Opinion
E066477
05-09-2018
THE PEOPLE, Plaintiff and Respondent, v. SERGIO MORALES SOLANO, Defendant and Appellant.
Cara DeVito, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Anthony DaSilva and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWF1205432) OPINION APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge. Affirmed as modified with directions. Cara DeVito, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Anthony DaSilva and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Sergio Morales Solano guilty of (1) second degree murder (Pen. Code, § 187, subd. (a)—Count 1); (2) driving under the influence of alcohol and causing bodily injury to another person (Veh. Code, § 23153, subd. (a)—Count 2); (3) driving with a blood-alcohol level of .08-percent or more and causing bodily injury to another person (Veh. Code, § 23153, subd. (b)—Count 3); and (4) failing to stay at the scene of a car accident that resulted in a death (Veh. Code, § 20001, subd. (a)—Count 4).
All subsequent statutory references will be to the Penal Code unless otherwise indicated.
The jury also made the following findings: (A) defendant inflicted great bodily injury upon Marissa D. (Pen. Code, §§ 12022.7, subd. (a), 1192.7, subd. (c)(8)) during the murder, while driving under the influence, and while driving with a blood-alcohol level of .08-percent or more; (B) defendant inflicted great bodily injury upon Alberto A. (Veh. Code, § 23558) while driving under the influence, and while driving with a blood-alcohol level of .08-percent or more; (C) defendant's blood-alcohol level was .15 percent or more (Veh. Code, § 23578) while driving with a blood-alcohol level of .08 percent or more; and (D) the car accident scene that defendant fled, involved the death of Marissa (Veh. Code, § 20001, subd. (b)(2)). The trial court sentenced defendant to prison for a determinate term of four years and a consecutive indeterminate term of 15 years to life.
Defendant raises two issues on appeal. First, defendant contends the trial court erred by denying his motion to exclude his statements to police because his Miranda waiver was not knowing and voluntary. Second, defendant asserts the trial court erred by imposing an enhancement sentence when the related base term was stayed (§ 654). We modify defendant's sentence with directions, but otherwise affirm the judgment.
Miranda v. Arizona (1966) 384 U.S. 436.
FACTUAL AND PROCEDURAL HISTORY
A. PRIOR CONVICTION
On December 19, 1998, defendant was arrested for driving with a blood-alcohol level of .08-percent or more. (Veh. Code, § 23152, subd. (b).) Defendant was convicted on January 2, 1999, and placed on three years' probation. At the time, a mandatory condition of probation was enrolling in, participating in, and successfully completing a licensed alcohol education and counseling program. (Former Veh. Code, § 23161, subd. (b).)
B. VEHICULAR MURDER
On September 30, 2012, at approximately 2:00 p.m. in Hemet, defendant was driving eastbound on Florida Avenue. Also in Hemet, Marissa was driving northbound on State Street, and Alberto was driving northbound on State Street. Defendant drove through a red light at the intersection of Florida Avenue and State Street. Defendant's truck struck the driver's side of the car being driven by Marissa. Marissa's car then struck the car being driven by Alberto. After the crash, defendant exited his truck, looked in the driver's window of Marissa's car, and then walked away.
Defendant walked to a market. While at the market, defendant told an employee that he wanted to pay for merchandise; however, he had no merchandise with him and complained that the employees refused to sell anything to him. Defendant exited the market. Approximately 15 minutes after the collision, defendant was found in a parking lot behind a store. Police arrested defendant. Marissa died. Alberto was injured. A blood sample taken from defendant at 3:34 p.m. reflected a blood-alcohol level of .25 percent.
C. MOTION TO EXCLUDE EVIDENCE
1. MOTION
Defendant filed a motion to exclude the statements he made to law enforcement officers. Defendant asserted the automobile collision occurred at approximately 2:00 p.m. Defendant was taken into custody and transported to the police station. Defendant was arrested at approximately 2:45 p.m. At 2:46 p.m., as defendant walked down a hallway, he swayed from side to side. At 2:47 p.m., as defendant stood with his hands behind his back, he lost his balance and almost fell to the ground.
