Charles G. COPELIN, Appellant,
STATE of Alaska, Appellee.
Joe Ray MILLER, Appellant,
ANCHORAGE, a Municipal Corporation, Appellee.
Nos. 5453, 5708.
Supreme Court of Alaska.
February 18, 1983.
1207*1207 Daniel Westerburg and Stanley Lewis, Birch, Horton, Bittner, Monroe, Pestinger & Anderson, Anchorage, for appellant Copelin.
1208*1208 Jeffrey M. Feldman and James D. Gilmore, Gilmore and Feldman, Anchorage, for appellant Miller.
Elizabeth H. Sheley, Asst. Atty. Gen., Anchorage, Wilson L. Condon, Atty. Gen., Juneau, for appellee State of Alaska.
David G. Berry, Municipal Prosecutor, Theodore D. Berns, Municipal Atty., Anchorage, for appellee Anchorage.
Before BURKE, C.J., and RABINOWITZ, CONNOR, MATTHEWS and COMPTON, JJ.
In separate cases, Charles G. Copelin and Joe Ray Miller were convicted of violating state and municipal drunken driving prohibitions. These convictions were upheld by the Court of Appeals. We granted Copelin and Miller's petitions for hearing in order to review whether the police may refuse the request of one who is arrested for driving while intoxicated to consult an attorney before deciding whether to submit to a breathalyzer test. A second issue, raised only in the case of Copelin, is whether a judge may consider one's refusals to submit to such breathalyzer tests in sentencing proceedings.
We have concluded that when a person is arrested for operating a motor vehicle in violation of state or local drunken driving ordinances, and requests to contact an attorney, AS 12.25.150(b) and Alaska Criminal Rule 5(b) require that the arrestee be afforded a reasonable opportunity to do so before being required to decide whether or not to submit to a breathalyzer test. Where, as here, the arrestee is denied that opportunity, subsequently obtained evidence must be suppressed, and we accordingly reverse these two cases.
On September 16, 1979, Charles G. Copelin was arrested for operating a motor vehicle while under the influence of intoxicating liquor in violation of state law. AS 28.35.030.On April 16, 1979, Joe Ray Miller was arrested for operating a motor vehicle while his blood alcohol level exceeded .10 percent, in violation of a municipal ordinance 1209*1209Anchorage, Alaska Municipal Code § 9.28.030 (1978).
Following their traffic stops both Copelin and Miller were taken into custody and transported to law enforcement headquarters. Both Copelin and Miller were asked to submit to breathalyzer examinations and both responded to this request by expressing a desire to contact their attorneys first. Permission was denied. Both Copelin and Miller were told that they did not have the right to contact counsel until after they decided whether to take the test.
Copelin did not take the breathalyzer test, did not perform requested field sobriety tests, and was videotaped throughout this refusal. Miller did take the breathalyzer test. Following their respective arraignments, Copelin moved to suppress the videotape of his actions and Miller moved to suppress the results of his breathalyzer test. These motions produced conflicting results in the district and superior courts and eventually made their way to the Court of Appeals. The Court of Appeals affirmed the convictions of both Copelin and Miller, holding that there was no error in the failure to suppress Copelin's videotape, no error in the failure to suppress Miller's breathalyzer test results, and no error in considering Copelin's past refusals to submit to breathalyzer tests in imposing sentence.
Copelin and Miller contend that they had a statutory right of access to counsel which was violated by law enforcement officers' denial of their requests to speak with their attorneys. We agree.
1210*1210 AS 12.25.150 sets forth the rights of a prisoner after arrest. Subsection (b) of that statute provides:
"Immediately after an arrest, a prisoner shall have the right to telephone or otherwise communicate with his attorney and any relative or friend, and any attorney at law entitled to practice in the courts of Alaska shall, at the request of the prisoner or any relative or friends of the prisoner, have the right to immediately visit the person arrested." (Emphasis added).
The language of this statute is clear and unambiguous and mandates that every arrestee have the right to telephone or otherwise communicate with his attorney immediately.This mandate was viewed by the legislature as sufficiently important to warrant criminal and civil penalties for its willful or negligent violations.
Relying on this court's interpretation of AS 12.25.150(b) in Eben v. State, 599 P.2d 700 (Alaska 1979), the Court of Appeals found Copelin and Miller's invocation of that statute to be misplaced. In Eben, we stated:
"[AS 12.25.150(b)] is not concerned with implementing an arrestee's right to consult privately with his or her attorney, but with right to contact an attorney, relative or friend for the purpose of arranging bail or legal representation."
Id. at 710 n. 27.
However, there is nothing in the language of the statute which suggests any limitations on the type or nature of communication which an arrestee may have with his attorney following arrest. In fact, in Eben, this court noted:
"[W]e caution that to the extent deemed appropriate in light of the circumstances, law enforcement officials should administer AS 12.25.150(b) in a manner which will permit a prisoner to communicate in privacy with his attorney, relative, or friend."
Id. By recommending that private communication be allowed where feasible, this court implicitly recognized that the opportunity to consult and communicate with an attorney and to receive legal advice was also a contemplated purpose of the statute. To the extent that language in Eben indicates that the sole purpose of AS 12.25.150(b) is to aid an arrestee in the attainment of bail or legal representation, it is 1211*1211 disavowed. We hold that one intended purpose of AS 12.25.150(b) is to provide an arrestee with the opportunity to obtain legal advice.
We now must determine what the legislature intended when it gave an arrestee "the right to telephone or otherwise communicate with his attorney" "immediately after an arrest" in the context of a driving while under the influence (DWI) arrest. The state and the municipality argue the right to consult an attorney "immediately" means after any sobriety tests are administered. They argue that since the evidence which these tests are designed to detect dissipates quickly, it would be impracticable, unreasonable, and contrary to the intent of the implied consent statute to allow prior consultation. We disagree. "Immediately" means just that. This "destruction of evidence" argument does not preclude the limited statutory right of access to counsel that Copelin and Miller are seeking.
In Anchorage v. Geber, 592 P.2d 1187 (Alaska 1979), we weighed the benefits of assistance of counsel against the possibility that requiring such assistance following an arrest for driving while intoxicated and prior to field sobriety tests would interfere with the acquisition of relevant evidence. Id. at 1192. We are mindful of the important state interest in obtaining reliable evidence of an arrestee's blood alcohol level and the fact that alcohol concentration will dissipate with the passage of time.
However, the proper procedure by which breathalyzer examinations are to be given in Alaska as set forth in 7 Alaska Admin. Code § 30.020 requires that the test subject be observed by the test operator for at least 15 minutes immediately prior to testing to assure that the subject does not vomit or place anything in his mouth which might invalidate the test result. Since a minimum of a 15 minute wait is necessary before administering the breathalyzer test, no additional delay is incurred by acceding to a request to contact an attorney during that time.
The statutory right to contact and consult with counsel is not an absolute one (which might involve a delay long enough 1212*1212 to impair testing results), but, rather, a limited one of reasonable time and opportunity that can be reconciled with the implied consent statutes.
The municipality argues that it is not clear whether Miller would have been able to contact his attorney within any specific time period. The state points out that Alaska does not by statute establish a period of time during which the breathalyzer must be administered to guide the court in prescribing a time limit. Both of these observations are valid. Reasonableness will depend on the circumstances of each case, such as the amount of time between the stop and the transportation to the station, when the request is made, and how much time is needed to set up the test. If the attorney cannot be contacted within a reasonable time the suspect must decide without the advice of counsel, whether to take the breathalyzer test. As both Copelin and Miller were denied any opportunity whatsoever to contact their attorneys, they were denied their statutory rights.
The state and the municipality next contend that since there is "no right to refuse" to take the breathalyzer tests, any right to consult an attorney would be meaningless to the accused. In Graham v. State, 633 P.2d 211 (Alaska 1981), we stated:
"Under Alaska law, as in most other jurisdictions, one arrested for operating a motor vehicle while under the influence of intoxicating liquor has no constitutional or statutory right to refuse to submit to a breathalyzer test.Palmer v. State, 604 P.2d 1106, 1110 (Alaska 1979); Wirz v. State, 577 P.2d 227, 230 (Alaska 1978). Nor does he or she have the right to have counsel present before being required to take the test. Anchorage v. Geber, 592 P.2d 1187, 1192 (Alaska 1979). Since there is no right of refusal, we have also held that it is not necessary to inform the person arrested that he or she can refuse the test, in order to render the test results admissible.Palmer v. State, 604 P.2d 1110."
Id. at 214 (footnote omitted).
The prosecuting authorities in the present case have seized upon the language that there is "no right to refuse" to take the breathalyzer test to argue that there is no issue as to which the advice of an attorney might help to preserve any of the accused's rights. The state goes a step further, insisting that it cannot conceive of any ethical or lawful assistance which a criminal defense attorney could render for a client arrested for drunk driving who is asked to take a breathalyzer test.
These arguments misperceive what is meant by "no right to refuse." There may be no right to refuse a test for determining blood alcohol level in the constitutional sense. SeeSchmerber v. California, 384 U.S. 757, 771, 86 S.Ct. 1826, 1836, 16 L.Ed.2d 908 (1966). And, there may be no right to refuse in the statutory sense, in that the arrestee will suffer adverse legal consequences in the form of suspension or revocation of his driver's license. AS 28.35.032. However, the statute does not deprive an accused of the power to refuse to submit to the test: if the suspect refuses to submit to a breath test, nochemical analysis of his breath, blood, or urine may be given. Anchorage v. Geber, 592 P.2d 1187 (Alaska 1979) (interpreting AS 28.35.032).
1213*1213 Therefore, the law has deliberately given the arrested person a choice between two very different alternatives and potential sanctions. The arrested driver must weigh and evaluate a number of different factors. He may only be vaguely aware of some of these and need not be informed of all of them by the police.
The decision as to whether to comply with an arresting officer's request to take a sobriety test is not a simple one. Clearly, an attorney's advice at this stage would not only be ethical and lawful, but helpful. The choice which an individual driver must make is a meaningful and binding one that will affect him in subsequent proceedings. Where the important chemical testing procedures are not unreasonably delayed, the driver should, upon request, have the benefit of the advice of his own counsel, with whom he has a statutory right to communicate. Given the conclusive nature of the evidence which the accused is asked to provide, this decisive point may be the only occasion when this statutory right is of any use.
The prosecuting authorities finally argue that to apply the statutory right to communicate1214*1214 with one's attorney at the pre-decision stage would thwart the legislative intent underlying the implied consent statute. The courts in a growing number of jurisdictions recognize at least a limited right to communicate with counsel prior to making the decision to submit to chemical testing. While many of the cases cited in the briefs can be distinguished on significant statutory differences, see Wirz v. State, 577 P.2d 227, 230 n. 12 (Alaska 1978), some cases have found a predecision right to communicate with counsel based upon state statutes similar to AS 12.25.150(b) or court rules similar to Criminal Rule 5(b). These cases have found no inconsistency between these statutes and court rules and implied consent statutes. The prosecuting authorities have failed to cite and we have failed to find any case that denies a limited statutory right to counsel if a statute similar to AS 12.25.150(b) or Criminal Rule 5(b) exists.
The question remains as to whether denial of a statutory right to counsel requires the suppression of subsequently obtained evidence. Copelin and Miller argue that invocation of the exclusionary rule is appropriate for violations of AS 12.25.150(b) even though there is no provision for doing so in the statute and the statute itself provides for civil and criminal sanctions. The state argues that the exclusionary rule is reserved for constitutional violations, and that since this remedy was not included in the statute, it was not thought by the legislature to be appropriate.
In State v. Sundberg, 611 P.2d 44 (Alaska 1980), we elected not to apply the exclusionary rule to a violation of AS 12.25.080 (forcible arrest statute). While noting that the primary purpose of the exclusionary rule is deterrence of future illegal conduct by police, we also concluded that other deterrents might render adoption of an exclusionary rule unnecessary, given society's interests in crime prevention and the apprehension and trial of offenders. Id. at 52. Given those considerations and the absence of a history of excessive force in arrests by police officers, we concluded that the imposition of the exclusionary rule for violations of the forcible arrest statute would at best achieve only a marginal deterrent effect.
Under a Sundberg analysis we reach the opposite conclusion with regard to AS 12.25.150(b). In Sundberg we distinguished the forcible arrest situation from a "conventional search and seizure ... involv[ing] a relatively static factual circumstance where the object of police efforts is to obtain evidence of criminal conduct." Id. The breathalyzer test, in contrast to the hot pursuit of fleeing felons, provides time for reflection before action and, like a traditional search, consists of intentional efforts by the police to obtain evidence. Given these distinguishing factors, we believe that application of the exclusionary rule will serve to deter future illegal police conduct.
Additionally, a violation in this type of case, as opposed to a violation of the forcible arrest statute, has an effect on the defendant's ability to present a defense at 1215*1215 trial. Here, the defendants were deprived of their statutory right to counsel, and evidence gathered after the right to counsel has been denied should be excluded from trial. SeeEscobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). In deciding to apply the exclusionary rule in a situation similar to that presented here, the Minnesota Supreme Court stated:
"[W]hat sanctions should attend violation of the right? While we note that § 481.10 contains civil and criminal penalties against the police officer, these alone are not sufficient to fully vindicate the driver's right. When the driver has been coerced into making a complicated decision without the assistance of counsel required by this opinion, he should not be bound by that decision, since he might have otherwise made it differently. Therefore, if such a driver elected to take the test, the results should be suppressed. If he elected not to take the test, he should not be deemed to have unreasonably refused it and his driver's license should not be revoked."
Prideaux v. State Dept. of Public Safety, 247 N.W.2d at 395.
Application of the exclusionary rule to Miller requires that the breathalyzer test results be suppressed. Copelin, however, presents a more difficult case. The State argues that the evidence against Copelin was "de facto suppressed" since Copelin refused to take the test, and the portion of the videotape having to do with his refusal was not heard by the jury. However, we conclude that the videotape evidence of his actions after he requested to speak with his attorney should have been suppressed entirely. Had he been allowed to consult with an attorney he may have elected to take the breathalyzer, and gained exculpatory evidence. Furthermore, had he been granted the right to consult with his attorney, it is likely that the videotaped events (his growing anger at not being able to talk with his attorney and his consequent verbal abuse of the police officer) would never have occurred.
In conclusion, we find that when a person is arrested for operating a motor vehicle while intoxicated and asks to consult a lawyer, AS 12.25.150(b) and Criminal Rule 5(b) mandate that the arrestee be afforded the right to do so before being required to decide whether to submit to a breathalyzer test. If the suspect is denied that opportunity, subsequent evidence, whether in the form of the test results or the refusal to submit to it, shall be inadmissible at a later criminal trial. This statutory right is limited, however, to circumstances when it will not unreasonably hinder the police investigation. If the person arrested is unable to reach an attorney by telephone or otherwise within a reasonable time, the accused may be required to elect between taking the test and refusing it without the aid of counsel. As both Copelin and Miller were denied the opportunity to contact counsel, these cases must be REVERSED.
COMPTON, Justice, dissenting in part.
I disagree with the court's holding that evidence obtained subsequent to a refusal to allow an OMVI suspect to contact counsel in violation of AS 12.25.150(b) must be excluded. In support of this result, the court relies on State v. Sundberg, 611 P.2d 44 (Alaska 1980). I believe that Sundberg and other Alaska cases discussing the exclusionary rule support the opposite conclusion.
Determining whether an exclusionary remedy is appropriate requires a balancing of the purpose behind excluding illegally obtained evidence with the interest in admitting reliable evidence in those proceedings. State v. Sears, 553 P.2d 907, 912 (Alaska 1976)(applicability of exclusionary remedy in probation revocation proceedings). The primary purpose of the exclusionary 1216*1216 rule is deterrence of future illegal conduct by the police. Sundberg, 611 P.2d at 51 (footnote omitted). The rationale of this rule is that if the police are aware that the fruits of their illegal conduct will be excluded from trial, then the police will cease such conduct.
After noting the existence of potential deterrents in criminal sanctions, police departmental proceedings, civil rights actions, and tort suits, we concluded in Sundbergthat an exclusionary rule would not provide significant additional deterrence to excessive force arrests. Id. at 51-52. In the present case, there are additional reasons why an exclusionary remedy is not necessary for violations of AS 12.25.150(b).
First, unlike the situation in Sundberg, where there were no built-in sanctions for violations of the forcible arrest statute, AS 12.25.150 clearly and expressly sets forth both criminal and civil sanctions against police for the deprivation of an arrestee's rights under the statute. AS 12.25.150(c) provides:
It shall be unlawful for any officer having custody of a person so arrested to wilfully refuse or neglect to grant any prisoner the rights provided by this section. A violation of this section is a misdemeanor, and, upon conviction, the offender is punishable by a fine of not more than $100, or by imprisonment for not more than 30 days, or by both.
AS 12.25.150(d) provides:
In addition to the criminal liability in (c) of this section, an officer having a prisoner in custody who refuses to allow an attorney to visit the prisoner when proper application is made therefor shall forfeit and pay to the party agrieved the sum of $500, recoverable in a court of competent jurisdiction.
Thus, the legislature created a statutory right to "telephone or otherwise communicate" with counsel immediately after arrest, AS 12.25.150(b), and provided deterrence for violations of this right by authorizing criminal prosecution of a police officer for willfully refusing or neglecting to allow an arrestee to exercise this right. An officer convicted under this statute has a misdemeanor on his record, faces a fine up to $100 and/or imprisonment up to thirty days, and faces a civil judgment of $500 payable to the aggrieved arrestee.
Second, unlike the potential deterrents discussed in Sundberg, the criminal sanction would simply require the arrestee to make a criminal complaint. The state would be charged with the good faith obligation to investigate and, if warranted, to prosecute and bear the cost of such prosecution; a judge would determine the degree of punishment rather than an interested police department official; there would not be the time delays associated with civil suits. I believe that a police officer would more likely be deterred by the potential criminal record and jail time than by application of the judicially created exclusionary rule, which simply means that one of the officer's many arrests failed to culminate in a conviction. Therefore, it is clear that the minimal, if any, deterrent effect that an exclusionary remedy would have considering the civil and criminal deterrents already built into AS 12.25.150 is far outweighed by the significant interest in admitting probative evidence gained from a breathalyzer test.
Sundberg implies an additional reason for not imposing an exclusionary remedy for violations of the excessive force statute, namely, when the officers are acting in good faith:
[W]e are of the view that imposition of the exclusionary rule on the particular facts of the case at bar was clearly unwarranted ... [because] the officer ... was proceeding in accordance with existing departmental directives, and the degree of force permissible under the necessary and proper phraseology of AS 12.25.080 had not been previously construed by this court.
611 P.2d at 52 (footnote omitted).
In this case, the police quite likely believed in good faith that Miller and Copelin had no right to consult counsel before taking the breathalyzer. Even the court of appeals, relying on Eben v. State, 599 P.2d 1217*1217 700, 710 n. 27 (Alaska 1979), understood AS 12.25.150 to be merely a bail statute and therefore believed it was not applicable in the context of an arrest followed by a breathalyzer test administration. Copelin v. State, 635 P.2d 492, 493-94 (Alaska App. 1981). Thus, this is not a situation where the police acted in blatant disregard of an individual's constitutional and statutory rights; rather, they were engaged in conduct that they reasonably believed was legal. Only after this decision is published and the police become aware that an individual does have a limited statutory right to consult an attorney prior to taking a breathalyzer test does the deterrence rationale become operative.
In short, application of the exclusionary rule is intended to deter future illegal conduct. This deterrence is amply provided by the decision in this case, which makes it clear for the first time that the conduct is illegal, and by the criminal sanctions imposed by the legislature for officers engaging in the illegal conduct.
The court's holding ignores these two significant factors of Sundberg militating against applying an exclusionary remedy and attempts to distinguish this case from Sundberg on the ground that the breathalyzer situation is more like a "`conventional search and seizure ... involv[ing] a relatively static factual circumstance where the object of police efforts is to obtain evidence of criminal conduct.'" 659 P.2d at 1214 (quoting Sundberg,611 P.2d at 52). Given that administration of a breathalyzer test "provides time for reflection before action" and that "like a traditional search, [it] consists of intentional efforts by the police to obtain evidence," id. the court opinion concludes that an exclusionary remedy is needed as an additional deterrent. It neglects to state, however, that Sundberg distinguished conventional search situations on the ground that "the fleeing offender — arrest situation ... often requires law enforcement officials to make rapid decisions within the framework of fluid and confused factual situations which do not permit significant reflection, the obtaining of legal advice, or the intervention of, and decision from, a neutral and detached judicial officer." 611 P.2d at 52. I believe that the breathalyzer situation is in reality somewhere between the "traditional search" situation and the "hot pursuit" circumstance. Although the factual situation is not likely to be as "fluid and confused" as hot pursuit, the police officer is nonetheless going to have to make an educated guess, without help from counsel, whether a "reasonable time" has passed so that he may put the suspect to his choice. At this point, with no evidence to the contrary, I think the court must assume that such a decision will be made in good faith by law enforcement personnel.
In other words, application of the exclusionary rule at this stage is premature. As we stated in Sundberg:
[W]e think it appropriate to caution that our holding is not immutable. In the event a history of excessive force arrests is shown, demonstrating that existing deterrents are illusory, we will not hesitate to reexamine the question of whether an exclusionary deterrent should be fashioned in the situation where evidence is obtained as a result of an arrest which is effectuated by excessive force.
Id. (footnote omitted). Cf. Elson v. State, 659 P.2d 1195, 1205 n. 31 (Alaska 1983) (same cautionary instruction given after permitting illegally seized evidence to be used in sentencing proceedings). Similarly, in the event that the clearly delineated statutory right to consult with counsel is violated in the future and that the civil and criminal sanctions are shown not to deter these violations, then this court should not hesitate to apply the exclusionary rule.
I join the court's disposition of all other issues in the petition for hearing.
BURKE, Chief Justice, dissenting in part.
