Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF215937, Kathryn T. Montejano, Judge.
Robert E. Dowd for Defendant and Appellant.
Edmund G. Brown, Jr. and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, Acting P.J.
On appeal of his conviction of two felonies and two misdemeanors after drinking, driving, hitting, and running, Javier Juarez Hernandez challenges the court’s (1) denial of his motion to set aside the information, (2) denial of his motion to suppress the evidence, and (3) imposition of a sentence under the three strikes law. We affirm the judgment.
FACTUAL BACKGROUND
On the way home after drinking beer with family on the night of December 6, 2008, Hernandez drove into a car but did not stop. People in the car followed him home and called the police. Officers entering his home with his wife’s permission awoke him, smelled alcohol on his breath, and asked him about the incident. Though initially calm and cooperative, he started flailing his arms, screaming, and trying to pull a gun out of an officer’s holster. On the way to a squad car after subduing him with a taser, officers took note of his red watery eyes and slurred speech. His blood alcohol content was 0.17 percent.
PROCEDURAL BACKGROUND
On May 8, 2009, an information charged Hernandez with the commission of two felonies – driving under the influence of alcohol (count 1; Veh. Code, § 23152, subd. (a)) and driving with a blood alcohol content of 0.08 percent or more (count 2; Veh. Code, § 23152, subd. (b)) – and with the commission of two misdemeanors – resisting a peace officer (count 3; Pen. Code, § 148, subd. (a)(1)) and failing to stop at the scene of an accident (count 4; Veh. Code, § 20002, subd. (a)). In both felony counts, the information alleged a blood alcohol content of 0.15 percent or more (Veh. Code, § 23578) and a vehicular manslaughter prior in which he inflicted great bodily injury on a person other than an accomplice within the scope of the three strikes law (§§ 192, subd. (c)(3), 667, subds. (b)-(i), 667.5, subd. (c)(8), 1170.12, subds. (a)-(d), 1192.7, subd. (c)(8); Veh. Code, §§ 23550, 23550.5).
Later statutory references are to the Penal Code except where otherwise noted.
On June 8, 2009, Hernandez filed a joint motion to set aside the information and suppress evidence (§§ 995, 1538.5). On June 19, 2009, the prosecutor filed an opposition to both motions. On June 25, 2009, the court denied both motions. On June 30, 2009, the court granted his motion to bifurcate the prior.
On July 8, 2009, a jury found Hernandez guilty as charged and found the blood-alcohol-content allegations in both felony counts true and, in a bifurcated trial, the court found the strike prior allegations in both felony counts true. On August 19, 2009, the court imposed an aggregate term of four years in state prison consisting of a four-year term (double the two-year midterm) on count 1 and a concurrent four-year term (double the two-year midterm) on count 2 with no imposition of time on counts 3 or 4.
DISCUSSION
1. Motion to Set Aside the Information
Hernandez argues that the court improperly denied his motion to set aside the information. The Attorney General argues the contrary.
At the preliminary hearing, the first two officers who entered Hernandez’s home testified. One officer testified a motorist reported that a hit-and-run motorist in another vehicle “turned a little bit too short, ” “clipped his vehicle, ” and drove home. Using the “little bit of Spanish” he can speak, the officer knocked on the door and made himself understood to Hernandez’s wife, who does not speak English, that he wanted to know who was driving the vehicle in the driveway. She “basically said it was her husband.” He told her he wanted to talk with him. After she beckoned him inside with a motion of her hand, he and his partner followed her to the bedroom, where they asked Hernandez to accompany them outside. In the living room he started angrily cursing and yelling “to get out of his house.” After he started making punching motions at the officer trying to handcuff him, both officers struggled with him for a few minutes and subdued him only after a sergeant tased him. His speech was slurred, he had a strong odor of an alcoholic beverage on his breath and person, and his eyes were red and watery. An officer who assisted him to the squad car thought he could not stand otherwise.
The other officer testified that during the struggle to subdue Hernandez he felt a hand grasping and pulling on the gun in his holster. The sergeant yelled, “Stop resisting, you will be tased, ” but he kept resisting until the sergeant tased him. The officer later spoke with his wife, who described him as “drunkenly stumbling into the bedroom, then passing out, ” and inspected the vehicle, which had damage consistent with the report from the other motorist. His blood alcohol content was 0.17 percent.
On appeal from the denial of a motion to set aside the information, the reviewing court must draw in favor of the information every legitimate inference that can be drawn from the evidence and may not substitute its judgment about the weight of the evidence for that of the magistrate. (Matthews v. Superior Court (1988) 201 Cal.App.3d 385, 397.) An information will not be set aside if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it. (Caughlin v. Superior Court (1971) 4 Cal.3d 461, 464.) “In general, irregularities in pretrial commitment proceedings require reversal on appeal only where the defendant shows he [or she] was ‘deprived of a fair trial or otherwise suffered prejudice’ as a result.” (People v. Millwee (1998) 18 Cal.4th 96, 121.) Our review of the record discloses no error, but even if there were error, Hernandez fails to show prejudice, so the issue he raises is moot. (People v. Moreno (1984) 158 Cal.App.3d 109, 113-114.)
2. Motion to Suppress the Evidence
Hernandez argues that the court improperly denied his motion to suppress the evidence. The Attorney General argues the contrary.
