Opinion
F072435
11-20-2017
THE PEOPLE, Plaintiff and Respondent, v. EDWIN QUINTANILLA, Defendant and Appellant.
David Reagan for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF158608A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Michael B. Lewis and Eric Bradshaw, Judges. David Reagan for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
Judge Lewis ruled on the motion to suppress; Judge Bradshaw presided at trial and sentencing.
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INTRODUCTION
On July 27, 2015, a jury found defendant Edwin Quintanilla guilty as follows: count 1, driving under the influence of alcohol causing bodily injury pursuant to Vehicle Code section 23153, subdivision (a); count 2, driving under the influence with a blood-alcohol content of 0.08 percent or more and causing bodily injury in violation of section 23153, subdivision (b); and count 3, an infraction for making an unsafe turn. The jury also found defendant guilty of inflicting great bodily injury to Yesenia Rivera pursuant to Penal Code section 12022.7, subdivision (a), and causing great bodily injury to more than one person, Maria Del Carmen Contreras, pursuant to section 23558, as to counts 1 and 2.
All statutory references are to the Vehicle Code unless otherwise indicated.
On September 24, 2015, the trial court sentenced defendant to the lower term of 16 months for count 1, enhanced by three years pursuant to Penal Code section 12022.7, subdivision (a), and one year pursuant to section 23558. The same sentence was imposed for count 2, but was stayed pursuant to Penal Code section 654. With respect to count 3, the court imposed a fine, which it converted to 11 days of prison time to be served concurrently with the sentence in count 1. Defendant's aggregate sentence is five years four months.
On appeal defendant contends there was insufficient evidence to satisfy the corpus delicti of a violation of section 23153, subdivisions (a) and (b). Defendant also argues the trial court erroneously denied his motion to suppress his warrantless blood draw.
FACTS
On December 7, 2014, defendant was driving southbound on H Street in Bakersfield, California. The area consisted of two lanes traveling southbound and two lanes traveling northbound, separated by a center median. The median consisted of raised concrete with trees and "river-like rocks" on it.
Defendant's friend, Maria Del Carmen Contreras, was sitting in the front passenger's seat. Contreras was looking down at her phone, looking for an address. Defendant was initially driving in the right lane. When he attempted to merge into the left lane, Contreras turned around and noticed a black car traveling behind them was not going to yield for defendant. In an attempt to avoid a collision, defendant drove onto the median and struck a tree. Contreras's airbag deployed, hitting her chest and pushing her back. Her right arm and shoulder were injured, but she was still able to move her arm. She did not feel any pain from the seatbelt. She had scratches on the side of her face. Despite her injuries, Contreras was more concerned about defendant, who had lost consciousness. A man helped Contreras out of the vehicle and Susan Martinez, who had been driving on the northbound side of H street, rushed over to Contreras and put a towel over her bleeding forehead.
Saturino Rivera Santiago was driving on the northbound side of H street. Santiago's wife, Teresa Ortega, was seated beside him in the passenger's seat. Their daughter, Yesenia, sat behind Ortega in the rear passenger's seat. Prior to the crash, Ortega saw defendant's vehicle moving fast towards them, but was unable to warn Santiago in time. Ortega heard defendant crash into the tree and noticed something flew from his vehicle, hitting her windshield and shattering it, but she did not know what it was. Glass shattered everywhere and flew into Ortega's and Santiago's mouths. She felt a small amount of blood in her mouth, but stated that it only hurt "a little." She did not have any other injuries. In the back seat, Yesenia also heard something break and then felt something hit her. She felt pain and fainted. Ortega turned around and saw blood flowing from Yesenia's forehead. Ortega thought Yesenia had died.
Yesenia was later evaluated at the Kern Medical Center trauma center. She had an approximately three-inch laceration on her forehead and eye area. A CT scan revealed fractures underneath the laceration on the bone of the frontal area of her face and on the back and frontal sinuses. She also had a small opening in the dural sac, exposing her brain to a "tiny" air bubble. The laceration across her forehead required stitches, but the dural sac tear did not require intervention.