I share the views expressed by my dissenting colleague, Justice Compton. At this point in time, we have no reason to believe that the penalty provisions of AS 12.25.150 will not be vigorously enforced, 1218*1218 now that the requirements of the statute have been made clear. Nor is there reason to believe that those provisions will not effectively deter future violations of the statute. If and when it can be demonstrated that the police and the prosecuting authorities are shirking their responsibility, or that the deterrent effect of the penalty provisions is illusory, we should not hesitate to apply the exclusionary rule. In my judgment, however, the court's application of the rule at this time is unwarranted.
 Copelin v. State, 635 P.2d 492 (Alaska App. 1981); Miller v. Anchorage, Summ. Disp. No. 54 (Alaska App., November 5, 1981).
 AS 22.07.030 and Appellate Rule 302(a)(1).
 Former AS 28.35.030, under which Copelin was charged, reads as follows:
"Driving while under the influence of intoxicating liquor or drugs. (a) A person who, while under the influence of intoxicating liquor, depressant, hallucinogenic or stimulant drugs or narcotic drugs as defined in AS 17.10.230(13) and AS 17.12.150(3) operates or drives an automobile, motorcycle or other motor vehicle in the state, upon conviction, is punishable by a fine of not more than $1,000, or by imprisonment for not more than one year, or by both and the court shall impose a minimum sentence of imprisonment of not less than three consecutive days. Upon a subsequent conviction within five years after a conviction under this section, the court shall impose a minimum sentence of imprisonment of not less than 10 consecutive days. The execution of sentence may not be suspended nor may probation or parole be granted until the minimum imprisonment provided in this section has been served, nor may imposition of sentence be suspended, except upon the condition that the defendant be imprisoned for no less than the minimum period provided in this section, nor may the punishment provided for in this section be reduced under AS 11.05.150. In addition, his operator's license shall be revoked in accordance with AS 28.15.210(c). In addition a person convicted under this statute shall undertake, for a term specified by the court, that program of alcohol education or rehabilitation which the court, after consideration of any information compiled under (b) of this section, finds appropriate.
(b) Except as prohibited by federal law or regulation, every provider of treatment programs to which persons are ordered under (a) of this section shall supply the Alaska court system with the information regarding the condition and treatment of those persons as the supreme court may require by rule. Information compiled under this subsection is confidential and may only be used by a court in sentencing a person convicted under (a) of this section, or by an officer of the court in preparing a presentence report for the use of the court in sentencing a person convicted under (a) of this section."
 Former ANCHORAGE, ALASKA MUNICIPAL CODE § 9.28.030 (1978), under which Miller was charged, reads as follows:
"Driving with 0.10% or greater blood alcohol.
A. It shall be unlawful for any person to operate, drive or be in actual physical control of an automobile, motorcycle or other motor vehicle in the municipality at such time as there is 0.10% or more by weight of alcohol in his blood, or 100 milligrams or more of alcohol per 100 milliliters of his blood, or 0.10 grams or more of alcohol per 210 liters of his breath.
B. To be considered valid under the provisions of this section, a chemical analysis of the person's breath shall have been performed according to methods approved by the Alaska Department of Health and Social Services. If it is established at trial that a chemical analysis of breath was performed according to techniques, methods and standards of training approved by the Alaska Department of Health and Social Services, there is a presumption that the test results are valid and further foundation for introduction of the evidence is unnecessary."
 Copelin was not permitted to contact anyone until nearly seven hours after his arrest. Miller was told, "You can call an attorney after you blow in the Breathalyzer."
On October 29, 1979, Copelin's motion was partially granted as the district court ordered some sections of the audio portion of the videotape turned off during playback. Interrogation by the officer in violation of Miranda and Copelin's "refusal" to take the breath test were not heard by the jury. The jury did see a very angry, hostile, and frustrated Copelin as he repeatedly asked to speak with his attorney and the officer repeatedly told him he could not. On November 15, 1979, the jury returned a verdict of guilty. After considering Copelin's refusals to submit to breathalyzer examinations on three separate occasions (including the present one) Copelin was sentenced by the district court. Copelin appealed to the superior court where the district court's judgment and sentence were affirmed on June 26, 1980. An appeal was filed in this court, and the matter was transferred to the Court of Appeals.
On June 21, 1979, Miller entered a plea of nolo contendere to the .10 charge of the complaint, preserving the right to litigate and, if necessary, appeal, the issues raised in his pretrial motion to suppress pursuant to Cooksey v. State, 524 P.2d 1251 (Alaska 1974). On August 13, 1979, the district court granted Miller's motion to suppress, set aside his plea, and dismissed the case. The Municipality of Anchorage then petitioned the superior court to review the district court's order granting the motion to suppress. On November 28, 1979, the superior court reversed the order of the district court, and remanded the case for the imposition of sentence. On November 6, 1980, the nolo contendere plea was reinstated, a judgment of conviction was entered, and Miller was sentenced. Miller then appealed to the superior court. Because the issue had already been considered by that court upon the Municipality's petition for review, further proceedings were transferred to the Court of Appeals.
 This statute is paralleled by Alaska Criminal Rule 5(b):
"Rights of Prisoner to Communicate with Attorney or Other Person. Immediately after his arrest, the prisoner shall have the right forthwith to telephone or otherwise to communicate with both his attorney and any relative or friend. Any attorney at law entitled to practice in the courts of Alaska, at the request of either the prisoner or any relative or friend of the prisoner, shall have the right forthwith to visit the prisoner in private." (Emphasis added).
 AS 12.25.150 continues:
"(c) It shall be unlawful for any officer having custody of a person so arrested to willfully refuse or neglect to grant any prisoner the rights provided by this section. A violation of this section is a misdemeanor, and, upon conviction, the offender is punishable by a fine of not more than $100, or by imprisonment for not more than 30 days, or by both.
(d) In addition to the criminal liability in (c) of this section, an officer having a prisoner in custody who refuses to allow an attorney to visit the prisoner when proper application is made therefor shall forfeit and pay to the party aggrieved the sum of $500, recoverable in a court of competent jurisdiction."
 The defendant in Eben was arrested and booked on a double homicide charge. At the police station, after being advised of his rights, the defendant told police that he would sign the rights waiver form after he had telephoned his girlfriend. The officers remained in the room during the defendant's telephone conversation and heard the defendant utter incriminating statements. This court rejected the defendant's argument that statements made during the exercise of an arrestee's right under AS 12.25.150(b) to "telephone or otherwise communicate" with counsel and friends, should be excluded as a matter of law.
 The ABA Standards Relating to Criminal Justice, the Defense Function § 2.1 provide:
"Every jurisdiction should guarantee by statute or rule of court the right of an accused person to prompt andeffective communication with a lawyer and should require that reasonable access to a telephone or other facilities be provided for that purpose." (Emphasis added).
 The Alaska Implied Consent Statute provides in part:
"Sec. 28.35.031. Implied consent. A person who operates or drives a motor vehicle in this state shall be considered to have given consent to a chemical test or tests of his breath for the purpose of determining the alcoholic content of his blood if lawfully arrested for an offense arising out of acts alleged to have been committed while the person was operating or driving a motor vehicle while under the influence of intoxicating liquor. The test or tests shall be administered at the direction of a law enforcement officer who has reasonable grounds to believe that the person was operating or driving a motor vehicle in this state while under the influence of intoxicating liquor."
 Geber does not directly control this case. In Geber one of the defendants argued unsuccessfully that before requiring her to perform certain field sobriety tests, the police should have informed her that she had the right to have an attorney present if she could obtain his presence within a reasonable period of time. While we held that the police have no duty to advise a suspect of any right to counsel, we did not hold that the police may refuse the specific requests to contact counsel that were made in the instant cases. Other courts have recognized that there is a vast difference between a flat refusal to afford access to counsel after it is requested and a failure to advise or warn a defendant of his rights. See, e.g., People v. Craft, 28 N.Y.2d 274, 321 N.Y.S.2d 566, 270 N.E.2d 297 (N.Y. 1971). Secondly, while we held in Geber that there is no right to have an attorney present at the field sobriety tests, we did not hold that there is no right merely to contact or communicate with counsel before deciding whether or not to submit to such test. Other jurisdictions, while finding a constitutional or statutory right to consult an attorney by phone, have held that the arrestee does not have the right to demand physical presence of the attorney before taking a breathalyzer test. Spradling v. Deimeke, 528 S.W.2d 759, 765 (Mo. 1975); Price v. North Carolina Dept. of Motor Vehicles, 36 N.C. App. 698, 245 S.E.2d 518, 521-22 (N.C. 1978);McNulty v. Curry, 42 Ohio St.2d 341, 328 N.E.2d 798, 803 (Ohio 1975). Geber dealt with neither the statutory right to counsel nor the administration of a breathalyzer test.
 While 15 minutes is the minimum period of delay, the arrestee will have a longer period of time in which to contact his attorney where the test operator is not yet ready to administer the test. Such a rule does not impose any greater delay in testing other than that which is inherent in the test administration process.
 The burden of proof is on the government to show that an accused demanded an unreasonable amount of time and thereby interfered with the "prompt and purposeful investigation" of the case. Blue v. State, 558 P.2d 636, 642 (Alaska 1977).
 Although an arrestee may be without the advise of counsel, he is entitled to a warning by the police. The police are not required to inform the arrestee that he has the right to refuse; however, if he does refuse, he must be advised of the consequences flowing from his refusal and be permitted to reconsider his refusal in light of that information. Wirz v. State, 577 P.2d 227 (Alaska 1978).
 The legislature has recently amended AS 28.35 by adding a new section, AS 28.35.035. Under subsection (a) of this new section, an arrestee who causes death or physical injury to another person no longer has the ability to refuse chemical testing of his blood or breath. The tests may be administered without the consent of the arrestee. Subsection (b) of the new section provides that where the arrestee is unconscious or otherwise incapable of refusal, the implied consent of AS 28.35.031 remains operative, and the police may conduct chemical testing of breath or blood. Such an arrestee would have no effective choice to refuse testing.
The holding in this case, that an individual has the right to telephone an attorney prior to deciding whether to take the breathalyzer test, is restricted to those cases in which the arrestee, under AS 28.35, is still left with the choice of refusing to take the breathalyzer test.
 Among the possible ramifications under present law (effective January 1, 1983):
A. If the driver refuses to take the breathalyzer test:
1. A chemical test cannot be given unless the arrest results from an accident that causes death or physical injury to another person. AS 28.35.035(a).
2. The driver's license or nonresident privilege to drive will be revoked or suspended for three (3) months, AS 28.35.032(b), if:
a. the arresting officer had reasonable grounds to believe the driver had been operating a motor vehicle while under the influence; if
b. the driver refused to submit after being advised this would result in suspension or revocation of his license; and if
c. the driver was fairly informed of the nature and accuracy of the test, the expertise of operator, etcetera.
3. If the driver who refuses has been convicted of driving while intoxicated or of refusal to submit to a breath test the suspension or revocation will be for one (1) year. AS 28.35.032(d).
4. Refusal to submit to the chemical test of breath is a class A misdemeanor. AS 28.35.032(f). Conviction for refusal carries a minimum sentence of imprisonment of not less than 72 consecutive hours. And, upon a subsequent conviction within five years after such a conviction or of a conviction for driving while intoxicated in this or any other state, the minimum sentence is ten consecutive days unless the subsequent conviction is within one year of the previous conviction, in which case the minimum sentence is twenty consecutive days. In addition, a person convicted of this misdemeanor must enroll in a program of alcohol education or rehabilitation that the court finds appropriate. AS 28.35.032(g).
5. The driver may still be prosecuted for driving under the influence and convicted, despite his refusal to take the breathalyzer test. The driver's refusal to submit to the breathalyzer test, as well as any other field sobriety test,will be admissible evidence in a civil or criminal proceeding under the revised statute. AS 28.35.032(e).
6. Refusing to submit to a breathalyzer may hinder the state's case against a driver, but it may also deprive the driver of exculpatory evidence.
7. A driver who receives a refusal suspension can obtain a limited license by instituting a separate civil action and demonstrating to the court requisite hardship. AS 28.35.032.
8. There may be serious collateral consequences to a suspension, involving one's driving record, insurance premiums and even employment.
B. If the driver takes the breathalyzer test:
1. Under ANCHORAGE, ALASKA MUNICIPAL CODE § 9.28.020 B.2 and the revised AS 28.35.030(2), a reading above.10 is conclusive proof of driving while intoxicated. On the other hand, a low breathalyzer reading can establish innocence under AS 28.35.033(a)(1) and ANCHORAGE, ALASKA MUNICIPAL CODE § 9.28.023 A.1.
2. A person who submits to a breathalyzer test may have a qualified person of his own choosing administer a chemical test in addition to the chemical test administered at the direction of a law enforcement officer. AS 28.35.033(e). There is no requirement that the driver be advised of this right. Palmer v. State, 604 P.2d 1106 (Alaska 1979).
 State v. Vietor, 261 N.W.2d 828, 830-31 (Iowa 1978) (Statute required peace officer to "permit that person, without unnecessary delay after arrival at the place of detention, to call, consult, and see a member of his or her family or an attorney of his or her choice."); Prideaux v. State Dept. of Public Safety, 310 Minn. 405, 247 N.W.2d 385, 391-94 (Minn. 1976) (Statute required officer to "admit any resident attorney retained by or on behalf of the person restrained, or whom he may desire to consult, to a private interview at the place of custody."); Gooch v. Spradling, 523 S.W.2d 861, 865-66 (Mo. App. 1975) (Statute and court rules provided the right "to consult with counsel or other persons in his behalf at all times"); McNulty v. Curry, 42 Ohio St.2d 341, 328 N.E.2d 798, 802-03 (Ohio 1975) (Statute required that "[a]fter the arrest, detention, or any other taking into custody of a person ... such person shall be permitted forthwith facilities to communicate with an attorney at law of his choice who is entitled to practice in the courts of this state ..."); State v. Fitzsimmons, 94 Wash.2d 858, 620 P.2d 999 (Wash. 1980), aff'g, 93 Wash.2d 436, 610 P.2d 893 (Wash. 1980) after vacation of judgment and remand in 449 U.S. 977, 101 S.Ct. 390, 66 L.Ed.2d 240 (1980). (Court rule required that "[a]t the earliest opportunity a person in custody who desires counsel shall be provided access to a telephone ... and any other means necessary to place him in communication with a lawyer").
 As we have concluded that Copelin and Miller's statutory rights were violated and that evidence obtained subsequent to these violations must be suppressed, we need not consider the argument that an accused has a constitutional right to consult with counsel prior to deciding whether to submit to intoxication tests.
Our decision to reverse also eliminates the need to address Copelin's argument that the district court erred in imposing his sentence.
750 So.2d 587 (1999)
Ex parte Stanley FORMBY.
(Re Stanley Formby v. State).
Supreme Court of Alabama.April 9, 1999.
Opinion Overruling Rehearing August 27, 1999.
588*588 Jerry N. Quick, Trussville, for petitioner.
Bill Pryor, atty. gen., and Andy S. Poole, asst. atty. gen., for respondent.
The legal issue presented in this case is the same as that presented in Ex parte Parker, 740 So.2d 432 (Ala.1999). The judgment of the Court of Criminal Appeals is reversed and the cause remanded, based on our holding in that case.
REVERSED AND REMANDED.
HOOPER, C.J., and HOUSTON, KENNEDY, COOK, SEE, LYONS, and JOHNSTONE, JJ., concur.
BROWN, J., recuses herself.
On Application for Rehearing
In its application for rehearing the State presents two issues. The State's application is due to be overruled, but we will explain our reasons.
Facts and Procedural History
On November 24, 1995, Stanley Formby was stopped by a Riverside police officer and was arrested for driving under the influence of alcohol. In June 1996, the St. Clair County grand jury returned a two-count indictment against Formby. Before the trial, the defendant moved to require that the State elect which of the two charges it would proceed on, and Judge Robert Austin granted that motion. The State elected to proceed on Count II, which charged:
"The Grand Jury of [St. Clair] County charges that before the finding of this indictment, STANLEY FORMBY, whose true name is otherwise unknown to the Grand Jury, after having been convicted of three (3) prior Driving Under the Influence Violations within the past five (5) years, did on or about November 24, 1995, drive or was in actual physical control of a vehicle on a highway in St. Clair County while under the influence of alcohol to a degree which rendered him incapable of safely operating a motor vehicle, in violation of 589*589Section 32-5A-191(a)(2) of the Code of Alabama."
Formby objected to Count II, arguing that allowing the jury to be informed of his prior DUI convictions in the guilt phase of his trial would be prejudicial and would bias the jury against him. The trial judge overruled that objection. During its case-in-chief, the state admitted evidence of Formby's three prior convictions, and the jury subsequently found him guilty. The trial judge sentenced him to four years in prison.
The Court of Criminal Appeals affirmed Formby's conviction and sentence. This Court, on April 9, 1999, reversed on the authority of Ex parte Parker, 740 So.2d 432 (Ala.1999).
The State's first issue presented in its rehearing application, the answer to which is dispositive, is:
"Does the Parker decision render Formby's conviction, and the convictions of all others similarly situated, void for lack of jurisdiction because they are based on indictments which originated in the Circuit Court when the District Court has exclusive original jurisdiction of misdemeanor prosecutions for traffic infractions?"
(State's application for rehearing, at 2.) Our review of the State's brief indicates that the state may be laboring under the mistaken inference that in Parker this Court held that a "felony DUI," i.e., a fourth or subsequent DUI conviction, is actually a misdemeanor. The State argues:
"The question raised by this Court's application of Parker to this case presents this Court with the opportunity to clarify the application ofParker. The first question is whether this Court's holding in Parkerrenders void all convictions in circuit courts for felony DUIs, because the circuit courts had no jurisdiction over misdemeanor traffic infractions."
(State's brief and argument in support of application for rehearing, at 8.) We accept the State's invitation to clarify Parker.
In Parker, we held:
"Section 32-5A-191, plainly read, compels the conclusion that the provisions of the present subsection (h) were intended to declare certain DUI convictions to be felony convictions. ..."
Ex parte Parker, 740 So.2d at 434 (emphasis added). The Code subsection in question provides:
"(h) On a fourth or subsequent conviction, a person convicted of violating this section shall be guilty of a Class C felony and punished by a fine of not less than four thousand one hundred dollars ($4,100) nor more than ten thousand one hundred dollars ($10,100) and byimprisonment of not less than one year and one day nor more than 10 years."
§ 32-5A-191(h), Ala.Code 1975 (emphasis added).
To clarify, then, Parker held that a fourth or subsequent DUI conviction is a felonyconviction, rather than a misdemeanor conviction. Parker, thus, is consistent not only with the plain language of § 32-5A-191(h) but also with the general definition of "felony" found in Title 13A, the Criminal Code, which defines a "felony" as "[a]n offense for which a sentence to a term of imprisonment in excess of one year is authorized by this title." § 13A-1-2(4).
Having explained that Parker does not stand for the proposition that "felony DUI" convictions are really misdemeanor convictions, we now discuss our understanding of the effect of that conclusion. We held in Parker:
"[W]e are not persuaded by the State's contention that the phrase `a person [convicted a fourth time] shall be guilty of a Class C felony and punished' evidences a legislative intent to establish a substantive offense in subsection (h). 590*590 Contrary to the State's argument, the legislative intent as we perceive that intent to be, supports our interpretation of subsection (h) as providing for sentence enhancement, rather than as stating the elements of an offense."
Parker, 740 So.2d at 435 (emphasis omitted; new emphasis added). The import of that holding is that during the guilt phase of a defendant's DUI trial the jury should not be presented with evidence of the defendant's prior DUI convictions. In so holding, we sought to prevent prejudicial information of a defendant's prior convictions from tainting the jury's determination of guilt in regard to the instant offense. Of course, due-process protections also require that the defendant be on notice of the charges against him, so the indictment should put him on notice that he is being charged with a violation of § 32-5A-191(a)(2), made a felony by § 32-5A-191(h).
We now apply the law, as explained above, to the facts of this present case. In its opinion affirming Formby's conviction, the Court of Criminal Appeals wrote:
"In any event, the appellant's due process rights were not violated by the fact that the indictment, which was read to the jury, referred to three previous D.U.I. convictions, because `"[t]he obvious purpose of [using a prior conviction as an element of the charged offense is to] ensure that the accused is fully advised and informed of the nature and extent of the offense for which he stands charged. The aggravating circumstance is a statutory element of the crime which must be alleged and proven."' Cain v. State, 562 So.2d 306, 308 (Ala. Cr.App.1990), quoting Hubbard v. State, 500 So.2d 1204, 1215 (Ala.Cr.App.1986). In Cain, we held that the defendant's due process rights were not violated, although the indictment against him, which was read to the jury, referred to a prior conviction for the unlawful possession of marijuana. We based our decision on the fact that a prior conviction of second-degree unlawful possession of marijuana—or unlawful possession of marijuana for personal use—was an element of first-degree unlawful possession of marijuana, and thus, must have been alleged and proven at trial. Similarly, in State v. Parker, 740 So.2d 421 (Ala.Cr. App.1996), opinion on rehearing, 740 So.2d at 424 (Ala.Cr.App.1997), this Court held that an indictment for felony D.U.I. should contain reference to the three prior D.U.I.convictions because those convictions are a material element of the offense."
Formby v. State, 750 So.2d 581, 584-85 (Ala.Crim.App.1997). This is the issue of law at the heart of this Court's opinion in Parker. The Court of Criminal Appeals noted that while Formby objected in limine to having evidence of his prior DUIconvictions admitted into evidence, and while he objected during the trial to the admission of the evidence of his prior convictions, he did not assert, when he objected during the trial, that he was objecting for the same reasons he had objected to the court's reading the indictment to the jury. Nonetheless, as a result of this Court's Parker decision, introducing evidence of prior DUI convictions during the guilt phase of a trial will be deemed prejudicial and reversible error. This Court, accordingly, on original submission, reversed the judgment of the Court of Criminal Appeals in Formby, on the authority of Parker.
The State has not convinced us that our holding on original submission was erroneous. In summary, the short answer to the State's first question is that the Legislature's enactment of § 32-5A-191(h) made jurisdiction over a fourth or subsequent DUI charge appropriate in the circuit court, because the offense charged—a fourth or subsequent DUI offense—is a felony. This Court's decision inParker 591*591 had no impact on that jurisdictional issue. Prosecutions for felony DUIoffenses should have been, and should continue to be, in the circuit court.