At 2:54 p.m., as defendant walked down a hallway, he staggered to the right and left. At 2:58 p.m., defendant stood up and stumbled backwards, but then steadied himself. As defendant walked down the hallway, he swayed from side to side. At 3:19 p.m., defendant again walked down a hallway, and he again swayed back and forth. Officer Montes gave defendant his Miranda advisement and questioned defendant. At 5:56 p.m., defendant was transported to a hospital. While at the hospital, police questioned defendant. The police officers did not provide defendant with another Miranda advisement.
It is possible defendant was taken to the hospital earlier, as the evidence at trial reflected defendant was interviewed at the hospital at approximately 4:30 p.m. Defendant's motion does not cite to any evidence supporting the assertion that defendant was transported to the hospital at 5:56 p.m.
Defendant asserted his Miranda waiver at the police station was not knowing and voluntary because (1) he never said he understood the Miranda advisement; (2) he was severely intoxicated; and (3) he has low intellectual functioning. Defendant asserted his statements to officers at the police station should be excluded. The prosecution did not file a written opposition to the motion.
2. HEARING
The trial court held a hearing on defendant's motion.
a. Intoxication
The parties stipulated that defendant's blood-alcohol level at 3:34 p.m. was .25 percent. Leo Summerhays is a forensic alcohol expert. Alcohol causes mental impairment. Impairment can occur at a blood-alcohol level of .08 percent. The level of impairment will vary from one person to another. Any impairment caused by a blood-alcohol level of .25 percent will vary depending on the person and circumstances. Alcohol could impact a person's ability to knowingly and intelligently waive his/her Miranda rights.
Officer Montes gave defendant a Miranda advisement. When defendant was at the police station, it appeared to Officer Montes that defendant was under the influence of alcohol. Defendant did not perform well on the field sobriety tests that were administered after the Miranda advisement.
b. Intellectual Capacity
Maurizio Assandri is a psychologist at Patton State Hospital. Assandri administered an intellectual functioning test to defendant on February 28, 2014. Defendant "scored in [the] low average range of intellectual functioning as measured by the test, which means that his intellectual functioning was limited compared to the average person, but not impaired."
c. Miranda Advisement
A transcript of defendant's Miranda advisement was admitted at the hearing. Defendant speaks Spanish and was advised of his rights in Spanish. We present portions of the transcript, and we limit our presentation to the English translations in the transcript, omitting the Spanish.
Officer Montes: "I am going to read you your rights: You have the right to not say anything. Understand? Tell me yes or no."
Defendant: "Yes."
Officer Montes: "What you say now can be used against you in court. Understand?"
Defendant: "Yes."
Officer Montes: "You have the right to an attorney before and during any interrogation. Do you understand, yes or no?"
"Crosstalk" occurred.
Officer Montes: "Yes or no?"
Defendant: "Yes, that's fine."
Officer Montes: If you do not have money to pay an attorney (unintelligible) appointed . . ."
Defendant: "Yes, that's fine."
Officer Montes: ". . . before and (unintelligible) before any interrogation. Do you understand? Understanding these rights in your mind; do you want to talk to me about why you are here? Yes or no?"
Defendant: "Uh, uh, uh, is traffic of—of—how do you say it? Um, is about traffic of—For traffic, how do you say it? I have no (unintelligible) . . ."
Officer Montes: ". . . What happened?"
Defendant: "How do you say? I don't have any offenses."
Officer Montes: "Okay. Do you want to talk to me about why you are here? Yes or no?"
Defendant: "I do."
As Officer Montes questioned defendant at the police station, the following exchange occurred:
Officer Montes: "[S]o where were you coming from?"
Defendant: "Uh, from my job."
Officer Montes: "Where do you work?"
Defendant: "I have a shop, a body shop."
Officer Montes: "Where?"
Defendant: "Here on Palm."
Officer Montes: "Okay. What is the name of the shop?"
Defendant: "Uh, Sergio's Body."
The interrogation continued:
Officer Montes: "And you had an accident?"
Defendant: "No, never."
Officer Montes: "Your car is there, crashed."
Defendant: "I don't know, but my car doesn't have an accident."
