People v. Cruz

34 Cal.App.5th 764

246 Cal.Rptr.3d 462

The PEOPLE, Plaintiff and Respondent,

v.Manuel Miramontes CRUZ, Jr., Defendant and Appellant.

F074667

Court of Appeal, Fifth District, California.

Filed April 25, 2019

Certified for Partial Publication.^*

Tutti Hacking and Paul Kleven, under appointments by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.

DETJEN, J.

Defendant Manuel Miramontes Cruz, Jr., was charged with driving under the influence (DUI) of alcohol within 10 years of a prior felony DUI conviction ( Veh. Code, § 23550.5, subd. (a) ; count 1), driving with a blood-alcohol level of 0.08 percent or more within 10 years of a prior felony DUI conviction ( id ., § 23550.5, subd. (a) ; count 2), driving with a suspended license (id ., § 14601.2, subd. (a); count 3), and resisting arrest ( Pen. Code, § 148, subd. (a)(1) ; count 4).¹ His motions to suppress evidence (§ 1538.5) were denied, and he pled no contest to counts 1, 3, and 4 in return for an indicated sentence of two years in prison.² His subsequent motion to withdraw his plea was denied.

In the published portion of this opinion, we hold that, in light of the conditions of probation to which defendant was subject when arrested, a warrantless seizure of a blood sample against defendant’s wishes did not violate the Fourth Amendment. In the unpublished portion, we conclude defendant failed to establish good cause to withdraw his plea. Accordingly, we affirm.

FACTS ³

At 10:50 p.m. on May 2, 2016, Officer Opinski of the Merced Police Department was traveling northbound on M Street in Merced, when he saw a vehicle heading southbound on M Street at a high rate of speed. At a curve in the roadway, the car, which was driven by defendant, crossed partially into the opposing lane, then corrected itself. Defendant turned eastbound on East 22nd Street, and Opinski followed. After making a U-turn, defendant ran a stop sign and made two more turns, nearly hitting a pedestrian.

Opinski activated his emergency lights. Defendant’s vehicle yielded and collided with the curb on West 25th Street. Defendant then got out of the vehicle and ran, falling several times. Opinski caught up and arrested him. When he did, he smelled a strong odor of an alcoholic beverage emanating from defendant’s breath and person. When Opinski asked if defendant was willing to submit to a field sobriety test, defendant said "No." His response to every question Opinski asked was "I want my lawyer." Opinski then read defendant the "Admin Per Se Form," regarding the consequences of failing to submit to a breath or blood test. Again, defendant responded to all questions by saying he wanted his lawyer.

Based on defendant’s driving, inability to keep his balance while Opinski was chasing him, and the odor of alcohol, Opinski opined defendant was under the influence and too impaired to operate a motor vehicle safely. In addition, his driver’s license was suspended.

Once defendant refused to take a breath or blood test, Opinski transported him to the police station so Opinski could author a search warrant for defendant’s blood. Upon receiving paperwork and information from dispatch that defendant was on DUI probation and required to submit to a breath or blood test, Opinski abandoned the warrant and instead transported defendant to the hospital for a blood draw. At the hospital, defendant expressly stated he was not consenting to a blood draw. Nevertheless, the phlebotomist drew defendant’s blood at 11:57 p.m.⁴ Defendant had a blood-alcohol level of 0.157 percent.

DISCUSSION

I MOTIONS TO SUPPRESS EVIDENCE

A. Background

Prior to the preliminary hearing, defendant moved to suppress all evidence obtained as a result of the blood draw, on the ground the warrantless invasion of his bodily integrity, undertaken without his consent, violated the Fourth Amendment. The magistrate ruled the terms and conditions of defendant’s felony probation justified the nonconsensual blood draw, and so denied the motion.

Following the filing of the information, defendant renewed his motion. At the September 6, 2016 hearing (at which no evidence was presented), defendant argued probation was something to which a person consented, consent could be withdrawn at any time, and the withdrawal of consent would then only constitute a violation of probation. The court rejected this position, reasoning that to put the probationer in control of when he or she wanted to be subject to probation terms would defeat the whole purpose of probation. Accordingly, the motion was denied.

Defendant now reiterates his argument, claiming the forced blood draw violated his Fourth Amendment rights because he did not consent to it and the consequence of his refusal should have been prosecution for a probation violation. He also claims he never consented to a forced blood draw as a condition of probation. The Attorney General contends the suppression motion was properly denied, because defendant expressly consented to chemical tests and a Fourth Amendment waiver as a condition of probation. We agree.

