Opinion
A131900
01-31-2012
THE PEOPLE, Plaintiff and Respondent, v. GEORGE EDWARD MALAMPHY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Humboldt County Super. Ct. No. CR1004101)
I. INTRODUCTION
Early in the morning of June 1, 2010, appellant's car crashed into a tree just off U.S. Highway 101 near Redway, in Humboldt County, and burst into flames, killing a woman passenger. The California Highway Patrol (CHP) responded and appellant was taken to a nearby hospital. Appellant was questioned by a CHP officer both at the hospital and previously at the scene of the accident. Based on that questioning and other evidence adduced at the scene of the accident, the CHP officer in charge of the investigation ordered an arrest citation to be issued to appellant and, also, a blood sample to be taken from him at the hospital. Appellant was, thereafter, charged by a complaint with four counts, including gross vehicular manslaughter. (Pen. Code, § 191.5, subd. (a).) After a motion to suppress the evidence adduced by the blood draw was denied, appellant pled guilty to vehicular manslaughter while intoxicated (§ 191.5, subd. (b)), and was sentenced to prison for a total term of six (6) years. He appeals, claiming the trial court erred in denying his motion to suppress the results of the involuntary blood test. We disagree with his contentions and hence affirm the conviction.
II. FACTUAL AND PROCEDURAL BACKGROUND
At 7:30 a.m. on the morning of June 1, 2010, CHP Officer Michael Phillips was dispatched to investigate a traffic accident on Highway 101. When he arrived at the scene a few minutes later, he found a vehicle "fully engulfed by fire" with "emergency medical technicians and paramedics on scene" and providing medical assistance to appellant, who was lying outside the vehicle. No other vehicles had been involved in the accident, which apparently occurred when appellant's vehicle, which had been headed northbound, crashed into a tree on the east side of the highway. According to Phillips' testimony, the weather conditions were "cloudy" and the "roadway surface was dry" at the time, and there were "no unusual road conditions."
Appellant was suffering from several injuries, including a fractured femur in his right leg and cuts to his right hand and head; he was also having difficulty breathing. Several witnesses, including specifically one Penny Lucero, told an officer assisting Phillips at the scene that appellant appeared to have been "driving erratically." From the appearances at the scene, Phillips initial conclusion was that the vehicle did not slow down enough when coming out of a turn on the highway, and thus drove off the freeway on its east side and into the tree. Phillips noted that appellant's eyes were red and watery, and failed to "track me smoothly," although he did not detect any alcoholic odor on his breath. In view of this evidence, Phillips determined to investigate "a possible DUI collision."
After the fire engulfing the car had been extinguished, Phillips and the other responders at the scene located the remains of a person in the passenger seat of the car, a four-door Buick. That person later turned out to be a woman named Robyn Ring, apparently a friend of appellant's.
At around 10:00 a.m. on that morning, Phillips went to the Fortuna hospital where appellant had been taken. Appellant told him that he "had been driving from his home to Eureka at approximately 55 miles per hour," but that a rabbit had suddenly come onto the highway from the right-hand side of the road, and his vehicle had struck it and thus veered off the highway. Appellant also told Phillips, "several times at different points in [the] conversation," that there was no passenger in his car. In the hospital interview, appellant's speech was still difficult for Phillips to understand, and his eyes were still not "smooth tracking." Phillips concluded from these manifestations that appellant was demonstrating "an objective sign and symptom of intoxication."
Phillips then returned to the scene of the accident, and there specifically looked for the remains of a rabbit. He found none. He also learned, at about the same time, that appellant's driver's license had been suspended several times, and that the most recent suspension, which was still in effect, had been for his refusal to submit to a chemical test. At 10:27 a.m., Phillips ordered a blood sample to be taken from appellant due to "the limited signs of intoxication, the nature of the collision, [and] the erratic driving that was described to me by independent witnesses at the scene . . . ." He also did this, he testified, because CHP policy and practice requires "an investigative blood draw" if an investigating officer suspects intoxication.
Before receiving the results of the blood test (which were not received until June 14, 2010), Phillips ordered a citation to be issued for appellant's arrest.