Eyewitness Susan Martinez's Testimony
Martinez was driving behind Ortega's vehicle in the northbound lane when she looked to her left and saw defendant's vehicle swerve and hit a tree. Before seeing defendant's vehicle, she saw another vehicle pass by in the southbound lane. She did not see the vehicle stop at the scene. She could not estimate defendant's speed and did not see the entire accident. She only saw defendant's vehicle hit the curb of the median and wrap around the tree. Debris from the collision flew in front of her vehicle. She pulled over to the right and assisted Contreras with her bleeding forehead.
Law Enforcement Investigation
Police service technician Amparo Rivera of the Bakersfield Police Department was dispatched to the scene of the accident. As a police service technician, her function was to assist the officers investigating collisions. Rivera had taken a series of courses in traffic collisions as part of her training. In 2007, she took a 40-hour course in auto sketch computer diagrams and a 40-hour course in basic traffic collisions. In 2009, she took a 40-hour intermediate course in collisions. In 2014, she took a basic team course in collisions. In addition, she took monthly courses with the Bakersfield Police Department. She estimated she had responded to approximately 1,000 collisions since her date of hire and had handled approximately 15 driving under the influence (DUI) related collisions.
When she arrived, Rivera saw defendant's vehicle, a silver Pontiac, wrapped around a tree in the center median on H Street near the intersection with Lacy Street; H Street has two northbound and two southbound lanes. Ortega's vehicle, a light-colored Jeep, was approximately 80 feet north of the collision site. Rivera stepped back 80 feet and photographed the scene. She saw sideways skid marks she described as a "yaw type of skid" because it had an arc. The skid marks began at the number two, or right-hand, southbound lane, impacted the curb, and continued to where defendant's vehicle was at rest in the center median. The skid marks indicated defendant had lost control of his vehicle.
Based on the skid marks, which were about 40 feet long, Rivera determined defendant's vehicle was southbound in the number two lane when it lost control and crossed the number one, or left-hand, lane before impacting the median. The Jeep had been traveling northbound in the lane closest to the median. The Jeep windshield had a large hole on the driver's side and damage to the driver's side door. A rock consistent with those in the center median was in the rear cargo section of the Jeep.
Rivera's photographs depicting the accident scene were admitted into evidence and shown to the jury. A video of the accident scene was also shown to the jury. Rivera explained there was debris in the northbound lanes 25 to 30 feet from defendant's car, including tree limbs and rocks from the center median. There were 15 to 20 small rocks in the northbound lanes and three or four larger ones. A portion of defendant's left bumper was in the northbound number two lane. There were also rocks and tree branches in the two northbound lanes. There was a Budweiser beer can in the median on the passenger side of defendant's vehicle.
Officer Casey Grogan worked as a law enforcement officer for 21 years. After finishing the basic police academy in 1993, he worked as a park ranger for Kern County, a police officer with the City of Shafter, and an officer for the Bakersfield Police Department. Grogan had experience with DUI arrests, was trained by the California Highway Patrol pertaining to the DUI law, attended a basic traffic collision investigation course early in his career, and took a more specialized course from the Los Angeles Police Department covering field sobriety tests and recognizing drivers under the influence. Grogan attended other classes in drug recognition. Grogan also attended a 40-hour intermediate traffic accident investigation course. Grogan had been assigned to the traffic unit of the Bakersfield Police Department where he was a traffic officer.
Grogan was familiar with the scene of the accident, had investigated other accidents there, and had used LiDar to enforce the speed limit. Grogan explained that among the factors affecting a safe driving speed were the number of lanes and whether there were residential side streets leading onto South H Street. There were several such streets on South H Street, including Lacy Street. All of the residential streets in the area have speed limits of 25 miles per hour. Grogan noted another factor affecting a safe speed of travel is the fact there are traffic signals on South H Street, meaning cars have to stop.
Grogan then referred to the residential side streets leading to a cross street like South H Street as being 45 miles per hour. We agree with the Attorney General's observation that this is either an error in transcription or Grogan misspoke. Grogan did not testify at trial to the posted speed limit on South H Street because the trial court granted defendant's motion to exclude reference to the posted speed limit because the prosecutor had failed to submit a traffic survey of the street. In his preliminary hearing testimony, Grogan testified the posted speed limit on South H Street was 40 miles per hour.
