P. v. Daniels

Filed 8/31/09 P. v. Daniels CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County.

Carol H. Rehm, Jr., Judge. Judgment affirmed.

Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

SUMMARY

A jury convicted appellant, Michael Jacquet Daniels, of driving under the influence and causing injury to another (Veh. Code, 23153, subd. (a)), and driving with a blood alcohol level of 0.08 percent or more and causing injury to another (Veh. Code,  23153, subd. (b)), and found that he personally inflicted great bodily injury within Penal Code section 12022.7, subdivision (b) on each count.^[1] The court found that appellant had suffered three prior strike convictions ( 667, subds. (b)-(i), 1170.12, subds. (a)-(c)) and four prior serious felony convictions ( 667, subd. (a)), and had served four prison terms ( 667.5, subd. (b)). Appellant was sentenced to a term of 45 years to life.

On appeal, appellant contends that the trial court (1) violated appellants Miranda rights in admitting statements that appellant made to the police in the hospital, and (2) abused its discretion in denying appellants motion to strike his prior strike convictions. Because we find no error, we affirm.^[2]

FACTUAL AND PROCEDURAL SUMMARY

Appellant was the registered owner of a red Camaro. At about 1:10 a.m. on March 18, 2006, Alberto Rivera was seated at a bus stop near Vernon Avenue and Avalon Boulevard, and saw the Camaro coming down Vernon at a much faster than normal speed. As it approached Avalon, the car appeared to Rivera to hit a bump in the pavement, and fly upward, with all four wheels leaving the road. When it landed, the Camaro swerved right and then left, ultimately striking parked cars. It then spun around several times before stopping. Rivera approached the vehicle. He saw no one inside, but while circling around the vehicle, he noticed a woman lying beneath the rear bumper of a parked white car.

Los Angeles Police Officers Juan Mendoza and James Jensen proceeded to the scene from a location nearby on Avalon, where they were investigating another accident. Officer Mendoza saw damaged cars at the scene, including a silver van and a black Explorer, which were up on the sidewalk. Officer Mendoza identified red paint transfer on the silver van and the Explorer. Informed that someone was injured, Officer Mendoza located a person underneath a white Corolla or Tercel. The fire department lifted the vehicle, and the victim, who was bleeding from the head, was removed.

Officer Mendoza encountered appellant at the location. Appellant was bleeding from the head and appeared disoriented. He had the odor of alcohol, and red, watery eyes. Officer Mendoza had appellant taken by ambulance to California Hospital.

Officer Mendoza formed the opinion that appellant was presently unable to drive a vehicle safely. Based on his investigation at the scene, he opined that while appellant was driving at a high rate of speed, he had lost control of the Camaro. The Camaro then struck the van and the Explorer, and spun around, during which time the victim was ejected from the Camaros front passenger window and landed on the road until stopping underneath the white car.

Officer Jensen contacted appellant at the hospital when appellant was in a bed receiving treatment. Officer Jensen observed objective signs of intoxication, asked appellant a series of questions before conducting field sobriety testing, and administered eye field sobriety tests consisting of a series of nystagmus and convergence tests. Appellant could not take any other field sobriety tests because he was unable to stand.

Based on this investigation, Officer Jensen formed the opinion that appellant

(1) had been speeding, in violation of the Vehicle Code, (2) had driven at an unsafe speed, and (3) was under the influence of alcohol. Appellant was then arrested. Appellant was not advised of his Miranda^[3]rights at that time, nor was he booked because of his injuries.

After the officers informed appellant that he was under arrest, they obtained appellants consent to having his blood drawn. Nurse Naylor drew appellants blood at 3:45 a.m. While appellant was having his blood drawn, he conversed with Officer Jensen and made several statements, which were recorded. These statements are detailed in our discussion below.

On April 14, 2006, at California Hospital, the case investigating officer, Detective Felix Padilla, visited the victim, who was unconscious. The detective had the victims fingerprints taken because her identity was still unknown. The fingerprints ultimately established that the victim was Chris Ann Hoppe.

