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The People v. James Martin Ray

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)


March 10, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JAMES MARTIN RAY, DEFENDANT AND APPELLANT.

(Super. Ct. No. 62057977)

The opinion of the court was delivered by: Raye, P. J.

P. v. Ray

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant James Marvin Ray lost control of his pickup truck driving up a hill and around a curve on a rainy December morning. Subsequent blood testing revealed a small amount of marijuana in his blood, and that discovery led him to be charged with driving under the influence in violation of Vehicle Code section 23153, subdivision (a). The import of the blood test results became the focus of a battle between prosecution and defense experts. The prosecution presented the testimony of a drug recognition evaluation (DRE) expert and an accident reconstruction expert. Through the testimony of his own drug expert and accident reconstruction expert, and evidence of similar accidents, defendant sought to establish that he was not driving under the influence and a wet and dangerous highway caused the accident. Defendant also sought to counter the prosecution DRE expert with his own DRE expert, but the testimony was disallowed on procedural grounds.

Defendant contends the trial court improperly impinged on his right to a fair trial by disallowing evidence of similar accidents on the same roadway, by disallowing the testimony of his own expert to discredit the methodology endorsed by the prosecutor's DRE expert, by curtailing his right to cross-examine the prosecutor's expert, and by restricting his redirect examination of his own experts. He also alleges instructional error. We affirm.

FACTS The Accident

Early in the morning on December 30, 2005, defendant used a company truck to finish a job installing gutters for a client of his employer, All About Gutters. His employer testified he had been a great employee for three or four years, "one of the most dependable ones we had." The company enforced a no-drug policy. The owner testified defendant had never violated that policy, and after defendant clocked out at about 10:30 a.m., the owner detected no odor of marijuana in the company truck.

It was raining intermittently that morning. Slightly before 11:00 a.m. Jessica Henry, who was 18 years old, was driving westbound downhill on Foresthill Road with her two younger siblings in a Ford Escort. All three wore seat belts. Coming out of a curve and into a straightaway, Jessica observed the back of a white pickup spin to the side and, turning counterclockwise, go straight across the passing lane and through her lane. Caltrans signs read, "Caution, slow down, slippery when wet." She remembers thinking she should drive up a hillside embankment to avoid a collision, but she blacked out and does not remember whether she was able to turn toward the embankment.

Defendant was the driver of the white Toyota pickup. His tires were in fair condition. He was driving uphill eastbound on Foresthill Road. Jessica testified that on defendant's side of the road, signs directed traffic to slow down around the curve, read "40 miles an hour," and told drivers that the "road is wind[ing]." The truck collided with the Escort, and Jessica and her siblings were all injured. The youngest suffered severe injuries to his face. Defendant also suffered a concussion from a blow to the head. A gash in his scalp required surgical staples. He was incoherent, belligerent, uncooperative, and somewhat combative with emergency personnel. At the hospital, medical personnel put him into a medical coma. An investigating police officer instructed them to draw a sample of his blood at 2:00 p.m. The laboratory analyst reported that four nanograms per milliliter of delta-9 THC (tetrahydrocannabinol), the active parent ingredient of the psychoactive ingredient in marijuana, were present in the blood draw.

The Battle of the Experts The Prosecution Experts

The centerpiece of the prosecution's case was the testimony of its DRE expert, who from an examination of the police report, an interview with an emergency room doctor, a visit of the scene, viewing Google Earth aerial photographs, and a review of the toxicologist's report opined that defendant was driving under the influence of marijuana and that driver input caused the collision. The expert employed a standardized 12-step protocol to evaluate the symptoms or signs of drug use and to determine whether a suspect was under the influence of a drug and, if so, what drug. He performed only 4 of the 12 steps in defendant's case. No field sobriety tests were performed. He had qualified as an expert to testify 25 times, continued to read studies on the Internet, and, based on his training and experience, he testified in this case as an expert in drug recognition and the effects on the human body, how marijuana breaks down in the blood and the body, and driving.

According to the expert, symptoms a person who had used cannabis would exhibit include: "[g]reen tongue, lack of convergence, dilated pupils, elevated heart rate, elevated blood pressure, confusion, lethargic, being lethargic with their face; kind of carefree." Acknowledging that defendant's pupils were constricted, the expert suggested the constricted pupils might be due to a narcotic analgesic defendant had been administered. There was no smell of marijuana at the scene of the accident, and no marijuana was found in his truck. Defendant did have an elevated heart rate immediately following the collision. While lethargy is a common symptom of cannabis use, the expert testified that a marijuana user can develop psychotic symptoms and become incoherent, combative, and uncooperative. The expert testified that marijuana affects users differently depending on its potency, how it is ingested, and the person's history of use.

He offered a range of opinions about how long the active ingredient delta-9 THC would remain in a person's blood, testifying at one point that it would remain in the blood for up to four hours, but at another point stating it would be "well over the three- to four-hour time range." In response to a question posed by the judge, he testified it would be detectable for up to a day after smoking. But he also testified it would not be detectable up to a day, and ultimately, he could not answer the judge's question, "What would be the maximum amount of time in your experience, skill and training that you believe THC would remain in any person's bloodstream, maximum time, and be detected?" Later he testified delta-9 THC only stays in the blood for a little over an hour.

The DRE expert cited a variety of reactions to marijuana, acknowledging that THC affects people differently. But smoking marijuana impacts driving skills by affecting motor skills, a person's ability to track and maintain a position on the road, perception, judgment, and short-term memory. If a blood test showed delta-9 THC, then the expert would conclude the person had smoked marijuana within three to four hours. He testified it is advisable to predict how someone will act based simply on the amount of THC in his or her system.