Officer Montes: "Did you drink anything since, from, after . . ."
Defendant: "No."
Officer Montes: ". . . the accident?"
Defendant: "Never—never, I have my business—I have my shop."
Officer Montes: "Are you drunk right now?"
Defendant: "No."
Officer Montes: "Why are you talking as you are? You can't even stand up?"
Defendant: "Well I can stand up."
Officer Montes: "So you have not drunk anything? You haven't drunk any alcohol and you haven't driven your truck?"
Defendant: "No."
Officer Montes: "Sure?"
Defendant: "Yes."
Officer Montes: "Because there will be people that say (something) different . . . ."
Defendant: "No. I can stand up . . . I can stand up . . . ."
d. Prosecution's Argument
The prosecutor asserted defendant was "given all of the requirements of Miranda, the right to remain silent, the advisement that anything that he says can be used against him, the right to speak to an attorney before and during interrogation, and that if he cannot afford an attorney, one will be appointed." Officer Montes asked defendant, " 'Do you want to talk to me about why you are here? Yes or no?' " and defendant responded, " 'I do.' " The prosecutor contended, "So the People by more than a preponderance of the evidence have shown that he's advised and he's advised correctly. . . . There's a valid Miranda waiver."
e. Defendant's Argument
Defendant asserted a blood-alcohol level of .25 percent could impact a person's ability to knowingly and intelligently waive his/her Miranda rights, and defendant's intellectual functioning is less than that of an average person. Defendant asserted that defendant could not know what was being conveyed to him by the Miranda warning.
f. Prosecutor's Rebuttal
The prosecutor asserted defendant has low intellectual functioning, but is not intellectually impaired. The prosecutor asserted that when one reads the transcript of the interrogation, defendant "appears to give somewhat cogent answers." The prosecutor asserted "defendant was able to comprehend questions posed to him . . . , thus indicating that he has the mental capacity and had it on the day in question to process orally communicated information . . . , therefore, . . . the argument of the People is that he's not mentally impaired by either alcohol or developmental disability."
g. Ruling
The trial court remarked that defense counsel had twice mentioned the lapse in time between the Miranda advisement and the hospital interview, and therefore, the court felt the need to address the issue despite the lack of clarity as to whether defendant intended to raise that precise issue. The trial court said. "[G]iven some of the authority that I've read, I find two to three hours, even though it was a different location with two different people, I think the timing is the key in this aspect, two, three hours to be—the timing in what they were talking about, they were still talking about the same exact incident that—given the timing and the nature of what they were discussing that it's contemporaneous. That's my finding. That's my ruling on that issue."
The trial court then turned to the issues explicitly argued by the parties. The trial court said, "In looking at the transcript and listening to the audio, it doesn't sound to me, [defense counsel], like, you know, he doesn't understand what he's being asked. He responds right away. There didn't appear to be like any delay. . . . [A]s far as I could hear, there wasn't any slurring of words. The officer testified I think that, you know, he could tell he had been drinking alcohol, but that just by itself doesn't mean or render somebody incapable of waiving Miranda. . . . [¶] . . . [¶] . . . He's got some alcohol going on in his system. And he's not [of] a very high intelligence, but again, the case law says look at the transcript, what is being said, the words and actions at the time of the confession. All of that appears consistent with somebody who knows and understands what they're being asked. [¶] . . . He appears to have the capacity to exercise free will and rational intellect . . . . He's being asked questions. He's answering them. It doesn't appear to be a problem. [¶] . . . [¶] . . . I think that's enough by a preponderance of the evidence to deny your motion. So motion denied for those reasons."
D. TRIAL
In this subsection we present evidence from defendant's trial. Defendant was taken to a hospital to be evaluated by a doctor prior to being booked into the jail. At approximately 4:30 p.m., defendant was interviewed at the hospital by Officer Goodwyn. A recording of the interview was played for the jury and a transcript of the interview was also provided to the jury. Officer Goodwyn questioned defendant, and Community Service Officer Nancy Tyache translated. During the interview defendant admitted having consumed four 12-ounce Corona beers, but denied driving. We present portions of the transcript and limit our presentation to the English translation, omitting the Spanish.