The indictment gave Formby appropriate notice of the charges against him. Because the indictment charged him with a felony, it was appropriate for the prosecution to proceed in the circuit court. We reversed because the prosecution was allowed, during the guilt phase of Formby's trial, to present evidence of three prior DUI convictions; under Parker, that was reversible error.
We reiterate that Parker stands for the proposition that a conviction for a fourth or subsequent DUI is a felony conviction. Further, as we held in Parker, it is reversible error for a jury, during the guilt phase of a trial, to be presented with evidence of the defendant's prior DUI convictions. The prior convictions are not to be considered until after the jury has passed on the question of the defendant's guilt.
HOOPER, C.J., and HOUSTON, COOK, LYONS, and JOHNSTONE, JJ., concur.
BROWN, J., recuses herself.
 The statute has since been amended to remove the requirement that the defendant's three prior DUIconvictions be within a five-year period. See Act No. 96-705, Ala. Acts 1996.
 Because the second issue the State raises in its rehearing application is premised on a "yes" answer to the first question, we need not discuss that second question.
People v. Ireland, 33 Cal. App. 4th 680 - Cal: Court of Appeal, 6th Appellate Dist. 1995ReadHow citedSearch
People v. Ireland, 33 Cal. App. 4th 680 - Cal: Court of Appeal, 6th Appellate Dist. 1995
33 Cal.App.4th 680 (1995)
39 Cal. Rptr.2d 870
THE PEOPLE, Plaintiff and Respondent,
RANDY A. IRELAND, Defendant and Appellant.
Docket No. H012609.
Court of Appeals of California, Sixth District.
March 28, 1995.
Ben Rice and Margaret H. Marr for Defendant and Appellant.
Arthur Danner III, District Attorney, and Lisa Agliano, Assistant District Attorney, for Plaintiff and Respondent.
Defendant Randy A. Ireland was charged by complaint in municipal court with misdemeanor offenses of driving under the influence of 685*685 alcohol (Veh. Code, § 23152, subd. (a)), and driving with.08 percent or more, by weight, of alcohol in his blood (§ 23152, subd. (b)).
The jury found defendant guilty on the section 23152, subdivision (b) count, but hung on the section 23152, subdivision (a) count. The trial court declared a mistrial on the subdivision (a) count, then later dismissed that count conditioned "upon ratification of verdict."
Defendant appealed to the appellate department of the superior court, which affirmed the judgment. More than a year later, the appellate department recalled the remittitur and certified the appeal to us. We accepted the transfer of the appeal because of the importance of the issues raised.
(1) During the pendency of the appeal with this court, defendant requested that judicial notice be taken of certain scientific literature and legislative histories. Respondent interposed no objection. We decided to consider that request together with the consideration of the merits of this appeal. We now resolve to take judicial notice of the legislative histories submitted. As to the scientific literature, we take judicial notice only to the existence of the writings; the truth of the scientific claims written about cannot be judicially noticed, but must be proved, since some of those claims are currently the subject of controversy. (Evid. Code, § 452.)
We affirm the judgment.
On October 19, 1991, at 11:30 p.m., Capitola City Police Officer Philip Wowak stopped a van which he had observed speeding and following too closely. As Wowak approached the van, defendant driver rolled down the window. The officer smelled the odor of alcohol coming from the vehicle. He noticed, among other symptoms, that defendant's speech was slurred, his eyes were very bloodshot, and his movements were very slow and deliberate when retrieving his wallet and driver's license. Wowak conducted field sobriety tests, which defendant failed. Defendant told Wowak he had consumed one beer earlier that evening. Wowak arrested defendant for driving under the influence.
Wowak advised defendant that he had the choice of a blood, breath, or urine test. Defendant chose the breath test. Wowak, who had been trained in administering breath tests, administered the breath test to defendant at 12:01 a.m. and 12:02 a.m. The results showed alcohol concentrations of 0.11 percent and 0.10 percent.
686*686 Wowak advised defendant he could choose another test at no charge. Defendant declined to do so, saying "this is all he wanted to do."
The People presented as its expert witness Juan Bergado, a criminalist with the Department of Justice. Bergado reviewed the accuracy logs of the Intoxilyzer 5000 machine which was used for defendant's breath test, and concluded that the instrument was operating properly on the date of defendant's test.
Bergado explained that the 2,100:1 breath-to-blood conversion ratio is determined from correlation studies wherein blood samples drawn from an individual's arm are compared to breath samples taken from that individual. He further explained that the 2,100:1 ratio represents the parts of alcohol found in the breath compared to the parts of alcohol found in the blood drawn from the arm.
Testifying in his defense, defendant testified that he had a beer at a relative's home about 6 p.m. About 7 p.m., he, together with some relatives and friends, went to a restaurant for dinner. The dinner took two hours, during which time defendant consumed two beers. At 9 or 9:15 p.m., defendant went to another bar where he and his relatives and friends stayed for a half an hour or 40 minutes. They then went to a third bar (Castaways) where defendant consumed one beer. Approximately one hour later, defendant left for home.
Defendant's expert witness, William Gigiere, explained the basis of the 2,100:1 alcohol-in-breath to alcohol-in-blood ratio. He testified that alcohol is first absorbed into the artery, then gets distributed throughout the body. The neurological effects of alcohol are the result of the alcohol coming in contact with the brain, which is the control center of the body. Alcohol reaches the veins after peak absorption. At peak absorption, the arterial value of alcohol is equal to its venous value "from a practical standpoint." Prior to peak absorption, the amount of alcohol in the artery (reflected by the breath test) will be greater than the amount of alcohol in the veins (reflected by the blood test). Consequently, the 2,100:1 statutory partition ratio will be overstated during the absorptive phase and understated during the postabsorptive phase.
Gigiere testified that he had tested defendant on November 24, 1991, to determine defendant's partition ratio. Defendant's partition ratio during the absorptive phase was 1,329:1. During the postabsorptive stage, defendant's breath alcohol result was slightly lower than his venous blood alcohol result.
On cross-examination, Gigiere stated he could not say what defendant's partition ratio was at the time of defendant's arrest. Gigiere acknowledged that a person's partition ratio is germane to the time of the test.
In this appeal, defendant contends:
1. The Legislature did not create a new substantive offense of driving with an excessive breath-alcohol content.
2. The Legislature did not intend to exclude evidence of the variability of blood:breath partition ratios.
3. Due process and the right to confront adverse witnesses entitle the accused to present evidence of the variability between blood and breath test results.
4. Unless defendants are allowed to challenge the blood:breath partition ratio, the statute creates an unconstitutional mandatory presumption.
5. To interpret the statute as creating a new offense of "excessive breath-alcohol" would violate equal protection because similarly situated individuals would be held to different standards of conduct based on the arbitrary factor of which test was given.
Creation of New Substantive Offense
(2) Defendant contends the Legislature did not create a new substantive offense of driving with an excessive breath-alcohol content. The contention is without merit.
The critical issue is not whether the 1990 amendment (hereafter, 1990 amendment) to section 23152, subdivision (b), creates a new substantive offense of driving with an excessive breath-alcohol content, but whether the Legislature has the power to prohibit any person with a certain amount of alcohol concentration in his or her breath from driving a motor vehicle. It is immaterial whether the prohibition is viewed as a new offense or as an alternative definition of an existing offense.
As amended in 1990, section 23152, subdivision (b), reads in pertinent part: "It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle. [¶] For purposes of this subdivision, percent, by weight, of alcohol in a person's blood shall be based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath." (See Stats. 1990, ch. 708, § 1.)
688*688 California's earliest law on drunk driving was a 1913 statute which provided: "No intoxicated person shall operate or drive a motor or other vehicle upon any public highway within this state." (Stats. 1913, ch. 326, § 17, p. 646; Burg v. Municipal Court (1983) 35 Cal.3d 257, 262 [198 Cal. Rptr. 145, 673 P.2d 732].)
In 1969, the Legislature, recognizing the need for a more precise understanding of the offense of "driving under the influence," created a presumption that the driver is under the influence if he or she had .10 percent or more by weight of alcohol in his or her blood. (Burg v. Municipal Court, supra, 35 Cal.3d at p. 263; cf. Stats. 1969, ch. 231, § 1, p. 565.)
Reliance on this presumption subsequently proved inadequate. The Legislature realized that the ultimate question was still "defined in terms of the defendant's subjective behavior and condition: `Was the defendant under the influence at the time he drove?'" (Burg v. Municipal Court, supra, 35 Cal.3d at p. 263.) In Burg, the court observed that "[c]elerity and certainty of punishment were frustrated by the ambiguity of the legal criteria; no matter what his blood-alcohol level, a defendant could escape conviction merely by raising a doubt as to his intoxication. [Citations.]" (Ibid.)
The magnitude of the problem was described by the court in Burg: "Nearly half of the traffic deaths in California between 1976-1980 involved drinking drivers. [Citation.] Nearly one-quarter of all traffic accidents resulting in injury involved the use of alcohol. [Citation.] Traffic deaths in the United States exceed 50,000 annually, and approximately one-half of those fatalities are alcohol-related. [Citations.] [¶] The drunk driver cuts a wide swath of death, pain, grief, and untold physical and emotional injury across the roads of California and the nation. The monstrous proportions of the problem have often been lamented in graphic terms by this court and the United States Supreme Court. [Citations.] As observed in Breithaupt v. Abram (1957) 352 U.S. 432 [1 L.Ed.2d 448, 77 S.Ct. 408], `[t]he increasing slaughter on our highways, most of which should be avoidable, now reaches the astounding figures only heard of on the battlefield.' [Citation.] Indeed, in the years 1976 to 1980 there were many more injuries to California residents in alcohol-related traffic accidents than were suffered by the entire Union Army during the Civil War, and more were killed than in the bloodiest year of the Vietnam War. [Citation.] Given this setting, our observation that `[d]runken drivers are extremely dangerous people' [citation] seems almost to understate the horrific risk posed by those who drink and drive." (35 Cal.3d at pp. 261-262.)
In 1981, the Legislature fortified the drunk driving laws by amending subdivision (b) to section 23152. That amended subdivision stated: "It is 689*689 unlawful for any person who has 0.10 percent or more, by weight, of alcohol in his or her blood to drive a vehicle upon a highway or upon other than a highway in areas which are open to the general public. [¶] For purposes of this subdivision, percent, by weight, of alcohol shall be based upon grams of alcohol per 100 milliliters of blood." (See Stats. 1981, ch. 940, § 33, p. 3578.)
In Burg v. Municipal Court, supra, 35 Cal.3d at page 265, the court held that section 23152, subdivision (b), established a new and separate offense. More significantly, the court held that under the subdivision (b) scheme, it was no longer necessary to prove that the defendant was in fact under the influence; it was enough to prove that the defendant's blood-alcohol level was 0.10 percent or more.
The 1981 addition of subdivision (b) to section 23152 did not end the Legislature's quest for answers to the continuing "slaughter on our highways." In 1989, the Legislature further toughened its laws by lowering the blood-alcohol level requirement from .10 percent to .08 percent. (Stats. 1989, ch. 1114, § 27, p. 4040.)
However, because the proscribed driving was still based on the amount of alcohol present in the person's blood, it was necessary, in the case of defendants who elected urine or breath tests, to convert the alcohol readings in those tests to their corresponding blood-alcohol readings. The conversion was done by using the guidelines set forth in title 17, California Code of Regulations, section 1220.4, subdivision (f): "A breath alcohol concentration shall be converted to an equivalent blood alcohol concentration by a calculation based on the relationship: the amount of alcohol in 2,100 milliliters of alveolar breath is equivalent to the amount of alcohol in 1 milliliter of blood."
The conversion requirement produced attacks on the reliability of the partition ratio. As noted in People v. Lepine (1989) 215 Cal. App.3d 91, 94 [263 Cal. Rptr. 543]: "[T]he ratio of 2,100 to 1 is not constant and varies from individual to individual and from time to time.... [¶] [V]ariations in partition ratios are the function of whether the individual is still absorbing alcohol at the time the sample was taken, the temperature of the lungs, the speed of exhalation, the depth of exhalation, the amount of humidity in the air, the amount of mucus in the lungs and the individual's hematocrit, i.e., the ratio of blood cells to total blood volume."
The need for the prosecution to prove that breath-test readings met the .08 percent requirement when converted to blood-alcohol readings did not promote the legislative scheme. The Assembly Committee on Public Safety, the Senate Rules Committee, and the Senate Committee on Judiciary all decried 690*690 that the challenges to the accuracy of the partition ratio had resulted in "expensive and time consuming evidentiary hearings and undermine[d] successful enforcement of driving under the influence laws." (Hearing notes of Assem. Com. on Pub. Saf. (May 15, 1990) Assem. Bill No. 4318.)
In 1990, Assembly Bill No. 4318 (hereafter, AB 4318) was introduced to "[e]liminate the need for conversion of a breath quantity to a blood concentration of alcohol by statutorily defining driving under the influence of alcohol in terms of the concentration of alcohol found in the breath when breath analysis is used." (Assem. Com. on Public Safety, May 15, 1990 hearing.) The committee explained that "[t]he complexities of the existing conversion or partition ratio result in a significant number of cases being challenged on the accuracy and applicability of the partition ratio." (Hearing notes of Assem. Com. on Pub. Saf., supra, AB 4318)
The Legislature's dissatisfaction with the conversion requirement led the Assembly Committee on Public Safety to focus its hearings on the specific issue of: "Should the offense of driving under the influence of alcohol be statutorily defined in terms of the concentration of alcohol found in the breath when breath analysis is used?" (Assem. Com. on Pub. Saf., May 15, 1990 hearing.)
The hearing notes of the Assembly Committee on Public Safety disclose that in addressing this issue, the committee considered the opinions of experts on the subject. Among the opinions expressly noted were those of M.F. Mason, Ph.D., Professor of Forensic Medicine and Toxicology, and K.M. Dubowski, Ph.D., Professor of Medicine and Director of Toxicology Laboratories, who had recommended that "`the conversion of a breath quantity to a blood concentration of ethanol, for forensic purposes, should be abandoned and the offense of driving while under the influence of alcohol should be statutorily defined in terms of the concentration of ethanol found in the breath in jurisdictions employing breath analysis. [Citation.]'"
At the Assembly third reading, the digest of AB 4318 stated that the bill would "[e]liminate the need for conversion of a breath quantity to a blood concentration of alcohol by statutorily defining driving under the influence of alcohol in terms of the concentration of alcohol found in the breath when breath analysis is used."
In the Senate, two committees conducted hearings on AB 4318. Both the Senate Rules Committee (Aug. 7, 1990) and the Senate Committee on the Judiciary (1989-1990 Reg. Sess.) recognized that AB 4318 "would statutorily define the offense of driving under the influence of alcohol in terms of 691*691 the concentration of alcohol found in the breath when breath analysis is used." Both committees also observed that AB 4318 "would eliminate the need for conversion of a breath quantity to a blood concentration of alcohol by statutorily defining driving under the influence of alcohol in terms of the concentration of alcohol found in the breath when the breath analysis is used."
AB 4318 was not the first California legislative attempt to define driving under the influence in terms of the alcohol concentration in a person's breath. A precursor, Senate Bill No. 1119 (Stats. 1989, ch. 1114; hereafter, SB 1119), had earlier provided that chemical tests could alternatively be based on grams of alcohol per 210 liters of breath. However, SB 1119 had an effective date of January 1992. The Legislature did not want to wait until 1992 to put the new scheme into effect. AB 4318 was accordingly introduced to advance the operative date of the change.
As stated by the Assembly Committee on Public Safety: "Last year the Legislature approved and the Governor signed Senate Bill 1119 (Seymour) which, effective January 1992, eliminates the DUI partition ratio, an unnecessarily complicated method of converting units of alcohol per liter of breath into the current standard of .08% blood alcohol per milliliter of blood. AB 4318 simply speeds up the effective date to January 1, 1991, in an effort to provide relief to our beleaguered DUI trial process. [¶]  SB 1119 set the standard for breath alcohol content at grams of alcohol per 210 liters breath or grams of alcohol per 100 milliliters of blood. AB 4318 merely speeds up the effective date of this clarifying language. [¶] AB 4318 provides a necessary tool in our ongoing battle against drunk drivers."
The intent of AB 4318 to eliminate conversion and, instead, alternatively define driving under the influence "in terms of the concentration of alcohol found in the breath when breath analysis is used," is thus abundantly clear; it is, in fact, explicit. In People v. Bransford (1994) 8 Cal.4th 885, 890 [35 Cal. Rptr.2d 613, 884 P.2d 70], the Supreme Court stated that there is only one reasonable manner in which to read the 1990 amendment, and that is that "the Legislature intended the statute to criminalize the act of driving either with the specified blood-alcohol level or with the specified breath-alcohol level."
Consequently, the trial court did not err in holding that evidence of the inaccuracy of the 2,100:1 partition ratio, when applied to defendant under the section 23152, subdivision (b) count, was irrelevant.
Apart from being irrelevant in the sense of being unnecessary under the current legislative scheme, the proffered evidence is also irrelevant in another respect. Defendant's postarrest breath test, which showed alcohol 692*692 concentrations of .11 percent and .10 percent, was taken approximately six hours after consumption of the first beer, three hours after consumption of the second and third beers, and one to one and a half hours after consumption of the third beer. The test was therefore taken after most of the alcohol, if not all, had been fully absorbed into defendant's bloodstream. Gigiere had testified that, in the case of beer, alcohol absorption reaches its peak from "30 to 180 minutes, 73 minutes average on a [sic] empty stomach. Food would make it longer."
On the other hand, the breath test performed by Gigiere on November 24, showing defendant's partition ratio at 1329:1, was conducted 20 minutes after the measured consumption of alcohol under controlled conditions. It is evident that defendant's physiological condition at the time Gigiere administered his breath test is not comparable to defendant's physiological condition at the time Wowak administered the postarrest breath test. Because, as Gigiere testified, a person's partition ratio is "germane to the moment that you test," defendant's partition ratio at the time of Gigiere's test was irrelevant to establish defendant's partition ratio at the time of his arrest.
(3a) Defendant contends next that to prevent him from adducing evidence of the variability between blood- and breath-alcohol measurements is to prevent him from challenging the accuracy of the breath test, and that would be a violation of his state and federal rights to due process and to confront adverse witnesses. We disagree.
In arguing due process, defendant cites a number of reasons why breath tests are inaccurate predictors of true alcohol content, among them: "the phase of alcohol absorption, body temperature, the condensation effect, the physiology of human lungs, breathing technique, the blood hematocrit, and residual mouth alcohol." Defendant claims that "[c]ertainly, due process must afford the accused the right to adduce evidence that his or her own blood:breath partition ratio is significantly lower than the assumed 1:2100, particularly if it, combined with other evidence, establishes that his or her alcohol content was below .08 percent."
The flaw in this argument is the assumption that the 1990 amendment requires the alcohol content in the breath to be quantitatively equivalent to the .08 percent alcohol content in the blood. As discussed, there is no such requirement. The statutory scheme under the 1990 amendment is for the blood-alcohol ratio to apply when blood test is used, and for the breath-alcohol ratio to apply when breath test is used, regardless of their conversion values.
693*693 When the Legislature enacted the 1990 amendment, it was aware of the "complexities" of converting breath-alcohol values to blood-alcohol values. Indeed, it was precisely because of those complexities that the Legislature decided to eliminate the conversion requirement, accepting as sufficient for defining legislative policy a prohibition on driving based on the presence in a person's breath of a certain amount of alcohol.
(4) The Legislature's power to regulate driving is beyond constitutional challenge. "[T]he area of driving is particularly appropriate for extensive legislative regulation, and ... the state's traditionally broad police power authority to enact any measure which reasonably relates to public health or safety operates with full force in this domain." (Hernandez v. Department of Motor Vehicles (1981) 30 Cal.3d 70, 74 [177 Cal. Rptr. 566, 634 P.2d 917].) "Surely, the regulation of drinking drivers in a state that experienced 338,344 arrests for `drunk driving' in 1982 is well within the legitimate police power of the Legislature." (Burg v. Municipal Court, supra 35 Cal.3d at p. 267, fn. omitted.)
The fact that the current state of scientific knowledge has not settled the ongoing scientific debate as to the best method of measuring inebriation does not preclude the Legislature from regulating driving based on conflicting scientific theories. It has been held that "where scientific opinions conflict on a particular point, the Legislature is free to adopt the opinion it chooses, and the court will not substitute its judgment for that of the Legislature. [Citation.]" (State v. Brayman (1988) 110 Wn.2d 183, 193 [751 P.2d 294, 300].) Courts "cannot arbitrate scientific disputes." (People v. Lepine, supra, 215 Cal. App.3d at p. 100.)
Although the reliability of breath tests has been questioned by some experts, other experts have endorsed such tests as the more reliable measure of the amount of alcohol affecting the brain. As discussed by a New Jersey court in State v. Downie (1990) 117 N.J. 450 [569 A.2d 242, 250 (90 A.L.R.4th 135): "In light of the scientific and legislative evidence, we find unpersuasive the argument that blood should be the sure and ultimate measure of inebriation. Blood, itself is not monolithic. Venous blood differs from the arterial blood, which actually takes alcohol to the brain. Venous blood may be far less accurate as an indication of the amount of alcohol affecting the brain than breath in the absorptive phase. Given the fact that the legislature desired to bar driving while intoxicated, it appears logical that the blood contemplated was the arterial blood, which takes alcohol to the brain. Because arterial blood is practically unobtainable, then breath, not venous blood, is the most consistently accurate reflection of the concentration of alcohol affecting the brain. Thus, the legislative and judicial reference to `blood' is not an intended concession that blood tests are the preferred method for ascertaining inebriation." (Fn. omitted.)
694*694 Indeed, the experts cited in the hearing notes of California's Assembly Public Safety Committee, Senate Rules Committee, and Senate Judiciary Committee, recommended that blood tests as a method of measuring inebriation be abandoned in favor of breath tests. However, instead of abandoning the blood test in favor of the breath test, the Legislature decided to adopt both tests and to allow their use on an alternative basis.
