P. v. Hamblin

Filed 7/31/07 P. v. Hamblin CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

----

After a court trial, defendant Dale Brian Hamblin was convicted of driving under the influence of alcohol or drugs causing injury (Veh. Code,  23153, subd. (a); undesignated section references are to this code; count 1) and driving with a blood-alcohol content of more than .08 percent causing injury ( 23153, subd. (b); count 2). The court found the following enhancement allegations to be true: defendant had a blood-alcohol content of .20 percent or more ( 23578) [now .15 percent or more]; defendant caused bodily injury to more than one person ( 23558); and defendant inflicted great bodily injury on two victims (Pen. Code, 12022.7).

On June 23, 2005, the court sentenced defendant to state prison for an aggregate term of eight years.

Defendant filed a notice of appeal on July 14, 2005.

On October 17, 2005, the court recalled the sentence.

On January 20, 2006, the court resentenced defendant to state prison for an aggregate term of three years, striking the great bodily injury enhancements.

Defendant filed a notice of appeal on January 23, 2006.

Defendant contends (1) counsel rendered ineffective assistance in failing to present evidence that the driver of the other vehicle may have been under the influence of methamphetamine at the time of the collision, and (2) the trial court erroneously imposed two $20 court security fees (Pen. Code,  1465.8).

FACTS

The parties stipulated that defendant was driving a motor vehicle with a blood-alcohol content of .20 percent and that the victims sustained great bodily injury within the meaning of Penal Code section 12022.7, subdivision (a). The disputed issue focused on fault in running a red light.

About 8:00 p.m. on October 18, 2003, Michael Applegate was driving a motorcycle with his then-spouse, Rebecca Applegate, riding as a passenger on the back seat.^[1]They lived about two miles from the collision site, the intersection of Knighton and Churn Creek in Redding.

Churn Creek goes north and intersects with Knighton. The intersection is controlled by a signal light. The light is normally green for traffic on Knighton. An image sensor on Churn Creek turns the light green for northbound traffic on Churn Creek.

Michael drove north on Churn Creek and the light was red when he approached the intersection with Knighton. He slowed to almost a stop before the light turned green. He did not see any traffic approaching in either direction on Knighton. When the light turned green, he looked again to the right and to the left, and [he] proceeded with caution. As he made a left turn, they were struck. He had no memory of anything that happened thereafter until he awoke in the hospital some time after the accident.

California Highway Patrol Officer John Kessinger tested the image sensor and learned that a motorcycle will trip the sensor but the motorcycle driver had to slow down to almost a complete stop before the light changed to green.

Rebecca likewise testified that the light was green when they entered the intersection to turn left. She had no memory of what happened thereafter, that she was unconscious for some time and was on strong medication even after she left the hospital. At the time of trial, she initially claimed she looked both ways and saw nothing before they entered the intersection. When cross-examined, she claimed she looked right but not left for other traffic. When interviewed by Officer Kessinger on March 4, 2004, Rebecca stated the light was green and that she saw headlights of a vehicle on her left, going eastbound.

When Officer Kessinger arrived at the scene, he saw paramedics attending to the Applegates in the eastbound lane, east of the intersection, Michaels motorcycle on the north side of Knighton road, defendants pickup truck down an embankment on the north side of the road, and defendant standing next to the truck urinating. From scrape and skid marks, the officer concluded that the point of impact occurred in the middle of the eastbound lane, 28 feet north of the south edge of Knighton and nine feet east of the limit line for the eastbound lane. The skid marks of defendants pickup truck showed that he had not reacted until impact. Defendants truck hit the motorcycle as it was turning. Defendant was traveling at the speed limit of 45 miles per hour.

A defense investigator testified that from the intersection, he could see the roadway between one- and two-tenths of a mile west on Knighton.

Defendant testified. He claimed the light was green when he entered the intersection. He put on the brakes when he saw a light in front of him. He had more than two beers that day. He did not recall telling the officer that he had had only two beers.

In convicting defendant, the trial court stated that defendants testimony was not credible given his level of intoxication and the fact defendant stated he did not see the light of the motorcycle until the point of impact.

DISCUSSION

Defendant contends that counsel rendered ineffective assistance in failing to present evidence that Michaels urine drawn at the hospital on the date of the collision tested positive for ephedrine/pseudoephedrine and methamphetamine and that such evidence would have affected his credibility at trial. Counsel also failed to present evidence that Rebecca was a narcotics addict and that such evidence would have likewise affected her credibility. The Attorney General responds that there is no evidence in the record on appeal that Michaels methamphetamine use and Rebeccas narcotics use affected their ability to perceive or recollect. The Attorney General argues even assuming evidence showed a positive result for Michael for methamphetamine and ephedrine or pseudoephedrine, it utterly fails to show that Michael was under the influence of methamphetamine at the time of the collision. The Attorney General also claims that the record on appeal fails to reflect why counsel failed to present this evidence.

