People v. Encarnacion CA4/3

Filed 3/2/21 P. v. Encarnacion CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
G058830
Plaintiff and Respondent,
(Super. Ct. No. 17CF1312)
v.
OPINION
RAUL CRUZ ENCARNACION,
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Andre
Manssourian, Judge. Affirmed.
Jeanine G. Strong, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
* * *
Appellant Raul Cruz Encarnacion was charged with two felony counts
related to driving under the influence of alcohol (count 1: Veh. Code, § 23152, subd. (a);
and count 2: Veh. Code, § 23152, subd. (b)); and a misdemeanor violation of driving
without a valid license (count 3: Veh. Code, § 12500, subd. (a)). It was also alleged he
had three prior misdemeanor driving under the influence (DUI) convictions within the
past 10 years (Veh. Code, § 23550.5, subd. (a)), he had suffered two prior felony
convictions that resulted in state prison sentences (Pen. Code, § 667.5, subd. (b)), and his
blood alcohol level exceeded .20 percent when he was arrested (Veh. Code, § 23538,
subd. (b)(2)).
Encarnacion went to trial on all charges and the blood alcohol level
allegation. Count 3 was dismissed. The state prison and prior DUI conviction allegations
were bifurcated at appellant’s request.
A jury found Encarnacion guilty of both DUI counts; it also found true the
blood alcohol allegation. The trial court then found true the prison priors and the DUI
prior allegations. Encarnacion was sentenced to the aggravated term of three years in
state prison on count 1; sentence was stayed pursuant to Penal Code section 654 on
count 2. The prior prison allegations were dismissed for purposes of sentencing.
Encarnacion appeals from that judgment.
We appointed counsel to represent defendant on appeal. Counsel tells us
she “thoroughly reviewed the record in this case” and consulted with Appellate
Defenders, Inc. She then filed a brief pursuant to the procedures set forth in People v.
Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738. Counsel did
not argue against her client’s interest, but she informed us she was unable to find any
issue to argue on her client’s behalf. Encarnacion has been given the opportunity to file a
brief on his own behalf but he has not done so.
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As required, we have examined the entire record to determine whether it
contains any arguable appellate issue. To assist us in our evaluation, appointed counsel
alerted us to one issue that she believed we should consider, to wit: “Did the trial court
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err in denying appellant’s pretrial Trombetta motion regarding the blood sample that was
not available at the time of trial for independent testing?”
After considering the entire record, and counsel’s suggestion, we concur
this record contains no arguable appellate issue. We therefore affirm the judgment.
FACTS
The facts here are straight forward. In May 2017 Encarnacion was arrested
near a DUI checkpoint operated by the Santa Ana Police Department. A blood alcohol
sample subsequently extracted from him revealed his blood alcohol level at the time the
sample was taken was .22.
Encarnacion’s trial was delayed by the fact that, after his arrest, he spent a
substantial amount of time in federal custody related to immigration issues. When he
was finally returned to local custody, the public defender’s office was appointed to
represent him. Prior to the commencement of his jury trial in 2019, Encarnacion’s
counsel made a motion to dismiss the case “because of loss and/or destruction of
evidence and denial of due process.” This motion arose out of the apparently undisputed
fact that prior to trial Encarnacion’s blood sample was intentionally destroyed by the
Orange County Sheriff’s crime laboratory as a result of its policy of retaining such
evidence for only two years after a suspect’s arrest unless a specific request was made to
retain the evidence longer. As a result, defense counsel had no opportunity to retest the
blood sample. Encarnacion argued that such conduct violated the due process directives
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(California v. Trombetta (1984) 467 U.S. 479 (Trombetta).)
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set forth in Trombetta, supra, 467 U.S. 479 and Arizona v. Youngblood (1988) 488 U.S.
51. The trial court disagreed and denied the motion.
DISCUSSION
We agree with the trial court’s conclusion that Encarnacion’s motion to
dismiss lacked merit. First, the motion failed to satisfy the condition precedent required
for the granting of such a motion. It is well established that the moving party on a
Trombetta motion must prove destruction of the evidence was done in bad faith in order
to prevail. As the trial court correctly observed, Encarnacion produced no evidence to
demonstrate that law enforcement acted in bad faith here. To the contrary, the
uncontested evidence suggested the crime laboratory acted in a manner that was
consistent with its established policy related to evidence retention.
Second, the evidence must possess “exculpatory value that was apparent
before the evidence was destroyed, and [is] of such a nature that the defendant would be
unable to obtain comparable evidence by other reasonably available means.” Trombetta,
supra, 467 U.S. at p. 489. Once again, proof that Encarnacion’s blood sample might
have had “exculpatory value” at the time it was routinely destroyed is wholly lacking
here. This blood sample was tested at the crime lab and the result indicated that
Encarnacion’s blood alcohol level was .22, nearly three times the legal limit, at the time
the sample was taken. It seems to us that these obvious problems are the likely reason
appellate counsel did not further pursue this issue. Her analysis was correct.
We find no other arguable appellate issue here.
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DISPOSITION
The judgment is affirmed.
GOETHALS, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
MOORE, J.
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