Filed 5/15/14 P. v. Garza CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT


THE PEOPLE,                                                                                F065675

         Plaintiff and Respondent,                                           (Super. Ct. No. BF135393A)

                   v.
                                                                                         OPINION
ALBERT FLORES GARZA,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Sidney P.
Chapin, Judge.
         Chris R. Redburn, under appointment by the Court of Appeal, for Defendant
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kelly E.
LeBel, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                    INTRODUCTION
       Appellant Albert Flores Garza was convicted of driving while under the influence
of alcohol four times during the period of 1994 to 2006. On January 17, 2011, he drove
while intoxicated again. Appellant was traveling more than 75 miles per hour in a SUV
when he failed to yield at a stop sign and struck a pickup truck. The truck’s driver and a
passenger in the SUV were fatally injured.
       Appellant was convicted after jury trial of two counts of second degree murder,
two counts of gross vehicular manslaughter and driving with a suspended or revoked
driver’s license. (Pen. Code,1 §§ 187, subd. (a), 191.5, subd. (a); Veh. Code, § 14601.4,
subd. (a).) Enhancement allegations that appellant suffered prior convictions for driving
while intoxicated and served a prior prison term were found true.2 (§§ 191.5, subd. (d),
667.5, subd. (b).) Appellant was sentenced to two consecutive indeterminate terms of 15-
years-to-life imprisonment plus a one year determinate term.
       Appellant contends that the trial court prejudicially erred by: (1) excluding certain
testimony during the hearing on a suppression motion; (2) denying the suppression
motion; and (3) failing to give CALCRIM No. 626 sua sponte. Appellant also argues that
defense counsel was ineffective because he did not request CALCRIM Nos. 414, 625 and
3426. None of these arguments is convincing. The judgment will be affirmed.




1      All further statutory references are to the Penal Code unless otherwise indicated.
2      Pursuant to Penal Code section 12022.7, subdivision (g), the court struck true
findings on special allegations that appellant inflicted great bodily injury upon non-
accomplices.



                                             2.
                                          FACTS
A.     Prosecution evidence.
       Shortly after noon on January 17, 2011, Hans Marlette3 was traveling in a Dodge
Ram pickup truck (the pickup truck) southbound on State Route 43. Meanwhile,
appellant was driving a GMC Envoy sport utility vehicle (the SUV) westbound on
Riverside Street, which intersects State Route 43. The SUV’s front passenger seat was
occupied by 19-year-old Manuel Cantu. Cantu’s mother, Noemi Cadena, was appellant’s
long-term girlfriend. Appellant failed to yield at the stop sign on Riverside Street at the
intersection of State Route 43. He sped into the intersection and struck the driver’s side
of the pickup truck. Marlette and Cantu suffered fatal injuries and died instantly.
       Appellant was removed from the SUV by emergency responders. Appellant was
not wearing a seat belt. His legs were under the driver’s seat and his upper torso was
resting on top of Cantu, who was belted into the front passenger seat. Appellant smelled
strongly of an alcoholic beverage. A 12-pack of Budweiser beer was on the SUV’s rear
floorboards; some of the beer cans were open. A bottle of Kessler whiskey was lying on
the ground approximately five feet from the SUV’s driver’s door.
       Appellant was transported to the hospital and treated for injuries sustained in the
crash. A sample of appellant’s blood was drawn at 3:50 p.m. to test its alcohol level,
which was determined to be 0.15 percent. A criminalist concluded that appellant’s blood
alcohol level at 12:40 p.m. was between 0.180 and 0.225 percent. Cantu’s blood had an
alcohol level of .094 and tested positive for methamphetamine and marijuana.
       There were no pre-collision skids on the roadway. Crash data retrieved from the
SUV showed that it was accelerating when it struck the pickup truck. Five seconds
before the collision the SUV traveled 71 miles per hour; one second prior to the collision

3      Marlette, an Ohio resident who was in California on a business trip, was a married
father of a two year old and a pair of 10-month old twins.



