Monday, October 29, 2007

San Diego California DUI - Drugs Vicodin case

San Diego California DUI criminal defense attorney - Drugs Vicodin case

Filed 10/29/07 P. v. Johnson CA3



(El Dorado)


Plaintiff and Respondent,



Defendant and Appellant.
(Super. Ct. No. P03CRF0726)

Defendant was convicted after a jury trial of driving under the influence of drugs causing injury (Veh. Code, § 23153, subd. (a)). The jury further found defendant had caused great bodily injury to the victim (Pen. Code, § 12022.7, subd. (b)). Defendant admitted he had a prior conviction for driving under the influence of drugs (Veh. Code, § 23540).

The trial court sentenced defendant to the upper term of three years in state prison and five years for the great bodily injury enhancement, for a total of eight years in state prison.

Defendant appeals. He contends his right to due process and his privilege against self-incrimination were violated when the trial court permitted the prosecutor to impeach him with his prior testimony on cross-examination. He also contends his upper-term sentence violates the principles of Blakely v. Washington (2004) 542 U.S. 296, 303 [159 L.Ed.2d 403, 413] (Blakely). We affirm.


At approximately 3:00 p.m. on October 29, 2003, defendant was driving his truck westbound on Highway 193 toward Georgetown. This portion of the highway is curvy, has one lane going in each direction, and has no center divider.

Ariana Carlson1 was driving in her car directly in front of defendant. She was driving approximately 45 to 55 miles per hour. Ariana saw defendant’s truck come up behind her “pretty quick,” and it slowed only when it was a half car length behind her. Defendant continued to tailgate her for several minutes, so Ariana looked for a place to pull over. Afraid to slow down too much for fear defendant would hit her, she pulled off the road at a turnout without braking. After her car was completely on the gravel, she braked hard. She had not signaled that she was going to pull over because her turn signal was broken.

Defendant, however, did not wait for Ariana’s car to pull entirely off the road. Instead, defendant crossed over the center line as he passed Ariana’s car. Larry Jennings, who was traveling the opposite direction, was able to swerve and avoid colliding with defendant’s truck. Nancy Carlson, however, who was traveling behind Jennings in her convertible, was struck by defendant’s truck and sent off the road and into a ravine.

Jennings said that after the accident, defendant appeared disoriented but uninjured. Ariana described defendant as not “all there” mentally. Defendant was taken to a medical center by ambulance. He had lacerations on his face, arms and legs. California Highway Patrol Officer Chris Lane spoke to defendant at the medical center at approximately 6:20 p.m. Defendant had red, watery eyes, was sleepy and lethargic, and his speech was slurred and garbled.

Defendant was released from the medical center after his evaluation by hospital staff, without being admitted. At this time, defendant told Lane he had taken two Valium pills around noon and had eaten half of a sandwich about an hour before that. Defendant also said he was not under the care of a doctor.

Lane had defendant perform several field sobriety tests, after which Lane opined defendant was under the influence of a depressant and unable to safely operate a vehicle. He arrested defendant and had the medical center staff draw a blood sample.

The blood sample was drawn at 6:45 p.m. Results indicated therapeutic levels of substances found in Valium and Vicodin. Forensic scientist, Timothy Appel, opined that based on Lane’s observations, defendant’s symptoms, the field sobriety tests and defendant’s driving, that defendant was under the influence of Valium or Vicodin at the time of the collision. Appel also stated the peak plasma level of Valium and Vicodin is two to three hours and noted that the amount of drugs in defendant’s system would have been higher at the time of the collision.

Defendant testified that he took Vicodin five minutes before the accident. He does not know why he told Lane he took two Valium at noon. Further details regarding defendant’s testimony are set forth in the discussion.

Dr. Alan Wu, a professor of laboratory medicine, was called to testify by defendant. Wu testified the peak absorption time of Valium and Vicodin is approximately an hour and a half and can be affected by the contents of the stomach. Wu opined that one’s ability to drive a motor vehicle would not be impaired within 15 minutes of taking Vicodin.

Nancy suffered extremely severe injuries as a result of the collision and remains physically disabled and cognitively impaired.



Defendant contends he was improperly impeached on cross-examination with prior statements that he had been warned about the dangers of driving while taking Vicodin. He contends the trial court prejudicially erred when it allowed the prosecutor to use his prior statements because it exceeded the scope of direct examination. He further argues that, to the extent his trial counsel did not lodge a timely objection, he received ineffective assistance of counsel. We reject his claims.

Defendant testified very briefly on direct examination. He admitted he took Vicodin less than five minutes before the collision. He vaguely recalled speaking to an officer at the hospital. At the time, he was confused, tired, and in pain. His entire body hurt, including his head, leg, and arms. He did not have a clear recollection of what had happened.

