P. v. King
Filed 1/17/13 P.
v. King CA6
OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
DEBORAH KIM
KING,
Defendant and Appellant.
H036859
(Monterey County
Super. Ct. No.
SS082327)
Defendant Deborah Kim King appeals
after conviction, by jury trial, of gross vehicular
manslaughter while intoxicated.
(Pen. Code, § 191.5, subd. (a).
The trial court found that she had three or more prior convictions of
driving under the influence (§ 191.5, subd. (d)) and sentenced her to an
indeterminate prison term of 15 years to life.
On appeal, defendant contends the
trial court erred by failing to grant a new trial based on newly discovered
evidence concerning the prosecution’s toxicology expert. She also contends the trial court erred by
failing to grant a mistrial when the toxicology expert mentioned that defendant
had marijuana in her system. Finally,
she contends the trial court erred by allowing the prosecution to introduce
evidence concerning her prior acts of driving under the influence. We will affirm.
Background
On September
2, 2008,
defendant drove her car through Pacific Grove and struck pedestrian Joel
Woods. Woods subsequently died of his
injuries. Prior to the accident,
witnesses had observed defendant driving in a manner that suggested she was under
the influence of alcohol or drugs. After
the accident, witnesses observed defendant acting in a manner that suggested
she was under the influence of alcohol or drugs. At the scene, defendant acknowledged having
taken some prescription medications that day.
Defendant was subjected to field sobriety tests, the results of which
suggested she might be under the influence of alcohol or drugs. Defendant’s blood was drawn, and toxicology
tests showed prescription medications in her system. Defendant’s doctor confirmed that defendant
regularly took a combination of prescription medications.
At trial, the evidence focused on
the question of whether defendant was under the influence of prescription
medications – i.e., whether her mental or physical abilities were so impaired
that she was no longer able to drive a vehicle with the caution of a sober
person, using ordinary care, under similar circumstances. (See CALCRIM No. 2110.) The evidence also focused on the question
whether defendant knew that driving under the influence of her prescription
medications was dangerous to human life.
A. Defendant’s History of Drunk Driving
Defendant was convicted of driving
under the influence in 1991, 1995, 1996 and twice in 1998.
Following the 1991 conviction, she completed a one-year community
alcohol awareness class. Following one
of the 1998 convictions, she served a two-year prison term.
Corey Clendenen, defendant’s son,
testified about defendant’s abuse of alcohol and prescription drugs in the
early to mid-1990’s, when he was in high school. Clendenen had seen defendant drive after
taking both alcohol and medications. He
would tell her, “You’re an idiot [for] drinking and driving. You’re going to kill somebody.†He told her that taking medication and
driving was a problem. He gave defendant
these warnings at least 20 times.
Clendenen called 911 three times
following defendant’s use of alcohol and medication, and he performed rescue
breathing on defendant each time. In
1996, Clendenen cut off contact with defendant, in part because of her abuse of
alcohol and medications.
Defendant’s ex-husband, Ben Conway,
had also seen defendant abuse alcohol and prescription drugs during the early
to mid-1990’s. He estimated that he and
defendant had 50 to 60 conversations about the consequences of driving under
the influence, which included killing herself or someone else.
In 1996, defendant was arrested for
driving under the influence after she crashed into a parked vehicle in the
parking lot of a nightclub. The
arresting officer smelled alcohol emanating from defendant’s car, and she
staggered badly when he asked her to step out of the car. Defendant admitting drinking four beers and a
vodka, and her breathalyzer results showed blood alcohol levels of 0.13 and
0.12 percent.
In 1998, defendant was again
arrested for driving under the influence.
An officer stopped her after seeing her weave and swerve. Defendant had slurred speech, watery eyes,
and the odor of alcohol. She admitted
drinking two to three beers and having taken anti-depressants. Her breathalyzer test results were 0.11
percent. A urine test was negative for
amphetamines, barbiturates, benzodiazepines, and opiates.
In 2000, following defendant’s
release from prison, Clendenen reconnected with her. He told her that her drinking and mixing
alcohol with prescription medication had to stop, and that if her behavior
continued he would not allow her around his children. Since that time, he had not seen defendant
drink excessively nor drink and drive.
During Christmas of 2007, he had not seen any signs of defendant being
impaired and had allowed defendant to drive his children to the movies.
B. Defendant’s Prescription Drug Use
Defendant saw Adelheid Ebenhoech,
M.D. from January 2001 until the time of the collision in September of
2008. Dr. Ebenhoech treated defendant
for chronic back pain, depression, and anxiety.
In September 2008, defendant was
regularly taking the following medications:
Cymbalta (duloxetine) for pain and depression; Wellbutrin (bupropion)
for depression; Kadian (morphine) for chronic pain; Xanax (alprazolam) as a
sedative; and Trazodone (desyrel) for sleeping and depression. Defendant also had prescriptions for several
other medications, including:
Clonazepam, an anti-anxiety medication; Ambien (zolpidem), a sleep aid;
and Norco (morphine plus acetaminophen), another pain medication. However, she had been instructed to stop
taking the Ambien and to use the Norco only as necessary, “on a very
limited basis.†Defendant was to take
one dose each of Wellbutrin, Cymbalta, and Kadian each morning. She was to take one dose each of Trazodone
and Kadian each night. She was to take
no more than two Xanax per day.
Dr. Ebenhoech warned defendant to be
cautious about her medication use. He
told defendant not to overuse the medications, because the sedative effects
could be unpredictable. He had
specifically warned her that taking the Xanax with the other medications would
cause additional sedation. Dr. Ebenhoech
told defendant that it was dangerous to drive while taking Norco and Kadian or
if she was drowsy, and he told her to be extra careful if she took multiple
medications at the same time. He told
defendant not to take both doses of Kadian in the morning.
About two weeks prior to the
incident, on August 15, 2008, defendant had a special visit with Dr. Ebenhoech
because she was suffering from fatigue.
