People v. Mahjoob CA2/3 ( 2016 )

Filed 4/6/16 P. v. Mahjoob CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B259878
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA102058)
v.
QAYS MAHJOOB,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Robert M. Martinez, Judge. Affirmed.
Hutton & Wilson and Richard A. Hutton; Jonathan K. Golden, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews and
Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
_______________________________________
INTRODUCTION
Defendant Qays Mahjoob appeals from his judgment of conviction on two felony
counts of driving under the influence of alcohol in violation of Vehicle Code
section 23153. The People’s case included the result of a blood test taken at the hospital
where defendant was treated for injuries sustained in a traffic accident, which test
indicated defendant’s blood alcohol concentration was 0.22 percent. Defendant
attempted to exclude the blood test result, contending the hospital failed to comply with
certain regulations applicable to forensic laboratories. The court refused to exclude the
blood test result, based mainly upon its finding that regulations relating to forensic
laboratories do not apply to clinical laboratories, such as the laboratory maintained by
the hospital. Defendant claims the court abused its discretion by excluding the forensic
laboratory regulations, and further erred by refusing to give several jury instructions
proposed by defendant relating to the regulations. Finding no error, we affirm.
FACTS AND PROCEDURAL BACKGROUND
A. The Accident
On April 4, 2013, Geraldine B. and her eight-year-old daughter Grace spent the
day at Disneyland. Geraldine and Grace returned to their car, a 2000 Toyota Camry,
and left Anaheim around midnight. An hour later, at roughly 1 a.m. on April 5, 2013,
Geraldine was stopped at a red light at an intersection near her house. The road she was
travelling on had two lanes running in each direction, with a center lane in the middle
for turn lanes. Geraldine was waiting to turn left; her car was in the left pocket turn lane
on the correct side of the double yellow line. Geraldine saw a car driving toward her on
the opposite side of the road in the lane closest to the center of the road. The car had its
headlights on. The oncoming car hit Geraldine’s car head on, propelling her car out of
the turn lane to the side of the road, and causing the driver’s side airbag to deploy.
Geraldine and Grace both sustained serious injuries as a result of the crash and were
taken by paramedics to U.C. Irvine Medical Center. Doctors performed surgery on
Geraldine’s foot. Grace required immediate abdominal surgery and a subsequent
surgery on her back.
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Defendant also sustained injuries to his head and left hip as a result of the
collision. At the scene, paramedics observed defendant was somewhat confused and
smelled of alcohol. One of the paramedics who treated defendant started an I.V.
catheter at the scene and used an alcohol swab on the defendant’s skin before inserting
the catheter.
Paramedics took defendant to Western Medical Center (the hospital) for
treatment, where he was admitted to the trauma unit. On arrival, the paramedics briefed
the surgeon on call regarding defendant’s condition. Consistent with her general
practice, the doctor ordered a series of blood tests, including a blood alcohol level. An
emergency room nurse drew defendant’s blood. In accordance with her usual practice,
the nurse cleaned defendant’s arm using a prep pad containing isopropyl alcohol (70%)
and chlorhexidine before inserting the needle for the blood draw. In accordance with
the hospital’s usual practice, the blood samples were labeled and tracked in the
hospital’s computer system. The laboratory test revealed defendant’s blood alcohol
concentration was 0.22 percent.
B. The Charges
The information contained two felony counts of driving under the influence.
Count one charged defendant with a violation of Vehicle Code section 23153,
subdivision (a), driving under the influence of alcohol. Count two charged defendant
with a violation of Vehicle Code section 23153, subdivision (b), driving with a blood
alcohol level of 0.08 percent. As to both counts, the information alleged defendant
inflicted great bodily injury on the two victims within the meaning of Penal Code
section 12022.7, subdivision (a), rendering both counts serious felonies within the
meaning of Penal Code section 1192.7, subdivision (c)(8). The information further
alleged one strike prior (Penal Code, § 667, subds. (b)-(j), § 1170.12) and one serious
felony prior (Penal Code, § 667, subd. (a)(1)).
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C. Defendant’s Motion in Limine to Exclude the Hospital’s
Blood Alcohol Test Result
Prior to trial, defendant moved to exclude the blood alcohol test result on the
ground the hospital laboratory did not comply with regulations applicable to forensic
laboratories (Cal. Code Regs., tit. 17, § 1215 et seq. [“Group 8 regulations”]).