At trial, Officer Goodwyn said he believed Tyache's name was spelled Tyacke. We use the Tyache spelling from the transcript because that was the spelling used at the hearing on defendant's motion to exclude evidence.
"Goodwyn: Does he know it's wrong to drink and drive?"
Tyache: "You know that it is wrong, uh . . . "
Defendant: "Yes. I know."
Tyache: ". . . to drink and drive."
Defendant: "Yes."
The interview continued:
Tyache: When was your (unintelligible) arrest for DUI?"
Defendant: "Look, I paid everything."
Tyache: "When was it? When did they arrest you?"
Defendant: "When, uh, ah, in '99."
"Goodwyn: Did he have to do any classes for that?"
Tyache: "Has the judge said that you need classes?"
Defendant: "Yes."
Tyache: "Uh, uh, did you go?"
Defendant: "Yes."
Tyache: "And did they teach you that you can't drink and drive?"
Defendant: "Ah—this time, uh, I didn't do that. But I wasn't driving."
Tyache: "But did they teach you in the classes, that you can't . . . ?"
Defendant: "Yes. Yes. I did them, I did them."
Tyache: "Okay. But did they teach you that you can't drink and drive?"
Defendant: "Yes."
Tyache: "Do you understand that?"
Defendant: "Yes. I understand that."
DISCUSSION
A. MIRANDA
1. CONTENTION
Defendant contends the trial court erred by denying his motion to suppress his statements to law enforcement because defendant's Miranda waiver was not knowing and voluntary due to defendant's intoxication, low intellectual functioning, and the break in time between the Miranda advisement and the hospital interview.
In defendant's written motion, he sought the exclusion of the statements he made to officers while at the police station. At the hearing on defendant's motion, there was a dispute as to whether the transcript of the interview at the hospital had been admitted into evidence, and therefore the transcript of the interview at the hospital was not utilized at the hearing. Nevertheless, the trial court discussed the interview at the hospital and the failure to readvise defendant of his Miranda rights.
2. STANDARD OF REVIEW
"In reviewing a trial court's Miranda ruling, we accept the court's resolution of disputed facts and inferences and its evaluations of credibility, if supported by substantial evidence, and we independently determine, from the undisputed facts and facts properly found by the trial court, whether the challenged statement was illegally obtained." (People v. Bacon (2010) 50 Cal.4th 1082, 1105.) "Ultimately, the question becomes whether the Miranda waiver is shown by a preponderance of the evidence to be voluntary, knowing and intelligent under the totality of the circumstances surrounding the interrogation." (People v. Sauceda-Contreras (2012) 55 Cal.4th 203, 219 (Sauceda).)
3. LAW
"Miranda makes clear that in order for defendant's statements to be admissible against him, he must have knowingly and intelligently waived his rights to remain silent, and to the presence and assistance of counsel.' " (Sauceda, supra, 55 Cal.4th at p. 217.) "The waiver must be 'voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception' [citation], and knowing in the sense that it was 'made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.' " (Id. at p. 219.)
"Intoxication alone does not render a confession involuntary." (People v. Debouver (2016) 1 Cal.App.5th 972, 978.) "Our Supreme Court 'has repeatedly rejected claims of incapacity or incompetence to waive Miranda rights premised upon voluntary intoxication or ingestion of drugs, where . . . there is nothing in the record to indicate that the defendant did not understand his rights and the questions posed to him.' " (Ibid.)
4. ANALYSIS
a. Orientation and Processing
When Officer Montes asked defendant, "[D]o you want to talk to me about why you are here? Yes or no?" Defendant responded, "Um, is about traffic of—For traffic, how do you say it?" Defendant's response reflects an understanding that defendant was about to be questioned about the traffic collision because defendant spoke about "traffic."
When Officer Montes asked defendant, "What happened?" Defendant responded, "How do you say? I don't have any offenses." Defendant's statement reflects an understanding that he was speaking to a police officer because defendant spoke about "offenses."