Defendant seemed very tired and reported that she “felt that she
couldn’t function.†Dr. Ebenhoech told
her that some of the medications (the Norco, Ambien, and Xanax) could be
contributing to her fatigue. He warned
her not to take the sleeping pills unless necessary and to minimize her
driving, since “with that level of fatigue she couldn’t be behind the wheel.â€
C. Defendant’s Pre-Accident Driving
On September 2, 2008, Alesia Uchida
was driving to Pacific Grove. Uchida was
stopped at a stoplight at the Highway 68 off-ramp when defendant approached
from behind quickly. Uchida feared that
defendant might not stop in time to avoid a collision. Defendant did not hit her, but she stayed
right behind Uchida as both women drove down the “very curvy†road into Pacific
Grove. Defendant crossed the double
yellow center line several times. At subsequent stop lights, defendant again
came very close to Uchida before stopping, and defendant would remain stopped
at each stoplight for a while after it changed to green. Defendant would then catch up to Uchida, and
she eventually passed her. Uchida called
911 and reported that defendant was driving recklessly.
Erica Clardy also noticed defendant
while driving through Pacific Grove.
Defendant was changing lanes quickly, without signaling. Clardy was a few car lengths behind defendant
on Forest Avenue. Both were going at
least 35 miles per hour.
D. The Accident
Joel Woods had come to Pacific Grove
Middle School to pick up his son who had complained of being sick. Woods parked his truck on Forest Avenue
across the street from the school. The
area was posted as a school zone, with a 25 mile per hour speed limit when
children are present. After his son got
into the truck, Woods went around the back to get in on the driver’s side.
Clardy saw Woods standing next to
his truck. Woods shut the door quickly
and got “flat up to the truck†just before defendant drifted to the right and
struck him. Defendant did not brake at
all prior to striking Woods, nor did she make any effort to veer away from him.
Woods flew over the front of his truck and landed about 10 yards in front
of it.
Clardy pulled over. She heard defendant repeating, “ ‘What did I
do?’ †Defendant’s lack of reaction
seemed odd to Clary. Defendant appeared
tired, with bags under her eyes.
Uchida, who had seen something fly
into the air, also stopped at the scene.
Uchida heard defendant say, “ ‘I don’t know what happened.’ †Defendant seemed “kind of out of it†and did
not react when Uchida accused her of driving like a maniac. Uchida believed that defendant was under the
influence.
Pacific Grove Middle School
custodian Randle Withrow heard the impact and saw Woods laying in the
street. He took Woods’s son to the
office and then went back out to the street, where he flagged down a passing
fire truck. Defendant approached him and
asked, “ ‘Did I do this?’ â€
Defendant seemed bewildered and dazed.
Christine Devine-Hyink arrived after
the collision. She saw defendant sitting
and watching. People were yelling at
defendant. Devine-Hyink took defendant
aside to a nearby bench and talked to her for 30 to 45 minutes. Defendant was crying and shaking. Devine-Hyink noticed nothing unusual about
defendant’s speech, and she did not believe defendant was under the influence
of anything.
Woods was treated at the scene and
then flown to a trauma center by helicopter.
He later died of his injuries.
E. Field Sobriety Tests
Sergeant David Diehl performed field
sobriety tests on defendant at the scene.
He had been trained to evaluate drivers for driving under the influence
of alcohol and drugs, including prescription drugs, and he was certified in
drug abuse recognition. He performed
field sobriety tests that he had been using for 20 years.
Defendant did not smell of alcohol,
but she had droopy eyes and a slow and deliberate manner. Defendant stated that she had a bad back and
bad shoulders and that she sometimes suffered from vertigo. Sergeant Diehl modified one of his field
sobriety tests because of defendant’s bad back.
The first field sobriety test was
the “alphabet test,†in which defendant was asked to say the letters of the
alphabet from A to Z. Defendant recited
the alphabet correctly, but her speech was slower than expected, and “a little
deliberate.â€
The second field sobriety test was
the “standing modified test.†Sergeant
Diehl instructed defendant to stand with her feet together and her hands at her
sides. He instructed her to tilt her
head back slightly and close her eyes.
The test is designed to see if a person can maintain his or her
position. Defendant had a “slight
circular sway†during the test.
The third field sobriety test was
the “finger to nose test.†Defendant was
instructed to stand with her feet together, extend both arms out with her index
fingers pointed, and close her eyes.
Sergeant Diehl then told her to touch the tip of her nose with either
her left or right index finger and then return her hand to its original
position. On each of her three attempts,
defendant missed the tip of her nose. On
her first attempt, she initially touched her eye and then the bridge of her
nose. She touched the bridge of her nose
on the second and third tries. Each
time, defendant had to be reminded to return her hand to its original position.
The fourth field sobriety test was
the “heel to toe standing modified test.â€
Defendant was instructed to stand erect with her hands at her sides, and
to place one foot directly in front of the other. She was told to look to the side and give her
home address. Defendant could not keep
her balance after turning her head.
Defendant told Sergeant Diehl she
had taken some prescription medications. She specifically mentioned only
Wellbutrin, Cymbalta, and Clonazepam.
Sergeant Diehl noted that her mannerisms were lethargic and slow, which
was consistent with being under the influence of a central nervous system
depressant.
Commander John Nyunt observed defendant’s
field sobriety tests. He believed
defendant appeared under the influence.
She was unsteady on her feet, had slow and deliberate speech, and was
not cognizant of her surroundings.
Sergeant Matthew Lindholm, an
instructor in the California Highway Patrol’s Drug Recognition Program,
confirmed that slow and deliberate speech during the alphabet test is an
indicator that someone is under the influence, although not sufficient by
itself to show impairment. Likewise, the
slight circular sway defendant exhibited during the standing modified test was
not necessarily significant alone, but it was “one more clue†about her
impairment. Referring to the
finger-to-nose test, missing the tip of one’s nose and forgetting instructions
are significant clues about impairment.
Failure to maintain balance during the heel-to-toe standing modified
test is significant, but not enough by itself to show a person is under the
influence. Defendant’s driving pattern
and sleepy/droopy eyes were more clues about her impairment.
