People v. Moore, Cr. 19510

• Decision Date: 06 October 1971
• Docket Number: Cr. 19510
• Citation: 20 Cal.App.3d 444,97 Cal.Rptr. 601
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Cholly MOORE, Defendant and Appellant.

Page 601

97 Cal.Rptr. 601

20 Cal.App.3d 444

The PEOPLE of the State of California, Plaintiff and Respondent, v. Cholly MOORE, Defendant and Appellant.

Cr. 19510.

Court of Appeal, Second District, Division 1, California.

Oct. 6, 1971.

I. Mark Bledstein, Los Angeles, for appellant under appointment by the Court of Appeal.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., and Frederick R. Millar, Deputy Atty. Gen., for respondent.

LILLIE, Presiding Justice.

Defendant was charged with three counts of felony drunk driving (Veh.Code, § 23101) and two counts of involuntary manslaughter (Pen.Code, § 192, subd. 3(a)) arising out of his operation of a motor vehicle. A jury convicted him as charged recommending county jail confinement for the manslaughter convictions. Motions for new trial and probation having been denied, defendant was sentenced to state prison on the drunk driving counts (each to run concurrently) and to the county jail on the two manslaughter counts (each such count to run concurrently with the other as well as with the state prison terms for drunk driving). The appeal is from the judgment.

Around 9:15 p.m. on May 17, 1970, defendant was driving on Pacific Coast Highway near Zuma Beach; the highway consisted of four lanes, two in each direction. Defendant (in a Mustang), although southbound, was observed in the fast northbound lane (over the double line) by the driver of a following car, Mr. Bauer, who stated that there was then only one or two cars 'at the most' southbound ahead of him. It was a clear evening, and defendant's car momentarily disappeared from Bauer's view as it went around a bend. He then heard a loud crash. As bauer, in turn, rounded the bend, another car approached him in the northbound lane; its front was crushed, its left tire was flat, and sparks were coming from the bottom of the vehicle. ¹ He then passed another car, damaged, in the center divider (represented by the double yellow line).

Bauer parked his car about 150 yards down the highway and returned to the damaged car (a Mustang). Approaching from the driver's side, he noticed that the door was closed and crushed. A man was sitting in the right rear seat, and Bauer asked him if he was injured; the man said 'No.' Previous to his arrival, Bauer saw nobody leave the Mustang. He then observed another man approach the Mustang; this man (Richard Walbergh) was also a prosecution witness and was recognized by Bauer at the trial.

Walbergh, a reserve deputy sheriff, had just gone off duty when he heard a 'tremendous crash' on Pacific Coast Highway; he arrived at the scene about two minutes thereafter. Upon arrival, Walbergh saw a Mustang 'approximately in the center' of the highway with its front end badly damaged. Its sole occupant was in the front (driver's) seat which had been bent backward and twisted by the impact; he was moving about and trying to get out. Walbergh observed that the driver's door was smashed and, to the best of his recollection, closed.

John Deher, a state traffic officer assigned to Malibu substation, responded to the accident call from his dispatcher. He found defendant seated on the right front seat with his legs extended out. Asked by the officer if he was injured, defendant answered in the negative. In the opinion of the officer, defendant was then under the influence of alcohol--his speech was slurred, there was a strong odor of alcohol on his breath, his eyes were extremely bloodshot and he was unable to stand without assistance. Defendant was led by Deher to the officer's patrol car and left there in the care of another officer while Deher investigated the accident further. Such investigation having been completed, the witness and defendant rode back together to the police station. Defendant was twice advised of his constitutional rights; thereafter, in response to the officer's question, defendant stated that he understood such rights. Asked, having these rights in mind, if he wanted to talk about the accident, defendant replied: 'Yes, anything you want.' Defendant then stated he had consumed two beers (Colt 45) at home; asked if he was driving the Mustang, defendant said, 'Yes.'

At the police station defendant was advised of the requirements of section 13353, Vehicle Code (chemical test for alcohol) and he chose a breathalyzer examination; it resulted in a .22 reading which indicated, to a qualified witness, that he was 'definitely under the influence of alcohol' in relation to the operation of a motor vehicle. Later defendant also agreed to take a blood test at the hospital where certain minor injuries were treated; the sample of his blood was found to contain .21 per cent alcohol.

Following Officer Deher's appearance on the stand, defendant moved to supress such testimony upon the ground that he neither understood nor knowingly waived his Miranda rights. Defendant testified in support of this motion ² that he had no recollection of any conversation with police officers at the time in question, and could not remember anything that happened after the accident except that a police officer helped him to the patrol car. Defendant stated that he was then suffering from an arthritic stroke which affected his right side, arm and legs; also, that he was taking treatment for high blood pressure and diabetes. (On cross-examination, he said that the records of such treatment were at the County General Hospital.)

As his first point, defendant claims the lack of any substantial evidence to sustain the ruling that he understood and knowingly waived his constitutional right to remain silent, although he concedes that mere intoxication (even to the extent of physical impairment) is not necessarily the equivalent of mental impairment (citing People v. Stroud, 273 Cal.App.2d 670, 679--680, 78 Cal.Rptr. 270). We think that Stroud is clearly determinative of the point here urged, particularly at this stage of the proceeding. Among other things, the court held that 'an appellate court viewing the totality of circumstances to ascertain whether a defendant's statements were voluntary and the product of a rational intellect, must accept the resolution of conflicting evidence by the trier of fact where the evidence upon which the lower court relied is not so improbable as to be entirely unworthy of belief. (Citations.)' (Supra, p. 676, 78 Cal.Rptr. p. 274.) Defendant and Officer Deher were seated in the rear seat of the police car; after the officer read defendant his Miranda rights from a card, the latter made no response to the officer's question whether he understood such rights. The officer then reread the statement of Miranda rights, and defendant answered the question if he understood them in the affirmative; he then made the incriminating statements after he was asked, 'Having these rights in mind, do you wish to talk to us now?' There is nothing improbable about the officer's version of what transpired--indeed he is to be commended for his professional thoroughness in providing defendant, out of an abundance of precaution, with a double opportunity to evaluate and understand his rights. In contrast, the court was confronted with defendant's asserted lack of recollection;...