When Officer Montes asked defendant about the color of defendant's truck, defendant said "[w]hite." When Officer Montes asked defendant about the make and model of defendant's truck, defendant said "Dodge Ram." At trial, the evidence reflected defendant drove a white Dodge Ram. Defendant's statements reflect he had the ability to recall facts and understand the questions being asked of him.
Officer Montes asked defendant, "Where are you coming from?" Defendant responded, "From here, from Hemet." When Officer Montes asked defendant where defendant's body shop is located, defendant responded, "Here on Palm." Defendant's responses reflect he was oriented as to his location because he understood that he was in Hemet.
In sum, the record reflects that defendant understood he was in Hemet talking to a police officer about a traffic collision. Thus, defendant was oriented to the situation. Further, defendant was able to recall relevant facts and understand the questions being asked of him.
b. Knowing
As set forth ante, a waiver is knowing when it is made with a full awareness of the nature of the right and the consequences of waiving the right. Defendant was asked if he understood that he had the right to remain silent. Defendant responded, "Yes." Given that defendant was oriented as to his location and situation, and that his answer was responsive to the question asked, the record reflects defendant was aware of his right to remain silent.
Defendant was asked if he understood that he had the right to an attorney before an interrogation. Defendant responded, "Yes, that's fine." Given that defendant was oriented as to his location and situation, and that his answer was responsive to the question asked, the record reflects defendant was aware of his right to an attorney.
Defendant was asked if he understood that his statements could be used against him. Defendant responded, "Yes." Given that defendant was oriented as to his location and situation, and that his answer was responsive to the question asked, the record reflects defendant was aware that the consequence of waiving his rights was that his statements could be used against him. Defendant's understanding is further supported by defendant's statements that he did not consume alcohol. Defendant's statements reflect an awareness that if he admitted having consumed alcohol, that confession could ultimately lead to punishment. In sum, the record reflects that defendant was aware of his rights and the consequences of waiving his rights at the time he waived his rights. Accordingly, defendant knowingly waived his Miranda rights.
Defendant contends that, when taking into account defendant's background, experience, and conduct, his waiver was not knowingly made. (People v. Kelly (1990) 51 Cal.3d 931, 950.) Defendant cites the following evidence: (1) defendant was illiterate in both English and Spanish; (2) defendant scored in the low-average range for intellectual functioning, which means 82 percent of people scored better on the test than defendant; (3) defendant had a blood-alcohol level of .25 percent; (4) alcohol can impair a person's ability to understand information, such as his/her Miranda rights; (5) defendant had difficulty walking before the Miranda advisement; and (6) defendant failed field sobriety tests given after the Miranda advisement.
Defendant's argument rests on defendant being intoxicated and of low-average intellectual functioning. However, that is not sufficient to render defendant's confession involuntary. (People v. Debouver, supra, 1 Cal.App.5th at p. 978.) When defendant spoke to Officer Montes, defendant was able to coherently converse with Officer Montes and was sufficiently aware of the situation and potential consequences that he denied being in a collision and denied drinking alcohol. Accordingly, we are not persuaded that because defendant was intoxicated and of low-average intellectual capacity, his waiver was not knowingly made.
c. Voluntary
As set forth ante, a waiver is voluntary when it results from a free and deliberate choice rather than intimidation, coercion, or deception. Officer Montes asked defendant, "Do you want to talk to me about why you are here? Yes or no?" Defendant replied, "I do." There is nothing indicating that Officer Montes intimidated, coerced, or deceived defendant. Defendant was aware that he was speaking to a police officer about a traffic collision, as discussed ante. Thus, defendant was not tricked. Officer Montes explicitly gave defendant the option of saying "no" to the officer's question by saying "Yes or no?" Thus, defendant had a choice that was free of intimidation, coercion, or deception, and defendant chose to speak to law enforcement officers. Accordingly, defendant's waiver was voluntary.
In defendant's appellant's reply brief he writes, "[N]owhere did appellant argue that the officers intimidated, coerced or deceived him into giving a statement. Instead, his argument was and is that is level of intoxication, coupled with his lower-th[a]n-average intelligence, preventing him from making a truly 'knowing' and thus truly voluntary waiver of his rights." Defendant asserts the People's discussion of intimidation, coercion, and deception is "a red herring."