Defense expert Ronald Moore, an
independent forensic scientist, testified that the preferred protocol for field
sobriety tests in drug cases is a 12-step process that includes taking the
person’s pulse, performing eye exams, and subjecting the person to balance and
coordination tests. He acknowledged that
the standardized tests vary by agency and individual officers. He also acknowledged that field sobriety
tests alone do not determine whether someone is impaired. Impairment is generally determined with
reference to blood test results, driving patterns, field sobriety tests, and
demeanor.
Moore acknowledged that the alphabet
test given in this case was a common field sobriety test. He did not believe that saying the alphabet
slowly and deliberately was necessarily a sign of impairment, as it was
possible defendant was just being careful.
According to Moore, the standing
modified test administered to defendant was similar to a standardized test
called the modified position at attention test.
Both tests involve watching the person for sway. Some sway is within the normal range, so he
did not believe that defendant’s slight sway was evidence of impairment.
The finger-to-nose test conducted in
this case was also not done pursuant to the newer standardized protocol, but it
was similar to the original protocol.
Moore did not think that defendant exhibited any scientifically valid
signs of impairment during this test. He
acknowledged that her failure to follow all instructions and failure to touch
the tip of her nose could be evidence of impairment, but he also thought
defendant could have been affected by distractions at the scene.
The heel-to-toe test that was
conducted in this case was similar to a standardized test called the
walk-and-turn test. The test in this
case deviated from the standardized test in that defendant was asked to turn
and give her address. Moore did not
think the results of this test gave any clues about defendant’s impairment.
F. Defendant’s Blood Draw and Arrest
Defendant was taken to the hospital
for a blood draw, which was performed about one and a half hours after the
incident. During the car ride to the
hospital, defendant exhibited lethargic behavior. Her speech was slow and her eyes were hazy
and glassy. The officer transporting her
described defendant as “kind of out of it.â€
Defendant’s purse contained a bottle
labeled as Clonazepam, but it contained various pills with different colors and
markings. An officer looked them up and
found the pills were Ambien, Clonazepam, Norco, Xanax, and Trazodone.
When interviewed at her home the
following day by Detective Adam Sepagan and Detective Ryan McGuirk, defendant
reported that she had taken Cymbalta, Wellbutrin, and two Kadians on the day of
the accident. She reported that she had
taken other medications the night before.
Defendant gave Detective Sepagan
medication bottles from her home, and he recorded the number of pills and
prescription information. The number of
pills left in each bottle was generally consistent with the prescription dates
and amounts. For some medications,
defendant had more pills left than expected if she had taken the medications as
prescribed.
A week after the incident, defendant
was arrested. At the time, she told an
officer that she was “detoxing.†When
booked, defendant again reported that she was detoxing, explaining that she had
not taken any Kadian, Xanax, or Klonopin (clonazepam) for a few days.
G. Toxicology Reports and Analyses
Forensic toxicologist Ronald
Kitagawa analyzed defendant’s blood sample.
He first screened the sample for different classes of drugs. The screening was positive for opiates, which
are pain-killers. Kitagawa initially testified that the screening was also positive
for benzodiazepines and marijuana, but he later clarified that the screening
was negative for benzodiazepines and that the marijuana found was an inactive
metabolite.
Kitagawa then did a more thorough
test using a gas chromatograph mass spectrometer (GCMS). The results were positive for the following: hydrocodone (Norco), morphine (Kadian),
alprazolam (Xanax), zolpidem (Ambien), trazodone (Desyrel), and
hydroxybuproprion (Wellbutrin).
Kitagawa only quantified the
hydrocodone and morphine. The test
showed hydrocodone present at a level of 22 nanograms per milliliter, and it
showed morphine present at a level of 16 nanograms per milliliter. Assuming that those were the peak levels, the
drugs would have been taken an hour and a half earlier at therapeutic levels. However, if the drugs had been taken earlier,
the dose would have been greater than a therapeutic level.
For the other drugs, quantification
is typically done only if there is a question about whether someone’s death was
caused by an overdose. There is too much
variation in the range of those drugs for a quantification to help determine
whether someone is impaired. In order to
make that determination, one would also need to know how the person was driving
and the field sobriety tests.
According to Kitagawa, taking
hydrocodone with a central nervous system depressant such as Xanax (alprazolam)
would have an additive effect. If the
Xanax was taken the night before in a double dose, it could have residual
additive effects the following day.
Taking a narcotic can affect a person’s ability to process
information. When driving, a narcotic
can cause the driver to have problems tracking the road, and it might slow the
driver’s recognition of things such as stoplight color changes. Kitagawa believed, based on the toxicology
results, defendant’s driving pattern, the field sobriety tests, and defendant’s
behavior, that defendant had been driving under the influence of central
nervous system depressants.
Kitagawa began with 8.5 milliliters
of blood, and he used nearly 6.5 milliliters during the testing. He then used an additional one milliliter to
do a quantitative test for Xanax (alprazolam), but the results were not
reportable under laboratory policy, since there was no established quality
control reference.
The remainder of defendant’s blood sample
– about one milliliter – was sent to Forensic Analytical Sciences for retesting
by toxicologist Judy Stewart, who was hired by the defense. The blood sample was not large enough to do
all of the testing that defendant requested.
Stewart screened defendant’s blood for Ambien (zolpidem) and the result
was negative. Her screening would only
have found that drug if there was a concentration of 10 nanograms per
milliliter or more. Since Kitagawa’s
test results indicated the presence of Ambien (zolpidem), it must have been in
a concentration of less than 10 nanograms per milliliter
Stewart also screened for the class
of drugs that includes Xanax (alprazolam).
She got a positive result, but she could not quantify the amount without
more blood. She found it unusual that
Kitagawa’s screening had not picked up the Xanax, while his GCMS test did. Stewart believed that Kitagawa’s GCMS simply
showed a “deflection†of Xanax rather than a true confirmation of its presence. She believed that any Xanax had been taken
the night before, and the amount in defendant’s blood at the time of the
accident would have been too small to have an additive effect with any other
medication.
