Filed 8/9/13 P. v. Whitmarsh CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA


                                                                 D063037
THE PEOPLE,

         Plaintiff and Respondent,                               (Super. Ct. No. SCE319316)

         v.

MATTHEW EVAN WHITMARSH,

         Defendant and Appellant.



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

Krauel, Judge. Affirmed.

         Bird Rock Law Group and Andrea Susan Bitar for Defendant and Appellant.

         No appearance for Plaintiff and Respondent.
                                              I.

                                     INTRODUCTION

       A jury found Matthew Evan Whitmarsh guilty of driving under the influence and

causing bodily injury (Veh. Code, § 23153, subd. (a))1 (count 1) and not guilty of driving

with a blood alcohol level of .08 percent and causing bodily injury (§ 23153, subd. (b))

(count 2). The trial court suspended imposition of sentence and placed Whitmarsh on

five years' formal probation subject to various conditions, including that he serve 270

days in the custody of the sheriff.2 We affirm.

                                              II.

                   FACTUAL AND PROCEDURAL BACKGROUND

A.     The trial

       1.     The trial court's dismissal of juror

       After the court and the parties had selected a jury, a seated juror asked to be

excused. The juror stated that after she was selected as a juror the previous day, she had

reflected on a traumatic experience that she believed would interfere with her ability to

serve as a juror. The juror explained that her father had been an alcoholic who had died in

a car accident. According to the juror, her uncles suspected "that the police had planted

beer bottles in his truck," and "the autopsy . . . revealed that there was no alcohol in his



1     Unless otherwise specified, all subsequent statutory references are to the Vehicle
Code.

2      Twenty-one days after the sentencing hearing, the trial court ordered Whitmarsh
released from custody.
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system." The juror stated, "I really do not believe that I would be able to be nonbiased to

law enforcement" in light of the incident. The trial court asked the juror whether

thoughts about the circumstances surrounding her father's death would "interfere with

your ability to listen to the evidence and to deliberate with your fellow jurors . . . ." The

juror responded, "I think it would. I really sincerely believe it would." The court

dismissed the juror, over defense counsel's objection.

       2.     The People's evidence

       On February 17, 2012, at approximately 6:38 p.m., while driving on a two-lane

road with a double-yellow line separating traffic, Whitmarsh crossed over the double-

yellow line in an attempt to pass a car. Whitmarsh's car collided head-on with a car

travelling in the opposite direction. The occupant of the other car suffered injuries from

the collision, including bruised knees, lacerations to her arms, and injuries to her back

and hip.

       California Highway Patrol Officer Eduardo Aguirre responded to the scene at 6:52

p.m. When Officer Aguirre approached Whitmarsh, Aguirre detected a strong odor of

alcohol on Whitmarsh's breath and noted that his eyes appeared glassy. Whitmarsh told

Officer Aguirre that he had drunk one beer at approximately 6:00 p.m. that evening.

Officer Aguirre determined that Whitmarsh's speech was a "little slurred." Aguirre




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conducted a horizontal gaze nystagmus test, and detected a lack of smooth pursuit of

Whitmarsh's eyes.3

       Paramedics transported Whitmarsh to the hospital. At 8:10 p.m. that evening,

Officer Aguirre observed a phlebotomist draw a sample of Whitmarsh's blood. A

criminalist with the San Diego County Crime Laboratory tested Whitmarsh's blood, and

reported that Whitmarsh had a .06 percent blood alcohol level at the time the sample was

taken. The criminalist stated that in his opinion, a 210-pound4 male would have had a

blood alcohol level of between .082 and .09 percent at approximately 6:38 p.m. on the

evening that the sample was taken.

              c.     The defense

       Whitmarsh testified that he drank one 24-ounce beer before driving on the night in

question. A private clinical laboratory scientist retested Whitmarsh's blood, and reported

that he had a .05 percent blood alcohol level. The scientist stated that in his opinion a

person who consumed a 24-ounce beer between 5:30 and 6:10 p.m., who was involved in

a head-on collision at around 6:40 p.m., likely would have reached a peak blood alcohol

level at approximately 8:10 p.m.




3     Officer Aguirre explained that "involuntary jerking, movement of the eye," is
generally present when a person has consumed alcohol.

4     The People presented evidence that Whitmarsh weighed approximately 210
pounds.
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       2.      The appeal

       On appeal, Whitmarsh's appointed appellate counsel filed a brief pursuant to

People v. Wende (1979) 25 Cal.3d 436 (Wende). After counsel filed a Wende brief, this

court granted Whitmarsh the opportunity to file a supplemental brief on his own behalf.

Whitmarsh has not filed a supplemental brief.

                                            III.

                                       DISCUSSION

                          A review of the record discloses no error

       In his brief on appeal, Whitmarsh's counsel presents no argument for reversal, but

asks this court to review the record for error, as mandated by Wende, supra, 25 Cal.3d

436. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), counsel lists as a

possible, but not arguable, issue: "Should the court have dismissed a juror who asked to

be excused?"

       A review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders,

supra, 386 U.S. 738, including the possible issue listed pursuant to Anders, has disclosed

no reasonably arguable appellate issues. Whitmarsh has been competently represented by

counsel on this appeal.




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                                      IV.

                                DISPOSITION

    The judgment is affirmed.




                                              AARON, J.

WE CONCUR:



      HUFFMAN, Acting P. J.



                  HALLER, J.




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