Filed 6/28/13 P. v. Jordan CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A131158, A132602
v.
JOYCE JORDAN,                                                        (San Mateo County
                                                                     Super. Ct. No. SC062498A)
         Defendant and Appellant.


         Defendant Joyce Jordan appeals a judgment entered upon a jury verdict finding
her guilty of driving under the influence resulting in bodily injury. (Veh. Code, § 23153,
subd. (a).) She contends the trial court erred in denying her motions to dismiss the case
based on precomplaint delay and interference with her right to counsel and her motion for
new trial, and that the court committed instructional error. We shall affirm the judgment.
                                                 I.   BACKGROUND
     A. The Accident
         Defendant was driving her minivan in Mountain View at about 7:00 p.m. in
December 2004. A witness, Dean Larwood, saw the van back out of a driveway and miss
a parked car by inches. He followed the van and saw it ―weaving back and forth and just
obviously out of control.‖ After a couple of minutes, he called 911 to report what he
believed to be a drunk driver. He followed the van onto the freeway, and continued
talking to 911, because the van was ―obviously . . . an incredible danger.‖ The van
drifted right and left constantly, and its speed on the freeway varied from about 40 miles
an hour to about 75 miles an hour. The van often drifted on to the shoulder or into the


                                                             1
next lane, and narrowly avoided accidents several dozen times. At almost every exit,
defendant would use her turn signal as if she were going to exit and would begin to exit,
but would return to the freeway at the last moment, crossing the double yellow lines each
time.
        After 20 or 25 miles, the van hit a car parked on the shoulder, tipping it onto its
side. It hit the car directly from behind, travelling at a speed of 50 to 60 miles an hour,
and did not brake before the impact. Two cars had been parked along the shoulder. They
were not blocking the freeway. Larwood stopped, and saw a man lying on the ground,
badly injured. A man was in the driver‘s seat of the car that had been hit, also injured.
From the waist down, he was pinned underneath the car.
        Salvador Ruiz Hernandez was driving on Interstate Highway 280 that evening.
His car‘s battery stopped working, and he stopped by the side of the freeway. He called a
friend for help, and David Palacios came to help him. Hernandez was in the driver‘s seat
of his car as Palacios was standing at the front of the car, putting the cables together.
Defendant‘s van struck his car. Both Hernandez and Palacios suffered serious injuries,
spent weeks in the hospital, underwent surgery, had to spend time in wheelchairs before
being able to walk again, still found walking difficult at the time they testified almost six
years later, and had been unable to return to their previous employment.
        Officer Gary Paul of the California Highway Patrol came to the scene shortly after
the accident. Within 15 minutes of arriving, he spoke with defendant, who was in the
van. Defendant appeared lethargic, and Paul noticed her eyes were watery; he noted,
however, that she had just been hit in the face by an airbag. He asked if defendant had
had anything to drink, and she told him she did not drink. He asked if she had taken any
medication or drugs, and she said she had taken Prozac and butalbital at about 2:00 p.m.,
and nortriptyline, trazodone, and Depakote at 6:30 p.m., about an hour and a half
previously. In response to Paul‘s questions, defendant said she was not sick, that she had
no physical impairments, that she had last slept the previous night, that she had eaten
around 5:00 p.m., that she had started driving in Mountain View, that she was going to
South San Francisco, and that she was stopped on highway 280. She said she was under


                                               2
a doctor‘s care, but could not give the doctor‘s name. Paul asked defendant if she had
been told she could drive when using her medications, and she said, ―Sure.‖ She said she
did not feel the effects of medications or drugs. Defendant answered Paul‘s questions
coherently. Because defendant was injured, Paul did not perform the standard field
coordination tests.
        Paul asked defendant how the collision had happened. She said she had been
driving at about 65 miles an hour on the freeway, but did not know what lane she was in.
She said she had seen bright lights ahead, noticed there was a vehicle in the road, applied
the brakes to avoid the vehicle, and collided with it.
        In a deposition taken in a civil action Hernandez filed against her, defendant said
she had flu the day of the accident; she was clammy and achy, had a headache, nausea,
and a runny nose, and was coughing and sneezing. Immediately before the collision, she
was traveling in the middle lane and then the fast lane of the freeway, traveling at about
65 miles an hour. She was not feeling well, and was coughing and blowing her nose, and
―the next thing I knew I saw the lights and I was—I was hit.‖ She had not noticed the car
on the shoulder of the highway. She did not know how she got from the fast lane to the
shoulder of the road. She had not had any difficulties driving the van, and did not recall
swerving as she drove. After the accident, she was in pain from having hit her head and
knees and was ―in a complete daze.‖ She did not notice any other injured people in the
area.
   B. Defendant’s Medications
        Defendant‘s psychiatrist testified that at the time of the accident, he was
prescribing Depakote (or valproic acid) for defendant‘s depression. The medication was
to be taken in the evening because it had side effects of tiredness or sedation. Two of the
other medications he prescribed for defendant—nortriptyline and trazodone—were to be
taken at bedtime for the same reason. He normally explained these side effects to
patients, and the Kaiser pharmacy would also explain a drug‘s potential side effects. The
psychiatrist also prescribed Wellbutrin, which could cause insomnia and should be taken
in the morning and afternoon. He testified that no matter what time of day defendant


