Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 62061196
CANTIL-SAKAUYE, J.
Defendant, William Gregory Hammond, found unconscious in the driver’s seat of his car parked at a gas pump, challenges his fourth conviction for driving under the influence of alcohol. A jury convicted defendant of driving under the influence of alcohol with three or more prior convictions (Veh. Code, §§ 23152, subd. (a), 23550), driving with a blood-alcohol content of .08 percent or more with three or more prior convictions (§§ 23152, subd. (b), 23550), driving when his license was suspended for a prior driving under the influence offense, a misdemeanor (§ 14601.2, subd. (a)) and two counts of driving on a suspended license, misdemeanors (§§ 14601.5, subd. (a), 14601.1, subd. (a)). In bifurcated proceedings, defendant admitted three prior driving under the influence convictions, one prior driving on a suspended license conviction and the allegation that his blood-alcohol content was .20 percent or more.
Hereafter, undesignated statutory references are to the Vehicle Code.
The court sentenced defendant to state prison for an aggregate term of two years.
Defendant appeals contending (1) insufficient evidence supports his convictions, and (2) counsel rendered ineffective assistance in failing to renew his suppression motion in the trial court. We will affirm the judgment.
FACTS
About 1:45 a.m. on May 25, 2006, a white car pulled up to a gas pump at an AM/PM gas station located in Roseville. The station’s cashier, Ronald Gilpin, saw the car arrive. The car was 20 to 30 yards away but Gilpin could not see the driver. He saw no activity whatsoever around the car after it pulled up. Gilpin saw no one get in or out of the car nor did he see anyone pump any gas. He saw no one and no other cars near the white car. After 2:00 a.m., Gilpin became concerned when the white car was still parked at the pump. He thought something might be wrong plus a fuel truck was scheduled to arrive to deliver fuel around 2:00 a.m. or 2:15 a.m. and the white car was in the way. About 2:15 a.m., the fuel truck arrived.
At 2:24 a.m., Gilpin called 911, reporting that a white car had been sitting at the station for almost one-half hour, something may be wrong with the driver who may be asleep, and that the fuel truck could not deliver fuel.
Roseville Police Officer Brent Northrup went to the station to investigate a reported driver slumped over the wheel. When he arrived, he saw only one car near the gas pumps at the station and no one else near the car. The white car was registered to defendant. Officer Northrup walked up to the driver’s window which was all the way up and saw defendant slumped in the driver’s seat without a seatbelt and with his head down towards his chest. The car radio was on and very loud. The engine and headlights were off but the engine lights on the dashboard were on. The keys were in the ignition. Officer Northrup watched defendant breathe for about 30 seconds and then knocked on the driver’s window. Defendant did not respond. Officer Northrup opened the driver’s door and the dome light went on. Defendant woke up, reached towards the keys in the ignition and pushed the gear shift towards park but it was already in park. Officer Northrup asked defendant to turn the music down and he did so. The officer asked defendant to get out and when he did so, he was very unsteady. Officer Northrup smelled the odor of alcohol on defendant. Defendant had red, bloodshot and glassy eyes. When asked, defendant denied having had anything to drink but later said he had been drinking at various places in Sacramento and was going home. He denied feeling the effects of alcohol. At first, he claimed he was diabetic and then said he was not. He also claimed he had neck and back problems but never said the problems would interfere with his performance of the field sobriety tests. Defendant failed several field sobriety tests and when tested twice with a preliminary alcohol screening device (PAS), his blood-alcohol content registered .21 and .22 percent. Officer Northrup arrested defendant. An intoxilyzer test at 3:53 a.m. revealed .21 and .22 percent blood-alcohol content. Defendant had a suspended license.
Officer Northrup testified that defendant never claimed that someone else had been driving.
