P. v. Whitmarsh CA4/1 ( 2013 )

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
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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
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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.
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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.
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IV.
DISPOSITION
The judgment is affirmed.
AARON, J.
WE CONCUR:
HUFFMAN, Acting P. J.
HALLER, J.
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