Thursday, April 17, 2008

Discovery violation in California DUI grounds to exclude evidence?

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Filed 4/17/08 P. v. Fisher CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,

v.

BRADLEY ALLEN FISHER,

Defendant and Appellant.
D051472
(Super. Ct. No. SCD205244)


APPEAL from a judgment of the Superior Court of San Diego County, Roger W. Krauel, Judge. Affirmed.

A jury convicted Bradley Allen Fisher of driving under the influence of alcohol with a blood alcohol level of at least .08 percent (Veh. Code, § 23152, subd. (b)),1 and Fisher admitted four prior convictions for driving under the influence within the past 10 years, including a prior felony conviction for which he served a prison term. Fisher also pled guilty to a count of driving with a license that was suspended or revoked as a result of a prior conviction for driving under the influence. (§ 14601.2, subd. (a).) The trial court sentenced Fisher to four years in prison.

Fisher argues that his conviction should be reversed because (1) the evidence was not sufficient to establish that he had a blood alcohol level of at least .08 percent while he was driving, and (2) his right to due process was violated when the prosecutor elicited testimony from an expert witness regarding the contents of a lab report that the trial court had ruled would not be admitted into evidence because of a discovery violation. As we will explain, we conclude that Fisher's arguments are without merit, and accordingly, we affirm.

I

FACTUAL AND PROCEDURAL BACKGROUND

On March 9, 2007, at approximately 3:32 p.m., Officer Tony Carter of the San Diego Police Department made a traffic stop of a vehicle driven by Fisher. Officer Carter observed that Fisher's speech was slurred, he smelled strongly of alcohol and his eyes were bloodshot and glassy. Fisher told Officer Carter that he recently had drunk three shots of brandy, but he did not know when he had taken his last drink. Fisher stated that "maybe" he had a drink within the last hour. Fisher also indicated that he had last eaten in the "morning." Officer Carter arrested Fisher for being under the influence of alcohol.

Officer Patrick Laco of the San Diego Police Department arrived on the scene and had Fisher blow into a preliminary blood alcohol screening device. The device registered a blood alcohol level of .096 percent at approximately 4:00 p.m. Fisher refused to blow into the device for a second reading. Later the same day, Officer Laco tested the preliminary blood alcohol screening device that he had used to screen Fisher, and he confirmed that the device was calibrated within a tolerable range.

Fisher was transported to police headquarters, where a blood sample was taken from him at 5:08 p.m., approximately an hour and a half after he was stopped by Officer Carter. An analysis of the blood sample showed a blood alcohol level of .07 percent.

Fisher was charged with one count of driving under the influence of alcohol (§ 23152, subd. (a)) (count 1), one count of driving while having a blood alcohol level of at least .08 percent (§ 23152, subd. (b)) (count 2), and one count of driving with a license that was suspended or revoked because of a prior conviction for driving under the influence (§ 14601.2, subd. (a)) (count 3). With respect to counts 1 and 2, the information also alleged that Fisher had incurred three or more convictions for driving under the influence, including one felony. Fisher pled guilty to count 3.

At the jury trial on counts 1 and 2, after being given a hypothetical set of facts based on the details of Fisher's case, the prosecution's expert witness, Larry Dale, testified that in his opinion someone of Fisher's weight who was found to have a blood alcohol level of .07 percent at approximately 5:00 p.m. would have had a blood alcohol level of between .09 and .10 percent at 3:32 p.m., assuming that the person had fully absorbed the alcohol into his bloodstream by 3:32 p.m. Dale explained that full absorption of alcohol into the bloodstream generally occurs in approximately half an hour after consumption on an empty stomach.

Dale also testified that the test result of .07 percent blood alcohol was arrived at by averaging the results of two separate lab tests and then dropping the third digit. The third digit was dropped based on a regulation promulgated by the California Department of Health Services, which states that in a lab report regarding the results of a forensic blood alcohol test, "[a]nalytical results shall be reported to the second decimal place, deleting the digit in the third decimal place when it is present." (Cal. Code Regs., tit. 17, § 1220.4, subd. (b).) Because the lab worksheet showing the detailed results from the test of Fisher's blood sample had not been produced in discovery by the prosecution, the trial court ruled that it would not admit that worksheet into evidence. However, referring to that worksheet, Dale testified at trial that the averaged test result of .07 percent blood alcohol was achieved by dropping the third digit from the averaged test result of .079 percent. Upon objection and a motion to strike by defense counsel, the trial court instructed the jury to "disregard the testimony concerning .079."

Defense counsel moved for a mistrial, premised on Dale's testimony that the test results from Fisher's blood sample showed an average blood alcohol level of .079 percent before the third digit was dropped. The trial court denied the motion for a mistrial. It stated, "The reference to .079 was made one time; and at that point there was a timely motion to strike, which was granted, and an admonition added to that by the court. That figure only appeared in the testimony at that point in time in the trial. It was not used in the hypothetical. It was not evidence of a blood alcohol at the time of driving, and there was no calculation based upon that .079. I share defense counsel's concern about it being mentioned; but in the overall picture of the trial, I don't believe that the mention violates the due process rights of the defendant."

