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Farias v. Santoro

United States District Court, E.D. California

April 5, 2017

KELLY SANTORO, Respondent.



         Petitioner is currently serving an indeterminate sentence of 30 years to life plus 5 years for his conviction of gross vehicular manslaughter while intoxicated and felony driving under the influence causing great bodily injury. Petitioner is proceeding with the instant habeas action claiming: 1) The trial court erred by allowing an expert to testify as to the theory of Retrograde Alcohol Extrapolation related to Petitioner's blood alcohol content at the time of the accident; 2) Defense counsel rendered ineffective assistance by failing to properly object to the admission of the expert testimony; and 3) The trial court abused its discretion by imposing consecutive sentences. As discussed below, the Court finds the claims to be without merit and recommends the petition be DENIED.


         Petitioner was convicted in the Madera County Superior Court on November 20, 2012, of two counts of gross vehicular manslaughter while intoxicated (Cal. Penal Code § 191.5(a)), one count of driving while under the influence causing injury (Cal. Vehicle Code § 23153(a), and one count of driving with a blood alcohol content of 0.08 percent or greater causing injury (Cal. Vehicle Code § 23153(b)). People v. Farias, No. F066500, 2014 WL 6066121, at *1 (Cal.Ct.App. 2014). The jury also found true the special allegations that Petitioner had a prior conviction for driving under the influence and that he had caused great bodily injury to a victim. Id.

         Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth DCA”). The Fifth DCA affirmed the judgment on November 14, 2014. Id. Petitioner filed a petition for review on December 26, 2014, in the California Supreme Court. (LD[1] 29.) The petition was summarily denied on January 28, 2015. (LD 30.)

         On October 26, 2015, Petitioner filed the instant petition for writ of habeas corpus in this Court. (Doc. No. 1.) Respondent filed an answer on March 8, 2016. (Doc. No. 18.) Petitioner filed a traverse to Respondent's answer on June 27, 2016. (Doc. No. 24.)


         The Court adopts the Statement of Facts in the Fifth DCA's unpublished decision[2]:

         On the afternoon of November 13, 2010, Valentino Valdez and Marcel Rodriguez walked to a liquor store in Madera. [N.1] They saw defendant at the store. Valdez reminded defendant that he was his neighbor and asked defendant for a ride home. Defendant agreed and invited them into his car, a 1994 Jaguar XJ6 four-door sedan.

[N.1] Defendant and Valdez were the only survivors of the crash. Valdez testified for the prosecution, admitted he was on probation for prior felony convictions, and that he had problems with alcohol and drugs. Valdez failed to appear on the scheduled day of his testimony because he was afraid he would be arrested for an unrelated probation violation. When Valdez was recalled as a rebuttal witness, he admitted he had been taken into custody for that violation.

         Deborah Lyon, defendant's friend, was sitting in the front passenger seat. Valdez sat in the rear driver's side seat, and Rodriguez sat on the rear passenger side. Valdez could not find any seatbelts in the back seat.

         Valdez complimented defendant on his car. Defendant said the Jaguar had a special passing gear called a “slapstick” shifter, and it “just makes the car jet, like from 50 to maybe 90 or 100, real quick.” Valdez testified defendant did not appear to be under the influence of alcohol.

         Valdez testified defendant was supposed to drive him home. Instead, defendant drove in the opposite direction and into the country. The radio was loud and Valdez could not talk to defendant to ask where he was going.

         The crash

         Valdez testified defendant was driving approximately 50 to 55 miles per hour on the two-lane road. Defendant passed at least three cars which were traveling in front him. A black BMW passed defendant on the left side, and it was going about 55 or 60 miles per hour. Valdez thought defendant turned and said something to the BMW's driver as the car passed him.

         Valdez testified defendant suddenly “hit[ ] the gas” and accelerated. Valdez looked at the speedometer over defendant's shoulder, and the needle bounced between 100 and 110 miles per hour. Valdez again looked for a seatbelt and could not find it.

         Valdez testified defendant came upon a slow-moving vehicle which was traveling in the same lane in front of him. Defendant suddenly applied the brakes, and Valdez felt the front of the car start shaking.

         Valdez testified defendant lost control of the Jaguar. It fishtailed, veered off the road, became airborne, and flipped. Valdez desperately held onto the seat, but he was ejected. The Jaguar flipped in the air, crashed onto the ground, rolled several times, and finally landed in an alfalfa field.

         The witnesses

         Joey Rodriguez, Philip Rodriguez, and Lorena Bravo were traveling in a black BMW sports car on Avenue 14. Joey Rodriguez was driving about 45 to 50 miles per hour. The speed limit was 55 miles per hour. At some point, Rodriguez got in front of defendant's Jaguar.