(5) Whether the course chosen by the Legislature is sound is not for the courts to review. "The wisdom of the legislation is not at issue in analyzing its constitutionality, and neither the availability of less drastic remedial alternatives nor the legislative failure to solve all related ills at once will invalidate a statute. [Citations.]" (Hale v. Morgan (1978) 22 Cal.3d 388, 398 [149 Cal. Rptr. 375, 584 P.2d 512].)
(3b) In Burg v. Municipal Court, supra, 35 Cal.3d at page 269, the court held that the 1981 version of section 23152, subdivision (b), met the due process requirement of being "definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt." Because the 1990 amendment is similar to the 1981 version for purposes of due process analysis, we must likewise reject defendant's present due process challenge.
There is, however, a kind of due process challenge that was not foreclosed by Burg. Defendant is not precluded from questioning the reliability of the instrument used or the procedure followed. (People v. Bransford, supra, 8 Cal.4th at p. 893.)
In this case, however, the People presented evidence to show that the breath analyzer used was operating properly, that Wowak was qualified to administer the test, and that Wowak followed prescribed procedures. Defendant interposed no challenge to this evidence. Defendant cannot therefore complain that his due process rights were violated in this respect.
(6) Defendant contends that unless defendants are permitted to challenge the blood:breath partition ratio, the 1990 amendment creates an irrebuttable, conclusive presumption that breath-alcohol levels are accurate and necessarily translate into blood-alcohol levels at a ratio of 1:2,100. Defendant argues that under the trial court's interpretation of the 1990 amendment, the trier of fact must presume an element of the offense, specifically blood-alcohol level in excess of .08 percent, from the evidentiary fact of a breath-alcohol level in excess of .08 percent.
695*695 The Supreme Court recently settled this question in People v. Bransford, supra, 8 Cal.4th 885. There it held that the 1990 amendment "did not presume that the driver was intoxicated or `under the influence'; instead, it defined the substantive offense of driving with a specified concentration of alcohol in the body. Thus, it did not create an irrebuttable conclusive presumption." (People v. Bransford, supra, 8 Cal.4th at pp. 892-893.)
(7a) Defendant contends that to interpret the 1990 amendment as creating a new offense of "excessive breath-alcohol" would violate equal protection because similarly-situated individuals would be held to different standards of conduct based on the arbitrary factor of which test was given. The contention is without merit.
(8) The essence of equal protection is that "persons similarly situated with respect to the legitimate purpose of the law receive like treatment." (Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566, 578 [79 Cal. Rptr. 77, 456 P.2d 645].) "The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. [Citation.]" (In re Eric J. (1979) 25 Cal.3d 522, 530 [159 Cal. Rptr. 317, 601 P.2d 549], fn. omitted.)
(7b) Under the 1990 amendment, the persons similarly situated are drinking drivers. The amendment does not treat any member of that group differently. Any member of the group has the same right as any other member to elect a breath test or a blood test.
To demonstrate unequal protection, defendant asks us to consider two identical persons, twins, each with a true blood-alcohol concentration of .07 percent and a true breath-alcohol content of .09 percent. Defendant argues that hypothetically if one twin took a breath test and the other a blood test, the twin taking the blood test would go home while the twin taking the breath test would go to jail.
The argument is inappropriate. "The rule is well established ... that one will not be heard to attack a statute on grounds that are not shown to be applicable to himself and that a court will not consider every conceivable situation which might arise under the language of the statute and will not consider the question of constitutionality with reference to hypothetical situations. [Citations.]" (In re Cregler (1961) 56 Cal.2d 308, 313 [14 Cal. Rptr. 289, 363 P.2d 305].)
696*696 Moreover, so long as persons in the same group are not discriminated against in the choice of tests to take, there is no denial of equal protection. "`The unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination.' ..." (Murgia v. Municipal Court (1975) 15 Cal.3d 286, 297 [124 Cal. Rptr. 204, 540 P.2d 44], citation omitted.)
As stated in People v. Enriquez (1977) 19 Cal.3d 221, 229 [137 Cal. Rptr. 171, 561 P.2d 261]: "The equal protection clause does not assure defendant of the same treatment as all other felons; it assures him only ... that he will receive like treatment with all other persons similarly situated." "[I]t is not a denial of equal protection that one guilty person is prosecuted while others equally guilty are not. [Citations.]" (People v. Tallagua (1985) 174 Cal. App.3d 145, 150 [219 Cal. Rptr. 754].)
We conclude the 1990 amendment does not violate the state and federal equal protection clauses.
The judgment is affirmed.
Cottle, P.J., and Elia, J., concurred.
A petition for a rehearing was denied April 26, 1995, and appellant's petition for review by the Supreme Court was denied June 28, 1995.
 Further statutory references are to the Vehicle Code unless otherwise stated.
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Burris v. Superior Court, 103 P. 3d 276 - Cal: Supreme Court 2005ReadHow citedSearch
Burris v. Superior Court, 103 P. 3d 276 - Cal: Supreme Court 2005
22 Cal.Rptr.3d 876 (2005)
34 Cal.4th 1012
103 P.3d 276
Michael Lehman BURRIS, Petitioner,
The SUPERIOR COURT of Orange County, Respondent;
The People, Real Party in Interest.
Supreme Court of California.
January 10, 2005.
877*877 Law Offices of Marlin G. Stapleton, Jr., Marlin G. Stapleton, Jr., Tustin; Law Offices of Robert M. Dykes and Robert M. Dykes, Tustin, for Petitioner.
Carl C. Holmes, Public Defender (Orange), Deborah A. Kwast, Chief Deputy Public Defender, Kevin J. Phillips and Lee Blumen, Deputy Public Defenders, as Amici Curiae on behalf of Petitioner.
Michael P. Judge, Public Defender (Los Angeles) and John Hamilton Scott, Deputy 878*878 Public Defender, as Amici Curiae on behalf of Petitioner.
No appearance for Respondent.
Tony Rackauckas, District Attorney, and Brian N. Gurwitz, Deputy District Attorney, for Real Party in Interest.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Patti W. Ranger and Lise Jacobson, Deputy Attorneys General, as Amici Curiae on behalf of Real Party in Interest.
Does the dismissal of a misdemeanor complaint bar all further prosecution for the same offense, even a felony charge based on the same conduct? It does not. Instead, two prior dismissals are required before felony prosecution will be barred. Because charges against defendant Michael Lehman Burris were dismissed only once, we affirm the Court of Appeal's denial of writ relief.
PROCEDURAL AND FACTUAL BACKGROUND
Burris was charged with misdemeanor counts of driving under the influence of alcohol (DUI) and driving with a blood-alcohol level of at least 0.08 percent. (Veh. Code, § 23152, subds.(a), (b).) The complaint alleged two prior DUI convictions. Before trial, the prosecutor discovered a third DUI prior. Under Vehicle Code section 23550, subdivision (a), driving under the influence within seven years of three or more DUI convictions is a "wobbler" and may be prosecuted as a misdemeanor or a felony at the prosecutor's discretion. (See Pen.Code, § 17, subd. (b)(4).) The prosecutor elected to refile Burris's case as a felony and moved to dismiss the misdemeanor complaint. The trial court granted the motion, and the prosecution filed a felony complaint.
Relying on section 1387, Burris moved to dismiss the felony complaint. The trial court denied the motion. The Court of Appeal denied Burris's ensuing petition for a writ of mandate, holding that section 1387 does not bar a subsequent felony prosecution when the same criminal act was originally charged as a misdemeanor and was previously dismissed. In so holding, the Court of Appeal expressly disagreed with People v. Nelson (1964) 228 Cal.App.2d 135, 39 Cal.Rptr. 238. We granted Burris's petition for review.
I. Interpretation of Section 1387
We begin with the text of the statute. (See Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 977, 90 Cal.Rptr.2d 260, 987 P.2d 727; People v. Cruz (1996) 13 Cal.4th 764, 775, 55 Cal.Rptr.2d 117, 919 P.2d 731.) Section 1387, subdivision (a) provides: "An order terminating an action pursuant to this chapter, or Section 859b, 861, 871, or 995, is a bar to any other prosecution for the same offense if it is a felony or if it is a misdemeanor charged together with a felony and the action has been previously terminated pursuant to this chapter, or Section 859b, 861, 871, or 995, or if it is a misdemeanor not charged together with a felony, except in those felony cases, or those cases where a misdemeanor is charged with a felony, where subsequent to the dismissal of the felony or misdemeanor the judge or magistrate finds any of the following: [circumstances not relevant 879*879 here]...." Both parties agree that for purposes of this statute, there has been one prior termination of charges for the same offense.
Burris argues that whether a future prosecution is barred hinges on the character of the earlier dismissal. Under this interpretation of section 1387, the pronoun "it" in the statutory phrase "is a bar to any other prosecution for the same offense if it is a felony" (italics added) refers to the terminated action. Thus, if the terminated action is, as here, a misdemeanor, section 1387 prohibits a second prosecution for either a misdemeanor or a felony. If the terminated action is a felony, a new prosecution will be barred only when there has been an additional prior dismissal. This interpretation is consistent with usage in the second half of the statute that appears to categorize cases according to the character of the dismissed charge. (See § 1387, subd. (a) [creating exception for "those felony cases, or those cases where a misdemeanor is charged with a felony, where subsequent to the dismissal of the felony or misdemeanor" certain findings are made].)
In contrast, the People contend that whether a future prosecution is barred under section 1387 hinges on the character of the later charge: one prior qualifying dismissal will bar a later misdemeanor charge, but will not bar a later felony charge. They argue that under an established canon of construction, the last antecedent rule (White v. County of Sacramento (1982) 31 Cal.3d 676, 680, 183 Cal.Rptr. 520, 646 P.2d 191), the pronoun "it" in the phrase "is a bar to any other prosecution for the same offense if it is a felony" (italics added) refers to the future "other prosecution for the same offense." Thus, according to the People, under section 1387 an order terminating an action bars a future prosecution for a misdemeanor, but bars a future prosecution for a felony only when there has been an additional prior dismissal.
We do not find these grammatical arguments dispositive here. The rules of grammar and canons of construction are but tools, "guides to help courts determine likely legislative intent. [Citations.] And that intent is critical. Those who write statutes seek to solve human problems. Fidelity to their aims requires us to approach an interpretive problem not as if it were a purely logical game, like a Rubik's 880*880 Cube, but as an effort to divine the human intent that underlies the statute." (J.E.M. AG Supply v. Pioneer Hi-Bred (2001) 534 U.S. 124, 156, 122 S.Ct. 593, 151 L.Ed.2d 508 (dis. opn. of Breyer, J.); see Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 920, 129 Cal.Rptr.2d 811, 62 P.3d 54["[T]he rules of statutory construction are merely aids and sometimes can be used to reach opposite results"].) Here, these tools do not reveal a clear legislative intent. The statute has been amended nine times since its adoption in 1872, and the resulting 108-word, 13-comma, no period subdivision is hardly pellucid, as all parties readily concede. The syntax of the statute is such that "it" could readily refer to either the terminated action or the future prosecution. Nor does the legislative history behind the statute and its substantive revisions contain evidence the Legislature chose a particular construction in order to implement one rule or the other. Consequently, we must consider the human problems the Legislature sought to address in adopting section 1387 — "`the ostensible objects to be achieved [and] the evils to be remedied.'" (Wilcox v. Birtwhistle, supra, 21 Cal.4th at p. 977, 90 Cal.Rptr.2d 260, 987 P.2d 727, quoting People v. Woodhead (1987) 43 Cal.3d 1002, 1008, 239 Cal.Rptr. 656, 741 P.2d 154.)
Section 1387 implements a series of related public policies. It curtails prosecutorial harassment by placing limits on the number of times charges may be refiled. (Landrum v. Superior Court (1981) 30 Cal.3d 1, 14, 177 Cal.Rptr. 325, 634 P.2d 352; People v. Peters (1978) 21 Cal.3d 749, 758-759, 147 Cal.Rptr. 646, 581 P.2d 651 (dis. opn. of Mosk, J.); People v. Superior Court (Martinez) (1993) 19 Cal.App.4th 738, 744, 23 Cal.Rptr.2d 733; Sen. Rules Com., Rep. on Sen. Bill No. 487 (1975-1976 Reg. Sess.) Apr. 8, 1975, p. 1 ["Proponents claim the bill [amending § 1387 to limit felony refilings] will prevent possible abuses by prosecutors who dismiss and reinstate felony prosecutions in order to harass defendants"].) The statute also reduces the possibility that prosecutors might use the power to dismiss and refile to forum shop. (Landrum v. Superior Court, at p. 14, 177 Cal.Rptr. 325, 634 P.2d 352; People v. Peters, at p. 759, 147 Cal. Rptr. 646, 581 P.2d 651 (dis. opn. of Mosk, J.); People v. Carreon (1997) 59 Cal. App.4th 804, 808, 69 Cal.Rptr.2d 438.) Finally, the statute prevents the evasion of speedy trial rights through the repeated dismissal and refiling of the same charges. (See People v. Posey (2004) 32 Cal.4th 193, 206-207, 8 Cal.Rptr.3d 551, 82 P.3d 755; Barker v. Municipal Court (1966) 64 Cal.2d 806, 811, 51 Cal.Rptr. 921, 415 P.2d 809; Miller v. Superior Court (2002) 101 Cal.App.4th 728, 738, 124 Cal.Rptr.2d 591; Paredes v. Superior Court (1999) 77 Cal. App.4th 24, 28, 91 Cal.Rptr.2d 350.)
The statute's differential treatment of misdemeanors and felonies reflects a different set of public policies. On the one hand, society has an interest in the expeditious resolution of lesser charges. Section 1387 reflects a judgment that scarce prosecutorial resources should not be expended in multiple attempts to punish misdemeanor conduct and mere misdemeanants should not be subjected to serial prosecutions. (See Necochea v. Superior Court (1972) 23 Cal.App.3d 1012, 1016, 100 Cal. Rptr. 693 [noting "clear policy of the law favoring an expeditious resolution of misdemeanor charges"]; Alex T. v. Superior Court (1977) 72 Cal.App.3d 24, 31-32, 140 Cal.Rptr. 17 ["In the case of misdemeanors ... other considerations may reasonably justify giving the People only one bite at the apple"]; cf. Apprendi v. New Jersey (2000) 530 U.S. 466, 480, fn. 7, 120 S.Ct. 2348, 147 L.Ed.2d 435 [characterizing 881*881 misdemeanors as "those `smaller faults and omissions of less consequence'"].)
On the other hand, there is a heightened societal interest in the prosecution of more serious crimes. Compared to a misdemeanor violation, "[i]f the offense is potentially a felony, society has a much greater interest in its punishment...." (Necochea v. Superior Court, supra, 23 Cal.App.3d at p. 1016, fn. 4, 100 Cal.Rptr. 693.) As we once colorfully explained, the Legislature's differential treatment of misdemeanors and felonies in section 1387 is justified by the fact that felonies include crimes "so heinous in character that to [their] frequent and unchecked commission might be attributed the origin of a possible statewide disaster, or eventually, the downfall of organized society," while many misdemeanors "may be insignificant as far as [their] effect on the body politic is concerned." (People v. Dawson (1930) 210 Cal. 366, 370, 292 P. 267; see also Alex T. v. Superior Court, supra, 72 Cal.App.3d at p. 31, 140 Cal.Rptr. 17.) Indeed, until 1975, the interest in prosecuting felonies was considered so much greater that, while a one-dismissal rule applied to misdemeanors, felony charges could be refiled ad infinitum. (See Stats.1975, ch. 1069, § 1, p. 2615 [amending § 1387 to add felony dismissal limit]; People v. Williams (1969) 71 Cal.2d 614, 623, 79 Cal.Rptr. 65, 456 P.2d 633.)
Section 1387 reflects a legislative judgment that because of the heightened threat to society posed by serious crimes, more filings should be permitted for serious crimes than for minor ones. In turn, the best measure of the seriousness of a crime — and the corresponding societal interest in its prosecution and punishment — is not how the crime was originally charged, based on possibly limited evidence, but how the prosecution currently seeks to charge it, based on the most current and best available evidence. It follows that, for purposes of categorizing a crime as subject to a one-dismissal or two-dismissal rule, what matters is the current charge, not the one previously dismissed. The interpretation of section 1387 that most closely comports with these underlying legislative goals is this: Misdemeanor prosecutions are subject to a one-dismissal rule; one previous dismissal of a charge for the same offense will bar a new misdemeanor charge. Felony prosecutions, in contrast, are subject to a two-dismissal rule; two previous dismissals of charges for the same offense will bar a new felony charge.
We note that because what matters is the nature of the current charge, the nature of any prior charges is immaterial to application of these dismissal rules. Thus, either a misdemeanor or a felony dismissal will bar a subsequent misdemeanor charge, while either two felony dismissals or one misdemeanor and one felony dismissal will bar a subsequent felony charge.
The consequences of this interpretation are consistent with the Legislature's purposes. (See Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387, 241 Cal.Rptr. 67, 743 P.2d 1323 ["Where uncertainty exists consideration should be given to the consequences 882*882 that will flow from a particular interpretation"].) When new evidence comes to light that suggests a crime originally charged as a misdemeanor is in fact graver and should be charged as a felony, section 1387 allows the People to do so. "Often the district attorney doesn't have enough information to make a firm election before filing the complaint or in the prosecution's early stage. New knowledge may reveal that mitigation of the charge [to a misdemeanor] was a regrettable choice." (Malone v. Superior Court (1975) 47 Cal. App.3d 313, 317, 120 Cal.Rptr. 851.) To hold, as Burris argues, that a single misdemeanor filing and dismissal could preclude subsequent felony prosecution, even when new evidence demonstrates that the crime committed was a felony, would be inconsistent with the Legislature's intent to permit more dismissals for serious crimes.
On the other hand, as the People concede, our interpretation of section 1387 also dictates that a qualifying dismissal of a felony charge will bar the refiling of a misdemeanor charge. But nothing about this more lenient treatment of true misdemeanants is fundamentally inconsistent with the Legislature's goals in enacting section 1387.
To illustrate these points, consider the cases of two individuals charged with misdemeanors. Each has previously been charged, one for a misdemeanor and one for a felony, but had those initial charges dismissed. The societal interest in prosecution, given the current understanding of their respective crimes, is the same. The countervailing interests in avoiding harassment, delay, and forum shopping recognized by the Legislature in section 1387 also are the same — each defendant potentially is facing a second prosecution. Thus, the treatment of these two defendants should be the same. The interpretation we adopt treats these cases identically: in each, the further prosecution is barred. The interpretation pressed by Burris would allow reprosecution of one defendant, but not the other, despite the fact the legislative policy considerations in each case are indistinguishable.
Consider the corresponding cases of two individuals charged with felonies. Each has previously been charged, one for a misdemeanor and one for a felony, but had those initial charges dismissed. As before, the societal interest in prosecution, given the current understanding of their respective crimes, is the same. As before, the countervailing interests in avoiding harassment, delay, and forum shopping recognized by the Legislature in section 1387 also are the same — each defendant potentially is facing a second prosecution. Thus, the treatment of these two defendants should be the same. Once again, the interpretation we adopt treats these cases identically: in each, the further prosecution is permitted. Once again, the interpretation pressed by Burris would allow reprosecution of one individual, but not the other, despite the fact the legislative policy considerations in each case are indistinguishable.
Our interpretation of section 1387 is consistent with the results we have reached when applying earlier versions of the statute. In People v. Smith (1904) 143 Cal. 597, 77 P. 449, we applied the original version of section 1387, which imposed a one-dismissal rule for misdemeanors but allowed for unlimited refiling of felonies. The defendant, Smith, was charged with petit larceny, a misdemeanor. New evidence revealed that Smith had previously 883*883 been convicted of burglary, a prior conviction that elevated the petit larceny to a felony. The prosecution obtained an order dismissing the misdemeanor complaint and refiled felony charges. (People v. Smith, at pp. 598-599, 77 P. 449.)
On appeal following Smith's conviction, we rejected the notion that former section 1387 would bar refiling in these circumstances. We held that the judgment of dismissal was not a bar to subsequent felony prosecution because the offense, as presently charged, was a felony. (People v. Smith, supra, 143 Cal. at pp. 598-599, 77 P. 449.) We concluded: "It was never intended that [a misdemeanor] dismissal should be a bar to a prosecution for a felony." (Id. at p. 599, 77 P. 449.) That conclusion remains sound today.
Seventy years later, in Leaming v. Municipal Court (1974) 12 Cal.3d 813, 117 Cal.Rptr. 657, 528 P.2d 745, the defendant raised a speedy trial claim when, after repeated continuances of his misdemeanor trial, on the date of trial the misdemeanor complaint against him was abandoned and he was arraigned on felony charges. After summarily rejecting the defendant's speedy trial claim on the ground he had requested the continuances, we noted as well that the defendant could not complain about the new felony charges because "[d]ismissal of a misdemeanor complaint does not bar a felony prosecution." (Id. at p. 818, fn. 3, 117 Cal.Rptr. 657, 528 P.2d 745, citing former § 1387.)
The holdings of People v. Smith, supra, 143 Cal. 597, 77 P. 449, and Leaming v. Municipal Court, supra, 12 Cal.3d 813, 117 Cal.Rptr. 657, 528 P.2d 745, are consistent with the interpretation we reach today. So too are those few Court of Appeal decisions to have considered the statute in the context of misdemeanor-to-felony prosecutions. (Malone v. Superior Court, supra, 47 Cal.App.3d at p. 317, 120 Cal.Rptr. 851; Necochea v. Superior Court, supra, 23 Cal.App.3d at p. 1016, 100 Cal.Rptr. 693; People v. Mitman (1954) 122 Cal. App.2d 490, 494, 265 P.2d 105; People v. Brown (1919) 42 Cal.App. 462, 464-465, 183 P. 829.)