Defense medical expert Eugene
Schoenfeld, M.D. reviewed the toxicology report and defendant’s medical
records. He testified that the amounts
of morphine and hydrocodone found in defendant’s blood were within the
therapeutic range. He believed that a
person should be warned not to drive when taking those medications until he or
she becomes accustomed to the effects. A
person who continues to take those medications develops a tolerance to them,
which means that the medications provide pain relief without impairment. He did not necessarily think that someone
taking both medications should not drive.
Dr. Schoenfeld has had patients
taking a similar combination of medications as defendant. Those patients would drive to his
office. Defendant had been using
morphine and hydrocodone long enough to develop a tolerance. However, if defendant doubled her usual dose
of morphine, it could have changed what she was used to and affected her
driving.
H. Accident Reconstruction and Safety
Experts
Following the incident, the City of
Pacific Grove hired John Ciccarelli, a bicycle and pedestrian planner and
safety analyst, to do a pedestrian safety assessment. The City had identified several sites of
concern, including the Forest Avenue pick-up area at Pacific Grove Middle
School. Ciccarelli believed that the
road was too narrow to provide safe access to the driver’s side doors of
cars. He recommended the City consider
removing the stopping and parking permissions at that location.
Defense expert Terrill Morris, a
traffic accident reconstructionist, recreated the incident and assessed the
roadway. He found that the road went
from a four percent downhill grade to a two and a half percent grade at the
site of the incident. He also found that
the road curved to the left. The curve
would make it difficult for a driver to estimate a lateral distance and it
would take a driver’s attention in the direction the road was curving.
Morris measured the width of the
road. It was 16 feet from the center of
the road to the sidewalk. However, a
parked car similar to the one Woods drove would have decreased the roadway
width to about eight feet. Considering
the width of defendant’s car, defendant would have had only two feet, five
inches to maneuver with Woods standing at the driver’s door of his vehicle.
According to Morris, the average
perception reaction time of a reasonable driver is 1.5 seconds. A person under the influence of alcohol or
drugs will normally have a slower response time. If defendant was traveling at a speed of 35
miles per hour, she would have needed 77 feet to react within 1.5 seconds if
she was not under the influence. It
would have taken Woods about three seconds to walk to his car door, open it,
look, and close it.
Morris did not believe that
defendant drifted into Woods; he would have seen different damage to Woods’s
vehicle and to Woods himself. He
believed defendant was “continuing on a straight path,†rather than making an
unsafe turn.
Morris opined that the three factors
contributing to the accident were the roadway features, defendant, and
Woods. He found it unclear why defendant
did not observe Woods prior to the accident or make any evasive maneuvers to
avoid striking him, but he acknowledged that intoxication would explain her
lack of response.
To Morris’s knowledge, there were no
prior similar accidents at that specific location, although there had been 10
accidents in the past five years in the general area. Signs in the area clearly indicated that it
was a school zone, that there was a crosswalk, and that drivers should watch
for pedestrians.
I. Charges and Verdicts
Defendant was charged with murder (§
187, subd. (a)) and gross vehicular manslaughter while intoxicated (§ 191.5,
subd. (a)). The information alleged that
defendant had two or more prior convictions of driving under the influence. (§ 191.5, subd. (d).)
Defendant waived jury trial on the special allegation.
The jury found defendant not guilty
of murder, but it found her guilty of gross vehicular manslaughter while
intoxicated. The trial court found true
the prior conviction allegations.
Defendant was sentenced to a prison term of 15 years to life.
J. Post-Trial Discovery
After the verdicts but prior to
sentencing, defendant learned that the Department of Justice (DOJ) was
investigating possible quality control compromises by toxicologist
Kitagawa. She requested discovery from
the prosecutor, who provided a letter from the DOJ.
The DOJ letter stated that its
Toxicology Laboratory had discovered that two evidence samples analyzed by
Kitagawa had been “unintentionally switched.â€
The DOJ had then conducted a “departmental quality assurance review†of
Kitagawa’s casework dating back over a year, which was about 850 cases. That review revealed one other sample switch,
and the DOJ was aware of two previous sample switches, in 2008 and 2009. The DOJ had determined that the sample
switches were “isolated errors.â€
Following receipt of the DOJ letter,
defendant requested additional discovery.
The prosecutor then forwarded a second letter from the DOJ. This letter noted that Kitagawa had been
“taken off of casework†during the review of his cases.
The second DOJ letter detailed the
most recent sample switch, which Kitagawa himself had discovered. The letter also described additional errors
in Kitagawa’s work, including a fifth sample switch error. The following errors were classified as
administrative errors: (1) a report
stating that all three components of marijuana were present when only the
inactive metabolite had been found; (2) a report failing to list lidocaine, which
was detected; (3) a report failing to list morphine.
According to the second DOJ letter,
two other “discrepancies†were found in Kitagawa’s work prior to the recent
review of his cases. In 2008, a tube had
broken in a centrifuge and the case number written on the tube was
obliterated. In 2009, there was an error
during the transfer of blood into a test tube.
Both errors were addressed by subsequent modifications to the standard
procedures. Procedural modifications
were also instituted to remediate the sample switch errors.
The second DOJ letter concluded that
there was no “evidence of malicious intent or any pattern of failure to meet
professional standards by Mr. Kitagawa.â€
It stated that his mistakes were “isolated and relatively infrequent
compared to the large number of samples he analyzes each year.â€
The prosecution subsequently
produced a declaration from DOJ Toxicology Laboratory Assistant Director Dan
Coleman. Coleman reviewed the file in
the instant case and opined that Kitagawa’s report was accurate, noting: (1) the results were consistent with
defendant’s prescription medications; (2) another analyst had done the initial
screening; (3) the screening and GCMS analysis had produced consistent results;
(4) some of the drugs were found in multiple different analyses; and (5) Kitagawa’s
results were reviewed by a second toxicologist and a supervisor.
The prosecution also produced
reports from the DOJ’s review of Kitagawa’s cases, which detailed additional
cases with errors. These errors
included: spelling errors in seven cases;
two cases in which Kitagawa had written the wrong case number on the data
packets; two more cases in which a drug had been found but not reported; a case
in which a drug (benzodiazepine) had been found during a screening but Kitagawa
had failed to list it as not having been confirmed by the GCMS; two cases in
which reports needed clarifying notes; two cases in which a THC analyte was
misidentified as a similarly-named THC analyte; and a case in which Kitagawa
had tested the wrong blood sample due to a case number mix-up.
