In re Geovanny D.

Filed 10/5/06 In re Geovanny D. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

Following a contested jurisdiction hearing, the Sacramento County Juvenile Court found that minor Geovanny D. was a person described within the meaning of Welfare and Institutions Code section 602 in that he drove under the influence of alcohol causing bodily injury to another, a misdemeanor (Veh. Code, § 23153, subd. (a)^[1]--count one); drove with a .08 percent or more blood-alcohol level, a misdemeanor (§ 23153, subd. (b)--count two); and violated the basic speed law, an infraction (§ 22350--count three). He was placed on probation for six months and committed to the care and custody of his parents.

On appeal, the minor contends (1) his suppression motion should have been granted because his arrest was not supported by probable cause, and (2) counts one and two are not supported by sufficient evidence that he was under the influence and his blood-alcohol level exceeded .08 percent. We shall affirm the judgment.

Facts

Prosecution Case-in-Chief

Shortly before midnight on August 5, 2005, as Loammi Frazier exited Capitol City Freeway at El Camino Avenue, his Ford Crown Victoria was struck on the left side by a white Mitsubishi that had run a red light. Frazier had seen the car traveling toward him prior to the collision, but he did not have time to avoid it. The impact from the collision caused Frazier’s car to spin.

When the cars collided, Frazier hit his head and lost consciousness. When he regained consciousness, he discovered that his car had stopped in a “grassy” area. Frazier’s passenger, Shauncey Robinson, pointed out where the other car that had been involved in the collision was stopped. The “whole front” of the other car was “tore up.” Robinson identified the minor as the driver of the car that had hit them.

Frazier and Robinson walked over to the stopped car and ordered the minor to get out. No one else was in the car with the minor. Robinson testified that the minor was “like out of it,” and he “smelled like alcohol.”

Frazier spoke to police and fire officials within 15 minutes after the accident. Robinson did not speak to law enforcement at the scene. Both Frazier and Robinson were transported to a hospital for treatment. Frazier had head and neck pain, but a CAT scan taken at the hospital did not show any injuries. Frazier testified that since the accident he suffers from chronic lower back pain, he cannot lift heavy objects, and his left leg is in “serious pain.” Robinson testified that he “busted” his lip when his face hit the side of the car, and he was treated at the hospital for pain in his lower back and legs.

Sacramento City Police Officer Christian Prince was the first officer to arrive on the scene. Prince saw a red Ford Crown Victoria “spun out on the median next to the off ramp,” and a small white Mitsubishi parked on the sidewalk. No one was in either vehicle, but three or four people had gathered near the Mitsubishi. A young man, later identified as the minor, was talking on a cell phone. Prince contacted the minor to determine if he was injured, but Prince was unable to communicate with the minor because the minor spoke only Spanish.

Based on his observations of the minor, Officer Prince concluded that the minor was exhibiting “mild signs of alcoholic beverage intoxication.” Prince smelled the odor of alcohol emanating from the minor, who had red, bloodshot eyes. Prince placed the minor in the rear seat of his patrol car while he continued his investigation.

About 10 minutes later, Sacramento City Police Officer Frank Lay and his training officer, Officer Gigante, arrived at the scene and spoke to Officer Prince “to find out what he had going on.” Lay testified, “[i]t was Officer Prince’s belief that [the minor] was under the influence of alcohol.”

Officer Lay contacted the minor in the rear compartment of Officer Prince’s patrol car. When he opened the door, Lay smelled a “pretty moderate” odor of alcohol emanating from the passenger compartment. The minor had “watery, bloodshot eyes,” and he walked “very slowly” as he was escorted to Lay’s patrol car. Lay searched the minor for weapons, handcuffed him in Lay’s own handcuffs, and then removed Prince’s handcuffs.

Officer Lay read the minor a Spanish-language Miranda^[2] advisement from a card. Lay then asked the minor some questions, which the minor answered.^[3] Lay placed the minor under arrest, transported him to the County jail, and administered an intoxilyzer test to him. Breath samples taken at 1:09 a.m. and 1:10 a.m. yielded a blood-alcohol level of .14 percent.

Jeremy Zerbe, who worked in the toxicology section of the crime lab and maintained the intoxilyzer machines, opined that the machine Officer Lay had used to administer the breath tests had been working accurately and properly.

Zerbe also testified as an expert on alcohol analysis and the effects of alcohol on the body. Zerbe testified that it takes about 45 minutes to an hour for the average person to absorb alcohol after he or she stops drinking, and that the average person eliminates approximately .02 percent alcohol per hour, which is independent of a person’s weight. Zerbe opined that at a .08 percent blood-alcohol level, “all people would be impaired for the purpose of driving[.]”

Zerbe opined that an individual with a .14 blood-alcohol level would be impaired for the purpose of driving a car. Zerbe testified that, without more information, he could not extrapolate what a person’s blood-alcohol level would have been 90 minutes before providing a breath sample.

Defense

The minor did not present any evidence or testimony at the jurisdiction hearing.

