P. v. Henry
Filed 8/31/09 P. v. Henry 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DARREL SCOTT HENRY, Defendant and Appellant. | E047193 (Super.Ct.No. FSB044545) OPINION |
APPEAL from the Superior Court of San Bernardino County. Ronald M. Christianson, Judge. Affirmed.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
After his first trial ended in a mistrial, defendant Darrell Scott Henry was retried and convicted of gross vehicular manslaughter while intoxicated (Pen. Code, 191.5, subd. (a)), driving under the influence causing injury (Veh. Code, 23153, subd. (b)), driving with a blood alcohol level exceeding .08 percent and causing injury (Veh. Code, 23153, subd. (b)), with allegations as to each count that defendant inflicted great bodily injury. (Pen. Code, 12022.7, subd.(a).) He was sentenced to an aggregate term of nine years in state prison and appealed.
BACKGROUND
Defendant was in a bar when another patron asked the owner of a Viper convertible sports car for a ride in the car. The owner of the car, who knew defendant, gave defendant the keys to the Viper and permitted him to give the other patron a ride in the car. The Viper, with defendant driving, was seen speeding on residential streets when it ran past a stop sign without stopping, and hit a dip in the road, causing the Viper to go into the air and land in the oncoming lane. The Viper then collided with a Chevy S-10 pickup truck coming in the opposite direction.
Defendants passenger died at the scene, and both defendant and the driver of the pickup were injured. The driver of the pickup truck suffered two broken ankles, a broken rib, an injury to her knee requiring sutures, and bumps and bruises. She had several surgeries on one of her fractured ankles. Defendants blood alcohol limit was .18 percent.
Defendant was ultimately charged with gross vehicular manslaughter while intoxicated (Pen. Code, 191.5, subd. (a), count 1), driving under the influence causing injury (Veh. Code, 23153, subd. (b), count 2), driving with a blood alcohol level exceeding .08 percent and causing injury. (Veh. Code, 23153, subd. (b), count 3.) It was further alleged that in the commission of all three counts, defendant personally inflicted great bodily injury on two named victims. (Pen. Code, 12022.7, subd. (a).) Defendants first trial resulted in guilty verdicts, but the trial court granted a motion for new trial on the ground of juror misconduct.
Retrial commenced on September 16, 2008, and ended with convictions on all three counts, as well as true findings on the enhancement allegations. On November 19, 2008, defendant was sentenced to state prison as follows: on count 1, designated the principal term, the court imposed the middle term of six years for the vehicular manslaughter, plus a three-year enhancement for the great bodily injury allegation. The terms imposed for counts 2 and 3, as well as the enhancements for those counts, were stayed. (Pen. Code, 654.) Defendant timely appealed.
DISCUSSION
At his request, this court appointed counsel to represent defendant on appeal. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting that we undertake an independent review of the entire record. We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record.
We have reviewed the record to determine if there is sufficient evidence to support the convictions. There was evidence presented at trial that defendant was drinking in a bar before he took the keys to his friends Viper to give another patron a ride in the car. There was evidence that defendant was traveling at an excessive rate of speed, and lost control of the vehicle after hitting a dip and landing in the oncoming lane of traffic, colliding with a pickup truck. There was evidence that defendants blood alcohol level was .18 percent. It is the province of the jury to pass on the credibility of witnesses in making factual determinations. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) There was substantial evidence to support the jurys verdict that defendant was driving while under the influence, causing injury, property damage, and death. (People v. Johnson (1980) 26 Cal.3d 557, 576.)
Additionally, there was no prejudice caused by the admission of any hearsay evidence. (People v. Watson (1956) 46 Cal.2d 818, 836.) Finally, the denial of the motion to quash and/or traverse the search warrant based on alleged violation of the Federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) was proper. The congressional intent in enacting HIPAA was to prohibit hospital personnel from disclosing protected health care information to third parties by way of subpoena unless certain standards are met. (42 U.S.C. 1320d-1, 1320d-2.) However, search warrants are not subpoenas. While a subpoena may be quashed if compliance would be unreasonable or oppressive (In re Grand Jury Subpoenas (9th Circ. 1991) 926 F.2d 847, 854), a person served with a search warrant may not interfere with the execution of a warrant.
HIPAA does not bar police officers from obtaining information related to a perpetrated crime directly from a patient nor does it prohibit hospital personnel from allowing police officers access to a patient who was a victim of a crime. (Maier v. Green (W.D.La. 2007) 485 F.Supp.2d 711, 720-721.) Nor does it prohibit police officers from executing a properly issued search warrant, nor does it permit hospital personnel to refuse to comply with a search warrant. Indeed, the federal regulations expressly permit such disclosures, Pursuant to process and as otherwise required by law. This standard includes a court order or court-ordered warrant, or a subpoena or summons issued by a judicial officer. . . . (45 C.F.R. 164.512, subd.(f)(1)(ii)(A).)
We have conducted an independent review of the record and find no arguable issues. Defendant was effectively represented by counsel in the trial court as well as on appeal.
DispositioN
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
s/Gaut
J.
We concur:
s/Ramirez
P. J.
s/Miller
J.
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