By an information filed on December 14, 2010, appellant was charged with gross vehicular manslaughter (Pen. Code, § 191.5, subd. (a)), driving while under the influence causing injury (Veh. Code, § 23153, subd. (a)), and misdemeanor driving with a suspended license. (Veh. Code, § 14601.5, subd. (a).) The information also charged that appellant was out on bail when he committed the charged crimes, and also alleged three prior felony convictions. (Pen. Code, § 1203, subd. (e)(4).)
On March 22, 2011, appellant filed a motion under Penal Code section 1538.5 to suppress the evidence of results of his blood test, a motion the prosecution opposed.
After hearing oral argument on April 5, 2011, the court took the matter under submission and, on April 12, issued an order denying appellant's motion to suppress.
On April 26, 2011, pursuant to a negotiated disposition, appellant pled guilty to the lesser offense of vehicular manslaughter while intoxicated and admitted the on-bail enhancement allegation. The same day, the trial court sentenced appellant to a prison term of four years on the Penal Code section 191.5, subdivision (b), offense to which he had pled guilty, and added a consecutive two-year term for the admitted on-bail enhancement, for a total prison term of six (6) years.
Appellant filed a notice of appeal the following day.
III. DISCUSSION
A. Our Standard of Review
The parties essentially agree regarding our standard of review. It is, as our Supreme Court has noted several times: "In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. [Citation.] We review the court's resolution of the factual inquiry under the deferential substantial-evidence standard. [Citation.] The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. [Citation.]" (People v. Hoyos (2007) 41 Cal.4th 872, 891; see also People v. Carter (2005) 36 Cal.4th 1114, 1140; People v. Maury (2003) 30 Cal.4th 342, 384; People v. Ayala (2000) 24 Cal.4th 243, 279 and People v. Camacho (2000) 23 Cal.4th 824, 830.) B. The Trial Court's Ruling was Correct
The trial court, in a thoughtful written decision denying appellant's motion to suppress, concluded that, although the issue of the presence of "probable cause" at the time Officer Phillips signed the affidavit requesting the blood draw, was "an exceedingly close call," it found that probable cause existed for the blood draw. We agree.
As our Supreme Court has written: " 'Probable cause exists when the facts known to the arresting officer would persuade someone of "reasonable caution" that the person to be arrested has committed a crime. [Citation.] "[P]robable cause is a fluid concept— turning on the assessment of probabilities in particular factual contexts . . . ." [Citation.] It is incapable of precise definition. [Citation.] " ' "The substance of all the definitions of probable cause is a reasonable ground for belief of guilt," ' and that belief must be "particularized with respect to the person to be . . . seized." [Citation.]' [Citation.]" (People v. Thompson (2006) 38 Cal.4th 811, 818.)
As this court stated in People v. Hunter (2005) 133 Cal.App.4th 371 (Hunter): "Probable cause to search is 'a fair probability that contraband or evidence of a crime will be found in a particular place' [citation] and, while by nature a fluid concept incapable of ' "finely-tuned standards," ' is said to exist 'where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found' [citation]. It must be viewed through the lens of an officer's experience and expertise [citation], as the magistrate apparently did here." (Id. at p. 378, emphasis supplied.)
Although, in the trial court, appellant's counsel argued that the decision of District Four of this District in People v. Deltoro (1989) 214 Cal.App.3d 1417 (Deltoro) was wrong, his counsel now concedes that the holding in that case that "the taking of a person's blood is valid, if there is probable cause to believe that the person committed driving while under the influence of alcohol even though he was not first formally arrested therefor" (id. at p. 1423), is a correct statement of the law. As do we. (See also Johnetta J. v. Municipal Court (1990) 218 Cal.App.3d 1255, 1284-1285 [a decision of Division Five of this District]; People v. Trotman (1989) 214 Cal.App.3d 430, 435-439 (Trotman); and see, generally, 3 LaFave, Search & Seizure (4th ed., 2004) § 5.3(c), pp. 171-176, and 2011-2012 Supp., pp. 33-34.)
