also took a 750-milligram Vicodin pill that morning but claimed he did not feel
any effects from it.
2 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda)
6.
At 4:52 p.m., defendant agreed to perform a Preliminary Alcohol Screening (PAS)
breath test, and the result was 0.074 percent.
Officer Isler testified he was “convinced” and there was “no doubt in my mind”
that defendant was under the influence of alcohol. Isler arrested defendant for driving
under the influence.
At 5:15 p.m., a blood sample was taken from defendant, and his blood-alcohol
content was determined to be 0.08 percent.
The investigation
CHP Officer Nicholas Haltom investigated the crash scene and found multiple tire
friction marks on the pavement. After the final friction mark, the vehicle became
airborne for 110 feet, hit the ground, flipped and rotated through the air an unknown
number of times, and crashed into the field. The car finally stopped approximately 240
feet from the last friction mark on the pavement.
Officer Haltom could not determine how many times the car flipped over.
However, there were several points of impact on the pavement and in the field, which
showed where the car hit the ground and then flipped back into the air. There was
massive damage on all sides of the car. Haltom testified the car was definitely traveling
faster than the speed limit of 55 miles per hour.
Officer John Kolter examined the Jaguar and determined that while there was
massive damage to the car’s body from the crash, there was no evidence of a mechanical
defect that would have caused the driver to lose control. He did not see any evidence of
anything hitting or cracking the windshield before the crash occurred.
Officer Kolter testified the car’s brake rotors were undersized and too thin. The
vehicle had sensors to trigger a dashboard light when there were problems with brake
friction, but the sensor wires had been cut and tied off to turn off the light. Nevertheless,
the driver would have known about the brake problem by feeling vibrations when using
7.
the brakes. The worn brakes would not have affected the driver’s ability to drive the car
or caused the car to go out of control.3 There were functioning seatbelts in the back seat.
After inspecting the scene and the incident report, Officer Kolter testified to his
opinion that the Jaguar was traveling at 74 miles per hour at the time of the crash. Kolter
testified the crash was caused by defendant’s recklessness and excessive speed.
Expert testimony
Ricardo Deslate, a criminalist with the Department of Justice, testified about
“retrograde extrapolation,” which is the process of determining “alcoholic concentration
in a person’s system based on a test result that was performed a little bit later.”4 The
variables included the time the last drink was consumed and how many drinks were
consumed with a certain period, compared to the time of the incident.
Deslate testified that 90 percent of the alcohol in a person’s system is metabolized
by enzymes produced by the liver. The “metabolic rate, burn off rate,” is an average of
0.02 per hour. “That means if you have 0.02 alcohol in your system, you will get rid of it
in one hour. That’s equivalent to about one drink in about [a] 150, 170-pound man.”
Deslate testified that was an average, some are lower and some are higher, and the range
of burn off is “between .015 to .025 … grams percent per hour.”
In response to the prosecutor’s series of hypothetical questions, Deslate testified
about what the blood-alcohol content would be at 3:00 p.m., for a man who was five feet
eight inches tall and weighed 175 pounds based on facts similar to this case, assuming his
3 Valdez testified that when defendant suddenly applied the brakes just before the
crash, Valdez felt the front of the car start to shake. Defendant testified he had owned his
Jaguar for seven or eight years, he usually kept it in storage because the insurance was so
high, and he did not know the brake sensor wires had been altered.
4 As we will explain in issue I, post, an expert who testifies about “retrograde
extrapolation” starts with an individual’s blood-alcohol content at the time of the
chemical test, and uses circumstantial evidence and various factors to determine the
person’s blood-alcohol content at the time that person was driving. (People v. Warlick
(2008) 162 Cal.App.4th Supp. 1, 7, fn. 2.)
8.
blood-alcohol content was 0.08 percent at 5:15 p.m., using retrograde extrapolation and
different burn-off rates.5 Deslate testified that using an average burn-off rate of 0.02
grams per hour, such a person would have had a blood-alcohol content of 0.12 percent at
3:00 p.m. Deslate used the same formula with a burn-off rate of 0.025 grams per hour,
and testified the person’s blood-alcohol content would have been 0.13 percent at 3:00
p.m. With a burn off rate of 0.015 grams, the person’s blood-alcohol content would have
been 0.11 percent.