Discussion
A. Denial of Motion for New Trial
Defendant contends the trial court
erred by denying her motion for a new trial following the post-trial discovery
regarding the errors in toxicologist Kitagawa’s work. She contends the trial court applied the
wrong standard in ruling on her motion, because it did not determine whether
the newly-discovered evidence would “ ‘make a different result probable on
retrial.’ †(People v. Verdugo (2010) 50 Cal.4th 263, 308 (Verdugo).) She further contends
that the newly-discovered evidence would, in fact, “ ‘make a different
result probable on retrial.’ †(
Additionally, she claims the prosecution’s failure to disclose the
evidence constituted error under Brady v.
Maryland (1963) 373 U.S. 83 (Brady)
1. Background
After receiving the discovery
regarding Kitagawa’s errors, defendant moved for a new trial based on newly
discovered evidence.
name="_ftnref5" title="">[5]
(See § 1181, subd. (8).) In her
motion, she also argued that the prosecution’s failure to disclose the evidence
prior to trial was a Brady violation
that denied her the right to due process of law and a fair trial under the
state and federal constitutions.
In denying the motion for a new
trial, the trial court stated, “When considering a motion for a new trial the
Court really does sit as a 13th juror, I think.
And the question is whether or not the Court would differ, I suppose, in
its estimation as to whether or not the evidence was sufficient.†The trial court noted that the number of
errors found were small in relation to the number of cases reviewed. It further noted that the errors were
generally not favorable to the prosecution.
The trial court reviewed the evidence of defendant’s driving pattern and
her behavior after the incident, including her performance on the field
sobriety tests, and her admission to using all of the prescription drugs found
in Kitagawa’s testing. The trial court
concluded, “And so, there just isn’t any question from the evidence that was
presented that the jury reached the right decision in this case. So, the motion for a new trial is denied.â€
2. Standard
for New Trial Motion Based on Newly Discovered Evidence
Section 1181 authorizes a defendant
to move for a new trial based upon nine different grounds, including “[w]hen new
evidence is discovered material to the defendant, and which he [or she] could
not, with reasonable diligence, have discovered and produced at the
trial.†(§ 1181, subd. (8).)
“ ‘To grant a new trial on the basis
of newly discovered evidence, the evidence must make a different result
probable on retrial.’ [Citation.] ‘[T]he trial court has broad discretion in
ruling on a new trial motion . . . ,’ and its ‘ruling will be disturbed only
for clear abuse of that discretion.’
[Citation.] In addition, ‘[w]e
accept the trial court’s credibility determinations and findings on questions
of historical fact if supported by substantial evidence.’ [Citation.]â€
(Verdugo, supra, 50 Cal.4th at
p. 308.)
Defendant contends that the trial
court applied the wrong standard to the motion for a new trial because it was
based on newly discovered evidence, not insufficiency of the evidence. The People appropriately concede error. Instead of determining whether the newly
discovered evidence would “ ‘make a different result probable on
retrial’ †(Verdugo, supra, 50
Cal.4th at p. 308), the trial court found that it effectively sat as a “13th
juror,†that the evidence was “sufficient,†and that “the jury reached the
right decision.†The standard that the
trial court applied here is appropriate for a ruling on a motion for a new
trial based on insufficiency of the evidence.
(See Porter v. Superior Court
(2009) 47 Cal.4th 125, 133 [“If the court is not convinced that the charges
have been proven beyond a reasonable doubt, it may rule that the jury’s verdict
is ‘contrary to [the] ... evidence’ †and, in doing so, “the judge acts as
a 13th juror who is a ‘holdout’ for acquittal.â€].) However, the standard to be applied to a
motion for a new trial based on newly-discovered evidence is whether the newly
discovered evidence would “ ‘make a different result probable on
retrial.’ †(Verdugo, supra, 50 Cal.4th at p. 308.)
Defendant argues that applying the
wrong standard requires reversal per se, because it is an abuse of discretion. She relies primarily on People v. Soojian (2010) 190 Cal.App.4th 491 (Soojian). In
attempted murder and robbery. At trial,
he tried to show that his cousin was the perpetrator. After trial, he discovered additional
evidence implicating his cousin. The
trial court denied his motion for a new trial, but the matter was reversed on
appeal because the trial court “had utilized an incorrect standard when
analyzing the motion.†(
court again found that the trial court had applied the wrong standard. (Id.
at p. 518.) Specifically, the trial
court had erroneously required the defendant to establish that he would be
found not guilty on retrial. The
appellate court clarified that the defendant was only required to establish a
different result was probable on retrial, which could include a hung jury –
i.e., if “it is probable that at least one juror would have voted to find him
not guilty had the new evidence been presented.†(Id.
at p. 521.)
The Soojian court then discussed the proper remedy for the trial
court’s error, noting it had “three options:
(1) remand to permit the trial court to apply the correct definition of
a ‘better result,’ (2) find the error did not cause Soojian any prejudice and
affirm the judgment, or (3) order the trial court to grant Soojian’s motion for
a new trial.†(Soojian, supra, 190 Cal.App.4th at p. 521.) The court declined to remand the case after
noting a number of unique circumstances, including the trial judge’s subsequent
disqualification from ruling on the motion.
(Id. at pp. 521-522.) The court declined to find the error harmless
after assessing the evidence as conflicting on important issues. (Id.
at pp. 522-523.) The court ultimately
ordered a new trial based on its “confident†determination that there was “a
reasonable possibility that if a jury were to consider all of the evidence, at
least one juror would have voted to find Soojian not guilty.†(Id.
at p. 524.)
In this case, the People urge us to
use the second option from the Soojian
case – i.e., to find that the trial court’s error in applying the wrong
standard did not cause defendant any prejudice.
Other cases confirm that such an error can be found harmless if the
reviewing court can determine that “the trial court would have reached the same
result using correct legal standards†(People
v. Knoller (2007) 41 Cal.4th 139, 158) or if “the evidence in question
would not affect the outcome of the case†(People
v. Martinez (1984) 36 Cal.3d 816, 824).