Detective Padilla left his contact information with the manager of appellants residence, and on April 24, appellant came to the police station where Detective Padilla interviewed him upon obtaining a waiver of appellants Miranda rights. Detective Padilla memorialized the interview, including the Miranda advisement and waiver, in a summary that appellant read and signed.

Detective Padilla testified that in the interview, appellant said that he had watched a Laker game at home while drinking some wine, and about an hour later, went out to purchase a CD. While walking, appellant encountered an individual from the neighborhood, who said he would give him one of his girls if appellant drove him downtown. Appellant did so, and gave the man $5, at which point a woman ran up; appellant gave the man another $20, and the woman got into appellants car. As appellant drove south, the woman kept demanding sex, and removing her pants, but appellant was not interested. When appellant reached the area of the accident, another car was driving slowly, and the woman told appellant to slow down. Appellants car then sped up and swerved to the left.

Appellant further told Detective Padilla that he had felt something strike him in the back of his head. He speculated that it was a seizure, or someone had gotten into the backseat of his car. Appellant stated that he had last used drugs the night before the accident. He said that he hoped the woman was all right, that he did not even know her, and that he had not seen her fly out of the car.

Outside the jurys presence, police criminalist Chris Breyer testified on his subordinates testing of appellants blood and preparation of a report summarizing the test results. The court admitted the report, which reflected that appellant had a 0.14 percent blood alcohol level. Before the jury, Breyer described his offices technique for testing for blood alcohol using gas chromatography. He then explained the .14 blood alcohol test results reflected in the report.

Breyer opined that at a blood alcohol level of 0.05, all drivers suffer mental impairment. At 0.14, physical impairment also is present. He testified that no one could drive safely at that level. Given appellants height and weight, and his alcohol level two and one-half hours after the accident, Breyer estimated that appellants blood alcohol level at the time of the accident would have been at least .16 to .17 percent.

Dr. Gerald Miller testified that he had been treating Chris Hoppe, the victim, since May 5, 2006. When he first started treating her, she could not walk, talk, or feed or bathe herself. Nearly two years later, her condition had not changed, except that she no longer used a ventilator to breathe. Hoppe was significantly paralyzed, and 100 percent disabled; her condition was consistent with brain damage. In his 50 years of practice, Dr. Miller had never seen a person in her condition recover. It was stipulated that upon Hoppes arrival at California Hospital after the accident, she was comatose, and was diagnosed as having suffered head trauma and consequent brain damage, which had caused paralysis.

In his defense, appellant first called his appointed investigator, John Mouzakas. Mr. Mouzakas testified that he had observed and photographed the intersection of Vernon and Avalon at 12:45 a.m. on March 29, 2007, and that there had been no bump in the intersection or other factor that could have caused a vehicle to become airborne. He opined that appellants Camaro should have been checked for mechanical problems.

Testifying on his own behalf, appellant recounted that on the night of March 17, 2006, he was watching a game on television and consumed a glass or two of wine. He then walked to a record store and bought a CD. Walking further, appellant was approached by a man he thought he knew, who inquired about his car and demanded a ride downtown. After resisting, appellant finally agreed, and he and the man returned to his home and then drove downtown, where appellant stopped and offered the man $5 to leave him alone.

At that point, Hoppe, whom appellant did not know, came up to the car, and appellant allowed her to get in the car. Hoppe kept taking off her pants; appellant believed she wanted to have sex, although he did not. After briefly stopping in his former neighborhood, appellant drove to Vernon Avenue, made a left turn, and switched to the left lane because a car in front was driving very slowly. Appellant further testified that Hoppe then may have asked him to slow down. At that point, appellant said, he was struck unconscious.