The prosecutor asked Deslate to assume the man’s blood-alcohol content was 0.07
percent at 5:15 p.m., and to use a burn-off rate of 0.015. Deslate testified the man’s
blood-alcohol content would have been 0.10 percent at 3:00 p.m. under that hypothetical.
Deslate explained that if a person’s blood sample was preserved and tested at a
later time, the blood-alcohol result would be different at a rate of 0.01 to 0.02 percent
because of the volatility of alcohol in the blood. Deslate also explained that PAS tests
result in lower blood-alcohol results approximately 85 percent of the time because “you
don't really get 100 percent of deep lung air.”
Defense counsel asked Deslate to determine the hypothetical man’s blood-alcohol
content at 3:00 p.m. using the burn off rate of 0.025, based on a blood-alcohol content of
0.07 percent at 5:15 p.m. Deslate testified it would be 0.12 percent. Defense counsel
asked him to use the same hypothetical with a burn off rate of 0.01 percent. Deslate
explained the blood-alcohol content would be 0.022 percent. In the same hypothetical,
Deslate testified the blood-alcohol content would be 0.011 percent using a burn off rate
of 0.02 percent.
Defendant’s prior DUI
The prosecution introduced evidence of defendant’s prior conviction in 2004 for
driving with a blood-alcohol content of 0.08 percent or greater. The conviction was
5 Officer Isler testified defendant’s driver’s license said he was five feet eight
inches tall and weighed 175 pounds.
9.
based on a crash in March 2004. Anthony Tates and his family were in a pickup truck at
the intersection of Avenue 14 and Road 23, where there was a four-way stop sign. Tates
suddenly saw a small pickup truck heading toward him. Defendant, who was driving the
truck, ran the stop sign, his truck flew through the intersection, and he hit Tates’s truck in
a “T-Bone.” Defendant hit Tates’s truck with such force that heavy construction supplies
were thrown out of the bed of Tates’s truck. Tates’s head hit the windshield, his
nephew’s knees were pinned under the dashboard, and his daughter, who had been in the
extended rear cab, was pinned under the seat. Tates and his nephew had to pry his
daughter out of the truck.
Officer Brian Wendland interviewed defendant at the scene. Defendant said he
was driving on Road 23, but a car stopped right in front of him, and he could not stop in
time. He swerved to the right and hit Tates’s truck. After administering field sobriety
tests, Wendland arrested defendant at the scene for driving under the influence of alcohol.
Tates testified he attended all of the court hearings for defendant’s criminal
charge. At the sentencing hearing, defendant looked at Tates and he “was mad-dogging
me.”
DEFENSE EVIDENCE
Dr. Alan Barbour, a forensic alcohol supervisor at Central Valley Toxicology,
retested defendant’s blood sample and obtained blood-alcohol results of 0.070 and 0.071
percent. The error rate was plus-or-minus 0.01 percent, which meant his blood-alcohol
content could have as low as 0.06 percent or as high as 0.08 percent at 5:15 p.m., two
hours after the crash.
Defendant’s testimony
Defendant testified that on the morning of the crash, he woke up around 9:00 a.m.
and took a 600- or 750-milligram Vicodin pill for knee pain. At around 10:00 a.m., he
ate a hamburger and a couple of eggs for breakfast. At around 11:00 a.m. or 11:30 a.m.,
he was cleaning the kitchen and noticed a bottle of gin that his guests had left from the
10.
previous night. There were one or two shots left in the bottle. Defendant decided it was
not worth putting away the bottle so he drank the remaining gin. He also drank a glass of
water. He did not feel any effect from the gin.
Around 12:30 p.m., defendant drove his Jaguar to Deborah Lyon’s house. Lyon
was upset about a family matter, so they drove around for about 20 minutes and talked.
They stopped at a liquor store for cigarettes, and defendant saw Valdez and Rodriguez.
Defendant agreed to give them a ride.
Defendant confirmed that he told the two men about the Jaguar’s automatic
transmission “slap stick” shifter, which made his car “a little more special.” If he was
driving in the automatic position, he could press a button “and if the need arises to get by
a vehicle a bit faster, for passing, you press this button and you slap the stick over. And
you shove it into second or third, and you shift it just like you would a clutch-operated
vehicle, and you watch your RPMs in order to switch gears.”