Defendant acknowledged hospital laboratories are not required to follow Group 8
regulations, but argued blood alcohol analysis performed for medical purposes is
unreliable—and therefore inadmissible in a criminal proceeding—to the extent it does
not comply substantially with those regulations.1 More particularly, defendant
complained the hospital’s blood alcohol analysis method, which uses plasma rather than
whole blood, is not generally accepted in the community of forensic scientists.
At the hearing on the motion conducted under Evidence Code section 402, the
parties stipulated to several foundational facts, including: the hospital is not a forensic
laboratory licensed under Group 8 regulations; the hospital did not retain defendant’s
blood sample for one year after collection; the blood alcohol analysis was not performed
by a licensed forensic alcohol analyst; the hospital used an enzymatic method of
analysis performed on blood plasma to obtain the blood alcohol level; and, the hospital
did not run a duplicate test to confirm the blood alcohol level.
Each side presented testimony regarding the reliability and accuracy of the
hospital’s blood alcohol test result. Defendant offered expert testimony by
Dewayne Beckner, a forensic chemist who worked for the Los Angeles County
Sheriff’s Department for more than 25 years, regarding the Department of Health
Services regulations applicable to forensic laboratories, as well as standard blood
alcohol testing protocols used in forensic laboratories. Beckner explained forensic
laboratories always test a blood sample twice, in order to ensure accurate results.
1
Hospital laboratories are considered clinical laboratories rather than forensic
laboratories. The regulations applicable to clinical laboratories (“Group 2 regulations”)
are found in a different section of Title 17. (See Cal. Code Regs., tit. 17,
§ 1029.5 et seq.)
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Further, forensic laboratories use whole blood, rather than plasma, to test blood alcohol
concentration. Beckner explained that when plasma is separated from blood cells and
platelets, the alcohol in the blood stays with the plasma, resulting in a higher alcohol
concentration in the plasma sample as compared to an equal amount of whole blood.
Accordingly, blood alcohol tests performed on plasma generally yield results that are
significantly higher than results performed on whole blood. Beckner also indicated the
degree of increased alcohol concentration is difficult to predict and can range between
10 and 30 percent; for that reason, Beckner explained, enzymatic analysis is considered
unreliable for forensic purposes.
The People presented testimony by clinical laboratory scientist Nancy
Wybel-Davis, the administrative director of the hospital’s laboratory. She summarized
the licenses the hospital maintains as a clinical laboratory as well as some of the quality
control and equipment testing procedures the hospital follows to ensure the accuracy of
its laboratory test results. Specifically, she explained the hospital’s lab is accredited by
the College of American Pathologists (CAP), which she indicated has the highest
standards for lab proficiency in the country. As part of the accreditation process, CAP
sends its member laboratories samples several times a year; the laboratories test the
samples and send the results to CAP for evaluation. CAP then issues reports evaluating
the participating laboratories concerning the accuracy of their test results. Wybel-Davis
reviewed the 2013 CAP report regarding alcohol testing. The hospital received
a 100 percent score for each of the three tests it participated in during 2013.
Wybel-Davis also noted the mean blood alcohol level for enzymatic testing was very
close to the mean blood alcohol level for gas chromatography (the method used by
forensic laboratories), which she said indicated the two different test methods were
comparable.
On the basis of this evidence, the court denied defendant’s motion to exclude the
hospital’s blood alcohol test result. The court observed the Department of Health
Services adopted separate regulatory and licensing schemes for clinical laboratories
(Group 2) and forensic laboratories (Group 8). Although the requirements are different,
5
both sets of regulations had “the objective of ascertaining as accurately and carefully as
possible the amount of alcohol in a person’s blood.” The court also noted there was
room for disagreement about which scheme was “better suited to achieve correctness.”
Ultimately, however, the court found “there is no basis to preclude the introduction of
the test result[ ] and that, at least up to this point, there appears to be compliance with
the mandates required for the licensing of the hospital involved.”
D. The People’s Request to Exclude Evidence and Testimony
Regarding Forensic Laboratory Regulations
At the outset of the trial proceedings, the People moved to exclude the Group 8
regulations under Evidence Code section 352. The prosecutor expressed concern that
defendant would elicit testimony and present other evidence regarding the forensic
laboratory regulations as well as the hospital’s failure to comply with them. The
prosecutor argued that in light of the court’s recognition that Group 8 regulations do not
apply in the clinical laboratory setting, defendant’s anticipated approach would likely
confuse and mislead the jury. Defendant maintained the jury was entitled to know
about the Group 8 regulations as well as the hospital’s failure to comply with them.
