Opinion
A150121
05-03-2018
THE PEOPLE, Plaintiff and Respondent, v. JESUS ANTONIO SARABIA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51511849)
Following a jury trial, appellant Jesus Antonio Sarabia was convicted of leaving the scene of a fatal accident and filing a false police report. Later, after the jury was unable to reach a verdict on the remaining charges, appellant entered an open plea to vehicular manslaughter, admitting the attendant flight enhancement, and to reckless driving. The trial court sentenced appellant to seven years in state prison. Appellant's counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel submitted a declaration stating that he notified appellant that no issues were being raised by counsel on appeal and that an independent review under Wende instead was being requested. Counsel also advised appellant of his right personally to file a supplemental brief raising any issues he chooses to bring to this court's attention. No supplemental brief has been filed by appellant personally. Upon review of the record for potential error, we conclude no arguable issues are presented for review and affirm the judgment. We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
BACKGROUND
The Charges
On May 9, 2015, appellant was arrested after calling 911 to report that his vehicle had been stolen. After making contradictory statements to the responding officers about the alleged theft, appellant said that he had been involved in a traffic accident and had not stopped.
A witness observed appellant, on May 8, 2015, around 9:50 p.m., racing another car on westbound Interstate 80. While racing, appellant hit a pickup truck that had been in one of the slower lanes. The collision caused the pickup truck to flip approximately five times. The driver of the pickup truck was severely injured in the collision and died approximately 90 minutes later.
By information filed on July 17, 2015, the Contra Costa County District Attorney charged appellant with vehicular manslaughter in violation of Penal Code section 192, subdivision (c)(1), with an enhancement for fleeing the scene; leaving the scene of an accident with permanent serious injury in violation of Vehicle Code section 20001, subdivision (a), (b)(2); misdemeanor reckless driving with bodily injury in violation of Vehicle Code section 23104; and misdemeanor false report of criminal offense in violation of Penal Code section 148.5, subdivision (a).
Motions to Suppress
Prior to trial, the prosecutor advised defense counsel that he planned to get a search warrant to obtain electronic data stored in appellant's car, which had been towed to a secure location. The original warrant authorized officers to search appellant's car "including any Event Data Recorder (EDR) and/or any data collection system, module or device of any kind . . . for all files and/or electronic data (in all forms) to include date and time . . . for evidence of any kind specifically related to the use, status, or deployment of any safety restraint system, and/or supplemental restraint system . . . ."
Information obtained pursuant to the original warrant, following the retrieval of data stored in the Airbag Control Unit ("ACU") in appellant's car, was used to produce a supplemental report, which included information about the speed of appellant's vehicle just prior to the crash, including information that the car had been traveling over 100 miles per hour, before slowing to 68 miles per hour at impact.
Appellant filed a motion to suppress, based in part on the lack of notice required by Penal Code section 1546.2, subdivision (a), and in part on the warrant's failure to describe with particularity the information being sought, including the applicable time periods, as required by Penal Code section 1546.1, subdivision (d). In response, the prosecutor sought a "curative warrant."
An affidavit supporting issuance of the curative warrant stated that it was being sought to obtain information regarding the fatal traffic collision that occurred on May 8, 2015 around 9:56 p.m., incorporated the application for the original warrant, discussed the original warrant and the motion to suppress, and stated that the "purpose of the new warrant is to cure the potential issues raised by the defense."
The curative warrant was limited to a search for evidence regarding felonies committed on "the date of May 8th, 2015 around 9:56 pm." Information obtained during subsequent retrieval of the data stored in the ACU in appellant's car pursuant to the curative warrant was used to produce a second supplemental report, which included the same information about the speed of appellant's vehicle just prior to the crash.
Appellant filed a second motion to suppress on March 10, 2016, focusing on the defects in the original warrant and arguing that if that search was unlawful the evidence had to be suppressed.
The trial court denied the second motion to suppress, after finding that the notice requirements for seeking personal information for wire taps did not apply to a warrant seeking information about vehicle performance from an airbag control download, distinguishing People v. Jackson (2005) 129 Cal.App.4th 129. The court believed appellant had received sufficient notice that the car he was driving was the subject of an airbag control request. The court ruled that the first search warrant, combined with the probable cause statement, adequately defined the date, time and event with particularity, and was not overly broad. The court further ruled that the second or curative warrant was not the fruit of a prior, illegal search, because the information obtained from the first warrant was not acted upon.
Prior to trial, appellant also moved to suppress identification evidence discovered in his car. At the hearing on the motion to suppress the identification evidence, California Highway Patrol (CHP) Officer Michael Diehl testified that he was on duty around 9:56 on the night of May 8, 2015, when he was dispatched to a traffic collision on Interstate 80 westbound, on the San Francisco or west side of Solano Avenue in Richmond. When he arrived at around 10:04 p.m., Officer Diehl saw a silver Toyota pickup, which had apparently rolled multiple times, lying on its left side, partially blocking the Solano Avenue on-ramp. Officer Diehl asked the driver and sole occupant of the vehicle, who showed obvious signs of trauma including two broken legs, whether he had been struck by another vehicle and the driver said or indicated "yes."
