Wednesday, October 31, 2007

San Diego California DUI Law Center case update

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Filed 10/30/07 P. v. Brown CA 4/2

Plaintiff and Respondent,
Defendant and Appellant.
(Super.Ct.No. RIF125140)
APPEAL from the Superior Court of Riverside County. Robert George Spitzer,
Judge. Affirmed.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Maxine
Cutler, and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Alan Leonard Brown guilty of second
degree murder (Pen. Code, § 187, subd. (a),1 count 1), driving under the influence
causing bodily injury (Veh. Code, § 23153, subd. (a), count 2) and driving with a blood
alcohol content of .08 percent or greater causing bodily injury. (Veh. Code, § 23153,
subd. (b), count 3.) Defendant pled guilty to the misdemeanor of driving with a
suspended license. (Veh. Code, § 14601.2, subd. (a), count 4.) The jury also found true
the enhancement allegations on counts 2 and 3 that defendant personally inflicted great
bodily injury on two victims. (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8).) The trial
court sentenced defendant to a total term in state prison of 23 years, including 15 years to
life on count 1, the consecutive term of two years on count 2, plus a consecutive three
years for each of the two great bodily injury enhancements. The court imposed a
concurrent term of six months on count 4, and stayed the sentence and enhancements on
count 3.
On appeal, defendant contends that: 1) the trial court erred in denying his motion
in limine to suppress statements he made to a police officer at the scene of the accident;
and 2) his Sixth Amendment right to a jury trial, as defined in Blakely v. Washington
(2004) 542 U.S. 296 (Blakely), Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi),
and Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856]
1 All further statutory references will be to the Penal Code, unless otherwise
(Cunningham), was violated when the trial court imposed consecutive sentences. We
disagree and affirm.
At around 2:00 a.m. on July 21, 2005, Christian Esquivel was driving his mother’s
car with two passengers, in Corona. He stopped at a flashing red light at the intersection
of Sixth Street and Smith, looked to his left, and saw a red car coming. He could not
determine its speed. Esquivel proceeded into the intersection. The red car, which had
been spotted by police officers speeding just moments before, did not slow down or stop.
Officer Robert Paul, who had responded to a call for assistance regarding the speeding
car, drove to the intersection of Sixth and Smith in time to observe a collision between
the red car and Esquivel’s car. Officer Paul estimated that the red car was going
approximately 100 miles per hour. Esquivel’s car spun around, stopped at the curb, and
immediately caught on fire. One of Esquivel’s passengers was ejected from the car and
died as a result of blunt force head trauma. Esquivel and the other passenger were pulled
out of and away from the burning car and were hospitalized for several days.
After hearing about the collision, Officer Jason Morris drove to the scene of the
accident. He saw other officers tending to the burning car at the intersection of Sixth and
Smith so he drove further west on Sixth Street, where he saw the red car, which was
turned over on its roof.2 He approached the car and noticed one male occupant in it—
defendant. As Officer Morris dragged defendant out of the car, defendant cried out in
2 The record refers to the red car as burgundy and maroon, as well.
pain. A large can of beer fell out of the car with him. Officer Morris dragged defendant
10 to 15 feet away from the car and waited with him for paramedics to arrive. At that
point in time, he did not arrest defendant or handcuff him because he had no reason to do
so. While Officer Morris was waiting with defendant, he asked him some questions
about the collision and tape recorded the conversation with a digital tape recorder.3
Officer Morris asked defendant, “What happened, dude?” Defendant said he went
through a stop sign. Officer Morris asked him if he had been drinking, and then asked
how much he had been drinking. Defendant replied, “Not enough.” Officer Morris
asked him a few other brief questions, including where he was in pain, which way he was
driving, what and where he was drinking, if he was wearing his seatbelt, and how fast he
was going. When the paramedics arrived, they placed defendant in an ambulance and
drove him to the hospital, unaccompanied by any police officer. Officer Morris drove to
the hospital in his police car.
Police Investigator Bryan Wilson, a traffic investigator and accident
reconstructionist, arrived at the scene of the collision at 2:30 a.m. From his investigation,
he concluded that defendant was driving between 93 and 113 miles per hour, while
Esquivel was driving between 16 and 21 miles per hour.
Investigator Wilson interviewed defendant at the hospital at 9:30 a.m., later that
morning. Defendant told Investigator Wilson that he had previously been arrested for
3 The jury was given a transcript of the recording, and the recording was played
for the jury.
driving under the influence (DUI) twice, once causing a collision. He told Investigator
Wilson that his license was currently suspended because he was supposed to have an
ignition interlock device4 installed in his car, but he never did. His license had been
suspended for the past 12 years. He also stated that he completed a DUI program 15
years ago, but failed to complete the program the second time. Defendant admitted that
the current collision was his fault. He said he was speeding down the street to catch the
green lights. In addition, he told Investigator Wilson that he was taking Prozac and
Trazodone. Investigator Wilson subsequently obtained defendant’s prescription bottles
from his mother. Both bottles contained warning labels stating that the drugs could cause
drowsiness, which could be intensified by alcohol.
