Opinion
B294750
02-26-2020
THE PEOPLE, Plaintiff and Respondent, v. OLIVIA CAROLEE CULBREATH, Defendant and Appellant.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, William H. Shin and Nancy Lii Ladner, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. KA104665) APPEAL from a judgment of the Superior Court of Los Angeles County, Lisa B. Lench, Judge. Affirmed. Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, William H. Shin and Nancy Lii Ladner, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
Olivia Carolee Culbreath drove the wrong way on the highway and crashed into another car, killing six people. After her motion to suppress evidence from a warrantless blood test was denied, she pled no contest to six counts of second degree murder. Culbreath argues that the trial court should have granted her motion because she did not consent to the blood draw and it was not justified by exigent circumstances. Culbreath also asks us to remand for an ability to pay hearing under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We disagree and affirm the judgment.
BACKGROUND
On February 9, 2014, a few minutes after 4:39 a.m., Culbreath drove a Chevrolet Camaro the wrong way on the 60 freeway and collided with a Ford Explorer. All four of the Explorer's passengers were killed as well as two individuals in the Camaro. Culbreath was the only survivor.
Shortly before 5:00 a.m., California Highway Patrol (CHP) Officer Scott Marsden was on his way to work and heard a call of a wrong-way driver traveling on the 60 freeway. Officer Marsden had not been dispatched to the scene nor was he assigned to that area. However, he believed he was close enough to stop traffic heading towards the wrong-way driver. He therefore initiated a traffic break until he reached the collision scene.
In this context, a traffic break is the creation of traffic separation by a highway patrol officer slowly swerving back and forth across all lanes of highway, not allowing other vehicles to pass.
Officer Marsden found the crime scene to be extensive with debris across all lanes and smoke coming from the Camaro. A sheriff's deputy parked on the opposite side of the freeway in the center divider was getting a fire extinguisher from his vehicle. No other officers were at the scene.
When he approached the Camaro, Officer Marsden saw Culbreath in the driver's seat slumped over the steering wheel, seemingly deceased. One passenger also appeared to be dead. A second passenger was in a fetal position making gurgling sounds. Both Officer Marsden and the sheriff's deputy tried to extinguish the flames coming from the Camaro and attempted to pry open the doors to free the occupants. However, they were unsuccessful.
Screams for help came from the roadway. The victims in the Explorer had been ejected from the vehicle and were strewn across the freeway. Two of the victims appeared deceased while another pleaded for help, but Officer Marsden believed she was beyond saving. The fourth victim was alive and screaming for help.
When the fire department arrived, Officer Marsden explained that there was a person in the Camaro and two people in the roadway who were still alive. Officer Marsden remained at the scene to assist with traffic control by preventing cars from driving through or around the crime scene. He left when other CHP officers arrived, driving to his area office because he was late for his shift. He was at the scene for under an hour.
When Officer Marsden arrived at his area office, his supervisor told him the driver of the Camaro had survived and had been airlifted to the hospital. Officer Marsden was instructed to respond to the hospital to stay with the driver and to wait for the investigating officer to arrive. He was not assigned to investigate, though he nevertheless brought his DUI kit to the hospital in case the investigating officer needed it.
The officer assigned to investigate the collision was CHP Officer David Crislip. However, when Officer Crislip first got the call regarding the crime, he was en route to a jail to book another individual in custody. After the booking, Officer Crislip went directly to the crime scene.
Officer Crislip arrived around 5:50 a.m. and was briefed for a few minutes. Culbreath had already been airlifted to the hospital and Officer Marsden was no longer at the scene. Officer Crislip interviewed a witness and inspected the Camaro, noting that the driver's seat was empty, and that there were two deceased women in the car. Officer Crislip smelled alcohol and saw an open can of alcohol in the driver's seat. Neither Culbreath nor her passengers had been identified.
Officer Crislip investigated the scene for approximately one hour before leaving for the hospital at 7:02 a.m. and arriving 26 minutes later. When he arrived, Officer Crislip spoke with Officer Marsden who gave him Culbreath's driver's license. Initially, Officer Crislip could not see Culbreath who was undergoing a CT scan at the time. However, a treating nurse brought Officer Crislip to the CT scan room where he was able to identify her as the owner of the driver's license. Culbreath was unconscious, sedated, intubated, and was receiving a continuous opiate infusion. The treating nurse told Officer Crislip that after the CT scan, Culbreath would likely undergo surgery to address internal injuries. Officer Crislip also believed that Culbreath was in grave condition based on the number of nurses and doctors around her.
Despite Officer Crislip's impression at the time of the blood draw, Culbreath was not being prepped for surgery, although she did eventually undergo surgery for her injuries. Her records did not indicate when she left the emergency room.
Officer Crislip smelled alcohol on Culbreath. Because she was unconscious and he could not administer any field sobriety tests, he placed Culbreath under arrest and requested a blood draw from a nurse. At 7:45 a.m., a nurse unsuccessfully tried to draw blood from Culbreath's arm. Ultimately, a doctor drew blood from Culbreath's femoral vein in her leg at 7:53 a.m. The blood was later tested and found to have a blood alcohol concentration (BAC) of 0.15 percent. Officer Crislip was unable to see Culbreath for the rest of the day. The two victims from the Camaro and all four victims from the Explorer died.