Discussion

I

The minor contends that his arrest was not supported by probable cause, and that the juvenile court erred by denying his motion to suppress evidence on that basis. We are not persuaded.

Background

The minor filed motions to suppress evidence on the grounds that his initial detention was not supported by reasonable suspicion, his statements to law enforcement were obtained in violation of Miranda, and his arrest was not supported by probable cause. He sought to suppress all witnesses’ observations subsequent to any detention, all results of chemical tests obtained from the minor, all statements made by the minor, and all evidence seized from him following his detention.

The juvenile court received both officers’ testimony at an Evidence Code section 402 hearing that preceded the jurisdiction hearing. Officer Prince testified that he contacted some people at the accident scene who indicated they had arrived after the collision and allowed a subject to use a cell phone. Prince saw a person on a telephone, who turned out to be the minor. The later-arriving people indicated that the minor was involved with the white car. The minor’s counsel interposed a hearsay objection, and the juvenile court admitted the testimony regarding those people “for effect [on] the listener and not for the truth of the matter.”

However, on cross-examination, the minor’s counsel elicited Officer Prince’s testimony that “initially when we had come up on that intersection and heard that there was an accident, it appeared that there -- it might have been a three[-]car . . . accident because there was the red vehicle on our left.

As we came up, it was on the southwest corner, and then there was the two vehicles on the east side. And so our initial observation was, it was a three[-]vehicle accident.

So after we had checked that red car and found no subjects inside it, we went down to the other two cars.

That uninvolved vehicle, which was a Jeep, had, like I say, approximately three or four passengers in it.

I asked them, ‘Were you guys involved in this?’ They said, ‘No. When we came up, it was already over with. But we didn’t see anybody here, so we stopped to make sure everybody was okay.’ That was the extent of their knowledge of the accident.”

The juvenile court ruled that the initial detention was lawful, based on a “rational suspicion that the minor may have been involved in some type of Vehicle Code violation.” The court ruled that the minor’s statements were obtained in violation of Miranda. Finally, the court found that the minor’s arrest was supported by probable cause. The court explained:

“The Court is at this time going to deny the motion to suppress. It’s not a high standard in terms of probable cause.

It is more than a reasonable suspicion. But as the arresting officer, the Court does find that Officer Lay did have enough probable cause to arrest the minor, even in the absence of the . . . minor’s statement, which has been suppressed.

Again, under the totality of the circumstances, given the car accident which was observed after the fact, but still observed by the police officer, the obvious signs of intoxication that the minor displayed, again, personally observed by the arresting officer and indications . . . from other officers that this minor might have been involved in this incident, that the Court does find at least that that officer met the probable cause standards, and that this was a lawful arrest; therefore, the Court is going to deny the motion to suppress at this point.”

Analysis

“When the seizure of a person amounts to an arrest, it must be supported by an arrest warrant or by probable cause. [Citation.] 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.]” (People v. Celis (2004) 33 Cal.4th 667, 673 (Celis).)

In this case, Officer Lay knew that he was responding to the scene of a traffic accident. He observed the two cars that had been involved in the accident. Lay immediately spoke to Officer Prince to find out what Prince “had going on.” By the time Lay arrived, Prince had personally contacted the persons at the scene; had determined that just one of them, the minor, was displaying signs of alcoholic beverage intoxication; and had placed the minor in Prince’s patrol car.^[4] Prince had also determined that, except for the minor and the victims, the persons at the scene had arrived following the accident. When Lay escorted the minor to Lay’s patrol car, he confirmed that the minor had “watery, bloodshot eyes” and was walking “very slowly.”

From Officer Lay’s testimony that he contacted Officer Prince to find out “what he had going on,” the juvenile court could deduce that Officer Prince had informed Officer Lay that, of the persons found at the scene, only the minor and the victims were present at the time of the accident; and only the minor displayed physical characteristics tending to suggest his inability to drive safely and thus his involvement in the accident. Lay personally corroborated the minor’s intoxication by noticing the odor of alcohol and observing his bloodshot eyes and very slow walk. Because Lay had reason to believe that the persons on the scene other than the minor were not suspects, and only the minor was in a condition suggestive of an inability to drive, Lay was not required to speculate that “any of [the other persons at the scene] could have been involved in the accident.” Rather, Lay could deduce that the minor had driven during the accident and that his doing so had violated the laws regarding driving under the influence. (Celis, supra, 33 Cal.4th at p. 673.) The juvenile court properly found that the minor’s arrest was supported by probable cause.

The minor relies on People v. Nelson (1983) 140 Cal.App.3d Supp. 1, 4, and People v. Kelley (1937) 27 Cal.App.2d Supp. 771, in which persons at the scene other than the defendants could have been the drivers of the subject automobiles. Here, however, the officers eliminated from suspicion the other persons at the scene by determining that they had arrived after the collision.

Because Officer Lay had probable or reasonable cause to believe that the minor drove while under the influence of an alcoholic beverage and was involved in a traffic accident, section 40300.5 allowed him to make an arrest even though the accident did not occur in his presence. The minor’s suppression motion was properly denied.