The court expressed its concern that allowing evidence regarding the forensic lab
regulations would require “the testimony of experts about a law that has no application
to the underlying facts,” and would also require the People to introduce testimony
regarding Group 2 regulations applicable to clinical laboratories such as the hospital’s
laboratory. Accordingly, the court granted the People’s motion, finding evidence
regarding the Group 8 regulations would be unduly time consuming, confusing to the
jury, and would have no probative value because the regulations did not apply to the
hospital.
E. Trial Testimony Regarding the Hospital’s Blood Alcohol Test Result
1. The People’s evidence
The People presented testimony by hospital personnel who participated in
defendant’s care and treatment at the hospital after the accident, as well as the
laboratory personnel that performed the analysis of defendant’s blood. As relevant here,
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the trauma surgeon ordered a panel of blood tests, including a blood alcohol level, upon
defendant’s admission to the hospital. A registered nurse drew a blood sample from
defendant in the emergency room. In the hospital’s laboratory, a phlebotomist placed
a vial of defendant’s blood in a centrifuge and separated the blood cells and platelets
from the plasma. A clinical laboratory scientist then placed the vial of separated blood
into a machine called a Dimension RxL (RxL) which measured the amount of alcohol in
defendant’s blood plasma using an enzyme-based testing process. According to the
hospital’s records, the RxL measured defendant’s blood alcohol level at 215 milligrams
per deciliter. Rounded and converted to a percentage, the test showed defendant’s
blood alcohol concentration was 0.22 percent. In accordance with the hospital’s usual
practice, defendant’s blood samples were destroyed after one week.
The hospital’s laboratory administrator, Nancy Wybel-Davis, also testified at
trial as she had during the hearing on defendant’s motion in limine. Wybel-Davis again
explained the licensure and accreditation requirements for clinical laboratories, and
described the hospital’s participation in the semi-annual quality control program
monitored by CAP. In addition, Wybel-Davis described the more frequent quality
control procedures used by the hospital to ensure the reliability of the RxL machines.
Specifically, she explained that on a daily basis, the hospital laboratory scientists test
samples provided by an independent monitoring company, and then the hospital sends
its test results to the company for analysis. As in the CAP program, the independent
company compares the hospital’s test results with the results of other laboratories
participating in the program. On the day the hospital treated defendant, the RxL used to
test his blood for alcohol content scored within the accepted range.
On cross-examination, Wybel-Davis acknowledged the quality control testing
done in the hospital laboratory is performed on a clear sample, rather than on human
blood. She confirmed the hospital maintains a clinical laboratory, not forensic
laboratory, and as such, the hospital is not required to follow Group 8 regulations.
Further, she explained that the hospital laboratory uses an enzyme testing method to
determine blood alcohol concentration, rather than the gas chromatograph method used
7
by forensic laboratories. Finally, she confirmed the hospital laboratory tests a patient’s
blood solely for medical purposes.
In addition, the People presented an expert witness, Vina Spiehler, a forensic
pharmacologist who is board certified in forensic toxicology. Spiehler offered several
significant opinions in this case. First, she explained that the machine used by the
hospital to measure blood alcohol (Dimension RxL) is very accurate in measuring blood
alcohol content and compares well to other methods used to measure blood alcohol.
Spiehler indicated that the RxL adds an enzyme to a sample of blood plasma to
determine the amount of alcohol present in the blood. Specifically, the machine
measures the amount of light that can shine through a plasma sample. Then, it adds an
enzyme which reacts with and binds to any alcohol in the sample. After allowing the
enzyme time to react, the machine shines a light through the sample a second time. The
decrease in light penetration is used by the machine to calculate the alcohol level in the
sample. As compared to gas chromatography, the preferred method in forensic
laboratories, Spiehler said the RxL has a correlation of 0.989, which she described as
“a good correlation.”
Second, Spiehler acknowledged alcohol levels in plasma are typically 15 to
20 percent higher than the levels found in whole blood because all the alcohol in a blood
sample stays with the plasma as the blood is separated in a centrifuge. In order to
convert the result obtained from a plasma sample into a whole blood equivalent,
Speihler generally divides the result by 1.18, a number derived from scientific studies.
According to Speihler, although the raw data indicated defendant’s blood plasma
alcohol level was 0.22 percent, in her opinion his whole blood alcohol level was most
likely 0.19 percent, but could have been anywhere in the range of 0.16 to 0.21 percent.