Burris and amicus curiae the Los Angeles County Public Defender rely on one Court of Appeal decision, People v. Nelson, supra, 228 Cal.App.2d 135, 39 Cal.Rptr. 238 (Nelson), that reached the opposite conclusion in the context of a felony-to-misdemeanor prosecution. The defendant was charged with felony manslaughter and felony drunk driving. (Pen.Code, former § 192, subd. 3(a); Veh.Code, former § 23101.) These charges were dismissed twice, and charges for misdemeanor manslaughter and misdemeanor drunk driving were filed. (Pen.Code, former § 192, subd. 3(b); Veh.Code, former § 23102.) The defendant challenged the new charges under Penal Code former section 1387. The Nelson court rejected the challenge, concluding: "The words `if it is a misdemeanor' refer to the complaint which was dismissed, not to the new complaint which was filed." (Nelson, at p. 137, 39 Cal.Rptr. 238.) Thus, Nelson allowed felony charges to be followed by misdemeanor charges.
Nelson offered no explicit explanation for its interpretation. As best one can discern, the court viewed the syntax of section 1387 as dictating its result. But as we have discussed, the syntax of the statute offers no clear answer, while the legislative policies underlying the statute point to a conclusion opposite the one reached by Nelson. To the extent People v. Nelson, 884*884 supra, 228 Cal.App.2d 135, 39 Cal.Rptr. 238 holds that the determination of which dismissal rule to apply hinges on the nature of the dismissed charge, rather than the new charge, we disapprove it.
II. Retroactive Application
Burris argues that even if we interpret section 1387 to allow prosecution of a felony after dismissal of a misdemeanor, under the rule of lenity he should be shielded from the application of that ruling and have the Nelson interpretation of the statute applied to his case. We disagree.
The rule of lenity, under which "ambiguous penal statutes are construed in favor of defendants[,] is inapplicable unless two reasonable interpretations of the same provision stand in relative equipoise, i.e., that resolution of the statute's ambiguities in a convincing manner is impracticable." (People v. Jones (1988) 46 Cal.3d 585, 599, 250 Cal.Rptr. 635, 758 P.2d 1165; see also People v. Lee (2003) 31 Cal.4th 613, 627, 3 Cal.Rptr.3d 402, 74 P.3d 176.) The rule does not automatically grant a defendant "the benefit of the most restrictive interpretation given any statute by any court" when there is a split of authority. (People v. Spurlock (2003) 114 Cal.App.4th 1122, 1132, 8 Cal.Rptr.3d 372.) Neither does it require a statutory interpretation in a defendant's favor when, as here, a court "can fairly discern a contrary legislative intent." (People v. Avery (2002) 27 Cal.4th 49, 58, 115 Cal.Rptr.2d 403, 38 P.3d 1.)
Nor does the rule of lenity apply when, as here, an interpretive issue poses a "Whose ox is gored?" problem. However we construe section 1387, one class of defendants will benefit and another will be burdened. Section 1387 shields either defendants charged first with a misdemeanor and then a felony, or those charged first with a felony and then a misdemeanor, but not both groups. The legislative intent underlying the statute is more consistent with protection of the latter group.
Finally, the rule of lenity does not bar application of a statutory interpretation reached in a given case to the defendant in that case. The rule is one of construction, not one governing retroactivity. Our retroactivity rules dictate that this decision be applied to Burris. "The general rule that judicial decisions are given retroactive effect is basic in our legal tradition." (Newman v. Emerson Radio Corp. (1989) 48 Cal.3d 973, 978, 258 Cal. Rptr. 592, 772 P.2d 1059.) This general rule extends fully to decisions such as this that resolve Court of Appeal conflicts or establish the meaning of a statutory enactment. (See Woosley v. State of California (1992) 3 Cal.4th 758, 794, 13 Cal.Rptr.2d 30, 838 P.2d 758; People v. Garcia (1984) 36 Cal.3d 539, 549, 205 Cal.Rptr. 265, 684 P.2d 826; Donaldson v. Superior Court (1983) 35 Cal.3d 24, 36-37, 196 Cal.Rptr. 704, 672 P.2d 110.) Our decision neither overrules controlling authority or a uniform body of law that might be justifiably relied on, nor judicially enlarges a criminal statute in an unforeseeable manner (see People v. Billa (2003) 31 Cal.4th 1064, 1073, 6 Cal.Rptr.3d 425, 79 P.3d 542; People v. Blakeley (2000) 23 Cal.4th 82, 91-92, 96 Cal.Rptr.2d 451, 999 P.2d 675); thus, our interpretation of section 1387 applies to Burris.
Burris has been charged with a felony. (See Veh.Code, § 23550, subd. (a).) He has had charges for the same offense dismissed once before. Because felony charges are subject to a two-dismissal rule, Penal Code section 1387 does not bar the instant charges.
For the foregoing reasons, we affirm the judgment of the Court of Appeal and remand 885*885 for further proceedings consistent with this opinion.
We Concur: GEORGE, C.J., KENNARD, BAXTER, CHIN, BROWN, and MORENO, JJ.
 All subsequent unlabeled statutory references are to the Penal Code.
 The statutory grounds were not specified, but the People concede the court acted under section 1385.
 The parties agree that the identical criminal act, DUI (Veh.Code, § 23152, subds.(a), (b)), underlies both the initial misdemeanor charge and the subsequent felony charge against Burris. The two charged crimes have the same elements: Vehicle Code section 23152 defines the elements of the substantive offense for each, while Vehicle Code sections 23546 and 23550 define not elements but conditions for imposition of sentencing enhancements. (See People v. Coronado (1995) 12 Cal.4th 145, 152, 48 Cal.Rptr.2d 77, 906 P.2d 1232, fn. 5 [Veh.Code, former § 23175, predecessor to Veh.Code, § 23550, is a sentence enhancement statute, not a substantive offense statute].) When two crimes have the same elements, they are the same offense for purposes of Penal Code section 1387. (See Dunn v. Superior Court (1984) 159 Cal.App.3d 1110, 1118, 206 Cal.Rptr. 242 [applying same elements test to determine whether new charge is same offense as previously dismissed one for purposes of § 1387].)
 The statute treats a misdemeanor charged with a felony the same as a felony. (See § 1387, subd. (a).) For clarity's sake, when we refer to felonies in this discussion, we include misdemeanors charged with felonies.
 Not every dismissal qualifies as a dismissal for purposes of section 1387. The statute spells out various circumstances in which a prior dismissal will be excused and not count towards a prosecution bar. (See § 1387, subds. (a)-(c).) Those circumstances are not present here; it is undisputed the dismissal in this case is a qualifying dismissal.
 As further proof of this intent, while two filings are allowed for most felonies, section 1387.1 carves out the most serious category of felonies, violent felonies, and allows a third filing for these crimes under certain circumstances.
 Or, for that matter, two misdemeanor dismissals, in those rare cases where a section 1387 exception would permit successive misdemeanor prosecutions. (See § 1387, subd. (b).)
 In 1904, former section 1387 provided: "[A]n order for the dismissal of the action as provided in this chapter is a bar to any other prosecution for the same offense, if it is a misdemeanor; but it is not a bar if the offense is a felony."
 In 1964, former section 1387 provided: "An order for the dismissal of the action, made as provided in this chapter, is a bar to any other prosecution for the same offense if it is a misdemeanor, but not if it is a felony." (Stats.1951, ch. 1674, § 142, p. 3857.)
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People v. Calhoun, 150 P. 3d 220 - Cal: Supreme Court 2007ReadHow citedSearch
People v. Calhoun, 150 P. 3d 220 - Cal: Supreme Court 2007
53 Cal.Rptr.3d 539 (2007)
40 Cal.4th 398
150 P.3d 220
The PEOPLE, Plaintiff and Respondent,
Lawrence Lamont CALHOUN et al., Defendants and Appellants.
Supreme Court of California.
January 29, 2007.
540*540 Greg M. Kane, Vista, under appointment by the Supreme Court, for Defendant and Appellant Lawrence Lamont Calhoun.
Anthony J. Dain and Eric R. Larson, San Diego, under appointments by the Supreme Court, for Defendant and Appellant George Kenneth Waller, Jr.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia, Steven T. Oetting, Douglas C.S. Lee, Peter Quon, Jr., and Lynne G. McGinnis, Deputy Attorneys General, far Plaintiff and Respondent.
Here we consider two issues: first, whether someone convicted of gross vehicular manslaughter as an aider and abettor may be subject to an enhancement under Vehicle Code section 20001, subdivision (c) (20001(c)) for fleeing the scene; second, whether an upper term sentence may be imposed based upon a "multiple victims" aggravating factor if only one victim was named in each count. We answer each question in the affirmative, and therefore reverse the contrary judgment of the Court of Appeal.
I. Factual and Procedural Background
The relevant facts are undisputed. At approximately 7:00 p.m., on October 6, 2002, defendants Lawrence Lamont Calhoun and George Kenneth Waller, Jr., were drag racing at over 70 miles per hour. Waller passed Calhoun, and struck Shanna Jump's car. Jump and passenger Brian Hanson were killed. Jump's other passenger, Michael Hanson, was profoundly disabled. Waller's passenger, Jasen Moore, suffered great bodily injury. Calhoun saw "how bad" the accident was and thought, "Well, I better get out of here." He drove home, and turned himself in over two months later.
Calhoun and Waller were each charged with two counts of second degree murder, two counts of vehicular manslaughter with gross negligence, and two counts of reckless driving causing bodily injury. The information also alleged that Calhoun fled the scene of the crime (§ 20001(c)).
A jury acquitted Calhoun and Waller of second degree murder, convicting them of vehicular manslaughter with gross negligence, and reckless driving causing bodily injury. The jury also found that Calhoun fled the scene.
541*541 The court sentenced Calhoun to nine years in prison, imposing the middle term of four years for one manslaughter count (Pen.Code, § 192, subd. (c)(1)), a consecutive five-year enhancement for fleeing the scene of the crime (§ 20001(c)), a concurrent four-year term for the second manslaughter count, and concurrent terms of 180 days for each of the reckless driving counts (§ 23104, subd. (a)). It stayed one of the two flight enhancements. Waller was sentenced to six years in prison, the upper term, for one manslaughter count. Terms of six years for the second' count, and 180 days for each of the two reckless driving counts, were ordered to run concurrently. In a bifurcated trial, the court found Waller personally inflicted great bodily injury in committing manslaughter. (Pen.Code, § 1192.7(c)(8).)
The Court of Appeal concluded that the section 20001(c) flight enhancement applies only to those who directly commit an underlying offense, not to aiders and abettors. Accordingly, it vacated Calhoun's two 5-year enhancements. The court also concluded that an upper term could not be imposed by relying on multiple victims as an aggravating factor. Thus, it vacated Waller's two 6-year terms and remanded for resentencing of both defendants.
A. Application of section 20001(c) to an aider and abettor
Calhoun concedes he is guilty of gross vehicular manslaughter as an aider and abettor. We conclude he is also subject to the flight enhancement.
Section 20001, subdivision (a) provides, "The driver of any vehicle involved in an accident resulting in injury to any person, other than himself or herself, or in the death of any person shall immediately stop the vehicle at the scene of the accident and shall fulfill the requirements of Sections 20003 and 20004." Section 20001(c), at issue in this case, provides in relevant part: "A person who flees the scene of the crime after committing a violation of . . . subdivision (c) of Section 192 ... of the Penal Code, upon conviction of . .. th[is] section, in addition and consecutive to the punishment prescribed, shall be punished by an additional term of imprisonment of five years in the state prison." (Italics added.)
The question here is whether an aider or abettor, like a direct perpetrator, can "commit" manslaughter within the meaning of the enhancement. Calhoun argues that by using the term "commit," the Legislature limited the enhancement to direct perpetrators and barred its application to aiders and abettors. The argument fails.
Both aiders and abettors and direct perpetrators are principals in the commission of a crime. Penal Code section 31 defines "principals" as "[a]ll persons concerned in the commission of a crime, ... whether they directly commit the act constituting the offense, or aid and abet in its commission..." (See Pen.Code, 542*542 § 971["[A]11 persons concerned in the commission of a crime, who by the operation of other provisions of this code are principals therein, shall hereafter be prosecuted, tried and punished as principals...."].) We have observed, "the dividing line between the actual perpetrator and the aider and abettor is often blurred. It is often an oversimplification to describe one person as the actual perpetrator and the other as the aider and abettor. When two or more persons commit a crime together, both may act in part as the actual perpetrator and in part as the aider and abettor of the other, who also acts in part as an actual perpetrator." (People v. McCoy (2001) 25 Cal.4th 1111, 1120, 108 Cal.Rptr.2d 188, 24 P.3d 1210.) Here it is unnecessary to parse Calhoun's involvement. We conclude that by creating an enhancement for those who flee the scene after "committing" manslaughter, the Legislature intended the enhancement to apply to all principals, both aiders and abettors as well as direct perpetrators.
We first consider the statutory language. Nothing in section 20001(c) limits application of the enhancement to direct perpetrators of the underlying crime. Rather, the Legislature enacted an enhancement that applies to any "person who flees the scene of the crime after committing" certain forms of manslaughter.
Likewise, in People v. Lee (2003) 31 Cal.4th 613, 622, 3 Cal.Rptr.3d 402, 74 P.3d 176 (Lee,) we observed that Penal Code section 664, subdivision (a) referred "three times broadly and generally to `the person guilty of attempted murder, ... not once distinguish[ing] between an attempted murderer who is guilty as a direct perpetrator and an attempted murderer who is guilty as an aider and abettor.... Had the Legislature intended to draw a distinction between direct perpetrators and aiders and abettors, it certainly could have done so expressly." (Lee, at p. 622, 3 Cal. Rptr.3d 402, 74 P.3d 176.) Attempted murder is of course a substantive crime, not an enhancement. For such crimes, it appears the general law of criminal liability, including aider and abettor liability, remains applicable. (See Lee, at p. 626, 3 Cal.Rptr.3d 402, 74 P.3d 176.)
Similarly here, when Vehicle Code section 20001(c) refers to "committing a violation of ... paragraph (1) ... of subdivision (c) of Section 192 ... of, the Penal Code," or gross vehicular manslaughter, it is referring to a substantive crime. As in Lee, supra, 31 Cal.4th 613, 3 Cal.Rptr.3d 402, 74 P.3d 176, when referring to commission of that crime, the Legislature did not expressly draw a distinction between direct perpetrators and aiders and abettors. General principles of criminal liability, including Penal Code section 31, indicate that both aiders and abettors and direct perpetrators can "commit" the substantive crime of gross vehicular manslaughter. Hence both are subject to the Vehicle Code enhancement when they also personally commit the proscribed conduct of fleeing the scene of the crime.
Calhoun generally relies on cases such as People v. Piper (1986) 42 Cal.3d 471, 476-477, 229 Cal.Rptr. 125, 722 P.2d 899, and People v. Walker (1976) 18 Cal.3d 232, 241-242, 133 Cal.Rptr. 520, 555 P.2d 306, which required a defendant to personally engage in proscribed conduct for an enhancement to attach. In these cases, "we declined to employ the law of criminal liability to remove" the discerned personal conduct requirement for certain enhancements. (Lee, supra, 31 Cal.4th at p. 626, 3 Cal.Rptr.3d 402, 74 P.3d 176.)
Certainly the law of criminal liability remains applicable in determining whether a defendant has "committ[ed]" an underlying crime within the meaning of an enhancement. Thus, in In re Antonio R. 543*543 (1990) 226 Cal.App.3d 476, 479, 275 Cal. Rptr. 442, the court concluded the minor defendant was properly punished for his personal use of a firearm even though he was vicariously liable for the murder. Here, aiding and abetting principles establish that Calhoun "committ[ed]" gross vehicular manslaughter. He then personally "fle[d] the scene of the crime after committing" manslaughter, thus satisfying both elements of the enhancement. None of the cases Calhoun cites require that in addition to personally engaging in the conduct warranting an enhanced punishment, the person also be a direct perpetrator of the underlying crime.
An example from a different context illustrates the point. Two robbers enter a bank. The gunman holds everyone at bay while the other empties the cash drawers. Both are guilty of robbery. Under Calhoun's analysis, however, the gunman would not be subject to a firearm use enhancement because he did not personally take the money, but only aided and abetted the taking. Logic and the law are otherwise. (See People v. Donnell (1975) 52 Cal.App.3d 762, 767, 778-779, 125 Cal. Rptr. 310.)
Similarly, the Court of Appeal relied in part on the language of Penal Code section 12022, subdivision (a)(1), an enhancement that provides in part, "This additional term shall apply to any person who is a principal in the commission of a felony or attempted felony if one or more of the principals is armed with a firearm, whether or not the person is personally armed with a firearm." This provision does nothing more than allow imposition of the enhancement regardless of which principal is personally armed. In this context, the use of the word "principal" simply describes who can be held liable for the arming. It does not mean that in every other instance when the Legislature uses the words "committing" or "commission" of a crime, it must also use the word "principal" in order to invoke basic principles of criminal liability.
The legislative history of section 20001(c) reveals no intent to limit its application to direct perpetrators, of a crime. Calhoun relies on the fact that the bill was enacted in memory of 15-year-old Courtney Cheney, killed by a recidivist drunk driver who fled the scene. (Stats.1996, ch. 654, § 1; Sen. Com. on Crim. Proc, analysis of Assem. Bill No.1985 (1995-1996 Reg. Sess.) as amended July 1, 1996, pp. 3-4.) The Senate committee report pointed out that the enhancement was necessary "because when a person who is DUI flees the scene of an accident where a death has occurred and they are not caught immediately, it is hard if not impossible to later prove that they were DUI. This [enhancement] will create an added deterrence to keep people from fleeing accidents where a death may have occurred." (Id., at p. 5.) However, one can commit gross vehicular manslaughter, the crime for which Calhoun was convicted, without being intoxicated. As the Attorney General notes, "[w]hat Calhoun does is take a precipitating event for legislation and use that event to limit the scope of the law." Furthermore, the state has a valid interest in requiring that principals in the commission of serious vehicular crimes remain at the scene.
B. Whether the upper terms were supported by the multiple victim factor
In sentencing Waller, the trial court stated, "[A]s to Counts Three and Four, [the] vehicular manslaughter charges, the Court will impose an upper term of six years. In selecting the upper term, the Court has to weigh circumstances in mitigation as provided by the sentencing rules, as against those in aggravation. 544*544 And I think the mitiga[ting], in Mr. Waller's case, have already [been] talked about, in some respect, his lack of significant criminal record. And his background[.] [I]n aggravation, the Court would cite that this defendant was convicted of other crimes for which consecutive sentences could have been imposed, and there are separate victims of the crime involving violence. I am using that aggravating factor as a basis for imposing the aggravated term. I think it outweighs all of the mitigation referred to by counsel and by the probation department. I am ordering terms to run concurrently."
The trial court's statement is ambiguous as to whether it is relying on both the fact that there were multiple victims and the fact that consecutive sentences could have been but were not imposed. Waller assumes, as did the Court of Appeal, that the trial court was relying on both, and that imposition of the upper term as to both counts would have been proper had the trial court instead relied solely on the fact that consecutive sentences could have been but were not imposed. He contends that the trial court's reliance on the multiple victim factor was improper because that factor does not apply when the victims are each named in a separate count. We reject that argument. To the extent the trial court relied on the multiple victim factor, that reliance was proper.
California Rules of Court, rule 4.421 provides, "Circumstances in aggravation include facts relating to the crime," whether or not charged or chargeable as enhancements. Before 1991, rule 421(a)(4) provided that one of these facts was that "[t]he crime involved multiple victims."
Effective January 1991, this factor was deleted from the rule. The Advisory Committee Comment noted, "Former subdivision (a)(4), concerning multiple victims, was deleted to avoid confusion; cases in which that possible circumstance in aggravation was relied on were frequently reversed on appeal because there was only a single victim in a particular count." Defendant does not argue that deletion of the factor precludes the trial court's reliance on it. Rule 4.408(a) provides, "The enumeration in these rules of some criteria for the making of discretionary sentencing decisions does not prohibit the application of additional criteria reasonably related to the decision being made. Any such additional criteria must be stated on the record by the sentencing judge."
In Cunningham v. California (Jan. 22, 2007, No 05-6551) 549 U.S. ___, 127 S.Ct. 856, ___ L.Ed.2d ___, [2007 WL 135687] (Cunningham,) the high court held that California's Determinate Sentencing Law violates a defendant's Sixth and Fourteenth Amendment right to a jury trial to the extent it permits a trial court to impose an upper term based on facts found by the court rather than by a jury beyond a reasonable doubt. This case does not implicate Cunningham because in convicting Waller of two counts of gross vehicular manslaughter, and two counts of reckless driving causing bodily injury, the jury necessarily found there were multiple victims.
Waller contends that the fact of multiple victims is properly relied on by the trial court when the charges identifying other victims have been dismissed or the crimes are uncharged. He asserts, however, that the factor is improperly relied on when 545*545 each count of which the defendant was convicted names only one victim. There is no persuasive argument to support this distinction.
We first consider the cases involving dismissed charges. In People v. Harvey (1979) 25 Cal.3d 754, 757, 159 Cal.Rptr. 696, 602 P.2d 396 (Harvey,) the defendant pled guilty to two robbery counts. We held that the trial court improperly considered and relied on the facts underlying an unrelated and dismissed third robbery count to impose the upper term. (Id. at pp. 757-759, 159 Cal.Rptr. 696, 602 P.2d 396.) We observed that although People v. Guevara (1979) 88 Cal.App.3d 86, 92-94, 151 Cal.Rptr. 511 (Guevara,) "upheld the authority of the sentencing court to take into account certain facts underlying charges dismissed pursuant to a plea bargain, those facts were also transactionally related to the offense to which defendant pleaded guilty. As the Guevara court carefully explained, `The plea bargain does not, expressly or by implication, preclude the sentencing court from reviewing all the circumstances relating to Guevara's admitted offenses to the legislatively mandated end that a term, lower, middle or upper, be imposed on Guevara commensurate with the gravity of his crime.'" (Harvey, at p. 758, 159 Cal.Rptr. 696, 602 P.2d 396.) By contrast, in sentencing Harvey, the court relied on a dismissed robbery count unrelated to, and wholly separate from, the crimes Harvey admitted as part of the plea bargain. (Harvey, at pp. 758-759, 159 Cal.Rptr. 696, 602 P.2d 396.)