Defendant testified he began driving, and he was daydreaming. He drove in the
opposite direction from his house. He accelerated to 80 miles per hour even though the
speed limit was 55 miles per hour. He used the slap shifter to pass one car; he crossed
into the opposite lane, passed the car, and returned to his lane. He passed a second car by
again crossing into the opposite lane, but he did not use the slap shifter. After he passed
the second car, he tapped the brakes to slow down to 60 miles per hour and return to his
lane. Defendant testified something “jerked” on the Jaguar’s front left side, and he
thought a tire blew out. He lost control and the car flipped into the air.
Defendant testified he could not remember anything else because of the head
injury he suffered in the crash. On further questioning, however, defendant recalled that
a black BMW passed him before the crash. Defendant denied that he tried to race it. He
admitted that he accelerated after the BMW was “way up ahead of us,” but “not for the
purpose of trying to catch that vehicle.”
11.
Defendant testified he did not tell the officer at the scene that a bird hit his
window. Instead, he asked the officer if that was what happened. Defendant could not
remember speaking to the officer at the hospital.
Defendant admitted he pleaded no contest to driving with a blood-alcohol content
of 0.08 percent or greater in 2004, based on the incident where Tates and his family were
injured. He was placed on probation. Defendant believed his blood-alcohol content was
0.08 percent. On further questioning, however, defendant conceded his blood-alcohol
content was 0.10 percent in the 2004 crash.
The prosecution introduced evidence that when defendant was placed on probation
for the 2004 conviction, he was admonished that if he continued to drive while under the
influence of alcohol or drugs or both, and as a result of his driving someone was killed,
he could be charged with murder. Defendant testified he did not recall being advised of
that warning by the court, his attorney, or the probation officer.6
Defendant admitted that in 2002, he was arrested for being drunk in public at the
Millerton marina. The charges were later dropped.
DISCUSSION
I. The court properly admitted the expert testimony about retrograde
extrapolation
Defendant contends the court should have completely excluded all aspects of
Deslate’s testimony about retrograde extrapolation because it is an unreliable and
unscientific theory, there was no scientific foundation for his opinions, his opinions were
6 Based on the 2004 admonishment and the other evidence in this case, defendant
was charged with the murder of the two victims in this case. However, the jury advised
the court it was hopelessly deadlocked on the murder charges, and instead convicted
defendant of two counts of gross vehicular manslaughter while intoxicated. The
foreperson later advised the court that the jury had been split 11 to one in favor of
convicting defendant of the two murder charges. The prosecution subsequently
dismissed the two murder counts.
12.
not based on defendant’s individual characteristics, and the admission of the evidence
violated his due process rights.
As we will explain, defense counsel raised very specific and narrow objections to
Deslate’s expert testimony, the court conducted an evidentiary hearing to address these
objections, and both the court and defense counsel agreed Deslate could testify about
retrograde extrapolation. Defendant never raised the objections that he now makes on
appeal. In order to avoid this omission, defendant alternatively contends defense counsel
was prejudicially ineffective for failing to preserve his due process objections to the
unreliability of retrograde extrapolation. These arguments are meritless.
A. Defendant’s motion in limine
We begin with defendant’s pretrial motion in limine, which sought to exclude
certain evidence of retrograde extrapolation as follows.
“Exclude any evidence of retrograde extrapolation where the opinion
states that alcohol is eliminated at a rate of 0.02% per hour on the
following grounds: improper opinion, lack of foundation, undue prejudice
(Evid. Code, § 352), and on the grounds that admission of that opinion
would violate defendant’s right to due process and a fair trial under the U.S.
and California Constitutions.” (Italics added.)
During pretrial motions, defense counsel conceded that “the case law says that
retrograde extrapolation is a legitimate prosecution tool in support of circumstantial
evidence with regard to what the BAC may have been at the time of the driving.”
Defense counsel clarified the nature of his motion to exclude:
“[A]ny blanket statement by any expert that alcohol is eliminated at a rate
of .02 percent per hour because that particular assertion is completely
lacking any foundation. I believe there’s [a] formula that is used to
determine what a person’s BAC may have been at a prior time to the time
the test was taken. But to allow someone to testify with regard to a number
without any further foundation I think would be prejudicial and would be
false because, you know, we are all human beings, we are all different,
biology works differently.” (Italics added.)
