Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 05CF2791, Patrick Donahue, Judge.
Jonathan K. Golden for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ronald Jakob, Jennifer A. Jadovitz and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
The superior court sentenced defendant Kenneth Lawrence Perez to a 15 years-to-life prison term after a jury found him guilty of murder (Pen. Code, § 187) and gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (d). On appeal defendant contends the trial court erred in denying his pretrial motions: (1) to exclude evidence of his two prior driving under the influence convictions as irrelevant and prejudicial; (2) to exclude his statements to the police allegedly taken in violation of Miranda v. Arizona (1966) 384 U.S. 436[86 S.Ct. 1602, 16 L.Ed.2d 694] (Miranda); and (3) to suppress the results of a blood test. Finding no error, we affirm.
FACTS
Several witnesses saw defendant driving erratically on freeways and surface streets. He drove at very high rates of speed, made unsafe lane changes, caused other drivers to pull to the side of the road to avoid a collision, and ran two red lights. His vehicle struck the back of another vehicle, causing the second vehicle to hit a light pole and kill its driver. After the accident, defendant ran from his vehicle. Nearby residents stopped defendant and when they asked why he fled, defendant said, “I could go to jail.” Officer Thomas Lockwood found defendant lying on the ground with two people holding a towel to his head to stop the bleeding. Lockwood smelled the odor of alcohol coming from defendant and noticed he had bloodshot and watery eyes.
Paramedics took defendant to a hospital, with Lockwood following in a squad car. During the trip, defendant reportedly said “he had four to six beers.” At the hospital, Lockwood remained outside of the trauma room during defendant’s medical treatment. Hospital personnel then transferred defendant to an intensive care room on a gurney, unrestrained.
At the request of officer David Natividad, another investigating officer, a phlebotomist arrived to obtain a sample of defendant’s blood. Although defendant was not under arrest at the time, Lockwood wrote 7:00 p.m. under “arrest time” on the phlebotomist’s paperwork. Lockwood did not ask for defendant’s permission to obtain it. During the blood draw, Lockwood did not communicate with defendant. Afterwards, he sat on a chair outside defendant’s room with the door open. Defendant made “small talk” with Lockwood about the accident, but did not make any incriminating statements.
Around 9:00 p.m., officer Donald Lockridge, who had been at the accident scene interviewing witnesses, relieved Lockwood. After hospital staff finished attending to defendant, Lockridge entered his room and asked “what had happened.” Defendant admitted driving a vehicle, but claimed he lost control when another car cut him off. The next thing he recalled was being on somebody’s lawn and then in a hospital. Defendant admitted “he had consumed four to six beers... approximately 45 minutes” before driving to Santa Ana. He also admitted having “prior convictions for [driving under the influence],... that his license was suspended and possibly revoked because he had failed to complete the required programs,” and “that he was probably going to go to jail... because of his prior record.” Lockridge never pointed his weapon at defendant, nor said that he was under arrest or not free to leave or required to speak. During the conversation, defendant displayed symptoms of intoxication but appeared lucid and cooperative. Lockridge conducted an absentee booking and arrest in the defendant’s absence the following afternoon.
DISCUSSION
1. Admission of Defendant’s Prior Convictions
a. Background
Defendant moved to exclude evidence of his prior driving under the influence convictions as being irrelevant on the issue of implied malice and unduly prejudicial under Evidence Code section 352. Acknowledging he did not attend the court-ordered classes imposed after each prior conviction, defendant argued “[t]here [was] no evidence [he] completed any type of educational programs on the dangers of drunk driving as a result of those convictions....” Alternatively he argued that, even if the prior convictions were relevant, they were too prejudicial and would encourage the jury to “convict [him] of the most serious charges because of his past run-ins with the law.” The trial court denied the motion.
b. Relevance of the Prior Drunk Driving Convictions
Defendant challenges the relevancy finding, arguing “a drunk driving conviction does not, by itself, have any tendency in reason to prove that the driver developed an awareness of the dangers of death inherent in drunk driving,” and his failure “to attend Court-ordered classes had no tendency in reason to prove his knowledge of the risk of death from [driving under the influence].” We disagree.
