United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT
OF HABEAS CORPUS [TWENTY-ONE DAY OBJECTION DEADLINE]
JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE
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.
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
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 29.) The petition was summarily
denied on January 28, 2015. (LD 30.)
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.)
Court adopts the Statement of Facts in the Fifth DCA's
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
[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.
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.
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
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.
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.
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.
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.
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
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
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.
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.
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.
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.
had been ejected from the car, but he was conscious and
survived. He was in tremendous pain in the area of his ribs
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.
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.
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.
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.
statements at the hospital
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.
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.
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.”
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.
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.
p.m., defendant agreed to perform a Preliminary Alcohol
Screening (PAS) breath test, and the result was 0.074
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.
p.m., a blood sample was taken from defendant, and his
blood-alcohol content was determined to be 0.08 percent.
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.
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
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.
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.
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
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.)
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
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
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.
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.”
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.
same hypothetical, Deslate testified the blood-alcohol
content would be 0.011 percent using ...