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Filed 11/4/15 P. v. Snyder CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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 This opinion has not been certified for publication 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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSHUA FRANKLIN SNYDER,

Defendant and Appellant.

E061460

(Super.Ct.No. SWF1200233)

OPINION

APPEAL from the Superior Court of Riverside County. John M. Davis, Judge. 

Affirmed with directions.

Reed Webb, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. 

Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

After driving erratically in the early hours of the morning, defendant Joshua 

Snyder was stopped on suspicion of driving under the influence of alcohol. He admitted 
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to ingesting several drinks, failed all field sobriety tests, and his blood tests revealed a

blood alcohol level of 0.25 percent. Defendant was charged with driving under the 

influence of alcohol (Veh. Code, § 23152, subd. (a)), and driving with a blood alcohol 

level of 0.08 percent or above (Veh. Code, § 23152, subd. (b)), along with special 

allegations that he had a blood alcohol level above 0.15 percent (Veh. Code, § 23578), 

four prior convictions for drunk driving, and two prior prison terms for separate felony 

drunk driving convictions within the meaning of Penal Code, section 667.5, subdivision

(b). Defendant was convicted by a jury as charged and appealed.

On appeal, defendant argues that he was deprived of his constitutional right to 

effective assistance of counsel because his original trial counsel failed to timely seek 

retesting of the blood sample, which was destroyed a year after it was analyzed. We 

affirm, but direct the clerk of the court to amend the abstract of judgment.

BACKGROUND

On October 1, 2011, at approximately 2:10 a.m., Riverside Sheriff’s Deputy Lopez 

was on patrol when he observed a white F150 pickup truck swerving in the number one 

lane along Winchester Road. The deputy observed the vehicle swerve within its lane, 

cross the median lines into the center median, cross into the number one lane of 

oncoming traffic, swerve back into its own lane, straddle the lane divider, and eventually 

turn abruptly into the number two lane. Deputy Lopez initiated the overhead lights of his 

patrol vehicle and conducted a traffic stop. 

The deputy made contact with Joshua Snyder, the defendant, who was driving the 

vehicle and asked defendant if he had consumed alcohol that night. Defendant responded 
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in the affirmative, telling the deputy he had consumed seven “Jacks and cokes” (referring 

to Jack Daniels whiskey) at the Skybox bar. The deputy observed that defendant’s 

speech was slurred, his movements were slow and lethargic, his eyes were red and 

watery, and his breath smelled of alcohol. In the deputy’s opinion, defendant’s 

symptoms were consistent with someone who might be under the influence of alcohol, 

and asked defendant to step out of his vehicle. 

The officer ascertained that defendant weighed 180 pounds, and asked defendant 

several questions to rule out mechanical difficulties or medical problems. He asked 

defendant a second time if had been drinking, and this time defendant stated he had four 

Jack and cokes. Defendant denied that alcohol affected his driving, explaining that he 

was using his cell phone. 

The deputy conducted three field sobriety tests on the side of the road: the 

Romberg test (where the person stands with his eyes closed and head tilted backward to 

test the person’s proprioception and sense of time), the one-legged stand test, and the 

walk and turn test. During the Romberg test, defendant began swaying and estimated that 

a 50 second interval lasted 30 seconds. During the one-legged stand, defendant lost his 

balance and started to fall backwards, so the deputy had to catch him to prevent him from 

hurting himself. During the walk and turn test, defendant had difficulty placing one foot 

in front of the other and fell back, stepping out to regain his balance. The officer stopped 

the test so he would not fall and hurt himself. 

At the conclusion of the field sobriety tests, the deputy formed the opinion that 

defendant was under the influence of alcohol, and placed him under arrest. After 
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defendant was transported to the police station, a nurse arrived to draw blood at 

approximately 4:10 a.m. The deputy took custody of the blood sample, which was 

subsequently delivered to the California Department of Justice Regional Crime Lab for 

forensic analysis, where it was tested on October 17, 2011. A criminalist tested the blood 

sample using head space gas chromatography and reported that defendant’s blood sample 

showed a blood alcohol concentration (BAC) of 0.25 percent. A 180-pound male would 

have to consume approximately 11 standard drinks to have a BAC of 0.25 percent. 

In the opinion of the criminalist, for defendant to have a 0.25 percent BAC at 4:00

a.m., he would have had to consume more than 12 drinks, given the burn off and 

absorption rates. It was not scientifically possible for a 180-pound male with a 0.25 

percent BAC to have consumed only four drinks, and he would have had to have 

consumed more than seven drinks. 

Defendant was charged with felony driving under the influence of alcohol (Veh. 

Code, § 23152, subd. (a), count 1), with four prior drunk driving convictions, and a 

special allegation that his blood alcohol concentration exceeded 0.15 percent. (Veh.