In Guevara, supra, 88 Cal.App.3d at page 89, 151 Cal.Rptr. 511, the defendant ordered a mother and her son into a car at gunpoint, then forced her to drive to a different location. After Guevara pleaded guilty to kidnapping the son, the allegation of the mother's kidnapping was dismissed. (Id. at pp. 88, 93, 151 Cal.Rptr. 511.) The trial court relied on the existence of multiple victims to impose the upper term. The Court of Appeal affirmed, noting both the mother and the son were abducted. "No amount of sophistry will make this fact anything but a `circumstance'—an aggravating `circumstance' of the kidnaping of [the son]. It has long been the law that the sentencing court must consider all of the attendant circumstances of the crime of which the defendant has been convicted." (Id. at p. 93, 151 Cal.Rptr. 511.) Similarly, in People v. Klaess (1982) 129 Cal.App.3d 820, 821-823, 181 Cal.Rptr. 355, the court held that the trial court properly considered two dismissed murder counts in imposing the upper term for conviction of accessory after the fact, stating the murders "were inseparably and integrally a part of defendant's admitted offense." (See People v. Blade (1991) 229 Cal.App.3d 1541, 1543-1545, 1547, 281 Cal. Rptr. 161; People v. Cortez (1980) 103 Cal.App.3d 491, 494-96, 163 Cal.Rptr. 1.)
Two cases, both from the Fifth District Court of Appeal, have addressed the situation presented here, reliance on a multiple victim factor when each victim is named in a separate count. Neither case provides extended analysis. In People v. Burney (1981) 115 Cal.App.3d 497, 502, 171 Cal. Rptr. 329, the defendant fired shots in a bar, killing one person, and wounding another. She was convicted of voluntary manslaughter and assault with a deadly weapon. (Ibid.) The Court of Appeal held the trial court had properly relied on the multiple victim factor in imposing the upper term "because the crimes were transactionally related." (Id at p. 505, 171 546*546 CaLRptr. 329.) In People v. McNiece (1986) 181 Cal.App.3d 1048, 1053-1054, 226 Cal.Rptr. 733, defendant caused a motoring accident, killing one person and severely injuring another. The court held that because the gross vehicular manslaughter count involved only one victim, it was improper to rely on the multiple victim circumstance "as a possible aggravating factor."  (McNiece, at p. 1061, 226 Cal.Rptr. 733.)
Here, of course, the jury convicted Waller of multiple counts involving different victims, making this case even stronger than Harvey, supra, 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396. Regardless of whether Harvey and its progeny survive Cunningham, because the jury here found beyond a reasonable doubt that Waller committed crimes against four separate victims, and hence that the crimes involved multiple victims, Waller was not deprived of his jury trial right.
Waller contends that unlike a case in which charges are dismissed, each of the victims here is listed in a separate count, and hence was necessarily considered at the time of sentencing. Thus, he asserts, the sentence for each offense will already be proportionate to the seriousness of that offense. (Pen.Code § 1170, subd. (a)(1).) However, Waller's single act of violence caused either the death or serious injury of four people. The; gravity of and his culpability for this offense is increased by the number of those he harmed. "`A defendant who commits an act of violence ... by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person.'" (People v. Oates (2004) 32 Cal.4th 1048, 1063, 12 Cal. Rptr.3d 325, 88 P.3d 56.) He is therefore properly subject to increased punishment for each gross vehicular manslaughter count.
Nor should the trial court's sentencing discretion be limited, as Waller suggests, to imposing consecutive sentences. There is no persuasive reason why the trial court should not be allowed to consider the fact of multiple victims as a basis for imposing either the upper term or a consecutive sentence, although it cannot do both. (Rule 4.425(b)(1).)
The Court of Appeal's judgment is reversed and the case remanded to that court with instructions to reinstate the true findings on the section 20001(c) allegations against Calhoun, and the two 6year terms imposed on Waller.
WE CONCUR: GEORGE, C.J., BAXTER, CHIN, and MORENO, JJ.
Concurring Opinion by KENNARD, J.
I agree with the majority that the five-year enhancement under Vehicle Code section 20001, subdivision (c), for "[a] person 547*547 who flees the scene of the crime after committing" gross vehicular manslaughter may apply to an aider and abettor. I also agree with the majority that in sentencing defendant George Kenneth Waller, Jr., the trial court's explanation for imposing the upper term for each of the two manslaughter counts, which included the statement that there were "separate victims of the crime involving violence," did not constitute reversible error. I write separately to explain my understanding of the legal basis for the latter holding.
The jury convicted defendant Waller of two counts of vehicular manslaughter with gross negligence (Pen.Code, § 192, subd. (c)(1)) and two counts of misdemeanor reckless driving with bodily injury (Veh. Code, § 23104, subd. (a)). The trial court sentenced Waller to the upper term of six years on each of the manslaughter counts and to 180 days on each of the misdemeanor counts, all terms to run concurrently, resulting in a total term of six years. When it imposed the upper terms on the manslaughter counts, the court said that it found mitigating factors in Waller's lack of significant criminal record and his background. The court then gave this explanation for the upper terms: "[T]his defendant was convicted of other crimes for which consecutive sentences could have been imposed, and there are separate victims of the crime involving violence. I am using that aggravating factor as a basis for imposing the aggravated term. I think it outweighs all of the mitigation referred to by counsel and by the probation department." (Italics added.)
As the majority points out (maj. opn., ante, 53 Cal.Rptr.3d at p. 544, 150 P.3d at p. 224), the trial court's statement is ambiguous, but the majority does not fully explain the ambiguity. The Court of Appeal construed the trial court's statement as providing two distinct reasons for imposing the upper term—because defendant had been "convicted of other crimes for which consecutive sentences could have been imposed," and, secondly, because "there are separate victims of the crime involving violence." But the court's next sentence, referring to "that aggravating factor" and asserting that "it" outweighed the factors in mitigation, belied the suggestion in the first sentence that the court was relying on two different aggravating factors.
In my view, the ambiguity in the trial court's statement of reasons is best resolved by construing the quoted language as stating a single aggravating factor with two components. What the trial court most likely was saying was that it was an aggravating factor that defendant Waller had been convicted of other crimes for which concurrent sentences were being imposed even though those other crimes could have been sentenced consecutively because they were crimes of violence against other victims. The reference to "separate victims" was merely to explain why consecutive sentences could have been imposed on the various counts even though all counts resulted from a single incident. (See People v. Champion (1995) 9 Cal.4th 879, 934, 39 Cal.Rptr.2d 547, 891 P.2d 93 ["When a defendant engages in violent conduct that injures several persons, he may be separately punished for injuring each of those persons ..."].)
Significantly, the trial court said there were "separate" victims, not "multiple" victims. What separated the victims from each other was that each was the subject of a different count, and no count involved more than one victim, as the trial court was well aware. The trial court introduced an element of uncertainty, however, by saying there were "separate victims of the crime involving violence." (Italics added.) The trial court may have simply 548*548 misspoken, intending to says "crimes" rather than "crime," or the court may have intended here to refer to the entire incident as "the crime."
In any event, even if one were to assume for the sake of argument that the trial court intended the reference to "separate victims of the crime" as a second, distinct aggravating factor, and that the trial court erred in so doing, the error was not prejudicial. "When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper." (People v. Price (1991) 1 Cal.4th 324, 492, 3 Cal.Rptr.2d 106, 821 P.2d 610.) "Only a single aggravating factor is required to impose the upper term." (People v. Osband (1996) 13 Cal.4th 622, 728, 55 Cal. Rptr.2d 26, 919 P.2d 640.) Here, defendant Waller's criminal recklessness resulted in the death of two people and serious injuries to two others. The trial court exercised great leniency in imposing concurrent sentences on the four counts of which defendant was convicted, and it reasonably counterbalanced that leniency by imposing upper term sentences on the two manslaughter counts. Nothing in the record suggests that the trial court was confused or mistaken about the relevant facts or that the court's discretionary sentencing choices were based on a mechanical counting of aggravating and mitigating factors rather than on the trial court's appraisal of the seriousness of defendant Waller's conduct. On this record, it is not reasonably probable that the trial court would have chosen a lesser sentence had it understood that "separate victims" could not constitute a distinct and additional aggravating factor.
I do not understand the court's decision in this case as providing authority for treating separate or multiple victims as an aggravating factor in situations materially different from this one, such as when the trial court imposes consecutive sentences on multiple counts, each involving a single victim. On this basis, I concur in the majority opinion.
I CONCUR: WERDEGAR, J.
 All further undesignated statutory references are to this code.
 Section 20001(c) provides in full: "A person who flees the scene of the crime after committing a violation of Section 191.5 [gross vehicular manslaughter while intoxicated] of, paragraph (1) or (3) of subdivision (c) of Section 192 [vehicular manslaughter] of, or subdivision (a) or (c) of Section 192.5 [vehicular manslaughter while operating a vessel] of, the Penal Code, upon conviction of any of those sections, in addition and consecutive to the punishment prescribed, shall be punished by an additional term of imprisonment of five years in the state prison. This additional term shall not be imposed unless the allegation is charged in the accusatory pleading and admitted by the defendant or found to be true by the trier of fact. The court shall not strike a finding that brings a person within the provisions of this subdivision or an allegation made pursuant to this subdivision."
 All further references to rules are to the California Rules of Court.
 Former rule 425(a)(4) provided that a court could consider in determining whether to impose consecutive sentences whether "[a]ny of the crimes involved multiple victims." Rule 425(a)(4) was also deleted as of January 1, 1991.
 Of course, a defendant may agree as part of a plea bargain that the trial court may consider at sentencing the facts of unrelated dismissed or uncharged crimes. (People v. Goulart (1990) 224 Cal.App.3d 71, 80, 273 Cal. Rptr. 477.)
 Several cases have upheld the use of the multiple victim factor to impose consecutive sentences when each of the victims was named in a separate count if the crimes were transactionally related. (See; e.g., People v. Valenzuela (1995) 40 Cal.App.4th 358, 360, 365, 46 Cal.Rptr.2d 715; People v. Birmingham (1990) 217 Cal.App.3d 180, 185, 265 Cal.Rptr. 780; see also People v. Murray (1990) 225 Cal.App.3d 734, 749-750, 275 Cal. Rptr. 498; People v. Bejarano (1981) 114 Cal. App.3d 693, 705, fn. 1, 173 Cal.Rptr. 71.) Other cases, relying on the language of former rule 425(a)(4), or cases that had interpreted that language, held that consecutive sentences were not properly imposed when only one victim was named in each count. (See, e.g., People v. Levitt (1984) 156 Cal. App.3d 500, 514, 517, 203 Cal.Rptr. 276; People v. Humphrey (1982) 138 Cal.App.3d 881, 882, 188 Cal.Rptr. 473, overruling People v. Fowler (1980) 109 Cal.App.3d 557, 566-567, 167 Cal.Rptr. 235; see also People v. Arviso (1988) 201 Cal.App.3d 1055, 1059-1060, 247 Cal.Rptr. 559; People v. Floyd P. (1988) 198 Cal.App.3d 608, 613, 244 Cal.Rptr. 269.)
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People v. Forster, 29 Cal. App. 4th 1746 - Cal: Court of Appeal, 4th Appellate Dist., 1st Div. 1994ReadHow citedSearch
People v. Forster, 29 Cal. App. 4th 1746 - Cal: Court of Appeal, 4th Appellate Dist., 1st Div. 1994
29 Cal.App.4th 1746 (1994)
35 Cal. Rptr.2d 705
THE PEOPLE, Plaintiff and Respondent,
DANIEL JOSEPH FORSTER, Defendant and Appellant.
Docket No. D020031.
Court of Appeals of California, Fourth District, Division One.
November 10, 1994.
Elizabeth A. Barranco, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, and Gary W. Schons, Assistant Attorney General, for Plaintiff and Respondent.
TODD, Acting P.J.
A jury found Daniel Joseph Forster guilty of one count of driving under the influence of alcohol in violation of Vehicle Code section 23152, subdivision (a), one count of driving while having a blood-alcohol concentration of .08 percent or more in violation of section 23152, 1750*1750 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.
On July 29, 1992, the Department of Motor Vehicles suspended Forster's driving privileges 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 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 patdown 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 (CHP) to investigate the possibility Forster was driving under the influence. Fleming explained to the jury that investigating 1751*1751 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.
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 1752*1752 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, 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.
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.
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 under section 23175, felony drunk driving within seven years of three or more driving under the influence convictions.
(1a) 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 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]. The contention is without merit.
In Miranda v. Arizona, supra, 384 U.S. at page 444 [16 L.Ed.2d at page 706], the high court held that a person questioned by law enforcement 1753*1753 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 [28 L.Ed.2d 1, 91 S.Ct. 643] [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 v. Arizona, supra, 384 U.S. at p. 444 [16 L.Ed.2d at p. 706], fn. deleted.) For the reasons that follow, we conclude he was not; therefore, the Miranda safeguards do not apply. (2) 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 [82 L.Ed.2d 317, 336, 104 S.Ct. 3138], 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 Miranda purposes: (1) whether the suspect has been formally arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer, including the nature of the questioning.
(1b) With respect to the first criterion, Forster had not been arrested. With respect to the second criterion, we note the detention was a relatively long one, a little more than an hour. However, there is a reasonable explanation for that delay, namely, it took that long for the CHP officer to arrive at the San Ysidro Port of Entry and it was necessary to wait for the CHP officer's arrival because customs officers do not investigate driving under the influence cases. With respect to the third criterion, Forster was detained in a public area of the customs office; he was neither restrained nor handcuffed in any fashion. Forster sat quietly on a bench and was not addressed by any officer during this interval. With respect to the fourth criterion, the record does not indicate how many customs officials were present in the customs office or if there were other people being detained at the same time as Forster. Finally, with respect to the fifth criterion, we do not discern any overbearing demeanor from either Fleming or Herrera; nor 1754*1754 does their questioning appear to be compulsive in any sense. Thus, we are left with one factor that supports Forster's position, namely the hour-plus detention. However, in deciding whether the custody issue for purposes of Miranda, it is the totality of circumstances that is relevant; "no one factor is dispositive." (People v. Boyer (1989) 48 Cal.3d 247, 272 [256 Cal. Rptr. 96, 768 P.2d 610].) And this one factor — length of detention — is rationally explainable here. Therefore, given the absence of objective indicia of arrest and considering the totality of the circumstances, we conclude that while Forster was most definitely detained in the customs office, he was not in custody for Miranda purposes.
Forster's attempts to distinguish this case from Berkemer are unavailing. In Berkemer v. McCarty, supra, 468 U.S. 420, 435-440 [82 L.Ed.2d 317, 331-335], the high court concluded that investigatory questioning by a officer pursuant to a routine traffic stop does not implicate Miranda. While the delay here is longer than that in Berkemer — or most routine traffic stops, for that matter — the length of the delay was caused by the time it took for the traffic officer to arrive at the San Ysidro Port of Entry. Otherwise, there were no objective indicia of arrest. The fact that Forster was questioned in the customs office rather than at roadside is not a material distinction under these circumstances. (See Oregon v. Mathiason (1977) 429 U.S. 492, 495 [50 L.Ed.2d 714, 719, 97 S.Ct. 711] [requirement of Miranda warnings need not be imposed simply because the questioning takes place in the station-house.]) We conclude under the facts presented here it is factually reasonable to analogize Forster's detention to a traffic stop. Accordingly, there was no custody for purposes of Miranda. There was no error in admitting evidence of Forster's statements to Herrera.
Forster contends the trial court erred in allowing him to be impeached with his prior felony conviction without determining the crime involved moral turpitude. Forster further contends that his prior felony conviction of driving while under the influence in violation of section 23175 is not a crime 1755*1755 involving moral turpitude. Disagreeing with this second contention, we find no error.
Initially, we note it appears from the record the trial court incorrectly believed that a defendant can be impeached with any prior felony conviction regardless of whether the prior offense involved moral turpitude. (See People v. Castro (1985) 38 Cal.3d 301 [211 Cal. Rptr. 719, 696 P.2d 111].) Defense counsel concurred, but the prosecutor urged the trial court to make a finding that the prior offense involved moral turpitude. At the prodding of the prosecutor, the trial court made an equivocal statement, which the Attorney General argues is a finding on moral turpitude. We refer to the following exchange:
"[Prosecutor]: Can the court, just so the record is there in case there are any problems later, indicate that it feels a felony drunk driving is a moral turpitude crime based on the fact that it does indicate a readiness to do evil when a person drives with the knowledge which is inferred from having three prior drunk-drivings?
"[The Trial Court]: Well, it certainly can be argued that someone who has at least three driving-under-the-influence-of-alcohol convictions, who yet again is found in a similar circumstance, is certainly — I hate to use the word evil, that seems a little bit strong, but in the legal sense is acting with moral turpitude.
"What about this? Why don't I just say in that court's opinion, a felony conviction equates to acting with moral turpitude, and therefore under Evidence Code section 788 a prior conviction of a felony can be used to impeach a person? But you can't refer to it as driving under the influence. It's got to be, `Were you convicted of a felony,' period." We are not persuaded that the trial court's ambiguous comment constitutes a finding.
1756*1756 (3) Nonetheless, we find Forster is estopped from raising the lack of a finding as an issue on appeal because he failed to object below. "Neither this court, nor defendant, can avoid the command of Evidence Code section 353, that `A verdict ... shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence....'" (People v. Visciotti (1992) 2 Cal.4th 1, 53, fn. 19 [5 Cal. Rptr.2d 495, 825 P.2d 388].)
(4a) In any event, the key issue for us is whether felony driving under the influence with three or more driving under the influence convictions within seven years of the instant offense (§ 23175) is a crime involving moral turpitude under the prescription of People v. Castro, supra, 38 Cal.3d 301. For the reasons that follow, we conclude it is.
(5) In People v. Mansfield (1988) 200 Cal. App.3d 82, 87 [245 Cal. Rptr. 800], the Court of Appeal summarized the Castro rule:
"Pursuant to People v. Castro, supra, 38 Cal.3d 301, and subject to the trial court's discretion under Evidence Code section 352, only prior felony convictions that necessarily involve moral turpitude may be used to impeach a witness in a criminal proceeding. (Id. at p. 306.) `Moral turpitude' means a general `"readiness to do evil"' (id. at p. 314), i.e., `an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.' (In re Craig (1938) 12 Cal.2d 93, 97 [82 P.2d 442]; 2 Bouvier's Law Dict. (3d rev. 1914) p. 2247; 1 Witkin, Cal. Procedure (3d ed. 1985) Attorneys, § 375, pp. 424-426; see also Annot. (1975) 23 A.L.R. Fed. 480, 488 involving exclusion or deportation of aliens under Federal Immigration and Naturalization Act.) Castro makes no attempt to list or define those felonies which involve moral turpitude, but it makes clear that moral turpitude does not depend on dishonesty being an element of the felony. `[I]t is undeniable that a witness' moral depravity of any kind has some "tendency in reason" (Evid. Code, § 210) to shake one's confidence in his honesty.' (People v. Castro, supra, 38 Cal.3d at p. 315; original italics.)
"Finally, Castro holds that in deciding whether a felony offered for impeachment necessarily involves moral turpitude, the trial court may look only to the `least adjudicated elements' of the crime for which the witness was previously convicted. (Id. at p. 317.) This concept simply means that in determining whether a previous felony involves moral turpitude the court cannot go behind the conviction and take evidence on or consider the facts 1757*1757 and circumstances of the particular offense. Instead, the court must look to the statutory definition of the particular crime and only if the least adjudicated elements of the crime necessarily involve moral turpitude is the prior conviction admissible for impeachment purposes. (People v. Statler (1985) 174 Cal. App.3d 46, 53 [219 Cal. Rptr. 713].)"
(4b) A violation of section 23175 requires that a person be convicted of driving under the influence (§ 23152) and that the offense occurred within seven years of three or more separate violations of driving under the influence. Thus, we are discussing a recidivist type crime involving an extremely dangerous activity. Having suffered at least three previous convictions for driving under the influence, a person who has violated section 23175 is presumptively aware of the life-threatening nature of the activity and the grave risks involved. (See People v. David (1991) 230 Cal. App.3d 1109, 1114-1115 [281 Cal. Rptr. 656].) Continuing such activity despite the knowledge of such risks is indicative of a "conscious indifference or `I don't care attitude' concerning the ultimate consequences" of the activity (People v. Ochoa (1993) 6 Cal.4th 1199, 1208 [26 Cal. Rptr.2d 23, 864 P.2d 103]) from which one can certainly infer a "`depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.'" (People v. Mansfield, supra, 200 Cal. App.3d at p. 87; accord, People v. Bautista (1990) 217 Cal. App.3d 1, 7 [265 Cal. Rptr. 661] [felony hit-and-run driving (§ 20001) found to involve a "`general readiness to do evil' or moral turpitude"]; see also People v. Ballard (1993) 13 Cal. App.4th 687, 697 [16 Cal. Rptr.2d 624] [felony indecent exposure (Pen. Code, § 314, subd. 1) involves moral turpitude, noting recidivist nature of offense].) Accordingly, we conclude a violation of section 23175 involves moral turpitude within the meaning of Castro.
Forster's reliance on In re Carr (1988) 46 Cal.3d 1089 [252 Cal. Rptr. 24, 761 P.2d 1011], in which misdemeanor driving under the influence was determined not to involve moral turpitude, and on language in Ostrow v. Municipal Court (1983) 149 Cal. App.3d 668, 675-676 [197 Cal. Rptr. 40], which discussed the nature of section 23152, subdivision (b), is misplaced. In re Carr, supra, 46 Cal.3d 1089, a State Bar disciplinary case involving an attorney who pled no contest to two counts of driving under the influence, is distinguishable on two points. First, it involved misdemeanor driving under the influence, not the felony driving under the influence with three prior convictions of driving under the influence. Second, attorney disciplinary cases are not determinative on the issue of moral turpitude for purposes of a Castro analysis. (See People v. Armendariz (1985) 174 Cal. App.3d 674, 682 [220 Cal. Rptr. 229].) Ostrow, supra, 149 Cal. App.3d 668, involved a multi-prong constitutional attack on section 23152, subdivision (b), which at that 1758*1758 time prohibited driving with a blood alcohol of .10 percent or more. Again, this is an offense that is markedly different from Forster's prior conviction under section 23175. Moreover, the discussion in Ostrow (at pp. 675-676), upon which Forster relies, did not deal with moral turpitude; neither moral turpitude nor Castro was involved in any aspect of the case.