Appellant testified that the next thing he could remember was that someone shook him, stood him up, and told him to walk. He saw his own car and saw Hoppe underneath another car. He tried to shake her to see if she was all right, and was satisfied when he heard her breathing. He had not seen Hoppe fly out of his car. He recalled hearing a noise outside his car, as if someone had jumped on it. Appellant stated that he was in the hospital for four or five hours, and admitted having prior convictions for residential burglary and sale of narcotics.

DISCUSSION

The Trial Court Did not Err in Admitting Appellants Statements to the Police in the Hospital

Appellant contends that statements he made to Officer Jensen in the hospital about having drunk two small bottles of Cisco should have been excluded at trial because the statements were made while appellant was under arrest but without any Miranda advisement. We detail below the record at the suppression hearing, as well as the testimony at trial about appellants other statements in the hospital.

The Suppression Hearing

Officer Jensen recounted observing that appellant exhibited objective signs of alcohol intoxication. The prosecutor then asked him whether certain questions are asked prior to arresting someone for driving under the influence. Officer Jensen responded that he asks questions to establish whether the suspect was the driver, and also asks if they have been drinking. When he confirmed that he asks these questions before someone is arrested, defense counsel objected to general questions as to Officers Jensens routine, which objection was overruled on the theory that the prosecutor was merely trying to establish the context in which inquiries may have been made. The court made its ruling subject to renewal if that turns out not to be the case. Officer Jensen then testified that typically he asks persons suspected of driving under the influence if they had been drinking, and the quantity and location of the alcohol consumption.

He recounted appellants lacerated head, his objective symptoms of alcohol intoxication, the administration of the nystagmus and convergence field sobriety tests, and appellants inability to participate in any other field sobriety tests because of his medical condition. Officer Jensen stated that after he formed the opinion that appellant was under the influence of alcohol, was the driver, had violated the speed limits in the Vehicle Code, and could not operate a motor vehicle safely, appellant was arrested. Appellant was not Mirandized. After the officers obtained appellants consent, a registered nurse drew appellants blood.

Officer Jensen testified that while his blood was being drawn, appellant was talkative and Jensen recorded the conversation. When asked what appellant said, Officer Jensen testified appellant stated at one point . . . a car had struck him from behind and that his passenger may have grabbed the steering wheel. When the prosecutor asked whether appellant asked where his car was, Officer Jensen stated that appellant inquired into what happened with his car and his glasses, and also asked about his friend.

The prosecutor then asked whether appellant said anything about having been drinking, Officer Jensen responded that appellant said that he had consumed two bottles of Cisco, which Officer Jensen later found out is a dessert wine. The prosecutor then asked whether appellants statements regarding the location of his car and friend, and that he had been drinking were made in response to any question, Officer Jensen testified that they were just spontaneous statements during the blood draw. Officer Jensen could not remember any other statements that appellant had made in the hospital although he conceded that he had not reviewed the police report.

Officer Jensen was able to review the police report briefly before cross-examination. Defense counsel then asked Officer Jensen about appellants following statements recorded in the police report: Where is my car? I was driving home with my friend. How is she? Ofcr Jensen then asked [appellant] how fast he was travelling. [Appellant] stated I was only going 55 mph, maybe someone hit my car from behind. It was a small white car. Ive been drinking a little, I had two bottles of Cisco, they were small, you know. Officer Jensen described a certain amount of banter between him and appellant while the nurse was drawing blood, and confirmed that appellant had made the statements, Wheres my car. I was driving home with my friend. How is she after appellant was arrested but without any Miranda advisement.

On redirect, Officer Jensen denied interrogating appellant and repeated that appellants statements had been the product of banter. He testified that he told appellant that his car was destroyed and then asked him how fast he was going. Officer Jensen said that appellant responded to that question 55 miles an hour and then kept talking, particularly commenting about maybe having been hit from behind by a small white car and drinking two small bottles of Cisco. The officer also confirmed that the list of statements in the police report was not an uninterrupted dissertation.

