People v. Trevisanut

• Decision Date: 28 August 1984
• Docket Number: Cr. A
• Citation: 160 Cal.App.3d Supp. 12,207 Cal.Rptr. 921
• Parties: 160 Cal.App.3d Supp. 12 The PEOPLE, Plaintiff and Respondent, v. Val Robert TREVISANUT, Defendant and Appellant. 21474. Appellate Department, Superior Court, Los Angeles County, California
• Court: California Superior Court

Page 921

207 Cal.Rptr. 921

160 Cal.App.3d Supp. 12

The PEOPLE, Plaintiff and Respondent, v. Val Robert TREVISANUT, Defendant and Appellant.

Cr. A. 21474.

Appellate Department, Superior Court, Los Angeles County, California.

Aug. 28, 1984.

[160 Cal.App.3d Supp. 14] A. William Bartz, Jr., Manhattan Beach, for defendant and appellant.

John Barry, City Prosecutor, for plaintiff and respondent.

SHABO, Judge.

Defendant appeals from a judgment of conviction entered following his plea of guilty to a violation of Vehicle Code section 23152, Subdivision (b) charged in count II of a two-count complaint. Count I, in which the defendant had been charged with a violation of section 23152, Subdivision (a) of the Vehicle Code, was dismissed on People's motion.

Prior to his entry of a guilty plea to count II, defendant had moved the court pursuant to Penal Code section 1538.5 to suppress evidence based upon the ground that his arrest had been without probable cause.

We note preliminarily the absence from the record before us of any specification of evidence which the defendant had sought to have the trial court order suppressed under section 1538.5. Neither the settled statement on appeal nor the municipal court docket, which is before us, discloses the nature of the allegedly illegally seized evidence. Nor does the record on appeal contain a written notice of motion to suppress evidence, in which the evidence sought to be suppressed might have been described. The state of the record thus invites confusion.

We remind defense counsel of the well-established duty in connection with suppression motions to state for the trial and appellate courts' benefit precisely the evidence which is the subject of the motion and the grounds therefor. (See People v. Manning (1973) 33 Cal.App.3d 586, 594, 109 Cal.Rptr. 531, and authorities cited therein.) ¹ Counsel's failure to discharge his responsibility in the case at bench compels us to speculate that the evidence sought to be suppressed must have consisted of chemical test evidence secured as a result of defendant's arrest.

THE FACTS

The evidence at the suppression hearing established that on September 16, 1983, at approximately 1:20 a.m. Officer Ramler of the Hermosa Beach Police Department observed a small sports car traveling northbound on Pacific Coast Highway at what appeared to be a high rate of speed. While pacing the vehicle, which he testified was proceeding at approximately 75 miles per hour, the officer also observed it to weave within the traffic lane and, upon approaching an intersection, saw it turn into the left turn pocket at Manhattan Beach Boulevard without signalling. The vehicle made a left turn onto Manhattan Beach Boulevard and yielded to the red lights of Officer Ramler's vehicle. After he approached the car, Officer Ramler detected the odor of an alcoholic beverage on the breath of defendant, whom the officer identified as the driver.

Sergeant Phillips, who arrived on the scene, took over the investigation. He requested that defendant get out of the sports car. Upon doing so, the defendant appeared to exercise caution in maintaining his balance. The sergeant described defendant's gait as somewhat unsteady. After detecting an odor of an alcoholic beverage on defendant's breath, Sergeant Phillips asked defendant if he had been drinking. Defendant replied that since 5:00 p.m. he had consumed five to six beers. Defendant's speech pattern was normal; however, his face was flushed.

Sergeant Phillips administered four field sobriety tests to the defendant and described defendant's completion of two of the tests (finger-to-nose and walk-an-imaginary-straight line) as "fair" and defendant's performance on the other two tests (reciting the English alphabet and one-legged stand) as "good." In his testimony, the sergeant described defendant's balance during the one-legged stand as "unsteady," although defendant did manage to maintain his balance. Although defendant recited the alphabet correctly and on the walk-the-line test defendant walked a "fairly straight line" and performed the proper distance, defendant did not walk heel-to-toe and did raise his arms; moreover, he repeatedly commenced the test before the instructions were completed. Finally, with regard to the finger-to-nose test which defendant performed "fairly well," he nevertheless started twice without following instructions, did not have his eyes closed at all times, and missed the tip of his nose four out of six times.

According to Sergeant Phillips defendant also exhibited horizontal nystagmus; however, the officer did not regard this test as "conclusive" but only as a "minute indicator of defendant's state of sobriety."