13.
The court asked the prosecutor for an offer of proof regarding the proposed
testimony of Deslate, the prosecution’s expert. The prosecutor replied Deslate would
give his opinion “based upon a formula that he uses and the blood alcohol content given
at a certain time and full absorption at a certain time within a hypothetical. So the
formula and the calculation they use is really supporting his own opinion. To limit my
expert in this way would be limiting his opinion improperly .…”
B. The evidentiary hearing
The court conducted an evidentiary hearing (Evid. Code, § 402) to address the
admissibility of Deslate’s expert testimony about the burn-off rates. Defense counsel
stated that for the purpose of the evidentiary hearing, there was “nothing in the CV that
would indicate he wouldn’t qualify as an expert.”
Deslate, a senior criminalist with the Department of Justice, testified retrograde
extrapolation is “the process of determining the amount of alcohol in a person’s system
based on a test … that was conducted at a later time. So you want to go back to a certain
time to determine what the amount of alcohol that’s in an individual’s system based on a
result of a test that is conducted a little bit later, later than the time you want the alcohol
to be determined.”
Deslate explained that to make this calculation he had to use a figure “that we
normally consider to be an average burn off. By that I mean the amount of alcohol that
our body metabolizes or gets rid of per hour.” There was a range which could be as low
as 0.015 to 0.025 grams percent alcohol per hour, “that’s where you got the average of
0.02 grams per hour is derived. Some people would argue that it’s actually .0175. The
difference is minuscule, so if you want me to use the average that’s fine too. But for
purposes of me answering your question, I’m going to use .02 as the average.”
The prosecutor asked Deslate about the source of the figures for the burn-off
range:
14.
“The very first time I learned about burn off was back in 1991. I
attended and completed a five-day course called Forensic Alcohol
Supervisor Course. Parts of those presentations involved burn off or
metabolism of alcohol.
“Over the years I have read and digested and learned numbers from
published studies conducted by experts in the field, as far as burn off is
concerned. And, also, I have participated in approximately about nine
correlation studies, nine forensic alcohol correlation studies, where
determining the burn off rate was also included.
“Based on those published studies done with other people and my
own participation in forensic alcohol studies, I have formed the opinion that
the rate of burn off per hour is .02 as an average, and has a range of .015
and .025.”
On cross-examination, Deslate testified numerous studies were the basis for his
opinion about the range.
“Q. Now, is it your testimony that nobody will have burn off at
either more than or less than the range that you’ve provided?
“A. I said that’s the reasonable range. Is it possible for
individuals to have a burn off that is very, very low? Yes. Particularly, if
you are dealing with somebody who has liver damage and cannot produce
the enzymes that are responsible for metabolizing alcohol.… [¶] But the
range I’m talking about are of those who are considered normal, without
medical conditions that would affect that particular aspect of physiology of
alcohol.”
Defense counsel clarified what Deslate would testify about:
“Q. Now, the reason we’re having this hearing is you’re not gonna
testify that burn off is .02 percent for everybody, are you?
“A. As I said earlier, I use that as an average. I’m not saying that
everyone is a burn off rate of .02. But because I don’t have somebody's
burn off rate when I’m being asked of it, I have to use that to arrive at the
number. If you want to me use a number between that range, that’s fine by
me.
“Q. Okay. Well, so you’re just saying that’s an average and that’s
what you use, right?
“A. Yes.
15.
“Q. Okay. But that’s not the definitive burn off rate for any
particular individual, right?
“A. No.” (Italics added.)
Deslate further testified that among his colleagues, “everyone in the laboratory”
used 0.02 as the average, but they also agreed the average burn-off range could be 0.015,
0.0175, and/or 0.025.
At the conclusion of the hearing, defense counsel stated his motion had been to
exclude “any testimony that said that .02 is the number” for the burn-off rate, and “I don’t
think that there’s a problem” in light of Deslate’s testimony. The court agreed that given
Deslate’s explanation, it would allow his testimony on retrograde extrapolation.
C. Deslate’s trial testimony
We have already set forth Deslate’s trial testimony above. On cross-examination,
defense counsel extensively cross-examined Deslate about the scientific studies regarding
burn-off and correlation rates, to explain the formulas he used for retrograde
extrapolation, and explain there are variables inherent in each person when determining
the burn off rate.