In Deltoro, the court reversed an order of the Napa County Superior Court which had suppressed evidence derived from a blood sample drawn from a defendant who had been charged with driving under the influence of alcohol and, as a consequence, injuring a passenger in that car, but had not been placed under arrest. In so doing, it held that an earlier ruling of our Supreme Court in People v. Superior Court (Hawkins) 6 Cal.3d 757, which had held that such a sample could only be involuntarily taken when it is "incident to arrest" (Id. at p. 761), was no longer the law for two reasons: (1) the passage of Proposition 8 in 1982, which "abrogated a defendant's right to object to (and successfully move to suppress) evidence seized in violation of the California, but not the federal, Constitution" (Deltoro, supra, 214 Cal.App.3d at p. 1423) and (2) two decisions of the United States Supreme Court, which had made clear that the involuntary taking of blood samples or fingernail scrapings "without first requiring that the defendant be placed under arrest" did not violate the Fourth Amendment. (Id. at p. 1422.)
Those two decisions are Cupp v. Murphy (1973) 412 U.S. 291 and Schmerber v. California (1966) 384 U.S. 757.
After summarizing this law, our colleagues in Division Four held: "For cases involving extraction of blood, the exclusionary rule of Hawkins is a nonstatutory rule created by the California state court, and it was intended to exclude evidence seized in violation of the California, not federal, Constitution. Under In re Lance W. [(1985) 37 Ca.3d 873], the Hawkins rule has been abrogated by Proposition 8, and we are bound to follow federal constitutional standards to determine whether to exclude illegally seized evidence. That federal constitutional standard is found in Cupp v. Murphy. Under Cupp v. Murphy, if there is probable cause to believe that a person committed driving under the influence of alcohol, the taking of such person's blood is valid regardless of whether that person is first formally placed under arrest. [¶] Our conclusion that Hawkins is no longer the law of California is further buttressed by the recent well-reasoned opinion by the Second District in People v. Trotman, [supra, 214 Cal.App.3d at] page 430. In Trotman, the defendant was involved in a two-vehicle collision. The deputy sheriff directed a nurse to perform a blood test on the defendant, while he was alert and awake, without either arresting him or securing his consent. The court found that 'the rule established in Hawkins is contrary to the principles articulated by the United States Supreme Court in both Schmerber and Cupp. . . .' [Citation.] Moreover, under Proposition 8, California courts are bound to follow the federal exclusionary rule of evidence. Therefore, 'a formal arrest [as required by Hawkins] is not a precondition to the warrantless extraction of blood so long as probable cause exists to believe that the defendant was driving under the influence and that an analysis of the sample will yield evidence of that crime.' [Citation.]" (Deltoro, supra, 214 Cal.App.3d at p. 1425; see also Trotman, supra, 214 Cal.App.3d at pp. 435-439.)
As the parties seem to agree in their briefs to us—and as the trial court did also— there is no authority in California contrary to the holdings of Deltoro and Trotman. (See also Kelso & Bass, The Victim's Bill of Rights: Where Did It Come from and How Much Did It Do? (1992) 23 Pac. L.J. 843, 855, fn. 70 ["Proposition 8 abrogated Hawkins"].)
Which leaves the issue of whether the trial court was correct in finding probable cause for Officer Phillips to order the blood draw from appellant. Regarding this issue, the trial court stated: "The legality of the blood draw here relies entirely upon the existence of probable cause at the time the officer signed the affidavit declaring that such cause existed to justify that seizure absent the consent of Mr. Malamphy. While this is an exceedingly close call in this case, I find that probable cause did exist at that time based upon a combination of factors. Specifically: 1.) The observation of witnesses as relayed to Officer Phillips of erratic driving just prior to the collision and that the subject vehicle was driven by Mr. Malamphy. 2.) The observations of Mr. Malamphy at the scene and at the hospital by Officer Phillips. While contrary conclusions might be drawn as to the cause of his physical and mental symptoms given that he had just been involved in a very serious accident, these observations at least add to the totality of the circumstances leading to Officer Phillips conclusion. 3.) The statements of Mr. Malamphy as to the cause of the accident and the presence of another person in the vehicle; and 4.) Perhaps most importantly, the accident investigation performed by Officer Phillips at the scene. Officer Phillips testified as an expert and offered his opinion that the evidence collected at the scene was suggestive of a collision caused by driving under the influence. None of these factors viewed independently would support a finding of probable cause, however, I find the combination, under the circumstance presented and where hospital staff indicated Mr. Malamphy would need immediate treatment and would be unavailable for further evaluation by the officer, the officer was justified in requesting the blood draw. The blood draw was supported by probable cause."