Defendant testified. He drove to work that day. When he got off work as an electrician at 3:30 p.m. on May 24, 2006, he went out to dinner with friends. He then went to the Embers Bar where he played pool and drank beer from about 5:30 p.m. on May 24 to 12:45 a.m. on May 25, 2006. He denied driving thereafter because he realized he was drunk. Jeff, whose last name defendant did not know, offered to drive defendant home in defendant’s car while another man whom defendant did not know offered to follow in a separate car. Defendant accepted. Along the way, the gas light on defendant’s car went on. Defendant did not want to get gas in the morning so told Jeff to stop at a gas station. At the station, Jeff got out, defendant got out and got into the driver’s seat and then Jeff left with the other man in the other car. Defendant fell asleep while looking for the phone to call his parents for a ride home.
Defendant claimed he told the officer that he did not know whether he was diabetic but that he might be because his parents were. He told the officer that he had knee and back problems. He said he told the officer he had been drinking. Defendant never told anyone that someone else had been driving nor did he try to find Jeff. Defendant claimed that he told the officer he had not been driving.
Defendant admitted he had previously pled to a charge of failing to stop for an officer, explaining he had been driving his father’s car and did not want it towed so he drove to his parents’ home. He admitted he had been driving under the influence at the time.
I.
Defendant challenges the sufficiency of the evidence to support his convictions arguing: no one saw him drive; the engine was not running; and the car was in park. He claims the officer did not have the authority to arrest him under section 40300.5 since none of the circumstances applied. We reject defendant’s contention.
First, compliance with section 40300.5 is not an element of any of the offenses with which defendant was charged.
Section 40300.5 provides:
And second, circumstantial evidence supported the jury’s finding that defendant had been driving the car and his conviction on all counts. (People v. Thomas (1992) 2 Cal.4th 489, 514.) Gilpin testified that he saw the white car pull into the station but saw no activity near the car for almost half an hour. The jury could reasonably conclude that defendant drove to the station, parked at the pump and then passed out at the wheel. Officer Northrup testified that he came upon defendant slumped in the driver’s seat, key in the ignition, impervious to the loud radio, the officer’s presence and the knock on the window. Upon contact, defendant reached for the keys and pushed the gear shift. He also displayed objective symptoms of intoxication, his coordination was impaired, and his blood-alcohol content was .21 percent.
Count one, driving under the influence, required the prosecution to prove: “1. The defendant drove a vehicle; [¶] AND [¶] 2. When he drove, the defendant was under the influence of an alcoholic beverage.” (CT 51) Count two, driving with a blood-alcohol level of 0.08 percent or more, required the prosecution to prove: “1. The defendant drove a vehicle; [¶] AND [¶] 2. When he drove, the defendant’s blood[-]alcohol level was 0.08 percent or more by weight.” Counts three, four and five, the driving on a suspended license counts, required the prosecution to prove: “1) the defendant drove a motor vehicle; 2) while his privilege to drive was suspended” for a specified reason in each count “and 3) the defendant had knowledge of said suspension.”
And, given the defendant’s conflicting statements to the officer at the scene and his contrary testimony at trial, the jury could reasonably credit the officer’s testimony and reject defendant’s testimony explaining his slumbering presence at the pump. Thus, sufficient evidence supports the jury’s conclusion that defendant was the driver.
II.
Defendant moved to suppress the evidence at the preliminary hearing and his motion was denied. Defense counsel did not renew the motion in the superior court. A Penal Code section 995 motion was dropped. In order to raise the issue on appeal, a defendant must litigate the issue in the superior court either in the form of a motion under Penal Code section 995 or as a renewed motion to suppress under Penal Code section 1538.5, subdivision (i). (Pen. Code, § 1538.5, subd. (m); People v. Lilienthal (1978) 22 Cal.3d 891, 896-897.) Since defense counsel did neither, defendant claims counsel rendered ineffective assistance in failing to do so. We conclude that defendant has failed to demonstrate that counsel’s performance was deficient.