A blood sample was taken from defendant at 3:05 a.m., and his blood alcohol level
was .19. The test also revealed Prozac and Trazodone in his blood.
I. The Trial Court Properly Denied Defendant’s Motion in Limine to Suppress His
Statements to Officer Morris
Defendant argues that the evidence of his statements to Officer Morris at the scene
of the collision was improperly admitted in violation of his rights under Miranda.5 The
issue is whether defendant was “‘taken into custody or otherwise deprived of his freedom
of action in any significant way.’ [Citation.]” (People v. Forster (1994) 29 Cal.App.4th
4 Defendant referred to it as a “breath machine.”
5 Miranda v. Arizona (1966) 384 U.S. 436.
1746, 1753 (Forster).) We conclude that he was not; therefore, the Miranda safeguards
did not apply.
A. Procedural Background
A preliminary hearing was held on December 2, 2005. Officer Morris, whose
subsequent trial testimony is presented above in the statement of facts, testified at the
preliminary hearing that he asked defendant questions about what happened after the
collision. When the prosecutor asked Officer Morris what defendant told him, defendant
objected, based on Miranda. After initially overruling the objection, the court sustained
it. A lengthy discussion then ensued about whether defendant was free to leave and if
Miranda applied. During the discussion, the court asked Officer Morris if he would have
allowed defendant to walk away while he was questioning him. Officer Morris replied,
“Absolutely not, sir, because I have a duty to investigate the traffic accident.” The
prosecutor requested the court to admit the evidence of defendant’s statements to Officer
Morris, subject to a motion to strike at the end of the hearing. The court agreed to do so.
It then continued the preliminary hearing to December 16, 2005.
At the continued preliminary hearing, Officer Morris testified that defendant was
not in custody at the time he was asking questions about the collision. Officer Morris
asked defendant how fast he was going, and if he had had any alcohol to drink. In
response to the latter question, defendant said, “‘Not enough.’” At that point, Officer
Morris said he ceased questioning defendant, and the paramedics took defendant to the
At the close of evidence at the preliminary hearing, the court asked the parties to
address defendant’s Miranda objection to Officer Morris’s testimony regarding
defendant’s statements made at the scene of the collision and at the hospital. The court
then denied defendant’s request to suppress the statements, citing Berkemer v. McCarty
(1984) 468 U.S. 420 (Berkemer) and other cases.
Subsequently, defendant filed a motion in limine to suppress his statements made
to Officer Morris at the scene of the collision. He claimed that he was in custody and
should have been given Miranda warnings before being questioned, considering the
circumstances that: 1) he caused a major traffic accident and the police were on the
scene; 2) Officer Morris testified at the preliminary hearing that he was not allowed to
leave, pending investigation of the collision; and 3) Officer Morris knew that defendant
was not going to get up and leave, given his injuries. The court concluded that the
interview that occurred at the scene of the collision did not constitute a custodial
interrogation, within the meaning of Miranda. The court specifically noted that the
contact between Officer Morris and defendant was relatively brief, and that the officer
simply presented “an open-ended question, ‘What happened?’ and a few follow-up
B. Standard of Review
On appeal, “[w]e apply a deferential substantial evidence standard to the trial
court’s factual findings, but independently determine whether the interrogation was
custodial. [Citation.]” (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403 (Pilster).)
C. Defendant Was Not in Custody
“It is settled that the safeguards prescribed by Miranda become applicable as soon
as a suspect’s freedom of action is curtailed to a ‘degree associated with formal arrest.’
[Citation.]” (Berkemer, supra, 468 U.S. at p. 440.) “Custody determinations are resolved
by an objective standard: Would a reasonable person interpret the restraints used by the
police as tantamount to a formal arrest? [Citations.] The totality of the circumstances
surrounding an incident must be considered as a whole. [Citation.]” (Pilster, supra, 138
Cal.App.4th at p. 1403, fn. omitted.) Objective indicia of custody for Miranda purposes
include: “(1) whether the suspect has been formally arrested; (2) absent formal arrest, the
length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the
demeanor of the officer, including the nature of the questioning.” (Forster, supra, 29
Cal.App.4th at p. 1753.)
