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The People charged defendant Patronia Salele with aggravated assault (Pen. Code � 245, subd. (a)(1)), battery causing serious bodily injury (Pen. Code � 243, subd. (d)), driving under the influence of alcohol (Veh. Code � 23152, subd. (a)), driving with a blood alcohol level of 0.08 percent or more (Veh. Code � 23152, subd. (b)), and resisting arrest (Pen. Code � 148, subd. (a)(1)). A jury found defendant guilty of all of the charges and determined defendant personally inflicted great bodily injury within the meaning of Penal Code section 12022.7.
On appeal, defendant challenges his misdemeanor convictions for driving under the influence of alcohol (Veh. Code, � 23152, subd. (a)) and for driving with [*2] a blood alcohol level of 0.08 percent or more (Veh. Code, � 23152, subd. (b)). 1 He argues these convictions must be reversed because: (1) the court erroneously admitted a blood sample request form, and a prosecution witness testified by reading from the form; and (2) there was insufficient evidence as to the chain of custody of a vial of defendant's blood. Defendant also asks the court to resolve a discrepancy between the court's oral pronouncement of defendant's probation conditions and the probation order and minute order in the clerk's transcript.
FOOTNOTES
1 Although this appeal concerns two misdemeanor convictions, it is a felony case and we have jurisdiction. (Pen. Code � 1235, subd. (b) [appeal from a judgment or appealable order in a "felony case" is taken to the Court of Appeal]; Pen. Code � 691, subd. (f) ["'Felony case' means "a criminal action in which a felony is charged and includes a criminal action in which a misdemeanor or infraction is charged in conjunction with a felony"]; Cal. Rules of Court, rule 8.304(a)(2).)
We clarify the discrepancy and we affirm.
FACTS
Defendant does not challenge his convictions for aggravated assault, battery causing serious bodily injury, or resisting [*3] arrest, nor the jury's finding that he inflicted great bodily injury. As a result, we recite only the facts relating to the defendant's convictions for violating Vehicle Code section 23152, subdivision (a) (section 23152(a)) and Vehicle Code section 23152, subdivision (b) (section 23152(b)).
The Incident
In February 2006, defendant and his then girlfriend, Iuni Ross, were living together in an apartment in San Bernardino. On February 21, defendant came home from work at 5:30 p.m. and began to drink. Ross saw defendant drink three or four bottles of beer in the span of one to two hours. A short while later, defendant and Ross had a disagreement and, for unexplained reasons, they decided to take a drive in their pickup truck. As Ross drove the truck, the argument escalated and defendant decided Ross should spend the night at her sister's house in Yorba Linda. Ross then drove the truck to her sister's house.
They arrived at Ross's sister's house at approximately 9:00 p.m. Defendant got out of the truck and knocked on the front door while Ross waited in the car. Ross's nephew, Danny M., answered the door. He noticed defendant's eyes were watery and that he smelled like beer. Shortly after [*4] Danny answered the door, the two men exchanged accusations and got into a physical altercation that left Danny with a broken jaw. Ross and defendant then left the house. Ross drove the truck for a few minutes but later asked defendant to drive because she had a headache and blurry vision. Defendant drove for about 10 minutes, apparently until Ross felt better.
Justin Morouse, a Brea police officer, was in his patrol car when he noticed the truck roll to a stop in the middle of a lane of traffic in a posted "no stopping" zone. Morouse saw defendant get out of the truck, stagger around the front (using his right arm and the hood of the vehicle for support) and get into the passenger side. Ross then moved to the driver's seat and resumed driving. As soon as Ross resumed driving, Morouse stopped the truck and asked Ross and defendant for their driver's licenses. Defendant had a "great deal of difficulty" removing his license from his wallet. As he spoke with defendant, Morouse noticed that defendant's speech was "slow, fumbled and slurred," and that he smelled of alcohol. Morouse also noticed that defendant's eyes were bloodshot and watery. Defendant told Morouse, "I am just drunk, I am [*5] just drunk." When defendant spoke, Morouse smelled alcohol "very strongly" on defendant's breath. Ross told Morouse that defendant had been driving the truck. Morouse then conducted a DUI investigation and decided to arrest defendant for driving under the influence of alcohol because he concluded defendant was "impaired while operating a motor vehicle." After a struggle, Morouse and other police officers arrested defendant at approximately 10:30 p.m. and took him to the hospital.