Based upon defendant's driving pattern as related by Officer Ramler to Sergeant Phillips, defendant's symptoms of intoxication and the results of defendant's performance on the field sobriety tests, Sergeant Phillips formed the opinion that the defendant was operating a motor vehicle while under the influence of an alcoholic beverage. Without a warrant, the sergeant placed the defendant under arrest for violating Vehicle Code section 23152, subdivision (a).

In denying the motion to suppress evidence, the trial court stated essentially that Sergeant Phillip's opinion as to defendant's blood alcohol level constituted probable cause to arrest under Vehicle Code section 23152, subdivision (b) ² even though probable cause may not have existed for an arrest under section 23152, subdivision (a). According to the settled statement, the court was of the opinion that since the enactment of section 23152, subdivision (b) police officers "do not need as much probable cause to arrest a driver under that section" as they do under Vehicle Code section 23152, subdivision (a).

For reasons which we shall explain, we disagree with the trial court regarding the quantum of probable cause issue. We nonetheless affirm the trial court's order which, we conclude, is supported by substantial evidence. ³

1. SUBSTANTIAL EVIDENCE CONTAINED IN THE ENTIRE RECORD ESTABLISHES PROBABLE CAUSE TO ARREST DEFENDANT

"Cause for arrest exists when the facts known to the arresting officer 'would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.' " (People v. Harris (1975) 15 Cal.3d 384, 389, 124 Cal.Rptr. 536, 540 P.2d 632; People v. Fein (1971) 4 Cal.3d 747, 752, 94 Cal.Rptr. 607, 484 P.2d 583.)

The record contains ample facts from which the arresting officer did and could reasonably believe, and the trial court could have properly found that defendant's ability to drive a motor vehicle was impaired as a result of his having ingested an intoxicating beverage. Among these circumstances was the information related by Officer Ramler to Sergeant Phillips concerning defendant's driving at a high rate of speed, his weaving within the traffic lane, his turning left at Manhattan Beach Boulevard without signalling, the presence of an alcoholic odor on defendant's breath, his exercise of caution in maintaining his balance, his unsteady gait, his admission of having consumed "five to six beers," the presence of horizontal nystagmus, defendant's ability to perform only one field sobriety test entirely correctly, and his flushed appearance.

Emphasizing Sergeant Phillips' testimony regarding defendant's performance of some of the field sobriety tests as "good" and minimizing the other evidence in the record supporting the validity of his arrest, defendant essentially asks us to reweigh the evidence which, as an appellate court, we cannot do when substantial evidence supports the trial court's section 1538.5 order. (People v. Loewen (1983) 35 Cal.3d 117, 123, 196 Cal.Rptr. 846, 672 P.2d 436; People v. James (1977) 19 Cal.3d 99, 107, 137 Cal.Rptr. 447, 561 P.2d 1135.) The record as a whole discloses substantial evidence in support of the trial court's order denying the motion to suppress; the order must therefore be affirmed. (People v. Howell (1973) 30 Cal.App.3d 228, 234, 105 Cal.Rptr. 748; see, also, People v. Fulk (1974) 39 Cal.App.3d 851, 114 Cal.Rptr. 567.) ⁴

2. THE SAME STANDARD OF PROBABLE CAUSE GOVERNS ARRESTS MADE FOR VIOLATION OF VEHICLE CODE SECTION 23152, SUBDIVISIONS (a) AND (b)

Concerning the quantum of probable cause issue, we first observe that ambiguity inheres in the trial court's statement that since enactment of subdivision (b) of section 23152 less probable cause is required to arrest than formerly was necessitated to make a valid arrest under section 23152, subdivision (a). If the court meant that, to establish probable cause for a warrantless arrest under 23152, subdivision (b), the People need not factually demonstrate the driver's impairment due to the ingestion of alcohol, we agree.

The People's burden of showing justification for a warrantless arrest under section 23152, subdivision (b) may be discharged without evidence of actual impaired driving because subdivision (b) does not require proof of impairment in order to justify a conviction. (Burg v. Municipal Court (1983) 35 Cal.3d 257, 265, 198 Cal.Rptr. 145, 673 P.2d 732.)

On the other hand, if the trial court believed that the 1981 enactment of subdivision (b) signified legislative repeal of the well-established definition of probable cause to arrest for a public offense (see Pen.Code, § 836), and thereby intended to expand the power of arrest for asserted violations of section 23152, subdivision (b), we believe that the court below was in error.

Penal Code section 836 codifies the power of arrest. ⁵ Section 836.1 authorizes a peace officer "with reasonable cause to believe that the person to be arrested has committed a public offense in his presence" to arrest that person with or without an arrest warrant. The statute has been an integral part of the California law of arrest since its enactment in 1872, and has since been only amended...