B. Analysis

Invasions of the body, including nonconsensual extractions of blood, "are searches entitled to the protections of the Fourth Amendment. [Citation.]" ( People v. Robinson (2010) 47 Cal.4th 1104, 1119-1120, 104 Cal.Rptr.3d 727, 224 P.3d 55.) "The touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined ‘by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’ [Citation.]" ( United States v. Knights (2001) 534 U.S. 112, 118-119, 122 S.Ct. 587, 151 L.Ed.2d 497.) Reasonableness is measured objectively by examining the totality of the circumstances. ( People v. Schmitz (2012) 55 Cal.4th 909, 921, 149 Cal.Rptr.3d 640, 288 P.3d 1259 ( Schmitz ); People v. Robinson , supra , 47 Cal.4th at p. 1120, 104 Cal.Rptr.3d 727, 224 P.3d 55.)

Where, as here, a motion to suppress evidence is submitted to the superior court on the preliminary hearing transcript (see § 1538.5, subd. (i) ), " ‘the appellate court disregards the findings of the superior court and reviews the determination of the magistrate who ruled on the motion to suppress, drawing all presumptions in favor of the factual determinations of the magistrate, upholding the magistrate’s express or implied findings if they are supported by substantial evidence, and measuring the facts as found by the trier against the constitutional standard of reasonableness.’ [Citation.]" ( People v. Hua (2008) 158 Cal.App.4th 1027, 1033, 70 Cal.Rptr.3d 559.) "In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]" ( People v. Glaser (1995) 11 Cal.4th 354, 362, 45 Cal.Rptr.2d 425, 902 P.2d 729.) We affirm the lower court’s ruling if correct under any legal theory. ( People v. Hua , supra , at p. 1033, 70 Cal.Rptr.3d 559.)

"It is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is ‘per se unreasonable ... subject only to a few specifically established and well-delineated exceptions.’ [Citations.] It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent. [Citations.]" ( Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 ; accord, People v. Woods (1999) 21 Cal.4th 668, 674, 88 Cal.Rptr.2d 88, 981 P.2d 1019.) " ‘[W]hen a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given.’ [Citations.]" ( Schneckloth , supra , at p. 222, 93 S.Ct. 2041.) He or she must also prove the warrantless search was within the scope of the consent given. ( People v. Cantor (2007) 149 Cal.App.4th 961, 965, 57 Cal.Rptr.3d 478.) " ‘Whether the search remained within the boundaries of the consent is a question of fact to be determined from the totality of [the] circumstances. [Citation.] Unless clearly erroneous, we uphold the trial court’s determination.’ [Citations.]" ( People v. Tully (2012) 54 Cal.4th 952, 983-984, 145 Cal.Rptr.3d 146, 282 P.3d 173.) The applicable standard of proof is preponderance of the evidence. ( United States v. Matlock (1974) 415 U.S. 164, 177-178, fn. 14, 94 S.Ct. 988, 39 L.Ed.2d 242 ; People v. James (1977) 19 Cal.3d 99, 106, fn. 4, 137 Cal.Rptr. 447, 561 P.2d 1135.)

"In California, a person may validly consent in advance to warrantless searches and seizures in exchange for the opportunity to avoid serving a state prison term. [Citations.] Warrantless searches are justified in the probation context because they aid in deterring further offenses by the probationer and in monitoring compliance with the terms of probation. [Citations.] By allowing close supervision of probationers, probation search conditions serve to promote rehabilitation and reduce recidivism while helping to protect the community from potential harm by probationers. [Citation.]" ( People v. Robles (2000) 23 Cal.4th 789, 795, 97 Cal.Rptr.2d 914, 3 P.3d 311 ; accord, People v. Woods , supra , 21 Cal.4th at p. 674, 88 Cal.Rptr.2d 88, 981 P.2d 1019 ; People v. Bravo (1987) 43 Cal.3d 600, 608, 238 Cal.Rptr. 282, 738 P.2d 336 ; see United States v. Knights , supra , 534 U.S. at p. 119, 122 S.Ct. 587.)

"Inherent in the very nature of probation is that probationers ‘do not enjoy "the absolute liberty to which every citizen is entitled." ’ [Citations.]" ( United States v. Knights , supra , 534 U.S. at p. 119, 122 S.Ct. 587....