People v. Cooper, B286201

• Decision Date: 18 July 2019
• Docket Number: B286201
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Sheila COOPER, Defendant and Appellant.

37 Cal.App.5th 642

250 Cal.Rptr.3d 511

The PEOPLE, Plaintiff and Respondent,

v.Sheila COOPER, Defendant and Appellant.

B286201

Court of Appeal, Second District, Division 3, California.

Filed July 18, 2019

Darden Law Group and Christopher Darden, Los Angeles, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Stephanie C. Brenan and Lindsay Boyd, Deputy Attorneys General, for Plaintiff and Respondent.

EGERTON, J.

A jury convicted defendant and appellant Sheila Cooper of driving under the influence of alcohol causing injury within 10 years of a prior driving under the influence offense. On appeal, Cooper contends the trial court erred in denying her motion to suppress statements she made to police during field sobriety tests administered at the police station. Cooper claims a violation of her Fifth Amendment rights under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ( Miranda ). We find no error and affirm.

FACTS AND PROCEDURAL BACKGROUND

1. Cooper slams into the victims' car

Just after 8:30 p.m. one January night in 2017, Yessenia Rosales was driving her Kia Forte on Manchester Boulevard in Los Angeles. In the passenger seat was her fiancé, Edmundo Mendez. Both Rosales and Mendez were wearing seat belts. Rosales was stopped at a red light. Just as the light turned green, Rosales and Mendez saw in their rearview mirror the lights of a car coming up behind them, closer and closer. The lights in the rearview mirror were getting brighter and more intense. The oncoming car hit the Kia very, very hard. Rosales's car went flying forward at least 50 feet and ended up on the other side of the intersection.

Mendez called 911. The operator told him just to get the information from the other driver. Mendez walked over to the car that hit him, a Chevrolet Camaro. Cooper was sitting in the driver's seat. Mendez spoke to her. At first she was "unresponsive" but after a few seconds she seemed to "c[o]me to." Cooper told Mendez he had no authority to ask for her identification because he was not a police officer. Cooper's speech was slurred and Mendez smelled alcohol on her breath.

A tow truck happened to drive by and stopped to help. Cooper got out of her car, approached the tow truck driver, and said, "I need to get out of here.

Can you get me out of here?" Mendez noticed Cooper was "wobbling," "swaying side to side" "like she couldn't walk straight." Mendez called 911 again.

Donyell Journagin also was driving down Manchester that night. While sitting at the red light, Journagin saw the lights of a car coming fast. He estimated the car was traveling at least 65 or 70 miles per hour; the speed limit there is 35. The car "just smack[ed]" into another car, "hit[ting] it hard" and knocking it "a good 70, 80 feet" across the intersection. Journagin pulled over and got out to make sure everyone was alright, "[b]ecause the crash ... was like a hard hit."

Journagin saw Cooper, who was "kind of stumbling" and kind of disoriented. Journagin asked Cooper if she was okay and told her "[t]he people [were] going to need [her] I.D. to exchange the information." Cooper started "acting crazy." As Mendez walked up, Cooper "turned around" and "start[ed] saying like, what the fuck? You motherfuckers work for Trump or something like that." Journagin backed up; he and Mendez walked to the curb and Journagin told Mendez he'd have to wait for the police because "[y]ou can't take her I.D. or anything."

Los Angeles Police Department Officers Samual Colwart and Nathan Grate arrived at the scene about 10 minutes after the collision. Cooper was standing on the sidewalk. Colwart asked Cooper for her driver's license, registration, and proof of insurance. Colwart noticed Cooper's eyes were red and watery, she smelled like alcohol, and she was chewing gum. Her speech was slurred. Cooper walked back to her car. She was stumbling and unable to walk straight.

Cooper got into her car and "kind of just sat there." She was upset and crying. Eventually Cooper went through her wallet and handed her license to Colwart. She got out of her car. Colwart again asked Cooper for her registration and proof of insurance. Cooper "became very upset" and "threw her wallet on the hood of the car." She was "walking around" and "cursing."

Colwart asked Cooper if she had been drinking; she said no. Colwart asked Cooper if she had "any physical defects"; she said no. Colwart asked Cooper where she had been going; she refused to answer. In response to Colwart's questions, Cooper told him what she had eaten and when she had last slept. Colwart asked Cooper if she was under a doctor's care and she responded, "Ain't your business."

Rosales saw that, while Cooper was talking with the officers, "[s]he was throwing her hands up" "then down in a slumping over motion," "walking back and forth," and "walking away from [the] officers."

2. Officers take Cooper to the police station and ask her to perform field sobriety tests

Colwart decided to take Cooper to the 77th Street police station to administer the field sobriety tests (FSTs). Colwart later explained: "[S]he was just so upset at the scene, she wasn't focused on any—the questions I was asking. She just was really upset. She wasn't ... with the investigation at the time .... It would be unsafe." Cooper was "pacing around" and the roadway "was still an active collision scene." Female officers arrived. They had to "grab [Cooper] and bring her to the [police] car." The station was one and one-half to two miles from the scene.

Once at the station, Colwart began the FSTs with Cooper in the long hallway next to the watch commander's room. Cooper was not handcuffed. Colwart did not see any "physical defects," physical problems, or medical issues that might prevent Cooper from performing the FSTs. According to Colwart, there are "preset instructions" for the FSTs—officers give the tests in a particular order. Colwart typically explains each test in turn, asks the suspect if she understands the test, and then asks the suspect to perform the test.

The first test was the "eye examination," looking for horizontal gaze nystagmus

. Cooper's performance was "consistent with somebody who is impaired due to alcohol."

Next, Colwart had Cooper perform the modified Romberg test

.¹ Colwart instructed Cooper to stand with her feet together, hands to her sides, close her eyes, tilt her head back, and estimate 30 seconds. Colwart demonstrated. Cooper swayed back and forth slightly while performing the test; she estimated 23 seconds to be 30 seconds. Variation within the "normal range" is five seconds in either direction; Cooper's estimate of 23 seconds thus was just outside the normal range. Her performance on that test—without more—would not demonstrate impairment.

Next, Colwart explained, then demonstrated, the walk-and-turn test. Cooper indicated she understood the test but she refused to perform it. Cooper told Colwart "her thighs were too big and her pants were too tight." Colwart then explained and demonstrated the one-leg stand test. Cooper refused to do that test as well. She told Colwart "she wouldn't be able to do it because she had a disability." Cooper told Colwart the nature of the disability "ain't [your] business."

Colwart read Cooper the chemical admonition, advising her she was required to submit to a breath test or a blood test.² Cooper chose the breath test. Colwart's partner Grate administered the EC/IR intoxilyzer breath test. Grate first observed Cooper for 15 minutes. Grate then explained to Cooper how to do the test. Cooper purported to blow into the machine but she didn't blow hard enough and the machine "said insufficient sample." Grate asked Cooper three more times to blow into the machine properly and with sufficient force, without success. At one point, Cooper wrapped her lips too tightly around the mouthpiece so her breath was "block[ed]" from "go[ing] into the EC/IR machine to provide a sample."

Colwart summoned the watch commander, Sergeant Deanna Quesada, from her office. Quesada explained to Cooper "that she's required by the state to submit to a chemical test to determine the alcohol content of your blood." Quesada told Cooper she could have a breath test or a blood test. Quesada advised Cooper of the consequences of refusing to submit to a test. According to Quesada, Cooper did not respond; she was just silent. Colwart recalled Cooper did respond; he could not remember her exact words, but she "essentially refuse[d] to take any more tests."

3. The victims' injuries

The victims' Kia was totaled. At the time of trial, about nine months after the collision, Rosales still had headaches every day. She suffered from knee pain, shoulder pain where her seatbelt had crossed her shoulder, and insomnia, even though she was taking muscle relaxants. The shoulder pain was "constant": "[i]t really hurts ... all the time now." Rosales was unable to perform some of her job duties as a nanny.

Mendez suffered from back pain caused by discs that were "protruding a few centimeters out of place." He also had muscle weakness in his hip and went to physical therapy for five months. He was not able to perform all of his duties as a security officer.

4. The charges , Miranda hearing, trial, verdicts, and sentence

The People charged Cooper with driving under the influence of alcohol (DUI) within 10 years of a prior felony DUI conviction (count 1), and DUI causing injury within 10 years of another DUI offense (count 2). The People alleged Cooper had refused to submit to the mandatory chemical test, and she had suffered a prior strike conviction for criminal threats.

Before trial, Cooper filed a Miranda motion. Cooper "object[ed] to the admission in [the] trial of any and all evidence related to admissions of the Defendant made prior to being advised of her Miranda rights, after she was detained (handcuffed and placed in a patrol vehicle)."...