United States District Court, S.D. California
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
JUDGE RE: DENYING PETITION FOR WRIT OF HABEAS CORPUS [ECF NO.
NITA L. STORMES, UNITED STATES MAGISTRATE JUDGE
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
following facts are taken from the California Court of Appeal
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
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
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
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
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.
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).