In Grogan's experience, crashes involving the median occur when a driver drifts to the left, putting the vehicle's tires in contact with the median. If the driver is "going really fast," the median will often "suck the car up" onto the median. Grogan conceded he did not have specialized traffic reconstruction training but did have training on how speed is a factor in collisions. Defendant told Grogan he was traveling between 60 and 65 miles per hour on South H Street. Based on the location of the crash, which included residential side streets, Grogan opined any speed over 50 miles per hour was unsafe for that road and travel at 60 to 65 miles per hour was unsafe. Based on the amount of damage to defendant's car, the skid marks, and the destruction of a tree, Grogan concluded that speed was a factor in defendant's crash.
Officer Grogan arrived at the scene of the accident at 3:24 p.m. When he arrived, he saw defendant's vehicle in the center median. He also saw Ortega's vehicle stopped in the number one northbound lane with a broken windshield. As he walked up to the collision, he saw defendant lying on the center median, being tended to by medical personnel. They were attaching a neck brace on him. Grogan attempted to ask defendant questions, but defendant was only able to provide his name. Defendant appeared to be in pain and was "uncommunicative." Minutes later, Grogan heard defendant communicating with medical staff. Grogan noticed defendant had bloodshot eyes, slurred speech, and smelled of alcohol. He got close to defendant's face and could smell alcohol on his breath. Officer Grogan spoke with Contreras, who was on the other side of defendant's vehicle. She told him defendant had been the driver of their vehicle. He observed numerous small cuts on her face.
Shortly after, defendant was placed in an ambulance and taken to Kern Medical Center. Officer Grogan followed the ambulance to the hospital where he continued his investigation. He estimated 30 minutes had passed from the time he first noticed defendant's symptoms of intoxication to the time he talked to him at the hospital. Grogan interrogated defendant at the hospital, while nurses tended to him. No other officers were present with Grogan. Defendant stated he was aware he had been in an accident and was at the hospital. Defendant told Grogan he had been traveling between 60 and 65 miles per hour just prior to the collision and had consumed six to eight beers. Grogan stated that based on the totality of the circumstances—defendant's slurred speech; red, bloodshot, watery eyes; and the smell of alcohol on his breath—he believed defendant was intoxicated. Accordingly, he placed defendant under arrest for DUI and gave defendant advisements for implied consent and pursuant to California v. Trombetta (1984) 467 U.S. 479 (Trombetta). After he was arrested, defendant consented to a preliminary alcohol screening (PAS) test and a blood draw to determine his blood-alcohol content (BAC). A registered nurse drew his blood at the hospital. The breath test revealed defendant had a BAC of 0.11 percent and the blood test showed a BAC of 0.167 percent. Officer Grogan did not obtain a warrant prior to the blood draw.
See California v. Trombetta, supra, 467 U.S. 479 and the advisement required by section 23614, which states a person who chooses to submit to a breath test shall be advised before or after the test that the breath-testing equipment does not retain any sample of the breath and that no breath sample will be available after the test that could be analyzed later by that person or any other person. The person shall also be advised that, because no breath sample is retained, the person will be given an opportunity to provide a blood or urine sample that will be retained at no cost to the person so that it may be subsequently analyzed by either party in a criminal prosecution for the alcoholic content of the person's blood.
DISCUSSION
I. Corpus Delicti of Section 23153
Defendant was convicted of violating section 23153, subdivisions (a) and (b). Section 23153, subdivision (a) states that it is "unlawful for a person, while under the influence of any alcoholic beverage, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver."
The prosecution's theory was that defendant's illegal act forming the basis for a violation of section 23153, subdivisions (a) and (b) was driving at a speed that was not reasonably safe for the conditions in violation of section 22350. Defendant contends his convictions should be reversed because there was no independent evidence he was driving at a speed that was not reasonably safe for the conditions, and the only evidence that existed was an out-of-court statement he made to an investigating officer, telling him he was traveling 60 to 65 miles per hour. We disagree with defendant's contention.
A. Background
The elements of section 23153, subdivision (a) are
"'(1) driving a vehicle while under the influence of an alcoholic beverage or a drug; (2) when so driving, committing some act which violates the law or is a failure to perform some duty required by law; and (3) as a proximate result of such violation of law or failure to perform a duty, another person was injured. [Citation.] Section 23153, subdivision (b), has the same elements except the first element is expressed as driving a vehicle "while having 0.08 percent or more, by weight, of alcohol in his or her blood ...." [Citation.] To satisfy the second element, the evidence must show an unlawful act or neglect of duty in addition to driving under the influence.' [Citation.] The unlawful act or omission 'need not relate to any specific section of the Vehicle Code, but instead may be satisfied by the defendant's ordinary negligence. [Citations.]'" (People v. Weems (1997) 54 Cal.App.4th 854, 858, fn. omitted.)