On cross-examination, Spiehler conceded defendant’s blood alcohol level could have
been slightly lower, in the range of 0.159 to 0.195 percent.
Third, Speihler explained that the RxL measures ethanol, the type of alcohol
found in alcoholic beverages such as wine, beer and spirits. By design, the machine
does not register other types of alcohol, such as isopropyl alcohol, which is rubbing
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alcohol. Accordingly, the RxL’s blood alcohol test results would not be impacted by
alcohol used topically, and as part of a normal clinical procedure.
Finally, Spiehler commented on the differences between forensic laboratory
practices and clinical laboratory practices. For nearly seven years, Spiehler worked for
the Orange County Crime Lab and investigated deaths caused by drunk driving. She
explained that forensic laboratories take a different approach to blood alcohol testing in
that they analyze whole blood, they generally run more than one test to determine the
alcohol level in a sample, and they retain samples for at least one year to allow law
enforcement and/or a defendant to perform additional tests on the sample. Spiehler
indicated the forensic laboratory approach is probably the best practice, and that it
would also be best practice to confirm a blood alcohol level obtained by enzymatic
testing by performing a second test using a different method of analysis. She also
conceded that when a laboratory only runs one test on a sample, she would have
“perhaps not as high a level of confidence in the result as you’d have if you did more on
it.”
2. Defendant’s evidence
Defendant again presented testimony by Dewayne Beckner, an expert forensic
chemist. As he did at the hearing on defendant’s motion in limine, Beckner highlighted
the differences between forensic and clinical laboratory procedures. In Beckner’s
opinion, the enzymatic method used by the hospital is not used in any crime lab in
California because “it’s not forensically reliable.” Beckner further criticized the
hospital on several grounds. First, he stated daily machine testing would be inadequate
in the forensic setting, where machines are tested before, during and after every test.
Second, he criticized the methodology used by CAP because it evaluates laboratories on
their accuracy in comparison to other laboratories performing the same test, whereas
forensic laboratories measure their performance against an absolute standard. Further,
based upon his review of the CAP 2013 alcohol test results, he stated although CAP
deemed the hospital’s results to be “acceptable,” the hospital’s test results were not
9
within five percent of the mean. In his view, that level of variation would not be
acceptable in the forensic laboratory setting.
Beckner also explained several differences between the enzymatic testing
method used by the hospital and the gas chromatography method used by forensic
laboratories. In his view, the hospital’s method is susceptible to contamination through
the topical use of alcohol to clean a patient’s skin immediately before inserting a needle
to collect a blood sample. Further, the size of test sample used by the RxL is too small
to get a forensically reliable result. Beckner also challenged the hospital’s practice of
destroying a blood sample after one week. In his opinion, the better practice, and the
one used by forensic laboratories, is to maintain a sample for at least one year so it can
be retested. For all those reasons, Beckner stated he had “no forensic confidence at all”
in the hospital’s blood alcohol test result.
F. Verdict and Sentencing
The jury found defendant guilty on both counts and found the allegations
regarding serious bodily injury true as to both victims. Prior to sentencing, defendant
brought a Romero motion seeking to strike his prior serious felony conviction. The
court denied the motion and imposed the sentence as follows. On count one, the court
selected the mid-term base sentence of two years, which it doubled due to the prior
felony conviction (Pen. Code, § 1170.12, subd. (c)(1)), resulting in a base term of four
years. The court imposed two three-year enhancements due to the serious bodily injury
of the victims (Pen. Code, § 12022.7, subd. (a)) and an additional five year
enhancement due to the prior serious felony conviction (Pen. Code, § 667, subd. (a)(1)),
all to run consecutively for a total sentence of 15 years imprisonment in state prison.
The court stayed the conviction and related enhancements on count two under Penal
Code section 654. The court ordered a restitution fine of $300 (Pen. Code, § 1202.4,
subd. (b)) and restitution to the victims in an amount to be determined (Pen. Code,
§ 1202.4, subd. (f)). The court also awarded a total custody credit of 183 days,
comprised of 159 days of actual custody and 24 days of good time credit.
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CONTENTIONS
Defendant contends the trial court erred by excluding Group 8 regulations under
Evidence Code section 352, refusing to give defendant’s proposed pinpoint instruction
relating to Group 8 regulations, and refusing to instruct the jury it could consider the
hospital’s noncompliance with Group 8 regulations in evaluating the blood test result.
DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion By Excluding
Inapplicable Regulations Under Evidence Code § 352.