At argument, when the court inquired as to what statements defense counsel was seeking to exclude, defense counsel responded, all the statements and listed the statements in the police report. In response, the prosecutor conceded that anything related to the question of how fast appellant was going should be suppressed. The prosecutor argued that appellants statement that he had been drinking a little and that he had two bottles of Cisco were things that come out in a normal D.U.I. investigation and are not subject to Miranda.

The court and the parties then sought to clarify exactly what statements defense counsel sought to exclude. This discussion led to some seeming stipulations, although the subject matter of any agreement is not clear from the record. Both sides agreed that appellants estimate of his speed following Officers Jensens inquiry into his speed was interrogation and should be excluded. The colloquy among the court and the attorneys focused on appellants statements about being hit from behind by a small white car, with no specific mention of appellants admission of drinking two bottles of Cisco. At one point, defense counsel told the court that he had no objection to any statements that followed appellants estimate of his speed. Indeed, he stated in response to the courts own questioning that his suppression motion pertained to appellants inquiry as to where his car was and the statement that he was driving home with his friend.

When the court announced its intention to suppress appellants statements about driving 55 miles an hour and being hit by a small white car, defense counsel protested and stated that he could move to suppress only some of the statements even if they all followed Officer Jensens inquiry into appellants speed. He then withdrew his motion to suppress statements that followed appellants estimate of his speed. After colloquy with the prosecution, the court announced its ruling to exclude appellants statement that he was driving 55 miles an hour, that he was hit from behind by a small white car and anything to the effect of those statements. The court found that the balance of the statements was spontaneous, expressly listing appellants questions about his car, his statement that he was driving with a friend, his inquiry into his friends condition, and his statement that he had been drinking a little, specifically, two bottles of Cisco.

At that point, the prosecutor reminded the court that the issue regarding what he had been drinking is part of the investigative questions. Thats why I elicited that, because it comes in under another part of the report anyway. Just so everyones aware. We note that in contrast to the trial, the prosecution never elicited testimony at the suppression hearing about Officers Jensens questions of appellant in particular before administering eye field sobriety tests.

Defense counsel then requested that the court not finalize its ruling until after appellant testified. Appellant testified that he was in a bed in the emergency room when Officer Jensen came in. Appellant asked him what had happened, and Jensen replied that appellant had been in a terrible car accident, and asked if he knew what happened. Appellant told him that he did not. Appellant testified that the next question was about how fast appellant had been going. Appellant stated that he responded that he did not know, but when asked what he thought, he gave an answer because he was concerned about his injuries. Appellant further testified, I think there was some questions [sic] about if I had alcohol, and I may have said I was watching the basketball game earlier that evening. He also testified that he may have talked about a white car and that he told the officers that something had hit him from behind after which he went unconscious. Appellant testified that he never denied having had alcohol in his system that night. He testified that he said that he may have had a glass or two of Cisco wine while watching the game, but did not mention a bottle.

Defense counsel argued that it was not credible that appellants statements were spontaneous despite the officers testimony. The court agreed to listen to the tape, but reaffirmed its tentative ruling based on the character and quality of the evidence and the credibility of the witnesses. After listening to the recording of the interview, the court refused to suppress the following statements: Wheres my car[?] I was driving with a friend. How is she? I was drinking a little. I had two bottles of Cisco . . . . The court found that those statements were spontaneous statements made during the course of the banter among Mr. Daniels, the police, and the nurse.

Additional Statements Introduced at Trial

At trial, after establishing Officers Jensens training and experience in D.U.I. investigations, the prosecutor asked Officer Jensen about what questions he typically asks before administering field sobriety tests. Officer Jensen testified that he asks if the suspect had been drinking, and if so, where, when, and how much. He also inquired into, among other subject matter, whether the suspect is a diabetic and when the suspect last ate. Officer Jensen testified that he asked appellant these questions before administering the nystagmus and convergence field sobriety tests. Specifically, when he asked appellant whether he had been drinking, appellant told him that he had been drinking a little and that he had two small bottles of Cisco.