(6) Forster contends he is entitled to a new sentencing hearing as the trial court erred in imposing the upper term by (a) improperly making dual use of facts in considering Forster's prior drunk driving convictions and (b) improperly relying on "planning" as an aggravating factor. The contention is without merit.
We begin by noting that a single valid factor in aggravation is sufficient to justify the imposition of the upper term. (People v. Castellano (1983) 140 Cal. App.3d 608, 615 [189 Cal. Rptr. 692].)
Here, the trial court gave three reasons for imposing the upper term: (1) the manner in which the crime was carried out indicates planning on the part of the defendant (Cal. Rules of Court, rule 421(a)(8)); (2) defendant's prior convictions as an adult are numerous and increasing (rule 421(b)(2)); and (3) defendant's performance on probation for the same type of offenses has been unsatisfactory (rule 421(b)(5)).
Forster first complains the trial court's use of his prior convictions as an aggravating factor was improper because those convictions are what made his offense a violation of section 23175. Forster correctly points out the law prohibits dual use of facts by a sentencing court. A sentencing court may not rely on the same fact to impose a sentence enhancement and the upper term. (Pen. Code, § 1170, subd. (b); rule 420(c).) Nor may a fact constituting an element of the offense be used to impose the upper term. (Rule 420(d).) However, the elevation of the driving under the influence offense to a felony under section 23175 required only three prior convictions of driving under the influence. Forster had more than three prior driving under the influence convictions; the probation report lists at least seven prior driving under the influence convictions. Thus, there was a surplus of pertinent prior convictions sufficient to establish a violation of section 23175 as well as to constitute a valid factor in aggravation, without the purported overlapping or impermissible dual use of facts claimed by Forster.
(7) Forster next attacks the planning factor utilized by the trial court in imposing the upper term, arguing there was no evidence of planning. We 1759*1759 disagree. As the trial court stated, planning on Forster's part was indicated by the fact he went to Mexico for the specific purpose of partying and he consumed a large amount of alcohol, as verified by his .24 blood-alcohol content. This was a reasonable interpretation of the evidence presented at trial; after all, the jury did not accept Forster's defense of medical necessity, namely, that he drank only to deaden the pain of his ear injury.
(8) Finally, Forster has not questioned the use of his inadequate performance on probation as a valid factor in aggravation. We find no basis to do so. (See People v. Lewis (1991) 229 Cal. App.3d 259, 268 [280 Cal. Rptr. 128].) Accordingly, even if the trial court made impermissible dual use of Forster's prior convictions and impermissibly used planning as an aggravating factor, there remains one unassailable valid factor in aggravation. As we stated earlier, a single valid factor in aggravation is sufficient to justify an upper term. (People v. Castellano, supra, 140 Cal. App.3d 608, 615.) Hence, even if we were to find merit in Forster's sentencing assignments of error, any such error is harmless and no remand is required. (See People v. Dreas (1984) 153 Cal. App.3d 623, 637 [200 Cal. Rptr. 586].)
Huffman, J., and Nares, J., concurred.
 All statutory references are to the Vehicle Code unless otherwise specified.
 We note the questioning of these officers was rather routine. As the high court made clear in Miranda v. Arizona, supra, 384 U.S. 436, 477 [16 L.Ed.2d 694, 725], the intent behind the rule is not to hamper the traditional role of police in investigating crime. "General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding." (Ibid.) The questions posed by Herrera were designed to determine if further investigation into a possible driving under the influence offense was required.
 It is important to note that the trial court sanitized (see People v. Mickle (1991) 54 Cal.3d 140, 172 [284 Cal. Rptr. 511, 814 P.2d 290]) the prior felony conviction for purposes of impeachment and allowed the prosecution merely to ask Forster whether he had suffered a prior felony conviction.
 In Castro, the California Supreme Court held that a prior felony conviction may be used for purposes of impeachment "which necessarily involves moral turpitude, even if the immoral trait is one other than dishonesty." (38 Cal.3d at p. 306.) Noting "moral turpitude" is broader than dishonesty, the Supreme Court said any felony that shows a "`readiness to do evil'" (id. at p. 314) or "necessarily evince[s] any character trait which can reasonably be characterized as `immoral'" is relevant (id. at p. 317, fn. 13). The Supreme Court reiterated the threshold requirement of moral turpitude in People v. Wheeler (1992) 4 Cal.4th 284, 296 [14 Cal. Rptr.2d 418, 841 P.2d 938]: "Of course, the admissibility of any past misconduct for impeachment is limited at the outset by the relevance requirement of moral turpitude." (Fn. omitted.)
 All subsequent rule references are to the California Rules of Court.
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People v. Patel, 196 Cal. App. 4th 956 - Cal: Court of Appeal, 3rd Appellate Dist. 2011ReadHow citedSearch
People v. Patel, 196 Cal. App. 4th 956 - Cal: Court of Appeal, 3rd Appellate Dist. 2011
196 Cal.App.4th 956 (2011)
THE PEOPLE, Plaintiff and Respondent,
JAVID PATEL, Defendant and Appellant.
Court of Appeals of California, Third District.
June 21, 2011.
957*957 Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
RAYE, P. J.—
In exchange for a grant of probation, defendant Javid Patel entered negotiated pleas of no contest to alternative felony counts of "generic" and "per se" negligent driving under the influence of alcohol (DUI) that resulted in bodily injury to another, and a misdemeanor count of driving 958*958 while his license was suspended for a previous DUI. He also admitted allegations of a prior DUI conviction, personal infliction of great bodily injury, multiple victims, and driving with a blood-alcohol level in excess of 0.15 percent. Defendant had one day of actual custody.
Defendant's ensuing appeal is subject to the principles of People v. Wende (1979) 25 Cal.3d 436 [158 Cal.Rptr. 839, 600 P.2d 1071] (Wende) and People v. Kelly (2006) 40 Cal.4th 106, 110 [51 Cal.Rptr.3d 98, 146 P.3d 547]. In accordance with the latter, we will provide a summary of the offense and the proceedings in the trial court.
The parties stipulated to the prosecutor's recitation of the factual basis for the plea. In March 2010 defendant was driving with a blood-alcohol level of 0.22 percent. He had three passengers in his car. Running a red light, he collided with another car. The other driver's leg was broken in three places. One of defendant's passengers suffered a fracture to his C-2 vertebra, and another suffered a fractured hip. At the time of the accident, defendant's license was suspended for an October 2009 DUI incident.
The trial court granted the prosecutor's motion to amend the original complaint to add allegations of personal infliction of great bodily injury in order to bring the felony offenses within the definitions of "serious" and "violent." (See Pen. Code, §§ 667.5, subd. (c)(8), 1192.7, subd. (c)(8).) Defendant then entered a plea of not guilty.
At defendant's next appearance, he waived his right to a preliminary hearing. The trial court solicited defendant's waiver of his rights to a jury trial and confrontation, and of his privilege against self-incrimination. It determined that defense counsel had discussed with defendant the elements of the offenses and any possible defenses. After explaining the direct consequences (and advising defendant that because of the high degree of danger that drunken driving presented, he could be charged with murder if he killed someone in the future in the course of a DUI), the trial court accepted defendant's plea, finding it to be informed and voluntary.
At sentencing, the court imposed a 16-month term for the generic negligent DUI, with an additional three years for the injury enhancement. Neglecting to 959*959 do so at the time, the trial court later imposed the same term for the per se negligent DUI, staying execution pursuant to Penal Code section 654. It also struck the multiple-victim enhancements at the later hearing. It imposed a concurrent six-month jail term for the misdemeanor. The trial court then found unusual circumstances were present, authorizing the stay of execution of sentence and the grant of probation.
The court imposed a number of special conditions. These included a 364-day jail term, the suspension of defendant's driving privilege for three years, abstention from consuming alcohol, participation in an alcoholism treatment program, and installation of an ignition interlock device in any vehicle that he owns or operates after his release from custody. It imposed a $480 fine for the generic DUI conviction and a $300 fine for the misdemeanor (plus penalty assessments), rather than additional jail time (at defendant's behest); a $200 restitution fine and the parallel probation revocation fine; a $50 assessment for alcohol education and prevention; a security surcharge of $60; and a facility fee of $60. It also awarded restitution in an amount to be determined later.
Defendant filed a timely notice of appeal, indicating only an intent to challenge his punishment as cruel and unusual. He did not request a certificate of probable cause.
We appointed appellate counsel for defendant. Counsel has filed an opening brief setting forth the facts of the case and asking us to review the record to determine whether there were any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Counsel has also advised defendant of the right to file a supplemental brief within 30 days of the date of filing the opening brief. More than 30 days have elapsed, and we have not received any communication from defendant.
Having undertaken an examination of the entire record, we note an arguable issue in connection with the condition of probation that prohibits him from drinking alcohol, possessing it, or being in any place where it is the chief item of sale. Unlike the condition prohibiting his possession of firearms or ammunition, this condition does not include a qualification that he must commit the proscribed conduct knowingly. We will modify the order to include this qualification. (Cf. People v. Freitas (2009) 179 Cal.App.4th 747, 751 [102 Cal.Rptr.3d 51] (Freitas).) We otherwise do not find any arguable error that would result in a disposition that is more favorable to defendant.
960*960 (1) In the interests of fiscal and judicial economy, we are compelled to address the repetitive nature of this appellate issue. Since at least 1993, appellate courts have issued opinions consistently holding that conditions of probation must include scienter requirements to prevent the conditions from being overbroad. (In re Victor L. (2010) 182 Cal.App.4th 902, 912-913 [106 Cal.Rptr.3d 584] (Victor L.) [knowingly in presence of weapons or ammunition]; Freitas, supra, 179 Cal.App.4th at pp. 751-752 [knowing possession of stolen property or firearms]; People v. Lopez (1998) 66 Cal.App.4th 615, 629-630 [78 Cal.Rptr.2d 66] [knowing association with gang members and display of gang indicia]; People v. Garcia (1993) 19 Cal.App.4th 97, 102 [23 Cal.Rptr.2d 340] (Garcia) [knowing association with drug users and felons]; cf. In re Sheena K. (2007) 40 Cal.4th 875, 891-892 [55 Cal.Rptr.3d 716, 153 P.3d 282] [must have advance notice of people whom probation officer deems inappropriate].) However, with dismaying regularity, we still must revisit the issue in orders of probation, either at the request of counsel or on our own initiative. The latter in particular is a drain on the public fisc that could be avoided if the probation departments at fault would take greater care in drafting proposed probation orders.
(2) We recognize that Victor L., supra, 182 Cal.App.4th at page 913 and Garcia, supra, 19 Cal.App.4th at page 102 rejected the People's argument that modification was unnecessary because scienter was a necessary implication, given that probation violations must be willful (Garcia merely asserting the "importance" of protecting constitutional rights, and Victor L. expressing concern with leaving a probationer otherwise subject to an "arbitrary or mean-spirited" probation officer's abuse). However, there is now a substantial uncontradicted body of case law establishing, as a matter of law, that a probationer cannot be punished for presence, possession, association, or other actions absent proof of scienter. As with contracts generally, this should be considered a part of the conditions of probation "`just as if [this was] expressly referred to and incorporated.'" (Progressive West Ins. Co. v. Superior Court (2005) 135 Cal.App.4th 263, 281 [37 Cal.Rptr.3d 434], quoting Miracle Auto Center v. Superior Court (1998) 68 Cal.App.4th 818, 821 [80 Cal.Rptr.2d 587].) We also do not discern how addressing this specific issue on a repetitive case-by-case basis is likely to dissuade a probation officer inclined to act in bad faith from finding some other basis for harassing an innocent probationer. As a result, we reject the conclusions reached in Victor L. and Garcia, and now give notice of our intent to henceforth no longer entertain this issue on appeal, whether at the request of counsel or on our own initiative. (3) We construe every probation condition proscribing a probationer's presence, possession, association, or similar action to require the action be undertaken knowingly. It will no longer be necessary to seek a modification of a probation order that fails to expressly include such a scienter requirement.
The ninth full paragraph on page 2 of the December 28, 2010, amended order granting probation is modified to read: "Defendant shall abstain from the consumption of any alcoholic beverage knowingly in any amount whatsoever, and shall not knowingly possess alcohol, nor be in places where he knows alcohol is the chief item of sale." As modified, the order is affirmed. The trial court shall prepare and file an amended order of probation.
Hull, J., and Hoch, J., concurred.
 We employ the shorthand terminology used in People v. McNeal (2009) 46 Cal.4th 1183, 1187 [96 Cal.Rptr.3d 261, 210 P.3d 420].
 Although our March 2010 miscellaneous order No. 2010-002 deems defendant to have raised the issue of the calculation of his presentence conduct credits without further briefing, he was not in actual custody for the prescribed minimum period of four days and therefore did not accrue any. (See Pen. Code, § 4019, former subd. (e), as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50 (eff. Jan. 2010); cf. current version of § 4019, as amended by Stats. 2010, ch. 426, §§ 2, 5 (eff. Sept. 2010), with minimum period of six days.)
 If the People are aggrieved by this minor modification, they may petition for rehearing. (Gov. Code, § 68081.)
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People v. Ramos, 101 P. 3d 478 - Cal: Supreme Court 2004ReadHow citedSearch
People v. Ramos, 101 P. 3d 478 - Cal: Supreme Court 2004
21 Cal.Rptr.3d 575 (2004)
34 Cal.4th 494
101 P.3d 478
The PEOPLE, Plaintiff and Respondent,
William James RAMOS, Defendant and Appellant.
Supreme Court of California.November 29, 2004.
Rehearing Denied January 19, 2005.
Certiorari Denied October 3, 2005.
583*583 Katherine Alfieri and Mark R. Vermuellen, under appointments by the Supreme Court, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Ronald S. Matthias and Herbert F. Wilkinson, Deputy Attorneys General, for Plaintiff and Respondent.
Certiorari Denied October 3, 2005. See 26 S.Ct. 91.
In 1991, an information charged defendant with three counts of murder (Pen.Code, § 187), with a personal use of a firearm enhancement on each count. (§ 12022.5, subd. (a).) The information included a multiple-murder special-circumstance allegation (§ 190.2, subd. (a)(3)), and charged two violations of section 12021, subdivision (a) (felon in possession of a firearm). In addition, defendant was charged with two enhancements under section 667.5, subdivision (b) (prior violent felony prison convictions). He was held in the Martinez Detention Facility.
Nearly a year later, county prison officials considered defendant a continuing threat to staff and inmate safety. A judge ordered him removed from Martinez to San Quentin, where he engaged in criminal and other questionable activity. He attacked a jailhouse deputy, threatened the same deputy, and allegedly hoarded medication for a possible suicide attempt. Defendant also filed numerous complaints about staff procedural violations.
Three months after he was placed in San Quentin, defendant pleaded guilty to all charges. The court determined that the murders were of the first degree and made a specific finding that defendant was competent to make the plea. (§ 1368.) In November 1992, after a penalty trial, the jury returned a verdict of death. The trial court denied defendant's motions for new trial (§ 1181) and to modify the penalty 584*584 verdict (§ 190.4, subd. (e)), and sentenced him to death. This appeal is automatic.
A. The Charged Crimes
1. Tonya Karr Murder
On March 7, 1991, at approximately 7:20 p.m., neighbors in the vicinity of 706 J Street in Antioch heard a male shouting, followed by two gunshots. They saw a stocky White male with long hair leave 706 J Street, walk to an adjacent parking lot, and get into a Ford pickup truck with a camper shell on the back. When Antioch police responded to the scene, they found Tonya Karr lying in a pool of blood with two gunshot wounds to her head. She died the next day. Mary Cagle, defendant's ex-wife and Karr's mother, had seen defendant leaving the parking lot next to Karr's apartment earlier in the evening.
2. Minnie Mae Coombs Murder
Minnie Mae Coombs was Cagle's sister. At 8:30 p.m. on March 7, 1991, Coombs's daughter, Theresa Bodkin, went to Coombs's residence looking for her mother. She heard Ramos's voice on Coombs's answering machine stating that Coombs could be found in the parking lot next door. Coombs was found dead in her car. She had been shot once in the chest and once in the head.
3. Janice Butler Murder
On March 6, 1991, defendant picked up his girlfriend, Janice Butler, from her house. Two days later, her body was found in the camper portion of defendant's pickup truck as it was parked at the River-view Lodge in Antioch. That same day, defendant surrendered to police after they spotted him in a white van he also owned. Police then conducted a probation search of defendant's home and found evidence indicating that Butler had been shot and killed in defendant's home on the evening of March 6.
B. Other Crimes
1. Prior Convictions
The prosecution presented evidence of defendant's prior felony convictions. (§ 190.3, subd. (c).) In October 1976, defendant attempted to kill his former girlfriend, Patricia Mowery, in Reno, Nevada. After Mowery, a card dealer at a Reno casino, ended her relationship with defendant, he damaged items in her house and was arrested for destruction of property. As he was led away, defendant threatened Mowery that he would return. That same evening, defendant approached Mowery at work and shot her in the chest. Defendant then surrendered his weapon to the pit boss, folded his jacket, sat down, and watched Mowery as she bled from the mouth and chest.
While awaiting trial, defendant asked his brother Steve to "do something" to Mowery. In early 1977, Steve told the Nevada Grand Jury that his brother had said: "I want her dead." Defendant was convicted of attempted second degree murder and sent to the maximum security Nevada State Prison in Carson City.
Defendant had two other felony convictions, namely, battery with a deadly weapon in July 1979 in Washoe County, Nevada, and driving under the influence causing bodily injury in Sacramento, California in August 1990.
2. Prior Criminal Activity
On December 2, 1976, while awaiting trial on the attempted murder charge in Washoe County Jail, defendant exploded in a rage against jail personnel. He threw a cup of what he said was urine at Deputy Richard Pico, who was supervising the 585*585 evening meal service. Later that night, defendant pounded his head against the wall for several hours, and told a supervising sergeant that he was going to kill Deputy Pico.
In March 1979, while serving time in Nevada State Prison on the attempted murder conviction, defendant heaved a tray of hot food at a correctional officer in charge of serving the dinner meal. Later that day, defendant threw a hard-boiled egg at the officer and later threatened him that he would get him "on his mother's grave." Defendant was moved to the prison segregation unit the next morning, where he threw a cup of urine at an officer who entered his cell.
In 1992, while awaiting trial in the present matter in Contra Costa County Jail, defendant attacked Sheriff's Deputy Sean Dexter as he accompanied a jail nurse on her "pill call" rounds, breaking Dexter's thumb and punching his head. Defendant later threatened to kill Dexter.
C. Defense Evidence
Dr. Harry Kormos, a psychiatrist hired to examine defendant, testified that defendant suffers from a paranoid personality disorder due to the influence of several factors, including an abusive childhood and time spent fighting in Vietnam as a soldier during the Vietnam War. He characterized defendant's condition as a long-term behavior pattern that will last throughout defendant's lifetime. Dr. Kormos also noted that defendant's disorder does not mean that he is insane or that he does not appreciate the gravity of his acts; indeed, defendant knows what he is doing. Defendant's aunt testified that his mother, who eventually committed suicide, physically abused her children. His father isolated the family and actively discouraged contact with other people. He taught the children that "if you fight, fight to win." Defendant was known for his quick temper, which became more severe, with the potential for greater violence, after his Vietnam experience. Although there is no evidence defendant ever attempted to take his own life, defense counsel presented the evidence to show that defendant may have intended to commit suicide at a later date, thus supporting defendant's claim that he had a "death wish." He apparently hoarded medication while in prison awaiting his penalty trial.
In addition, defendant's brother, Steve Ramos, testified that he and defendant were extremely close when they were children, but that trouble seemed to find them. Former Warden James Park testified that he believed defendant would adjust well to prison life and would remain in high-security prison for the remainder of his life.
A. Motion to Suppress Evidence
Before pleading guilty, defendant raised several claims in a motion to suppress the evidence found in a police search of defendant's house and pickup truck, including Janice Butler's body, a blood stained blanket, an empty box of .38-caliber ammunition, receipt for a Mossberg shotgun (all found in the pickup truck), women's clothing, blood swabs from the metal frame of a sofa bed, shot wads on the ground outside, and other items connecting him to the murders. The police opened the pickup truck by prying off the lock and opening the camper. The police searched defendant's house and 586*586 truck pursuant to a probation search condition imposed after defendant was convicted of violating Vehicle Code section 23153, subdivision (a) (felony driving under the influence (DUI) with injury) in 1990. The blanket search condition required defendant to "submit his person, property and automobile, and any object under the defendant's control, to search and seizure by any probation officer or other peace officer at any time of the day or night with or without a warrant." The officers were aware of the search condition prior to their search.
Defendant contends (1) the court improperly imposed the probation search condition; (2) the condition was overbroad; (3) the police relied on the condition as a subterfuge in order to avoid the warrant requirement; (4) the police had no reasonable cause to search even with the probation condition; and (5) the police, not a probation officer, initiated the searches, making them invalid. The trial court denied the motion to suppress, concluding that the probation search condition was reasonably related to the DUI offense.
Initially, we note that defendant's challenge to the propriety of the search condition is timely because the condition was imposed before we adopted a rule requiring defendant to object to the condition at the time of sentencing or forfeit the claim. (People v. Welch (1993) 5 Cal.4th 228, 237, 19 Cal.Rptr.2d 520, 851 P.2d 802.) Welch, however, made its objection and forfeiture rule prospective in application only. (Id. at p. 238, 19 Cal.Rptr.2d 520, 851 P.2d 802.) The Welch rule, therefore, does not apply to defendant, who received the probation condition before Welch was decided.