                                              3
took the drugs, they would remain in her blood over an entire 24-hour period, although
the amount would decrease over time. He never told defendant that she could not drive
the day after taking the sedative medications.
       Defendant‘s internist testified that he prescribed butalbital, a barbiturate
derivative, for her headaches, at a dosage of several pills a day. The drug was potentially
sedating, and it was standard to have a pharmacy warning about driving or operating
heavy machinery while using it. He also prescribed codeine, a narcotic to be taken with
the butalbital. He had a routine of discussing the effects of codeine when he prescribed
it, including potential drowsiness and clumsiness, rather than relying on the pharmacy to
do so. Peak drowsiness would occur within an hour or two of ingestion of the butalbital
and codeine, and the medicine could be ―pretty well gone‖ after about four hours. He had
prescribed diazepam (or benzodiazepine), a tranquilizer, and thought defendant would
have been taking it in December 2004. The diazepam label would have carried warnings
that it caused drowsiness and the user should not operate machinery. He told defendant
to take diazepam mainly in the evening. He had not prescribed morphine for defendant.1
       In her deposition, defendant testified she had taken Prozac on the morning of the
accident. She had taken two pills of Wellbutrin in the morning and two later in the
afternoon. She had last taken trazodone and diazepam the night before the accident. She
had taken butalbital and Tylenol with codeine in the morning. She had also taken a cold
medication, ―either DayQuil or Sudafed or one of those.‖ She felt sick and ―worn out‖
when she was driving immediately before the accident. She denied that her doctors had
told her the medications could have adverse side effects or that she should alter her
activities when using them, and did not recall any warning labels. She did not believe her
medications contributed to the accident or that they impaired her ability to drive.




       1
        Nortriptyline and diazepam were not found in defendant‘s blood after the
accident.

                                              4
   C. The Blood Analysis
       At 9:45 p.m. the same evening, a phlebotomist drew two vials of defendant‘s
blood. The vials had a capacity of ten milliliters, although they often contained
somewhat less, around five to eight milliliters.
       In December 2004, Nicholas Stumbaugh, a criminalist who worked for the San
Mateo County Sheriff‘s Office forensic laboratory, removed approximately one milliliter
from one of the vials, tested it for alcohol, and found none. He returned the vials to
―property,‖ apparently a department that refrigerated and stored blood samples. The San
Mateo County laboratory did not test blood for drugs other than alcohol, instead sending
samples in such cases to the Santa Clara County crime lab. Stumbaugh understood that
the second vial was ordinarily kept for testing by a defendant in a criminal case.
       Trevor Gillis, a criminalist at the Santa Clara County Crime Laboratory, analyzed
a portion of defendant‘s blood sample in February 2005, and found ―free‖ codeine at a
concentration of .348 milligrams per liter. He explained that when opiates, such as
codeine, enter the system, a percentage of the opiate ―link[s] up with proteins in the
body,‖ or becomes ―bound,‖ and has ―minimal effect in most cases.‖ A percentage is
―free.‖ He found morphine three glucuronide, or bound morphine, at a concentration of
17 nanograms per milliliter. He did not test for any antidepressants, but sent a portion of
the sample to an outside laboratory to be analyzed for trazodone. The outside laboratory
reported that trazodone was not detected in the sample. The remaining sample was
returned to the San Mateo County Crime Laboratory in February 2005.
       Bill Posey, a toxicologist at Central Valley Toxicology, tested a sample of
defendant‘s blood in February 2006. He found butalbital at 0.4 milligrams per liter,
which was below the effective level, indicating it had been consumed recently but
metabolized to the point it was probably not causing an effect on its own, although it
could be causing an effect in interaction with other drugs. He found codeine at 0.84
milligrams per liter, which fell in the potentially toxic range—that is, a level that could
cause adverse reactions such as becoming overly sleepy or disoriented. He found
morphine at a concentration of 0.02 milligrams, which was within the effective range for


                                              5
that drug; lamotrigine at 0.76 milligrams, which was below the effective level; trazodone
at 0.08 milligrams per liter, below the effective level, and valproic acid at 1.2 milligrams
per liter, below the effective level.2
       To test for codeine, Posey used a method known as mass-spectro-analysis, which
tests for the total codeine in a sample, both free and bound, rather than only for free
codeine. Posey explained that the bound portion of codeine is ―bound by proteins. And
by making it bigger, that makes it unavailable for access through the spinal fluid and
eventually the brain, which is the target site for the drug. So the free form can get into
the brain whereas the bound form remains in the blood and can‘t access the brain.‖ Thus,
the free form of codeine, rather than the bound form, affects a person and may cause
impairment. The effective range for codeine was 0.1 to .25 milligrams per liter, and the
potentially toxic range was .3 to 1.0 milligrams per liter. The level of codeine in
defendant‘s blood—whether the total amount as measured by Posey or the amount of free
codeine as measured by Gillis—fell within the potentially toxic range.
       Posey explained that codeine has a half-life—that is, the amount of time it takes
for the body to remove half of what is present in the blood—of about four to six hours.
Butalbital has a half life of eight to twelve hours, and trazodone of twelve to twenty-four
hours. He was not aware of any study or literature showing that the small levels of the
drugs other than codeine or morphine in defendant‘s blood would have any interactive
effect. He also explained that morphine is a metabolite of codeine; that is, when a person
takes codeine, a small portion of it, usually about ten percent, is converted into morphine.
The amount of morphine in defendant‘s blood was lower than that, which could have
been because she took the codeine recently or ―may be unique to the individual‘s
metabolite.‖ Because the morphine in defendant‘s blood was bound, however, it was not
likely to cause an effect; the effect on her would have been from the codeine itself.
       Posey also explained that a person who had used a drug like codeine for a number
of years for pain might not experience either the pain-relieving or the narcotic effects as