Trial Testimony Concerning the Blood Draw and Blood Alcohol Test
Morouse testified that he watched Dale Wilson, a licensed vocational nurse and blood technician, draw blood from defendant at 11:54 p.m. and place it into vial number 496009. Wilson testified next. He described the procedures he follows each time he takes a blood sample: First, he draws the blood and places it into a vial. Then he seals and labels the vial. He then puts the vial into an envelope and seals the back flap of the envelope. Wilson signs and dates the seal, and has the arresting officer initial it. Wilson follows these procedures in "every single case."
Wilson conceded he did not remember drawing blood from defendant. In response, the [*6] prosecutor showed Wilson a blood sample request form to refresh his recollection. Wilson reviewed the form and testified he recognized it and that he filled it out. Wilson stated that defendant's name is on the form and that he drew blood from defendant. Defendant objected to Wilson's testimony on hearsay and foundational grounds but the court overruled the objections. Wilson then testified that the blood sample request form contains the date, time, and location of the blood draw and the vial number.
The blood sample request form does not contain any information regarding the sealing and transportation of the vial. Wilson testified he drew the blood, sealed and marked the vial and had Morouse initial the seal, all in accordance with his training. Finally, Wilson stated that he transported the vial to the Orange County Criminal Laboratory and placed it in the evidence locker.
On cross-examination, Wilson admitted he did not have an independent recollection of drawing blood from defendant and that reviewing the blood sample request form did not refresh his recollection about drawing defendant's blood. At the conclusion of Wilson's testimony, defense counsel "ma[de] a motion to strike, [*7] for the record, Mr. Wilson's testimony on foundation, hearsay grounds, competency grounds, no personal knowledge grounds, [and] basically the whole code." Counsel also objected to all testimony Wilson read from the form. The court denied the motion to strike and admitted the blood sample request form into evidence over defense counsel's objections.
Ronald Moore, senior forensic scientist for the Orange County Sheriff's Department Crime Lab, testified for the prosecution. He explained that he analyzed the blood sample in vial number 496009 on February 22, 2006 for alcohol content and recorded the result -- 0.16 percent -- on a forensic alcohol examination Report (the Report) issued by the Orange County Sheriff's Crime Laboratory. In the upper left hand corner of the Report, in small print, are the words: "Report Preparation Date" "2/22/2006." Beneath that information is "BAIN" "(Vial # ) "496009." Farther down the page is defendant's name, his driver's license number, and his date of birth. Then, under "Arresting (witnessing) Officer(s)" is "J. Morouse" and a signature. Directly beneath Morouse's name and the signature, there is a space for "Person drawing blood sample" and the name "Dale [*8] Wilson." The time of the blood draw is listed as "2/21/06" at "2354" and the location of the blood draw is listed as "PLH." Next, there is a space for "Placed in FSS Locker" with the initials "DW" and "2/22/06" at "0510." Below that information is a space for "Laboratory Analytical Results." That section contains the names of the two analysts, the results, the analysts' signatures, and a statement of certification.
The prosecution moved the Report into evidence without objection. Moore then explained that all drivers with a blood alcohol level of 0.08 percent are "impair[ed] to the point where they [are] not safe to drive a motor vehicle." Moore stated that alcohol impairs a person's judgment, balance and coordination. Finally, Moore testified that defendant's blood alcohol level at the time he drove would have been 0.18 or 0.19 percent.
Sentencing
A jury found defendant guilty of all of the charges and the court sentenced him to one year in jail and three years formal probation. At the sentencing hearing, the court informed defendant of the conditions of his probation, one of which was "not to use or possess or be under the influence of any drugs." The corresponding condition in the [*9] probation order and minute order, however, orders defendant "[u]se no unauthorized drugs, narcotics, or controlled substances."