The prosecution alleged defendant's illegal act was driving at a speed that was not reasonably safe for the conditions, in violation of section 22350. Section 22350 states that no person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent, having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed endangering the safety of persons or property.
The jury was instructed with CALCRIM No. 595, which set forth the requirements to prove a violation of section 22350. Pursuant to CALCRIM No. 595, to prove defendant drove at a speed that was not reasonably safe for the conditions, the People had to prove the following:
"1. The defendant drove a vehicle on a highway;
"AND
"2. The defendant drove faster than a reasonable person would have driven considering the weather, visibility, traffic, and conditions of the highway, or at a speed that endangered the safety of other people or property.
"The speed of travel, alone, does not establish whether a person did or did not violate the basic speed law. When determining whether the defendant violated the basic speed law, consider not only the speed, but also all the surrounding conditions known by the defendant and also what a reasonable person would have considered a safe rate of travel given those conditions."
In sum, defendant could not be found guilty of section 23153, subdivisions (a) and (b), unless the jury found defendant drove at a speed that was not reasonably safe for the conditions.
B. Legal Analysis
The corpus delicti rule precludes conviction based solely on a defendant's out-of-court statements. (People v. Ray (1996) 13 Cal.4th 313, 341.) "In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself—i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy the burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant. [Citations.]" (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169.) "This rule is intended to ensure that one will not be falsely convicted, by his or her untested words alone, of a crime that never happened." (Ibid.)
The California courts have held that the defendant may not be held to answer absent independent evidence of the corpus delicti at the preliminary examination. At trial, a defendant's extrajudicial statements are inadmissible over a corpus delicti objection if no independent evidence of the crime exists. (People v. Alvarez, supra, 27 Cal.4th at pp. 1169-1170.)
The corpus delicti does not have to be satisfied by direct evidence. (Jones v. Superior Court (1979) 96 Cal.App.3d 390, 393.) "The independent proof may be circumstantial and need not be beyond a reasonable doubt, but is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible." (People v. Alvarez, supra, 27 Cal.4th at p. 1171.) Further, "[t]here is no requirement of independent evidence 'of every physical act constituting an element of an offense,' so long as there is some slight or prima facie showing of injury, loss, or harm by a criminal agency." (Ibid.)
Defendant contends the only evidence he was "speeding"—driving at a speed not reasonably safe for the conditions—was the statement he made to Officer Grogan while in the hospital and that the accident itself provided no basis for a reasonable inference he was driving at an unsafe speed. We disagree with defendant's contention.
Police service technician Rivera testified that debris from the collision flew 25 to 30 feet from defendant's vehicle. In the cargo compartment of the Jeep, Rivera found a rock like those in the median. The trajectory of defendant's vehicle took him from the number two lane on South H Street into a yawing arc across the number one lane and onto the raised median. Defendant's vehicle traveled with enough force to spread rocks across streets on both sides of the median, causing one such rock to crash through Ortega's windshield and strike Yesenia in the back seat. Defendant's vehicle stopped when it wrapped itself around a tree. Skid marks from defendant's vehicle were 40 feet long from where they began to where he crashed. There were tree branches on both sides of the median. Grogan described the tree as destroyed. Ortega, who had been in the oncoming lane, testified defendant was traveling "fast."
Grogan conceded he did not have specialized training as an accident reconstructionist. Grogan, however, had general training as an officer in how speed contributes to accidents, had taken an intermediate class in accident reconstruction, had worked in law enforcement for 21 years, including in traffic enforcement for the Bakersfield Police Department, knew the area where the crash occurred, and enforced traffic safety there. As foundational evidence to Grogan's opinion, he explained there were stop lights on H Street and residential side streets with speed limits of only 25 miles per hour intersecting with H Street. Grogan's training, knowledge of the crash site, and experience in enforcing traffic laws qualified him to give his opinion concerning whether defendant's vehicle speed contributed to the accident. Any arguments concerning Grogan's qualifications to render an opinion on safe speed go to the weight to be accorded his testimony rather than its admissibility. We therefore reject defendant's argument that Grogan did not have the expertise to give an opinion on this point.