       2
           The blood remaining after it was tested was destroyed.

                                              6
strongly, and might need a stronger dose for those effects to occur. Driving patterns
along with field sobriety testing could determine how the individual was reacting to a
medication.
       Dr. James Missett testified as an expert on codeine, its effects on the body, and its
interactions with other drugs. He opined that codeine could affect a person‘s ability to
operate a car safely. He explained that codeine was a narcotic, and that narcotics can
slow a person‘s thinking, make a person sleepier or less responsive, and slow reaction
time. After taking codeine, someone who was driving could think and respond more
slowly, and find it harder to maintain constant speed, to drive in a straight line or within
boundaries, and to judge speed and distance. This could occur even when the amount of
codeine was within the effective level, and had not reached the potentially toxic level.
He testified that a warning about the effects of codeine, telling the user to exercise
caution when driving or operating machinery, is always included on the label when
codeine is prescribed.
       Dr. Missett testified that codeine is metabolized, or broken down, in the liver.
About five or ten percent is broken down into morphine. Sixty or seventy percent of the
remaining codeine becomes ―conjugated,‖ or attached to glucuronide. The rest remains
as ―free‖ codeine.
       Based on his review of the transcript of the 911 call, the laboratory results, and
defendant‘s deposition transcript, Dr. Missett believed that the codeine defendant had
taken was ―overwhelmingly the main culprit‖ or cause of her impaired driving, in
combination with the other sleep-inducing drugs she had in her system; that her
coordination, motor skills, and judgment were impaired; and that the impairment affected
her ability to drive a car safely. Dr. Missett acknowledged that a person could build up
tolerance to a drug over time, and as a result be unimpaired by an amount that would
cause impairment in someone not accustomed to the drug. However, the description of
defendant‘s erratic driving indicated that at the time of the accident, defendant was in fact
impaired. He also testified that the codeine in defendant‘s blood was in the ―toxic
range,‖ and that the amount of codeine suggested she had taken more medications that


                                              7
day than she had testified she took. He did not believe coughing or sneezing alone would
explain defendant‘s driving pattern.
   D. Defense Case
       A paramedic who tended to defendant after the accident noted that she was alert
and oriented, did not have an altered level of consciousness, and had normal eye
movement, verbal response, and motor function. On the ambulance ride, she did not
―nod out or become dizzy or weird.‖ He observed her pupils and did not find they were
either dilated or constricted. They were of equal size and reactive to light. He did not
note anything that would indicate defendant was under the influence of a narcotic
analgesic.
       Defendant testified in her own defense. She testified she had suffered from
migraine headaches her whole life, and for the last 20 or 25 years had been receiving
medication for her migraines, including butalbital and codeine with acetaminophen. She
had taken her medications consistently over that time. She had been diagnosed with
depression in about 1996, had been taking medications for depression, and had been told
those medications would help her migraines. The morning of the accident, she had a bad
headache and took butalbital and codeine at around 8:00 or 8:30 a.m. She also took
Prozac and Wellbutrin in the morning, Wellbutrin again in the afternoon, and a cold
medication, either Sudafed or DayQuil, because she had flulike symptoms. She had
taken trazodone, valproic acid, and another drug, lamotrigine,3 the previous evening.
These medications were not unusual for her, and she had never become drowsy to the
point that she could not drive safely. She had never been warned not to drive when
taking these drugs except codeine. She had been told she should not drive immediately
after taking codeine, and said that Dr. Witt and the pharmacy had probably warned her
―in the beginning‖ that codeine could make her drowsy. She had also noticed that her
prescriptions for codeine and butalbital had labels indicating she should use caution while
driving.

       3
        Defendant later expressed uncertainty about whether lamotrigine was one of her
medications.

                                             8
       Defendant began to feel better, and went to a shopping mall around noon or 1:00
p.m. After making two more stops, she ―really was feeling lousy,‖ and decided to head
home. She was achy and clammy, was sick to her stomach, was coughing, and her head
hurt. She was in Mountain View, and went to highway 280 to get to her home in South
San Francisco. She had originally planned to use highway 101, but she took 280 instead,
apparently because she thought she might ―do better‖ if she pulled over and stopped for a
while, and it would be easier to do so on 280. Because she felt so bad, she testified, ―all I
could think of was just to get home; the faster the better.‖ She did not know she was
driving as badly as Larwood described in the 911 call and in his testimony. She did not
believe she was swerving between lanes. When asked why she repeatedly moved toward
an exit then returned to the freeway, defendant answered, ―I kept thinking I should
probably pull off and just stop, but I didn‘t feel safe even up on 280 to just pull my car
off and stop on the side of the road so I just thought if I—then I changed my mind. I
figured well, I‘ll just keep driving, you know, try and get home, you know. I kept
thinking I should pull off and stop.‖ She recalled the collision, but did not remember
what happened just before it, although she believed she was in the slow lane. She
acknowledged her driving was impaired that day, but testified that she drove badly
because she was sick, not because of the medications she had taken, and that the
medications did not impair her driving.
       Dr. Thomas Kearney, a professor of clinical pharmacy, testified on behalf of
defendant as an expert in the effects of prescription drugs on the human body and their
interaction. He testified that ―PERL,‖ or ―pupils equal and reactive to light‖ was a
common and reliable diagnostic tool to determine the possible influence of drugs. Even
in low doses or with someone who had become tolerant to the drug, codeine caused
constriction of the pupils. Pupils that had a normal reaction to light, as defendant‘s did
after the accident, were inconsistent with intoxication from codeine. Defendant had a
high respiratory rate after the accident; that rate was consistent with face trauma, and
inconsistent with intoxication from codeine, which slows respiration. Similarly, her heart
rate was slightly high, which was consistent with pain or recent injury, and inconsistent


