People v. Xinos

121 Cal.Rptr.3d 496

11 Cal. Daily Op. Serv. 1828

2011 Daily Journal D.A.R. 2164

The PEOPLE, Plaintiff and Respondent,

v.George Constantine XINOS, Defendant and Appellant.

No. H034305.

Court of Appeal, Sixth District, California.

Feb. 8, 2011.

Background: Defendant was convicted following jury trial in the Superior Court, Santa Clara County, No. CC649614, Marc Poche, J., of vehicular manslaughter while driving under the influence of alcohol (DUI), and jury found enhancement allegations that defendant fled the scene after committing vehicular manslaughter and that he personally inflicted great bodily injury to be true. Defendant appealed.

Holdings: The Court of Appeal, Elia, J., held that:

(1) as a matter of first impression in California, a motorist's subjective and reasonable expectation of privacy with regard to her or his own vehicle encompasses the digital data held in the vehicle's sensing and diagnostic module (SDM);

(2) warrantless download of digital data held in the sensing and diagnostic module (SDM) of defendant's vehicle was not supported by probable cause;

(3) improper admission of SDM data that was downloaded in violation of Fourth Amendment was not harmless beyond a reasonable doubt as to vehicular manslaughter conviction, or as to allegation that defendant personally inflicted great bodily injury; and

(4) state was not required to prove, with respect to flight enhancement allegation, that defendant acted with the purpose of avoiding observation or arrest.

Reversed with directions.

Riordan & Horgan, Dennis P. Riordan, Donald M. Horgan, San Francisco, and Layli Shirani, for Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Stan Helfman, Masha A. Dabiza and Jeffrey Laurence, Deputy Attorneys General, for Respondent.

ELIA, J.

After an unsuccessful motion to suppress, George Constantine Xinos was convicted by a jury of vehicular manslaughter while violating Vehicle Code ¹ section 23153 (former Pen.Code, § 192, subd. (c)(3)) (count one), failing to stop at scene of an accident resulting in the death or permanent, serious injury of another person (§ 20001, subds. (a), (b)) (count two), driving under the influence of alcohol and causing injury (§ 23153, subd. (a)) (count three), and driving under the influence of alcohol with a blood alcohol level of at least 0.08 percent and causing injury (§ 23153, subd. (b)) (count four). The jury also found true that defendant fled the scene after committing vehicular manslaughter (§ 20001, subd. (c)) and, with respect to counts three and four, defendant personally inflicted great bodily injury upon the victim within the meaning of Penal Code sections 12022.7, subdivision (a), and 1203, subdivision (e)(3). The court sentenced defendant to a total prison term of seven years for vehicular manslaughter and fleeing the scene after committing that offense (former Pen.Code, § 192, subd. (c)(3); § 20001, subd. (c)) and stayed imposition of sentence on the remaining convictions and enhancements.

In a case of first impression in California, defendant argues that the downloading of data from his vehicle's sensing and diagnostic module (SDM), also sometimes referred to as an event data recorder (EDR), following the fatal vehicle-pedestrian collision violated his Fourth Amendment rights and the trial court erred in denying his motion to suppress. He also claims instructional error. We conclude defendant's suppression motion should have been granted and reverse.

A. Trial Evidence

At about 12:30 a.m. on May 6, 2006, a white SUV driven by defendant struck and killed Marcus Keppert, who was crossing Almaden Expressway at Camden Avenue. Keppert was six foot, seven inches tall and weighed approximately 260 pounds. His blood contained no drugs, and he had a blood alcohol content of .00.

Kay Hoagland, a driver on southbound Almaden Expressway who was waiting to turn left onto Camden Avenue, witnessed the collision. She saw a pedestrian, who was wearing dark clothing, walking toward the intersection at Almaden Expressway on the sidewalk on Camden Avenue. She was watching him on and off as he approached the intersection and saw him looking at a car traveling southbound. She saw the pedestrian go out into the intersection and she saw a white SUV strike him in lane number one, next to the left turn lane. She had thought that the pedestrian had gone a "little bit" into lane number one and the SUV would miss him but the SUV's right front side, close to the mirror area, struck the pedestrian.

She estimated that the driver of the SUV was traveling near or just over the speed limit. She did not see anything to indicate that the SUV driver applied the brakes before striking the pedestrian. She thought the SUV driver had reacted by stepping on the brake but "it wasn't a full brake...." Following the collision, she turned left and then called 9-1-1.