On cross-examination, the prosecutor asked defendant where he had obtained the Vicodin. Defendant responded that he had a prescription from Dr. Sue. The prosecutor then asked, “Dr. Sue warned you about driving and taking Vicodin, right?” Defendant answered, “No, he did not.” Defendant admitted, however, that he knew there was a danger.

The prosecutor sought a bench conference to request he be allowed to use defendant’s prior sworn testimony from his previous trial wherein he was charged with driving under the influence of Soma and Vicodin. Specifically, the prosecutor requested he be permitted to impeach defendant’s statement that he was not warned about the danger of driving and taking Vicodin because he had previously testified that both Dr. Sue and the pharmacist had so warned him.

Defense counsel objected, arguing the prior statements were “so prejudicial I think that it goes beyond the scope of direct [examination].” Defense counsel further argued that the prior statements were irrelevant, arguing: “Whether or not he was warned has nothing to do with whether or not he took the drug and whether or not the levels in his system has to do with impairment or intoxication at the time of the accident.”

The trial court ruled that, although it would have entertained defendant’s objection to exceeding the scope of direct examination earlier, the objection was untimely because the jury had now heard testimony concerning whether Dr. Sue had warned defendant. The trial court then ruled the prior statements appeared to be inconsistent with his current testimony and the prosecutor would be permitted to cross-examine defendant with those statements.

Defendant contends the trial court erred and deprived him of his rights against compulsory self-incrimination and of due process by allowing the prosecutor to cross-examine him on a matter which exceeded the scope of direct examination. We agree with the trial court’s ruling that such objection was untimely.

By the time defendant objected to the scope of the cross-examination, whether the prosecutor’s question about Dr. Sue warning him had gone beyond the scope of direct was no longer appropriately before the court. Defendant had already testified in a manner inconsistent with prior statements. He had already stated that Dr. Sue had not warned him of the dangers of taking Vicodin and driving. The trial court did not err in ruling that defendant’s objection to the scope of the cross-examination into this subject area was untimely. (Evid. Code, § 3532 [objection must be timely made].)

Nor may defendant prevail based on ineffective assistance of counsel for any failure to lodge a timely objection to the scope of the cross-examination.

To establish ineffective assistance of counsel, defendant must demonstrate that his counsel’s performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 684-685, 687, 691-692 [80 L.Ed.2d 674, 691-692, 693, 696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) “[T]he mere failure to object rarely rises to a level implicating one’s constitutional right to effective legal counsel. [Citation.]” (People v. Boyette (2002) 29 Cal.4th 381, 433.)

Here, even assuming for the sake of argument that counsel had timely objected to the scope of the cross-examination, defendant cannot establish the trial court would have excluded the evidence. (See People v. Lewis (2001) 26 Cal.4th 334, 359 [“Where ‘there was no sound legal basis for objection, counsel’s failure to object to the admission of the evidence cannot establish ineffective assistance’”].) Contrary to defendant’s representation on appeal, the trial court did not indicate it would have sustained such an objection had it been timely, the court simply stated it would have entertained it.

A defendant who testifies waives his Fifth Amendment privilege against self-incrimination to the extent of the scope of relevant cross-examination. (People v. Mayberry (1975) 15 Cal.3d 143, 160.) “When a defendant voluntarily testifies, the district attorney may fully amplify his testimony by inquiring into the facts and circumstances surrounding his assertions, or by introducing evidence through cross-examination which explains or refutes his statements or the inferences which may necessarily be drawn from them.” (People v. Cooper (1991) 53 Cal.3d 771, 822.) “[T]he scope of proper cross-examination may extend to the whole transaction of which the witness has testified, or it may be employed to elicit any matter which may tend to overcome, qualify or explain the testimony given by a witness on his direct examination.” (People v. Dotson (1956) 46 Cal.2d 891, 898.) Here, by testifying that he took Vicodin prior to the accident, defendant opened the scope of cross-examination to include all matters relevant to his having taken Vicodin prior to the accident. (See People v. Pike (1962) 58 Cal.2d 70, 90.) Thus, defendant cannot establish the trial court would have sustained a timely objection to the prosecutor’s question regarding whether Dr. Sue had warned defendant of the dangers of taking Vicodin and driving.

Furthermore, defendant has failed to show either deficient performance or prejudice, both of which he must demonstrate to establish he received ineffective assistance of counsel. Defendant never disputed his knowledge of the dangers of taking Vicodin and driving. Indeed, he argued both at trial and on appeal that the subject matter of the evidence was irrelevant for this very reason. Thus, there was nothing prejudicial about the subject area of the complained of testimony, which is likely why the prosecutor’s questioning reasonably drew no objection from defense counsel. We cannot say counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms when he failed to object to the prosecutor’s question of whether defendant had been warned about the dangers.

