People v. Valencia

• Decision Date: 29 September 2015
• Docket Number: No. APP1400147.,APP1400147.
• Parties: The PEOPLE, Plaintiff and Respondent, v. Miguel VALENCIA, Defendant and Appellant.
• Court: California Superior Court

240 Cal.App.4th Supp. 11

193 Cal.Rptr.3d 272

The PEOPLE, Plaintiff and Respondent

v.Miguel VALENCIA, Defendant and Appellant.

No. APP1400147.

Appellate Division, Superior Court, Riverside County.

Sept. 29, 2015.

Eric Cioffi, Long Beach, under appointment by the Superior Court, for Defendant and Appellant.

Paul E. Zellerbach and Michael A. Hestrin, District Attorneys, and Matt Reilly, Deputy District Attorney, for Plaintiff and Respondent.

Opinion

THE COURT.^**

Defendant Miguel Valencia was convicted by a jury of resisting, delaying, or obstructing an officer (Count One; Pen.Code § 148, subd. (a)(1) (hereafter section 148 or 148(a)(1) )), driving on a suspended license (Count Two; Veh.Code § 14601.2, subd. (a) ), and driving under the influence (DUI) (Count Three; Veh.Code § 23152, subd. (a) ). He challenges the trial court's instruction to the jury on Count One, and attacks all of his convictions for error under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (Miranda ). In the published portion of this opinion, we agree with defendant that the trial court improperly instructed the jury that it could find defendant guilty of a violation of section 148 based on his refusal to submit to a chemical test after his DUI arrest. In the unpublished portion of this opinion, we find that the trial court did not commit prejudicial Miranda error. We therefore reverse Count One, but affirm defendant's convictions on Counts Two and Three.

FACTS AND PROCEDURAL BACKGROUND

On September 11, 2013, at 1:40 a.m., California Highway Patrol Officer Brian Seel was on patrol in Riverside with another officer when they conducted a traffic stop on a car they had seen run a red light, make a wide turn, and straddle the dividing line between two lanes. Officer Seel contacted the driver, defendant, who had his window down about two inches, but refused to roll the window down farther upon the officer's request. Officer Seel noticed several physical signs that defendant was intoxicated: the odor of alcohol; extremely red and watery eyes; and slurred, jumbled, and repetitious speech. The two officers asked defendant numerous times to get out of the car, but defendant refused. An officer finally reached through the partially opened passenger window and unlocked the doors. Officer Seel opened the driver's door and defendant eventually got out.

An overwhelming odor of alcohol came from defendant's car, but defendant denied drinking. Defendant was very unsteady on his feet-he stumbled, had to hold onto the car door for support as he got out, was unable to walk in a straight line, continually swayed, and had to move his feet to keep balance while standing. Officer Seel explained his intent to conduct a DUI investigation, but defendant refused to answer questions or perform any field sobriety tests. Officer Seel—who testified as to his training and expertise in investigating DUIs—came to the opinion that defendant “was not safe to operate a motor vehicle,” confirmed that defendant's driver's license was suspended or revoked due to a prior DUI, and placed defendant under arrest.

After the arrest, Officer Seel and defendant spoke to one another even though defendant had not been advised pursuant to Miranda. In response to defendant's Miranda objection at trial, the trial court excluded the exchange after a certain point, but admitted the first portion, apparently on the ground that it did not constitute interrogation. This initial post-arrest exchange was presented to the jury by way of a video recording and transcript.¹ In the exchange, defendant goes back and forth with the officer, challenging the officer's conclusion that he was driving under the influence, asking for leniency in the form of a warning or citation, and offering various other protests.²

Officer Seel also sought defendant's consent to conduct a chemical test. Defendant first indicated that he would take a breath test, but ultimately refused to provide either a breath or a blood sample. Additionally, at some point Officer Seel admonished defendant that his refusal to submit to a test would result in the suspension or revocation of his driving privilege, could be used against him in court, and would result in a fine and imprisonment in the event he was eventually convicted of a DUI. There is no indication that Officer Seel attempted to secure a warrant or conduct a forced blood draw.

Erin Crabtrey, a forensic toxicologist, testified that physical impairment due to alcohol is always preceded by mental impairment

, such that a person who is physically impaired is necessarily also mentally impaired. She also testified that the various aspects of defendant's driving and physical symptoms were consistent with a person who was under the influence.