In closing argument, the prosecutor argued Deslate’s testimony about retrograde
extrapolation was very important, and summarized Deslate’s explanations about burn off
rates and blood-alcohol contents. The prosecutor acknowledged there was a range for the
burn off rate, but defendant’s blood-alcohol level was still over 0.08 percent at 3:00 p.m.
using the lower figure in that range. The prosecutor argued that even giving defendant
the benefit of a doubt, and assuming his blood-alcohol content was 0.07 percent at 5:15
p.m., it would have been 0.10 percent at the time of the crash.
Defense counsel used closing argument to undermine the accuracy of the results
from the breath and blood tests, and Deslate’s testimony about burn off rates and
retrograde extrapolation formulas.
16.
D. Analysis
Defendant contends the court abused its discretion and violated his due process
rights by admitting any evidence about retrograde extrapolation testimony because
Deslate did not know defendant’s individual burn-off rate. Defendant contends that in
the absence of such a figure, retrograde extrapolation is an unreliable and unscientific
theory and there was no scientific foundation for Deslate’s opinions.
To the contrary, retrograde extrapolation has been found admissible in this state.
“Retrograde extrapolation” is a method of introducing expert opinion, based on
circumstantial evidence, to determine a person’s blood-alcohol content at the time that
person was driving. (People v. Warlick, supra, 162 Cal.App.4th Supp. at p. 7.)
“ ‘[R]etrograde extrapolation’ is nothing more than the prosecutorial version of the
‘ “rising blood-alcohol” defense.’ [Citation.] Each starts with the defendant’s blood-
alcohol level at the time of chemical test and relies on circumstantial evidence regarding
the direction of change to convince the trier of fact that the level was different –
significantly higher or lower – at the time of driving.” (Id. at p. 7, fn. 2.)
The California Supreme Court has recognized the validity and admissibility of
expert testimony on retrograde extrapolation. (See, e.g., People v. Clark (1993) 5 Cal.4th
950, 993, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421,
fn. 22; People v. Thompson (2006) 38 Cal.4th 811, 826 (maj. opn. of Baxter, J.); id. at
p. 834 (dis. opn. of Werdegar, J.). “It is common … for experts to take into account the
metabolization rate of a substance and extrapolate from the amount of a substance in a
blood sample to arrive at an opinion regarding the amount of the substance in the blood at
a critical point in time….” (People v. Clark, supra, 5 Cal.4th at p. 993.) The Supreme
Court has further explained that while such extrapolations may be speculative because
“ ‘[t]here are numerous variables such as weight, or time and content of last meal which
may affect the rate at which the alcohol dissipates,’ [citations.]” such issues go to the
weight rather than the admissibility of the expert testimony. (People v. Thompson, supra,
17.
38 Cal.4th at p. 826 (maj. opn. of Baxter, J.), fn. omitted; see id. at p. 834 (dis. opn. of
Werdegar, J.).)
In this case, the court did not abuse its discretion or violate defendant’s due
process rights by permitting Deslate to testify about his opinions about retrograde
extrapolation. Such expert opinion evidence has been held admissible by our Supreme
Court. Moreover, defendant’s pretrial objections were not aimed at the general reliability
or scientific basis for this expert testimony. Instead, defendant’s motion and hearing
objections were to any evidence about a “blanket” burn-off rate of 0.02 percent. At the
evidentiary hearing, Deslate explained the range of opinions on average burn-off rates
and, in response to defense counsel’s questions, clarified that he would not testify that
0.02 percent was the burn-off rate for everyone. Defense counsel was satisfied with his
offer of proof. The court agreed and held Deslate could testify.
As the Supreme Court has explained, variations in the calculation are addressed to
the weight rather than the admissibility of expert opinion on retrograde extrapolation.
That is exactly what happened in this case. At trial, Deslate repeated his hearing
testimony and explained the average range of burn-off rates. He responded to numerous
hypothetical questions proposed by both the prosecutor and defense counsel using
different assumptions regarding burn-off rates and blood-alcohol contents. Defense
counsel extensively cross-examined Delsate about the basis for his assumptions and
opinions about these issues. The jury was clearly aware that there were different
possibilities for burn-off rates and the variables in the calculation.
