Opinion
A151618
03-08-2018
THE PEOPLE, Plaintiff and Respondent, v. CHRISTIAN ANTONIO ZUNIGA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 5-160868-6)
Defendant Christian Zuniga was sentenced to four years of felony probation with eight months in county jail after a jury found him guilty of driving under the influence of alcohol and causing injury. His court-appointed appellate counsel has asked this court to independently examine the record in accordance with People v. Wende (1979) 25 Cal.3d 436 to determine if there are any arguable issues that require briefing. He was apprised of his right to file a supplemental brief, but he did not do so.
Defendant's opening brief contains an issues statement pursuant to Anders v. California (1967) 386 U.S. 738 (Anders). We note that in the Second Appellate District, Wende briefs containing an Anders issue statement are not permitted. We question whether it is appropriate for defendant's appellate counsel to file such a brief, but nonetheless accept it here.
Our review of the record revealed the following:
On March 15, 2015 at approximately 1:54 a.m., California Highway Patrol officers were at the scene of an accident on Interstate 80 in Contra Costa County. Defendant, who was driving on the interstate, drove his car into the rear of a fire engine that was stopped at the first accident, injuring the firefighter seated inside. California Highway Patrol Officer Andrew Barnett, who had been investigating the first accident, found defendant behind the wheel of his car, slumped over with his eyes closed.
Defendant was taken to the hospital by air transport. After he was transported, Officer Barnett and his partner resumed their investigation of the first accident and then investigated defendant's accident. Around 3:00 a.m., the officers went to the hospital where the driver from the first accident was taken, and then to the hospital where defendant had been taken, arriving there at 4:31 a.m.
Officer Barnett attempted to speak to defendant, but he was snoring loudly and did not respond when spoken to and shaken. Defendant smelled like alcohol, and the officer believed he was under the influence of alcohol. Officer Barnett arrested defendant and arranged to have a phlebotomist obtain a blood sample. He believed he did not need a warrant, which would have taken at least an hour to obtain, because defendant was unconscious. Defendant's blood was drawn at approximately 5:51 a.m., while he was still unconscious. Two tests of this blood sample showed a blood alcohol content of 0.153 and 0.154 percent. There was a 6.5 percent margin of error, so the range of defendant's blood alcohol content was 0.142 to 0.165 percent.
Meanwhile, at 2:47 a.m., a hospital phlebotomist had drawn a blood sample from defendant. The sample had a serum alcohol content of 0.226 percent, which is the equivalent of a whole blood alcohol content of 0.203 percent.
Defendant was charged with driving under the influence of alcohol and causing bodily injury (count 1; Veh. Code, § 23153, subd. (a)) and driving with a blood alcohol content of 0.08 percent or greater and causing injury (count 2; § 23153, subd. (b)), both with a section 23578 enhancement alleging that defendant's blood alcohol content was greater than 0.15 percent.
All statutory references are to the Vehicle Code. --------
Defendant filed a motion to suppress the results of the warrantless blood draw performed at the request of Officer Barnett. He argued that the People bore the burden of proving a justification for the warrantless search but no exception to the warrant requirement existed and the search thus violated his Fourth Amendment rights. He relied on People v. Arredondo (2016) 245 Cal.App.4th 186 (Arredondo), claiming it held that "the passage of a mere 90 minutes between an intoxicated driver's arrest and the withdrawal of his blood was sufficient time for the officer to obtain a warrant; thus, exigent circumstances did not exist and did not justify the warrantless blood draw." He argued that the same result applied here, since four hours lapsed between his accident and the CHP blood draw. He also argued he neither expressly nor impliedly consented to the blood draw, as Arredondo held that the Vehicle Code's "implied consent" statute did not replace the Fourth Amendment's constitutional consent requirement. And, lastly, unlike in Arredondo, where the court found that the officer relied in good faith on section 23612's implied consent provision, the good faith exception did not apply here because there was no evidence Officer Barnett relied on that provision.
The prosecutor filed opposition, noting that the Supreme Court had granted review in Arredondo (case No. S233582) and the case had thus been depublished. The prosecutor also argued that a warrant was not required due to the advanced consent provisions of section 13384, subdivisions (a) and (b), the implied consent provisions of section 23612, subdivisions (a)(1)(A) and (a)(5), and the exigency exception to the warrant requirement. Alternatively, the prosecution argued that even if a warrant were required, the good faith exception to the exclusionary rule applied.
Following an evidentiary hearing, the trial court denied defendant's motion, finding that his Fourth Amendment rights were not violated because the warrantless blood draw while he was unconscious was lawful under sections 13384 and 23612, and the exigency exception to the warrant requirement applied.
Prior to trial, both the prosecution and defense filed multiple motions in limine. Over defendant's objection, the trial court ruled it would permit the prosecution to introduce evidence from defendant's medical records, including a doctor's statement that defendant was "grossly intoxicated," meaning "evidently" intoxicated, and a physician's statement that defendant was uncooperative, which necessitated postponement of surgery.
Defendant was tried before a jury in May 2017. The jury found him guilty of driving under the influence of alcohol and causing injury (count 1) and not guilty of driving with a blood alcohol content of 0.08 percent or greater and causing injury (count 2) and its lesser included offense of driving with a blood alcohol content of 0.08 percent or greater. As to count 1, it found not true that defendant drove in violation of the basic speed law, true that he failed to perform the duty to exercise ordinary care and maintain proper control of his car, and not true that he drove with a blood alcohol concentration greater than 0.15 percent.
Defendant was sentenced to four years of felony probation with eight months in county jail, drug and alcohol testing, completion of the "Post Conviction Drinking Driver's Program," revocation of his driver's license, restitution of $154,283.07, and additional fines and penalties.
Defendant filed a timely appeal.
We have reviewed the complete record in accordance with our obligations under People v. Wende, supra, 25 Cal.3d 436, including having considered the issues raised in defendant's Anders issues statement, and we have found no arguable issues requiring briefing. We thus affirm the judgment.
/s/_________
Richman, J.
We concur:
/s/_________
Kline, P.J.
/s/_________
Miller, J.