People v. Arter

• Decision Date: 20 November 2017
• Docket Number: Case No.: CR M 16-6910
• Citation: 19 Cal.App.5th Supp. 1,227 Cal.Rptr.3d 183
• Parties: The PEOPLE, Plaintiff and Respondent, v. Adam ARTER, Defendant and Appellant.
• Court: California Superior Court

19 Cal.App.5th Supp. 1

227 Cal.Rptr.3d 183

The PEOPLE, Plaintiff and Respondent,

v.Adam ARTER, Defendant and Appellant.

Case No.: CR M 16-6910

Appellate Division, Superior Court, California. YOLO COUNTY.

Filed November 20, 2017

Adam Davytan, Yolo County Public Defender, for defendant and appellant.

Alex Kian, Yolo County District Attorney for plaintiff and respondent.

DECISION

David Reed, Presiding Judge of the Appellate Division Defendant Adam Arter appeals from the trial court's order denying his motion to suppress. Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On November 18, 2016, the People filed a complaint against defendant Adam Arter, alleging two counts: count 1, a misdemeanor violation of Harbors and Navigation Code section 655, subdivision (b), operating a vessel while under the influence of alcohol or drugs, count 2, a misdemeanor violation of section 655, subdivision (c), operating a vessel at 0.08 percent blood-alcohol content or above, and count 3, a misdemeanor violation of section 655.2, for speeding.

On January 20, 2017, defendant filed a motion to suppress evidence, which the trial court denied on March 16, 2017.

On March 29, 2017, defendant filed a timely notice of appeal from the denial of the motion to suppress.

According to the facts adduced at the suppression hearing:

On September 24, 2016, Officer Sergeant ("officer") Sam Machado detained the occupants of a boat on the Sacramento River in Yolo County, including defendant Adam Arter, for speeding. Mr. Arter initially denied having consumed any alcohol. The officer asked if he could see defendant's eyes and saw smooth pursuit and maximum deviation (nystagmus) in defendant's left eye. Defendant continued to deny consuming alcohol.

During this detention, the officer asked if Mr. Arter would submit to a breath test, to which Mr. Arter agreed and provided a sample of 0.079 percent blood-alcohol content (BAC) at around 4:00 p.m. After obtaining this initial breath sample, the officer requested that Mr. Arter perform field sobriety tests to ensure that he was safe to operate the vessel. Defendant performed the finger to nose test, hand pat, and finger count test in a manner that suggested that he was impaired. The officer detected an odor of alcohol coming from defendant's person, and then defendant admitted consuming two pints of beer 45 minutes to one hour before that. The officer asked defendant if defendant thought he could drive a vehicle under his condition, and he replied that he could not.

As part of the field sobriety tests, the officer requested that Mr. Arter submit to another preliminary breath test, explaining that it would be another field sobriety test. The officer explained that if Mr. Arter were arrested, the preliminary breath test would not be in place of an evidentiary breath test. Mr. Arter submitted to the preliminary breath test with a reading of 0.094 percent BAC.

Following the administration of the preliminary alcohol screen test, the officer placed Mr. Arter under arrest and obtained two evidentiary breath samples from him. In requesting that Mr. Arter provide evidentiary samples, the officer read him an advisement:

You have been arrested for a BUI. I'm requesting that you submit to a chemical test of your breath or blood. You have the right to refuse, but that refusal may be used against you in a court as an admission of guilt. If you refuse, I will submit a blood warrant affidavit to a judge. If approved, I will then forcefully take a sample of your blood for evidentiary analysis.

These samples came back at 0.08 percent and 0.09 percent.

At the conclusion of the motion to suppress hearing, defendant's counsel argued that there was no legal justification for three warrantless searches: the preliminary breath sample of 0.094 percent obtained before arrest as part of the field sobriety tests and the two evidentiary breath samples obtained after arrest. When the preliminary breath test came back at 0.079 percent, the court stated that "everything after that was an appropriate investigation in to [sic] whether he was at .08 or above."

Regarding the two evidentiary breath tests, the court reasoned, "there is no question that he was going to give the blood test, whether he was coerced in to [sic] it by a bad advisement or he was—a chemical test, I should say, whether he was coerced in to [sic] it by a bad advisement or coerced in to [sic] it by way of a search warrant for blood, it was going to happen, at that point, because there was probable cause to arrest by then." When asked by defendant's counsel if the court's ruling was that the doctrine of inevitable discovery applied, the court responded, "he's going to submit anyway, whether it was by a bad advisement or by warrant. The chemical test was going to be conducted." The court declined to opine whether the legal doctrine of inevitable discovery applied, merely stating, "I don't know what else that means except they were going to get a chemical sample out of him. They could coerce by a bad advisement or they can coerce him by a search warrant that says, here the judge says you have to do it. They were going to get it."