                                              3.
it traveled 76 miles per hour. The brakes were not activated at any point during this five
second period and the throttle was evenly applied. The SUV was inspected for
mechanical problems; none were found. The brake pads and tire treads appeared to be
adequate.
       Juan Magallon was driving behind the pickup truck and witnessed the accident.
Magallon told Shafter Police Officer Phil Yoshikawa that the SUV was traveling 80
miles per hour and did not slow down prior to impact. At trial, Magallon testified that the
SUV was travelling 70 or 80 miles per hour. Magallon estimated that the pickup truck
was traveling 55 miles per hour, which is the posted speed limit.
       On January 20, 2011, Shafter Police Detective Chris Grider interviewed appellant.
The interview was videotaped and played for the jury. Appellant said that he lived with
his mother in Buttonwillow. On the night before the accident he slept in the SUV, which
was parked outside Cadena’s home in Oildale. Appellant said that when he woke up on
the morning of January 17th, he was still drunk from alcohol he consumed before falling
asleep. He drank some alcohol with Cantu and accepted Cantu’s offer to drive him home
in the SUV. Appellant said that he fell asleep and did not know why Cantu was on the
road where the accident occurred or if Cantu ran the stop sign on Riverside Street.
Appellant said the SUV did not have any mechanical problems.
B.     Appellant’s prior convictions.
       Appellant was convicted on four occasions for driving while under the influence
of alcohol during the period of 1994 to 2006. When he was sentenced for the latter two
convictions he signed a form acknowledging that drinking and driving is dangerous to
human life and warning him that he could be charged with murder if he drives while
under the influence of an intoxicant and kills someone. Appellant did not complete court
ordered education programs on substance abuse and driving while under the influence of
alcohol. His driver’s license was revoked in 1994 and he did not regain driving
privileges.

                                            4.
C.     Defense testimony.
       Appellant testified in his own defense. He said that during the morning of January
17th, Cadena drove him to some grocery stores. He drank “too much” beer and argued
with Cadena about his drinking. Cantu agreed to drive him home. Appellant does not
recall getting into the SUV or the circumstances surrounding the accident. Appellant
admitted that on January 17th he knew that he could kill someone if he drove while
intoxicated.
       Cadena testified that the SUV belonged to her and appellant never drove it.
During the morning of January 17th, she drove appellant, Cantu and Ilene Rodriguez to
purchase groceries. She purchased a 12-pack of beer. Cantu and appellant drank some of
the beer after they arrived home. Cadena cooked breakfast and, after calling the others to
eat, discovered that appellant and Cantu were leaving in the SUV and Cantu was driving.
She yelled at them to stop but Cantu sped away.
       Alicia Garza, who is appellant’s sister, testified that a day or two after the accident
she and Rodriguez visited appellant in the hospital. Rodriguez told appellant that he was
not driving the SUV when he left in it with Cantu.
                                       DISCUSSION
I.     The Suppression Motion Was Properly Denied.
       A.      Facts.
       Appellant filed a pretrial motion to suppress the blood alcohol content results from
the warrantless blood sample that was drawn approximately three hours after the crash.
       The motion was heard on April 19, 2012. Detective Grider and Shafter Police
Officers Luis Pena and Phil Yoshikawa testified at this hearing.
       Officer Pena testified that appellant’s legs were inside the driver’s compartment of
the SUV and he was partially seated on the front center console. Officer Pena detected “a
strong odor of an alcoholic beverage” on appellant’s breath. He found a liquor bottle just
outside the SUV’s front driver’s side door.

