People v. Toure
| Decision Date | 05 January 2015 |
| Docket Number | E058915 |
| Citation | 232 Cal.App.4th 1096,181 Cal.Rptr.3d 857 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Madou TOURE, Defendant and Appellant. |
OPINION TEXT STARTS HERE
See 4 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Illegally Obtained Evidence, § 197.
APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed with directions. (Super.Ct.No. FBA1200751)
Mark D. Johnson, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles Ragland, Scott C. Taylor, and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
Madou Toure, the defendant, drove his semi-truck westbound on State Route 58, traveling for some distance in the eastbound lane of on-coming traffic before colliding head-on with an automobile carrying two occupants. Throughout the investigation of the incident by the California Highway Patrol (CHP), defendant was violent and combative, continuing his resistance even at the CHP station. Defendant refused to consent to blood alcohol testing after being admonished of the implied consent provisions of the Vehicle Code, so a nonconsensual warrantless blood draw was performed while defendant was restrained. After a jury trial, defendant was convicted of felony driving under the influence of alcohol causing injury ( Veh.Code, § 23153, subds. (a), (b)),1 driving on a suspended license (§ 14601.2, subd. (a)), and resisting an executive officer ( Pen.Code, § 69). He was sentenced to four years in state prison and appealed.
On appeal, defendant argues (1) his four year state prison sentence was unauthorized in the absence of pleading or proof of prior drunk driving convictions; (2) his felony drunk driving convictions must be reversed because the blood alcohol evidence was obtained without a warrant, exigent circumstances, or his consent, in violation of his Fourth Amendment rights; and (3) his convictions under both subdivisions (a) and (b) of section 23153 were improper. The People concede that the court imposed the incorrect sentence for driving under the influence with injury. We modify the sentence but otherwise affirm.
On December 23, 2012, at approximately 8:30 or 9:00 p.m., Alece Collins was driving in her automobile behind a Penske truck and a tractor-trailer semi-truck westbound on State Route 58 near Highway 395, in San Bernardino County. The tractor trailer swerved several times over the lane division line, into the eastbound lane of travel. Then it continued for approximately two miles in the eastbound lane of oncoming traffic, eventually striking a gray or silver passenger car.2 Other cars in the eastbound lane swerved and went off the road to avoid the tractor-trailer, which continued westbound in the eastbound lane.
The semi-truck eventually stopped a few thousand feet west of the site of the collision, on the right side of the road, which was on the north side of the westbound lane. The Penske truck pulled in front of the semi-truck and stopped, while Ms. Collins pulled in behind the semi-truck. The driver of the Penske truck called 9–1–1. The defendant exited the semi-truck, mumbling. Ms. Collins and two of the occupants of her vehicle exited her vehicle. Ms. Collins took a BB gun with her, and one of her companions checked the interior of the cab of the semi-truck for other occupants, but found none. One of Ms. Collins' companions took the keys out of the ignition of the semi-truck so defendant could not drive off again, because defendant had said something like, “I'm out of here,” and had gotten back into the cab of the truck. The interior of the truck smelled of alcohol so Ms. Collins assumed defendant was intoxicated.
After taking the keys to the semi-truck, Ms. Collins and her companions drove to the location of the gray car that had been struck by the semi-truck, to check on the welfare of its occupants. In the meantime, a CHP officer arrived at the location of the gray car in response to the dispatches of a wrong-way tractor trailer, and the later report of the collision. The officers stopped first at the location of the gray car, which had been struck by defendant's vehicle, where the vehicle's two occupants complained of neck and back pain. The gray car had damage to the driver's door and part of the driver's side tire was smashed in. At some point, the person who had defendant's truck keys turned them over to one of the officers.