Code, § 23578.) He was also charged with driving with 0.08 percent or more blood 

alcohol (Veh. Code, § 23152, subd. (b), count 2), along with the allegations of his four 

prior drunk driving convictions and having a BAC over 0.15 percent (Veh. Code, § 

23578). It was further alleged that defendant had served two separate prison terms 

(prison priors) for separate prior felony convictions for drunk driving. (Pen. Code, 

§ 667.5, subd. (b).) 
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Defendant was tried by a jury and convicted of both counts; the jury also found 

that defendant was driving with a BAC of more than 0.15 percent. After the verdict, 

defendant admitted having four drunk driving convictions and the two alleged prison 

priors. Defendant was sentenced on this case, and, in the same proceeding, he was 

resentenced on Case No. SWF1201846, involving charges filed while defendant was out 

on bail on this case.1 The court imposed an aggregate term of eight months (one-third the 

middle term on count 1), which was ordered to run consecutive with the aggregate term 

imposed in the separate case, SWF 1201846. Defendant timely appealed. 

DISCUSSION

1. Defendant Failed to Establish His Trial Counsel Provided Ineffective Assistance.

Following defendant’s arrest in 2011, his blood was drawn; several days later, it 

was analyzed by a criminalist, who determined that defendant’s blood alcohol level was 

0.25 percent. In 2013, defendant’s fourth attorney indicated a desire to have the sample 

retested, but the sample had been destroyed in January 2013, apparently because the 

agency holding the sample believed the case to be a misdemeanor. In limine, defendant 

brought a motion to exclude the results of the blood alcohol testing due to the failure to 

 

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 The trial in the present case trailed the later-charged matter, so he was convicted 

and provisionally sentenced on case No. SWF1201846 before his jury trial in this matter. 

The term for the on bail enhancement, which was found true in case No. SWF1201846, 

was stayed pending the outcome in the present case. 
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preserve the evidence, which was denied.2 On appeal, defendant argues his right to 

effective assistance of counsel was violated by counsel’s failure to timely seek retesting 

of the sample. We disagree.

To demonstrate that his right to effective assistance of counsel was violated, 

defendant must satisfy a two-pronged test: He must show (1) performance below an 

objective standard of reasonableness by his attorney, and (2) prejudice sufficient to 

establish a reasonable probability he would have obtained a more favorable result in the 

absence of counsel’s error. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 

693-694 [104 S.Ct. 2052, 80 L.Ed.2d 674].) There is a strong presumption that counsel’s 

conduct falls within the wide range of reasonable professional assistance. (People v. 

Lucas (1995) 12 Cal.4th 415, 436-437.) Tactical decisions are generally not deemed 

reversible, and counsel’s tactical decisions must be evaluated in the context of all the 

available facts. (Strickland v. Washington, supra, 466 U.S. at p. 690.)

Where the record on appeal sheds no light on why counsel acted or failed to act in 

the manner challenged, unless counsel was asked for an explanation and failed to provide 

one, or unless there simply could be no satisfactory explanation, the claim on appeal must 

be rejected. (People v. Mendoza Tello (1997)15 Cal.4th 264, 266.) Further, a court need 

not determine whether counsel’s performance was deficient before examining the 

prejudice suffered by the defendant as a result of the alleged deficiencies. (People v. 

 

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 Defendant does not challenge the trial court’s in limine ruling on his motion for 

exclusion, or the court’s refusal to give a special instruction referring to the failure to 

preserve the evidence, so we do not consider those issues.
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Carrasco (2014) 59 Cal.4th 924, 982, citing Strickland, supra, 466 U.S. at p. 697.) In 

other words, we need not determine whether defendant established the first prong of 

Strickland, deficient performance, if we conclude that even if counsel’s performance was 

deficient, defendant has failed to sustain his burden on the issue of prejudice. (In re 

Alvernaz (1992) 2 Cal.4th 924, 945.) 

We acknowledge that diligent advocates may seek retesting of forensic evidence.

We also acknowledge that the State has a duty to preserve evidence that possesses an 

exculpatory value that was apparent before the evidence was destroyed, and is of such a 

nature that the defendant would be unable to obtain comparable evidence by other 

reasonably available means. (California v. Trombetta (1984) 467 U.S. 479, 489 [81 

L.Ed.2d 413, 104 S.Ct. 2528].) But neither of these pronouncements establishes that an 

attorney’s failure to promptly seek retesting of the forensic evidence constitutes deficient 

performance; nor do they establish the greater question of whether counsel’s failure 

resulted in prejudice.

Defendant argues on appeal that the evidence was exculpatory because a blood 

alcohol result of 0.25 percent is “just too high a number.” He points to no evidence that a 

high BAC must be the result of flawed testing methods, or that such a result is inherently 

improbable. Instead, he appears to base his argument on the criminalist’s opinion that it 

was impossible for a person to have a BAC of 0.25 percent after only four drinks, 

premised on defendant’s statement he had consumed no more than four alcoholic drinks.

However, defendant’s premise is faulty because (a) the expert did not state that the test 

results were wrong or improbable, he only suggested that defendant had been minimizing 
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his consumption, and (b) he had initially admitted to the arresting deputy that he

consumed seven alcoholic beverages, which was also an attempt to minimize his 

consumption.

Whether he consumed four or seven alcoholic beverages is irrelevant, because 

even at four drinks, defendant’s blood alcohol level would have registered 0.08 percent, 

enough to convict defendant of violating Vehicle Code, section 23152, subdivision (b).