                                              5.
       Officer Yoshikawa testified that he found several cans of beer on the SUV’s rear
passenger compartment floorboards. At least one of the cans was open. He spoke with
Juan Magallon, who told him that the SUV did not yield at the stop sign and struck the
pickup truck. Officer Yoshikawa informed Detective Grider of Officer Pena’s
observations and his own findings.
       Detective Grider testified that when he reported to the accident site Officer
Yoshikawa told him about the alcohol containers and the smell of alcohol detected on
appellant’s breath. Based on this information, Detective Grider decided it was necessary
to obtain a sample of appellant’s blood. Around 4:30 p.m., he contacted appellant at the
hospital. A registered nurse drew a sample of appellant’s blood and Detective Grider
took custody of the vial. Before conducting the blood draw, the nurse told him that a
blood sample had already been taken.
       During cross-examination defense counsel asked Detective Grider if he requested
a warrant for the blood sample. Grider responded, “No, I did not.” Defense counsel
queried, “Why not?” Grider answered:

       “Because I know there were, when I responded to the hospital to check on
       him and found out he was being treated, I knew that the amount of
       treatment, from talking to medical staff, would take some time, and
       therefore, under exigent circumstances, I knew that I didn’t need a search
       warrant, that his blood, if he was driving a vehicle, that he was subject to
       provide that sample.”
       Defense counsel asked, “But you had the time to call in for a warrant if you
wanted to, correct?” Grider answered, “Yes.” The court asked defense counsel, “What’s
the relevance of that?” Defense counsel answered, “Goes to the exigent circumstances.”
The court said, “I get to decide if there’s exigent circumstances, and I think the question’s
irrelevant and I’m going to sustain my own objection.”
       Appellant did not call any witnesses.
       The suppression motion was denied without explanation.



                                               6.
       B.     The motion to suppress the blood alcohol results was properly denied.
              1. The applicable standard of review is settled.

              “‘The standard of appellate review of a trial court’s ruling on a
       motion to suppress is well established. We defer to the trial court’s factual
       findings, express or implied, where supported by substantial evidence. In
       determining whether, on the facts so found, the search or seizure was
       reasonable under the Fourth Amendment, we exercise our independent
       judgment.’ [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 384.)
       The appellate court may affirm the denial of a suppression motion “on a different
ground than that relied on by the trial court. [Citation.]” (People v. French (2011) 201
Cal.App.4th 1307, 1325, fn. 5.)

       2. The good faith exception to the exclusionary rule applies in this case.
       One year after appellant’s pretrial suppression motion was denied the United
States Supreme Court decided Missouri v. McNeely (2013) __ U.S. __ [133 S.Ct. 1552]
(McNeely). McNeely held that the natural dissipation of alcohol in the bloodstream does
not establish a per se exigency that suffices on its own to justify a warrantless, forcible
blood draw in every case. Yet, “the metabolization of alcohol in the bloodstream and the
ensuing loss of evidence are among the factors that must be considered in deciding
whether a warrant is required.” (McNeely, supra, 133 S.Ct. at p. 1568.) Consistent with
general Fourth Amendment principles, exigency in the context of drunk-driving cases
must be determined on a case-by-case basis in light of the totality of the circumstances.
(McNeely, supra, 133 S.Ct. at pp. 1557-1568.)
       Appellant argues that, applying the McNeely analysis, the prosecution failed to
demonstrate any exigency for the warrantless blood draw. He further contends that
Detective Grider “did not act in good faith as that term is defined by the Supreme Court.”
It is not necessary to decide if the McNeely holding that the elimination of alcohol from
the bloodstream does not constitute a per se exigency is a new procedural rule of law to
be applied retroactively to this case. Regardless of our conclusion on that issue, the