The dispatcher advised Officer Diehl to go to South 49th Street and Wall Avenue in Richmond, where a witness to the collision named, Anthony Interrante, reported the location of the car that struck the silver pickup. Upon arrival at the location, which was one to one-and-a-half miles away from the accident scene, Officer Diehl saw that a white Nissan Altima two-door coupe was now parked on the right side of the road, but within the roadway. The car was blocking traffic and was sitting at a northwesterly 45 degree angle, with the front end 2-5 feet from the curb and the rear end significantly further away, sticking out into the lane of travel. He could not recall if there was a dividing line, but believed a car would have to go into oncoming traffic to get around the Nissan.
The vehicle was warm to the touch; Officer Diehl saw fluids from the engine compartment, a silver paint transfer, a seat belt hanging from the door jamb, and one deployed airbag. There was also damage to the front left of the Nissan. The driver's door was locked. Officer Diehl confirmed that the license plate number provided by Interrante matched the license plate on the Nissan.
Officer Diehl decided to take the vehicle for an evidence tow and, pursuant to policy, planned to inventory the vehicle, including any containers, to document valuable property prior to it being towed to a certified location. Diehl was trying to determine who was driving the vehicle because it was involved in a collision with major injuries. With the tow truck on the way, Diehl searched the car due to exigent circumstances, based on his belief that the car had been involved in an accident involving extreme injuries, the car was registered in Mexicali or Calexico, and the car could still travel if the owner returned. Before searching the car, Officer Diehl talked to Interrante, who confirmed he had seen the collision on Interstate 80. During the search, Diehl found a W-2 form with appellant's name on it and a brown paper bag containing a liquor store receipt and an unopened bottle of beer.
The name, however, is not intelligible in this transcript due to an apparent typographical error.
The court found that, even without any information from Interrante, Officer Diehl had probable cause to believe the Nissan had been involved in a fairly serious accident involving someone leaving the scene, based on facts that included the short distance between the accident scene and the final location of the Nissan, and the paint transfer. But the court also found that the information from Interrante, when combined with that information, justified seizing and searching the car. The person who called the dispatcher was identified by name and was available to the officer, thus precluding any Harvey-Madden issue. The court further noted that defense counsel could have investigated Interrante if there were any Harvey-Madden issues regarding an illusory informant.
People v. Harvey (1958) 156 Cal.App.2d 516; People v. Madden (1970) 2 Cal.3d 1017.
The court concluded that Officer Diehl acted reasonably under the Fourth Amendment based on the information he had, which provided probable cause for the search. A car blocking the roadway had apparently been involved in a serious injury accident, and the officer's steps to get it out of the roadway and search it for evidence would have been reasonable even if there had been no evidence that the car was involved in an accident. The evidence would inevitably have been discovered because the car was blocking the roadway.
Additionally, the court found the car had been abandoned, even though it was locked. In the absence of any evidence regarding the involvement of an actual owner of the car who might have a future interest in it, the court found a driver who had borrowed a car, left a disabled car and had not returned to get help, and parked the car so it obstructed the roadway, had no reasonable expectation of privacy in it.
Appellant's father was the registered owner of the car; he confirmed appellant had permission to use the car.
Evidence at Trial
Lizeth Franco testified that she was a passenger in a car going west on Interstate 80 near the San Pablo Dam Road exit around 9:50 p.m. on May 8, 2015. Her boyfriend was driving the speed limit in the slow lane when two cars driving fast right behind each other got on the freeway from the San Pablo Avenue on-ramp and swiftly moved in sync from the slow lane all the way to the fast lane. Franco's boyfriend had to brake as the cars zoomed past them, and she commented to him that the cars were going fast. Franco recalled that the car that was following was white, but could not recall what the other car looked like. About two minutes later she saw a car in the slow lane, or possibly on the shoulder, completely flipped over, lying on its roof. She had not seen any collision and believed the accident had just happened as she noticed traffic starting to slow. Franco immediately reported the accident to 911.
Anthony Interrante testified that on the evening of May 8, 2015 and around 9:50 p.m., he was driving west on Interstate 80 heading to San Francisco. Interrante was in the second lane, next to the fast lane, one-half to one mile before the Cutting Boulevard exit in Richmond, and was going at least 80 miles per hour in a new car he wanted to test out. Traffic was moving at a similar pace, when two cars passed him on his left going considerably faster than 80 miles per hour. Over objection, Interrante estimated the two cars were going at least 100 miles per hour, and were within a car length of each other.
