P. v. Whitmarsh CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCE319316
- Trial judge
- Roger W. Krauel
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Cynthia Aaron (author), Richard D. Huffman, Sr., Judith L. Haller
Analysis
The trial court dismissed a seated juror who requested to be excused due to bias against law enforcement, and subsequently sentenced the defendant to probation with a 270-day jail term after a jury conviction for DUI causing bodily injury. The appellate court affirmed the judgment, finding no error in the record after an independent review pursuant to People v. Wende.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Dismissal of a seated juror who requested to be excused due to personal bias against law enforcement.“The trial court asked the juror whether thoughts about the circumstances surrounding her father's death would 'interfere with your ability to listen to the evidence and to deliberate with your fellow jurors . . .' The juror responded, 'I think it would. I really sincerely believe it would.' The court dismissed the juror, over defense counsel's objection.” | unclear | not reached | unsure The appellate court did not apply a specific standard of review (such as abuse of discretion) to the juror dismissal. Instead, it conducted an independent review of the record pursuant to People v. Wende and concluded that the issue was not 'reasonably arguable,' effectively finding no error without detailed legal analysis. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Mandates that appointed appellate counsel must review the record for error and file a brief if no arguable issues are found, or the court must conduct its own review.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires counsel to identify potentially arguable issues in a brief when no substantial issues exist, allowing the court to review the record independently.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it correctly follows the Wende/Anders protocol for reviewing a case where counsel finds no arguable issues. However, it is a 'sound with gaps' opinion because it fails to provide any legal analysis or standard of review for the specific juror dismissal issue, merely stating that no error was disclosed without explaining why the trial court's decision was legally correct.
How this analysis was made · dispute it
unusual disposition unusual dispositionA jury convicted Whitmarsh of driving under the influence causing bodily injury (Veh. Code, § 23153, subd. (a)) and acquitted him of driving with a .08 percent blood alcohol level causing injury; the trial court suspended imposition of sentence, placed him on five years' formal probation with 270 days in custody, and, before trial, had dismissed a seated juror over defense objection after she said a family trauma would bias her against law enforcement. On appeal counsel filed a Wende brief identifying the juror dismissal as a possible issue, Whitmarsh filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no reasonably arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Dismissal of a seated juror, over defense objection, after she asked to be excused because her father's alcohol-related death would prevent her from being unbiased toward law enforcement and from deliberating“The court dismissed the juror, over defense counsel's objection.” | unclear | correct | agree with court The opinion does not state a standard, but discharge of a juror for good cause is reviewed for abuse of discretion and the record must show the inability to perform as a demonstrable reality. Here the juror herself stated she could not be unbiased toward law enforcement and, when asked whether it would interfere with her ability to listen to evidence and deliberate, answered, 'I think it would. I really sincerely believe it would.' That is an express, unequivocal admission of actual bias and inability to deliberate, which supports discharge; the court's conclusion that the issue is not reasonably arguable is well supported. |
Judgment of conviction and grant of probation reviewed under Wende/Anders for any arguable error“A review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, including the possible issue listed pursuant to Anders, has disclosed no reasonably arguable appellate issues.” | unclear | correct | agree with court The court followed the required Wende procedure: counsel filed a no-issue brief with an Anders issue, the defendant was given the opportunity to file a supplemental brief and did not, and the court independently reviewed the record. The opinion recites the facts, procedural history, the offense, and the disposition, and the evidence described (crossing a double-yellow line into a head-on collision, odor of alcohol, glassy eyes, slurred speech, nystagmus, .06 BAC at 8:10 p.m. with retrograde extrapolation to .082–.09) amply supports the section 23153(a) verdict. Nothing in the record as described suggests an arguable issue. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record for error before affirming.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous may so advise the court and file a brief referring to anything in the record that might arguably support the appeal; the court then decides whether the case is frivolous.
The appellate opinion: sound — The opinion correctly applies the Wende/Anders procedure, giving the defendant a chance to file a supplemental brief, identifying the one possible issue, and independently reviewing the record, and it recites enough of the facts and procedure to satisfy the requirements for such an opinion. The juror-dismissal issue is plainly not arguable given the juror's express statements of bias and inability to deliberate, so the summary treatment reaches the right result.
Opinion
Filed 8/9/13 P. v. Whitmarsh CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
D063037 THE PEOPLE,
Plaintiff and Respondent, (Super. Ct. No. SCE319316)
v.
MATTHEW EVAN WHITMARSH,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Roger W.
Krauel, Judge. Affirmed.
