PEOPLE v. PERDOMO

Filed 2/7/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

            APPEAL from a judgment of the Superior Court of Los Angeles County.  Lawrence J. Mira, Judge.  Affirmed.

            Laura Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc E. Turchin and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.

______________________

            Appellant Gerson Eliu Perdomo was involved in a single car accident which resulted in the death of one of his passengers and very serious injuries to himself and to another passenger.  A jury convicted appellant of felony vehicular manslaughter while intoxicated,[1] of driving while under the influence of alcohol resulting in bodily injury to a person other than the driver,[2] and of driving with a blood alcohol level of .08 percent or greater resulting in bodily injury to a person other than the driver.[3]  He claims it was error of constitutional dimension to admit statements he made to officers who interrogated him in the intensive care unit of the hospital while he was recovering from surgery and heavily sedated with narcotic pain medications.  He claims his statements were involuntary, not the product of his free will, and thus their admission violated his Fifth and Fourteenth Amendment rights to a fair trial.  We find no error.  Accordingly, we affirm.

FACTS AND PROCEEDINGS BELOW

            Appellant, Marco Quinonez and Ismael Rodriguez all worked as security guards at Universal Studios.  On Friday, August 22, 2003 the three men decided to go out to celebrate appellant's 21st birthday.  They borrowed Quinonez's mother and brother-in-law's car, a Honda Civic.  The men left from appellant's house and appellant drove the Honda with Quinonez's mother's permission.  Appellant had driven the car on prior occasions since Quinonez had suffered a DUI conviction and had lost his driver's license.  Quinonez was still on probation as a result of the conviction.

            The three men went to a bar/club in Simi Valley called Arena Sport.  They apparently stayed there several hours and consumed numerous alcoholic beverages. 

            Around 2:45 a.m. on August 23, 2003 the Honda was traveling eastbound on the 101 freeway at approximately 80 miles an hour when it crashed into and nearly went over the concrete center median.  The impact into the concrete barrier blew out the car's left tires.  The metal wheels made sparks and left scrape marks on the road as the car careened back across the freeway lanes.  The left side of the car smashed into a tree on the right shoulder of the road and came to rest. 

            Ruperto Ramirez witnessed much of the accident as he drove eastbound on the 101 freeway around 2:45 a.m.  Ramirez was traveling around 90 miles per hour when he came upon a Honda Civic driving erratically at approximately 80 miles per hour.  Ramirez slowed down to avoid the car.  When he felt it was safe to do so, Ramirez sped up and drove around the Honda Civic.  When he looked in his rear view mirror he saw sparks coming from underneath the Honda.  He then saw the Honda's headlights disappear, reappear, and disappear again.  Ramirez got off the freeway, returned and drove to the accident scene.

            He saw the Honda smashed up against a tree.  He took a flashlight, looked into the passenger side of the Honda and saw three people in the car.  They were all covered in blood.  The driver was slumped motionless over the steering wheel.  The person in the back seat was lying motionless over the front seat.  The person in the passenger seat was moaning. 

            Ramirez called the police.  As he was doing so an ambulance happened to come down the freeway and stopped to assist.  Fire department personnel and another ambulance arrived shortly after.  A California Highway Patrol officer arrived later.  Ramirez watched as fire department personnel opened the car door to remove the front passenger and place him in an ambulance. 

            Ramirez provided the California Highway Patrol officer with the necessary information for the officer's incident report and went home.

            California Highway Patrol Officer Laubscher received the emergency call and arrived at the scene sometime after 3:00 a.m.  He saw a vehicle with its left side up against a tree on the side of the freeway.  Fire department personnel had just removed the right front passenger from the car and were then in the process of removing the passenger from the back seat.[4]  Other fire department personnel were cutting off the roof of the car in order to remove the driver from where he was pinned in the car by the tree and the steering wheel. 

            According to the officer it took nearly 20 minutes to cut off the roof of the car and to extricate the driver from the car. 

            The officer testified he identified the front passenger as Marco Quinonez from a California identification card Quinonez had on his person.[5]  Quinonez had a huge gash on the left side of his head which was bleeding profusely.  Quinonez had suffered brain damage, damage to the left side of his face and a broken left wrist.  Officer Laubscher could distinguish Quinonez from the driver because Quinonez was a large man with a round face, and the only person with a huge head wound.  The driver, on the other hand, was thin, had a narrow face, a closely shaved head and no head wound. 

            The officer testified once the driver was extracted from the car and placed on a gurney he reached into the driver's pants pocket and took out his wallet.  According to the officer, the wallet contained appellant's driver's license.  The photo on the driver's license resembled the driver because it similarly depicted a young man who was thin and had a narrow face.  The officer testified the driver had facial cuts, was bloody and unconscious, but, as distinguished from the front passenger, he did not have a large gash in his head. 

The backseat passenger, Ismael Rodriguez, was pronounced dead on arrival at a nearby hospital.  He died from blunt force trauma to his head.  Quinonez and appellant were airlifted to U.C.L.A. Medical Center for treatment. 

            Officer Laubscher was also an experienced auto mechanic and he examined the Honda at the impound lot.  He detected no mechanical flaw or other mechanical explanation for the accident.  He found a small amount of marijuana under the passenger seat. 