A jury convicted Fisher on count 2 for driving with a blood alcohol level of at least .08 percent, and acquitted him on count 1 for driving under the influence of alcohol. Fisher admitted the prior convictions charged in the information, and the trial court sentenced Fisher to four years in prison.

II

DISCUSSION

A. Fisher's Challenge to the Sufficiency of the Evidence

Fisher argues that there was insufficient evidence to support a finding that he was driving with a blood alcohol level of at least .08 percent.

Recognizing that Dale's expert testimony provided evidence that Fisher's blood alcohol level was between .09 and .10 percent at the time he was stopped by police, Fisher attacks Dale's opinion. He argues that Dale's opinion "was based on assumptions and estimates that did not necessarily apply to Mr. Fisher," and points out that Dale "admitted that there could be variances in alcohol absorption and burnoff rates." Fisher argues that because there was no evidence to indicate how far in advance of the traffic stop he had three shots of brandy, "[t]here was . . . a possibility that [he] had not fully absorbed the alcohol at the time of the stop, in which case, his blood alcohol level would have been lower at the time he was driving than at the time his blood was drawn." Also attacking Dale's assumption about the rate of absorption of alcohol, Fisher argues that "it was unknown whether [he] had an empty stomach," and thus whether Dale accurately assumed the 30-minute alcohol absorption rate applicable to a person with an empty stomach. Fisher argues that although there was testimony that he told Officer Carter at approximately 3:30 p.m. that he had last eaten in the "morning," he could have meant late morning, and he could have had a large breakfast that was still in his stomach.2

" 'In reviewing a challenge to the sufficiency of the evidence . . . , we review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence — that is, evidence that is reasonable, credible, and of solid value — from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.' [Citation.] 'The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " (People v. Ramirez (2006) 39 Cal.4th 398, 464.) Reversal is not warranted "unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.) "[I]t is not within our province to reweigh the evidence or redetermine issues of credibility." (People v. Martinez (2003) 113 Cal.App.4th 400, 412.) Significantly too, " '[i]f the circumstances reasonably justify the verdict of the jury, the opinion of the reviewing court that those circumstances might also reasonably be reconciled with the innocence of the defendant will not warrant interference with the determination of the jury.' " (People v. Love (1960) 53 Cal.2d 843, 850-851, italics added.)

Applying these standards and viewing the entire record in the light most favorable to the judgment, we conclude that substantial evidence supports a finding that Fisher had a blood alcohol level of at least .08 percent when he was stopped by Officer Carter. Dale testified that in his expert opinion someone in Fisher's situation would have had a blood alcohol level between .09 and .10 percent. Although Dale assumed that by the time of the traffic stop Fisher had already absorbed into his bloodstream all of the alcohol he had consumed, testimony in the record provides substantial evidence for that assumption. Specifically, (1) the results of the test administered using the preliminary alcohol screening device showed a reading of .096 percent; (2) Officer Carter observed that Fisher had slurred speech, smelled strongly of alcohol and had bloodshot and glassy eyes; and (3) Fisher stated that "maybe" he had consumed alcohol within the last hour.3 Based on all of this evidence, the jury was entitled to credit Dale's expert opinion despite the lack of conclusive evidence as to the time that Dale imbibed alcohol, and on that basis to reasonably find that Fisher had a blood alcohol level of at least .08 percent while he was driving.

B. Fisher's Challenge to the Trial Court's Ruling on the Motion for a Mistrial

Fisher argues that the trial court "should have granted the mistrial motion because the prosecutor improperly elicited testimony that was inadmissible based on the prosecution's . . . discovery violation. The unfair testimony deprived Mr. Fisher of his right to a fair trial."4 We apply an abuse of discretion standard of review to the trial court's ruling denying the motion for a mistrial.

In support of his argument, Fisher relies on People v. Hudson (1981) 126 Cal.App.3d 733, 735, 741 (Hudson), which concluded that in a prosecution for multiple rapes, the prosecutor improperly "resorted to inflammatory rhetoric, violated the trial court's rulings, brought out inadmissible matters in the guise of questions and statements, used extremely vulgar forms of argumentative questions and injected prejudicial innuendo by his editorial comments in front of the jury," and thus the defendant "was deprived of his right to a fair trial guaranteed to him by the due process clauses of the United States and California Constitutions."

