1

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). T his opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FRANKLI N SNYDER, Defendant and Appellant. E06 1460 (Super.Ct.No. SWF120 0233 )
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 Defen dant 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.
Af ter driving erratically in the early hours of the morning, defendant Joshua Snyder was stopped on suspicion of driving under the influence of alcohol. He admitted2

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
al legations 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, subd ivi sion (b). Defendant was convicted by a jury as charged an d 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

. B ACKGROUND On October 1, 2011, at approximately 2:10 a.m., Riverside Sheriff’s Deputy Lopez was on patrol whe n 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, swerv e 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 de fendant, who was driving the vehicle and asked defendant if he had consumed alcohol that night. Defendant responded3

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.
T he 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 t ime 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 e stimated 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 def endant was under the influence of alcohol, and placed him under arrest. After4

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 de livered to the California Department of Justice Regional Crime Lab for forensic analysis , where it was tested on October 1 7 , 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 con sume 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 dr inks. Defendan t 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, §
235 78)

. 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).)5

Defendant was tried by a jury and convicted of both counts; the jur y 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 defenda nt 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 a ggregate term imposed in the separat e case, SWF 1201846. Defendant timely appealed.
D ISCUSSION 1. Defendant Failed to Establish His Trial Counsel Provided Ineffective Assistance. Following defendant’s arrest in 2011 , his blood was drawn; several days la ter, 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

1 The trial in the present case trailed the later

- charged matter, so he was convicted and provisionally sen tenced on c ase No. SWF1201846 before his jury trial in this matter. The term for the on bail enhancement, which was found true in c ase No. SWF1201846, was stayed pending the outcome in the present case.6

preserve the evidenc e, which was denied. 2 On appeal, defendant a rgues 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 t est: 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. ( Strickl and 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 Te llo (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.

2 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.7

Carrasco (2014) 59 Cal.4th 924, 9 82, 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 fai led 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 t he State has a duty to preserve evidence that pos sesses 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. ( Californ i a v. Trombetta (1984) 467 U.S. 479, 48 9 [81 L.Ed.2d 41 3, 104 S.Ct. 2528].) But neither of these pronouncements establish es 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 co unsel’s failure resulted in prejudice.
D efendant 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, h e 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 h ad 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 minimizing8

his consumption, and (b) he ha d initially admitted to the arresting deputy that he

consum ed 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 b lood alcohol level wo uld 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 failur e 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 sectio n 23152, subdivision (a) , further precluding any possibility of showing prejudice

. Defendant provides no evidence or authority for the assertion that an unu sually high percentage of alcohol in the blood must be a mistake, or for the speculation that

retes ting the sample would re sult in a lower BAC, one which would be exculpat ory . 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 incapaci tating or even fatal. (Vol. 28, Alcohol Al ert (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).)9

Second, defendant makes no showing that, if preserved, a retest of the blood sample would have provide d 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 evidenc e 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 al so, 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 c laim is not properl y before us. ( People v. Cudjo (19 93) 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 c an establish prejudice from trial counsel’s failure to reque st retesting of the blood sample, his claim of ineffective assistance of counsel must fail.10

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 sentenc e 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

. F or count 2, the abstract indicates the court imposed and stayed eight months, o ne - 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 re served 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 necess ary 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 se ntence and is provided to Criminal Investigation and Identification. ( Pen. Code, § 1213, subd. (a).) This court has the

3 The conviction in that case was the subject of another appeal, Peop le v. Snyder, E060990.11

authority to correct clerical errors at any time. ( People v. Mitchell, supra , 26 Cal.4th at pp.186

- 187.) It is incorrect to designat e 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.
D ISPOSITION 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 fo r “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.