Defendant contends the court erroneously excluded under Evidence Code
section 352 evidence and testimony regarding Group 8 regulations applicable to
forensic laboratories. We disagree.
“ ‘ “It is within a trial court’s discretion to exclude evidence if its probative value
is substantially outweighed by the probability that its admission would create
a substantial danger of undue prejudice. (Evid. Code, § 352.) Our review on this issue
is deferential. A trial court’s decision whether to exclude evidence pursuant to
Evidence Code section 352 is reviewed for abuse of discretion.” ’ [Citation.]” (People
v. Pearson (2013) 56 Cal.4th 393, 457.) Here, the court found the Group 8 regulations
applicable to forensic laboratories had no probative value because they did not apply to
the hospital, which maintained a clinical laboratory. The court was correct. Under
Health and Safety Code section 100700, “laboratories engaged in the performance of
forensic alcohol analysis tests by or for law enforcement agencies on blood, urine,
tissue, or breath for the purposes of determining the concentration of ethyl alcohol in
persons involved in traffic accidents or in traffic violations shall comply with Group 8
(commencing with Section 1215) of Subchapter 1 of Chapter 2 of Division 1 of Title 17
of the California Code of Regulations . . . . ” (Health & Saf. Code, § 100700,
subd. (a)(1).) It is undisputed the hospital is not a forensic laboratory; it is a clinical
laboratory and as such it is subject to the regulations set forth in Group 2 (commencing
with section 1029.5) of the same section of Title 17.
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The court also concluded if it allowed defendant to present evidence and
testimony regarding the inapplicable regulations, two results were likely. First, the
People would be required to present evidence and testimony regarding the applicable
Group 2 regulations, which would render the entire subject unduly time consuming.
Second, it was likely the jury would be misled or confused if defendant presented
evidence about Group 8 regulations applicable to forensic laboratories and then the
court instructed the jury that those regulations do not apply to clinical laboratories, such
as the laboratory maintained by the hospital. Accordingly, the court excluded the
Group 8 regulations as irrelevant. We see no error in the court’s reasoning. (See
People v. Rippberger (1991) 231 Cal.App.3d 1667, 1689-1690 [approving trial court’s
decision to exclude under Evidence Code § 352 evidence of statutes and regulations
from other states regarding Christian Science health practices due to lack of probative
value, undue consumption of time, and potential to mislead and confuse the jury].)
Defendant argues the court’s ruling was extremely prejudicial because it
prevented him “from presenting the core of his defense, i.e., that the hospital’s protocols
fell far short of the stricter procedures applied statewide to all forensic alcohol
laboratories and, in turn, the reliability of the hospital’s lab result was subject to doubt.”
In so arguing, defendant overstates the scope and impact of the court’s ruling. Although
the court excluded testimony and references to Group 8 regulations, it did not prevent
the defendant from exploring the broader issue—the different standards of practice used
by clinical laboratories and forensic laboratories. Indeed, defendant challenged the
reliability of the hospital’s blood test result on that basis throughout the trial.
In opening statements, for example, defense counsel focused on the higher level
of alcohol found in plasma as compared to whole blood: “[T]hey didn’t analyze whole
blood. What they did was they centrifuge it out. It goes around real fast, and red blood
cells settle to the bottom of the vial and there’s liquid at the top. There’s always going
to be more alcohol in the liquid in the top of the sample.” He then criticized the
hospital’s use of enzyme-based testing, which he argued is not as precise as gas
chromatography: “Here the People are going to use a number. They don’t know what
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the number is. They can just give you a range of what their expert thinks it must have
been because they never analyzed whole blood.” Then during trial, as described in
detail ante, defense counsel elicited testimony from hospital employees regarding their
practices related to the blood draw and testing, including the topical use of isopropyl
alcohol in defendant’s skin prior to the blood draw. Defense counsel also questioned
the People’s expert, Vina Spiehler, regarding the practices used by forensic laboratories
as compared to the practices used in clinical laboratories, eliciting testimony suggesting
the best practices in forensic laboratories are more rigorous and more reliable than those
used at hospitals. Perhaps most importantly, defendant presented expert testimony
criticizing the standards of practice used at the hospital. As summarized ante, the
defense expert, Beckner, testified that the hospital’s blood test results had “no forensic
reliability” because the hospital does not follow the standard practices of forensic
laboratories.