Although, as the court admonished the jury, the DRE expert was not qualified as an accident reconstructionist, he nevertheless opined that defendant's truck could not have hydroplaned or skidded across the lanes of traffic. He insisted that defendant had to turn the truck into the westbound lanes of traffic. He acknowledged that tire condition can contribute to loss of rolling friction, but he did not consider the condition of defendant's tires in reaching his opinion. He opined that neither the rain nor the condition of the roadway contributed to the collision; rather, the exclusive cause of the collision was defendant's impairment. He based his opinion on his own experience driving his Ford Crown Victoria with specialized police suspension and the fact that he had seen other vehicles take the same roadway without slipping. He concluded defendant was under the influence because otherwise he should have been able to maintain his vehicle on the road since he had successfully maneuvered various curves prior to this one and should have been able to navigate this one as well.

The prosecutor's accident reconstructionist considered multiple factors that might have contributed to the collision. While he disputed the defense expert's calculation of critical speed, he testified there were many factors that might have contributed to defendant's loss of control on the curve. He opined that the rain, the condition of the asphalt, the painted surfaces, speed, and grade are all variables that might have contributed to the loss of control. He concluded that defendant drove too fast for the wet conditions on the curve and may have accelerated up the hill, applied the brakes going into the curve, or traveled over the painted surface of the road.

In rebuttal to later testimony by a defense expert, the prosecution produced a second DRE expert to reiterate the scientific validity of the DRE 12-step protocol. Although to obtain the best information and to make the best decision all 12 steps should be followed, he testified that doing fewer than 12 steps does not make the suspect any less under the influence, and he would trust the assessment of a DRE-trained officer even if he had only completed a couple of the steps.

The Defense Experts

The defense sought to undermine the efficacy of the DRE program, the ability of an officer to determine from a toxicology report if a suspect was under the influence, and the DRE expert's opinion that defendant was under the influence and his impairment caused the accident. A forensic psychologist who had qualified as an expert witness over 200 times testified as an expert specializing in the effects of drugs and alcohol, including their relation to driving ability and mental state.

According to the defense expert, the National Highway Traffic Safety Administration (NHTSA) summary of other studies concluded that impairment could not be predicted based on blood THC concentrations alone. Both the NHTSA report and articles in the Forensic Drug Abuse Adviser state "there is no probative value . . . to looking at either the amount of Delta 9 THC or the ratio of Delta 9 DHC to the carboxyline -- that are predictive of behavior." He testified there are no studies demonstrating impairment with four nanograms per milliliter in a suspect's blood; one study suggests seven nanograms could be considered, but most studies recommend consideration of impairment only if the suspect has at least 10 nanograms per milliliter. All studies show that the same person taking the same dose with the same blood results might act totally different.

The defense expert explained the variance in how marijuana is stored in the body and later excreted. When smoked, the delta-9 THC in marijuana goes immediately into the lungs and bloodstream and the user experiences a calming, euphoric effect. The delta-9 THC dissipates rather quickly from the blood but can be detected for a much longer time in the urine and fatty tissue. The excretion is slower for those who have used it for a long time and can be detected for up to two months after ingestion. If a person experiences severe trauma or stress, the marijuana will leach from the fatty tissue at a much greater rate. Thus, the level of cannabinoids in blood drawn shortly after extreme stress will be higher than when drawn under normal conditions when it could be low or even undetectable.

Like the prosecution DRE expert, the defense expert acknowledged that smoking marijuana can affect the smoker's ability to process information, time and distance perception, tracking and maintaining a position in the road, reaction time, and decision making, all of which are important for driving. Yet he noted that marijuana users tend to achieve the desired degree of calmness and do not overdo it. Users tend to adjust their behavior to the effects of the marijuana and, for example, studies demonstrate that marijuana users are more often pulled over for driving too slowly than too fast because they overcompensate by driving slowly. He reported that a study conducted in the Netherlands by means of a series of highway tests found no significant difference between sober drivers and those who had smoked marijuana, except in their ability to maintain a straight path with an average sway from side to side of one to two inches. This study and others emphasize it is inadvisable to try to predict effects based on blood concentrations alone.

The defense expert considered defendant's disruptive behavior following the collision. He concluded that none of his antics were consistent with the effects of marijuana. His behavior would lead him to suspect PCP (phencyclidine) or amphetamine use.

During cross-examination, the defense expert admitted snorting cocaine at a break during a trial in which he was testifying as an expert. He was planning to drive home after his testimony. He also admitted that he liked to try the drugs about which he testified.

The defense also offered the testimony of its own accident reconstruction expert. He described the grade and curves of Foresthill Road immediately preceding the site of the collision and calculated the maximum speed a vehicle could safely navigate those curves ("critical speed"). Whereas the first curve was sharper than the second, he calculated the critical speed was between 50 and 58 miles per hour followed by an 8 percent grade. The critical speed of the second curve was between 64 and 73 miles per hour. The roadway was wet and defendant's tires were in fair condition.

He opined that defendant had not made a left turn across the westbound lanes. Rather, he believed the left rear tire had lost adhesion with the road due to hydroplaning; that is, where water buildup in front of the tire cannot be dissipated by its grooves so a layer of water remains between the tire and the road, which lessens the coefficient of friction and the tire no longer makes traction with the road. The immediate "left turn" that occurred was consistent with the left rear tire having less adhesion than the right rear tire such that the right rear tire's rotational energy was applied to just one side and propelled the vehicle to the left rather than forward. The steep hill increased the need for traction.

The expert also pointed out that the pickup has 60 percent of its weight in the front and 40 percent in the back, thereby making it more likely that on a wet road the back would not be able to stay in contact with the road. He contrasted the pickup with the Ford Crown Victoria driven by the People's DRE expert, which, with its special police package, has a more even distribution of weight.

Thus, the defense expert opined that it was a loss of traction, rather than driver input, that was the most likely cause of the accident. He noted that defendant had successfully navigated the sharp curve before accelerating up the steep grade, and it was unlikely he would have accelerated suddenly on the grade. He was unwilling to say whether the loss of traction itself was defendant's fault.

The Verdict

The jury found defendant guilty of driving under the influence of a drug causing injury (Veh. Code, § 23153, subd. (a)) and found true a great bodily injury allegation as to Tyler M. (Pen. Code, § 12022.7) and bodily injury allegations as to Jessica Henry and Megan M. (Veh. Code, § 23558). The trial court exercised its discretion to dismiss a prior strike and sentenced defendant to state prison for a total term of eight years.