DISCUSSION
Any Error in Admitting the Blood Sample Request Form, and Allowing Wilson to Testify About the Contents of the Form, Was Harmless
Defendant first contends the admission of the blood sample request form was an abuse of discretion because the form was inadmissible hearsay and because the admission of a copy of the form, rather than the original, violated the secondary evidence rule. According to defendant, the blood sample request form was the only evidence linking the blood sample to defendant and without the blood sample, there is insufficient evidence to support his convictions for violating section 23152(a) and (b). We disagree.
We begin with defendant's conviction for violating section 23152(a), which provides, "It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle." A defendant is "under the influence" of alcohol within the meaning of section 23152(a) when the alcohol has "'so far affected the nervous system, the brain or [*10] muscles as to impair to an appreciable degree the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties.'" (People v. Enriquez (1996) 42 Cal.App.4th 661, 665, italics omitted.)
The People may prove a defendant is "under the influence" by circumstantial evidence (People v. Dingle (1922) 56 Cal.App. 445, 447-449, superseded by statute on another point in People v. Weathington (1991) 231 Cal.App.3d 69 [car zigzagged; defendant staggered, talked loudly, and smelled of alcohol]) and by "[e]vidence of intoxication tests . . . ." (2 Witkin & Epstein, Cal. Criminal Law, (3d ed. 2000) Crimes Against Public Peace and Welfare, � 209, p. 748; Veh. Code � 23610, subd. (a)(3) ["If there was at that time 0.08 percent or more, by weight, of alcohol in the person's blood, it shall be presumed that the person was under the influence of an alcoholic beverage at the time of the alleged offense"].)
Assuming the court erred in allowing Wilson to testify about the information on the blood sample request form and by admitting the form into evidence, 2 defendant cannot establish prejudice because there is ample evidence in the record [*11] that defendant drove a vehicle while under the influence of alcohol in violation of section 23152(a). (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Percelle (2005) 126 Cal.App.4th 164, 182-183 [error in admitting document under business records exception was not prejudicial where the "prosecution had extremely strong evidence" against defendant].) Morouse testified defendant stopped the truck in the middle of a lane of traffic and "staggered" out of it. Danny and Morouse stated that defendant's eyes were bloodshot and watery and that he smelled of alcohol. Morouse described defendant's speech as "slurred" and explained that defendant had difficulty mustering the coordination to remove his driver's license from his wallet. In light of this overwhelming evidence, the prosecution did not need to rely on the results of the blood alcohol test to prove defendant was "under the influence" of alcohol when he drove the truck. And because there was sufficient evidence to establish defendant violated section 23152(a), any error in admitting the blood sample request form and allowing Wilson to testify to the contents of the form was harmless.
FOOTNOTES
2 The necessary foundation was absent for admission [*12] of the evidence under either the business records exception to the hearsay rule (Evid. Code, � 1271), or the official records exception (Evid. Code, � 1280). Nor did the prosecutor attempt to admit Wilson's testimony about the content of the form as his past recollection recorded. (Evid. Code, � 1237.)
We turn next to defendant's conviction for violating section 23152(b). That statute makes it "unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle." Defendant reprises his argument that the court erroneously admitted the blood sample request form and the testimony Wilson read from the form. Following defendant's logic, "without the blood sample request form to link [defendant] to the blood-sample, the jury could not have convicted because no other evidence showed that his blood alcohol level was at or above 0.08."
Not so. There is sufficient evidence, indeed overwhelming evidence, without the blood sample request form and the testimony Wilson apparently read from it, to establish defendant violated section 23152(b). Morouse testified that he watched Wilson draw blood from defendant and place it into vial number 496009. Without [*13] looking at the blood sample request form, Wilson stated he drew blood from defendant, marked and sealed the vial containing the blood, and had Morouse initial the seal. Wilson then explained that he placed the vial in an evidence locker at the Orange County Criminal Laboratory. Moore testified he retrieved the vial from the evidence locker, tested the blood for alcohol content, and recorded the result on the Report. The Report, which lists defendant's name, his date of birth, the vial number, and the time and date of the blood draw, was admitted into evidence without objection. Finally, Moore noted that defendant's blood alcohol level would have been 0.18 or 0.19 percent when defendant was arrested. This evidence is more than sufficient to link defendant to vial 496009 and to demonstrate defendant had a blood alcohol level of at least 0.08 percent when he drove the truck. Accordingly, defendant was not prejudiced when the court allowed Wilson to testify about the contents of the blood sample request form and admitted the form into evidence.