To establish ineffective assistance of counsel, defendant must demonstrate that counsel’s performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693, 696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) Counsel’s ineffectiveness in failing to preserve the issue of the denial of a suppression motion at the preliminary hearing when raised on appeal necessitates appellate review of the merits of the Fourth Amendment claim if there has been a trial. (People v. Hinds (2003) 108 Cal.App.4th 897, 902; People v. Hart (1999) 74 Cal.App.4th 479, 486; People v. Terrell (1999) 69 Cal.App.4th 1246, 1252-1254.) Defendant must show that his Fourth Amendment claim had merit. (People v. Frye (1998) 18 Cal.4th 894, 989 (Frye).) Where the record fails to show counsel’s reasons for failure to move to dismiss or to renew the suppression motion, we affirm unless counsel was asked for an explanation but failed to provide one or where there simply can be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267; People v. Pope (1979) 23 Cal.3d 412, 425-426, overruled in part as stated in Farris v. Kernan (E.D.Cal., Oct. 17, 2007, No. CIV S-04-1758 GEB KJM P) 2007 U.S. Dist. LEXIS 81588.) The record here reflects a rational reason why defense counsel did not renew the issue in the superior court. The issue had no merit.
Prior to the preliminary hearing, defendant filed a motion to suppress the evidence, asserting that he was detained, questioned and arrested without a warrant. At the preliminary hearing, defense counsel stated that defendant moved to suppress based on the detention and the arrest.
Officer Northrup testified at the preliminary hearing substantially the same as at trial. He had been an officer with the Roseville Police Department for four months and prior to that, he had been an officer with the Santa Cruz Police Department for nine years. He received a dispatch at 2:20 a.m. on May 25, 2006, that there was a person passed out behind the wheel of a car parked at an AM/PM gas station. Officer Northrup arrived and saw only one car which was parked at the far pump. The car matched the description. Only one person was in the car. Defendant sat slumped forward in the driver’s seat, the key was in the ignition and turned on, the dashboard lights were on and the engine and headlights were off. Officer Northrup watched defendant breathe for about 30 seconds. Officer Northrup knocked on the door but defendant did not respond. Officer Northrup opened the car door, the light inside went on and defendant woke up. The officer asked defendant to turn down the radio which was playing loudly. Defendant instead moved his hand towards the ignition key and then tried to push the gear shift into park but it was already in park, reflecting he had some coordination problems. He turned the radio down. The officer smelled a moderate to strong odor of alcohol emitting from defendant whose eyes were red, bloodshot and glassy. The officer asked defendant to get out of the car. He did so with the officer’s help and was unsteady on his feet. Defendant denied that he had been drinking and said he had not been driving. He later said he had been drinking at various places in Sacramento and was going home. Defendant initially claimed he was diabetic and then said he was not. He failed several field sobriety tests which the officer administered. Defendant claimed he could not lift his leg for one of the tests, stating he was too nervous. His PAS tests revealed .212 and .217 blood-alcohol content. Defendant never said anyone else had been driving his car. The officer arrested defendant for driving under the influence. The officer spoke with Gilpin. The officer testified that Gilpin explained that he did not see defendant’s car drive in but noticed it at 2:00 a.m. at the pumps. When it was still there at 2:30 a.m., he called the police. Gilpin had waited on several other customers during that time. Gilpin believed that defendant had been the only person behind the wheel since no one paid for gas or pumped gas. Gilpin could see defendant’s car from inside the market. At 3:35 a.m., defendant’s breath tests showed .22 and .21 percent.
At trial, on direct and recross-examination, Gilpin testified that he did see the car drive in, but did not see who was driving or anyone associated with the vehicle.
In opposing the suppression motion at the preliminary hearing, the prosecutor argued that the officer’s initial contact with defendant did not constitute a detention in that Gilpin was concerned about the driver’s welfare and the officer had to open the door to check. The prosecutor claimed it could have been a medical emergency. She also argued that the car was not legally parked. Once the officer opened the door, defendant exhibited signs of intoxication and his detention was authorized by reasonable suspicion that he had been driving while intoxicated. Citing People v. Thompson (2006) 38 Cal.4th 811 (Thompson), the prosecutor argued the arrest was authorized by section 40300.5, subdivisions (c), (d) or (e).