Bird Rock Law Group and Andrea Susan Bitar for Defendant and Appellant.
No appearance for Plaintiff and Respondent. I.
INTRODUCTION
A jury found Matthew Evan Whitmarsh guilty of driving under the influence and causing bodily injury (Veh. Code, § 23153, subd. (a))1 (count 1) and not guilty of driving with a blood alcohol level of .08 percent and causing bodily injury (§ 23153, subd. (b))
(count 2). The trial court suspended imposition of sentence and placed Whitmarsh on five years' formal probation subject to various conditions, including that he serve 270 days in the custody of the sheriff.2 We affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The trial 1. The trial court's dismissal of juror After the court and the parties had selected a jury, a seated juror asked to be excused. The juror stated that after she was selected as a juror the previous day, she had reflected on a traumatic experience that she believed would interfere with her ability to serve as a juror. The juror explained that her father had been an alcoholic who had died in a car accident. According to the juror, her uncles suspected "that the police had planted beer bottles in his truck," and "the autopsy . . . revealed that there was no alcohol in his 1 Unless otherwise specified, all subsequent statutory references are to the Vehicle Code.
2 Twenty-one days after the sentencing hearing, the trial court ordered Whitmarsh released from custody. 2 system." The juror stated, "I really do not believe that I would be able to be nonbiased to law enforcement" in light of the incident. The trial court asked the juror whether thoughts about the circumstances surrounding her father's death would "interfere with your ability to listen to the evidence and to deliberate with your fellow jurors . . . ." The juror responded, "I think it would. I really sincerely believe it would." The court dismissed the juror, over defense counsel's objection.
2. The People's evidence On February 17, 2012, at approximately 6:38 p.m., while driving on a two-lane road with a double-yellow line separating traffic, Whitmarsh crossed over the double- yellow line in an attempt to pass a car. Whitmarsh's car collided head-on with a car travelling in the opposite direction. The occupant of the other car suffered injuries from the collision, including bruised knees, lacerations to her arms, and injuries to her back and hip.
California Highway Patrol Officer Eduardo Aguirre responded to the scene at 6:52 p.m. When Officer Aguirre approached Whitmarsh, Aguirre detected a strong odor of alcohol on Whitmarsh's breath and noted that his eyes appeared glassy. Whitmarsh told Officer Aguirre that he had drunk one beer at approximately 6:00 p.m. that evening.
Officer Aguirre determined that Whitmarsh's speech was a "little slurred." Aguirre 3 conducted a horizontal gaze nystagmus test, and detected a lack of smooth pursuit of Whitmarsh's eyes.3 Paramedics transported Whitmarsh to the hospital. At 8:10 p.m. that evening, Officer Aguirre observed a phlebotomist draw a sample of Whitmarsh's blood. A criminalist with the San Diego County Crime Laboratory tested Whitmarsh's blood, and reported that Whitmarsh had a .06 percent blood alcohol level at the time the sample was taken. The criminalist stated that in his opinion, a 210-pound4 male would have had a blood alcohol level of between .082 and .09 percent at approximately 6:38 p.m. on the evening that the sample was taken.
c. The defense Whitmarsh testified that he drank one 24-ounce beer before driving on the night in question. A private clinical laboratory scientist retested Whitmarsh's blood, and reported that he had a .05 percent blood alcohol level. The scientist stated that in his opinion a person who consumed a 24-ounce beer between 5:30 and 6:10 p.m., who was involved in a head-on collision at around 6:40 p.m., likely would have reached a peak blood alcohol level at approximately 8:10 p.m.
3 Officer Aguirre explained that "involuntary jerking, movement of the eye," is generally present when a person has consumed alcohol.
4 The People presented evidence that Whitmarsh weighed approximately 210 pounds. 4 2. The appeal On appeal, Whitmarsh's appointed appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). After counsel filed a Wende brief, this court granted Whitmarsh the opportunity to file a supplemental brief on his own behalf.
Whitmarsh has not filed a supplemental brief.
III.
DISCUSSION
A review of the record discloses no error In his brief on appeal, Whitmarsh's counsel presents no argument for reversal, but asks this court to review the record for error, as mandated by Wende, supra, 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), counsel lists as a possible, but not arguable, issue: "Should the court have dismissed a juror who asked to be excused?"
A review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, including the possible issue listed pursuant to Anders, has disclosed no reasonably arguable appellate issues. Whitmarsh has been competently represented by counsel on this appeal.
5 IV.
DISPOSITION
The judgment is affirmed.
AARON, J.
WE CONCUR:
HUFFMAN, Acting P. J.
HALLER, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12