Defendant never argued Deslate’s expert testimony on retrograde extrapolation
was unreliable or lacked any scientific basis because he did not know defendant’s
individual burn-off rate. On appeal, however, defendant asserts he preserved this issue
because his pretrial motion in limine asserted such evidence would violate his due
process rights. While defendant’s motion raised due process as an issue, it expressly
based that objection on the possibility Deslate would testify to his opinion that the burn-
18.
off rate was 0.02 percent for everyone. At the evidentiary hearing, defense counsel
conceded that “the case law says that retrograde extrapolation is a legitimate prosecution
tool in support of circumstantial evidence with regard to what the BAC may have been at
the time of the driving,” and explained his motion sought to exclude any “blanket
statement” that 0.02 percent was the burn-off rate for everyone because “we are all
different.” Defendant’s due process argument did not incorporate objections to the
general reliability of retrograde extrapolation.
Ineffective assistance
In the alternative, defendant contends defense counsel was prejudicially
ineffective for failing to preserve these issues below. To prevail on an ineffective
assistance claim, “defendant must first show that ‘ “counsel’s representation fell below an
objective standard of reasonableness ... under prevailing professional norms.” ’
[Citation.] Second, defendant must show that the inadequacy was prejudicial, that is,
‘ “there is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” ’ [Citation.] [¶] If ‘counsel’s
omissions resulted from an informed tactical choice within the range of reasonable
competence, the conviction must be affirmed.’ [Citation.] When, however, the record
sheds no light on why counsel acted or failed to act in the manner challenged, the
reviewing court should not speculate as to counsel’s reasons. To engage in such
speculations would involve the reviewing court ‘ “in the perilous process of second-
guessing.” ’ [Citation.] Because the appellate record ordinarily does not show the
reasons for defense counsel’s actions or omissions, a claim of ineffective assistance of
counsel should generally be made in a petition for writ of habeas corpus, rather than on
appeal. [Citations.]” (People v. Diaz (1992) 3 Cal.4th 495, 557–558.)
Defendant asserts the court would have been compelled to grant a defense motion
to completely exclude all evidence of retrograde extrapolation because such evidence has
19.
been questioned by the California Supreme Court and the courts of other states. As we
have explained, however, the California Supreme Court has held such evidence is
admissible and that variations go to the weight rather than the admissibility of the expert
opinion testimony. (People v. Thompson, supra, 38 Cal.4th at p. 826 (maj. opn. of
Baxter, J.), id. at p. 834 (dis. opn. of Werdegar, J.).) As for other jurisdictions, decisions
of sister state courts are not binding on California courts, and only have persuasive value
where the issues raised involve conflicting policies and the case is one of first impression
in California. (Savett v. Davis (1994) 29 Cal.App.4th Supp. 13, 16, fn. 2.) The
admissibility of retrograde extrapolation has been settled by the California Supreme
Court and we are bound by those holdings. (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.)
As for the cases cited by defendant from other states, these opinions found
evidence of retrograde extrapolation is generally reliable and admissible, but faulted the
failure of the experts in those cases to set forth the foundational basis for their opinions.
None of these cases held the expert must know the individual’s particularized burn-off
rate. For example, in United States v. DuBois (8th Cir. 1981) 645 F.2d 642, the court
held the expert’s testimony on retrograde extrapolation was speculative because the
defendant had consumed an unknown amount of alcohol between the time he was
driving, and when he was taken into custody and given a breath test. (Id. at p. 645.) In
so holding, however, the court acknowledged the reliability and admissibility of expert
testimony about retrograde extrapolation under the appropriate circumstances:
“If a defendant is placed in custody immediately after an accident and
remains under the control of officers or others and consumes no more
alcohol before the test is given, a conviction may be based upon the test
results and expert testimony estimating the blood alcohol level at the time
of the accident. See, e. g., State v. Parson, 226 Kan. 491, 601 P.2d 680,
683 (1979); State v. Hendrickson, 240 N.W.2d 846, 853 (N.D.1976); Toms
v. State, 95 Okl.Cr. 60, 239 P.2d 812, 820 (1952). See generally
McCormick’s Handbook of the Law of Evidence, § 209 at 512 (2d ed.