The People charged Culbreath with six counts of murder. Culbreath moved to suppress evidence from the warrantless blood draw. The People opposed, asserting that exigent circumstances justified the search and, in any event, Culbreath had impliedly consented to the blood test under California's implied consent law. The trial court denied Culbreath's motion, finding that the search was justified as an exigency without addressing the People's implied consent argument.
Under California's implied consent law, "[a] person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested" for a driving while intoxicated offense. (Veh. Code, § 23612, subd. (a)(1)(A).) "A person who is unconscious or otherwise in a condition rendering him or her incapable of refusal is deemed not to have withdrawn his or her consent." (Id., subd. (a)(5).)
Culbreath pled no contest to the six counts of second degree murder. The trial court sentenced her to two consecutive terms of 15 years to life, running the remaining counts concurrently, for a total term of 30 years to life. The trial court imposed fines and assessments including restitution to the California Victim Compensation Board in the amount of $20,000 to cover funeral expenses.
DISCUSSION
I. Exigent circumstances justified the warrantless blood draw
The Fourth Amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." A warrantless search is per se unreasonable under the Fourth Amendment subject to various legal exceptions. (Arizona v. Gant (2009) 556 U.S. 332, 338.) Exigent circumstances may permit a warrantless search when " 'there is a compelling need for official action and no time to secure a warrant,' " for example, "to prevent the imminent destruction of evidence." (Missouri v. McNeely (2013) 569 U.S. 141, 149.)
The Fourth Amendment's guarantee against unreasonable searches extends to blood tests taken for the purpose of determining the BAC of an individual who is suspected of driving under the influence. (People v. Robinson (2010) 47 Cal.4th 1104, 1119; see Schmerber v. California (1966) 384 U.S. 757, 770.) Exigent circumstances can justify a warrantless blood draw during a DUI investigation because BAC diminishes over time and officers may need time to investigate an accident scene or attend to other pressing needs. (Schmerber, at pp. 770-771.) The natural dissipation of a suspect's BAC may support a finding of exigency in a specific case; however, it does not do so categorically. (Missouri v. McNeely, supra, 569 U.S. at p. 156.) The warrantless blood draw of an intoxicated suspect must still be determined case by case based on the totality of the circumstances. (Ibid.)
Despite the absence of a per se rule, "[w]hen police have probable cause to believe a person has committed a drunk-driving offense and the driver's unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver's BAC without offending the Fourth Amendment." (Mitchell v. Wisconsin (2019) ___ U.S. ___ [139 S.Ct. 2525, 2539].) This is because an unconscious driver who causes a collision creates a slew of urgent tasks for law enforcement, including securing medical care for the suspect, ensuring that others who are injured receive prompt medical attention, providing first aid until medical personnel arrive, and dealing with fatalities. (Id. at p. 2538.) Moreover, officers may also have to preserve evidence at the scene and block or redirect traffic to prevent further accidents. (Ibid.) These competing priorities "force them to choose between prioritizing a warrant application, to the detriment of critical health and safety needs, and delaying the warrant application, and thus the BAC test." (Ibid.)
The People bear the burden of establishing the constitutionality of a warrantless search. (Coolidge v. New Hampshire (1971) 403 U.S. 443, 454-455; Badillo v. Superior Court (1956) 46 Cal.2d 269, 272.) When reviewing a ruling on a motion to suppress, we defer to the trial court's findings of fact if they are supported by substantial evidence, but independently review its application of law to those facts. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 364-365.)
We find that the circumstances here clearly justified the warrantless blood draw. To call this an emergency would be an understatement; it was a catastrophe. When Officer Marsden first arrived on the scene, the Camaro was on fire and there appeared to be a survivor trapped inside. There were four individuals in the roadway, two of whom were critically injured and the other two presumably deceased. In addition to the bodies, debris was spread across all lanes and the freeway had to be closed in both directions. Multiple officers on the scene had to triage, assist victims, manage traffic, and gather evidence in order to re-open the freeway. Culbreath had to be airlifted to the hospital. Both Officers Crislip and Marsden understandably described the scene as unlike anything they had witnessed as CHP officers.
Culbreath argues that Officer Marsden could have obtained a warrant because he was at the hospital for an hour and suspected Culbreath had been driving while intoxicated. However, Officer Marsden was not the investigating officer nor was he assigned to the jurisdiction where the crime took place. He was at the scene because he was the closest officer who could stop the traffic to protect the safety of other drivers. He did what he could at the scene, which included trying to free the individuals trapped in the burning Camaro, ensuring oncoming traffic did not drive through the scene, and briefing the fire department. He left the scene when he was no longer needed and proceeded to his area station to start his assigned shift for the day. His supervisor then sent him to the hospital to provide law enforcement presence and to wait for the investigating officer to arrive. He was not asked to investigate, and he did not know that Officer Crislip was the investigating officer until they met at the hospital.