Further, it is well-settled that an appellate court reviews the trial
court’s ruling, not its reasoning, and that we may affirm if the judgment is
correct on any ground. (
582.)
We agree that the trial court’s
application of the wrong standard to defendant’s motion for a new trial did not
cause defendant any prejudice. In light
of the trial court’s comments, the nature of the newly-discovered evidence, and
the evidence at trial, it is not reasonably probable that the trial court would
have ruled differently under the proper standard.
First, as the trial court
recognized, none of the newly-discovered evidence showed that Kitagawa’s
results were inaccurate in this case.
(Compare People v. Garcia (1993)
17 Cal.App.4th 1169, 1184 [newly discovered evidence showed that expert’s
results were wrong].) Thus, the new
evidence was only material to the impeachment of Kitagawa generally. Typically, “ ‘[a] new trial on the
ground of newly discovered evidence is not granted where the only value of the
newly discovered evidence is as impeaching evidence’ or to contradict a witness
of the opposing party.
[Citations.]†(
282, 299.)
Second, even assuming that the newly
discovered evidence was admissible to impeach Kitagawa generally, it was not
sufficient to cast any doubt on the blood test results. Kitagawa’s test results were consistent with
the medications that defendant had been prescribed by her doctor, the
medications in her possession at the time of the accident, and the medications
she admitted to taking. The defense
expert confirmed the presence of nearly all of the medications listed in
Kitagawa’s report.
name="_ftnref6" title="">[6]
Also, the toxicology reports were consistent with defendant’s driving
pattern prior to the accident, her demeanor after the accident, and her
performance on the field sobriety tests.
Third, Kitagawa’s general
credibility would not have been significantly damaged by introduction of the
new evidence because the errors discovered during the review were primarily
clerical. Most were spelling errors,
case numbering errors, or sample switch errors.
Kitagawa discovered some of the errors himself. Further, the number of cases with errors was
a very small percentage of the cases Kitagawa had worked on, and the DOJ had
found no reason to believe that Kitagawa failed to meet professional standards.
Finally, this case did not turn on
the results of Kitagawa’s toxicology report.
The toxicology results did not determine the ultimate question of
whether defendant was under the influence.
The toxicology report merely stated what drugs were found in defendant’s
blood. Only the morphine and hydrocodone
were quanitifed, and even those results did not determine whether defendant was
under the influence. The jury had to
consider all of the evidence to make that decision, including the observations
of defendant before and after the accident, the field sobriety tests, the
testimony of defendant’s doctor, and defendant’s admissions to taking numerous
medications.
Considering all of the evidence
introduced to show that defendant was under the influence, none of the newly
discovered evidence was reasonably likely to change the mind of any juror. Thus, a different result is not probable on
retrial. (Verdugo, supra, 50 Cal.4th at p. 308.)
3. Brady
Violation
“In Brady, the United States
Supreme Court held that ‘the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.’
[Citation.] Thus, under Brady
and its progeny, the state is required to disclose to the defense any material,
favorable evidence. [Citations.] Favorable evidence includes both evidence
that is exculpatory to the defendant as well as evidence that is damaging to
the prosecution, such as evidence that impeaches a government witness. [Citations.]â€
(People v. Uribe (2008) 162
Cal.App.4th 1457, 1471-1472.)
“Evidence is ‘material’ ‘only if
there is a reasonable probability that, had [it] been disclosed to the defense,
the result ... would have been different.’
[Citations.] The requisite
‘reasonable probability’ is a probability sufficient to ‘undermine[ ]
confidence in the outcome’ on the part of the reviewing court. [Citations.]â€
(In re Sassounian (1995) 9
Cal.4th 535, 544.)
Here, assuming arguendo that the
prosecution had a duty to provide the defense with the evidence of the DOJ’s
review of Kitagawa’s casework before trial, reversal is not required because
that evidence was not material within the meaning of Brady – that is, there is no reasonable probability that the result
would have been different if the evidence had been disclosed to the
defense. (In re Sassounian, supra, 9 Cal.4th at p. 544.) As explained in the above section, the new
evidence would only have impeached Kitagawa generally. The new evidence would not have cast any
serious doubt on the actual blood test results, since those results were
consistent with other evidence of defendant’s prescription drug use. The evidence disclosed that a very small
percentage of Kitagawa’s cases had errors, most of which were clerical, and that
the DOJ believed Kitagawa continued to meet professional standards. The newly discovered evidence did not address
whether defendant was under the influence.
Considering all of the evidence – including the observations of
defendant before and after the accident, the field sobriety tests, the
testimony of defendant’s doctor, and defendant’s admissions to taking numerous
medications – there is no reasonable probability that there would have been a
different result if the new evidence had been disclosed to the defense earlier.
B. Denial of Mistrial
Defendant contends that the trial
court erred by failing to grant a mistrial when toxicologist Kitagawa testified
that her blood had tested positive for marijuana.
1. Background
Defendant brought a motion in limine
to bar the prosecution from introducing evidence that an inactive metabolite of
marijuana was found in defendant’s blood.
The trial court initially denied the motion, but it later ordered that
there be no reference to the marijuana metabolite.
When testifying, Kitagawa stated
that his initial screening showed a positive result for opiates. The prosecutor asked, “And . . . for
Benzodiazepines; correct?†Kitagawa
responded, “I believe that, and marijuana.â€
After a sidebar conducted pursuant
to defendant’s request, Kitagawa continued testifying. He explained that he did a confirmatory test
for marijuana but “just found one of the metabolites.†He testified that there was no active
marijuana in defendant’s system.
Defendant objected to this testimony
and requested the trial court give a curative instruction stating that Kitagawa
had misspoken. When the trial court
refused to give such an instruction, defendant moved for a mistrial. The trial court denied the mistrial request,
finding that the evidence would not affect the trial and that the jury could
follow an instruction to disregard it.
Defendant argued that the evidence would leave the jury with the
impression that she was an illegal drug user.