Interrante's attention was focused on the first car, a white two-door coupe, which he later followed, though he also noticed that the second car was a darker color. A third car in the fast lane was not going as fast as those two cars, so two to three seconds after the two cars passed Interrante they shifted together across four lanes of traffic to the far right or slow lane.
As Interrante watched the scene to his right, he saw the front portion of the passenger side of the white vehicle hit or sideswipe the front portion of the driver's side of a pickup truck that was in the far right lane. He saw no brake lights. The collision caused the truck to go straight up in the air five truck lengths high, flip several times and then roll over five to six times after it hit the ground, as he drove by. This occurred within ten seconds of when he had first spotted the white car. Interrante was unable to stop safely, and believed that there was no helping the driver of the truck, because he assumed there was no chance to survive the way the truck hit the ground. Interrante focused on the white car that he believed had caused the accident, which had pulled over to the shoulder of the road with its hood up and hazard lights on, and smoke or steam coming out of the front. The white car stopped for five to ten seconds until the hood came down, and then continued west on Interstate 80. He followed the car because he was concerned the driver, who had been so reckless, would continue to drive recklessly, and he wanted to stop it.
Officer Diehl testified that he was dispatched to a traffic collision on Interstate 80 west of Solano Avenue at around 9:55 p.m. on May 8, 2015. When he arrived at 10:04 p.m., he saw an overturned silver Toyota Tacoma pickup truck lying on the driver's side on the shoulder next to lane five, with the front end pointing the wrong way into traffic. As he got closer to the truck, Officer Diehl saw that paramedics were aiding the driver who had been partially ejected from it. Based on the positioning of his legs they were obviously broken, and he showed signs of distress and even shock. The driver nodded when Diehl asked if he was the owner of the vehicle, and if he had been in a collision with another vehicle.
There was extensive damage to the truck, which had obviously rolled over multiple times. After further inspection, Officer Diehl believed the most likely point of impact was on the left rear driver's side, as the damage along the entire side of the truck did not indicate impact with another vehicle.
Officer Diehl was on site for an hour and five minutes, but only began collecting evidence after the driver of the truck had been taken away and the freeway shut down. He received a dispatch that there was a witness to the collision, Interrante, and that the other vehicle was at South 49th Street and Wall Avenue in Richmond. Interrante had followed the white car when it got off at the Cutting Boulevard exit. The car took a right onto South 49th Street and took that road to the end of the city grid where it parked. He noted the make, model and license plate of the car and called 911.
When he arrived at the location the dispatcher had obtained from Interrante, Diehl saw a white Nissan Altima coupe parked within the roadway on Wall Avenue away from the right shoulder and partially blocking traffic. The car, which was still warm to the touch, had front end damage and a silver paint transfer that matched the silver pickup truck. The car appeared to be abandoned, with the driver's door closed on the seatbelt. The license plate matched a number given to Officer Diehl by dispatch. Officer Diehl called Interrante.
Based on Interrante's statement, observations at the scene, the matching license plate and the physical evidence on the Nissan, Officer Diehl believed it had been involved in the collision with the truck, and that there had only been one person in the car at the time. Officer Diehl searched the car before impounding it for evidence. On the front floorboard he found a brown paper bag with two cold Miller beers and a receipt from RC Liquors in San Pablo time-stamped 9:46 p.m., which was consistent with the beer still being cold. The beer bottles were unopened, and Officer Diehl did not suspect appellant of driving under the influence. He also found a W-2 form in appellant's name.
After the car was towed away, Officer Diehl went to the liquor store to try to obtain video surveillance footage. The owner showed him surveillance footage, which showed the white Nissan pull into the parking lot and a person get out wearing a black San Francisco baseball cap and a black hoodie with the word "Obey" on the front. The person appeared to be a younger Hispanic male who bought two Miller beers.
Appellant called 911 to report that his car had been stolen around 10:04 p.m. in the evening. San Pablo Police Officer Almir Dugonjic received a dispatch about a stolen vehicle around 11:30 p.m. and went to contact the driver on McBride Avenue in Richmond. Upon arriving at the address, Officer Dugonjic spoke with appellant, who said his car had been stolen at 10 San Pablo Towne Center, a shopping center that contains a Popeye's restaurant. Appellant said he had left a window down with keys in the ignition when he went in to get food, and the car, a 2013 white Nissan Altima, was gone when he got back 15 minutes later. Officer Dugonjic considered the location of the Popeye's to be a high crime area, and he was surprised that anyone living in the area would have left the keys in the ignition of a newer vehicle like that and then walk away.
