Filed 1/21/20 P. v. Hall CA4/3

Opinion after vacating opinion filed 1/9/20

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Woodrow Hall, in pro. per.; and 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). We provided defendant a total of 84 days (with extensions) to file a supplemental brief; he did so, and has identified several additional potential issues.

We have examined the entire record, appointed counsel’s Wende/Anders brief, and defendant’s supplemental 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.

In his supplemental brief, defendant argues that he was never read his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Miranda warnings are not required during a temporary detention for investigative purposes. (Miranda, supra, 384 U.S. at p. 477; People v. Clair (1992) 2 Cal.4th 629, 679.)

Defendant also argues there is no credible evidence he was intoxicated with methamphetamine at the time of the accident. As noted ante, in light of the overwhelming evidence that defendant illegally drove into oncoming traffic, it is not reasonably probable the jury would have reached a different verdict if the evidence of defendant’s methamphetamine use had been excluded.

Defendant also argues his trial counsel erred by failing to object to the “closing arguments and comments” by the prosecutor, and by failing to object to leading questions by the prosecutor. Defendant fails to identify any specific statement or question by the prosecutor which defendant claims was improper. The contention therefore lacks foundation and is forfeited. (In re S.C. (2006) 138 Cal.App.4th 396, 406 407.) We note that, having reviewed the entire appellate record, we find nothing objectionable in the prosecutor’s questions or arguments.

Defendant also argues his trial counsel erred by failing to cross examine Officer Adam Zmija, who interviewed Mr. Lee, the man in the motorized wheelchair. Zmija was a witness called by the defense. To the extent defendant implies Zmija should have been questioned on direct examination about what Lee told him, such questioning would have been subject to a hearsay objection. (Evid. Code, § 1200.)

Defendant also argues his trial counsel erred by failing to call Lee as a witness, because Lee “was clearly a percipi[e]nt witness to factors that probably caused or was a cause of the accident.” Several eyewitnesses testified regarding the collision. Defendant fails to show how another witness’s testimony might have had any effect on the verdict.

Finally, defendant argues there was insufficient evidence he caused the collision, and suggests the collision was caused by the man in the motorized wheelchair who “was driving where he was not supposed to be driving,” or by the victim, whose “speed or exact location” was unknown. To the contrary, there was overwhelming evidence that the collision was caused by defendant illegally driving in the center lane and then illegally veering into oncoming traffic. Among that evidence was testimony from an eyewitness driving behind the victim that there was nothing unusual about the victim’s speed or driving pattern.

Our review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, including possible issues suggested by defendant, 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.