Appellant contends that, for four principal reasons, the trial court was wrong in finding probable cause. Those reasons are: (1) Officer Phillips found no "objective indicia of drug or alcohol use," e.g., used and discarded bottles of alcohol; (2) the symptoms Phillips observed in appellant both at the scene and later could, because of his clear injuries, "have been caused by something other than drug or alcohol used;" (3) appellant's statements to Phillips about a rabbit causing him to swerve and not acknowledging a passenger being in the car "are not significant;" and (4) a "vague report of erratic driving does not add weight."
Very possibly the reason there were no used or empty bottles of alcohol on the scene is that what was charged here (in count two of the information) was driving "under the influence of a drug." Earlier, the same count of a prior complaint against appellant regarding the same accident had charged driving "under the influence of an alcoholic beverage or drug or under their combined influence." In this connection, it is noteworthy that appellant's three prior convictions were for violations of Health and Safety Code sections 11350, 11351, or 11352, all of which concern possession and/or transportation of "controlled substances."
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We disagree with these contentions especially when, as the trial court did, the factors taken into account by Officer Phillips before ordering the blood test are considered in combination. And we also think that two of these factors are more significant than the trial court suggested.
Regarding the latter point first: Officer Phillips testified that, in his questioning of appellant at the Fortuna hospital, the latter "told me at the hospital that there were no other people—no other person inside the vehicle at the time of the collision. I asked him several times at different points in our conversation if there [were] any passengers in the vehicle. Every time he stated no." (Emphasis supplied.) In view of the fact that the deceased person in the front passenger seat of the car was a woman friend of his, we think appellant's several denials that there were any passengers in his Buick is rather significant.
The same is true of another point not mentioned by the trial court in its denial of the motion to suppress, but specifically testified to by Officer Phillips: the lack of evidence of any use of brakes by Phillips before his car exited the highway and crashed into the tree. Phillips testified that the car left the freeway at an "essentially straight" portion of the four-lane freeway, a section just after "a very gradual turn in the freeway." In looking at the scene, Phillips continued, he "formed the opinion that the vehicle was not slowing when it left the—the freeway. They were not the friction tire marks I observed, . . . according to the evidence I observed, the vehicle was still rolling when it left. The tires were not skidding." We think Phillips' conclusion that appellant's vehicle left the freeway just after "a very gradual turn" in the road, and did so without any evidence of brake usage either on the road or in the neighboring grass, is significant, especially because, as we have held, in evaluating the presence of probable cause, we should do so "through the lens of an officer's experience and expertise." (See Hunter, supra, 133 Cal.App.4th at p. 378.)
With regard to other aspects of Phillips investigation, we agree with the trial court, particularly with regard to the credit ("most importantly") it gave to Officer Phillips expert testimony that "the evidence collected at the scene was suggestive of a collision caused by driving under the influence." In particular, Phillips testimony with regard to the failure of appellant to have "smooth tracking" of the eyes was highly pertinent. He explained that feature by stating that "we refer to it as like a marble rolling over a pane of glass. That's how a sober person's eyes should track from left to right and up to down. [¶] Non-smooth tracking is any deviation in that" and such is "an objective sign and symptom of intoxication."
Finally, we also specifically agree with the trial court's observation that because the "hospital staff indicated Mr. Malamphy would need immediate treatment and would be unavailable for further evaluation by the officer, [Phillips] was justified in requesting the blood draw."
In short, there was probable cause for the blood draw from appellant here.
IV. DISPOSITION
The judgment of conviction is affirmed.
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Haerle, Acting P.J.
We concur:
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Lambden, J.
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Richman, J.