                                              9
with codeine intoxication. The paramedic‘s findings that defendant had normal eye
movement, verbal response, and motor function, and that she was alert and oriented were
inconsistent with codeine intoxication.
       Dr. Kearney testified that the level of butalbital in defendant‘s blood sample
indicated she had last taken one tablet early on the morning of the accident or the
previous day. Similarly, the level of acetaminophen (which was part of the
acetaminophen with codeine) was consistent with defendant having taken two tablets at
least eight to twelve hours before the blood was drawn. If defendant had taken the
butalbital and acetaminophen with codeine an hour or two before the accident, she would
have had more acetaminophen and butalbital in her system. The level of lamotrigine was
―well below what we see with typical regimens of lamotrigine.‖ The levels of
trazodone—an antidepressant also used to aid sleep—and valproic acid were consistent
with defendant having taking it the previous night. The levels of these drugs, alone or as
a group, would not cause intoxication when mixed with codeine.
       The amount of codeine in defendant‘s blood ―could be‖ consistent with defendant
having taken one or two tablets twelve hours previously. Codeine reaches its peak
effectiveness in about an hour after ingestion, and loses its toxic and therapeutic effect
after about four hours.
       According to Dr. Kearney, morphine is the active component of codeine, and
codeine has to be metabolized into morphine in order to be effective. Codeine, in and of
itself, does not bind well to receptors in the brain, is not effective as a painkiller, and does
not cause toxic effects. The majority of the morphine in defendant‘s blood, 17
nanograms per milliliter, was the inactive metabolite, or three glucuronide. The blood
contained three nanograms per milliliter of the active metabolite, six glucuronide. For
genetic reasons, some people do not metabolize codeine well, so the drug is ineffective in
them. As a result, the drug has no narcotic or soporific effect. Two drugs defendant was
taking, Prozac and Wellbutrin, tended to inhibit metabolism of codeine into morphine and
thus the therapeutic effects of codeine. Based on the ratios in defendant‘s blood, Dr.
Kearney thought she was unable to metabolize any significant levels of morphine,


                                              10
probably from a combination of genetic factors and drug interactions. He also noted that
defendant was continuing to cough at the time of the accident, which suggested the
codeine was not effective.
       Dr. Kearney acknowledged, however, that in evaluating whether a person was
under the influence of codeine, he would look at both the levels of the drug in the
person‘s blood and at the person‘s behavior pattern, and that the behavioral pattern was
the more important of the two. He also acknowledged that tiredness could enhance a
drug‘s narcotic effect, and someone who had the flu and was tired could become more
drowsy when taking codeine.
   E. Rebuttal
       In rebuttal, Dr. Missett disagreed with Dr. Kearney‘s opinion that codeine had no
effect until metabolized into morphine. According to Dr. Missett, codeine was a weaker
narcotic than morphine, but codeine had a narcotic effect even before it was metabolized
into morphine. Dr. Missett explained: ―[C]odeine by itself is known as a narcotic by
itself, but it‘s a weaker narcotic than many other narcotics and so it will have an effect
even before it‘s metabolized. It will be metabolized into a stronger narcotic; that‘s the
morphine; but stronger is comparative, just like weaker is comparative. And it‘s used for
pain that is less debilitating than morphine is ordinarily used.‖
       When asked about the effect of the level of codeine in defendant‘s blood after the
accident, Dr. Missett testified that the principal effect of the free codeine would be
drowsiness, and that this effect would exist even before the codeine was metabolized into
morphine. Based on the amounts of codeine and morphine in defendant‘s blood, Dr.
Missett thought it most likely that the codeine had not yet fully metabolized at the time of
the blood test. He pointed out that five of the medications defendant had taken had
drowsiness as a side effect, and opined that the synergistic effect of the medications could
have caused drowsiness and impaired defendant‘s driving. Defendant‘s erratic driving
suggested she was impaired by the medications. Although codeine and morphine make
someone sleepier and slower in their responses and cause them to have a harder time
manipulating things, they do not cause people to be disoriented or unaware of who or


                                             11
where they are. Defendant‘s responses to the paramedic after the accident were not
inconsistent with being under the influence of codeine. Even if she was sleepy before the
accident, the accident would make her wide awake. Missett also testified that codeine
causes less constriction of the pupils than morphine.
   F. Verdict, Post-Trial Rulings, and Sentencing
       The jury found defendant guilty of operating a motor vehicle under the influence
of a drug and causing bodily injury to Hernandez and Palacios. (Veh. Code, § 23153,
subd. (a).) The jury also found true allegations that defendant personally inflicted great
bodily injury on Hernandez and Palacios (Pen. Code, § 12022.7, subd. (a))4 and that she
caused bodily injury to more than one victim (Veh. Code, § 23558).
       Defendant moved for a new trial, and the trial court denied the motion. The trial
court sentenced defendant to the two-year midterm for driving under the influence (Veh.
Code, § 23153, subd. (a)), with a three-year enhancement for personal infliction of great
bodily injury (§ 12022.7, subd. (a)) and a one-year enhancement for multiple victims
(Veh. Code, § 23558), for a total prison term of six years.
                                       II. DISCUSSION
   A. Delay in Prosecution
       1. Background
       As we have explained, portions of defendant‘s blood sample were tested by the
San Mateo County Forensic Crime Laboratory, the Santa Clara County Forensic Crime
Laboratory, National Medical Services, and Central Valley Toxicology. Any remaining
blood was destroyed.
       Before trial, defendant brought a motion to dismiss the action due to pre-complaint
delay. The evidence at the hearing showed that the Santa Clara Crime Laboratory
received approximately seven milliliters of defendant‘s blood in February 2005. It sent
two and a half milliliters to an outside laboratory, National Medical Services, to test for
trazodone. National Medical Services tested the sample and sent a report, then


       4
           All undesignated statutory references are to the Penal Code.

                                              12
apparently discarded any remaining blood from the sample that had been sent. The Santa
Clara Crime Laboratory used about two and a half milliliters to test the blood, and found
the sample tested positive for opiates. About two milliliters of the blood sample
remained. A year later, in February 2006, the specimen was returned to San Mateo
County.
       James Granucci, the director of the San Mateo County Forensic Lab, testified that
in February 2006, the district attorney‘s office requested that the sample be sent to
Central Valley Toxicology. The second vial—the one maintained for the defense—still
existed and apparently had not been tested. The district attorney did not ask the
laboratory to preserve the remaining sample. In 2005, the laboratory did not have a
written protocol for retention of blood samples. Instead, it used the one-year retention
requirement of Title 17 of the California Code of Regulations. (See Cal. Code Regs.,
tit. 17, § 1219.1, subd. (g).) At the time of the hearing, the laboratory had no samples of
defendant‘s blood remaining.
       Judy Stewart, an expert in forensic toxicology, testified for defendant that the
analysis from the Santa Clara Crime Laboratory did not make clear whether the amount
of codeine measured in defendant‘s blood was in the free form, the bound form, or the
total of the two, that some of the drugs defendant was taking were not present in the
sample, and that two of the analyses differed on whether trazodone was present in
defendant‘s blood sample. If the defense sample of blood were still available, it could be
tested to resolve these questions, particularly the composition of the opiates in the
sample.5 It could also have been tested to determine whether the sample in fact came
from defendant.