One who kills another while driving under the influence of alcohol or drugs may be convicted of second degree murder if the driver acted with implied malice. (People v. Watson (1981) 30 Cal.3d 290, 294, 296-297.) “Malice may be implied when a person, knowing that his conduct endangers the life of another, nonetheless acts deliberately with conscious disregard for life. [Citations.]” (Id. at p. 296.) “[A] finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved.... [Citation.]” (Id. at pp. 296-297, italics added.)
People v. Johnson (1994) 30 Cal.App.4th 286 rejected an argument similar to the one made here, i.e., that the defendant’s prior convictions were not “‘substantially relevant to prove his actual [subjective] knowledge of the great risk to human life from driving under the influence’” if “there was no evidence presented... [he] actually attended [a program in which he received detailed information about the special risks to others associated with driving while intoxicated.]” (Id. at p. 290.) “[A]ppellant has failed to establish that evidence of previous drunk driving convictions alone (in the absence of proof of participation in a drinking driver program in association with those convictions) is inadmissible to establish that he or she subjectively appreciated those risks.” (Id. at p. 291.)
Other cases have reached similar conclusions. (People v. McCarnes (1986) 179 Cal.App.3d 525, 532 [rejecting claim prior drunk driving convictions “showed only that [the defendant] knew such driving was unlawful,... not that... it was dangerous” because “the reason that driving under the influence is unlawful is because it is dangerous, and to ignore that basic proposition, particularly in the context of an offense for which the punishment for repeat offenders is more severe... is to make a mockery of the legal system as well as the deaths of thousands each year who are innocent victims of drunken drivers”]; People v. Brogna (1988) 202 Cal.App.3d 700, 709 [“[o]ne who drives a vehicle while under the influence after having been convicted of that offense knows better than most that his conduct is not only illegal, but entails a substantial risk of harm to himself and others”].) Following McCarnes and Brogna, Johnson thus held “[w]hile a defendant’s conviction for drunk driving, coupled with participation in a drinking driver program, may, arguably, be more probative than a conviction without such participation on the issue of a defendant’s subjective awareness of the risks of drunk driving, a conviction alone is probative on that issue, and, thus, is admissible.” (People v. Johnson, supra, 30 Cal.App.4th at p. 292.) Based on these cases, defendant’s lack of relevancy argument is without merit.
c. Prejudicial Effect of Defendant’s Prior Convictions
Evidence Code section 352 allows a trial court to “exclude evidence if its probative value is substantially outweighed by the probability that its admission will... create substantial danger of undue prejudice....” The ruling “will not be disturbed on appeal absent a clear abuse, i.e., unless the prejudicial effect of the evidence clearly outweighs its probative value. [Citation.] Moreover, the record must affirmatively show that the trial court did in fact weigh the prejudicial effect of the evidence against its probative value. [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 637.)
This issue was argued at length in the trial court and, after reviewing the case law presented by the prosecution and defense, the court determined the probative value of admitting defendant’s prior convictions, by themselves, outweighed the danger of any prejudice resulting therefrom. As the decisions in Johnson, McCarnes, and Brogna reflect, it is well established evidence of a defendant’s prior driving under the influence convictions is not only relevant, but also highly probative on the issue of implied malice. We find no error in this ruling.
2. Admission of Defendant’s Statements to the Police
a. Background
Defendant also sought to exclude the statements he made to Lockridge, arguing they were obtained during a custodial interrogation without any prior advisement or waiver of his Miranda rights. Claiming Lockridge knew defendant was the driver who caused the accident and had attempted to flee the scene before arriving at the hospital, defendant contends Lockridge thus had “clear[] grounds for... an arrest for [a] hit-and-run, if nothing else.” Therefore, Lockridge’s questioning of him about the accident occurred while he was “in custody” because a reasonable person subjected to questioning by an armed, uniformed officer while undergoing medical treatment at a hospital would not believe that he was “free to go.”
Denying the motion, the trial court held whether defendant believed he was in custody when questioned must be viewed objectively, and based on the circumstances of a “relatively short conversation” with Lockridge while in the hospital, “a reasonable person would not have concluded that they were in custody at the time....” Defendant contends this ruling was error. We disagree.
b. Custodial Interrogation
“An interrogation is custodial when ‘a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ [Citation.] Whether a person is in custody is an objective test; the pertinent inquiry is whether there was ‘“‘a “formal arrest or restraint on freedom of movement” of the degree associated with a formal arrest’”’ [Citation.]” (People v. Leonard (2007) 40 Cal.4th 1370, 1400.)