                                              7.
police conduct in this case fell within the good faith exception to the exclusionary rule.
(People v. French, supra, 201 Cal.App.4th at pp. 1324-1325.)
       Until McNeely was decided, the leading United States Supreme Court case
concerning nonconsensual blood draws was Schmerber v. California (1966) 384 U.S.
757. In Schmerber, the petitioner was involved in a traffic accident and transported to a
hospital. He was arrested for driving under the influence of alcohol and a police officer
directed a physician to take a blood sample. The sample was tested for blood alcohol
level and the results were admitted at trial. The Supreme Court reasoned that because of
the body’s natural elimination of alcohol from the system, an arresting officer could
reasonably conclude that the delay involved in seeking a warrant might result in the
destruction of evidence. (Id. at pp. 770-771.) In Cupp v. Murphy (1973) 412 U.S. 291,
the United States Supreme Court extended the Schmerber rule to uphold admission of
evidence obtained from fingernail scrapings that were taken in the absence of a formal
arrest. (Id. at pp. 294-296.)
       California courts routinely applied Schmerber and Cupp to uphold warrantless
compulsory seizure of blood for the purpose of a blood alcohol test where (1) the
procedure was conducted in a reasonable, medically approved manner, (2) is based upon
a reasonable belief that the person was intoxicated, and (3) the person was arrested, or
there existed probable cause to arrest, for driving under the influence of alcohol. (People
v. Deltoro (1989) 214 Cal.App.3d 1417, 1422-1426; People v. Nieto (1990) 219
Cal.App.3d 1275, 1277-1278.) It was recognized that the Schmerber decision “relied
almost exclusively on the exigency created by the evanescent nature of blood alcohol and
the danger that important evidence would disappear without an immediate search.”
(People v. Trotman (1989) 214 Cal.App.3d 430, 436.)
       Based on the foregoing, it is readily apparent that the police conduct in this case
fell well within the parameters of the “good faith” exception to the exclusionary rule.
Appellant does not identify any pre-McNeely California decision suggesting that, in

                                             8.
circumstances before us, a warrantless blood draw was legally impermissible. Detective
Grider acted in accordance with existing legal precedent and with a reasonable, good
faith belief that his actions were consistent with applicable law. There was ample
evidence tending to prove that appellant drove the SUV while intoxicated. There existed
probable cause to arrest him for driving under the influence of alcohol. The blood draw
was conducted in a medically approved manner. Consequently, no “‘appreciable
deterrence’” would result from the application of the exclusionary rule in this case.
(Davis v. United States (2011) ___ U.S. ___ [131 S.Ct. 2419, 2426].)
       We, therefore, uphold the order denying the suppression motion and conclude that
evidence of appellant’s blood alcohol level was properly admitted at trial.

       3.   Exclusion of testimony that Detective Grider had time to request a
       warrant was harmless.
       Appellant also contends that the trial court violated his constitutional due process
rights by excluding testimony that Detective Grider had time to request a warrant. The
claimed evidentiary error is harmless beyond a reasonable doubt. (Chapman v.
California (1967) 386 U.S. 18, 26.) As we have explained, when Detective Grider
decided to proceed without a warrant he acted in compliance with existing legal
precedent authorizing warrantless blood draws due to the exigency created by the natural
dissipation of alcohol in the bloodstream. Whether the detective had time to request a
warrant does not affect our determination that he acted reasonably and in good faith.
Thus, appellant was not prejudiced by exclusion of this testimony.

II.    The Court Did Not Have A Duty To Instruct On Voluntary Intoxication
       Causing Unconsciousness.
       A.     Facts.
       Appellant was prosecuted for second degree murder on an implied malice theory.
The jury was instructed on murder and the following lesser included offenses: gross
vehicular manslaughter while intoxicated, vehicular manslaughter while intoxicated,


                                             9.
driving a vehicle while under the influence and causing injury, driving with .08 blood
alcohol level causing injury, driving under the influence and driving with .08 blood
alcohol level. The jury was not instructed on involuntary manslaughter.
       B.     Applicable legal standard.
       The trial court is obligated to instruct on the general principles of law that are
raised by the evidence. This includes a sua sponte duty to instruct on a lesser included
offense when there is substantial evidence, viewed in the light most favorable to the
defendant, from which a rational jury could conclude that the defendant committed the
lesser offense and that he is not guilty of the greater offense. (People v. Turk (2008) 164
Cal.App.4th 1361, 1368, fn. 5; People v. DePriest (2007) 42 Cal.4th 1, 50.) A lesser
offense is necessarily included within a charged offense if the greater offense cannot be
committed without also committing the lesser offense. (People v. Lopez (1998) 19
Cal.4th 282, 288.) A trial “court is not obliged to instruct on theories that have no such
evidentiary support.” (People v. Breverman (1998) 19 Cal.4th 142, 162.)
       The de novo standard of review is applied to the failure to instruct on a lesser
included offense. (People v. Cole (2004) 33 Cal.4th 1158, 1218.) If a trial court fails to
instruct on a lesser included offense that is supported by the evidence, the error is one of
state law alone. (People v. Breverman, supra, 19 Cal.4th at p. 165.) Such an error does
not require reversal unless “an examination of the entire record establishes a reasonable
probability that the error affected the outcome.” (Ibid.)
       C.     CALCRIM No. 626 is not applicable.
       Appellant asserts that “[u]nconsciousness due to voluntary intoxication is a partial
defense which negates the mental state for murder, reducing the offense to involuntary
manslaughter.” Based on this premise, he argues the trial court had a sua sponte duty to
give CALCRIM No. 626, which instructs that voluntary intoxication resulting in
unconsciousness can reduce a charge of murder to involuntary manslaughter. This
argument fails because, under current law, voluntary intoxication cannot negate a finding