       5
         Stewart had not spoken with the analysts from the Central Valley or Santa Clara
laboratories, Posey and Gillis. When asked if they could clear up some of the concerns
she had about their reports, she replied, ―Well, it would certainly help clear up the
discrepancy between the two reports as far as the codeine levels go. I‘m still a little
concerned about the way that the morphine metabolite was reported out, and I‘m not sure
that that would—I would hope that the analyst would be able to explain that one.‖ When

                                             13
       The complaint in this action was filed in April 2006, but defendant testified she
did not learn she would be prosecuted until July 2006, the month she was booked and
arraigned. In the time between December 2004 and July 2006, defendant did not think
she would be prosecuted. She had had a bag with medications in her car, and threw the
bottles away when she was finished with them. She was sued in a civil lawsuit as a result
of the accident, and settled the action before April 2006. Her teenaged daughter, who had
been with her in the hospital after the accident and witnessed the blood draw, was ill
during 2006 and died in December of that year.
       The prosecutor introduced portions of defendant‘s deposition taken in
Hernandez‘s civil action on December 29, 2005, in which defendant testified about the
medications she took on the day of the accident, how much she took, and the times she
took them. The parties agreed that between the accident and the time the case was filed,
―the District Attorney‘s office had communications and dealings with lawyers who
represented Salvador Hernandez and that they provided various materials to the District
Attorney‘s office prior to the filing of the case.‖
       The trial court found that defendant suffered ―some prejudice for the loss of the
blood.‖ The court presumed that the loss of the blood samples was due to the delay in
prosecution, and expressed concern that the absence of the blood samples prevented more
testing to resolve discrepancies in the two lab tests that were performed. However, the
court denied the motion to dismiss the prosecution. The court found that the delay was
caused by ―proper investigation by the People,‖ that it was not the result of bad faith, and
that defendant had not shown that the prejudice from the delay outweighed the justifiable
reason for the delay.
       2. Analysis
       ―The due process clauses of the Fifth and Fourteenth Amendments to the United
States Constitution and article I, section 15 of the California Constitution protect a
defendant from the prejudicial effects of lengthy, unjustified delay between the

asked whether the analysts could answer her questions about whether the opiates were in
their free form or their total form, she answered, ―Once again, I would hope so.‖

                                              14
commission of a crime and the defendant‘s arrest and charging. [Citations.] Such
prearrest or precharging delay does not implicate the defendant‘s state and federal speedy
trial rights [citations], as those rights do not attach until a defendant has been arrested or a
charging document has been filed. [Citation.] [¶] Where, as here, a defendant does not
complain of delay after his arrest and charging, but only of delay between the crimes and
his arrest, he is ‗not without recourse if the delay is unjustified and prejudicial. ―[T]he
right of due process protects a criminal defendant‘s interest in fair adjudication by
preventing unjustified delays that weaken the defense through the dimming of memories,
the death or disappearance of witnesses, and the loss or destruction of material physical
evidence.‖ [Citation.] Accordingly, ―[d]elay in prosecution that occurs before the
accused is arrested or the complaint is filed may constitute a denial of the right to a fair
trial and to due process of law under the state and federal Constitutions. A defendant
seeking to dismiss a charge on this ground must demonstrate prejudice arising from the
delay. The prosecution may offer justification for the delay, and the court considering a
motion to dismiss balances the harm to the defendant against the justification for the
delay.‖ [Citation.]‘ [Citation.]‖ (People v. Cowan (2010) 50 Cal.4th 401, 430 (Cowan);
see also People v. Nelson (2008) 43 Cal.4th 1242, 1250–1251.)
       ― ‗ ―Even a minimal showing of prejudice may require dismissal if the proffered
justification for delay is insubstantial. By the same token, the more reasonable the delay,
the more prejudice the defense would have to show to require dismissal. . . .‖ [Citation.]‘
[Citation.] However, ‗[t]he trial court must engage in the balancing process only if the
defendant has shown actual prejudice. [Citation.]‖ (People v. Mirenda (2009) 174
Cal.App.4th 1313, 1327.) ―Among other things, ‗ ―[p]rejudice [for due process or speedy
trial violation claims] may be shown by loss of material witnesses due to lapse of time
[citation] or loss of evidence because of fading memory attributable to the delay.‖
[Citation.]‘ [Citation.] The overarching theme is that the loss of such evidence,
especially where the defendant or victims cannot independently recall details of the
crime, makes it difficult or impossible for the defendant to prepare a defense thus
showing prejudice.‖ (Id. at p. 1328.)


                                              15
       We review the trial court‘s ruling for abuse of discretion, and defer to the
underlying factual findings if substantial evidence supports them. (Cowan, supra, 50
Cal.4th at p. 431.)
       Here, the trial court found defendant suffered ―some prejudice‖ from the loss of
the remaining blood sample. As implied in this finding, the record before the trial court
at the time it made its ruling suggests the prejudice was not great. Defendant‘s expert in
forensic toxicology acknowledged that she had not spoken with the analysts who
examined defendant‘s blood and that she ―would hope‖ they could answer the questions
she had about their reports. There was no basis to conclude the blood the analysts
examined was not defendant‘s own blood.
       As to the justification for the delay, the parties agreed that during the interim
between the accident and the time the case was filed, the District Attorney‘s office was
communicating with counsel for Hernandez, one of the victims, who had brought a civil
lawsuit against defendant. In defendant‘s December 29, 2005 deposition in that civil
action, she testified that she had taken a number of medications that could cause
drowsiness either on the day of the accident or the previous evening. Less than two
months later, in February 2006, defendant‘s blood sample was sent to Central Valley
Toxicology for further testing, which revealed butalbital, codeine, morphine, trazodone,
and valproic acid, all of which can cause drowsiness.6 The report of the testing was dated
March 6, 2006; the complaint was filed shortly thereafter, on April 10, 2006. On this
record, we see no abuse of discretion in the trial court‘s conclusion that the delay was
caused by proper investigation of the case and that defendant had not shown the prejudice
outweighed the justifiable reason for the delay.