Intimidation, coercion, and deception by law enforcement officers directly concern whether a defendant's Miranda waiver was voluntary. (Sauceda, supra, 55 Cal.4th at p. 219.) Thus, it is not a red herring. The requirements for a Miranda waiver are that it be knowingly, intelligently, and voluntarily made. (Ibid.) There was evidence and argument at the motion hearing related to the issue of a knowing and intelligent waiver. Accordingly, it is possible defendant meant to argue only the issue of knowing and intelligent, rather than the separate issues of knowing and voluntary. (See People v. Smith (2007) 40 Cal.4th 483, 501-502 [a Miranda waiver "inquiry has two distinct dimensions" (1) voluntariness, and (2) knowing and intelligent].) Defendant's opening argument explicitly raised the issue of voluntariness. For example, defendant argued, "For the following reasons the trial court erred in allowing into evidence [defendant's] statements, which were 'involuntary' (although advised)." Because (1) defendant repeatedly used the terms "voluntary," "involuntary," "voluntariness," and "voluntarily" in his opening argument; and (2) the People responded to the argument concerning the "voluntary" element, we addressed the issue of voluntariness.
d. Readvisement
Defendant asserts that the failure to readvise defendant of his Miranda rights while at the hospital means those statements were not made with a knowing and voluntary waiver, in that defendant's low-average intellectual functioning and intoxication would have caused defendant to not recall his rights. We construe defendant's contention as asserting the interview at the hospital was not reasonably contemporaneous with defendant's prior Miranda waiver.
" 'After a valid Miranda waiver, readvisement prior to continued custodial interrogation is unnecessary "so long as a proper warning has been given, and 'the subsequent interrogation is "reasonably contemporaneous" with the prior knowing and intelligent waiver.' [Citations.]" [Citation.] The necessity for readvisement depends upon various circumstances, including the amount of time that has elapsed since the first waiver, changes in the identity of the interrogating officer and the location of the interrogation, any reminder of the prior advisement, the defendant's experience with the criminal justice system, and "[other] indicia that the defendant subjectively underst[ood] and waive[d] his rights." ' [Citation.] [Our Supreme Court has] permitted as 'reasonably contemporaneous' the resumption of an interrogation without readvisement even a day or two after the initial waiver." (People v. Duff (2014) 58 Cal.4th 527, 555.)
As explained ante, the issue of readvisement was not expressly raised in defendant's motion to exclude evidence. Presumably this is because defendant's motion was limited to statements made at the police station. As a result, the issues of exactly when defendant was advised of his Miranda rights at the police station and exactly when he was interviewed at the hospital were not litigated during the motion hearing. Defendant asserts approximately two hours elapsed between his Miranda waiver and the hospital interview. The People assert approximately one hour elapsed between the Miranda waiver and the hospital interview. We will assume, without deciding, that two hours is the correct amount of time.
At the police station, defendant was interviewed by Officer Montes and Officer Goodwyn. Officer Montes spoke Spanish. Goodwyn asked questions such as "Nothing to drink?" and "Can you stand up for me?" Goodwyn administered the field sobriety tests to defendant. At the hospital, defendant was interviewed by Officer Goodwyn and Deputy District Attorney Tahan. Community Service Officer Tyache translated the questions into Spanish. At the hospital, Goodwyn posed various questions to be translated, such as, "Does he know it's wrong to drink and drive?" and "Okay who was driving his truck if he wasn't driving it?" Officer Goodwyn was present at both interviews and questioned defendant at both interviews.
There is nothing indicating defendant was reminded of his Miranda rights during the hospital interview. The interviews took place at different locations. The Miranda waiver occurred at the police station, while the second interview took place at a hospital.
Defendant was transported to the hospital because any person involved in a traffic collision must be medically screened before being booked into the county jail.
Defendant drove under the influence in 1998 and was convicted in 1999. Defendant suffered additional arrests in California. In September 2005, defendant was arrested for driving under the influence; he was booked into jail. In January 2008, defendant was arrested for public intoxication and booked into jail. Defendant failed to appear in court following the 2005 and 2008 arrests. Given defendant's three prior arrests and one conviction, defendant has experience with the process of being arrested.
