P. v. Diaz

 

 

 

 

 

 

 

 

Filed 6/24/13  P. v. Diaz CA2/6

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 SIX

 

 
>

THE PEOPLE,       Plaintiff and Respondent,   v.   JOHN SYLVESTER DIAZ,       Defendant and Appellant.

2d Crim. No. B239571 (Super. Ct. No. F461988) (San Luis Obispo County)

 

 

            John
Sylvester Diaz appeals from the judgment entered after his no contest plea to
driving with a blood-alcohol level of .08 percent or more.  (Veh. Code, § 23152, subd. (b).)  Appellant admitted three prior convictions of
driving under the influence.  The three
priors made the present crime a felony offense. 
( Id.>, § 23550.)  Appellant was granted probation on condition
that he serve 300 days in county jail.

            Appellant
pleaded no contest after the trial court had denied his href="http://www.fearnotlaw.com/">motion to suppress evidence pursuant to
Penal Code section 1538.5.href="#_ftn1"
name="_ftnref1" title="">[1]  Appellant contends that the trial court erred
because the police made a warrantless entry into his residence without probable
cause or exigent circumstances.  He also
contends that the warrantless, nonconsensual drawing of blood from his person
violated his Fourth Amendment rights.  We
affirm.

>Evidence Presented at the Section 1538.5
Hearing

            In
the afternoon on June 29, 2011,
Officer Adrian Ayala was on patrol when he received a call from a police
dispatcher about a vehicle collision. 
The dispatcher said that the driver of the vehicle, who appeared to be
intoxicated, had fled the scene on foot and entered a residence.  According to the dispatcher, "the
suspect had been staggering and had to . . . h[o]ld on to some mailboxes as he
was fleeing the scene." 

            The
dispatcher relied upon a 911 call from Tim Strobridge.  Strobridge had not witnessed the
collision.  He was inside his house when
he heard "a very loud crash." 
He "immediately ran out because [he] was afraid somebody got hurt
and saw the car precariously on its side up against a barbwire
fence."  Appellant was behind the
wheel of the vehicle.  Strobridge told
the dispatcher that the driver was "drunk."

            About
10 minutes after the call from the dispatcher, Officer Ayala arrived at the
scene.  He saw the vehicle in question,
which had "crashed up against" and damaged a fence.  The vehicle was off the south roadway edge on
the wrong side of the road.   No other
vehicle had been involved in the collision.

            Officer
Ayala met Strobridge at the residence that the driver had entered.  Strobridge said that two sisters resided
there and that he did not recognize the driver. 
Strobridge also said that the driver "was bleeding . . . from the
face and head and that his shirt was torn and bloody."   In addition, Strobridge said that the driver
"was stumbling all over the place and . . . needed to use the mailbox [for
support] just to stand and continue." 
Strobridge assured Ayala that the driver was still inside the residence.


Through an open
window in the front of the house, Ayala yelled for the driver to come out.  There was no response, but he heard what
"sounded like doors closing." 
Since the exterior doors were locked, Ayala decided that he "had to
make forcible entry."  His reasons
for the forcible entry were threefold. 
First, Ayala was concerned that the driver needed medical attention for
his injuries.  Second, Ayala did not know
whether the driver resided at the residence. 
Third, Ayala believed that he had probable cause to arrest the driver
for driving under the influence.  Ayala
wanted to test the driver's blood-alcohol level before the alcohol
dissipated.  He also wanted to prevent
the driver from drinking additional alcohol that would affect his blood-alcohol
level.  Ayala believed "that there
wasn't time" to get a warrant.

Ayala made a call
requesting back-up officers.  They
arrived about five minutes later. Ayala and the other officers forced entry
through a back door.  They
"shimm[ied] the door open" with "a screwdriver-like
device."  In a back bedroom, Ayala
saw appellant sleeping on the floor. 
Ayala awakened him and determined that he was "grossly
intoxicated."  Ayala arrested
appellant for driving under the influence.href="#_ftn2" name="_ftnref2" title="">[2]  At the time of the arrest, appellant was the
only occupant of the house.

>Trial Court's Ruling

            The
trial court ruled that the entry into the house was justified by "exigent
circumstances."  The court concluded
that Ayala "probably had probable cause" to arrest appellant when he
entered the house.

Standard of
Review

            " 'The
standard of appellate review of a trial court's ruling on a motion to suppress
is well established.  We defer to the
trial court's factual findings, express or implied, where supported by
substantial evidence.  In determining
whether, on the facts so found, the search or seizure was reasonable under the
Fourth Amendment, we exercise our independent judgment.  [Citations.]' 
[Citation.]"  (>People v. Weaver (2001) 26 Cal.4th 876,
924.)  "[W]e view the record in the
light most favorable to the trial court's ruling . . . ."  (People
v. Jenkins (2000) 22 Cal.4th 900, 969.)

>Probable Cause to
Arrest Appellant

            Appellant contends that, prior to
entering the residence, Officer Ayala did not have probable cause to arrest him
for driving under the influence. 
Appellant argues: "Without some evidence that [he] had been driving
in a manner that clearly suggested his ability to drive was impaired by
alcohol, Strobridge's observations after the accident raised the suspicion of
intoxication, but did not rise to the level of probable cause." 

            " 'Probable cause exists when
the facts known to the arresting officer would persuade someone of
"reasonable caution" that the person to be arrested has committed a
crime.  [Citation.]  "[P]robable cause is a fluid
concept—turning on the assessment of probabilities in particular factual
contexts . . . ."  [Citation.]  It is incapable of precise definition.  [Citation.] 
" 'The substance of all the definitions of probable cause is a
reasonable ground for belief of guilt,' " and that belief must be
"particularized with respect to the person to be . . . seized."  [Citation.]' 
[Citation.]"  (>People v. Thompson (2006) 38 Cal.4th
811, 818.) 