Culbreath also argues that Officer Crislip, as the investigating officer, had ample time to secure a warrant because shortly after he arrived at the scene, he was aware that the Camaro had been going the wrong way on the freeway and there was an open can of alcohol in the front seat. In other circumstances, we may expect Officer Crislip to obtain a warrant as it is no longer as time consuming to do so as it may have been in the past. (See, Missouri v. McNeely, supra, 569 U.S. at pp. 172-173 (dis. opn. of Roberts, C. J.).) However, this crime scene was extensive with multiple fatalities. In addition to any evidence that Officer Crislip may have needed in order to obtain a warrant, he had an investigative obligation to collect all necessary information to piece together what happened. This needed to be done quickly as the crime caused the freeway to shut down in both directions. This included interviewing a witness and otherwise assessing the scene, which took him approximately one hour. It took an additional 26 minutes for Officer Crislip to drive from the scene to the hospital. Upon arrival, he was unable to see Culbreath initially because she was undergoing a CT scan. Based on what medical personnel told him, he believed Culbreath was likely to undergo surgery shortly thereafter. While it is unclear when Culbreath ultimately underwent her first surgery, Officer Crislip's belief that Culbreath was in grave condition and that surgery was imminent was reasonable. Her treating physician who testified at the hearing corroborated the seriousness of Culbreath's condition.
The record also indicates that Officer Crislip could not immediately get close to Culbreath to smell the alcohol emanating from her person. Once he did, he immediately requested the blood draw. At that point, there was no way to know when Culbreath had stopped drinking or when Officer Crislip would have access to Culbreath again. The first attempted blood draw occurred within 20 minutes after he arrived and the successful blood draw from Culbreath's femoral artery occurred only a few minutes after that. The totality of the circumstances shows that the warrantless blood draw was reasonable based on the exigent circumstances present. II. Ability to pay hearing
Because we find that the exigent circumstances justified the warrantless blood draw, we do not address Culbreath's remaining arguments regarding California's implied consent law. --------
Culbreath next contends the trial court violated her due process rights under Dueñas, supra, 30 Cal.App.5th 1157, when it imposed, without first determining her ability to pay, a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)(1)), a suspended parole revocation restitution fine in the same amount (id., § 1202.45), court security fees of $240 (id., § 1465.8), and criminal conviction assessments of $180 (Gov. Code, § 70373).
Our colleagues in other divisions have held that Dueñas was wrongly decided. (See, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, 327-329, review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1060, 1067-1069; cf. People v. Caceres (2019) 39 Cal.App.5th 917, 926- 927.) Our California Supreme Court is currently considering whether a court must consider a defendant's ability to pay before imposing or executing fines, fees, and assessments. (People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.) Pending further guidance from our Supreme Court, however, we agree with Hicks. That is, Dueñas improperly wove together two distinct strands of due process precedent. The first strand secures a due-process-based right of access to courts. The second strand erects a due-process-based bar to incarceration based on failure to pay criminal penalties when that failure is due to indigence. However, imposing fines, fees, and assessments does not deny a criminal defendant access to the courts. And, mere imposition of those penalties does not result in incarceration for failure to pay due to indigence. Hence, neither strand prohibits imposing assessments and fines.
Moreover, unlike the defendant in Dueñas, Culbreath did not object below on the ground of her inability to pay. Generally, where a defendant has failed to object to a restitution fine or assessment based on an inability to pay, the issue is forfeited on appeal. (People v. Avila (2009) 46 Cal.4th 680, 729; People v. Aguilar (2015) 60 Cal.4th 862, 864; People v. Rodriguez (2019) 40 Cal.App.5th 194, 206.) We agree with our colleagues who have found that this general rule applies to the restitution fine and assessments imposed here under the Penal and Government codes. (People v. Bipialaka (2019) 34 Cal.App.5th 455, 464; People v. Fransden (2019) 33 Cal.App.5th 1126, 1153-1155; but see People v. Castellano (2019) 33 Cal.App.5th 485, 489 .)
Further, even if Culbreath had not forfeited her argument, Dueñas is inapplicable. Not all defendants are similarly situated to Dueñas, whose cerebral palsy rendered her unable to work and whose inability to pay fines and fees was directly related to her poverty. (Dueñas, supra, 30 Cal.App.5th at pp. 1160, 1167; see People v. Johnson (2019) 35 Cal.App.5th 134.) Dueñas thus is based on the due process implications of imposing assessments and fines on an impoverished defendant. The situation in which Culbreath has put herself does not implicate the same due process concerns at issue in factually unique Dueñas. Culbreath, unlike Dueñas, does not face incarceration because of an inability to pay assessments and fines. Culbreath is incarcerated because she killed six people. And, even if Culbreath does not pay the fines and assessments, there is no indication she will suffer the cascading consequences Dueñas faced.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
DHANIDINA, J. We concur:
EDMON, P. J.
EGERTON, J.