A determination of Miranda “custody” is a mixed question of fact and law. (Thompson v. Keohane (1995) 516 U.S. 99, 112-113 [116 S.Ct. 457, 133 L.Ed.2d 383]; see also People v. Leonard, supra, 40 Cal.4th at p. 1400.) “When reviewing a trial court’s determination that a defendant did not undergo custodial interrogation, an appellate court must ‘apply a deferential substantial evidence standard’ [citation] to the trial court’s factual findings regarding the circumstances surrounding the interrogation, and it must independently decide whether, given those circumstances, ‘a reasonable person in [the] defendant’s position would have felt free to end the questioning and leave’ [citation].” (People v. Leonard, supra, 40 Cal.4th at p. 1400.)
Lockridge’s prior knowledge of defendant’s involvement in the accident did not transmute his questioning of defendant into a custodial interrogation. Since custody “depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned” (Stanbury v. California (1994) 511 U.S. 318, 323 [114 S.Ct. 1526, 128 L.Ed.2d 293]; see also People v. Pilster (2006) 138 Cal.App.4th 1395, 1403), Lockridge’s undisclosed belief defendant was a suspect is irrelevant in determining custody for Miranda purposes. (Stanbury v. California, supra, 511 U.S. at p. 319.)
Second, the relevant case law supports the trial court’s no custody finding. In United States v. New (8th Cir. 2007) 491 F.3d 369, a federal officer questioned the defendant without first advising him of his Miranda rights while the defendant was hospitalized for injuries he suffered when his vehicle was involved in an accident that resulted in the death of two passengers. The agent informed the defendant he was not under arrest and could terminate the questioning at any time. On appeal, defendant unsuccessfully contended his incriminating statements should have been suppressed under Miranda. “[W]e focus on the restraint imposed by the government agents, [citation] because ‘[t]he sole concern of the Fifth Amendment, on which Miranda was based, is governmental coercion.’ [Citations.]... The agent himself placed no constraints on [the defendant’s] movement or on his ability to communicate with hospital staff. There is no basis to question the district court’s finding that the agent used no force or deceptive tactics, and we do not think the atmosphere in this hospital room, where a nurse was summoned twice to attend to [the defendant] during the interview, can be fairly described as ‘police dominated.’ [Citation.]” (Id. at pp. 373-374.)
Other courts have also found police interrogation of an inmate before and after receiving medical treatment at a prison infirmary noncustodial for purposes of Miranda where police did not impose additional restraints on the inmate’s freedom of action. (See, e.g., United States v. Conley (4th Cir. 1985) 779 F.2d 970, 974 [inmate’s statements properly admitted although handcuffed during interrogation as his “freedom of movement cannot be characterized as more restricted than that of other prisoners in transit to and from the facility... by virtue of his confinement”].)
The evidence supports the trial court’s finding that defendant was not in custody for purposes of Miranda. The record does not reflect defendant knew of the police presence at the hospital until the blood draw. While waiting outside defendant’s room, Lockwood did not interact with defendant in any manner. He did not place defendant under arrest, nor did he tell defendant he was under arrest or not free to leave the room. Finally, Lockwood did not handcuff defendant or restrain him in any way.
After the blood sample was taken, defendant engaged Lockwood in “small talk” about the accident in general. When Lockridge arrived, he also waited outside the room while hospital staff attended to defendant. Later, Lockridge entered defendant’s room and simply asked “what had happened.” Like Lockwood, Lockridge did not tell defendant he was under arrest. He did not draw his weapon or employ any other intimidating tactics. The entire interview, in the trial court’s words, was “relatively short.” Nor is there any evidence the officers did anything to extend defendant’s hospital stay and treatment. When it ended, Lockridge left the hospital without arresting defendant. The trial court concluded that defendant was not under arrest at this time.