         As they continued on Avenue 14, Bravo heard a car come up behind them, and Philip said the car was going to crash. Bravo heard the tires lock as if the driver hit the brakes. Bravo turned and looked through the BMW's rear window, and saw the Jaguar “coming toward us very fast and I thought they were gonna hit us.” Bravo testified the Jaguar was going over 70 miles per hour. She watched as the Jaguar flipped into the air, spun at least twice, hit the ground, and rolled over several times. Bravo saw one person ejected from the car as it was in the air.

         Bravo and her companions immediately stopped, called 911, and then ran to the Jaguar. A body was lying near the car. The driver had gotten out of the car and was holding his bloody head. They told the driver to sit down, which he did.

         Sandra Gonzalez was also driving on Avenue 14 and noticed the Jaguar was traveling “really quick” and “tried to pass.” The car appeared to hit the dirt and gravel on the shoulder. The car became airborne and flipped several times, and someone was ejected from the car.

         The scene

         At approximately 3:00 p.m., California Highway Patrol Officer Isler responded to the scene at Avenue 14, west of Road 23. The Jaguar was in an alfalfa field and on its wheels, but had substantial damage from rolling over numerous times. Isler described the roadway as straight and completely flat, the pavement was very good, and there were no hazards on the road such as oil or water.

         Valdez had been ejected from the car, but he was conscious and survived. He was in tremendous pain in the area of his ribs and back.

         Rodriguez also had been ejected from the car and he was lying in the field. He was dead at the scene from crushing injuries to his head and body.

         Lyon was still buckled into the front passenger seat. Her head was split open and she was dead at the scene from massive head and brain injuries.

         Defendant was sitting sideways in the driver's seat. He was conscious and suffered a head injury. Officer Isler briefly spoke to defendant and asked for his name, whether he was driving, and what happened. Defendant identified himself. Defendant said it was his car, and something hit the windshield and he lost control.

         Officer Isler only spoke to defendant for a minute. He stood a couple of feet away and did not detect the odor of alcohol from defendant. Defendant was bleeding from a laceration to his skull. The medical personnel arrived and Isler stepped away for defendant to receive treatment. Defendant and Valdez were taken to the hospital.

         Defendant's statements at the hospital

         Around 4:45 p.m., Officer Isler spoke to Valdez at the hospital and obtained his statement about what happened. Valdez had suffered fractured ribs and dislocated fingers and was in the hospital for three days.

         After he spoke to Valdez, Officer Isler spoke to defendant in the emergency room. Defendant was lying on a stretcher. He was wearing a neck collar, and his head injuries were bandaged. Isler again asked defendant if he was driving and how the collision happened. Defendant said he was driving, Lyon was in the front seat, and the two men were in the back seat. They were going to a friend's house. Defendant said something struck his windshield, but he was not sure what it was. He thought it might have been a bird. Defendant said he lost control, and the car rolled over.

         As they talked, Officer Isler noticed defendant's eyes were watery and bloodshot, which was not unusual after having been in that type of collision. However, Isler also smelled an odor of alcohol from defendant. He moved closer to defendant as he was talking, and realized the odor was coming from defendant's mouth. He was close enough to defendant's mouth to “get a good sniff of the alcohol that was coming out of his breath.” Isler described the alcohol odor as “moderate to weak ... it wasn't strong. I just could smell it coming from his breath, from past experience. [A]nd I could tell it probably wasn't beer either, ” because “hard liquor has a different smell than beer.”

         After smelling the alcohol, Officer Isler performed the horizontal gaze nystagmus test on defendant and asked him to follow his finger with his eyes. Based on defendant's reaction, Isler believed he was under the influence of alcohol. Isler was unable to perform any physical field sobriety tests because of defendant's condition.

         Officer Isler advised defendant of the Miranda warnings and asked if he had eaten anything. Defendant said he had sausage and eggs. Isler asked if he drank anything. Defendant said he had one shot of gin at his house at 11:00 a.m. Defendant said he also took a 750-milligram Vicodin pill that morning but claimed he did not feel any effects from it.

         At 4:52 p.m., defendant agreed to perform a Preliminary Alcohol Screening (PAS) breath test, and the result was 0.074 percent.

         Officer Isler testified he was “convinced” and there was “no doubt in my mind” that defendant was under the influence of alcohol. Isler arrested defendant for driving under the influence.

         At 5:15 p.m., a blood sample was taken from defendant, and his blood-alcohol content was determined to be 0.08 percent.

         The investigation

         CHP Officer Nicholas Haltom investigated the crash scene and found multiple tire friction marks on the pavement. After the final friction mark, the vehicle became airborne for 110 feet, hit the ground, flipped and rotated through the air an unknown number of times, and crashed into the field. The car finally stopped approximately 240 feet from the last friction mark on the pavement.