Grogan explained that defendant had to be "going really fast" for his vehicle to be pulled onto the median. Although there was no evidence of the posted speed limit on southbound H Street, Grogan explained the maximum safe speed on that street was 50 miles per hour. Grogan concluded defendant's excessive speed was a cause of the accident.
The elements of a felony violation of section 23153, subdivision (a) are (1) driving a vehicle while under the influence of an alcoholic beverage or drug, (2) while driving in that state committing an act that violates the law or is a failure to perform some duty required by law, and (3) as a proximate result of such violation of law or failure to perform a duty, another person is injured. Subdivision (b) of section 23153 has the same elements except the first element is driving a vehicle with a blood-alcohol level of 0.08 percent or more by weight. To satisfy the second element, the evidence must show an unlawful act or neglect of a duty in addition to being under the influence. The unlawful act or omission need not be a violation of any specific section of the Vehicle Code, but may be satisfied by the defendant's ordinary negligence. (§ 23153, subd. (c); People v. Weems, supra, 54 Cal.App.4th at p. 858; People v. Oyaas (1985) 173 Cal.App.3d 663, 667-669.) The corpus delicti of the offense of driving under the influence consists of proof that the vehicle was driven by a person who was under the influence of alcohol. (People v. Martinez (2007) 156 Cal.App.4th 851, 855; People v. Bowen (1992) 11 Cal.App.4th 102, 106.)
There was no violation of the corpus delicti rule here. Defendant was undeniably the driver of the silver Pontiac involved in the injury to the passenger in the Jeep. His intoxication alone satisfied the corpus delicti rule. Not every element of an offense must be established independent of defendant's statement, so no independent proof of speeding was necessary. The corpus delicti rule is satisfied by slight proof and can be based on circumstantial evidence. Even if the corpus delicti rule required evidence independent of defendant's statement that he was driving at between 60 and 65 miles per hour, there was substantial independent evidence here that defendant's excessive speed was a cause of the accident. This included the length of the skid marks, the yaw from the number two to the number one lane, defendant's vehicle going over the median curb and spraying rocks from the median into the Jeep traveling in the opposite direction, the serious damage to both vehicles, the wide debris field surrounding the accident, the destruction of a tree after the vehicle had skidded for 40 feet, and the observation of a witness that defendant was traveling fast. We conclude, apart from defendant's extrajudicial statement, there was substantial evidence from which the jury could conclude defendant was not driving at a speed that was reasonably safe for the conditions of the roadway.
II. Motion to Suppress Warrantless Blood Draw Evidence
Defendant contends the trial court erred by denying his motion to suppress evidence of his warrantless blood draw because his consent to the blood draw was coerced by law enforcement. We disagree.
A. Motion to Suppress
In a pretrial motion, defendant moved to suppress evidence derived from the warrantless blood draw conducted at the hospital. In his written motion, defendant argued the blood draw was taken in violation of his Fourth Amendment rights because (1) the natural metabolization of alcohol in the bloodstream does not create a per se exigency justifying an exception to the Fourth Amendment warrant requirement for nonconsensual blood testing in drunk-driving cases, (2) Officer Grogan had an opportunity to obtain a warrant via fax or e-mail and chose not to do so, and (3) defendant's consent was obtained through coercion, rendering it invalid. The People replied defendant's consent to the blood draw justified the warrantless search.
At the suppression hearing, the parties stipulated that defendant's blood draw was obtained without a warrant. When Officer Grogan first arrived at the scene, defendant was lying on the raised center median being tended to by medical staff. Defendant was able to provide his name to Officer Grogan. Medical staff attached a neck brace and placed defendant on a backboard before loading him onto a gurney and into the ambulance. Officer Grogan estimated medical staff tended to defendant less than 20 minutes before he was transported to the hospital.