In Berkemer, the United States Supreme Court concluded that an officer’s roadside
questioning of a motorist detained pursuant to a routine traffic stop did not constitute
custodial interrogation for Miranda purposes. (Berkemer, supra, 468 U.S. at pp. 435-
440.) The Court noted that the “detention of a motorist pursuant to a traffic stop is
presumptively temporary and brief.” (Id. at p. 437.) The court then contrasted a
stationhouse interrogation, “which frequently is prolonged, and in which the detainee
often is aware that questioning will continue until he provides his interrogators the
answers they seek.” (Id. at pp. 437-438.)
Here, defendant has failed to demonstrate that he was subjected to restraints
comparable to those associated with a formal arrest. When Officer Morris questioned
defendant, he had not been formally arrested. The length of the questioning was very
brief, as noted by the court. Defendant was questioned at the scene of the collision, not a
police station. This public atmosphere, in which passersby could view the interaction,
was “substantially less ‘police dominated’ than that surrounding the kinds of
interrogation at issue in Miranda itself . . . .” (Berkemer, supra, 468 U.S. at pp. 438-
439.) Officer Morris was the only officer questioning defendant, and the questions were
open-ended, non-accusatory, and investigative. The officer simply asked questions to aid
his investigation of the collision. (i.e., What happened? Were you drinking? How fast
were you going? Were you wearing a seatbelt?) Even after questioning defendant,
Officer Morris did not place him under arrest. He waited with him for the paramedics to
arrive. Defendant then went to the hospital in the ambulance, unaccompanied by any
police officer.
Although Officer Morris told the court he would not have allowed defendant to
walk away while he was questioning him because he had a duty to investigate the
accident, his intention was not communicated to defendant. “A policeman’s
unarticulated plan has no bearing on the question whether a suspect was ‘in custody’ at a
particular time; the only relevant inquiry is how a reasonable man in the suspect’s
position would have understood his situation.” (Berkemer, supra, 468 U.S. at pp. 442, fn.
Considering the totality of the circumstances surrounding the questioning of
defendant, we conclude he was not in custody and was thus not entitled to Miranda
D. Any Error Was Harmless
Defendant argues that the court’s admission of his comment, “Not enough” (his
response when Officer Morris asked him how much he had to drink), was prejudicial
error, since the prosecutor allegedly used that statement to prove implied malice. Any
error in admitting that statement was harmless beyond a reasonable doubt. (People v.
Peracchi (2001) 86 Cal.App.4th 353, 363.)
Defendant correctly points out that the prosecution used defendant’s statement,
“Not enough,” in his closing argument. The prosecutor argued that, after defendant had
been drinking for four hours, his attitude was that he had not had enough, and that remark
said a lot about his disregard for the lives and safety of others. However, there was an
abundance of other evidence that showed defendant’s conscious disregard for life.
Defendant admitted during his interview with Investigator Wilson that he had two
previous arrests for driving under the influence—one of which involved a collision.
Defendant was required to, and did, complete a DUI program, as a result. This fact alone
showed that defendant had knowledge of the dangers of driving under the influence. He
also admitted that he failed to complete the DUI program the second time he was
supposed to take it. At the time of the current collision, defendant was driving with a
license that had been suspended for 12 years. He admitted that he was supposed to install
an ignition interlock device, but never did. Moreover, defendant took Prozac and
Trazodone that day, and, despite the warnings against mixing drugs with alcohol, he
consumed so much alcohol that his blood alcohol level was .19 percent. He then drove
his car between 93 and 113 miles per hour. In light of this evidence, which clearly
displays defendant’s implied malice, any error in admitting his statement was harmless
beyond a reasonable doubt.
II. The Trial Court Properly Imposed Consecutive Sentences
Defendant claims that the trial court’s imposition of the sentence in count 1
consecutive to the sentence in count 2, based on facts that were not found true beyond a
reasonable doubt by the jury violated his constitutional rights to a jury trial and due
process, under Blakely, supra, 542 U.S. 296, and Apprendi, supra, 530 U.S. 466. He
argues that applying Blakely and Apprendi to consecutive sentencing is consistent with
the reasoning of Cunningham, supra. We disagree.
Cunningham did not address the constitutionality of California’s Determinate
Sentencing Law (DSL) pertaining to a trial court’s decision to impose concurrent or
consecutive sentences. It thus did not overrule the California Supreme Court’s decision
in People v. Black (2005) 35 Cal.4th 1238 (Black) (overruled on other grounds in
Cunningham, supra) that “Blakely’s underlying rationale is inapplicable to a trial court’s
decision whether to require that sentences on two or more offenses be served
consecutively or concurrently.” (Id. at p. 1262.) We are bound by Black’s holding that
the reason(s) for imposing a consecutive term need not be determined by the jury.
(Black, supra, at pp. 1263-1264; see Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal. 2d 450, 455-456.)
The judgment is affirmed.
Acting P.J.
We concur: