People v. Forster

Decision Date10 November 1994
Docket NumberNo. D020031,D020031
Citation29 Cal.App.4th 1746,35 Cal.Rptr.2d 705
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Daniel Joseph FORSTER, Defendant and Appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., and Gary W. Schons, Asst. Atty. Gen., for plaintiff and respondent.

TODD, Acting Presiding Justice.

A jury found Daniel Joseph Forster guilty of one count of driving under the influence of alcohol in violation of VEHICLE CODE SECTION 231521, subdivision (a), one count of driving while having a blood alcohol concentration of .08 percent or more in violation of section 23152, subdivision (b), and one count of driving with a suspended license in violation of section 14601.2, subdivision (a). In connection with allegations under counts 1 and 2 that Forster's blood alcohol content was .20 percent or more (§ 23206.1), the jury was unable to make findings, and the trial court dismissed those allegations. Following the jury verdicts, Forster admitted allegations that within seven years of the commission of the charged offenses he had suffered three prior convictions of driving under the influence within the meaning of section 23175, thus elevating counts 1 and 2 to felonies.

The trial court sentenced Forster to the upper term of three years in state prison for the section 23152, subdivision (a), conviction. The trial court imposed a three-year term for the conviction of section 23152, subdivision (b), but stayed that sentence pursuant to Penal Code section 654. The trial court imposed a 120-day concurrent sentence for the misdemeanor section 14601.2 conviction.

Forster appeals, contending the trial court erred in (1) failing to suppress his statements to a police officer, (2) allowing him to be impeached with his felony conviction without determining that the crime involved moral turpitude, and (3) imposing the upper term sentence.

FACTS

On July 29, 1992, the Department of Motor Vehicles suspended Forster's driving privileges At 9:25 p.m. on April 3, 1993, Forster, driving a Toyota pickup truck, contacted United States Customs Inspector Keith Fleming, who was working the No. 5 inspection lane at the San Ysidro Port of Entry. In response to routine questions by Fleming, Forster said he was coming from Rosarito Beach and was going to an automatic teller machine to obtain money. Because Forster's eyes were droopy and he was inattentive, Fleming formed the opinion that Forster was under the influence of alcohol. Fleming asked Forster to step out of his vehicle and accompanied him to the customs security office, where Fleming subjected Forster to a routine pat-down search and directed him to sit on a bench. As they were walking to the security office, Fleming noticed Forster's ear was bloody. Forster told Fleming he had been in a fight. Once inside the security office, Fleming contacted the California Highway Patrol to investigate the possibility Forster was driving under the influence. Fleming explained to the jury that investigating or reporting driving under the influence offenses was not part of the job duties of a customs inspector. He added he asked Forster to step out of the vehicle because he did not believe Forster was in a fit condition to drive and it was a moral judgment on his part.

as a result of a conviction of driving under the influence. Forster received notice of the suspension of his license by mail on August 31, 1992. The suspension was in effect on April 3, 1993.

At 10:20 p.m., CHP Officer Pedro Herrera responded to the customs security office and talked with Fleming. At approximately 10:30 p.m., Herrera contacted Forster and asked him to approach a counter. Herrera observed Forster to be sleepy with red and watery eyes. Herrera also noticed that Forster walked with an unsteady gait and his speech was slurred. Herrera inquired about an injury to Forster's ear, and Forster said he had sustained the injury in a fight in Rosarito Beach. Forster also told Herrera he was coming from Rosarito Beach and planning to go to an automatic teller machine to get more money. Herrera asked Forster if he had been drinking, and Forster told the officer he had drunk four "Pacifico" beers. Forster told Herrera he had started drinking at 8 that morning and had stopped drinking at 7:30 that evening. Forster also told the officer he last ate at 8:30 the previous day, when he had steak and ham. Herrera conducted a series of field sobriety tests; Forster failed each one. Herrera formed the opinion that Forster was legally intoxicated for purposes of driving and relayed that finding to Fleming, who made a citizen's arrest.

Herrera transported Forster to a hospital, where he received medical treatment for his ear injury. Herrera then transported Forster to the downtown jail, where blood was taken at 12:32 a.m. on April 4.

An analysis of the blood sample taken from Forster showed he had a blood alcohol content of .24 percent.

Raymond Cole, a forensic toxicologist, opined that Forster had a blood alcohol level of .30 percent at 9:30 p.m. based on the 12:32 a.m. blood test results and absorption and burn-off data.

Forster's friend, Dale Dueling, testified for the defense that he and Forster had departed for Mexico at 1 p.m. on April 3, with Dueling driving Forster's pickup truck. They stopped for a hamburger before entering Mexico, and, once in Mexico, they went shopping. Dueling bought a bottle of tequila. Dueling testified they returned to the truck and, with Forster driving, were headed toward Rosarito Beach when he noticed a group of interesting shops and asked Forster to stop. They passed a cantina that was offering free drinks at the door to lure customers and they entered the cantina, staying there for two hours. At no point during April 3 did Dueling see Forster consume alcohol. At some point, Dueling got into a fight in the cantina and lost sight of Forster. Dueling left the cantina and looked for Forster, but the truck was gone. Dueling went to the toll free parking lot at the border because the pair had previously agreed that if they became separated they would meet at that location.

Testifying in his own defense, Forster said he joined the fight involving Dueling, which had become a brawl. After he left the cantina Richard Whalley, a forensic toxicologist, testified that a person of Forster's size who consumed a half liter of tequila at 9:15 p.m. within five or ten minutes would have a blood alcohol level of between .21 and .29 three hours later. Whalley also testified one could not say what that person's blood alcohol would be at 9:25 p.m. because that person would still be absorbing alcohol and how much alcohol had been absorbed was an unknown.

Forster passed out, and when he regained consciousness he realized he was injured. Forster drove to the border where the wait in line for inspection was 45 minutes. During this time Forster was feeling severe pain, and, to alleviate the pain, he drank from the bottle of tequila left in the truck by Dueling.

Cole, the prosecution's toxicologist, testified that if Forster had consumed alcohol only within the last half hour prior to the customs inspection he would have had to consume 11 ounces of tequila to have tested at a .24 blood alcohol level at 12:30 a.m. Cole further opined that if this was the only period of time in which Forster had consumed alcohol his blood alcohol level would have been .14 within 15 minutes of consuming the tequila.

CHP Officer Tom Newman inspected Forster's vehicle and did not find a bottle of tequila in it.

Forster had suffered a number of prior convictions for driving under the influence, including a 1992 conviction of section 23175, felony drunk driving within seven years of three or more driving under the influence convictions.

DISCUSSION
I

Forster contends evidence of his statements to CHP Officer Herrera was improperly admitted in violation of his rights under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The contention is without merit.

In Miranda, supra, 384 U.S. at page 444, 86 S.Ct. at page 1612, the high court held that a person questioned by law enforcement officers after being "taken into custody or otherwise deprived of his freedom of action in any significant way" must first "be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." (Fn. deleted.) A defendant's statements obtained in noncompliance with this rule cannot be introduced into evidence to establish his guilt. (Ibid.; cf. Harris v. New York (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 [statements elicited in violation of Miranda admissible on defendant's credibility].)

Here, the issue is whether Forster was "taken into custody or otherwise deprived of his freedom of action in any significant way." (Miranda, supra, 384 U.S. at p. 444, 86 S.Ct. at p. 1612, fn. deleted.) For the reasons that follow, we conclude he was not; therefore, the Miranda safeguards do not apply. Custody " 'occurs if the suspect is physically deprived of his freedom of action in any way or is led to believe, as a reasonable person, that he is so deprived.' " (Green v. Superior Court (1985) 40 Cal.3d 126, 133-134, 219 Cal.Rptr. 186, 707 P.2d 248, quoting People v. Arnold (1967) 66 Cal.2d 438, 448, 58 Cal.Rptr. 115, 426 P.2d 515; see also Berkemer v. McCarty (1984) 468 U.S. 420, 442, 104 S.Ct. 3138, 3151-52, 82 L.Ed.2d 317, fn. deleted ["the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation."].) In People v. Lopez (1985) 163 Cal.App.3d 602, 608, 209 Cal.Rptr. 575, the Court of Appeal listed various objective indicia of custody for...

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