         Officer Haltom could not determine how many times the car flipped over. However, there were several points of impact on the pavement and in the field, which showed where the car hit the ground and then flipped back into the air. There was massive damage on all sides of the car. Haltom testified the car was definitely traveling faster than the speed limit of 55 miles per hour.

         Officer John Kolter examined the Jaguar and determined that while there was massive damage to the car's body from the crash, there was no evidence of a mechanical defect that would have caused the driver to lose control. He did not see any evidence of anything hitting or cracking the windshield before the crash occurred.

         Officer Kolter testified the car's brake rotors were undersized and too thin. The vehicle had sensors to trigger a dashboard light when there were problems with brake friction, but the sensor wires had been cut and tied off to turn off the light. Nevertheless, the driver would have known about the brake problem by feeling vibrations when using the brakes. The worn brakes would not have affected the driver's ability to drive the car or caused the car to go out of control. [N.3] There were functioning seatbelts in the back seat.

[N.3] Valdez testified that when defendant suddenly applied the brakes just before the crash, Valdez felt the front of the car start to shake. Defendant testified he had owned his Jaguar for seven or eight years, he usually kept it in storage because the insurance was so high, and he did not know the brake sensor wires had been altered.

         After inspecting the scene and the incident report, Officer Kolter testified to his opinion that the Jaguar was traveling at 74 miles per hour at the time of the crash. Kolter testified the crash was caused by defendant's recklessness and excessive speed.

         Expert testimony

         Ricardo Deslate, a criminalist with the Department of Justice, testified about “retrograde extrapolation, ” which is the process of determining “alcoholic concentration in a person's system based on a test result that was performed a little bit later.” [N.4] The variables included the time the last drink was consumed and how many drinks were consumed with a certain period, compared to the time of the incident.

[N.4] As we will explain in issue I, post, an expert who testifies about “retrograde extrapolation” starts with an individual's blood-alcohol content at the time of the chemical test, and uses circumstantial evidence and various factors to determine the person's blood-alcohol content at the time that person was driving. (People v. Warlick (2008) 162 Cal.App.4th Supp. 1, 7, fn. 2.)

         Deslate testified that 90 percent of the alcohol in a person's system is metabolized by enzymes produced by the liver. The “metabolic rate, burn off rate, ” is an average of 0.02 per hour. “That means if you have 0.02 alcohol in your system, you will get rid of it in one hour. That's equivalent to about one drink in about [a] 150, 170-pound man.” Deslate testified that was an average, some are lower and some are higher, and the range of burn off is “between .015 to .025 ... grams percent per hour.”

         In response to the prosecutor's series of hypothetical questions, Deslate testified about what the blood-alcohol content would be at 3:00 p.m., for a man who was five feet eight inches tall and weighed 175 pounds based on facts similar to this case, assuming his blood-alcohol content was 0.08 percent at 5:15 p.m., using retrograde extrapolation and different burn-off rates. [N.5] Deslate testified that using an average burn-off rate of 0.02 grams per hour, such a person would have had a blood-alcohol content of 0.12 percent at 3:00 p.m. Deslate used the same formula with a burn-off rate of 0.025 grams per hour, and testified the person's blood-alcohol content would have been 0.13 percent at 3:00 p.m. With a burn off rate of 0.015 grams, the person's blood-alcohol content would have been 0.11 percent.

[N.5] Officer Isler testified defendant's driver's license said he was five feet eight inches tall and weighed 175 pounds.

         The prosecutor asked Deslate to assume the man's blood-alcohol content was 0.07 percent at 5:15 p.m., and to use a burn-off rate of 0.015. Deslate testified the man's blood-alcohol content would have been 0.10 percent at 3:00 p.m. under that hypothetical.

         Deslate explained that if a person's blood sample was preserved and tested at a later time, the blood-alcohol result would be different at a rate of 0.01 to 0.02 percent because of the volatility of alcohol in the blood. Deslate also explained that PAS tests result in lower blood-alcohol results approximately 85 percent of the time because “you don't really get 100 percent of deep lung air.”

         Defense counsel asked Deslate to determine the hypothetical man's blood-alcohol content at 3:00 p.m. using the burn off rate of 0.025, based on a blood-alcohol content of 0.07 percent at 5:15 p.m. Deslate testified it would be 0.12 percent. Defense counsel asked him to use the same hypothetical with a burn off rate of 0.01 percent. Deslate explained the blood-alcohol content would be 0.022 percent.

         In the same hypothetical, Deslate testified the blood-alcohol content would be 0.011 percent using ...

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