P. v. Lopez 8/31/09 CA4/1

SUPREME COURT CASES

Laws-info.com » Cases » California » Court of Appeal » 2009 » P. v. Lopez 8/31/09 CA4/1

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: D052885A

Case Date: 12/03/2009

Preview:Filed 8/31/09; on transfer from Supreme Ct.

OPINION AFTER TRANSFER FROM THE CALIFORNIA SUPREME COURT CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent, v. VIRGINIA HERNANDEZ LOPEZ, Defendant and Appellant.

D052885

(Super. Ct. No. SCE274145)

APPEAL from a judgment of the Superior Court of San Diego County, Lantz Lewis, Judge. Reversed.

Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lynne McGinnis and Gil Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Virginia Hernandez Lopez of committing vehicular manslaughter while intoxicated in violation of Penal Code section 191.5, subdivision (b). Lopez appeals, contending the admission into evidence of a blood alcohol laboratory report violated her constitutional right to confrontation of witnesses by allowing testimonial hearsay evidence prohibited under Crawford v. Washington (2004) 541 U.S. 36. We reverse the judgment. On May 11, 2009, this court filed an opinion affirming the judgment in this case. On July 22, 2009, the California Supreme Court granted a petition for review and issued the following order: "The cause is transferred to the Court of Appeal, Fourth Appellate District, Division One, with directions to vacate its judgment and to reconsider the matter in light of Melendez-Diaz v. Massachusetts (June 25, 2009, No. 07-591) ___ U.S. ___, 2009 WL 1789468." In compliance with the order of the Supreme Court, the opinion filed May 11, 2009, is vacated and we issue this new opinion. FACTS On August 18, 2007, Lopez worked the evening shift at a restaurant in Julian, California. During the evening, she drank at least three shots of tequila. Shortly after consuming the last shot, Lopez left the restaurant and drove westbound on State Route 78, a narrow, curving road. At the same time, Allan Wolowsky was driving eastbound on State Route 78. Lopez veered into the driver's side of Wolowsky's pickup truck, pushing his truck into a tree; and as a result Wolowsky died. An ambulance took Lopez to a nearby church and from there a helicopter took her to a hospital. She suffered facial injuries and a broken leg. Her injuries prevented 2

investigating Officer Pirko from administering a preliminary alcohol screening. At the hospital, two hours after the collision, Officer Pirko observed phlebotomist, Trevin Tuovinen, draw two vials of blood from Lopez at 1:04 a.m. and seal them in an evidence envelope. Officer Pirko transported the vials to a police station in Oceanside where they were placed in evidence storage. Later, the vials were transferred to the San Diego County Sheriff's Crime Laboratory. On August 28, 2007, Brian Constantino in the San Diego County Sheriff's Crime Laboratory received Lopez's blood samples from the Oceanside station. The San Diego office was beta testing a system for processing evidence. Generally, chain of custody papers accompany a locked evidence box. Under the new system, each item of evidence received individual chain of custody information. As a result, the People did not present chain of custody documentation for an evidence box containing Lopez's blood samples, but presented documentation for the individual blood samples. Jorge Pe

Download P. v. Lopez 8/31/09 CA4/1.pdf