DISCUSSION

This case does not involve a challenge to the sufficiency of the evidence. Indeed, the prosecution's expert testimony provides sufficient support for defendant's conviction of driving under the influence and causing great bodily injury. Rather, at the heart of this appeal is defendant's essential charge that through either trial court error or the incompetency of his public defender, or a combination of both, he was denied the ability to present a viable defense to the jury. Thus, in defendant's view, he was deprived of his most fundamental constitutional right to due process and a fair trial.

At the threshold, we must put defendant's task in context. Defendant faced a formidable challenge--to raise a reasonable doubt that the marijuana detected in his blood, no matter how slight, did not impair his driving and was not the proximate cause of the serious injuries suffered by the three young, and totally blameless, victims. Defendant sought to disabuse the jury of the prosecutor's notion that the experts could determine how he might have driven from the mere detection of four nanograms per milliliter of THC in his blood. He attempted to raise a reasonable doubt that he was impaired and that his impaired driving caused the accident by demonstrating the condition of the roadway was dangerous, by impeaching the prosecution experts through searing cross-examination, and by introducing his own expert testimony discrediting the methodology utilized by the prosecution's DRE expert.

However, his lawyer failed to comply with the rules of discovery, had difficulty formulating questions that survived objection, chose as his expert someone who admittedly snorted cocaine during a trial and was prepared to drive home, and ultimately was sanctioned for his unprofessional conduct during the trial. Along with claims of error by the court, defendant complains about the adequacy of his lawyer's representation. We find most of his claims of error to be unsupported, find the supported claims to be harmless, and conclude that his claims of ineffective assistance cannot be resolved on this record.

I

Similar Accidents

Because the right of a criminal defendant to present his defense is a fundamental element of due process guaranteed by the Fourteenth Amendment to the United States Constitution, rules of evidence or procedure cannot be employed to bar material testimony or pertinent cross-examination that is crucial to a criminal defendant's defense. (Michigan v. Lucas (1991) 500 U.S. 145 [114 L.Ed.2d 205]; Webb v. Texas (1972) 409 U.S. 95, 98 [34 L.Ed.2d 330].) It is true, however, as the Attorney General points out, that the trial court has broad discretion to control cross-examination and to exclude evidence pursuant to section 352 of the Evidence Code. (People v. Milner (1988) 45 Cal.3d 227, 239.) We must arbitrate the tension between these two basic principles based on the peculiar facts before us.

Defendant attempted to demonstrate that a dangerous condition existed on a 19-mile stretch of Foresthill Road so as to create a reasonable doubt that his driving was the proximate cause of the collision.

By introducing evidence of eight other accidents on Foothill Road, defendant hoped to establish that the road, not his driving, caused the accident. In order for evidence of other accidents to be relevant, these prior accidents must have occurred "at the same place," the physical condition of the roadway must have been "substantially the same at the time of each accident," and the accidents must have occurred under substantially the same circumstances. (Gilbert v. Pessin Grocery Co. (1955) 132 Cal.App.2d 212, 220-221 (Gilbert); People v. Ansbro (1984) 153 Cal.App.3d 273, 276 (Ansbro) [defendant attempted to introduce evidence of "other accidents which occurred at approximately the same location," but could not do so "without first establishing that they occurred under substantially the same circumstances as the accident in which he was involved"]; see also Dunagan v. State (2008) 283 Ga. 501, 505 [661 S.E.2d 525].)

Defendant's argument that the trial court improperly excluded evidence of other accidents on Foresthill Road is based on the following exchanges. First, defendant's trial counsel asked Amanda Godon, who lived in Foresthill and was familiar with Foresthill Road, what the speed limit was going eastbound on Foresthill Road, and then asked: "[I]s this an area that tends to have more accidents?" The prosecution's relevance objection was sustained, with the trial court adding "lack of foundation" as a basis for its ruling.

It is unclear whether defense counsel was asking about other accidents occurring at the same location as the accident in which defendant was involved, or whether he was asking about accidents that occurred in the general "area" of Foresthill Road, which spans roughly 19 miles from Foresthill to Auburn. This is probably why the trial court sustained the objection on relevance grounds with the qualifier "[a]s phrased." Had defense counsel clarified that he was referring to the location of the current accident, then the trial court might have overruled the relevance objection. However, the trial court added another basis for sustaining the objection, lack of foundation. As the Attorney General points out, no foundation was laid as to Godon's ability to determine whether the "area" to which defense counsel was referring "tends to have more accidents" than some other unspecified area.

Second, defendant appears to complain that his attorney "was able to solicit a single statement" from Lori Menmuir, a paramedic who responded to the scene of the accident, "that she had responded to Foresthill Road before." The implication is that this "single statement" was the only statement the trial court allowed his attorney to solicit. This was not the case. As the Attorney General points out, defendant's attorney was not prevented by the trial court from inquiring further into the details of her prior involvement in responding to accidents on Foresthill Road. If she had previously responded to an accident that occurred at approximately the same location under approximately the same circumstances, then this would have been highly relevant. However, if her previous response to Foresthill Road involved an accident occurring several miles from the scene of defendant's accident and under different circumstances, then this prior accident would have been entirely irrelevant. Defense counsel asked no such questions, but instead moved to a different area of inquiry. Thus, defendant's suggestion that his attorney was prevented from soliciting relevant evidence is not supported by the record.

Finally, and most importantly, defendant complains that he "was not permitted to admit or even cross-examine [Officer Randy] Veater about Exhibit 15, a report of traffic collisions occurring in Beat 62 from January 1, 2005, through December 31, 2006." Exhibit 15 indicates that 83 total collisions occurred in Beat 62 during this time period, six of which involved driving under the influence. Beat 62 covers Foresthill Road. Defendant's counsel asked Officer Veater: "How many . . . traffic collisions took place on that road in, say within a year of this accident?" The trial court properly sustained the prosecution's relevance objection. Again, other accidents are not relevant simply because they happened on Foresthill Road. In order to be relevant, they must have occurred at roughly the same location and under roughly the same circumstances as the accident in which defendant was involved. (Gilbert, supra, 132 Cal.App.2d at pp. 220-221; Ansbro, supra, 153 Cal.App.3d at p. 276.) Defense counsel then asked: "Do you know how many accidents took place in 2005 on Foresthill Road?" Officer Veater answered: "No." The trial court allowed the answer to stand, but explained to defendant's attorney: "Totally irrelevant. Foresthill Road is a long road." This should have tipped counsel off to the fact that he needed to narrow his inquiry down to accidents that occurred near the site of the accident in which defendant was involved.