       6
        The initial analyses of defendant‘s blood had detected free codeine and bound
morphine, and no trazodone. The initial analyses did not test for any other
antidepressants.

                                             16
   B. Investigation of Defense Team
       1. Background
       Defendant‘s attorney from 2007 until April 2009 was Paula Canny. In March
2009, the two victims of the accident told the district attorney‘s office that a defense
investigator, Carole de Gery, had approached them and offered them $25,000 each, which
the investigator told them would come from defendant. De Gery told Palacios the money
was a gift because defendant felt guilty. She told Hernandez that if he did not take the
money, defendant would use the money to pay for her defense. De Gery did not tell
either Palacios or Hernandez they would have to do anything in order to receive the
money.
       The district attorney‘s office investigated the matter as a possible bribe. Posing as
Hernandez‘s sister, a legal secretary at the district attorney‘s office made a ―pretext call‖
to de Gery. De Gery confirmed that she worked for Canny, that she had offered $25,000
to each victim on defendant‘s behalf and that she told them that if the criminal case
continued to trial, defendant would have to use the money to fund her legal defense
instead of giving it to the victims.
       The district attorney‘s office concluded it could not prove a crime had been
committed, but gave a recording of the call to Canny on March 30, 2009, the day the case
was assigned to a trial judge. Canny was told the call would not be used in the People‘s
case-in-chief. Canny consulted counsel and concluded the investigation created a conflict
between her and defendant and that she could no longer represent defendant.
       On April 1, 2009, defendant filed a motion to dismiss the case based on the district
attorney‘s action, which she asserted deprived her of her right to counsel and due process
of law. At the August 2009 hearing, the deputy district attorney handling the case against
defendant testified that the office had decided that no charges would be filed in
connection with the offer of money unless other evidence was forthcoming. Testimony
also showed that at the time of the investigation, the district attorney‘s office had not yet
been able to find the phlebotomist who had drawn defendant‘s blood after the accident.



                                              17
       The trial court denied the motion, concluding that the district attorney‘s office had
a duty to investigate after the two victims reported that defendant‘s investigator had told
them they would receive money if the case did not go to trial, although the pretext call
may not have been the ―best means‖ to do so. The court also stated that whether Canny
withdrew from the representation was up to her conscience, and advised defendant that in
light of the fact that no charges were being brought against Canny, the investigation
might not have a chilling effect on her representation. Defendant responded that she felt
that Canny was ―damaged goods.‖ Canny told the court that her attorney had advised her
she had to withdraw.
       2. Analysis
       Defendant contends the trial court abused its discretion in denying her motion to
dismiss, and that she was denied her Sixth Amendment right to counsel of her choice.
Although defendant acknowledges that the information the district attorney‘s office had
received warranted an investigation, she argues the district attorney should have done one
of several other things rather than investigating her at that time: inform the court of
Hernandez and Palacios‘s allegations that defendant‘s investigator had offered them
money; refer the matter to the Attorney General; ―share any ill feelings with the defense‖;
recuse the office from the case against defendant; defer investigation until after the trial;
or do nothing. Instead, defendant argues, the prosecution chose ―the one option that ran
afoul of the Sixth Amendment: prosecute Jordan and investigate her defense team on the
eve of trial without having informed either court or counsel thereof,‖ thus
―manufactur[ing] a conflict in the case, forcing Jordan to part with her counsel.‖ This
was structural error, she contends, and the case must therefore be dismissed. For this
argument, she relies on United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 146, which
states that the Sixth Amendment right to counsel of choice ―commands, not that a trial be
fair, but that a particular guarantee of fairness be provided—to wit, that the accused be
defended by the counsel he believes to be best.‖
       Citing Boulas v. Superior Court (1986) 188 Cal.App.3d 422, defendant argues the
prosecution interfered with her right to counsel of her choice. There, a defendant charged


                                              18
with selling cocaine told a deputy sheriff he could provide information about major
cocaine dealers in exchange for leniency at sentencing. (Id. at pp. 425–426.) The deputy
discussed the offer with a deputy district attorney, who indicated a deal would be possible
only if the defendant replaced his attorney with someone acceptable to the district
attorney. The deputy passed this message on to the defendant, who fired his attorney.
(Id. at pp. 426–427.) The defendant‘s private investigator later asked the deputy if any of
four named attorneys would be acceptable to the authorities, and the deputy told him his
office would not be willing to work with any of them. After speaking with the deputy
district attorney, the deputy sheriff guided the investigator to the name of an attorney
acceptable to the authorities (Attorney C.); Attorney C. had earlier worked for the district
attorney‘s office. (Id. at p. 427 & fn. 4.) When he was told the defendant was going to
work as an informant, Attorney C. declined the represent him, leaving defendant without
an attorney. (Id. at pp. 427–428.) Defendant provided detailed information about
cocaine dealers, and shortly afterward was told a deal with the authorities would no
longer be possible. (Id. at p. 428.) The court found the government conduct to be
―outrageous in the extreme, and shocking to the conscience.‖ (Id. at p. 434.) On these
―highly unusual facts‖ (id. at p. 425), the court granted a writ of mandate directing the
superior court to dismiss the case (id. at p. 435).
       No such facts are present here. Defendant does not dispute that the information
Hernandez and Palacios provided warranted an investigation. Defendant suggests the
district attorney‘s office should have either referred the investigation to the Attorney
General, recused itself from the case, or informed the court of the matter. None of these
options, however, would have mitigated any conflict that existed after Canny learned of
the investigation. Defendant‘s other proposed options fare no better. To ―share any ill
feelings with the defense‖ or to wait until after the trial to investigate would risk making
any investigation ineffective. Defendant also suggests the prosecution should have
―do[ne] nothing‖ when faced with the information, but even she acknowledges that the
office would have been ―remiss‖ had it done so.