1972). See also Ullman v. Overnite Transportation Co., 563 F.2d 152 (5th
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Cir. 1977) (personal injury case; no indication of intervening drinking or
unsupervised period; permissible to extrapolate back, objections go to
weight). Cf. United States v. DeCoteau, 516 F.2d 16 (8th Cir. 1975) (no
indication of intervening drinking or unsupervised period)….” (Id. at
p. 644.)
In Mata v. State (Tex.Ct.App. 2001) 46 S.W.3d 902, cited by defendant, the court
held the expert’s testimony about retrograde extrapolation was unreliable and speculative
because it was riddled with inconsistencies that “prevented him from explaining the
science to the court with any clarity.” (Id. at p. 917.) Mata clarified that it was not
determining “the exact blueprint for reliability in every case.” (Ibid.)
“[T]he science of retrograde extrapolation can be reliable in a given case.
The expert’s ability to apply the science and explain it with clarity to the
court is a paramount consideration. In addition, the expert must
demonstrate some understanding of the difficulties associated with a
retrograde extrapolation. He must demonstrate an awareness of the
subtleties of the science and the risks inherent in any extrapolation. Finally,
he must be able to clearly and consistently apply the science.
“The court evaluating the reliability of a retrograde extrapolation
should also consider (a) the length of time between the offense and the
test(s) administered; (b) the number of tests given and the length of time
between each test; and (c) whether, and if so, to what extent, any individual
characteristics of the defendant were known to the expert in providing his
extrapolation. These characteristics and behaviors might include, but are
not limited to, the person’s weight and gender, the person’s typical drinking
pattern and tolerance for alcohol, how much the person had to drink on the
day or night in question, what the person drank, the duration of the drinking
spree, the time of the last drink, and how much and what the person had to
eat either before, during, or after the drinking.
“Obviously, not every single personal fact about the defendant must
be known to the expert in order to produce an extrapolation with the
appropriate level of reliability. As the Kentucky Supreme Court has
recognized, if this were the case, no valid extrapolation could ever occur
without the defendant’s cooperation, since a number of facts known only to
the defendant are essential to the process.” (Id. at p. 916, italics added.)
Mata did not hold that an expert must know a subject’s individualized burn-off
rate in order for retrograde extrapolation testimony to be reliable and admissible. In light
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of Mata, McCormick recognized: “Some courts have emphasized the need for care in
admitting retrograde extrapolations, but arguments that the extrapolation process itself is
so uncertain as to be inadmissible under Frye or Daubert have not prevailed.” (1
McCormick on Evidence (7th ed. 2013) § 205, fn. omitted, citing Daubert v. Merrell
Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579 & Frye v. United States (1923) 293 F.
1013.)
The other cases cited by defendant are not helpful to his claims. In People v.
Emery (Colo. 1990) 812 P.2d 665, defendant argued the prosecution’s expert testimony
on retrograde extrapolation was scientifically unreliable. The court declined to address
the issue, and held defendant’s conviction for driving under the influence was supported
by the statutory inference that if a chemical test reveals the defendant’s blood alcohol
level was above the legal limit within a reasonable time after the alleged offense, the jury
may infer defendant was driving under the influence. Emery held that since defendant’s
conviction was supported by the statutory inference, the prosecution’s expert testimony
regarding retrograde extrapolation was irrelevant and any error was harmless. (Id. at
pp. 667–668.)
In Com. v. Loeper (1995) 541 Pa. 393 [663 A.2d 669], the court held the
prosecution’s evidence of defendant’s intoxication was too speculative because it was
based on the officer’s description of defendant’s behavior, and the blood test taken
several hours after he was driving was insufficient to trigger the statutory inference that
his blood-alcohol level exceeded the legal limit when he was driving. (Id. at pp. 396–
399.) In Com. v. Gonzalez (1988) 519 Pa. 116 [546 A.2d 26], the court held the expert’s
testimony was speculative because there was no evidence when defendant consumed his
last drink, which undermined his opinion about what defendant’s blood-alcohol content
might have been when he was driving. (Id. at pp. 133–135.)
In this case, Deslate was presented with a series of hypothetical questions based on
the individualized factors cited by Mata – defendant’s gender, his height and weight, the
22.
amount he had consumed, the time between the crash and the blood test, and the results
from both the prosecution and defense blood tests. We thus conclude the court properly
admitted Deslate’s testimony and defense counsel was not prejudicially ineffective for
declining to bring a meritless motion to exclude his testimony based on the absence of his
individualized burn-off rate. (People v. Diaz, supra, 3 Cal.4th at p. 562.)