Defendant filed an opening brief.

The People filed a respondent's brief.

Defendant filed a reply brief.

DISCUSSION

A. Standard of review applicable to motions to suppress.

"[The] standard of review on appeal from the denial of a motion to suppress is well established. We defer to the trial court's factual findings where supported by substantial evidence, but we must exercise our independent judgment to determine whether, on the facts found, the search and seizure was reasonable under the Fourth Amendment standards of reasonableness. [Citation.]" ( People v. Avila (1997) 58 Cal.App.4th 1069, 1073-74, 68 Cal.Rptr.2d 432.)

In People v. Leyba (1981) 29 Cal.3d 591, 596-98, 174 Cal.Rptr. 867, 629 P.2d 961, the California Supreme Court elaborated on the standard:

In People v. Lawler (1973) 9 Cal.3d 156, 160 [107 Cal.Rptr. 13, 507 P.2d 621], we discussed the two-step process by which a superior court rules on a motion to suppress evidence under [Penal Code] section 1538.5, and the different standard by which an appellate court reviews each of those steps. In the first step the trial court must "find the facts" relating to the challenged search or seizure: e.g., it must decide what the officer actually perceived, or knew, or believed, and what action he took in response. These are traditional questions of fact, and the statute vests the superior court with the power to decide them. ( Pen. Code, § 1538.5, subd. (i).) Accordingly, we reaffirmed in Lawler ( at p. 160 [107 Cal.Rptr. 13, 507 P.2d 621] ) that for the purpose of finding those facts "the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor the exercise of that power, and the trial court's findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence."

No less important, however, is the second step of the process. As we observed in Lawler , "The trial court also has the duty to decide whether, on the facts found, the search was unreasonable within the meaning of the Constitution." ( Ibid . ) Because "that issue is a question of law," the appellate court is not bound by the substantial evidence standard in reviewing the trial court's decision thereon. Rather, we explained, in such review it is "the ultimate responsibility of the appellate court to measure the facts, as found by the trier, against the constitutional standard of reasonableness." ( Ibid . ) On that issue, in short, the appellate court exercises its independent judgment.

An appellate court implies "all findings necessary to support the judgment, and [its] review is limited to whether there is substantial evidence in the record to support these implied findings." ( People v. Francis (2002) 98 Cal.App.4th 873, 878, 120 Cal.Rptr.2d 90.) The doctrine of implied findings requires the appellate court to infer the trial court made all factual findings necessary to support the judgment. ( Sammis v. Stafford (1996) 48 Cal.App.4th 1935, 1942, 56 Cal.Rptr.2d 589.) The doctrine is a natural and logical corollary to three fundamental principles of appellate review: (1) a judgment is presumed correct; (2) all intendments and presumptions are indulged in favor of correctness; and (3) the appellant bears the burden of providing an adequate record affirmatively proving error. ( In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133, 275 Cal.Rptr. 797, 800 P.2d 1227 ; Denham v. Superior Court (1970) 2 Cal.3d 557, 564, 86 Cal.Rptr. 65, 468 P.2d 193 ; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295, 240 Cal.Rptr. 872, 743 P.2d 932.)

B. The trial court properly denied the motion to suppress.

Defendant argues that: (1) the second breath sample was taken from defendant in violation of the Fourth Amendment because there was no valid consent; and (2) the two breath samples taken after defendant was arrested were taken from defendant in violation of the Fourth Amendment because the incorrect advisement amounted to coercion that vitiated valid consent and the inevitable discovery doctrine does not apply.

1. The second breath sample of 0.094 percent.

Defendant argues that the officer did not procure valid consent from Mr. Arter for the second breath sample. (He does not challenge the procurement of the first breath sample.)

The prosecution bears the burden of showing that defendant's consent to search is voluntary and unaffected by coercion. The voluntariness of the consent is a factual question to be decided in light of all the circumstances. ( Estes v. Rowland (1993) 14 Cal.App.4th 508, 527, 17 Cal.Rptr.2d 901 [voluntariness of consent depends on totality of circumstances]; People v. Miller (1999) 69 Cal.App.4th 190, 202, 203, 81 Cal.Rptr.2d 410 ; [testimony of investigating...