When asked whether appellant made any statements while his blood was being drawn, Officer Jensen recounted appellants inquiry into to the location of his car, his statement that he was driving with his friend, and his inquiry about his friend. He also described appellants statement that he had been drinking, and that he had consumed two small bottles of Cisco.^[4]

The Court did not Abuse its Discretion in Admitting these Statements and if the Admission was Error, it was Harmless

Appellant contends that the trial court should have excluded appellants statements that he had been driving and that he had consumed two small bottles of Cisco because appellant made them without advisement and waiver of his Miranda rights, in response to interrogation, meaning questioning or its functional equivalent. (Rhode Island v. Innis (1980) 446 U.S. 291, 301.) Innis held that Mirandas constraints, regarding custodial interrogation, apply both to express questioning and to other words or actions that the police should know are reasonably likely to elicit an incriminating response from the suspect. (Ibid., fns. omitted.) Appellant argues that appellants banter with Officer Jensen involved the functional equivalent of direct questioning, and that the court should have inferred from the officers secret recording of the interview that the officer was engaging in a technique designed to elicit an incriminating response from appellant.

These arguments are not well-grounded in the record or the law. In reviewing the trial courts ruling, we are required to accept the courts resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported. [Citations.] However, we must independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged statement was illegally obtained. (People v. Crittenden (1994) 9 Cal. 4th 83, 128.)

We focus on the statements elicited during the suppression hearing, and note that based on its evaluation of the witnesses credibility, the trial court found that appellants post-arrest statements about driving and having drunk Cisco, and his questions about his car and the victim, were not the product of an interrogation. The trial court disbelieved appellants own version of the interview at the hospital. We conclude that the courts findings were supported by substantial evidence. We also note that the officers use of a recorder (of which there was no evidence that appellant was aware) did not render the recorded statements the product of an interrogation. Appellant has not provided any authority to the contrary.

Even if the trial court erred in admitting these statements -- which it did not -- the error would be harmless under Chapman v. California (1967) 386 U.S. 18. (See Arizona v. Fulminante (1991) 499 U.S. 279, 310 [It is evident from a comparison of the constitutional violations which we have held subject to harmless error, and those which we have held not, that involuntary statements or confessions belong in the former category].)

There was substantial evidence of appellants driving under the influence at trial. Officer Jensen testified about his pre-arrest questioning of defendant regarding whether he had been drinking before Officer Jensen administered the eye field sobriety tests.^[5] Appellant admitted consuming two small bottles of Cisco. Breyers testimony about appellants blood alcohol level at .16 percent or greater at the time of the accident was undisputed; that blood alcohol level well-exceeded the legal limit. There was eyewitness testimony about appellants erratic driving and speeding, so much so that he lost control of his vehicle. After the crash, he smelled of alcohol, and displayed objective signs of intoxication. This evidence was uncontradicted. After appellant waived his Miranda rights in his interview with Detective Padilla, appellant admitted drinking on the night of the crash and that his passenger had told him to slow down. In light of all this evidence, admission of appellants post-arrest statements was harmless beyond a reasonable doubt.

The Trial Court Did not Abuse Err in Denying the RomeroMotion

Appellant has the following prior convictions: (1) 1985 attempted robbery conviction for which he was sentenced to two years in state prison; (2) 1986 attempted first degree burglary conviction for which he was sentenced to two years in state prison; (3) 1987 first degree burglary conviction for which he was sentenced to three years in state prison; and (4) 1995 sale or transportation of a controlled substance conviction, for which he was initially sentenced to 25 years to life in state prison, which sentence was changed later to 10 years in state prison. Approximately three months after being discharged from parole in late 2005, appellant committed the offenses at issue here. He also has a 1989 escape.^[6]

As to the offenses at issue here, appellant was sentenced to 45 years to life, comprising a three strikes term of 25 years to life ( 667, subd. (e)(2)(A)(ii), 1170.12, subd. (c)(2)(A)(ii)), and three five-year enhancements for prior serious felony convictions ( 667, subd. (a)(1)), plus an additional five years for the great bodily injury finding ( 12022.7, subd. (b)).^[7]

Before sentencing, appellant moved to dismiss the strike findings, under section 1385 and People v. Superior Court (Romero)(1996) 13 Cal.4th 497. Appellant pointed out that if the motion were granted, the court could still sentence him to a term of 21 years, four months. The trial court denied the motion, concluding that appellant had shown extreme lack of regard for the rights and safety of others, was a serious danger and threat to society, and was clearly not outside the spirit of the Three Strikes law.