            Officer Laubscher also conducted an investigation of the accident scene.  From skid and friction marks on the road he determined the car was traveling between 80 to 85 miles an hour.  He opined the driver lost control of the car, struck the center divider and ruptured the left side tires.  The driver then corrected to the right, came across the lanes and struck the tree.  From information he downloaded from a weather website, the officer determined at the time of the accident the temperature was 65 degrees and clear.  The roadway was dry and the traffic was light at that hour.  Given these conditions, the officer gave his opinion the cause of the accident was driving while under the influence, and at excessive speeds while making unsafe maneuvers. 

            Appellant suffered severe traumatic injuries to his chest area.  Several of his ribs were fractured.  He underwent emergency surgery at U.C.L.A. Medical Center to remove his spleen.  He had some bleeding in his brain as well. 

            Medical personnel at the hospital drew a sample of appellant's blood at 4:00 a.m.  The analysis at 4:19 a.m. showed appellant had a blood alcohol level of .221 at 4:00 a.m.  An analysis of appellant's urine showed the presence of both alcohol and marijuana. 

            A forensic alcohol expert considered the data appellant was 5 feet 6 inches tall, weighed 120 pounds, and measured a blood alcohol level of .221 at 4:00 a.m.  The expert opined that at the time of the accident at 2:45 a.m. appellant would have been under the influence of alcohol, mentally and physically impaired, and incapable of operating a motor vehicle safely. 

            Quinonez testified at trial.  He said he, Rodriguez and appellant worked together at Universal Studios security.  They decided to go out to a club to celebrate appellant's 21st birthday on August 22, 2003.  He borrowed his mother's car and appellant drove it to the club.  Appellant often drove Quinonez's car since Quinonez no longer drove after losing his license because of a DUI conviction.[6]  Quinonez remembered being in the club and remembered drinking heavily.  However, he had no memory of leaving the club and had no memory of the accident at all.  Quinonez only remembered waking up several days later at his home after his release from the hospital. 

            Quinonez identified photos officers took of his head wound a few days after he was released from the hospital.  The photos showed a large wound on the left side of his head closed by staples and stitches.  He suffered serious brain damage from the accident.  Quinonez suffered further brain injury a few months before the trial when someone hit him in the head during a robbery.

            Quinonez's mother testified she gave permission for appellant to drive her car that evening because he was the only one with a driver's license.  She testified appellant had driven her car on numerous prior occasions, and especially since her son had lost his driver's license. 

            While Quinonez and appellant were still in the hospital, U.C.L.A. Medical Center personnel gave Quinonez's mother a bag they said contained her son's personal effects.  Quinonez's and appellant's personal belongings had obviously been mixed together.  The bag contained Quinonez's necklace and earrings.  However, it also contained jewelry and clothing she did not recognize.  Quinonez's mother searched through the bag for her son's passport and did not find it.  Appellant's mother, who was also in the waiting room of the hospital, identified the jewelry in the bag as belonging to appellant.  Medical records indicated Quinonez's personal effects at the hospital included a driver's license and a California identification card.

            Four days after the accident and appellant's surgery, medical personnel in the intensive care unit of U.C.L.A. Medical Center finally granted Officer Laubscher and his partner Officer Jensen permission to speak to appellant.  Medical personnel directed the officers to keep their discussion brief.  Around 6:30 a.m. the officers interviewed appellant in the intensive care unit of the hospital.  The interview was tape recorded.  The room was filled with several other patients separated by hanging sheets.  Hospital staff persons entered and exited the room as they attended to the needs of the other patients.  The tape recording is filled with sounds of these persons' movements as well as the sounds of medical monitoring devices.  The tape was played for the jury at trial.

            Appellant was lying flat on his bed, recovering from the splenectomy, broken ribs and head injury.  He was in obvious pain.  Appellant had received his last pain medication five and a half hours earlier.  He was still connected to I.V.'s and monitors.  He had been on a ventilator since the surgery but this device had been removed the day before and he was breathing on his own.  Appellant's speech was slow and deliberate but not slurred or overly raspy from the intubation.  The officers' questions were also slow, subdued and deliberate.  The interview, with numerous pauses, lasted approximately 20 minutes.

            The officers questioned appellant about the events occurring before and after the accident.  They asked appellant about his passengers, the name of the security company where they all worked, its telephone number, and whether he had been smoking marijuana the night of the accident.  Appellant's answers were responsive to the officers' questions.  According to Officer Jensen, who was present and later transcribed the tape, appellant admitted he had been driving the car when the accident occurred.  

            Appellant testified in his own defense at trial.  He stated he had a California driver's license as well as a California identification card.  

            Appellant stated on Friday, August 22, 2003 he was standing outside his house with several friends when Rodriguez and Quinonez drove up in their respective cars.  They decided to use Quinonez's Honda to drive to the club.  Appellant had driven the car on numerous prior occasions and agreed to drive his friends to the club.  However, the plan was for him to celebrate his 21st birthday by getting drunk so he insisted one of the others drive home from the club.

            He drove to the Arena Sports bar and club in Simi Valley.  He consumed numerous alcoholic beverages and danced.  At some point another friend of his, Raymond, warned appellant he was so drunk he should give his jewelry, money, identification and other valuables to his friends so he would not â€