Officer Grogan arrived at the hospital while defendant was being unloaded from the ambulance. Officer Grogan spoke to defendant at the hospital. When he spoke to him, defendant was being tended to by nurses and had not been diagnosed yet. Defendant was still attached to the backboard and had the neck brace. Officer Grogan stated it had been "no longer than 10 minutes" after arrival before he told defendant he was being placed under arrest. Nurses were still tending to him at that point. Officer Grogan and the nurses were asking defendant questions at the same time. Defendant had not been given medication at that point.
After he placed defendant under arrest, Officer Grogan gave him the implied consent advisement. Officer Grogan stated, "I explained to [defendant] that because I placed him under arrest for DUI, he was required to provide a breath test or blood test to determine his blood alcohol content." He said he always paraphrased the advisement because it was easier for people to understand, and he also gave them the Trombetta advisement. (See fn. 2, ante.) He asked defendant if he would agree to provide a blood draw because he was having difficulty with his lungs. Officer Grogan noticed defendant appeared to be in pain and would grimace when breathing. Officer Grogan did not have his firearm, Taser, or any other force device deployed when he asked defendant if he would provide a blood sample. He was the only officer in the room.
Defendant understood Officer Grogan's questions. Defendant agreed to the blood draw. Although Officer Grogan could not recall defendant's exact response, he believed defendant responded, "Yes, sir," to the blood draw request. Officer Grogan stated defendant was calling him "sir" throughout the entire contact. Defendant had also been able to answer specific questions like how fast he was driving before the collision and how much alcohol he had consumed. Defendant answered Officer Grogan's questions with specificity. Defendant was not going in and out of consciousness.
A registered nurse at the hospital drew defendant's blood sample. The blood draw was done in the course of his medical treatment, but no other treatment was performed at the exact same time of his blood draw. Nurses continued to tend to him after his blood draw. He did not ask defendant to sign a consent form. Defendant also submitted to a PAS test.
Officer Grogan stated he did not attempt to obtain a search warrant. He explained that if an individual ever hinted at being unsure whether to submit to a blood test, he would immediately resort to obtaining a search warrant. However, he stated defendant did not exhibit anything of the like.
At the suppression hearing, defendant testified he remembered losing control of his vehicle and hitting a tree before he blacked out. He did not recall speaking to law enforcement at the scene of the accident, but did remember speaking with an officer at the hospital when he regained consciousness. The officer asked him if he knew where he was. Defendant stated, "I told him, yes, I know I was involved in the car accident, that I was at the hospital." He recounted the officer told him he was going to get blood work done. Defendant then changed his statement and said the officer told him his blood had already been drawn. He stated the officer did not ask him to sign anything and he was in a lot of pain at the time because he could not breathe and could barely move his head. Defendant stated he did not remember the blood draw.
On cross-examination defendant affirmed he did not remember much of what occurred at the hospital. He stated he was not aware of his BAC results, only that it was above ".8."—presumably meaning ".08." When asked whether he was intoxicated, he responded, "No, not necessarily."
The prosecution argued defendant consented to the blood draw and there was no indication he was physically unable to give consent, even if he was in pain. Based on defendant's testimony, the defense argued his blood was taken before he could consent to the blood draw. The defense further argued defendant's level of pain rendered him incapable of providing consent and that Officer Grogan could have obtained a warrant or had defendant sign a consent form. In response, the prosecution noted there was no foundation for the argument that Officer Grogan told defendant his blood had already been drawn before he asked him if he would consent to the blood draw.
The court denied the motion to suppress based on Officer Grogan's testimony, finding defendant gave free, voluntary, and knowing consent.
B. Standard of Review
"The standard of review on a motion to suppress is well established. The appellate court views the record in the light most favorable to the ruling and defers to the trial court's factual findings, express or implied, when supported by substantial evidence. But in determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, the appellate court exercises its independent judgment. [Citations.] Appellate review is confined to the correctness or incorrectness of the trial court's ruling, not the reasons for its ruling." (People v. Superior Court (Chapman) (2012) 204 Cal.App.4th 1004, 1011.)
C. Fourth Amendment Principles
The Fourth Amendment guarantees "'[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' (U.S. Const., 4th Amend.)" (People v. Mason (2016) 8 Cal.App.5th Supp. 11, 19.) A blood draw for the purpose of chemical testing is a search and seizure within the Fourth Amendment guarantee. Warrantless searches are per se unreasonable, subject only to a few specifically established exceptions. A warrantless search that does not fall within one of the exceptions is presumptively unreasonable and unconstitutional. The state bears the burden of establishing a search did not violate an individual's Fourth Amendment rights. (Ibid.)
