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Deleal v. Clark

United States District Court, S.D. California

October 15, 2019

RUDY DELEAL, Petitioner,
v.
KEN CLARK, Warden, Respondent.

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: DENYING PETITION FOR WRIT OF HABEAS CORPUS [ECF NO. 1]

          HON. NITA L. STORMES, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Petitioner Rudy Deleal (“Petitioner” or “Deleal”), a state prisoner, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his San Diego Superior Court conviction for driving under the influence of a drug causing injury in case number SCD265087. (ECF No. 1 at 2.) Respondent filed an answer, arguing that Petitioner's petition fails on the merits, and lodged the court records. (ECF No. 6; ECF No. 7 (“Lodgment”).) Petitioner was provided with the opportunity to file a traverse by July 10, 2019, (ECF No. 4 at 2, ) but has failed to do so to date. After reviewing the parties' submissions and the lodgments, and for the reasons discussed below, the Court RECOMMENDS the Petition be DENIED.

         II. FACTUAL BACKGROUND

         The following facts are taken from the California Court of Appeal opinion:[1]

Megan, a stay-at-home mother and part-time model, lived with her two children and their father in an apartment in San Diego, California. On an evening in December 2015, Megan went for a walk on University Avenue to a nearby store.
Around the same time, Jesus Contreras was driving westbound on University Avenue. Contreras observed a sport utility vehicle (SUV) driving two cars in front of him. The SUV was zigzagging and swerving between lanes. Contreras reached for his phone to call 911 because he believed the driver of the SUV was under the influence. Contreras saw the SUV slow down and move to the right as if it was going to park. The SUV then accelerated onto the sidewalk and crashed near a recycling center.
Shawn Johnson was at a car wash on University Avenue when he heard tires screeching and a thumping sound of a vehicle hitting something. Johnson turned and saw Megan fly into the air, land on the ground, and roll over. The vehicle then crashed and stopped. Johnson took a picture of the vehicle and called 911.
San Diego Police Officer Wilton Garbutt responded to the scene of the accident. When he arrived, Officer Garbutt saw that a SUV had collided with a traffic sign and Megan was lying in the parking lot of the car wash. Megan was unconscious and bleeding from her head. Deleal was slouched in the driver's seat of the SUV. He was unconscious.
Officer Garbutt knocked on the window of the SUV several times, but Deleal did not respond. Officer Garbutt broke the passenger window of the SUV to unlock the doors. The keys to the SUV were still in the ignition. Officer Garbutt placed the car in park and took the keys out. Deleal was still unconscious when paramedics arrived approximately five minutes later.
Officer Michael Gottfried obtained surveillance video from the car wash. The video showed the SUV committing a traffic violation by moving unsafely to the right, leaving the paved portion of the roadway, and striking Megan who was walking on the sidewalk. The SUV came to a stop when it crashed into a street sign.
Paramedics transported Megan and Deleal to the hospital. Megan did not remember being struck by a vehicle. When she woke up in the hospital, she was in extreme pain and was having difficulty breathing. She had a large hematoma and contusion near he left eyebrow. She was missing two teeth and a third was partially broken. Megan had a swollen lip, abrasions on her hands, and blood in her mouth. A scan revealed that Megan had bleeding in her brain and had fractured her pelvis. After she left the hospital, Megan had to learn to walk again and undergo speech therapy. At the time of trial, Megan still had memory loss, pain throughout her body, and migraines.
Dr. Mark Cannis treated Deleal. When he first came into the hospital, Deleal was “poorly responsive, ” his eyes were closed, and he did not respond to questions. He was snoring and breathing slowly. Dr. Cannis performed numerous blood tests on Deleal. The tests were negative for alcohol. A urine test showed positive for methamphetamine, amphetamine, marijuana, and a tricyclic antidepressant medication. Subsequent laboratory tests on Deleal's blood samples confirmed methamphetamine at 254 nanograms per milliliter and amphetamine at 22 nanograms per milliliter.
Dr. Cannis testified that initial symptoms of methamphetamine intoxication include agitation, hyperactivity, delirium, and delusional behavior. The person may also have hallucinations or a fast heart rate. As the methamphetamine wears out of a person's system, the person typically has a “profound degree of somnolence and fatigue and tiredness. It's as if they haven't - well, in some cases it is because they haven't slept for days.” Dr. Cannis had seen many patients who had experienced seizures from marijuana use. In Dr. Cannis's opinion, a combination of methamphetamine and marijuana could increase the possibility of seizures.
Based on his training and experience, Dr. Cannis concluded that Deleal had a provoked seizure from methamphetamine and sympathomimetic abuse. Dr. Cannis explained that sympathomimetic refers to a substance or drug that causes a person to act in an agitated, delirious, or adrenaline provoked state. According to Dr. Cannis, it was possible that Deleal's seizure was only coincidentally associated with his positive toxicology results. However, it was much more likely that Deleal had a provoked seizure from methamphetamine and sympathomimetic drugs. In reaching this conclusion, Dr. Cannis considered that Deleal did not have epilepsy or other factors that could cause seizures.
Ola Bawardi, a forensic toxicologist, testified that a person with a blood result of methamphetamine at a level of 254 nanograms per milliliter can be impaired for purposes of driving. For example, the person may drive too fast, drive erratically, have difficulty maintaining his lane of travel, and may not pay attention to things on the roadway. If a driver swerves in and out of traffic, makes an altered movement to the right, accelerates up a curb, strikes an individual, and then rolls to a rest, the driving pattern can be consistent with somebody who is under the influence of methamphetamine.
Bawardi testified that methamphetamine can cause a person's body to “crash, ” when his body becomes so fatigued that it can no longer produce the stimulating effect typically associated with the drug. During the crash phase, the person can appear almost drunk and is extremely fatigued, drowsy, and difficult to wake up. However, the person could still have internal signs of stimulation such as elevated blood pressure and heart rate. According to Bawardi, although a person crashing from methamphetamine may be difficult to wake up, he or she would not experience a prolonged period of unconsciousness. Unconsciousness for a period of several hours would be inconsistent with a person crashing from methamphetamine use.
Defense
Dr. Charles O'Connell, an emergency room physician and medical toxicologist, testified that methamphetamine rarely causes seizures. In general, it only happens in cases of massive overdose. According to Dr. O'Connell, Deleal's methamphetamine concentration of 254 nanongrams per milliliter is at the very low end of recreational abuse. In order for a seizure to occur, a person would need a significantly higher drug concentration.
Dr. O'Connell reviewed Deleal's medical records and investigative reports regarding the accident. Dr. O'Connell testified that Deleal's level of deep sedation was not consistent with a methamphetamine “crash” because a person coming down from a methamphetamine high would wake up from prodding and stimulation. Additionally, it is not consistent with methamphetamine intoxication for a person to be unconscious at the wheel of a car after the use of the drug. In Dr. O'Connell's opinion, Deleal was not significantly intoxicated by methamphetamine at the time of the accident.

(Lodgment No. 6 at 2-6.) After an independent review of the trial record, the Court concludes that the California Court of Appeal's opinion represents an accurate summary of the record. (See Lodgment No. 1).

         III. PROCEDURAL BACKGROUND

         A. Trial ...


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