In this respect, there is no possibility defendant can successfully demonstrate prejudice 

flowing from any failure by his attorney to have the sample retested. Moreover, even 

without evidence of defendant’s blood alcohol percentage, evidence of his driving pattern 

and performance of the field sobriety tests provided proof beyond a reasonable doubt he 

violated section 23152, subdivision (a), further precluding any possibility of showing 

prejudice.

Defendant provides no evidence or authority for the assertion that an unusually 

high percentage of alcohol in the blood must be a mistake, or for the speculation that 

retesting the sample would result in a lower BAC, one which would be exculpatory. 

Both assumptions are incorrect. First, chronic heavy drinkers are known to be more 

functional at higher rates of blood-alcohol concentration, which, in others, would be 

incapacitating or even fatal. (Vol. 28, Alcohol Alert (Apr. 1995), Natl. Inst. on Alc. 

Abuse & Alcoholism, http://pubs.niaaa.nih.gov/publications/aa28.htm, as of Sept. 21, 

2015, citing Chesher & Greeley, Tolerance to the Effects of Alcohol, Vol. 8 Alcohol, 

Drugs and Driving 93-106 (1992).)
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Second, defendant makes no showing that, if preserved, a retest of the blood 

sample would have provided exculpatory results, that is, that they would result in a BAC 

of less than 0.08 percent. Unless defendant could show that retesting would have yielded 

a blood-alcohol percentage of less than 0.08, or that he would have been acquitted of the 

charge of driving under the influence, as charged pursuant to section 23152, subdivision 

(a), he cannot prevail on a claim of ineffective assistance of counsel.

Third, the decision to retest forensic evidence is a matter of trial tactics: 

Strickland permits counsel to make reasonable decisions that make particular 

investigations unnecessary. (Strickland, supra, 466 U.S. at p. 691; see also, Harrington 

v. Richter (2011) 562 U.S. 86, 107-108 [131 S.Ct.770, 788-789, 178 L.Ed.2d 624].) In 

the absence of a record of counsel’s explanation for not requesting the retesting of the 

sample, the claim is not properly before us. (People v. Cudjo (1993) 6 Cal.4th 585, 623; 

People v. Brodit (1998) 61 Cal.App.4th 1312.) We cannot assume from a silent record 

that favorable evidence would have been produced had counsel timely sought to retest the 

sample before it was destroyed (People v. Medina (1995) 11 Cal.4th 694, 773), nor can 

we speculate concerning counsel’s reasons for not making the request for retesting before 

the sample was destroyed.

Because there is no theory under which defendant can establish prejudice from 

trial counsel’s failure to request retesting of the blood sample, his claim of ineffective 

assistance of counsel must fail.
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2. The Abstract of Judgment Requires Correction

At sentencing, the court stated its decision to make the term imposed on this case 

to run consecutive to the sentence imposed in defendant’s other case, Case No. 

SWF1201846.3 The abstract indicates that the term of eight months was imposed on 

count 1, but the clerk did not indicate that the term was a consecutive one-third the 

midterm. Instead, the clerk typed “M” in the column designated “Term (L,M,U), and 

entered “8” in the months column for “Principal or Consecutive Time Imposed”, 

although eight months represents one-third the midterm. For count 2, the abstract 

indicates the court imposed and stayed eight months, one-third the midterm of two years, 

where the usual practice is to impose and stay the entire term. There is also an “X” on 

the third line, in the column reserved for “Violent Felony,” although no count or 

conviction is listed on line three in the table reserved for counts of conviction.

The abstract of judgment constitutes the commitment and is the order sending the 

defendant to prison, and the process and authority for carrying the judgment and sentence 

into effect; no other warrant or authority is necessary to justify or require its execution. 

(Pen. Code, § 1213; People v. Mitchell (2001) 26 Cal.4th 181, 185, citing In re Black 

(1967) 66 Cal.2d 881, 890.) It goes without saying that accuracy is essential in a 

document that prescribes the execution of sentence and is provided to Criminal 

Investigation and Identification. (Pen. Code, § 1213, subd. (a).) This court has the 

 

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 The conviction in that case was the subject of another appeal, People v. Snyder, 

E060990.
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authority to correct clerical errors at any time. (People v. Mitchell, supra, 26 Cal.4th at 

pp.186-187.) 

It is incorrect to designate a term that constitutes one-third the midterm as the 

midterm, reflected as an “M” under Item 1, (“Defendant was convicted of the 

commission of the following felonies”), in the column designated “Term (LMU),” where

the court imposed one-third the midterm, consecutive, for that count. The clerk should 

have put an “X” in the box in the column designated “1/3 Consecutive.” 

The clerk also inserted an “X” on the third line in the Item 1, although there was 

no third count, and no violent felony. That “X” must be deleted. 

DISPOSITION

The judgment is affirmed. The clerk is directed to amend the abstract of judgment 

to delete the “M” from the line for count 1, and replace it with an “X” in the column for 

“1/3 Consecutive,” and delete the “X” from the column for “Violent Felony” on the third 

line of Item 1.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

MILLER

J.

CODRINGTON

J.