Relying on the totality of the circumstances, the magistrate found no illegal detention and after opening the door, the officer had a reasonable suspicion that defendant had been driving under the influence of alcohol. The magistrate found that defendant was slumped in the driver’s seat, did not respond to a knock on the door, and there had been a complaint by the property owner about someone parked at the pump without pumping gas and was concerned about the driver’s welfare. The magistrate noted that the circumstances “certainly would seem to call for a little follow-up” and the officer opened the door to check on the driver’s welfare and if he had not done so “would have been less than diligent.” The magistrate held defendant to answer, denying defense counsel’s motion to reduce the offense to a misdemeanor. The magistrate deemed the complaint to be an information.
Based on the record, we conclude that defendant has failed to demonstrate that counsel’s performance was deficient.
Exigent circumstances justified the initial, minimal intrusion. When an officer is confronted with exigent circumstances, “the failure to comply with the warrant requirement is justified.” (Frye, supra, 18 Cal.4th at p. 989.)
Exigent circumstances means “an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.” (People v. Ramey (1976) 16 Cal.3d 263, 276; see Frye, supra, 18 Cal.4th at p. 989.) Whether exigent circumstances exist must be measured by the facts known to the officer; the test is an objective one, that is, “the facts known to Officer [Northrup] must demonstrate that his belief in the existence of exigent circumstances was objectively reasonable. [Citations.]” (People v. Ortiz (1995) 32 Cal.App.4th 286, 292.) Courts will not second-guess an officer’s response in the field. (People v. Wilson (1997) 59 Cal.App.4th 1053, 1063.)
In this case, defense counsel could reasonably conclude that the evidence adduced at the preliminary hearing supported the conclusion that exigent circumstances existed. Defendant was slumped over, appearing to be unconscious but breathing despite the blaring radio, and had been sitting in the car without movement for 30 minutes or more. It was after 2:00 a.m., after closing time for bars. The car had the ignition on but the headlights and engine off. Defendant did not notice the officer at his window or respond to the officer’s knock on the window. Defendant may have required emergency aid. (Mincey v. Arizona (1978) 437 U.S. 385, 392-394 [57 L.Ed.2d 290, 299-301].) Or, had the officer left defendant in such state, defendant may have driven off, intoxicated, and caused serious and dangerous property damage to the pump and/or injury to others. Driving while intoxicated is a serious offense in California and defendant presented a substantial threat because he was in the driver’s seat of his car which was on but not running (see Thompson, supra, 38 Cal.4th at p. 821). The officer’s action in opening the door was justified by exigent circumstances, that is, to check on defendant’s welfare and prevention of danger to others, to property, and the destruction of evidence.
Further, under the totality of the circumstances, a detention was reasonable. “A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.” (People v. Souza (1994) 9 Cal.4th 224, 231.) “The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of his investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal -- to ‘enable the police to quickly determine whether they should allow the suspect to go about his business or hold him to answer charges.’ [Citation.]” (In re Tony C. (1978) 21 Cal.3d 888, 894 (Tony C.).)
Although there could have been an innocent explanation for the facts of this case, it was reasonable for Officer Northrup to investigate further and administer field sobriety tests to determine whether defendant had, in fact, been driving while intoxicated. (See Tony C., supra, 21 Cal.3d at p. 894.)
Since the search and seizure was legal, defendant has failed to demonstrate that defense counsel’s performance was deficient.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., NICHOLSON, J.
“In addition to the authority to make an arrest without a warrant pursuant to paragraph (1) of subdivision (a) of Section 836 of the Penal Code, a peace officer may, without a warrant, arrest a person when the officer has reasonable cause to believe that the person had been driving while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug when any of the following exists:
“(a) The person is involved in a traffic accident.
“(b) The person is observed in or about a vehicle that is obstructing a roadway.
“(c) The person will not be apprehended unless immediately arrested.
“(d) The person may cause injury to himself or herself or damage property unless immediately arrested.
“(e) The person may destroy or conceal evidence of the crime unless immediately arrested.”