When counsel showed Officer Veater exhibit 15 and asked if he "recognize[d] that document or that type of information," the trial court stepped in and asked: "Have you ever seen that before, sir?" Officer Veater answered: "No." Counsel then asked Officer Veater whether he had seen documents like exhibit 15 produced by the California Highway Patrol (CHP), whether he knew if the CHP produced such documents, whether the information in exhibit 15 comported with his knowledge of beat 62, and whether he could find out how many accidents occurred in beat 62 in 2005 or 2006. The trial court sustained objections to all of these questions. Counsel then asked: "Do you have an opinion as to whether more accidents occur in that beat generally than other beats?" The trial court sustained a relevance objection to this question as well, explaining: "There is no relevance to the number of accidents that occurred on Foresthill Road. Totally irrelevant to this trial. There may be a better question, but it's not been asked yet." The "better question" the trial court was alluding to seems to be whether Officer Veater was aware of any accidents that occurred at roughly the same location and under roughly the same circumstances as the accident in which defendant was involved. But instead of asking this question, defendant's attorney simply moved to a different topic.

Nor did defendant offer to have exhibit 15 admitted into evidence, a failure the Attorney General deems a forfeiture. Not so. The trial court clearly stated the exhibit was "totally irrelevant." Counsel should not be asked to engage in a futile act in order to preserve an issue for appellate review.

However, the trial court was correct about the relevance of exhibit 15. This exhibit simply states that 83 accidents occurred between January 2005 and December 2006 in beat 62, which is a long stretch of Foresthill Road; that 38 of these accidents were reportable, two involved fatalities, 36 involved injuries, and 45 involved property damage only; and that six accidents involved driving under the influence.

Nothing in exhibit 15 indicates where these accidents occurred and under what circumstances, and defense counsel never bothered to submit an offer of proof to the trial court demonstrating that any of these accidents were similar to the accident in which defendant was involved. Nor did defense counsel ask Godon, Menmuir, or Officer Veater whether they were aware of any accidents that occurred in roughly the same location and under roughly the same circumstances as the accident in which defendant was involved. (Evid. Code, § 354, subd. (a); People v. Anderson (2001) 25 Cal.4th 543, 580 ["a judgment may not be reversed for the erroneous exclusion of evidence unless 'the substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means'"].)

If similar accidents evidence existed, then the evidence might have been pivotal to defendant's defense. But if such evidence existed, defendant's attorney was to blame for not making this known to the trial court. Thus, the trial court's rulings in this regard were not erroneous. With respect to defendant's alternative claim that his attorney rendered ineffective assistance, without knowing whether any of the accidents in exhibit 15 were similar to the one in which defendant was involved, we cannot determine whether counsel was ineffective or defendant suffered prejudice. If none of the accidents were similar, then counsel cannot be faulted for failing to offer evidence of similar accidents. If there were similar accidents, then counsel's performance was inadequate and defendant suffered prejudice. But on this record we simply do not know. If there were similar accidents, defendant's remedy is to file a petition for writ of habeas corpus to demonstrate that there was evidence of similar accidents that his trial attorney failed to offer into evidence at his trial.

Defendant also claims that the trial court improperly excluded evidence that the curve on Foresthill Road where the accident occurred was slippery. Assuming, without deciding, there was error, the error was harmless considering the abundance of evidence that it had been raining the day of the accident, the road was wet, there were "slippery when wet" signs near the location, defendant's accident reconstruction expert testified that the wet road would have reduced the coefficient of friction for the corner immediately preceding the accident site, i.e., making the road more "slippery," and the prosecution's accident reconstruction expert testified that defendant could have caused the accident by "entering the curve on a wet slippery road at too high of a speed, which would cause the vehicle to start to slide and rotate in counterclockwise rotation as it did." In brief, the jury was provided with an abundance of evidence that the road was slippery.

II

Defense Expert Testimony

Defendant also claims that the trial court abused its discretion and deprived him of a fair trial by precluding, as a discovery sanction, the testimony of the defense's DRE expert, Stan Mocek, which would have been offered to impeach the testimony of the prosecution's DRE expert, Officer Michael Ketterer.

In July 2007 the prosecution filed an in limine motion seeking to exclude the testimony of certain defense expert witnesses for violation of Penal Code section 1054 et seq. At the hearing on this motion, the prosecution noted that, as of a few days before trial, discovery had not been received as to certain notes containing raw test data taken by the defense's accident reconstruction expert, Scott MacDonald. Nor had the prosecution received any notes from Dr. Pittel, the defense's expert on the effects of marijuana. With respect to Mocek, the prosecution explained that this expert had not appeared on the defense's witness list until the day of trial and that his curriculum vitae had arrived a few days earlier, "in an unmarked envelope, not indicating he was a witness on a particular case." Nor was there any indication as to what Mocek would be testifying.

The prosecution argued: "[T]his is a pattern of failure to comply with discovery. And I believe that based on the fact that this occurs more often than not, it is intended to gain a tactical advantage." The prosecutor asked the trial court to make such a finding and "either exclude these witnesses in their entirety or order some other sanction and give the People leeway to cross-examine these witnesses as to discovery-related issues and impose whatever other orders that the court deems appropriate."

The trial court denied the motion to exclude the testimony of MacDonald but ordered any raw test data to be provided immediately. The trial court also denied the motion to exclude the testimony of Dr. Pittel, finding that no report had been prepared by this witness to turn over to the prosecution, but commented: "However, this is very, very untimely. And I am certainly considering allowing the jury to know that." When defense counsel asked what was untimely, the trial court explained: "The case is a year and a half old. To wait until the last week before a trial to ask [Dr. Pittel] specific questions [about the case] smacks to me of a little bit of gamesmanship, a lot of gamesmanship. That is what certain jury instructions are crafted for, so I will consider giving those after I hear the testimony."

With respect to Mocek, the prosecution additionally argued that his testimony "would be [Evidence Code section] 352 to the testimony of Dr. Pittel," because defense counsel represented to the trial court that Dr. Pittel would be offered to rebut the expected testimony of the prosecution's drug recognition expert concerning "the signs and symptoms of cannabis use." Given the opportunity to respond, defense counsel explained that Mocek was on a witness list purportedly turned over to the prosecution in March, and that he "would be testifying as a DRE, mostly to rebut the qualification of the prosecution's DRE in an expected [Evidence Code section] 402 hearing." Mocek would "describe the DRE training" and opine that this training is "insufficient" to allow "Officer Ketterer to testify to certain things that [the defense] expect[ed] him to be proffered for." Defense counsel further explained the purpose of Mocek's testimony: "I believe that there should be some limitations on the testimony of a DRE, and Mr. Mocek would be able to testify as to what DRE's are trained to do, trained to opine[,] and what their job is and [is] not."

The trial court then stated: "It sounds to me like you would probably be offering Mr. Mocek as an impeachment witness, if anything, because if not, his being divulged as an expert, without any information about what he expects to testify to is clearly excluded because I am not going to guess and the People don't have to guess either. So that is why I am giving you full latitude to tell me what you expect he would testify to in the case in chief as opposed to testifying for impeachment, if you know." (Italics added.) Counsel responded: "He is being offered to testify as impeachment." The prosecution then clarified that it never received the March witness list purportedly containing Mocek's name, and defense counsel acknowledged that the copy he had of this witness list was not file stamped. Nor did defense counsel provide the prosecution with Mocek's address or where to locate him.

The trial court granted the prosecution's request to exclude Mocek's testimony "in the defense case in chief." The court explained: "There has been no divulging of the appropriate information until the day of trial as far as I can determine. Unfortunately, I certainly don't disbelieve . . . that you attempted to do that, but somebody dropped the ball and didn't provide that to the People. . . . That is not to say of course that he may not be an appropriate impeachment witness. He might. We will have to wait and see." (Italics added.)

"The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law." (Washington v. Texas (1967) 388 U.S. 14, 19 [18 L.Ed.2d 1019].)

Under certain circumstances, this constitutional right may be "offended by the imposition of a discovery sanction that entirely excludes the testimony of a material defense witness." (Taylor v. Illinois (1988) 484 U.S. 400, 409 [98 L.Ed.2d 798].) However, "the mere invocation of that right cannot automatically and invariably outweigh countervailing public interests. The integrity of the adversary process, which depends both on the presentation of reliable evidence and the rejection of unreliable evidence, the interest in the fair and efficient administration of justice, and the potential prejudice to the truth-determining function of the trial process must also weigh in the balance. [Fn. omitted.] [¶] A trial judge may certainly insist on an explanation for a party's failure to comply with a request to identify his or her witnesses in advance of trial. If that explanation reveals that the omission was willful and motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence, it would be entirely consistent with the purposes of the Compulsory Process Clause simply to exclude the witness' testimony." (Taylor, at pp. 414-415.)

Consistent with the importance of a defendant's right to present a defense, Penal Code section 1054.5, subdivision (c) allows the trial court to prohibit the testimony of a witness as a discovery sanction "only if all other sanctions have been exhausted." (See also People v. Edwards (1993) 17 Cal.App.4th 1248, 1252-1253.) However, "[a]lthough alternative sanctions are available, in some instances they would perpetuate 'prejudice to the State and . . . harm to the adversary process.' [Citation.] If an omission is willful in hope of obtaining a tactical advantage, the court may exclude the witness's testimony. [Citation.]" (People v. Jackson (1993) 15 Cal.App.4th 1197, 1203.) "A party who creates prejudice to the other side by surprise or newly listed witnesses should not have the advantage of the disadvantage to which he or she has placed an opponent." (People v. Gonzales (1994) 22 Cal.App.4th 1744, 1757.) Thus, the trial court may exclude the testimony of a newly listed witness where it finds a willful violation of the rules of discovery and resulting prejudice to the prosecution should the witness be allowed to testify, but only after carefully considering the consequence of exclusion to the truth-finding process. (Id. at pp. 1757-1758.)

Here, the trial court prohibited Mocek's testimony during defendant's "case in chief," but it did not, as defendant argues on appeal, prevent him from testifying entirely. Rather, the court also explained that Mocek might be "an appropriate impeachment witness. He might. We will have to wait and see." By leaving open whether Mocek would be allowed to impeach Officer Ketterer's testimony, it seems likely that the trial court simply misspoke when it said "case in chief" and meant to preclude Mocek from testifying as a DRE expert to support defendant's substantive defense, i.e., that he was not under the influence of marijuana at the time of the accident, but left open the possibility that Mocek could testify to impeach Officer Ketterer's testimony, depending on whether Officer Ketterer testified to matters Mocek considered to be outside the expertise of a DRE expert. Such a ruling would have been perfectly appropriate since defendant did not offer Mocek as an expert on the effects of marijuana, instead offering Dr. Pittel for that purpose, and offered Mocek solely for purposes of impeachment. Defense counsel should have asked the trial court to clarify what it meant by "case in chief" in light of its simultaneous ruling that Mocek might be an appropriate impeachment witness. But even if the trial court meant to preclude Mocek from testifying during defendant's "case in chief," the prosecution put on a rebuttal case, which opened up the possibility of Mocek's testifying to impeach Officer Ketterer in surrebuttal. Defendant was offered the opportunity to present a case in surrebuttal and declined to do so. As a result, he has forfeited the right to complain on appeal.

In sum, the trial court left open the possibility of Mocek's testifying to impeach Officer Ketterer regarding the DRE expert training, specifically, whether his testimony was beyond the scope of the training. And while the trial court technically ruled that Mocek could not testify in defendant's "case in chief," defendant was given an opportunity for surrebuttal, where Mocek could certainly have been called, but declined to present a case in surrebuttal. Finally, there may have been a strategic reason for choosing not to offer Mocek's testimony in surrebuttal. Defense counsel may have believed that Dr. Pittel did an adequate job of impeaching Officer Ketterer. On this record, we cannot resolve defendant's alternative claim that trial counsel rendered ineffective assistance.

III

Defendant asserts that the trial court's restriction of his ability to cross-examine Officer Ketterer and examine Dr. Pittel on redirect further eroded his ability to present his defense. The limitations, in his view, deprived him of his constitutional right to present a defense.

Once an expert witness offers an opinion, "he exposes himself to the kind of inquiry which ordinarily would have no place in the cross-examination of a factual witness. The expert invites investigation into the extent of his knowledge, the reasons for his opinion including facts and other matters upon which it is based [citation], and which he took into consideration; and he may be 'subjected to the most rigid cross examination' concerning his qualifications, and his opinion and its sources [citation]." (Hope v. Arrowhead & Puritas Waters, Inc. (1959) 174 Cal.App.2d 222, 230; see People v. Nye (1969) 71 Cal.2d 356, 374-375.)

Through cross-examination of the prosecution's DRE expert, Officer Ketterer, and through examination of his forensic psychologist, Dr. Pittel, defendant sought to raise a reasonable doubt that he was under the influence of delta-9 THC at the time of the collision, a reasonable doubt that four nanograms per milliliter was an accurate reading of the amount of delta-9 THC in his blood, or a reasonable doubt that the blood test results were an accurate indicator as to whether he had ingested marijuana within the previous four hours and was under the influence at the time of the collision.

Officer Ketterer's testimony on these critical issues was difficult to follow. He testified that delta-9 THC remains in the blood for "[w]ell over three or four hours," although it could be "up to six hours, eight hours, depending on the person and the amount they smoked." He also testified that the presence of delta-9 THC in a person's blood indicates that the person smoked marijuana "within three to four hours." But he also testified that "delta-9 will trace off to almost zero after one hour," that "delta-9 only stays in the blood just maybe a little over an hour," and that delta-9 remains detectable in the blood for "three to four hours." He also testified that THC would be detectable in a person's blood for up to a day but immediately took that answer back, denied that THC would be detectable in the blood for up to a day, and stated that he did not know the maximum amount of time that THC would remain in a person's blood.

Officer Ketterer stated that in reaching his conclusion as to how long delta-9 THC remains in the blood, he relied on Borkenstein's course on the effects of marijuana use on human performance and unspecified updated information. However, defense counsel was able to elicit from Officer Ketterer that certain other studies, including National Transportation Safety Administration (NTSA) booklets on drugs and human performance, showed that delta-9 THC is detectable in the blood for longer than one to four hours. Defense counsel then asked if Officer Ketterer had reason to believe that the NTSA studies were wrong. The prosecution objected to the question as argumentative and misstating the testimony. The trial court sustained the objection, adding "vague" as a basis for the ruling. Rather than rephrase the question, defense counsel moved on to Officer Ketterer's knowledge of how THC is broken down in the body.

Defense counsel then asked Officer Ketterer: "Why did you choose the one study, the Borkenstein course that was described to you, over all of the other studies that may have shown that THC lasts longer in the body?" The trial court sustained the prosecution's objection that the question misstated Officer Ketterer's testimony. Counsel then asked: "Was there something about the Borkenstein course material that made it more reliable than the other research articles?" The trial court sustained the prosecution's objection that the question assumed facts not in evidence. Defense counsel then asked: "Would you agree that the Wahl study shows THC lasting in the blood for up to [sic] days? Delta-9 THC?" The trial court sustained the prosecution's objection that the question lacked foundation. Then counsel asked: "Could you take a look at that article and see if it indicates that THC lasts much, much longer in the blood than you have indicated?" The trial court admonished the jury to "disregard those comments by counsel," and explained to defense counsel: "[T]he witness has testified as to what he relied upon. He did not rely on that study. You may not inquire of him out of that study because he did not rely on it."

As defendant acknowledges, Evidence Code section 721, subdivision (b) prohibits cross-examination of an expert as to publications unless: "(1) [t]he witness referred to, considered, or relied upon such publication in arriving at or forming his or her opinion"; "(2) [t]he publication has been admitted in evidence"; or "(3) [t]he publication has been established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice." Defendant argues that "it was impossible even to determine what publications and studies [Officer] Ketterer had relied on so as to then determine whether the Wahl study was amongst them." This statement is belied by the record. When defense counsel asked Officer Ketterer whether he was familiar with the Wahl study, Officer Ketterer answered: "I don't recall any information on that." Defense counsel told Officer Ketterer that the Wahl study he was referring to was the article counsel had handed Officer Ketterer earlier in the morning. The trial court then asked whether Officer Ketterer had relied on that information in forming a basis for his opinion. Officer Ketterer responded that he had not. When defense counsel asked Officer Ketterer if he knew what a "bi-exponential curve" was, he answered that it was noted in the article given to him that morning. The trial court then asked: "The one you did not rely upon?" Officer Ketterer responded: "That's correct." The trial court then appropriately cut off further questions concerning the Wahl study.