The
probable cause standard was met here. 
Ayala  could reasonably rely on
the information conveyed by Strobridge.  "[P]rivate
citizens who are witnesses to . . . a criminal act, absent some circumstance
that would cast doubt upon their information, should be considered
reliable."  (People v. Ramey  (1976) 16
Cal.3d 263, 269.)  Strobridge said
appellant was drunk and saw obvious symptoms of intoxication.  Appellant was staggering and "stumbling
all over the place."  He
"needed to use the mailbox [for support] just to stand and
continue." 

Ayala's
observations at the scene of the collision provided further support for believing
that appellant was intoxicated. 
Appellant had been involved in a solo vehicle collision." The
vehicle was on its side off the south roadway edge on the wrong side of the
road.  Appellant had clearly lost control
of the vehicle.  The loss of control was
consistent with intoxication.

Thus,
the information conveyed by Strobridge, together with Ayala's observations at
the scene of the collision, would cause a reasonable person to believe that the
driver of the vehicle was under the influence. 


>Exigent
Circumstances

            Appellant contends that, even if
Officer Ayala had probable cause to arrest him for driving under the influence,
"there were no exigent circumstances justifying warrantless entry into the
residence."  This contention is
forfeited.  During oral argument in the
trial court, appellant's counsel conceded that exigent circumstances justified
the entry if Ayala had probable cause to arrest appellant: "[W]e're
ready to submit . . . that when the police have reason to believe and probable
cause to believe that they need to arrest a particular individual inside a
particular house, the effervescent [sic]
nature of blood alcohol evidence does require that they get in there and do
it."  Counsel's theory was that
"there's no probable cause to believe that a drunk driver was hiding inside that
house."

            In
any event, exigent circumstances justified the warrantless entry.  "The imminent
destruction of evidence is an exigent circumstance justifying a warrantless
entry into a residence to effect an arrest. 
[Citation.]"  (>People v. Thompson, supra, 38 Cal.4th at p. 820.) 
In Thompson our Supreme Court
upheld a warrantless entry into a residence to arrest the defendant for driving
under the influence because his "blood-alcohol level would have diminished
while the police sought a warrant as the body metabolized the alcohol, and . .
. defendant could have masked his blood-alcohol level while the police sought a
warrant by ingesting more alcohol." 
(Id., at p. 825.) 

The
Thompson court noted that it was not
establishing a rule "that the police may enter a home without warrant to
effect an arrest of a DUI [driving under the influence] suspect in >every case."  (People
v. Thompson, supra, 38 Cal.4th at
p. 827.)  The court stated that it was
holding "merely that the police conduct here, taking into account all of
the circumstances, was reasonable - with reasonableness measured as ' "a
balance between the public interest and the individual's right to personal
security free from arbitrary interference
by law officers." ' 
[Citations.]"  (>Ibid.) 

The
police conduct in the instant case was similarly reasonable.  "There was strong evidence that
[appellant] had committed the dangerous act of DUI, a jailable
offense."  (People v. Thompson, supra,
38 Cal.4th at p. 827.)  Officer Ayala
"feared . . . the evidence of that crime was in imminent danger of
destruction."  (Ibid.)  Ayala wanted to test the driver's blood-alcohol level
before the alcohol dissipated.  Ayala
also wanted to prevent the driver from drinking additional alcohol that would
mask his blood-alcohol level when he was driving.  Ayala "went up to an open window that
was in the front of the house and . . . began to yell into the house for
[appellant] to come out."  There was
no response, but Ayala heard "noises coming from inside the house"
that "sounded like doors closing." 
It was reasonable for Ayala to conclude that the driver was refusing to
come outside and talk to the police.  The
entry into the residence through the locked back door did not cause any
property damage.  The door did not have a
dead bolt.  The police "shimm[ied]
the door open" with "a screwdriver-like device."  

In his written
motion to suppress, appellant requested that the court take judicial notice of
the contents of the preliminary hearing transcript.  But the court made no ruling on the request.  "[I]t was
incumbent on counsel, if [he] wished to pursue the matter, to secure a ruling
from the trial court.  The failure to do
so forfeits the claim."  (>People v. Lewis
(2008) 43 Cal.4th 415, 482.)

            Furthermore, as appellant concedes
in his opening brief, this "issue was not raised below."  Pursuant to Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640, appellant may
not raise the issue for the first time on appeal.  "To allow a
reopening of the question on the basis of new legal theories to support or
contest the admissibility of the evidence would defeat the purpose of Penal
Code section 1538.5 and discourage parties from presenting all arguments
relative to the question when the issue of the admissibility of evidence is
initially raised. 
[Citations.]"  (>Id.,
at p. 640, fn. omitted.)

Appellant
requests that we exercise our discretion to consider the issue because it
involves a question of law based on undisputed facts.  "But this is true of most suppression
hearings: the issue usually turns on the inferences to be drawn from undisputed
evidence. . . . [T]he Lorenzana rule is designed to promote resolution
at the trial level not only of issues of fact but also issues of
law."  (People v. Smith (1983) 34 Cal.3d 251, 270, fn. omitted.)

Disposition

                        The judgment is
affirmed.

                        NOT TO BE PUBLISHED.

 

                                                                                                YEGAN,
J.

We
concur:

 

                        GILBERT, P.J.

 

 

                        PERREN, J.



 

 

                       

Barry T. LaBarbera, Judge

Superior Court County of San Luis
Obispo

______________________________

 

 

                        Lyn A. Woodward, under
appointment by the Court of Appeal, for Defendant and Appellant.

 

                        Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, , Supervising Deputy Attorney
General, Mary Sanchez, Esther P. Kim, Deputy Attorneys General, for Plaintiff
and Respondent.