Nor was defendant prejudiced by the prosecutor’s question of whether he had been warned about the dangers, since he was not disputing he had such knowledge. And it is at this point that defendant must establish prejudice, since he is claiming counsel was ineffective for not lodging a timely objection to this question at trial. Had defendant testified consistently with his prior statements, there would be no arguable prejudice at all.

Indeed, there was no arguable prejudice to defendant until he testified inconsistently with his prior statements--something we cannot determine from the appellate record that defense counsel knew he would do. But even if defense counsel could have known defendant would do so, and therefore, should have objected before defendant testified inconsistently, the impeachment evidence that was ultimately admitted had little prejudicial value. The trial court specifically limited the admitted evidence to the fact that defendant had made “sworn statements,” prior to trial, that he was warned of the dangers of taking Vicodin and driving by Dr. Sue and the pharmacist. The trial court did not allow the prosecutor to mention that the sworn statements were made in a prior trial or that defendant had been previously tried and/or convicted of driving under the influence of Soma and Vicodin.

Finally, defendant contends the trial court erred by not ruling the evidence of warnings to defendant of the dangers of taking Vicodin and driving was inadmissible pursuant to section 352. This claim is unavailing because he failed to object on this ground in the trial court. (§ 353 [timely and specific objection must be made in the trial court to preserve an evidentiary challenge for appellate review].)

Trial counsel’s statement, “I think this is so prejudicial I think that it goes beyond the scope of direct,” did not adequately raise a section 352 objection. Nor did his later argument that the evidence was irrelevant. (People v. Barnett (1998) 17 Cal.4th 1044, 1130 [objection based on relevancy is insufficient to preserve a section 352 objection for appellate review]; 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, §§ 375, 377-379, pp. 465-466, 468-471.)

In any event, the trial court did not rule on a section 352 objection. Thus, because counsel failed to obtain a ruling, any such objection was forfeited and not preserved for appeal. (People v. Hayes (1990) 52 Cal.3d 577, 618-619.)


In imposing the upper term sentence, the trial court found the following six factors in aggravation under rule 4.421 of the California Rules of Court: The crime involved great violence and great bodily injury; the victim was particularly vulnerable; defendant interfered with the judicial process by altering his story in a similar vein as dissuading a witness; defendant admitted to numerous violations of driving under the influence; and defendant was on probation for a prior driving under the influence conviction at the time of the current offense. The trial court found no factors in mitigation.

Defendant contends the trial court violated his right to a jury trial by imposing the upper term based on facts not admitted by him or found by a jury. We disagree.

Applying the Sixth and Fourteenth Amendments to the United States Constitution, the United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490 [147 L.Ed.2d at p. 455].) For this purpose, the “statutory maximum” is the maximum sentence the trial court may impose based solely on the facts reflected in the jury verdict or admitted by the defendant. (Blakely, supra, 542 U.S. at p. 303 [159 L.Ed.2d at p. 413].)

In Cunningham v. California (2007) 549 ___ U.S. ___ [166 L.Ed.2d 856] (Cunningham), the United States Supreme Court held that under Blakely and other decisions, California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments” to the extent the law allows a judge to impose an upper-term sentence “based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham, at p. ___ [166 L.Ed.2d at p. 864], overruling People v. Black (2005) 35 Cal.4th 1238 on this point, vacated in Black v. California (2007) ___ U.S. ___ [167 L.Ed.2d 36].)

On remand from the United States Supreme Court, for reconsideration in light of Cunningham, the California Supreme Court recently held that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black (2007) 41 Cal.4th 799, 816 (Black II).) The “prior conviction” exception “include[s] not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Id. at p. 819.)

Here, defendant admitted to having sustained a prior conviction for driving under the influence of drugs. The probation report reflects defendant had sustained two additional convictions for driving under the influence.3 The trial court’s reliance on the fact that defendant admitted to numerous violations of driving under the influence could be considered to be a finding of numerous prior convictions--a factor not required to be found by a jury under Blakely.

Because this aggravating factor made defendant eligible for the upper term, the trial court did not violate defendant’s right to a jury trial in imposing the upper term. (Black II, supra, 41 Cal.4th 799, 816.)


The judgment is affirmed.

SIMS , Acting P.J.

We concur:



1 Ariana Carlson and the victim, Nancy Carlson, are not related but have the same surname. To avoid confusion, we shall use their first names. No disrespect is intended.

2 Undesignated statutory references are to the Evidence Code.

3 Defendant admitted in his statement to the probation officer that he had “like thirteen DUI’s” over the years, but not all had resulted in convictions. Defendant had also sustained three additional convictions for violations of other provisions of the Vehicle Code.