With respect to defendant's redirect examination of Dr. Pittel, defendant complains about two rulings. Defense counsel asked Dr. Pittel: "Do the studies that the prosecutor's referring to and your statement regarding the persistence of THC in the blood for only two to four hours, do all of those assume that there was no stressful event leading to release of THC from the fatty tissue?" This question was asked because Dr. Pittel had testified during direct examination that cannabinoids can be stored in fatty tissue and are detectable for up to two months because they slowly leach back into the blood. Dr. Pittel also testified that when a person suffers "a severe trauma or stress, that acidifies the blood momentarily and causes a greater leaching of any marijuana that is left that is still retained in the fatty tissue." His testimony was meant to suggest to the jury that the small amount of marijuana detected in defendant's blood at the time of the accident could have come from leaching, as opposed to recent smoking. During cross-examination, Dr. Pittel agreed that delta-9 THC dissipates from the blood within "two to four hours." Defense counsel, therefore, wanted to clarify on redirect that this estimate assumed no stressful event had caused rapid leaching of delta-9 THC that had been previously stored in defendant's fatty tissue. Dr. Pittel responded: "I don't recall which particular studies the D.A. asked about. But the studies that I have responded to that I have commented on say that four nanograms per milliliter cannot cause impairment. And that it is highly likely that the four nanograms per milliliter is an over estimate of the amount that was there, because it doesn't take into account the leaching into the blood of the --"

At this point, the prosecutor objected that the answer was non-responsive, the objection was sustained, and the answer was stricken. Until the last few words, the answer was non-responsive. But when Dr. Pittel began to discuss the "leaching into the blood," he did begin to answer defense counsel's poorly worded question. Technically, the ruling may have been erroneous. But rather than ask a more precise question in order to elicit a more focused response, defense counsel asked a different question. Because defense counsel was able to elicit testimony during his direct examination of Dr. Pittel concerning the possible leaching of delta-9 THC from fatty tissue due to the stressful situation of the accident, the court's ruling did not prevent defendant from presenting a defense. Moreover, the portion of the answer suggesting that the four nanogram level of delta-9 THC in defendant's blood might be inaccurate would have been properly stricken as outside Dr. Pittel's expertise since he was neither a toxicologist nor a chemist.

The other contested ruling followed immediately. Defense counsel asked: "You think the four nanogram per milliliter figure might not be exactly representative of the situation in this case?" The trial court properly sustained the prosecution's objection that the question was beyond the scope of cross-examination. Aside from the immediately preceding response, which was stricken, Dr. Pittel did not testify that the toxicological report containing the four-nanogram figure was somehow inaccurate. Indeed, after he stated on direct examination that he was neither a toxicologist nor a chemist, the trial court precluded further questions concerning testing for THC levels in the blood.

What Dr. Pittel testified to was his understanding that it is impossible to detect impairment based solely on the level of delta-9 THC in a person's blood, and that a concentration of four nanograms per milliliter has not been shown to cause impairment. During recross-examination, Dr. Pittel reconfirmed his position that it is impossible to determine impairment based on the amount of delta-9 THC in the blood. And during both cross-examination and recross-examination, Dr. Pittel testified that delta-9 THC remains in the blood for "two to four hours" following smoking, but he also testified that there is no way to "extrapolate backwards" from the level of delta-9 THC in a person's blood to determine when the marijuana was smoked.

Simply put, Dr. Pittel never testified that the four-nanogram figure was not "representative of the situation in this case," i.e., not accurate, and was not cross-examined on the four-nanogram figure. Thus, redirect on the accuracy of the four-nanogram figure was indeed beyond the scope of cross-examination. Moreover, it was beyond Dr. Pittel's expertise, since he admitted that he was neither a toxicologist nor a chemist. Redirect on Dr. Pittel's opinion that impairment cannot be determined from this four-nanogram figure would have been entirely appropriate, but that was not the question defense counsel chose to ask. Thus, we must conclude that on this record the trial court did not overstep the bounds of its discretion by curtailing the redirect examination of Dr. Pittel.

IV

Defendant faults the trial court for failing to give four jury instructions sua sponte and his lawyer for failing to request them. He argues there was substantial evidence to trigger a sua sponte obligation to instruct on two lesser included offenses, driving under the influence and reckless driving, the defense of accident, and to inform the jury it must unanimously agree on the unlawful act defendant committed while driving under the influence. His claims are without merit.

A. Lesser Included Offense: Driving Under the Influence

A trial court has a duty to instruct sua sponte on lesser included offenses and on defenses either relied on by the defense or supported by substantial evidence and not inconsistent with the defense. (People v. Licas (2007) 41 Cal.4th 362, 366; People v. Sedeno (1974) 10 Cal.3d 703, 715-716.) A lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense or the facts alleged in the accusatory pleading include all elements of the lesser offense so that the greater offense cannot be committed without also committing the lesser. (People v. Breverman (1998) 19 Cal.4th 142, 154, fn. 5.) The trial court must instruct on lesser included offenses where substantial evidence raises the question whether all the elements of the charged offense are present. (People v. Lewis (2001) 25 Cal.4th 610, 645.)

The Attorney General concedes that driving under the influence in violation of Vehicle Code section 23152, subdivision (a) is a lesser included offense of driving under the influence and causing injury in violation of Vehicle Code section 23153, subdivision (a). We agree, however, with the Attorney General that the jury resolved the question posed by the omitted instruction adversely to defendant, and therefore, any error was harmless. (People v. Turner (1990) 50 Cal.3d 668, 690-691.)

The second amended information alleged defendant committed the substantive offense of driving under the influence of marijuana, causing injury (Veh. Code, § 23153, subd. (a)),*fn1 as well as enhancements for causing bodily injury to more than one victim (Veh. Code, § 23558) and for personally inflicting great bodily injury to Tyler and Jessica (Pen. Code, § 12022.7, subd. (a)). The jury found the great bodily injury allegation to be true as to Tyler, and true as to the allegations defendant caused bodily injury to Jessica and Megan. The jury findings as to these enhancements resolve the factual question whether defendant caused injury to each of the children. As a result of the jury's factual findings that defendant personally inflicted bodily injury, he necessarily committed the greater offense. Thus, any error in failing to instruct on the lesser included offense was harmless.

B. Lesser Related Offense: Reckless Driving

Defendant had no right to have the jury instructed on any lesser related offense, even if it was requested and supported by substantial evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1064-1065; People v. Birks (1998) 19 Cal.4th 108, 112-113, 117.) The prosecution did not agree to allow the court to instruct the jury on reckless driving. Defendant contends the trial court erred by failing to instruct on reckless driving because it was a lesser included, not a lesser related, offense. He is mistaken.

Driving under the influence of marijuana causing injury (Veh. Code, § 23153, subd. (a)) requires the prosecution to prove that defendant drove a vehicle while under the influence of marijuana, and while driving committed an illegal act (i.e., crossed a divided highway and/or drove at an unsafe speed) and/or neglected to perform a legal duty (i.e., the general duty of every driver to exercise ordinary care), which caused bodily injury to another. Reckless driving, on the other hand, includes a very different mens rea. As defendant explains, to obtain a conviction for reckless driving, the prosecution must prove that defendant "in the management of his automobile at the time and place in question intentionally did something with knowledge that injury to another was probable or acted with a wanton and reckless disregard for the safety of others and in reckless disregard of the consequences of his acts." (People v. Allison (1951) 101 Cal.App.2d Supp. 932, 933.) Thus, reckless driving involves a subjective appreciation of the risk of injury to others, whereas driving under the influence does not. We agree, therefore, with the Attorney General's conclusion that reckless driving is not a lesser included offense of driving under the influence of a drug causing injury, and the trial court had no obligation to instruct on reckless driving.

Defendant rejects this rationale on two grounds. First, he contends that driving at an unsafe speed (Veh. Code, § 22350) and crossing a divided highway (Veh. Code, § 22107) are prohibited acts precisely because of the probability of harm to others. These statutes, defendant asserts, are primarily concerned with the safety of others.

Second, defendant points out that reckless driving is a misdemeanor with a potential punishment of six months in jail, whereas driving under the influence causing injury is a felony with potential punishment of three years in state prison. In his view, distinguishing the crimes by ascribing the more culpable mens rea to the crime with the lesser maximum punishment "defies logic." The greater offense, according to defendant, must require the more culpable mens rea.

We reject both arguments because they are premised on a public policy debate inappropriate in a judicial forum. Indeed, it is the Legislature, not the court, that defines the elements of a crime and ascribes the punishment it believes is commensurate with the gravity of the offense. Thus, the Legislature has determined that driving under the influence of a drug merits severe consequences because of the inherent and grave risk of harm associated with driving under the influence. It is not enough, as many cases have plainly held, to merely drive under the influence to violate Vehicle Code section 23153, subdivision (a), but it is enough to drive under the influence and commit an unlawful act even if the driver is not subjectively aware of the risk of harm his driving presents to others. The Legislature enjoys the prerogative to make these choices and distinctions and, in the exercise of that prerogative, to ascribe the greater punishment for driving under the influence in the absence of a subjective appreciation of the probable risk of injury to others.

C. Accident

Throughout the trial, defendant argued that the wet, slippery condition of a dangerous road, and not his driving, whether under the influence or not, caused the accident. Based on the testimony of his accident reconstructionist and his cross-examination of the prosecution's experts, defendant contends the trial court had a duty to instruct the jury on the defense of accident. Again he couples his claim of instructional error with a claim of ineffectiveness of counsel for failing to request the instruction.

If given, CALCRIM No. 3404 would have instructed the jury: "The defendant is not guilty of driving under the influence causing injury if he acted or failed to act without the intent required for that crime, but acted instead accidentally. You may not find the defendant guilty of driving under the influence causing injury unless you are convinced beyond a reasonable doubt that he acted with the required intent."

Defendant cites many cases that stand for the unremarkable principle that driving under the influence causing injury requires something more than driving under the influence and an injury. These cases demonstrate there is no strict liability for driving under the influence, and as defendant notes, the prosecution "'must show an unlawful act or neglect of duty in addition to driving under the influence.' [Citation.]" (People v. Weems (1997) 54 Cal.App.4th 854, 858.) But they do not support his argument that the trial court was obligated to give an accident instruction.

Defendant confuses mens rea with causation. The accident instruction relates exclusively to mens rea. "The accident defense is a claim that the defendant acted without forming the mental state necessary to make his actions a crime." (People v. Gonzales (1999) 74 Cal.App.4th 382, 390.) Defendant, in urging a colloquial application of the term "accident," argues that experts for both the prosecution and the defense offered different theories as to what caused the "accident." But the accident instruction is not addressed to causation; it is a defense because it negates the requisite intent. Thus, as the Attorney General points out, defendant did not get into the truck, turn on the ignition, and drive the vehicle "accidentally." He argued vehemently that the slippery, wet condition of the road caused the collision. But he misconstrues the meaning of the accident instruction by simply ignoring the fundamental fact that it applies to his mental state and not to what caused the accident. Because there is no evidence he lacked the intent to drive the car, there was no evidentiary basis for the instruction and the court had no sua sponte duty to deliver it.

D. Unanimity

Defendant contends the trial court erred by failing to instruct the jurors on their duty to unanimously agree that he crossed a divided highway, drove at an unsafe speed, or failed to exercise ordinary care as a driver. In his opening brief, defendant argued that CALCRIM No. 3500 should have been given as follows: "The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed."

But these same principles were embodied in CALCRIM No. 2100, which the court did read to the jurors. After identifying the three separate illegal acts the prosecution had alleged, the instruction states: "You may not find the defendant guilty unless all of you agree that the People have proved that the defendant committed at least one illegal act or failed to perform at least one legal duty. [¶] You must all agree on at least one illegal act the defendant committed or at least one legal duty the defendant failed to perform."

In reply, defendant changes course. Instead of giving CALCRIM No. 3500, as he initially argued, he now contends that the court was required to read a bracketed section of CALCRIM No. 2100 identified as "Alternative A." Alternative A states, "You must all agree on which act the defendant committed or duty the defendant failed to perform." Alternative A, defendant now insists, was the precise instruction required.

We fail to see how Alternative A differs from the instruction the court gave the jurors. They were, in fact, admonished that they had to all agree on at least one illegal act defendant committed or one legal duty defendant failed to perform. His argument to the contrary is completely without merit and borders on the frivolous.

DISPOSITION

The judgment is affirmed.

We concur: BUTZ, J. SCOTLAND , J.*fn2


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