Because the ambulance was already en route, the CHP officers then drove a few thousand feet west, to the location where the semi-truck was stopped behind the Penske moving truck. Defendant was the sole occupant of the semi-truck, and was seated in the driver's seat with his hands on the steering wheel when the officers approached. The keys to the semi-truck were not in the ignition and were not found in defendant's possession. There was damage to the left front wheel of the semi-truck and the tire was completely gone. Additionally, there was damage to the driver's side step. The asphalt bore marks where the tireless rim had driven and scraped, and the body of the truck had paint transfers that matched the car with which the truck had collided.
CHP Officer Chester opened the passenger side door and asked defendant to exit the vehicle, more than once. As soon the door of the truck cab opened, the officer could smell alcohol. Defendant yelled obscenities and the officer had to repeat his request two or three times before defendant started to walk between the dashboard and the passenger's seat towards the passenger door. Officer Chester grabbed defendant's arm to assist him out of the truck, fearing that defendant would fall out of the truck if impaired by drinking.
Defendant was angry and clenched his fists. Officer Chester asked defendant to turn around so he could frisk defendant for weapons, but as defendant turned around, he spun to the left with his left elbow. CHP Officer Williams, Officer Chester's partner, blocked the blow and applied a bent wrist control hold on defendant. Throughout the process, defendant continued yelling obscenities, and struggled to free his arms from Officer Williams' control.
After being handcuffed, the defendant still fought and screamed, yelling obscenities and kicking Officer Williams. At around this time, CHP Officers Camara and Bostrum arrived. Because defendant was now spitting at the officers, Officer Camara put a spit sock over his head. As Officer Camara put the spit sock on defendant, the officer noticed defendant's eyes were red and watery, his speech was slurred, and the officer could smell alcohol on defendant's breath. However, field sobriety tests could not be administered due to the state of defendant's agitation. Defendant continued to struggle, thrash about, and kick the officers, so leg restraints were applied upon the arrival of two deputies from the San Bernardino County Sheriff's Department.
After restraining defendant, Officers Williams and Bostrum searched the cab of the semi-truck, looking for vehicle registration, insurance information, and log books. The officers were also looking for open containers of alcohol to make sure defendant did not consume alcohol after the collision. The log books showed no entries for a co-driver on the date and at the time of the accident, although there are places to enter that information. After the officers completed the search of the truck, they transported defendant to the CHP station in Barstow.
At the Barstow station, Officer Camara admonished the defendant of the implied consent to blood-alcohol testing, but defendant refused, using more profanity. Defendant did not consent, but he was still agitated, and he could not be released from restraints until after a blood draw had been performed (he had been “hogtied” for approximately one to two hours already), so the officers wanted to limit the time defendant was in that position. Because blood alcohol content degrades over time, two hours had already passed, and because he was unsure of the availability of a magistrate who could issue a warrant, Officer Camara consulted with his sergeant, who approved a forced draw. The results of the tests on defendant's blood showed a 0.15 blood alcohol level.
Defendant was charged with driving under the influence of alcohol causing injury (§ 23153, subd. (a)), with a special allegation that he refused to submit to chemical testing (§ 23612; count 1); driving with 0.08 or higher blood alcohol (§ 23153, subd. (b), count 2); driving on a suspended license 3 (§ 14601.2, subd. (a), count 3); and resisting an executive officer ( Pen.Code, § 69, count 4). Defendant was tried by a jury that convicted him of all counts.
On June 4, 2013, defendant was sentenced to 4 years, 8 months in state prison. Defendant timely appealed.
Defendant argues the court imposed an unauthorized four-year sentence term for count 1, section 23153, subdivision (a), where the maximum term for such a violation, accompanied by an allegation of refusal to submit to a chemical test for blood-alcohol, with a single prior conviction is three years. The People agree, because the defendant's prior convictions for driving under the influence were neither pled nor proven.4 We agree.
The allegation that defendant refused to submit to a chemical test for blood alcohol does not carry any additional custodial penalty, although it may result in mandatory imprisonment. (§ 23612, subd. (a)(1)(D).) And because the People did not plead or prove any prior convictions for driving under the influence, defendant could only be punished for a first offense, pursuant to section 23554.
The punishment for a first offense of driving under the influence causing bodily injury is a...
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