Consent is an exception to the warrant requirement. (People v. Harris (2015) 234 Cal.App.4th 671, 685.) "Where 'the prosecution relies on consent to justify a warrantless search or seizure, it bears the "burden of proving that the defendant's manifestation of consent was the product of his free will and not a mere submission to an express or implied assertion of authority. [Citation.]"' [Citation.] Whether consent was voluntarily given is a question of fact, which depends on the 'totality of the circumstances' of the individual case. [Citations.] A court determines whether an officer's belief that he or she had consent to a search or seizure is objectively reasonable under the circumstances; the inquiry is what a reasonable person would have understood by the exchange between the officer and the person providing consent. [Citations.]" (People v. Mason, supra, 8 Cal.App.5th at p. Supp. 20.)
Another well-recognized exception applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment. (Missouri v. McNeely (2013) 569 U.S. 141, 147.) In some circumstances, law enforcement officers may conduct a search without a warrant to prevent the imminent destruction of evidence. (Id. at p. 149.) A warrantless search is potentially reasonable because there is a compelling need for official action and no time to secure a warrant. To determine whether a law enforcement officer faced an emergency justifying a search without a warrant, the court looks to the totality of the circumstances. Absent the traditional justification a warrant provides, the fact-specific nature of the reasonableness inquiry demands an evaluation of the alleged exigency based on the facts and circumstances of each case. (Ibid.)
D. Consent to a Warrantless Blood Draw
Defendant contends his consent to the blood draw was invalid because he was coerced to acquiesce to Officer Grogan's claim of lawful authority. Specifically, he maintains he submitted to the blood draw because Officer Grogan told him he was "required" to provide either a blood or breath sample under state law, and the officer implied a blood draw was the only reasonable option due to defendant's difficulty breathing. Defendant contends the officer's claim of lawful authority, coupled with his severe pain, medical attachments, and difficulty breathing, resulted in coerced consent.
Defendant relies on Bumper v. North Carolina (1968) 391 U.S. 543 in support of his position. In Bumper, law enforcement officers went to the defendant's grandmother's house and told her they had a warrant to search her house. (Id. at p. 546.) She told them to "go ahead" and let the officers into her house. (Ibid.) The officers did not read the warrant to her, but she stated she was satisfied with their request because they told her they had a warrant. (Id. at p. 547.) The prosecution did not rely on the existence of a warrant to justify the search and instead argued the grandmother voluntarily consented to the search. (Id. at p. 546.) The United States Supreme Court ultimately rejected the argument, holding acquiescence to a claim of authority does not constitute consent. (Id. at pp. 549-550.) The assertion by police they had a search warrant vitiated her consent. The Bumper court held that when a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search and "[t]he situation [becomes] instinct with coercion," and "[w]here there is coercion there cannot be consent." (Id. at p. 550.)
The prosecution "cannot meet the burden of showing free and voluntary consent by simply demonstrating that a defendant submitted to a claim of lawful authority, as such circumstances may be inherently coercive, thus vitiating consent." (People v. Mason, supra, 8 Cal.App.5th at p. Supp. 20.)
Bumper v. North Carolina is factually distinguishable from the instant case. Defendant was not presented with the same claim of lawful authority because Officer Grogan did not state he had a warrant when he asked defendant to submit to a breath or blood test. Defendant was not faced with a situation in which he could reasonably believe he had no right to refuse the request. Further, Officer Grogan was under no obligation to inform defendant he had a right to refuse. "The defendant need not be advised of the right to refuse as a prerequisite to a finding of voluntariness." (People v. Mason, supra, 8 Cal.App.5th at p. Supp. 20.) But if so advised, this fact supports a finding the consent was voluntary and a product of free choice, not coercion. (Id. at p. Supp. 21.)
Defendant further argues California's implied consent law does not vitiate the need for voluntary consent prior to a warrantless blood draw. California's implied consent law provides that a driver lawfully arrested for DUI is deemed to have given consent to chemical testing of his or her blood or breath for the purpose of determining blood-alcohol content. (§ 23612, subd. (a)(1)(A).) Defendant contends, however, that to satisfy Fourth Amendment requirements, consent cannot occur in advance, irrespective of the implied consent law.