We review the trial courts refusal to dismiss the strike allegations under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374; see id. at pp. 374-375.) Under this standard, appellant bears the burden of showing that the courts sentencing decision was irrational or arbitrary. (Id. at p. 376.) In the present context, a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (Id. at p. 377.)

In considering a Romero motion, the trial court here was charged with considering whether in light of the nature and circumstances of appellants present and prior strike convictions, and his background, character and prospects, he could be deemed outside the spirit of the Three Strikes Law, and hence should be treated as though he had not been previously convicted of one or more serious and/or violent felonies. (Carmony, supra, 33 Cal.4th at p. 377 [quoting People v. Williams (1998) 17 Cal. 4th 148, 161].)

Appellant contends that the court abused its discretion by limiting its consideration of appellants motion merely to appellants criminal record. (See People v. Superior Court (Alvarez)(1997) 14 Cal.4th 968, 981.) The facts appellant advanced in support of his motion were his age (49), the availability of an approximately 21-year sentence if the motion were granted, the remoteness of the prior strike convictions, and that his felony DUI case was not a property crime like his prior strikes. Appellant misreads the record.

In making its ruling, the trial court expressly recognized that a defendants recidivist status, albeit relevant, was not dispositive. The court analyzed the applicable legal precedent, and then considered appellants record and further considered appellants present crime and its grave consequences for the victim: Mr. Daniels made conscious decisions to drink alcohol and get behind a wheel of a car that weighs thousands of pounds, potentially a lethal instrument. [] In doing so Mr. Daniels put the victim into a likely perpetual custody of a paralyzed body. We find that the trial court did not abuse its discretion in concluding that appellant was a serious danger and threat to society, and that appellant was not outside the spirit of the Three Strikes Law.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BENDIX, J.^*

We concur:

FLIER, Acting P. J. BIGELOW, J.

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^[1] Undesignated section references are to the Penal Code.

^[2] Appellant also filed a habeas petition, to which respondent filed an informal response and appellant filed his reply. The petition is pending.

^[3]Miranda v. Arizona(1966) 384 U.S. 436 (Miranda).

^[4] Prior to the testimony about appellants statement that he had consumed two small bottles of Cisco, counsel and the court heard argument at sidebar about defense counsels intent to elicit appellants statements regarding being hit by a small white car on a completeness theory. The court reiterated its prior ruling when defense counsel confirmed that he was not waiving his Miranda objection to admission of appellants estimate of his speed. The court held that even if defense counsel could selectively waive Miranda as to statements that were temporally related, appellant could not proffer his own hearsay under Evidence Code, section 1220.

^[5] This pre-arrest questioning in a hospital emergency room was merely investigative and not part of any custodial interrogation excludable under Miranda. (Berkemer v. McCarty (1984) 468 U.S. 420.) Indeed, the prosecution advanced this position during the suppression hearing, when it put the court and defense counsel on notice that appellant had made the same admissions of drinking during the D.U.I. investigation before appellant was arrested, and argued that this questioning required no Miranda advisement. Defense counsel did not respond, object or otherwise notify the court of any disagreement with the prosecutions position.

^[6] Because the briefing, abstracts of judgment from the prison commitments, and the sentencing transcript were not entirely consistent as to appellants record, we requested clarification from the parties in a government code letter. We received responses from appellant and respondent, which were consistent and which have been summarized in the text.

^[7] The same sentence was imposed on count 2, but stayed pursuant to section 654.

^* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.