Miranda’s procedural safeguards were designed to protect individuals from “incommunicado interrogation... in a police-dominated atmosphere.” (People v. Mosley (1999) 73 Cal.App.4th 1081, 1090.) Defendant’s hospital room remained open at all times during Lockridge’s questioning. Hospital staff continued to intermittently attend to defendant during the conversation and Lockridge allowed them to do so. Such exposure reduces the probability that police officers “will use oppressive or abusive tactics....” (Wilson v. Coon (8th Cir. 1987) 808 F.2d 688, 690.) Defendant was taken to the hospital for medical treatment. This confinement was not at the direction of the officers. “‘[T]he bare fact of physical restraint [by medical personnel] does not itself invoke the Miranda protections.’ [Citation.]” (People v. Mosley, supra, 73 Cal.App.4th at p. 1090.) Nor did the officers indicate to defendant that he could not freely leave the room. In sum, “the interview was in view of and in the presence of medical personnel who continued to treat defendant during the brief interview” and “the questioning was not accusatory or threatening... defendant was not handcuffed,... [and] no guns were drawn....” (Id. at p. 1091.)
In view of all the circumstances, a reasonable person in defendant’s position would not have experienced “a restraint on his... freedom of movement to the degree normally associated with a formal arrest. [Citation.]” (People v. Aguilera, supra, 51 Cal.App.4th at p. 1161.) We conclude defendant was not in custody during the time of his statements at the hospital. Thus, no Miranda warnings were necessary and his statements receiving treatment at the hospital were properly admitted into evidence.
3. Admission of Defendant’s Blood Test Results
a. Background
Defendant also moved to suppress the test results obtained from the blood sample withdrawn from him while at the hospital, arguing the withdrawal constituted an unreasonable seizure in violation of the United States Constitution’s Fourth Amendment. (Pen. Code, § 1538.5.) At the hearing, the parties stipulated the evidence introduced on defendant’s Miranda motion would be incorporated by reference and that the blood sample had been taken without a warrant.
During the hearing, Natividad testified he believed probable cause existed to arrest the defendant when he requested the blood test. He cited the eyewitness interviews of defendant’s driving behavior, the “objective signs of [defendant’s] alcohol influence..., and that [he] had been transported to the hospital for injuries sustained as a result of the collision.” Natividad also asked for the blood test because defendant’s blood alcohol level was most likely dropping and therefore the sample needed to be taken as soon as possible. He acknowledged the police did not arrest defendant until the day after the accident.
Defense counsel argued a blood sample cannot be taken from a person who has allegedly driven under the influence of drugs or alcohol absent a contemporaneous arrest for that offense. The district attorney disagreed, arguing “when probable cause exists to arrest,... you don’t have to wait until somebody is actually under arrest” to obtain a blood sample. The trial court denied defendant’s motion to suppress, ruling the police had sufficient probable cause to arrest defendant, to believe alcohol was in his blood, and to conclude exigent circumstances existed justifying the blood test.
b. Standard of Review
“‘The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.’” (People v. Maury (2003) 30 Cal.4th 342, 384.)
c. Warrantless Withdrawal of Blood
On appeal, defendant repeats his claim that because he was not under arrest when the phlebotomist obtained the blood sample, the withdrawal violated his rights under the Fourth Amendment.
In Schmerber v. California (1966) 384 U.S. 757 [86 S.Ct. 1826, 16 L.Ed.2d 908], the police arrested the defendant for driving under the influence of alcohol. While the defendant received treatment at a hospital, a police officer directed a blood sample be taken over the defendant’s objection. The United States Supreme Court “concluded that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to [the defendant]’s arrest.” (Id. at p. 771.) It explained the officer may “have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence,’ [citation]. We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system.” (Id. at p. 770.) The court further found the blood sample was taken according to accepted medical practices and in a reasonable manner. (Id. at p. 771.)
In People v. Superior Court (Hawkins)(1972) 6 Cal.3d 757, the California Supreme Court limited the warrantless seizure of a person’s blood for the purpose of a blood alcohol test to determine intoxication to cases where the seizure “is incident to a lawful arrest....” (Id. at p. 761.) In Hawkins, the defendant’s truck collided with another car, killing one person and seriously injuring another. After being transported to the hospital for treatment, a police officer obtained the defendant’s written consent to a blood test, but did not arrest him. The trial court granted a motion to suppress the blood test results, finding the defendant’s purported consent invalid. The California Supreme Court upheld this ruling, and also rejected the prosecution’s alternative argument that a formal arrest or a warrant was unnecessary to render the search reasonable. (Id. at 760-761.) “Schmerber’s approval of the compulsory seizure of blood is clearly grounded on the premise that it is incidental to a lawful arrest.” (Id. at p. 761.)