As to the elements of Count One, the trial court instructed the jury with a modified version of CALCRIM No. 2656. As given, the instruction set fourth four alleged acts that could form the basis for the violation:

The People allege that the defendant resisted, or obstructed, or delayed Brian Seel by doing the following: failing to roll down the drivers [sic ] side window after being asked six times to do so, by failing to exit the vehicle after being ordered to do so fifteen times by more than one California Highway Patrol Officer, failing to perform Field Sobriety Tests requested by the officer and failing to submit to a chemical test of either his breath or blood.

(Emphasis added.) The jury was also instructed on unanimity, both as part of CALCRIM No. 2656 and a second time with CALCRIM No. 3501, that in order to find defendant guilty of a violation of section 148 they must all agree that defendant committed at least one of the alleged acts, and on which act he committed.

The jury found defendant guilty on all three counts, and the parties stipulated that he had two separate prior DUI convictions within ten years. Defendant was not charged with a chemical test refusal allegation in order to enhance his punishment for the DUI. (Veh.Code § 23577.) The trial court placed him on summary probation for 60 months and ordered him to serve 186 days in custody. Defendant now appeals. (Pen.Code § 1466, subd. (b)(1).)

DISCUSSION

I. Defendant's Section 148 Conviction Must Be Reversed for Instructional Error

Defendant's first argument on appeal is that his section 148 conviction must be reversed because the jury was improperly instructed that it could base a guilty verdict on his failure to submit to chemical testing. He does not argue that Officer Seel was not engaged in the lawful performance of his duties when requesting defendant to submit to a test,³ nor does he argue that his refusal did not actually obstruct the officer's investigation. Rather, he argues that an arrestee has the constitutional and statutory right to refuse. Preliminarily, the People argue that this claim is forfeited. “The rule of forfeiture does not apply, however, if the instruction was an incorrect statement of the law [citation], or if the instructional error affected the defendant's substantial rights,” and to ascertain whether or not this is so “ ‘ “necessarily requires an examination of the merits of the claim—at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was.” ’ ” (People v. Franco (2009) 180 Cal.App.4th 713, 719, 103 Cal.Rptr.3d 310.)

It appears to be an issue of first impression in California whether a DUI arrestee's refusal to submit to a chemical test can constitute a violation of section 148.

We therefore solicited and received supplemental briefing from the parties.

A. There Is No Statutory Basis for Punishing Under Section 148 a Simple Refusal to Submit to a Chemical Test

We first note that we review de novo whether the trial court's jury “instructions correctly state the law.” (People v. Posey (2004) 32 Cal.4th 193, 218, 8 Cal.Rptr.3d 551, 82 P.3d 755.) Furthermore,

“[a]s in any case involving statutory interpretation, our fundamental task here is to determine the Legislature's intent so as to effectuate the law's purpose.” [Citation.] “We begin with the plain language of the statute, affording the words of the provision their ordinary and usual meaning and viewing them in their statutory context....”

(People v. Cornett (2012) 53 Cal.4th 1261, 1265, 139 Cal.Rptr.3d 837, 274 P.3d 456.) Section 148(a)(1) makes it a misdemeanor to “resist[ ], delay [ ], or obstruct[ ] any ... peace officer....” But “ ‘ “we must consider the [statutory language] in the context of the entire statute [citation] and the statutory scheme of which it is a part” ’ ” (People v. Whaley (2008) 160 Cal.App.4th 779, 793, 73 Cal.Rptr.3d 133 [textual alterations in original] ), and “language that appears clear and unambiguous on its face may be shown to have a latent ambiguity when some extrinsic factor creates a need for interpretation or a choice between two or more possible meanings” (Varshock v. California Dept. of Forestry and Fire Protection (2011) 194 Cal.App.4th 635, 644–45, 125 Cal.Rptr.3d 141 [finding a latent ambiguity in a statute in part due to potential conflict with a separate statute in a different code] ). Viewed in this way, the language of section 148 alone does not make it clear whether a DUI arrestee's act of peaceably refusing to submit to a chemical test may be prosecuted under that section, in light of the fact that such tests are governed by a careful and complicated set of statutory rules and consequences for noncompliance. We thus perceive a latent ambiguity in section 148, which permits us to “ ‘look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part’ ” in order to interpret the statute. (People v. Leiva (2013) 56 Cal.4th 498, 510, 154 Cal.Rptr.3d 634, 297 P.3d 870.)

“It cannot be too often repeated that due respect for the...