Finally, defense counsel emphasized the point during closing argument: “So
let’s talk about the blood for a minute. I throw this out. I think it’s self-evident that if
you’re asking a jury to convict somebody of a serious crime that they should do it right
with the people that are analyzing the blood in this case, should do it right.” Counsel
then reminded the jury the hospital staff applied alcohol topically before drawing the
blood and, further, used an enzymatic analysis method which was inaccurate in that it
identifies a range rather than a precise blood alcohol level. He went on to criticize the
proficiency testing used for accreditation purposes: “[T]he proficiency tests that were
mentioned by [the prosecutor] would never pass muster, would never come close to
passing muster in a forensic laboratory. They’re outside of 5% on three of their five
[test results].” Then, in addition to criticizing the hospital for testing defendant’s blood
sample only once, as opposed to twice as is required in a forensic laboratory, counsel
concluded: “My point is this: They’re held to much looser standards than a forensic
alcohol laboratory is.” The record before us demonstrates defendant was allowed to,
and did, challenge the hospital’s blood test result because it did not comply with the
standards of practice used by forensic laboratories. The existence and content of the
13
Group 8 regulations themselves, which was the subject of the court’s exclusionary
order, would have added little, if any, weight to defendant’s argument.
In short, we see no error in the court’s decision to exclude evidence relating to
the regulations applicable to forensic laboratories under Evidence Code section 352.
Assuming the court did err in some fashion, the error was harmless.
B. The Trial Court Properly Refused To Give Defendant’s Proposed
Pinpoint Instruction Regarding Forensic Laboratory Regulations
Defendant contends the court erred by refusing to give his proposed pinpoint
instruction regarding Group 8 regulations. We disagree.
“ ‘It is settled that in criminal cases, even in the absence of a request, the trial
court must instruct on the general principles of law relevant to the issues raised by the
evidence. [Citations.] The general principles of law governing the case are those
principles closely and openly connected with the facts before the court, and which are
necessary for the jury’s understanding of the case.’ [Citations.]” (People v. Diaz
(2015) 60 Cal.4th 1176, 1189; see also Pen. Code, § 1127 [“Either party may present to
the court any written charge on the law, but not with respect to matters of fact, and
request that it be given. If the court thinks it correct and pertinent, it must be given; if
not, it must be refused”].) The propriety of jury instructions is a legal question we
review de novo. (People v. Leeds (2015) 240 Cal.App.4th 822, 830.)
“Under appropriate circumstances, ‘a trial court may be required to give
a requested jury instruction that pinpoints a defense theory of the case by, among other
things, relating the reasonable doubt standard of proof to particular elements of the
crime charged. [Citations.] But a trial court need not give a pinpoint instruction if it is
argumentative [citation], merely duplicates other instructions [citation], or is not
supported by substantial evidence [citation].’ [Citation.]” (People v. Coffman and
Marlow (2004) 34 Cal.4th 1, 99.) Here, the defendant requested a lengthy pinpoint
instruction which quoted six of the Group 8 regulations. The instruction would have
advised the jury, for example, that Group 8 regulations require collection of enough
blood to permit duplicate testing, prohibit topical use of alcohol to clean the skin surface
14
before taking the blood sample, and require blood sample retention for one year. As we
explained ante, these regulations did not apply to the hospital. Accordingly, the
proposed instruction did not state “principles of law governing the case,” as required.
Further, the requested instruction was plainly argumentative, in that it emphasized
defendant’s contention the hospital should have been held to the purportedly higher
standards of practice applicable to forensic laboratories. For both these reasons, we
conclude the court properly refused the pinpoint instruction.
C. The Trial Court Was Not Required To Give The Optional
Language in CALCRIM Instructions Nos. 2100 and 2101 Regarding
Title 17 Regulatory Compliance
Finally, defendant contends the court erred by refusing to instruct the jury it
could consider the hospital’s failure to comply with Group 8 regulations when it
considered the hospital’s blood alcohol test result. We disagree.
The court properly instructed the jury regarding the elements of the two felony
offenses using CALCRIM No. 2100 [driving under the influence] and 2101 [driving
with a blood alcohol level of 0.08%]. As given, CALCRIM No. 2100 sets forth four
elements the prosecution must prove beyond a reasonable doubt: “(1) The defendant
drove a vehicle; (2) When he drove a vehicle, the defendant was under the influence of
an alcoholic beverage; (3) While driving a vehicle under the influence, the defendant
also committed an illegal act or neglected to perform a legal duty; and (4) The
defendant’s illegal act or failure to perform a legal duty caused bodily injury to another
person.” The instruction goes on to provide in pertinent part: “A person is under the
influence if, as a result of drinking or consuming an alcoholic beverage, his or her
mental or physical abilities are so impaired that he or she is no longer able to drive
a vehicle with the caution of a sober person, using ordinary care, under similar
circumstances. [¶ ] . . . [¶] If the People have proved beyond a reasonable doubt that
the defendant’s blood alcohol level was 0.08 percent or more at the time of the chemical
analysis, you may, but are not required to, conclude that the defendant was under the
influence of an alcoholic beverage at the time of the alleged offense.”