Among the many instances of prosecutorial misconduct in Hudson was the prosecutor's refusal to follow the ruling of the trial court regarding the permissible scope of questioning regarding a police interrogation of the defendant on another suspected crime. Specifically, the trial court instructed that in any further questioning regarding the interrogation, the prosecutor was to clarify that the suspected crime was a misdemeanor and that the prosecutor was not to mention the nature of the suspected crime. Nevertheless, the prosecutor continued to refer to the interrogation without indicating that it related to a misdemeanor, and he divulged the nature of the crime (which was indecent exposure) by stating that it was "another offense involving a woman as the victim." (Hudson, supra, 126 Cal.App.3d at p. 740.) The prosecutor compounded the problem in closing argument by again improperly referring to the interrogation. (Ibid.) Fisher argues that this item of prosecutorial misconduct (which was one in a long list), is analogous to the prosecutor in this case eliciting testimony that the lab worksheet, excluded from evidence, showed a test result of .079 percent blood alcohol before the third digit was dropped.

We acknowledge that Hudson demonstrates that prosecutorial misconduct during a trial may, in extreme instances, rise to the level that the defendant is prevented from receiving a fair trial. (Hudson, supra, 126 Cal.App.3d at p. 741.) However, this case falls far short of such an instance.

First, there is no indication that the prosecutor intentionally withheld documents from the defense, and the trial court made no such finding. It was the prosecutor who brought to the trial court's attention the fact that Dale had brought with him to court documents that she was not aware of and that had not been produced to defense counsel. The prosecutor conceded that she had violated the applicable discovery rules by failing to produce the documents, albeit unintentionally.

Second, as we read the record, it is not clear that the prosecutor was intending to elicit from Dale that the test result, before dropping the third digit, was .079 percent. Referring to the lab worksheet that the trial court had excluded from evidence, the prosecutor elicited the following testimony:

"Q: So how many times was that sample tested?

"A. It was split into two different vials. Each was tested independently. Results were then averaged, and each individual result was well within the standards of accuracy required and then those two values were averaged and came up with the .07.

"Q. What was the average of those two values that you just described?

"A. The average before the .07 was a .079. By title 17, we have to drop the third digit and just report the first two."

By simply asking for "the average of those two values that you just described," the prosecutor was not necessarily asking Dale to give the test result to the third digit, and she may not have anticipated that he would do so.

Third, as we read the record, the trial court does not appear to have made the ruling that Fisher claims it did, i.e., that the prosecutor was barred from eliciting testimony regarding facts that were set forth in the excluded lab worksheet. Instead, the trial court appeared to rule that the witness could testify to the content of the documents, but that the documents themselves would not be admitted into evidence. The trial court tentatively ruled, "If this witness can testify to those -- [exhibits] 4, 5, 6, and 7 [i.e., the documents that were not produced] -- my tentative would be to say, then, we are excluding [exhibits] 4, 5, 6, and 7 from being admitted into evidence." The trial court then confirmed its tentative ruling "to deny admission into evidence of exhibits 4, 5, 6, and 7."

Fourth, after Dale testified to the test result of .079 percent and defense counsel objected, the trial court immediately admonished the jury to disregard that testimony. In addition, as the trial court pointed out in its ruling denying the motion for a mistrial, the hypothetical set of facts under which Dale gave his opinion about Fisher's blood alcohol level at the time of the traffic stop did not include a test result of .079 percent as one of the hypothetical facts. Instead, the hypothetical was based on a blood alcohol level of .07 percent, and Dale's opinion based on that hypothetical was sufficient to support a conviction.

Under all of these circumstances, we conclude that if any prosecutorial misconduct in fact occurred, it was so slight and had such an insignificant impact on the result of the trial that it did not rise to level of depriving Fisher of a fair trial in violation of this right to due process. The trial court accordingly did not abuse its discretion in denying the motion for a mistrial.

DISPOSITION

The judgment is affirmed.

IRION, J.

WE CONCUR:

McCONNELL, P. J.

AARON, J.



1 All further statutory references are to the Vehicle Code.



2 Although Fisher does not cite case law directly on point, we understand Fisher to be relying on the concept that "[w]here an expert bases his conclusion upon assumptions which are not supported by the record, upon matters which are not reasonably relied upon by other experts, or upon factors which are speculative, remote or conjectural, then his conclusion has no evidentiary value. [Citations.] In those circumstances the expert's opinion cannot rise to the dignity of substantial evidence." (Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135.)



3 Further, the jury could reasonably infer based on Fisher's admission that he had not eaten since the morning that at approximately 3:30 p.m., he had an empty stomach, and thus fully absorbed the alcohol into his bloodstream in approximately half an hour after consumption, as assumed in Dale's opinion.



4 Fisher does not contend that, absent the trial court's ruling on the discovery violation, the lab test result as reported to the third decimal point was inadmissible. Indeed, the regulation promulgated by the California Department of Health Services requiring that a lab test result of blood alcohol level be reported to the second decimal point does not create an evidentiary rule in criminal cases requiring exclusion of test results reported to the third decimal point. (People v. Wood (1989) 207 Cal.App.3d Supp. 11, 17.)