She requested an instruction stating that the evidence did not show
defendant had used marijuana.
Defendant filed a written motion for
a mistrial following Kitagawa’s testimony.
The trial court denied the motion, finding that there was no bad faith
by either the witness or the prosecutor, and that the evidence would not have
an impact on the trial. Following
further discussion, the trial court told the jury:
“ ‘During his testimony criminalist
Ron Kitagawa mentioned marijuana and THC.
No marijuana or active THC was found in Ms. King’s blood. Mr. Kitagawa’s mention of marijuana and related
metabolites was irrelevant. It has no
bearing on this case.’ I think that was
made clear also through the testimony.
“The Court hereby orders such
evidence stricken from the record.
You’re not to consider this evidence for any purpose, you’re not to discuss
such evidence, or allow it to influence your deliberations in any way.â€
2. Standard
for Granting a Mistrial
“A trial court should grant a motion
for mistrial ‘only when “ ‘a party’s chances of receiving a fair trial have
been irreparably damaged’ †’ [citation], that is, if it is ‘apprised of
prejudice that it judges incurable by admonition or instruction’
[citation]. ‘Whether a particular
incident is incurably prejudicial is by its nature a speculative matter, and
the trial court is vested with considerable discretion in ruling on mistrial
motions.’ [Citation.] Accordingly, we review a trial court’s ruling
on a motion for mistrial for abuse of discretion. [Citation.]â€
(People v. Avila (2006) 38
Cal.4th 491, 573 (Avila).)
“Ordinarily, a curative instruction
to disregard improper testimony is sufficient to protect a defendant from the
injury of such testimony, and, ordinarily, we presume a jury is capable of
following such an instruction.
[Citation.]†(
Cal.App.4th 828, 834 (Navarrete).)
Defendant contends that the
marijuana reference was incurably prejudicial, because it effectively told the
jury that she was an illegal drug user.
The People point out that there are circumstances under which marijuana
use is not illegal, and that the jury was likely to assume that appellant had
used it for her chronic pain. The People
further contend that the jury could follow an instruction to disregard the
reference.
We find no abuse of discretion in
the trial court’s determination that a curative instruction, rather than a
mistrial, was the appropriate remedy for Kitagawa’s improper testimony. His reference to marijuana was brief, and he
explained that only an inactive metabolite was found in defendant’s blood. The trial court could reasonably find that
the jury would be able to follow an instruction not to consider the evidence.
The cases relied upon by defendant
are distinguishable. In
the witness’s improper remark strongly suggested that the defendant had
confessed to the crime of committing a lewd act on a child. The evidence was otherwise “not
overwhelming,†in that there was no medical or forensic evidence, and the
witness’s remark inferred that the police had not collected forensic evidence
because the defendant had confessed. (
not sufficient, the Navarrete court
emphasized “the condemning power of a confession.†(Id.
at p. 835.) The court referred to the
error as “the sort of ‘exceptional circumstance’ that supports granting a
mistrial because a curative instruction cannot undo the prejudice to the
defendant. [Citations.]†(Id.
at p. 836.)
Likewise, in People v. Bentley (1955) 131 Cal.App.2d 687 (Bentley) (disapproved on other grounds by People v. White (1958) 50 Cal.2d 428, 430-431), the improper evidence suggested the defendant had committed prior
child molestations. As a result, the
defendant had to defend himself against these additional charges of misconduct. The appellate court concluded that under the
circumstances, a mistrial would have been the proper response, rather than a
curative instruction. “The mere
direction that the testimony should be disregarded was no antidote for the
poison that had been injected into the minds of the jurors.†(Bentley,
supra, at p. 690.) Since the
evidence left “some doubt†whether the defendant committed the charged offense,
reversal was required. (
The improper testimony in this case
suggested possible marijuana use, not child molestation. While marijuana use is often illegal, the
suggestion that defendant may have used it was not so prejudicial that a
curative instruction could not be followed.
Cases have often found that a brief reference to prior criminal activity
does not warrant a mistrial. For
instance, in Avila, supra, 38 Cal.4th
491, a witness violated a pretrial order by saying that the defendant had
recently been in prison. The California
Supreme Court found no abuse of discretion in the trial court’s decision to
order the testimony stricken and instruct the jury not to consider it, rather
than granting a mistrial. (
The trial court’s decision is also
reasonable based on the state of the evidence at the time the jury heard the improper
testimony. By that time, the jury had
heard a significant portion of the prosecution’s case. Witnesses had testified that just before the
incident, defendant was driving in an erratic and dangerous manner, suggesting
she was under the influence. The
evidence established that she made no effort to avoid striking Woods, which
further suggested she was under the influence.
After the incident, defendant seemed to be under the influence. Her performance on the field sobriety tests
suggested she was under the influence.
The toxicology report showed that she had taken prescription drugs some
time before the accident. She was taking
a number of prescription drugs regularly, and her doctor had warned her of the
dangers of driving while taking some of them at the same time. Defendant admitted having taken some of the
prescription drugs that day, including two Kadians, which was double her
prescription. Considering the very strong
evidence showing defendant’s impairment, the trial court could reasonably determine
that the jury could follow an instruction to ignore the brief remark about
marijuana.
C. Evidence of Prior Convictions and
Conduct
Defendant contends the trial court
erred by admitting evidence of her prior DUI convictions in addition to evidence
that she abused alcohol and prescription medication in the early to mid-1990’s.
1. Background
Defendant moved, in limine, to
exclude the evidence of her prior DUI convictions and the underlying
conduct. Defendant also moved to exclude
the testimony of her ex-husband and son.
The prosecution opposed the motion, contending that the evidence was
relevant to the issue of implied malice – i.e., an element of the murder
charge.
At the hearing on the motion,
defendant pointed out that the prior convictions all occurred at least 10 years
before the current offense. She also
pointed out that they all involved alcohol, whereas there was no allegation of
alcohol use in the current offense.
Defendant acknowledged that during one of her arrests, she had admitted
using some prescription drugs, but argued that there was no evidence she had
actually been under the influence of narcotics while driving. She further argued that her admission to
narcotics use did not show she knew that such narcotics would affect her driving.