One year later, Cupp v. Murphy (1973) 412 U.S. 291 [93 S.Ct. 2000, 36 L.Ed.2d 900] upheld the seizure of physical evidence from a suspect without his consent even though he was not under arrest, and the police lacked a search warrant. The defendant voluntarily went to the police station for questioning about his wife’s murder. Officers noticed a dark spot on his finger and suspected it might be blood. (Ibid.) They detained him only long enough to take the fingernail scrapings, and he was not arrested until a month later. (Id. at p. 294.) The court concluded that although the taking of defendant’s fingernail scrapings was not obtained incident to an arrest, the fact the police officers had probable cause to arrest the defendant justified the limited intrusion to preserve the evidence from destruction. (Id. at p. 296.)
After California voters eliminated independent state grounds for excluding evidence by enacting Proposition 8 (Cal. Const. art. I, § 28, subd. (f), par. (2); In re Lance W. (1985) 37 Cal.3d 873, 888), two subsequent appellate decisions concluded the holding of Hawkins had been abrogated. (People v. Trotman (1989) 214 Cal.App.3d 430, 435; People v. Deltoro (1989) 214 Cal.App.3d 1417, 1422; see also 4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Illegal Evid, § 150, p. 779.) In Trotman, the defendant unsuccessfully moved to suppress evidence of the results of a blood test, arguing his Fourth Amendment rights were violated because the sample was taken without his consent or a prior formal arrest. The appellate court affirmed, concluding “[t]he rule articulated in Hawkins, though purportedly based on an interpretation of Schmerber..., is considerably more restrictive than that imposed under federal constitutional authority. We therefore decline to follow Hawkins and hold... the Fourth Amendment’s prohibition against unreasonable searches and seizures requires only that there be probable cause to place the defendant under arrest before the sample is withdrawn in a medically approved manner.” (Id. at p. 435.)
Similarly Deltoro held a trial court erred by suppressing blood test results obtained from a person the police properly believed had been driving while under the influence of alcohol but had not arrested, reasoning “Hawkins has been abrogated... because its holding is contrary to the federal rule as enunciated by the Supreme Court in Cupp....” (Id. at p. 1422; see also United States v. Chapel (9th Cir. 1995) 55 F.3d 1416, 1418-1419, fn. omitted [“We now know... the seizure of blood in Schmerber ‘fell within the exigent-circumstances exception to the warrant requirement’” and “[s]eizures of evidence based on exigent circumstances do not, of course, have to be accompanied by an arrest”].)
Defendant contends Hawkins has not been abrogated, citing Troppman v. Valverde (2007) 40 Cal.4th 1121. Troppman is distinguishable because it concerned only whether the Department of Motor Vehicles requires proof a person arrested for driving under the influence was driving prior to arrest in order to suspend or revoke his driver’s license for refusing to submit to a chemical test under the implied consent law. (Id. at 1125.) “The courts of this state have consistently held that ‘the desirability of obtaining blood samples in a noncoercive manner... may not be equated with constitutionality’ and that the results of a blood chemical analysis performed on a blood sample forcibly removed are admissible in a subsequent criminal prosecution.” (People v. Trotman, supra, 214 Cal.App.3d at p. 438, fn. 6, quoting People v. Ryan (1981) 116 Cal.App.3d 168, 182.) “Cases are not authority... for issues not raised and resolved” (San Diego Gas & Electric v. Superior Court (1996) 13 Cal.4th 893, 942), and therefore defendant’s reliance on Troppman is misplaced.
Natividad knew defendant had been driving and displayed symptoms of intoxication before requesting a blood sample be obtained from him. Natividad testified he requested the blood test because defendant’s blood alcohol level was most likely dropping, and a sample needed to be taken quickly. Thus, substantial evidence supports the trial court’s findings the police had probable cause to arrest defendant for driving under the influence of alcohol and exigent circumstances existed when the blood test was conducted. Therefore, no formal arrest was required and the trial court did not err in denying defendant’s motion to suppress the blood test results.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O’LEARY, J., IKOLA, J.