                                             10.
of implied malice. When the killing is committed while driving a vehicle, the driver’s
voluntary intoxication cannot reduce his criminal responsibility to involuntary
manslaughter. (People v. Carlson (2011) 200 Cal.App.4th 695, 705-707; People v.
Ferguson (2011) 194 Cal.App.4th 1070, 1082.)
       The limited admissibility of evidence proving voluntary intoxication is governed
by section 29.4, which was formerly codified at section 22. (People v. Carlson, supra,
200 Cal.App.4th at p. 705.) In 1995, former section 22 was amended to “preclude a
defendant from relying on his or her unconsciousness caused by voluntary intoxication as
a defense to a charge of implied malice murder.” (Carlson, supra, at p. 705.) In relevant
part, this statute provides: “Evidence of voluntary intoxication is admissible solely on the
issue of whether or not the defendant actually formed a required specific intent, or, when
charged with murder, whether the defendant premeditated, deliberated, or harbored
express malice aforethought.” (§ 29.4, subd. (b).) “[D]efendant’s voluntary intoxication,
even to the point of actual unconsciousness, [does] not prevent his conviction of second
degree murder on an implied malice theory ....” (People v. Boyer (2006) 38 Cal.4th 412,
469, fn. 40.) Consequently,

       “It is no longer proper to instruct a jury ... that ‘when a defendant, as a
       result of voluntary intoxication, kills another human being without
       premeditation and deliberation and/or without intent to kill (i.e. without
       express malice), the resultant crime is involuntary manslaughter.’ This
       instruction is incorrect because a defendant who unlawfully kills without
       express malice due to voluntary intoxication can still act with implied
       malice, which voluntary intoxication cannot negate, in the wake of the 1995
       amendment to [former] section 22, subdivision (b). To the extent that a
       defendant who is voluntarily intoxicated unlawfully kills with implied
       malice, the defendant would be guilty of second degree murder.” (People
       v. Turk, supra, 164 Cal.App.4th at pp. 1376-1377, fn. omitted.)
       In this case, appellant’s claimed alcohol induced blackout resulted from voluntary
self-intoxication. There is no evidence, and appellant does not assert, that his ingestion
of alcohol was involuntary. Therefore, CALCRIM No. 626 is not applicable and the trial


                                            11.
court did not err by failing to give this instruction. (People v. Carlson, supra, 200
Cal.App.4th at p. 708 [court properly refused to give CALCRIM No. 626]; People v.
Ferguson, supra, 194 Cal.App.4th at p. 1085 [same].)
III.   Defense Counsel Was Not Ineffective.
       A.     The standard of review is settled.
       “‘A criminal defendant is guaranteed the right to the assistance of counsel by both
the state and federal Constitutions. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.)’”
(People v. Lucas (1995) 12 Cal.4th 415, 436.)