                                              19
       We recognize that in People v. Prantil (1985) 169 Cal.App.3d 592, 604, the court
concluded that a delay in filing an indictment for forgery against an attorney was justified
because the investigating officers ―correctly decided‖ not to investigate the case earlier to
avoid the risk of interfering with the attorney‘s relationship with a client in an unrelated
matter. The attorney there was charged with forgery by uttering or using a forged check,
which the evidence suggested had been stolen by the attorney‘s client. (Id. at pp. 596,
598.) The facts here—where defense counsel was suspected of impropriety in relation to
the very matter before the court—are distinguishable. We see no abuse of the trial
court‘s discretion in denying the motion to dismiss.
   C. Involuntary Intoxication
       CALCRIM No. 3427 instructs a jury: ―Consider any evidence that the defendant
was involuntarily intoxicated in deciding whether the defendant had the required (intent/
[or] mental state) when (he/she) acted. [¶] A person is involuntarily intoxicated if he or
she unknowingly ingested some intoxicating liquor, drug, or other substance, or if his or
her intoxication is caused by the force, duress, fraud, or trickery of someone else, for
whatever purpose[, without any fault on the part of the intoxicated person].‖ Defendant
requested that the court give this instruction, but modify it to provide, ―[A] person can be
involuntarily intoxicated if he or she knowingly ingested a prescription medication, but
did not know or have reason to anticipate its intoxicating effects.‖ The court refused to
give the requested instruction. Defendant contends the trial court erred by not instructing
the jury on involuntary intoxication.
       ―Although a trial court has a sua sponte duty to instruct on all general principles of
law closely connected to the facts of the case and this duty extends to defenses which are
supported by substantial evidence and are not inconsistent with the defense theory
[citation], a court need not give a requested instruction on a purported defense unless it is
supported by evidence that is substantial, i.e., that the evidence is reasonable, credible
and of solid value.‖ (People v. Quintero (2006) 135 Cal.App.4th 1152, 1165.)
       ―A person whose intoxication is not voluntary is relieved from liability because of
excusable mistake. ‗What prevents the intoxication from being voluntary in these cases


                                             20
of fraud is not the trickery of the other person but the innocent mistake of fact by the one
made drunk, and an actual ignorance of the intoxicating character of the liquor or drug
has the same effect whether the mistake is induced by the artifice of another or not.‘ ‖
(People v. Chaffey (1994) 25 Cal.App.4th 852, 856 (Chaffey).) Thus, the court in People
v. Scott (1983) 146 Cal.App.3d 823, 831, concluded that a defendant who had consumed
punch not knowing it was laced with a hallucinogen had acted involuntarily. In People v.
Baker (1954) 42 Cal.2d 550, 575, our high court stated that an epileptic man might have
been considered to be intoxicated involuntarily if the imminent approach of an attack of
epilepsy rendered his taking of medication compulsive.
       Defendant argues the instruction she requested was proper under Chaffey. The
defendant in Chaffey tried to commit suicide by taking approximately 120 Xanax tablets,
then lay down to die. She had no recollection of anything between taking the tablets until
she awoke in a hospital. In the interim, however, she was observed driving a car in an
erratic manner. (Chaffey, supra, 25 Cal.App.4th at p. 854.) The warning label on the
drug stated it would cause drowsiness and one should not operate heavy equipment while
taking the medication. An overdose of the drug could cause unconsciousness. (Ibid.)
The trial court found that the defendant did not predict the drug would make her
unconscious rather than killing her, but that she did predict its intoxicating effect. (Ibid.)
The trial court convicted her of driving under the influence of an intoxicating drug. (Id.
at p. 853.) The appellate department, however, reversed, concluding that ―on the
undisputed facts as a matter of law Chaffey did not know and a reasonable person in her
condition would not have known that taking an overdose of this medication would have
caused intoxication. From this premise the [appellate department] concluded that her
intoxication was involuntary and thus her unconsciousness stands as an invulnerable
defense to the charges.‖ (Id. at p. 857.)
       The Court of Appeal disagreed with the appellate department‘s ruling and
affirmed the trial court‘s judgment, concluding that although a trier of fact could
legitimately have made such findings, the undisputed facts did not necessarily lead to the
conclusion that the defendant‘s intoxication was involuntary: ―[The defendant]