While he was at the liquor store, Officer Diehl learned from dispatch that the white car had been reported stolen, and after talking to Officer Dugonjic, he went to McBride Avenue, where he met with appellant around 1:26 a.m. in the morning. Appellant, who was wearing khaki shorts and a blue shirt, said he had parked in the lot at Popeye's Chicken and left the engine running while he went 25 feet away, and when he turned around he saw a person wearing a black hoodie enter the car and take off. This contradicted the statement appellant had given to Officer Dugonjic.
Although appellant maintained that his story would remain the same if an officer had looked at surveillance footage from Popeye's, he began rubbing his head vigorously when asked if the story would change if an officer had looked at surveillance footage from RC Liquors, and said that it would. Appellant then said he had been involved in a traffic accident and had filed a false stolen vehicle report. He did not stop after the collision, but had run home to change his clothes.
Appellant provided a recorded statement in which he admitted the collision but denied that he had been racing. He said he was driving 65 miles per hour in the third lane one, a half car lengths behind the truck, when a car moved over from the fast lane and cut off the truck, causing appellant to skid into the truck. He left after the crash and reported the car stolen because he got nervous.
Kyle Rose, a multi-disciplinary accident investigator for the CHP, testified as an expert on accident reconstruction. He explained that crash data retrieval involves plugging software into a vehicle to extract data, including data about the deployment of airbags, which is used to determine whether the airbags were deployed properly. Rose downloaded data from the ACU in appellant's car. That data confirmed that only the airbag on the driver's side had deployed, and that the driver was wearing a seatbelt. It also showed that 5 seconds prior to the collision the car had been traveling 107 miles per hour with the driver's foot on the brake and a 26-degree right hand turn. At 4.5 seconds, the car was going 104 miles per hour with braking and 22 degrees right-hand steering; at 4 seconds it was going 102 miles per hour without braking and slight right-hand steering; at 3.5 it was going 101 miles per hour with 43 percent accelerator and 3.6 right turn; at 3 seconds it was going 102 miles per hour with 16 percent accelerator and 4 degrees right-hand steering; at it was going 100 miles per hour with braking and right-hand steering; at 2 seconds it was going 96 miles per hour with braking and 13 degrees right -hand steering; at 1.5 seconds it was going 90 miles per hour with braking and 4 degrees left-hand steering; at 1 second it was 82 miles per hour with braking and 33 degrees left-hand steering; at 0.5 seconds it was going 70 miles per hour with braking and 60 degrees left-hand steering. The speed at impact was 68 miles per hour, with braking and left-hand steering.
DISCUSSION
We have examined the record and find nothing to suggest error in the denial of appellant's motions to suppress. "It has long been settled . . . that a warrantless search and seizure involving abandoned property is not unlawful, because a person has no reasonable expectation of privacy in such property." (People v. Parson (2008) 44 Cal.4th 332, 345.) Here, appellant left his vehicle on a public road, blocking traffic, after fleeing from the scene of a fatal accident. By this abandonment, appellant relinquished any reasonable expectation of privacy in his car. Further, even assuming that appellant had not abandoned his car, Officer Diehl had probable cause to search the vehicle as an instrumentality of a crime. (People v. Griffin (1988) 46 Cal.3d 1011, 1023-1025; People v. Diaz (2013) 213 Cal.App.4th 743, 755-756.) The eyewitness report of the vehicle, its location, and its suspected involvement in the hit-and-run, together with the condition of the vehicle, including the deployed airbag, substantial damage to the front end, along with the silver paint transfer established a reasonable belief that the vehicle had been involved in the hit-and-run injury accident. (People v. Diaz, supra, 213 Cal.App.4th at pp. 755-756.) Alternatively, the inevitable discovery doctrine provides a solid ground for upholding the search, as appellant's vehicle, which was blocking traffic, was towed and would have been subject to an inventory search as part of standard police procedure. (See, e.g., Florida v. Wells (1990) 495 U.S. 1, 4-5; U.S. v. Andrade (9th Cir. 1986) 784 F.2d 1431, 1433.) Even assuming for the sake of argument that the evidence from the vehicle had been improperly admitted, by calling police to report his vehicle had been stolen, appellant independently connected himself to the car. Accordingly, any information garnered from the search of appellant's car, revealing his identity, was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24)
Finally, even assuming the ACU data was erroneously admitted, the exceedingly high speed at which appellant was driving and his reckless driving immediately before the accident, was independently corroborated by eyewitnesses, as well as by the substantial damage to both vehicles, the physical evidence at the scene, as well as the deployed driver's side airbag in appellant's car. (See People v. Diaz, supra, 213 Cal.App.4th at pp. 758-759.) Thus, we conclude that any error in admitting the evidence from the ACU was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.)
DISPOSITION
The judgment is affirmed.
/s/_________
REARDON, J. We concur: /s/_________
STREETER, ACTING P. J. /s/_________
SCHULMAN, J.
Judge of the Superior Court of California, County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.