The court in People v. Harris, supra, 234 Cal.App.4th 671 analyzed the interaction between California's implied consent law and actual consent. Defendant Harris was pulled over by a sheriff's deputy for speeding and failing to use a turn signal. (Id. at pp. 677-678.) While speaking to Harris, the deputy observed symptoms of substance impairment and asked him to step out of his vehicle. (Id. at p. 678.) After conducting field sobriety tests, the deputy concluded Harris was under the influence of a controlled substance and placed him under arrest. The deputy told Harris he was required to submit to a chemical blood test and informed him refusal to submit to the test would result in an immediate suspension of his driver's license and the refusal could be used against him in court. Harris responded, "okay," and at no time appeared unwilling to provide a blood sample. (Ibid.) Once at the sheriff's station, a phlebotomist drew his blood. Harris did not resist the blood draw. The deputy did not attempt to obtain a warrant before Harris's blood draw was conducted. (Ibid.) Under the totality of the circumstances, the court found Harris freely and voluntarily consented to the blood draw. (Id. at p. 692.)
In Harris, one of the issues presented was the significance of the officer having given Harris inaccurate information about the consequences of failing to submit to a blood test. (People v. Harris, supra, 234 Cal.App.4th at pp. 691-692.) The court found that even though the deputy's admonishment was not entirely accurate, it was not patently false and it did sufficiently inform the defendant his license would be suspended, even if the length of suspension he gave was incorrect. It held the failure to strictly follow the implied consent law does not violate a defendant's constitutional rights. (Ibid.) It further held free and voluntary submission to a blood test, after receiving an advisement under the implied consent law, constitutes actual consent to a blood draw under the Fourth Amendment. (Harris, at pp. 685-690.)
Defendant contends People v. Harris is easily distinguishable from the case at bar because Officer Grogan failed to admonish defendant pursuant to implied consent. We disagree with this contention. Harris did not expressly hold an admonishment was required in order to find voluntary consent, even though Harris was given an admonishment in that instance.
Providing the statutory admonition about the consequences of withdrawing consent is not required to find voluntary consent. (People v. Agnew (2015) 242 Cal.App.4th Supp. 1, 10-11.) Treating the admonition as a critical factor would improperly elevate it to a constitutional requirement under the Fourth Amendment. Whether the statutory admonition was given should be considered in the totality of circumstances, but it should only be one factor in determining a defendant's voluntariness of consent. (Agnew, at p. Supp. 16.)
Officer Grogan testified that after placing defendant under arrest, he advised him he was required to submit to a breath or blood test. He then asked defendant if he would submit to a blood draw because he could tell that he was having difficulty breathing. Defendant expressly agreed to the blood draw. When Officer Grogan asked defendant if he would submit to a blood test, he was the only officer in the room. Nothing in the record indicates he pressured defendant into submitting. Officer Grogan was not applying pressure to defendant's wounds and Officer Grogan did not display his firearm, Taser, or any other force device when he made the request.
Further, there is no evidence defendant was not alert at the time of the blood draw request. On the contrary, Officer Grogan asked him if he knew where he was when he woke up at the hospital and defendant was able to articulate an accurate answer. Defendant stated, "I told him, yes, I know I was involved in the car accident, that I was at the hospital." Defendant understood Officer Grogan's questions, referring to him as "sir," and answering multiple questions with specificity. He was not medicated and he was not going in and out of consciousness. He was also able to answer questions from medical staff, not only at the hospital, but at the scene of the accident.
After defendant agreed to provide a blood sample, there is no evidence he thereafter objected or resisted the registered nurse, and he at no time indicated he wished to withdraw his consent. Officer Grogan testified his standard practice was to obtain a warrant at the first hint of an individual's hesitation to submit to a blood test; however, he did not notice any hesitation on behalf of defendant.
Under the totality of the circumstances, we conclude defendant freely and voluntarily consented to the blood draw and he was not coerced to submit to a claim of lawful authority. Accordingly, we need not analyze the People's contention that exigent circumstances also supported a warrantless blood draw.
DISPOSITION
The judgment of the trial court is affirmed.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
GOMES, Acting P.J. /s/_________
FRANSON, J.