Background

On October 13, 2005, defendant, with new counsel Michael Sharpe, requested that the trial court recall the sentence under Penal Code section 1170, subdivision (d). Sharpe cited the following reasons: Michaels blood test results provided as discovery, a record that neither defense counsel nor the district attorney was aware of[,] reflected that it tested positive for methamphetamine and ephedrine or pseudoephedrine; Michaels conduct at the hospital as reflected in medical records suggested drug withdrawal under a restraint order, in that he called family friends to pick him up, wanted out of the hospital for a day and promised to return; Rebeccas medical records reflect a prior workers compensation claim for a back injury resulting in cervical fusion; her medical records reflect that prior to the accident she suffered from chronic pain syndrome and narcotic use; her toxicology screen on October 13 and 15, 2003, days before the accident, tested positive for benzodiazepines and opiates; her toxicology screen on the date of the accident was missing from subpoenaed records; defendant informed prior counsel at the outset that he had a prior drunk driving offense from Lassen County but counsel instructed defendant not to mention it and he followed counsels advice to his detriment when the prosecutor inferred that defendant had not been upfront with the court or probation concerning his priors; contrary to the impression made at original sentencing, defendant made rehabilitation efforts with respect to his drinking and suffered remorse; and contrary to their statements to probation, Michael and Rebecca received the policy limits by defendants insurance carrier.

Attached to his request to recall the sentence, Sharpe included Michaels medical record from Mercy Medical Center showing that on October 18, 2003, the date of the accident, the following: 2120 Amine confirmation [] by T.L.C. See separate report on chart [] Toxicology comment . . . []

amphetamine/methamphetamine [neg] [] referred to outside lab for confirmation . . . . The next document shows a report for Mercy Medical Lab by Redding Pathologists Laboratory of the specimin of Michael collected on October 18, 2003, at 2120 reflecting the following result: Amine confirm. TLC positive [] methamphetamine [] ephedrine/pseudoephedrine [] Confirmed by thin layer chromatography. Sharpe also attached a medical record of Rebecca, purportedly for an October 15, 2003 emergency room visit, a date which appears on the record, showing a urine drug screen positive for benzodiazepines and opioids and that she specifically requested the Dilaudid stating that was what generally helped her. She has chronic pain syndrome and narcotic use.

At the recall hearing, Sharpe stated that the issue of ineffective assistance of counsel with respect to Michael and Rebeccas medical records would not be argued but the records would be lodged with the court. Instead, Sharpe stated that defense appellate counsel would raise the issue on appeal. The only issue argued on the recalled sentence was the disposition.

Analysis

To establish ineffective assistance of counsel, defendant must demonstrate that counsels performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693, 696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)

When considering trial counsels performance in an ineffective assistance claim, we indulge a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance. [Citations.] (People v. Hawkins (1995) 10 Cal.4th 920, 968.) Reviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission. (People v. Fosselman (1983) 33 Cal.3d 572, 581.) Further, if the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation[.] (People v. Cudjo (1993) 6 Cal.4th 585, 623, quoting People v. Pope (1979) 23 Cal.3d 412, 426.) If the record fails to reflect why counsel failed to act, a claim of ineffective assistance is rejected unless counsel was asked for an explanation and failed to explain or there could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)

The only issue was who ran the red light, Michael or defendant. There were no bystanders who witnessed the accident. Defendants credibility had been sufficiently attacked by the fact he was intoxicated. Michaels credibility, however, faced little attack. The Attorney General asserts that there was no evidence presented that either victims ability to perceive or recollect was affected even assuming Michael used methamphetamine before the accident and Rebecca was a narcotics user. This is an odd argument for the Attorney General to make. Sections 23152 and 23153 prohibit driving under the influence of a drug as well as alcohol because such substances affect certain abilities. Further, this argument ignores the fact that this case turned on credibility. Michael, under the influence of methamphetamine, would likely have been seen, just as defendant was, as an impaired driver with problems recalling the accident and with a motive to lie. The issue is whether defendant has demonstrated deficient performance by prior counsel.

The record contains no explanation by trial counsel for his failure to present the evidence of Michaels drug screen. However, we do not find this a situation in which no satisfactory explanation exists for trial counsels inactions or omission. The prosecutor, like prior counsel, was unaware of Michaels blood test results. Sharpe explained that the test results were provided as discovery. Sharpe provides no further details why he had Michaels test results. In his letter to the trial court seeking recall of the sentencing, Sharpe introduces himself as the attorney retained by defendant and his family members. Sharpe explained that he had received all the medical records of the victims, . . . and the former defense attorneys file[.] The record fails to reflect that prior defense counsel should have known about the existence of Michaels test results; thus, there may be a satisfactory explanation, such as, the record was not available or provided when he asked for the same discovery Sharpe later obtained. With respect to Rebecca, defense counsel may or may not have had her medical records but certainly did not have her toxicology screen on the date of the accident because Sharpe did not have it either; Sharpe stated it was missing from the subpoenaed records. Prior counsels performance cannot be considered deficient in failing to present either a nonexistent or lost record. Rebeccas records of her prior use may not have been admissible since such may not have reflected her abilities to recall or perceive on the date of the accident. In any event, prior counsel attacked her credibility with her statement when interviewed after the accident that she had seen traffic lights approaching from the left; she initially testified that she saw none and then later testified that she looked right but not left.

Defendant has failed to demonstrate prior defense counsels performance was deficient. He is relegated to habeas corpus proceedings.

II

Defendant challenges the trial courts imposition of two $20 court security fees. We reject his claim.

A court security fee is imposed for each conviction, not each case. Defendant was convicted of two counts. It matters

not that the court stayed sentence on one. (Pen. Code,

1465.8, subd. (a)(1); People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866 [$20 fee per conviction, not per case].)

DISPOSITION

The judgment is affirmed.

MORRISON , J.

We concur:

BLEASE , Acting P.J.

RAYE , J.

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^[1] We will use the first names of the Applegates for convenience and to avoid confusion; no disrespect is intended.