15
CALCRIM No. 2101 contains identical language regarding the elements of that
offense, except that element 2 is more specific, requiring the prosecution to prove “the
defendant’s blood alcohol level was 0.08 percent or more by weight.” In terms of the
standard of proof, CALCRIM No. 2010’s language is similar to CALCRIM No. 2100,
providing: “If the People have proved beyond a reasonable doubt that a sample of the
defendant’s blood was taken within three hours of the defendant’s driving and that
a chemical analysis of the sample showed a blood alcohol level of 0.08 percent or more,
you may, but are not required to, conclude that the defendant’s blood alcohol level was
0.08 percent or more at the time of the alleged offense.”
Defendant does not argue these instructions were incorrect. Instead, he contends
the court erred when it refused to give an optional paragraph found in both of the pattern
CALCRIM instructions. Specifically, defendant requested the court to instruct the jury:
“ ‘In evaluating any test results in this case, you may consider whether or not the person
administering the test or the agency maintaining the testing device followed the
regulations of the California Department of Health Services.’ ” (CALCRIM Nos. 2100,
2101.) Further, and as already noted, defendant requested the court give a special
pinpoint instruction containing the text of several Group 8 regulations. Taken together
those instructions would have advised the jury it could consider the hospital’s failure to
comply with Group 8 regulations when it considered the weight of the blood alcohol test
result.
In order to evaluate defendant’s instructional error claim, we summarize relevant
law regarding the regulations applicable to blood alcohol tests conducted by or for law
enforcement, and the legal effect of noncompliance with those regulations. The
optional language in CALCRIM Nos. 2100 and 2101 was derived from two cases:
People v. Adams (1976) 59 Cal.App.3d 559, 567 (Adams) and People v. Williams
(2002) 28 Cal.4th 408, 417 (Williams). The issue presented in those cases was whether
law enforcement’s failure to comply with Group 8 regulations governing breath tests
rendered the test results inadmissible under Evidence Code section 402.
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In Adams, the defendants asked the court to exclude the results of a breath test
which failed to strictly comply with the applicable regulation regarding equipment
calibration. In analyzing the issue, the court first noted the prevailing view that breath
tests are considered a reliable means to determine blood alcohol concentration, so long
as the general foundational requirements for admissibility of testing results are met.
(People v. Adams, supra, 59 Cal.App.3d at p. 561 [noting admissibility requirements
“are that (1) the particular apparatus utilized was in proper working order, (2) the test
used was properly administered, and (3) the operator was competent and qualified”].)
Further, although the applicable regulations provided “ ‘the testing of breath samples by
or for law enforcement agencies for purposes of determining the concentration of ethyl
alcohol in the blood of persons involved in traffic accidents or in traffic violations shall
be performed in accordance with’ ” the regulatory standards, the regulations did not
indicate whether or to what extent noncompliant test results would be admissible in
criminal proceedings. (Id. at p. 562.) The court cited Evidence Code section 351,
which “favor[s] admissibility [of evidence] in the absence of a contrary expression in
a statute,” and ultimately concluded “noncompliance goes merely to the weight of the
evidence. The regulations are an expressed standard for competency of the test results;
in effect, they are a simplified method of admitting the results into evidence.” (Adams,
supra, at pp. 565, 567.) Although the court indicated the defendants “were entitled to
attempt to discredit the results by showing that noncompliance affected their validity,”
the court rejected the defendants’ contention “that such noncompliance inherently and
automatically rendered the machine unreliable and the test results worthless,” holding
that so long as the general indicia of reliability are present, test results obtained by law
enforcement without regulatory compliance are admissible. (Id. at p. 567.)
The Supreme Court later adopted Adams, noting “[e]ssential to Adams was the
principle that admissibility depends on the reliability and consequent relevance of the
evidence, not the precise manner in which it was collected. Compliance with
regulations is sufficient to support admission, but not necessary. Noncompliance goes
only to the weight of the evidence, not its admissibility. [Citation.]” (Williams, supra,
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28 Cal.4th at p. 414.) The court further clarified that “although the regulations are
a standard of competency, they are not the only standard.” (Id. at p. 416.) The court
held “breath test results are admissible upon a showing of either compliance with
title 17 or the foundational elements of (1) properly functioning equipment,
(2) a properly administered test, and (3) a qualified operator . . . . ” (Id. at p. 417.)