II

The minor contends the evidence is insufficient to support the section 23153 adjudication. He argues there was no evidence that he was under the influence of alcohol or that his blood-alcohol level exceeded 0.08 percent; and no evidence that he was speeding at the time of the accident. We are not persuaded.

“The standard of proof in juvenile proceedings involving criminal acts is the same as the standard in adult criminal trials. [Citation.] Thus, the standard of appellate review as delineated in People v. Johnson (1980) 26 Cal.3d 557, 562, is applicable in considering the sufficiency of the evidence in a juvenile proceeding. This court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. We must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence [citation] and we must make all reasonable inferences that support the finding of the juvenile court. [Citation.]” (In re Jose R. (1982) 137 Cal.App.3d 269, 275.)

“The elements of the felony offense described by section 23153, subdivision (a) are ‘(1) driving a vehicle while under the influence of an alcoholic beverage or drug; (2) when so driving, committing some act which violates the law or is a failure to perform some duty required by law; and (3) as a proximate result of such violation of law or failure to perform a duty, another person was injured. [Citation.] Section 23153, subdivision (b), has the same elements except the first element is expressed as driving a vehicle “while having 0.08 percent or more, by weight, of alcohol in his or her blood . . . .” [Citation.] To satisfy the second element, the evidence must show an unlawful act or neglect of duty in addition to driving under the influence.’ [Citation.] The unlawful act or omission ‘need not relate to any specific section of the Vehicle Code, but instead may be satisfied by the defendant’s ordinary negligence. [Citations.]’ [Citation.]” (People v. Weems (1997) 54 Cal.App.4th 854, 858 (Weems), footnote and italics omitted.)

Section 23153, subdivision (b), contains “a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after driving.” (Italics added.)

In this case, the minor had a blood-alcohol level of 0.14 percent approximately 90 minutes after the accident. The evidence showed that the test equipment was working properly. The juvenile court could thus deduce that the minor had a blood-alcohol level of 0.08 percent or more at the time of the accident. There was substantial evidence of the first element of the section 23153, subdivision (b), offense. (Weems, supra, 54 Cal.App.4th at p. 858; In re Jose R., supra, 137 Cal.App.3d at p. 275.)

Victim Robinson testified that when he first contacted the minor after the accident, he was “like out of it” and “smelled like alcohol.” Officer Prince, who arrived shortly after the accident occurred, described the minor as exhibiting “some mild signs of alcoholic beverage intoxication.” Prince testified that when he contacted the minor he “could smell alcoholic beverage smell,” and he noted that the minor had red, bloodshot eyes. Within about 10 minutes, Officer Lay arrived and transported the minor from Prince’s patrol car to Lay’s own patrol car. When Lay opened the door to Prince’s car, he smelled a “pretty moderate” odor of alcohol emanating from the passenger compartment. Once the minor was out of the car, Lay observed that the minor had “watery, bloodshot eyes” and walked “very slowly.”

In addition to these eyewitnesses, the prosecution produced expert testimony that, at a 0.08 percent blood-alcohol level, “all people would be impaired for the purpose of driving.” Because the minor’s blood-alcohol level exceeded that amount, this expert testimony corroborates the eyewitness observations to the effect that the minor was under the influence. Thus, there was substantial evidence of the first element of the section 23153, subdivision (a), offense. (Weems, supra, 54 Cal.App.4th at p. 858; In re Jose R., supra, 137 Cal.App.3d at p. 275.)

There was evidence that the minor ran a red light and crashed into Frazier’s car as it proceeded through an intersection. Frazier testified that the minor’s car was “going real fast,” and Frazier had no time to avoid the accident. The force of the impact caused Frazier’s car to spin. Because the minor ran a red light at a speed that caused Frazier’s car to spin, the juvenile court could deduce that the minor was driving “at a speed greater than is reasonable or prudent” (zero at the red light), within the meaning of section 22350. There was substantial evidence of the second element of the section 23153, subdivisions (a) and (b) offenses. (Weems, supra, 54 Cal.App.4th at p. 858; In re Jose R., supra, 137 Cal.App.3d at p. 275.)

Finally, it was undisputed that Frazier and Robinson were hospitalized with injuries as a result of the minor running the red light. There was substantial evidence of the third element of the section 23153, subdivisions (a) and (b) offenses. (Weems, supra, 54 Cal.App.4th at p. 858; In re Jose R., supra, 137 Cal.App.3d at p. 275.)

Disposition

The judgment is affirmed.

DAVIS , J.

We concur:

SIMS , Acting P.J.

HULL , J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

^[1] Further undesignated section references are to the Vehicle Code.

^[2] Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].

^[3] The juvenile court ruled at the jurisdiction hearing that the minor’s statements were inadmissible because the Miranda advisements had been inadequate and, thus, the minor’s waiver of his right to remain silent was not knowing and intelligent.

^[4] Because Officer Prince’s testimony established that his knowledge came from personal investigation at the scene, the prosecution adequately showed the source and reliability of Prince’s information. (See Remers v. Superior Court (1970) 2 Cal.3d 659, 667.)