                                              21
voluntarily swallowed the Xanax tablets. The label warned her that the medication would
cause drowsiness. There was substantial evidence here from which the trier of fact could
conclude that Chaffey‘s intoxication was voluntary.‖ (Chaffey, supra, 25 Cal.App.4th at
p. 857.) Although it might be true that the defendant did not expect to be able to stand up
or drive a car, it was reasonably foreseeable that before Chaffey fell asleep, ―something
would happen.‖ (Id. at pp. 857–859.)
       Defendant argues that, under Chaffey, the ―pivotal question‖ is whether she ―knew
or had reason to anticipate that her use of the prescription medication could cause
intoxicating effects,‖ and that she produced evidence that could lead a trier of fact to
answer that question in the negative. That evidence, according to defendant, is that she is
a long-term user of codeine, and such long-term use tends to negate the analgesic effects
of the substance; and that Dr. Kearney‘s testimony indicated that defendant did not
metabolize codeine into the free form of morphine required to produce an analgesic
effect. That evidence, if believed, could have led the jury to conclude she was not in fact
under the influence of drugs on the day of the accident, but it does not support a theory
that she was in fact, but unexpectedly, under their influence.
       Defendant also points to evidence that she had taken the same combination of
drugs before without experiencing drowsiness that prevented her from driving safely.
The evidence shows, however, that defendant had been warned, either by her doctors or
by the pharmacy warnings, that her medications could cause drowsiness. Moreover, in
her own testimony, she acknowledged that on a number of occasions during the drive, she
thought she should pull over and stop driving. On this record, we agree with the trial
court that there is no substantial evidence defendant was unaware of the intoxicating
effects of her medications. There was therefore no error in failing to instruct the jury on
the defense of involuntary intoxication.
       In her brief on appeal, defendant relies upon authorities providing that a person
who becomes intoxicated involuntarily and commits acts unconsciously is not held
criminally responsible for those acts. (See § 26; see also People v. Velez (1985) 175
Cal.App.3d 785, 793 [defendant who smoked marijuana that unbeknownst to him was


                                             22
laced with PCP not entitled to instruction on defense of unconsciousness due to
involuntary intoxication].) At trial, however, her counsel told the court she was not
relying on a theory of unconsciousness; rather, he explained to the court, the issue was
―strictly whether involuntary intoxication can be based on unanticipated effects of drugs
on a person.‖ In any case, the evidence would not support a conclusion that defendant
acted unconsciously.
   D. Motion for New Trial
       After the jury rendered its verdict, defendant moved for a new trial on the ground
of newly discovered evidence developed after trial. According to the motion, defense
counsel had told the defense expert, Dr. Kearney, that in the prosecution‘s rebuttal case,
Dr. Missett had disagreed with Dr. Kearney‘s testimony that codeine had no effect until
metabolized into morphine and that the other drugs found in defendant‘s system could
not have caused her impairment, either singly or in combination with codeine. Dr.
Kearney consulted faculty from the University of California, San Francisco (UCSF) who
were associated with the San Francisco Division of the California Poison Control System.
The group‘s consensus was: ―A. That it is not established nor proven that codeine alone,
at the levels found in the defendant, can cause intoxication. [¶] B. The defendant had
significant impairment of metabolism of codeine. This led to a lack of metabolic
conversion into morphine and/or morphine 6-glucuronide, which are the known major
active metabolites responsible for the therapeutic and toxic effects of codeine.‖ The
moving papers stated that Dr. Missett had not prepared a written report of his opinion
before trial, but that the prosecutor had told defense counsel what his testimony might be.
Defendant argued that ―it was only during trial that the issues became clear and allowed
for joining the very technical issue of potential impairment from codeine or other
prescription drugs that was presented in this case.‖
       A hearing was held on the motion. Dr. Kearney testified that he was surprised by
Dr. Missett‘s testimony on rebuttal, which he said was contrary to conventional wisdom
regarding the effects of codeine. He presented the issue to a weekly conference at UCSF.
About 25 people were present, including a professor of medicine at UCSF who was board


                                            23
certified in toxicology and director of the poison center, another doctor board certified in
toxicology, and a doctor with expertise in metabolization of drugs. They reviewed
literature on pharmacology of drugs and human trials of codeine that ―looked at both the
parent and the metabolite levels and looked at the subsequent effects as they escalated the
dose,‖ including effects on breathing, pupil size, heart rate, vigilance, and ability to
concentrate. Dr. Kearney testified that there was no proof that codeine itself can cause
intoxication; rather, intoxication required metabolism to morphine or to the glucuronide
metabolite. Failure to metabolize codeine blocked both the therapeutic and the toxic
effects of the drug. Based on the high level of codeine and the low levels of metabolites
in defendant‘s blood, Dr. Kearney testified that there was no scientific support for an
opinion that defendant could have been impaired from the codeine alone. The conclusion
of the committee reinforced the conclusion Dr. Kearney had already reached and to
which he had testified.
       The trial court denied the motion, telling defense counsel, ―I think you did an
incredible job and you did put on Doctor Kearney as best you could in the trial and all of
this information was presented to jury and they chose for whatever reason to I think go
with the People‘s expert.‖ Defendant contends this ruling was error.
       After a criminal trial, a court may grant a new trial only upon limited grounds,
among them ―[w]hen new evidence is discovered material to the defendant, and which he
could not, with reasonable diligence, have discovered and produced at trial.‖ (§ 1181,
subd. (8).) A ruling on a motion for a new trial rests within the trial court‘s discretion,
and we will not reverse unless there is a manifest and unmistakable abuse of that
discretion. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1251–1252; People v. Staten
(2000) 24 Cal.4th 434, 466.)
       We see no abuse of discretion in the trial court‘s ruling. The assertedly new
evidence was simply that a number of other doctors agreed with Dr. Kearney‘s opinion.
It would have done nothing more than repeat and reinforce evidence the jury had already
heard. Moreover, although defendant presents Dr. Missett‘s testimony on rebuttal—that
unmetabolized codeine could have an intoxicating effect—as unexpected, it was in fact


                                              24
fairly contained within the evidence the prosecution presented in its case-in-chief. Posey
testified that the level of codeine in defendant‘s blood fell within the range that could
cause sleepiness or disorientation, and that the free form of codeine ―can get into the
brain‖ and may cause impairment. Dr. Missett testified in the prosecution‘s case-in-chief
that codeine that was not metabolized into morphine or did not become attached to
glucuronide remained free, and that the codeine defendant had taken was the main cause
of her impaired driving. There was no reason defendant could not, in the exercise of
reasonable diligence, present evidence that codeine did not cause intoxication unless
metabolized—and in fact she did so. In the circumstances, we will not disturb the trial
court‘s ruling.
                                    III.   DISPOSITION
       The judgment is affirmed.




                                                  _________________________
                                                  Rivera, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Humes, J.




                                             25