       “… The constitutional standard for determining whether counsel has failed
       to provide adequate legal representation is by now well known: First, a
       defendant must show his or her counsel’s performance was ‘deficient’
       because counsel’s ‘representation fell below an objective standard of
       reasonableness [¶] ... under prevailing professional norms.’ [Citations.]
       Second, he or she must then show prejudice flowing from counsel’s act or
       omission. [Citations.] We will find prejudice when a defendant
       demonstrates a ‘reasonable probability that, but for counsel’s
       unprofessional errors, the result of the proceeding would have been
       different. A reasonable probability is a probability sufficient to undermine
       confidence in the outcome.’ [Citations.] ‘Finally, it must also be shown
       that the [act or] omission was not attributable to a tactical decision which a
       reasonably competent, experienced criminal defense attorney would make.’
       [Citation.]” (People v. Gurule (2002) 28 Cal.4th 557, 610-611.)
       The standard for judging counsel’s representation is extraordinarily deferential.
The appellant bears the burden of overcoming the strong presumptions that counsel’s
conduct fell within the wide range of reasonable professional assistance and that the
challenged act or omission might be considered sound trial strategy. (People v. Lucas,
supra, 12 Cal.4th at pp. 436-437.) Reviewing courts will reverse convictions on the
ground of inadequate counsel only if the appellate record affirmatively discloses that
defense counsel did not have a rational purpose for the challenged act or omission.
(People v. Zapien (1993) 4 Cal.4th 929, 980.) This is a difficult burden to satisfy on
direct appeal. (Lucas, supra, 12 Cal.4th at p. 437.)



                                            12.
       B.     The omitted instructions would not have assisted the jury or affected
              the verdict.
       Appellant was prosecuted for second degree murder under an implied malice
theory. The prosecutor and defense counsel both requested, and the court gave,
instructions on alcohol-related lesser included offenses: gross vehicular manslaughter
while intoxicated (CALCRIM No. 590), vehicular manslaughter while intoxicated
(CALCRIM No. 591), driving a vehicle while under the influence causing injury
(CALCRIM No. 2100), driving with .08 alcohol level causing injury (CALCRIM No.
2101), driving while under the influence (CALCRIM No. 2110), driving with .08 alcohol
level (CALCRIM No. 2111).
       “[T]he duty of counsel to a criminal defendant includes careful preparation of and
request for all instructions which in his judgment are necessary to explain all of the legal
theories upon which [the] defense rests.” (People v. Sedeno (1974) 10 Cal.3d 703, 717,
fn. 7.) Appellant argues defense counsel did not satisfy this duty because he failed to
request instructions on intoxication when prosecuted as an aider and abettor (CALCRIM
No. 404), the effect of voluntary intoxication on homicide crimes (CALCRIM No. 625)
and voluntary intoxication (CALCRIM No. 3426). We are not persuaded.
       Appellant asserts that “the prosecution in this case was required to prove more
than implied malice in order to obtain a conviction for second degree murder. Murder of
either degree requires proof of specific intent to kill.” This assertion is incorrect.
       The jury was instructed on the elements of murder with CALCRIM No. 520. In
relevant part, CALCRIM No. 520 instructs that “[t]here are two kinds of malice
aforethought, express malice and implied malice. Proof of either is sufficient to establish
the state of mind required for murder.” (CALCRIM No. 520.) The instruction then
explains that a defendant acts with express malice if he “unlawfully intended to kill.”
(CALCRIM No. 520.) A defendant acts with implied malice if he intentionally commits
an act whose natural and probable consequences are dangerous to life and, at the time he



                                              13.
acted, he knew his act was dangerous to human life and he deliberately acted with
conscious disregard for human life. (CALCRIM No. 520.)
       As previously explained, voluntary intoxication causing unconsciousness cannot
negate a finding of implied malice in murder prosecutions. “‘[E]vidence of voluntary
intoxication is no longer admissible on the issue of implied malice aforethought.’”
(People v. Martin (2000) 78 Cal.App.4th 1107, 1114-1115.) Since appellant was
prosecuted for second degree murder under an implied malice murder theory, the omitted
instructions on intoxication would not have assisted the jury or affected the verdict. We
reject the ineffective assistance of counsel claim on this basis.
                                      DISPOSITION
       The judgment is affirmed.

                                                                    _____________________
                                                                          LEVY, Acting P.J.
WE CONCUR:


 _____________________
DETJEN, J.


 _____________________
FRANSON, J.




                                             14.