II. Imposition of consecutive terms
Defendant contends the court abused its discretion when it imposed consecutive
determinate terms for count IV, gross vehicular manslaughter of Rodriguez, and count V,
felony driving under the influence causing great bodily injury to Valdez, because the
offenses were based on a single course of conduct.
A. Background
Defendant was convicted of counts III and IV, gross vehicular manslaughter of
Lyon and Rodriguez while intoxicated; count V, driving under the influence causing
injury to Valdez; and count VI, driving with a blood-alcohol content of 0.08 percent or
greater causing injury to Valdez.
At the sentencing hearing, the court reviewed the probation report, which
recommended consecutive sentences for counts III, IV, and V because the offenses were
violent felonies and involved multiple victims. The probation report stated Penal Code
section 654 only applied to count VI since it involved Valdez, the victim in count V.
Also in the probation report, defendant said the crash was a tragedy because Lyon,
his best friend, died in the “terrible accident,” but he also was a victim “because now I
have to live with this.” Defendant stated he was not legally drunk and he would appeal
because “[m]y test is as good as DOJ[’]s.” Defendant stated he completed a DUI class
after his 2004 conviction, but admitted that since that time he consumed a pint of whiskey
a week. He started using cocaine in 2009, and he was using cocaine every couple of
weeks at the time of the crash.
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Defense counsel acknowledged the term for count III, gross vehicular
manslaughter while intoxicated of Lyon, was 15 years to life. Counsel argued the court
should imposed concurrent terms for the other offenses because the crash was an
“instantaneous event wherein these folks were killed or injured,” it was a single act of
violence, and the offenses were not independent of each other. Counsel also asked the
court to impose concurrent terms because otherwise defendant (born 1955) would never
get out of prison.
The prosecutor replied consecutive terms were appropriate because defendant was
convicted of committing crimes of violence against multiple persons, and he was aware
of the risks of drunk driving based on the admonishments he received for his prior
conviction.
The court found one aggravating circumstance, that defendant’s prior performance
on probation was not satisfactory because he was convicted of an offense while on
probation; and one mitigating circumstance, that defendant successfully completed
probation after it had been revoked and reinstated.
The court found that Penal Code section 654 did not apply to counts III, IV, and V
because the offenses involved separate victims. It applied to count VI because the
offense involved the same victim, Valdez, as in count V.
The court imposed the midterm of two years for count V, driving under the
influence causing injury to Valdez, plus a consecutive term of three years for the great
bodily injury enhancement. The court stayed the term imposed for count VI, driving with
a blood-alcohol content of 0.08 percent or greater causing injury to Valdez.
As to counts III and IV, gross vehicular manslaughter of Lyon and Rodriguez
while intoxicated, the court imposed consecutive terms of 15 years to life for each
offense, for an aggregate term of 30 years to life plus five years.
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B. Analysis
Defendant contends the superior court abused its discretion by imposing
consecutive instead of concurrent terms for counts III, IV, and V, in contradiction of the
California Rules of Court. In making this argument, however, defendant fails to address
several well recognized legal principles that are applicable to this case. “[I]t is generally
appropriate that a defendant be subject to greater punishment for committing an offense if
his or her commission of that offense causes injuries to multiple persons. [Citations.]”
(People v. Weaver (2007) 149 Cal.App.4th 1301, 1331.) “[V]ehicular manslaughter with
gross negligence constitutes a crime of violence against the person. [Citation.]” (People
v. McFarland (1989) 47 Cal.3d 798, 803.) “[W]here, as here, a defendant commits
vehicular manslaughter with gross negligence – an act of violence against the person – he
may properly be punished for injury to a separate individual that results from the same
incident.” (Id. at p. 804, fn. omitted.) When the defendant is charged with “vehicular
manslaughter as to one victim and drunk driving with injury as to another, the imposition
of separate sentences does not violate [Penal Code] section 654….” (Id. at pp. 804–805.)
DISPOSITION
The judgment is affirmed.
_____________________
Poochigian, Acting P.J.
WE CONCUR:
______________________
Franson, J.
______________________
Peña, J.
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