Filed 1/9/20 P. v. Hall CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

WOODROW ELIAS HALL,

Defendant and Appellant.

G057094

(Super. Ct. No. 17WF0222)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Jonathan Fish, Judge. Affirmed.

Alex Kreit, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *

INTRODUCTION

A jury convicted defendant Woodrow Elias Hall (defendant) of gross vehicular manslaughter. (Pen. Code, § 192, subd. (c)(1).) Appointed appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and also identified a potential issue to assist our independent review (Anders v. California (1967) 386 U.S. 738 (Anders). With two extensions, defendant was given a total of 84 days to personally file a supplemental brief; he did not do so.

We have examined the entire record and appointed counsel’s Wende/Anders brief. We find no reasonably arguable issue and affirm. (Wende, supra, 25 Cal.3d 436.)

FACTUAL AND PROCEDURAL BACKGROUND

On January 25, 2016, at about 7:30 p.m., defendant was driving westbound on Trask Avenue in Garden Grove in bumper-to-bumper traffic. Between Shapell Street and Ontario Drive, defendant merged into the two-way turn lane between the eastbound and westbound lanes of traffic in order to pass a pickup truck. Defendant admitted to a police officer at the scene that, once in the two-way turn lane, he saw a person in an electric wheelchair heading towards him, i.e., eastbound, in the same lane. Defendant swerved into oncoming traffic to avoid hitting the wheelchair.

The victim was riding his motorcycle eastbound on Trask Avenue. Defendant’s car crashed head-on into the victim, who died from “blunt force injuries of the neck and torso.” Defendant voluntarily provided a blood sample, which was taken at the scene of the collision. The blood sample tested positive for “abuse” levels of methamphetamine and amphetamine.

A felony complaint was filed January 23, 2017, charging defendant with one count of vehicular manslaughter with gross negligence. The information followed a year later. Defendant’s jury trial began in October 2018.

Eyewitness testimony concerning the accident was consistent. Defendant cooperated with the investigating police officers. He admitted he thought the driver of the pickup truck was intentionally preventing him from passing, so he drove into the two way turn lane in order to go around the truck. The Orange County crime laboratory toxicology supervisor testified concerning defendant’s methamphetamine and amphetamine test results. She did not conduct those tests herself. Defendant’s trial counsel raised foundation and hearsay objections to her testimony, but did not object based on the confrontation clause of the Sixth Amendment to the United States Constitution.

The jury asked one question during deliberations: “Is impaired decision making a component of [gross vehicular manslaughter] (due to drugs).” The trial court responded by referring the jury to the definition of the offense and advising them of their role as factfinders.

Defendant was convicted as charged. The trial court sentenced him to the four-year midterm and imposed fees and fines. Defendant timely filed a notice of appeal.

ANALYSIS OF POTENTIAL ISSUES

In the Wende/Anders brief, appellate counsel suggests we consider whether defendant’s trial counsel was ineffective for failing to assert a confrontation clause objection to the testimony of the toxicologist who did not personally test defendant’s blood sample and, if so, whether a different result was reasonably probable without the error.

“[T]estimonial out-of-court statements offered against a criminal defendant are rendered inadmissible by the confrontation clause unless the witness is unavailable at trial and the defendant has a prior opportunity for cross-examination. (Crawford [v. Washington (2004) 541 U.S. 36,] 59].) [¶] Under Crawford, the crucial determination about whether the admission of an out-of-court statement violates the confrontation clause is whether the out-of-court statement is testimonial or nontestimonial.” (People v. Geier (2007) 41 Cal.4th 555, 597.) “Records of laboratory protocols followed and the resulting raw data acquired are not accusatory. ‘Instead, they are neutral, having the power to exonerate as well as convict.’” (Id. at p. 607.) Here, the toxicologist’s testimony reciting the results of defendant’s blood tests was not testimonial in nature. The trial court would have been well within its discretion to overrule a confrontation clause objection to this testimony, had one been made. The toxicologist, as an expert, then properly gave her opinion as to the effects that the detected levels of methamphetamine would have had on defendant in general and on his ability to safely operate a vehicle.

Even if the failure to object to the toxicologist’s recitation of the blood test results constituted ineffective assistance of counsel, there was no reasonable probability a different result would have occurred without the error. (See Strickland v. Washington (1984) 466 U.S. 668.) In addition to testimony regarding the presence of methamphetamine and amphetamine in defendant’s system, there was evidence of defendant’s reckless driving immediately before the collision. Eyewitnesses testified he swerved in bumper-to-bumper traffic and illegally drove into oncoming traffic. In light of this evidence, it is not reasonably probable the jury would have reached a different verdict if counsel had made a confrontation clause objection.

Our review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Competent counsel has represented defendant in this appeal.

DISPOSITION

The judgment is affirmed.

DUNNING, J.*

WE CONCUR:

IKOLA, ACTING P. J.

THOMPSON, J.

* Retired Judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.