Adams and Williams stand for the proposition that compliance with applicable
regulations is a means of establishing the reliability of test results under Evidence Code
section 402; failure to comply with applicable regulations may be used at trial to cast
doubt on the reliability of the test results. But Adams and Williams do not hold (and
cannot reasonably be read to mean) failure to comply with inapplicable regulations
indicates test results are not reliable. The court was under no obligation to instruct the
jury on that unsound theory.
Defendant also maintains “[t]he trial court would not allow the jurors to consider
that lack of compliance [with Group 8 regulations] when deciding the weight to be
afforded the test results.” First, defendant blurs the distinction between regulations and
standards of practice. The court excluded evidence of the regulations only, and did not
prevent defendant from exploring the more pertinent issue to his defense, namely the
purportedly heightened standards of practice used by forensic laboratories, as compared
to the hospital laboratory. As explained ante, defendant had ample opportunity to
exploit that argument at trial.
Second, and in any event, the instructions made clear the People needed to prove
each element of the offense beyond a reasonable doubt and made clear the hospital’s
test results were not conclusive on the issue of intoxication. On count one, the second
element required the People to prove that “when he drove the vehicle, the defendant was
under the influence.” After describing generally that a person is under the influence if
his or her mental abilities were so impaired that he or she could no longer drive
a vehicle with the caution of a sober person using reasonable care, the instruction then
stated “[i]f the People have proved beyond a reasonable doubt that the defendant’s
blood alcohol level was 0.08% or more at the time of the chemical analysis, you may,
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but are not required to, conclude that the defendant was under the influence of an
alcoholic beverage at the time of the alleged offense.” The second charge, driving with
a blood alcohol level of 0.08% or above, contained similar language on this point.
These instructions advised the jury that it had to find beyond a reasonable doubt
defendant was under the influence at the time of the accident, and that the hospital test
result was relevant but not conclusive on that point. As the triers of fact, the jurors had
the right to reject the test result. Accordingly, the court’s refusal to give the optional
paragraphs in the pattern instructions did not impermissibly remove the issue of
reliability from the jury, as defendant asserts.
Defendant also cites Evidence Code section 403 and seems to suggest the trial
court “was required to instruct the jury to determine whether the hospital protocols were
reliable and to disregard the test result unless they found the test to be reliable.”
Although defendant couches his argument as an attack on jury instructions, it appears
defendant believes the jury should have been asked to make a specific factual finding
regarding the blood test’s reliability. But defendant’s cited authority, Evidence Code
section 403, governs the admissibility of evidence, not special jury findings or jury
instructions. “When . . . the relevance of evidence depends on the existence of
a preliminary fact, the proffered evidence is inadmissible unless the trial court finds
there is sufficient evidence to sustain a finding of the existence of the preliminary fact.
(Evid. Code, § 403, subd. (a)(1).) That is, the trial court must determine whether the
evidence is sufficient for a trier of fact to reasonably find the existence of the
preliminary fact by a preponderance of the evidence. [Citation.] ‘The court should
exclude the proffered evidence only if the “showing of preliminary facts is too weak to
support a favorable determination by the jury.” ’ [Citation.] A trial court’s decision as
to whether the foundational evidence is sufficient is reviewed for abuse of discretion.
[Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1120, disapproved on another
point by People v. Rundle (2008) 43 Cal.4th 76, 114.) As best we can discern,
defendant suggests the jury was required to find, as a preliminary fact, that the test was
reliable. However, defendant cites no authority suggesting the jury is required to make
19
an explicit factual finding as to reliability, nor has he demonstrated he requested that the
jury make such a finding. In the absence of relevant authority or factual support, we
reject the defendant’s argument. (See, e.g., Cal. Rules of Court, rule 8.204(a); Pringle
v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003, fn. 2 [appellant must provide
sufficient citations to record; contentions waived when there is a lack of reasoned
argument and citation to authority]; Badie v. Bank of America (1998) 67 Cal.App.4th
779, 784-785 [“When an appellant fails to raise a point, or asserts it but fails to support
it with reasoned argument and citations to authority, we treat the point as waived”].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
*
HOGUE, J.
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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