At the hearing on the motion, the same two officers testified for the prosecution. One officer testified that after he saw damage to the vehicle in the driveway consistent with damage to the other car he knocked on the door of the home. After Hernandez’s wife opened the door, he asked to speak to the person who had driven the vehicle in the driveway. She appeared to understand him, identified her husband as the driver, and said he was asleep in the bedroom. After he asked her to wake him up, she turned around and, making a hand motion to beckon him inside, started to walk toward the bedroom. The other officer testified she opened the door wider and motioned for them to come in. He believed she gave her consent to enter the home. She led officers to the bedroom, where he was asleep on the bed. The pants and shirt he wore matched the description from the car owner. After an officer awoke him to talk about a traffic collision investigation, he screamed, resisted handcuffing for officer safety, and aggressively started flailing about. Officers subdued him, completed the investigation and, on the basis of his symptoms of alcohol intoxication, arrested him.
Hernandez and his wife testified for the defense. She testified that after opening the door in response to a knock she heard officers talk in English about wanting to speak to her husband but since she knows only a few words in English she did not understand. She left the door open about 24 inches and walked to the bedroom to call her husband but did not invite the officers inside. When he did not wake up at first she went back and told the officers, who made gestures indicating, she thought, that she should go back again. The officers followed her to the bedroom and told him to wake up. She never identified him as the driver of the vehicle. The officers never asked her anything.
Hernandez testified his wife awoke him and told him that the officers standing right behind him wanted to talk to him. He told the officers to get out, but they grabbed him from his bed, took him to the living room, and started asking some questions about some accident. He told them he wanted to speak to his lawyer and again told them to get out. The officers handcuffed and tased him.
The court found credible “the officers’ testimony that the defendant’s wife gestured for the officers to come in” and that “they followed her back to the bedroom.” The court found that the officers “were legally where they could be because of the consent at that point in time” and that they “had articulable facts which caused them to have a reasonable suspicion at that point in time to detain the defendant.” Observing that “society surely can’t ask the officers to have to then exit the house just because the other occupant denies the consent, ” the court denied the motion.
In ruling on a motion to suppress, the court finds the historical facts, selects the rule of law, and applies the rule of law to the facts to determine if the law as applied has been violated. (People v. Saunders (2006) 38 Cal.4th 1129, 1133-1134.) Our duty is to review the findings of the historical facts by the deferential substantial-evidence standard and to review the application of the rule of law to the facts as a mixed question of law and fact by the independent-review standard. (Id. at p. 1134.)
Deferring to the findings of the historical facts, we note the substantial evidence in the record that the court resolved against Hernandez the issue of witness credibility at the hearing. (See, e.g., People v. Harrington (1979) 2 Cal.3d 991, 999.) Our independent review of the application of the rule of law to the facts as a mixed question of law and fact persuades us the officers lawfully entered the home and the bedroom on the authority of his wife’s consent and then lawfully obtained the evidence at issue. (See, e.g., United States v. Matlock (1974) 415 U.S. 164, 171; People v. Haskett (1982) 30 Cal.3d 841, 855-857; Harrington, supra, at p. 995; United States v. Mejia (9th Cir. 1991) 953 F.2d 461, 466.) The court properly denied the motion.
As the Attorney General notes, a warrantless arrest for misdemeanor failing to stop at the scene of an accident outside the presence of the arresting officer is a violation of section 836, subdivision (a)(1), but the judicially-created exclusionary rule formerly applicable to evidence obtained incident to such an arrest is no longer in force. (People v. Donaldson (1995) 36 Cal.App.4th 532, 534, citing Cal. Const., art. I, § 28, subd. (d).)
3. Strike Prior
Hernandez argues that the court improperly imposed sentence under the three strikes law. The Attorney General argues the contrary.
Before sentencing, Hernandez argued that his vehicular manslaughter prior fell outside the scope of the three strikes law since both of the passengers who died in the car he was driving engaged, either as accomplices or as aiders and abettors, in the “illegal activity jointly perpetrated” of drinking alcohol and engaging in distracting behavior inside the car. People v. Verlinde (2002) 100 Cal.App.4th 1146 (Verlinde), the vehicular manslaughter case on which he relied, vacated a great bodily injury enhancement due to the court’s failure to submit to the jury the factual issue of whether an injured passenger was an accomplice since he, like the defendant, was drinking and driving or drinking and helping him to drive. (Id. at pp. 1155-1163.) Noting that “there was never any question” whether Hernandez was the driver, the court rejected his argument.
Again, Hernandez analogizes the statutory language of the great bodily injury enhancement (§ 12022.7, subd. (a) [“Any person who personally inflicts great bodily injury on any person other than an accomplice …”]) to the relevant statutory language defining, within the scope of the three strikes law, a serious felony (§ 1192.7, subd. (c)(8) [“… any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice …”] and a violent felony (§ 667.5, subd. (c)(8) [“Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice …”]. (Italics added.) His analogy is flawed. Here, there is no evidence the passengers who died in the car he was driving in his vehicular manslaughter prior were drinking and driving or drinking and helping him to drive. Verlinde is inapposite. The court properly imposed sentence under the three strikes law.
DISPOSITION
The judgment is affirmed.
WE CONCUR:Poochigian, J., Detjen, J.