Defendant was intoxicated at the time of his interviews and has low-average intellectual functioning. At the hospital, defendant appeared to be aware that he was speaking to a police officer and that there could be consequences for any incriminating statements he made. This awareness on defendant's part is demonstrated by defendant repeatedly denying that he was driving at the time of the collision, and his explanation that his bruises were caused by his job at the body shop and exercising at the gym. Additionally, defendant provided coherent responses to the questions posed to him at the hospital. Defendant was asked if he knew it was wrong to drink and drive, and defendant responded, "Yes, I know." Defendant was asked, "Where is your telepho(ne)—cell phone?" Defendant responded, "I don't know where it's at."
In defendant's favor: he was intoxicated, of low-average intelligence, the second interview took place in a different location than the first, Officer Montes was not at the second interview, and defendant was not reminded of his Miranda rights at the second interview. In the People's favor: the interviews were two hours apart, Officer Goodwyn questioned defendant at both interviews, defendant has suffered three prior arrests with one conviction, defendant responded coherently to the officers' questions, and defendant explained why he was not involved in the traffic collision.
In reviewing the factors, it appears that, despite the factors in defendant's favor, defendant understood what was happening during the hospital interview. Additionally, it does not appear defendant forgot or was confused about his Miranda rights, as he continued to deny responsibility for the traffic collision. In sum, during the hospital interview, defendant understood his Miranda rights and the consequences of waiving those rights. Accordingly, based upon the totality of the circumstances, the hospital interview was reasonably contemporaneous with the waiver of defendant's Miranda rights.
e. Conclusion
The trial court did not err by denying defendant's motion to exclude evidence.
B. SENTENCE
1. PROCEDURAL HISTORY
In Count 3, defendant was convicted of driving with a blood-alcohol level of .08 percent or more and causing bodily injury to another person (Veh. Code, § 23153, subd. (b)). The jury found true the allegation that defendant inflicted great bodily injury upon Marissa (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)); and that defendant caused bodily injury to Alberto (Veh. Code, § 23558).
At sentencing, for Count 2, the trial court stayed (§ 654) the sentences for the substantive conviction and the related enhancements, including an enhancement that defendant caused bodily injury to Alberto (Veh. Code, § 23558). For Count 3, the trial court stayed (Pen. Code, § 654) the sentence for the substantive offense and for the great bodily injury enhancement involving Marissa. The trial court then said, "As to the allegation regarding Alberto A., on Count 3, the Court will impose one year in state prison on that charge." Defendant's determinate sentence abstract of judgment reflects: for Count 2, the trial court imposed a one-year sentence for the enhancement involving Alberto, and for Count 3, both enhancements were stayed.
2. ANALYSIS
Defendant contends the trial court erred by imposing an enhancement sentence when the related base term was stayed. The People concede defendant is correct.
"When the base term of a sentence is stayed under section 654, the attendant enhancements must also be stayed." (People v. Calles (2012) 209 Cal.App.4th 1200, 1221.) The trial court erred by imposing a sentence for an enhancement in Count 3 when the base term of Count 3 was stayed (§ 654). Accordingly, we will direct the trial court to amend the determinate sentence abstract of judgment. Our direction will relate to Count 2, due to the error in the abstract of judgment reflecting the enhancement sentence was imposed in Count 2 rather than Count 3.
DISPOSITION
Defendant's one-year sentence on the Count 3 enhancement of causing bodily injury (Veh. Code, § 23558) is stayed (Penal Code, § 654). Defendant's total determinate sentence is modified to three years. The trial court is directed to issue an amended determinate sentence abstract of judgment that reflects the enhancement sentence in Count 2, related to Vehicle Code section 23558, is stayed, and defendant's total determinate sentence is three years. The trial court is directed to forward the amended abstract of judgment to the appropriate agency/agencies. In all other respects, the judgment is affirmed.
The abstract of judgment must modify Count 2 because the abstract erroneously listed the active enhancement sentence under Count 2, rather than Count 3.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. McKINSTER
J.