Aaron Weiss was driving northbound on Almaden Expressway at "roughly 50, 55 miles an hour." Weiss believed the SUV was traveling at about the same speed as was he. Weiss never suspected that defendant was driving under the influence based upon how the SUV was being driven.

The signal light was green for northbound traffic on Almaden Expressway. As Weiss approached the intersection at Camden, he saw the pedestrian's legs in stride lit up by the SUV's headlights and "then almost simultaneously thereafter [he saw] brake lights and then the collision." It had appeared to him that the pedestrian had just barely gotten into the roadway when he was hit. At most, a second or two passed between the illumination of the pedestrian's legs and the collision. Weiss heard a thud.

Weiss agreed that a pedestrian wearing dark clothing would be difficult to see against the dark background and he had not anticipated anybody stepping out into the pedestrian walkway against a red light. He would not have been able to see the pedestrian if the lights of the SUV had not illuminated him.

Weiss saw the SUV stop north of the intersection. Weiss crossed the intersection and pulled up behind the SUV. His assessment, as he passed the body, was that the pedestrian had been killed.

Defendant did not get out of the car or return to the location of the body. He drove away and Weiss followed. The SUV turned into the first side street off the expressway. When Weiss located the SUV, he called 9-1-1 and gave the license plate number. Defendant was standing outside his car toward the front on the passenger side. He looked a bit dazed and in shock; he did not try to flag Weiss down. Weiss drove back to the scene of the collision.

Sometime after midnight on May 6, 2006, San Jose Police Officer Robert Forrester responded to a citizen report that a suspicious vehicle was parked in front of the person's house. He was also aware of a fatal hit and run collision in the area. When he arrived at Cloverhill Drive at 1:04 a.m., he observed a vehicle with fresh body damage and blood and biological fluids on it. He spoke to the person who had called. The officer then began taking photos of the vehicle, which was locked. As he was doing so, the fog lamps flashed once, which indicated to him that "someone with a key fob set off the button." Officer Forrester "began to walk door to door because [he knew] the remote normally only works within about 150 feet."

Officer Forrester made contact with defendant in the doorway of a house on the same side of the street. Defendant said the vehicle belonged to him. He indicated that he did not know what had happened and he admitted to having had "a little" to drink that night. Defendant was obviously intoxicated; he had "red bloodshot watery eyes, slurred speech, and a stagger in his gait." The officer arrested defendant, searched him incident to arrest, and recovered the key fob from a pocket. He filled out a tow sheet to have the vehicle, which was suspected to have been in a hit and run collision, moved from that location to the police warehouse. Police protocol in the case of a fatal collision required the vehicle to be towed to the police warehouse for further inspection.

San Jose Police Officer Jaime Almaraz arrived at Cloverhill Street and took defendant into custody on May 6, 2006 at about 0132 hours. At that time, defendant displayed the objective symptoms of alcohol, including slurred speech, a non-steady gait, and the smell of alcohol. He refused to take a breathalyzer test in the field. Defendant said he did not know what he hit. Officer Almaraz reported that defendant's weight was 160 pounds and he was five foot, eight inches tall.

San Jose Police Officer Liz Checke, the lead investigator on the case, and her partner San Jose Police Officer Kevin Cassidy went to the intersection of Almaden Expressway and Camden Avenue in the early morning hours of May 6, 2006. After she learned that the driver and vehicle were nearby, she proceeded to that location and took photographs of the vehicle. She then returned to the scene of the collision. Officers Checke and Cassidy took photographs of the scene.

At 2:35 a.m. on May 6, 2006, defendant's blood was drawn. His blood alcohol content was 0.18.

Officer Checke completed her investigative report in November 2006. She determined, based upon reconstruction of the accident, that the vehicle's minimum speed was 48 miles per hour (mph) and the maximum speed was 61 mph. Her calculations were consistent with the physical evidence and witness statements. The posted speed limit was 45 mph. She had no evidence that defendant had been braking prior to the collision. She concluded that "the probable and likely speed" was 55 mph. The officer did not consider 55 mph to be an excessive speed at that location, at that time.

Photographs of the damage to defendant's vehicle indicated that the pedestrian was struck in front of the vehicle, went up onto its hood and into the windshield, and then rotated off the vehicle. Body fluids,...