The trial court ruled that it would
admit the evidence of defendant’s prior convictions and the prior warnings from
her ex-husband and son concerning her abuse of alcohol and prescription
drugs. It reasoned that, taken together,
the evidence put defendant on notice that driving under the influence of
prescription medication was dangerous.
The
jury learned of these prior convictions by a stipulation stating that defendant
“suffered convictions in 1991, 1995, 1996, and twice in 1998 for driving and
being under the influence.†The
stipulation also stated that in 1991, defendant “submitted to a court proof of
completion of a one year community alcohol awareness class†and that in 1998,
she was sentenced “to two years of prison for driving under the influence.â€
The
trial court gave the jury a limiting instruction regarding the evidence of
defendant’s prior uncharged acts. The
limiting instruction stated that the evidence could be considered only “for the
limited purpose of deciding whether or not the defendant acted with malice
aforethought and/or gross negligence and/or ordinary negligence.â€
2. The Trial
Court Did not Abuse Its Discretion
“Although evidence of other criminal
acts or misconduct of a defendant is inadmissible to prove the accused had the
propensity or disposition to commit the crime charged [citations], it is
ordinarily admissible where it tends to show motive, knowledge, identity,
intent, opportunity, preparation, plan, or absence of mistake or accident.
[Citations.] Evidence admissible under
subdivision (b) of Evidence Code section 1101 remains subject to exclusion
under Evidence Code section 352.
[Citation.] ‘The proffered
evidence must logically, naturally and by reasonable inference tend to prove
the issue in dispute. It must be offered
upon an issue that will ultimately prove to be material to the People’s case
and it must not merely be cumulative with respect to other evidence which the
People may use to prove the same issue. [Citations.]’ [Citation.]†(People
v. Brogna (1988) 202 Cal.App.3d 700, 706-707.)
In People v. McCarnes
(1986) 179 Cal.App.3d 525 (McCarnes), the court explained why evidence
of prior driving under the influence convictions is relevant in an implied
malice murder case: “[T]he reason that driving under the
influence is unlawful is because it is dangerous, and to ignore that
basic proposition, particularly in the context of an offense for which the
punishment for repeat offenders is more severe [citations], is to make a
mockery of the legal system as well as the deaths of thousands each year who
are innocent victims of drunken drivers.â€
(Id. at p. 532.)
The McCarnes court further explained that evidence of education about
driving under the influence is also relevant.
Thus, in that case, it was relevant that the defendant had been ordered
to “enroll in and complete a drinking
driver’s education program. Even if we
assume defendant did not realize after his convictions that it was
dangerous to drink alcohol and drive, surely realization would have eventually
arrived from his repeated exposure to the driver’s educational
program. To argue otherwise is little
short of outrageous.†(McCarnes,
supra, 179 Cal.App.3d at p. 532.)
Evidence of prior driving under the
influence convictions and warnings about the danger of driving under the
influence is also admissible to show gross negligence in a gross vehicular
manslaughter case. (People v. Ochoa (1993) 6 Cal.4th 1199, 1205-1206 (
Such prior convictions and warnings are relevant to the question whether
a reasonable person in the defendant’s position would have been aware of the
risk of driving under the influence. (
Defendant argues that the trial
court should have limited the evidence rather than admitting all of the prior
convictions and testimony, describing it as cumulative and “overkill.†She claims that it is “universally knownâ€
that driving while intoxicated is dangerous and points out that the jury heard
Dr. Ebenhoech’s testimony about warning defendant about the dangers of driving
while affected by the prescription drugs.
Thus, she reasons, it was unnecessary to introduce other evidence
regarding defendant’s knowledge of the danger.
Defendant compares this case to
Cal.App.4th 587 (Williams), where the
court admitted “evidence about dozens of contacts defendant and fellow gang
members had with law enforcement.†(
possessing a firearm, ammunition, and a controlled substance, plus
participation in a criminal street gang and gang enhancements. On appeal, the Williams court found that several of the prior incidents were
admissible to show knowledge, under Evidence Code section 1101, subdivision
(b). The court found that other prior
incidents were admissible for impeachment, and that still other prior incidents
were admissible as predicate crimes for the gang charge and gang
enhancements. (Id. at pp. 607-609.)
However, the trial court should have limited the evidence under Evidence
Code section 352, because the presentation of all the prior misconduct
evidence necessitated an undue consumption of time. Under the circumstances, “[t]he sheer volume
of evidence extended the trial – and the burden on the judicial system and the
jurors – beyond reasonable limits.†(
In the instant case, the evidence of
defendant’s prior convictions and prior conduct did not approach the volume of
evidence introduced in Williams, and
presentation of the evidence did not necessitate an undue consumption of
time. The testimony of the witnesses was
brief, particularly in relation to the substantial amount of evidence presented
overall, and the prior convictions were admitted through a stipulation. Moreover, the evidence was not as repetitive
as the evidence in Williams, and
defendant did dispute that she knew
it was dangerous to drive while taking her prescription medications
As noted above, her prior convictions of driving under the influence and
the prior warnings she received were highly relevant to that issue.
supra, 179 Cal.App.3d at p. 532; Ochoa,
supra, 6 Cal.4th at pp. 1205-1206.)
Further, the trial court gave a limiting instruction to ensure that the
jury did not use the evidence for any improper purpose. Thus, the trial court did not abuse its discretion
by finding that admitting the evidence would not cause an unreasonable burden
on the judicial system or the jurors or any other substantial prejudice under
Evidence Code section 352.
Disposition
The judgment is affirmed.
___________________________________________
Bamattre-Manoukian, J.
WE CONCUR:
__________________________
ELIA, ACTING
P.J.
__________________________
Márquez, J.
name="_ftn1" title=""> [1]
All further statutory references are to the Penal Code unless otherwise
indicated.
name="_ftn2" title=""> [2]
The jury learned of these prior convictions by stipulation. The prosecution later proved three of the
priors for purposes of the section 191.5, subdivision (d) enhancement: 1991, 1996, and 1998 convictions of Vehicle
Code section 23152, subdivision (a).