Defendant Forfeited His Chain of Custody Argument by Failing to Object in the Court Below
Next, defendant contends his convictions for violating section 23152(a) [*14] and section 23152(b) must be reversed because "the blood sample itself is missing a vital link in the chain of custody." Specifically, defendant argues "no evidence proved who controlled the vial from the time the officer last saw the blood technician to the time when the vial appeared at the Orange County Sherriff's Crime Lab." The People argue defendant forfeited this argument because he did not raise an objection to the prosecution's chain of custody showing at trial. We agree. "Objections related to the chain of custody are waived if not timely asserted." (People v. Baldine (2001) 94 Cal.App.4th 773, 779; see also Evid. Code � 353, subd. (a).) Here, defense counsel did not make a chain of custody objection when Moore, who retrieved the vial from the evidence locker and tested the blood, testified. As a result, defendant forfeited the chain of custody issue on appeal.
In any event, we do not believe defense counsel would have prevailed in excluding the blood sample on chain of custody grounds had counsel raised a timely objection below. As noted above, Morouse testified that he watched Wilson draw blood from defendant and place it in vial number 496009. Wilson testified that he transported [*15] the vial to the Orange County Criminal Laboratory and placed it in the evidence locker. Moore testified defendant's name is linked to vial number 496009. He also testified about the protocol he follows in every case when he tests a blood sample. He explained, "The blood samples are dropped off at the Sheriff's Crime Lab [and placed] into a locked refrigerator on our first floor. We retrieve them every morning, open them, make sure the information on the vial matches what's on the envelope, and then we issue . . . new numbers for tracking them at the laboratory. [P] The envelopes are sent to our clerical unit to be scanned so they can appear on the report. The blood vials are taken across the laboratory to be analyzed." Moore also testified there were no deficiencies in the chain of custody of the vial number 496009.
Because the record shows no vital break in the chain of custody, defendant's argument does not provide a basis for reversal. (See People v. Lucas (1995) 12 Cal.4th 415, 445-446.)
The Probation Condition in the Clerk's Transcript Prevails over the Court's Oral Statement at the Sentencing Hearing
As noted above, the court sentenced defendant to three years probation. At the [*16] sentencing hearing, the court informed defendant of the conditions of his probation, one of which was "you're not to use or possess or be under the influence of any drugs." The language in the probation order and minute order, however, is slightly different. In the probation order and minute order defendant is ordered to "[u]se no unauthorized drugs, narcotics, or controlled substances." Defendant asks us to resolve the discrepancy.
"As a general rule, a record that is in conflict will be harmonized if possible. [Citation.] If it cannot be harmonized, whether one portion of the record should prevail as against contrary statements in another portion of the record will depend on the circumstances of each particular case." (People v. Harrison (2005) 35 Cal.4th 208, 226; see also People v. Malabag (1997) 51 Cal.App.4th 1419, 1422-1423 ["When a clerk's transcript conflicts with a reporter's transcript, the question of which of the two controls is determined by consideration of the circumstances of each case"].)
Here, the minute order prevails over the reporter's transcript for two reasons. (People v. Cleveland (2004) 32 Cal.4th 704, 768; People v. Smith (1983) 33 Cal.3d 596, 599.) First, [*17] it appears that the sentencing judge paraphrased the probation conditions at the hearing rather than reading them from the probation order. Second, were we to conclude the court's oral pronouncement controlled over the conflicting written order, we would be forced to modify the oral pronouncement to preclude defendant from using unauthorized or illegal drugs because the oral pronouncement prevents defendant from using or possessing any drug, whether legal or not.
DISPOSITION
The judgment is affirmed.
IKOLA, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
MOORE, J.
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