In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. (People v. Ayala (2000) 24 Cal.4th 243, 279, 99 Cal.Rptr.2d 532, 6 P.3d 193.) We review the court's resolution of the factual inquiry under the deferential substantial evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. (Ibid.)
Using these guidelines, we find no error. The trial court properly held that the probation search condition was reasonably related to the DUI conviction, which allowed officers to search and seize defendant's person, property, and automobile in order to protect the public. As we have held, "The level of intrusion is de minimis and the expectation of privacy greatly reduced when the subject of the search is on notice his activities are being routinely and closely monitored. Moreover, the purpose of the search condition is to deter the commission of crimes and to protect the public, and the effectiveness of the deterrent is enhanced by the potential for random searches." (People v. Reyes (1998) 19 Cal.4th 743, 753, 80 Cal.Rptr.2d 734, 968 P.2d 445.)
We also conclude the warrantless searches here were proper. As we have held, by accepting probation, a probationer consents to the waiver of Fourth Amendment rights in order to avoid incarceration. "A probationer who has been granted the 587*587 privilege of probation on condition that he submit at any time to a warrantless search may have no reasonable expectation of traditional Fourth Amendment protection." (People v. Mason (1971) 5 Cal.3d 759, 765, 97 Cal.Rptr. 302, 488 P.2d 630.) Therefore, "when defendant in order to obtain probation specifically agreed to permit at any time a warrantless search of his person, car and house, he voluntarily waived whatever claim of privacy he might otherwise have had." (Id. at p. 766, 97 Cal.Rptr. 302, 488 P.2d 630; see also People v. Bravo (1987) 43 Cal.3d 600, 607, 238 Cal.Rptr. 282, 738 P.2d 336.)
The facts known to the police when they undertook the probation search provide ample support for the intrusion on defendant's privacy. Mary Cagle, who arrived on the scene of her daughter's murder shortly after the shooting, told officers that she had seen defendant driving his Ford pickup away from Karr's residence shortly before the shooting. Cagle told police that she feared defendant had shot Karr because he blamed her for their pending divorce. Officers also listened to a tape-recorded answering machine message defendant had left for Cagle shortly after he murdered Karr. In the message, defendant indicated where police could find Minnie Coombs's body. Thus, when the officers, as here, have reasonable suspicion that a probationer is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer's privacy is reasonable. (See United States v. Knights (2001) 534 U.S. 112, 121, 122 S.Ct. 587, 151 L.Ed.2d 497.)
B. Competency Issues
Defendant contends the trial court was required to hold a competency hearing under sections 1367 and 1368 at specific points during the proceedings: before the court accepted his guilty plea and admitted the special circumstance allegations; before the beginning of his penalty trial; and before sentencing. He claims that at each point, the trial court was presented with substantial evidence sufficient to raise a doubt as to his mental competence and was therefore required to hold a competency hearing. As an alternative argument, defendant contends that even if substantial evidence did not support the need for a competency hearing, the cumulative effect of the evidence should have led the court, in its exercise of discretion, to order such a hearing.
The law on competency is well established. A defendant is presumed competent unless it is proved otherwise by a preponderance of the evidence. (§ 1360, subd. (f).) As a matter of due process, the state may not try or convict a mentally incompetent defendant. (Drope v. Missouri (1975) 420 U.S. 162, 172, 95 S.Ct. 896, 43 L.Ed.2d 103; Pate v. Robinson (1966) 383 U.S. 375, 378, 86 S.Ct. 836, 15 L.Ed.2d 815 (Pate); People v. Welch (1999) 20 Cal.4th 701, 732, 85 Cal.Rptr.2d 203, 976 P.2d 754 (Welch).) Under section 1367, subdivision (a), a defendant "cannot be tried or adjudged to punishment while he is mentally incompetent." Section 1368, subdivisions (a) and (b), respectively, require the trial court to initiate proceedings in order to determine a defendant's present sanity if "a doubt arises in the mind of the judge as to the mental competence of the defendant" or "[i]f counsel 588*588 informs the court that he or she believes the defendant is or may be mentally incompetent." To be competent to stand trial, defendant must have "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and "a rational as well as factual understanding of the proceedings against him." (Welch, supra, 20 Cal.4th at p. 737, 85 Cal.Rptr.2d 203, 976 P.2d 754, quoting Dusky v. United States (1960) 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824.)
If a defendant presents substantial evidence of his lack of competence and is unable to assist counsel in the conduct of a defense in a rational manner during the legal proceedings, the court must stop the proceedings and order a hearing on the competence issue. (Pate, supra, 383 U.S. at pp. 384-386, 86 S.Ct. 836; People v. Pennington (1967) 66 Cal.2d 508, 516-517, 58 Cal.Rptr. 374, 426 P.2d 942 (Pennington).) In this context, substantial evidence means evidence that raises a reasonable doubt about the defendant's ability to stand trial. (People v. Frye (1998) 18 Cal.4th 894, 951-952, 77 Cal.Rptr.2d 25, 959 P.2d 183 (Frye).) The substantiality of the evidence is determined when the competence issue arises at any point in the proceedings. (Welch, supra, 20 Cal.4th at p. 739, 85 Cal.Rptr.2d 203, 976 P.2d 754.) The court's decision whether to grant a competency hearing is reviewed under an abuse of discretion standard. (§ 1368; Welch, supra, 20 Cal.4th at p. 742, 85 Cal.Rptr.2d 203, 976 P.2d 754.)
Substantial evidence of incompetence may arise from separate sources, including the defendant's own behavior. For example, if a psychiatrist or psychologist "who has had sufficient opportunity to examine the accused, states under oath with particularity that in his professional opinion the accused is, because of mental illness, incapable of understanding the purpose or nature of the criminal proceedings being taken against him or is incapable of assisting in his defense or cooperating with counsel, the substantial evidence test is satisfied." (Pennington, supra, 66 Cal.2d at p. 519, 58 Cal.Rptr. 374, 426 P.2d 942.) If a defendant presents merely "a litany of facts, none of which actually related to his competence at the time of sentencing to understand the nature of that proceeding or to rationally assist his counsel at that proceeding," the evidence will be inadequate to support holding a competency hearing. (People v. Hayes (1999) 21 Cal.4th 1211, 1280-1281, 91 Cal.Rptr.2d 211, 989 P.2d 645.) In other words, a defendant must exhibit more than bizarre, paranoid behavior, strange words, or a preexisting psychiatric condition that has little bearing on the question of whether the defendant can assist his defense counsel. (See Welch, supra 20 Cal.4th at p. 742, 85 Cal.Rptr.2d 203, 976 P.2d 754; see also People v. Jensen (1954) 43 Cal.2d 572, 579, 275 P.2d 25.) We apply these legal standards to defendant's claim.
1. Competence to Plead Guilty or Stand Trial Prior to Penalty Trial
Defendant pleaded guilty to all charges and admitted the special circumstance allegations on August 28, 1992. Two days before defendant entered his plea, the court conferred in a closed session with trial counsel and defendant present. During the closed session, counsel told the court that defendant wanted to receive the death penalty and that after the entry of his guilty plea, defendant would seek to have the penalty imposed. Counsel informed the court that if he did not consent to defendant's proposed plea, defendant had threatened to remove him as counsel. As evidence of defendant's 589*589 incompetence, counsel introduced evidence of his prior criminal activity and his erratic behavior while incarcerated, including his attacks on Deputy Dexter at the Martinez Detention Facility, and his apparent hoarding of medication for an alleged planned future suicide attempt.
After considering the evidence, the court denied the requested competency hearing and accepted defendant's guilty plea. The court observed: "I have had a chance to consider this matter both on Wednesday and again today, and consider the demeanor of the defendant, the manner in which he is approaching this. It is not an easy thing for anybody here, but the Court is finding the defendant competent. I want to make that clear. I have no reason whatsoever to question his competency to enter into this."
Defendant contends the court did not fully consider his propensity to commit violent acts or his desire to receive the death penalty when it made its competency finding. Indeed, defendant asserts that "a capital defendant whose stated goal is lethal injection will never be in a position to assist his trial counsel in presenting a defense." Defendant contends that his "death wish," together with his past violent behavior, attempt to hoard drugs for a suicide attempt, and history of psychiatric treatment, indicated that he was incompetent and incapable of assisting in his own defense, and required the court to order an independent psychiatric evaluation before finding him competent to plead guilty.
We disagree. We have held that a defendant's preference for the death penalty and overall death wish does not alone amount to substantial evidence of incompetence or evidence requiring the court to order an independent psychiatric evaluation. (People v. Guzman (1988) 45 Cal.3d 915, 963-965, 248 Cal.Rptr. 467, 755 P.2d 917.) We have also held that a defendant's testimony as to his preference for the death penalty does not render the ensuing death judgment constitutionally unreliable. (People v. Nakahara (2003) 30 Cal.4th 705, 719, 134 Cal.Rptr.2d 223, 68 P.3d 1190.)
In addition, defendant's propensity for violence, hoarding of medication for an alleged suicide attempt, and history of psychiatric treatment do not indicate he was incompetent at the time he pleaded guilty. (People v. Grant (1988) 45 Cal.3d 829, 859, 248 Cal.Rptr. 444, 755 P.2d 894.) Thus, although defendant's prior violent acts and other bizarre behavior would lead us to agree he has violent propensities, and may even harbor a death wish, they do not raise doubts that he was incapable of assisting in his own defense or otherwise competent to plead guilty, admit the special circumstance allegations against him, or stand trial. (Ibid.)
We also reject defendant's claim that the trial court improperly relied exclusively upon defendant's demeanor during court appearances in order to determine his competency and should have ordered a psychiatric evaluation prior to finding him competent. Although a court may not rely solely on its observations of a defendant in the courtroom if there is substantial evidence of incompetence, the court's observations and objective opinion do become important when no substantial evidence exists that the defendant is less than competent to plead guilty or stand trial. (See People v. Castro (2000) 78 Cal.App.4th 1402, 1416, 93 Cal.Rptr.2d 770.) Here, the court specifically stated that in its discretion and under all the evidence, including, but not limited to, observations of defendant's demeanor, it had "no reason whatsoever to question [defendant's] competence to enter into [the guilty plea]." When a defendant has not presented substantial evidence to indicate he was incompetent, 590*590 and the court's declaration of a doubt is therefore discretionary, its brief reference to the defendant's demeanor is not error. (See, e.g., Pate, supra, 383 U.S. at pp. 385-386, 86 S.Ct. 836; Welch, supra, 20 Cal.4th at pp. 741-742, 85 Cal.Rptr.2d 203, 976 P.2d 754.)
2. Competence During Penalty Phase and Before Sentencing
Defendant claims that even if the evidence was insufficient to require a suspension of the criminal proceedings before his guilty plea and commencement of trial, additional evidence surfaced during the penalty trial and before sentencing that required the court to order a competency hearing. Specifically, defendant points to the fact that penalty phase testimony indicated he was physically abused by his mother from the time he was an infant. The childhood abuse led to his violent behavior as a young adult, such as kicking in the front door of former girlfriend Mowery, threatening her with a butcher knife, and later shooting her. He also gave a pretrial interview to a news reporter, implying that he would kill again if crossed.
In addition, as noted (ante, 21 Cal.Rptr.3d at p. 585, 101 P.3d at pp. 486-487), Dr. Kormos, a board-certified psychiatrist, testified as a defense witness that defendant suffered from paranoid personality disorder. Dr. Kormos added that the paranoid condition is not episodic; it differs from a true psychosis because the sufferer never loses touch with reality.
Defendant contends that Dr. Kormos's testimony "should have alerted the trial court that defendant's pursuit of a death sentence was the product of mental illness and not a rational choice. Dr. Kormos's testimony made clear, or at least provided substantial evidence to suspect, that [defendant's] mental illness, his paranoid personality disorder, precluded him from assisting in his defense, since any rational defense would have to concede that the homicides were unjustified and inevitably suggest that there was something wrong with defendant's view that when lines are crossed or rules are violated, the threatened consequences must be meted out. In effect, [defendant's] desire to receive the death penalty is perfectly in keeping with his mental illness. To defend himself and defend his life would be to admit that what he did was wrong." Defendant lists 18 examples from Dr. Kormos's testimony that "would have alerted" the trial court to defendant's incompetence, including the evidence of defendant's attack on Deputy Dexter, his attempt to kill Mowery, and his statements to the reporter.
Defendant claims that the evidence presented at the penalty phase was a "changed circumstance" or "new evidence casting a serious doubt" on his competency. (See People v. Jones (1997) 15 Cal.4th 119, 149, 61 Cal.Rptr.2d 386, 931 P.2d 960.) The evidence, defendant contends, required the trial court to suspend proceedings and hold a competency hearing under section 1368.
We disagree. Dr. Kormos testified that although defendant suffered from a paranoid personality disorder, that disorder did not render him mentally incompetent to understand the proceedings or assist the defense in any way. The evidence defendant presented at the penalty trial did indicate that defendant lived by his own set of rules and acted without regard for the lives of others. That defendant lived by his own code of conduct neither indicates he was mentally incompetent and could not understand the penalty proceedings, nor presents any new evidence or changed circumstance that would require the court to suspend the proceedings. As the People observe, the focus of the penalty 591*591 phase is to determine whether the death penalty should be imposed on a defendant who has been determined death eligible as a result of the findings and verdict reached at the guilt phase. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1266-1267, 74 Cal.Rptr.2d 212, 954 P.2d 475.) Although defendant's mental capacity and his lack of remorse may have been factors the defense wanted the jury to consider in its penalty determination, the record fails to indicate that defendant could not understand the proceedings or otherwise assist in his defense. Thus, the trial court did not abuse its discretion in failing to conduct a competency hearing during the penalty phase of the proceedings. (Welch, supra, 20 Cal.4th at pp. 739-740, 85 Cal.Rptr.2d 203, 976 P.2d 754 [no abuse of discretion in court's failure to hold competency hearing when defendant shows sufficient present ability to consult lawyer and rational and factual understanding of proceedings against him].)
C. Penalty Trial Issues
1. Jury Selection: Adequacy of Voir Dire of Prospective Jurors
The trial court conducted voir dire under Code of Civil Procedure former section 223, which, at the time of defendant's trial, provided that in a criminal case the court "shall conduct the examination of prospective jurors," but that the parties "upon a showing of good cause" may "supplement the examination." (As added by Prop. 115, approved by voters June 5, 1990.) The court permitted the parties to prepare a detailed jury questionnaire designed to streamline the voir dire process. The court also privately questioned individual prospective jurors, when it believed that sequestered questioning was necessary. Defendant now makes several claims regarding the voir dire. We address each claim separately.
a. Constitutionality of Code of Civil Procedure section 223
Before the penalty phase, the defendant filed a motion asking the court to permit counsel to conduct voir dire in a manner similar to that used in civil cases under Code of Civil Procedure section 222.5, rather than the voir dire process used in criminal cases, including death penalty matters, under Code of Civil Procedure former section 223 (as added by Prop. 115, approved by voters June 5, 1990). The prosecution filed a short opposition and the court denied the motion.
Defendant's motion attacked, on equal protection grounds, the constitutionality of Code of Civil Procedure section 223, as enacted in 1990 as a part of Proposition 115. The statute, both as enacted and at present, provides that in all criminal cases, including those involving the death penalty, the trial court shall conduct the voir dire of "any prospective jurors..., where practicable, ... in the presence of other" prospective jurors. (Code Civ. Proc., § 223; see People v. Waidla (2000) 22 Cal.4th 690, 713, 94 Cal.Rptr.2d 396, 996 P.2d 46 (Waidla).) As Waidla observed, the change in voir dire procedure abrogated prior law which had required individual and sequestered voir dire in capital cases. (Waidla, supra, 22 Cal.4th at p. 713, 94 Cal.Rptr.2d 396, 996 P.2d 46; Covarrubias v. Superior Court (1998) 60 Cal.App.4th 1168, 71 Cal.Rptr.2d 91 (Covarrubias) [section 223 abrogated former individual voir dire procedure required under Hovey v. Superior Court (1980) 28 Cal.3d 1, 168 Cal.Rptr. 128, 616 P.2d 1301].)
Defendant's contention rests on his belief that this provision of Code of Civil Procedure former section 223 unfairly places the voir dire in the hands of the court, and allows counsel to ask questions 592*592 on a showing of good cause only. By contrast, defendant observes, Code of Civil Procedure section 222.5, gives counsel in a civil action the right to examine, by oral and direct questioning, prospective jurors. The difference between civil and criminal case voir dire, defendant claims, denied him equal protection under the state and federal Constitutions.
We conclude, as the Courts of Appeal have, that Code of Civil Procedure former section 223 did not violate the equal protection clauses of the United States and California Constitutions, and reject defendant's claim that his equal protection challenge is subject to the strict scrutiny doctrine, which is applicable when there is a significant interference with the exercise of a fundamental right. (Lucas v. Superior Court (1988) 203 Cal.App.3d 733, 738, 250 Cal.Rptr. 76.)
The right to voir dire the jury is not constitutional, but is a means to achieve the end of an impartial jury. (People v. Estorga (1928) 206 Cal. 81, 84, 273 P. 575.) In addition, "the peremptory challenge is not a constitutional necessity but a statutory privilege." (People v. Wheeler (1978) 22 Cal.3d 258, 281, fn. 28, 148 Cal.Rptr. 890, 583 P.2d 748.) Therefore, "there is no constitutional right to any particular manner of conducting the voir dire and selecting a jury so long as such limitations as are recognized by the settled principles of criminal law to be essential in securing impartial juries are not transgressed." (People v. Boulerice (1992) 5 Cal.App.4th 463, 474, 7 Cal.Rptr.2d 279 (Boulerice).)
Federal and state courts have held, however, that the Legislature may establish reasonable regulations or conditions on the right to a jury trial as long as the essential elements of a jury trial are preserved, including number of jurors (12), unanimity, and impartiality. (Boulerice, supra, 5 Cal.App.4th at p. 474, 7 Cal.Rptr.2d 279.) The purpose of Code of Civil Procedure former section 223 was to curb commonly known abuses during the voir dire process in criminal cases. (Boulerice, supra, 5 Cal.App.4th at p. 474, 7 Cal.Rptr.2d 279.)
As the People observe, therefore, the statute's distinction between criminal and civil voir dire is constitutional as long as it is rationally related to a legitimate state purpose under the rational relationship test, a test met here. (People v. Leung (1992) 5 Cal.App.4th 482, 496, 7 Cal.Rptr.2d 290 (Leung).) By enacting Code of Civil Procedure section 223, the voters sought to prevent abuse of the jury selection process in criminal cases. Prevention of abuse of a statutory right is a legitimate purpose, and the voters' action was aimed at achieving a legitimate purpose rationally related to the distinction made by the law. (Leung, supra, 5 Cal.App.4th at p. 496, 7 Cal.Rptr.2d 290.) Because the classification drawn by Code of Civil Procedure section 223 was rationally related to a legitimate state purpose, it did not deny defendant his equal protection rights under the California and United States Constitutions. (Leung, supra, 5 Cal.App.4th at p. 496, 7 Cal.Rptr.2d 290.)
b. Abuse of discretion in allowing group voir dire
Defendant next contends the trial court abused its discretion because it conducted group voir dire under Code of Civil Procedure former section 223, and did not use its discretion to engage in sequestered 593*593 and individual voir dire as also allowed under the statute. Section 223 requires that voir dire of any prospective jurors must, "where practicable," occur in the presence of other jurors, and applies "in all criminal cases, including death penalty cases." Under Code of Civil Procedure section 223, sequestration is left to the trial court's discretion, based on the court's determination that it is practicable to conduct voir dire in the presence of other prospective jurors. (Covarrubias, supra, 60 Cal.App.4th at p. 1172, 71 Cal.Rptr.2d 91.)
In support of his claim, defendant includes two affidavits, one from retired Superior Court Judge Norman Spellberg, and one from jury consultant Therese Waller, a psychologist and staff member of the National Jury Project. In the affidavits, the jury selection experts give their opinions on the potentially unfair effect of the statutory voir dire procedures, including the apprehension prospective jurors may feel when voir dire is conducted in the presence of other prospective jurors.
Although the court did indicate that group voir dire would save time and was convenient, given the courtroom size (and its inability to accommodate all prospective jurors at once), it did not, defendant contends, appropriately weigh the fact that the prospective jurors had been exposed to substantial pretrial publicity and another venire person's experience with an unsolved murder, both of which could desensitize the panel to its task of determining the appropriate penalty. In review of potential error under Code of Civil Procedure section 223, we apply the abuse of discretion review standard to the trial court's denial of defendant's request to conduct individual voir dire of prospective jurors. (Waidla, supra, 22 Cal.4th at pp. 713-714, 94 Cal.Rptr.2d 396, 996 P.2d 46.)
In considering defense counsel's claim that "every question of every juror should be outside the presence of the other jurors," the trial court expressly stated that it had discretion to order individual and sequestered voir dire if group voir dire was impracticable. The court specifically permitted the parties to prepare a jury questionnaire designed to streamline the voir dire process and to ensure that the pretrial publicity did not taint or bias the jurors' view of the case. The court admonished the jurors not to read any newspaper articles about the case and, even though some jurors did later read accounts of the trial, nothing suggests that the voir dire process was responsible for their actions. The court also offered to permit defense counsel to conduct private questioning of particular jurors when necessary and, in order to ensure the panel was impartial, conduct in-depth questioning of jurors who indicated they strongly believed in capital punishment.
Nor do the declarations discussed above assist defendant's argument. The declarations are general in character and do not point to problems in this case. In addition, the declarations do not undermine the constitutionality of Code of Civil Procedure section 223. The trial court's approach to 594*594 group voir dire, and its thoughtful questioning on specific points, were reasonable, and we find no abuse of discretion in the court's conduct. (See People v. Box (2000) 23 Cal.4th 1153, 1180-1181, 99 Cal.Rptr.2d 69, 5 P.3d 130 [trial court's reasonable approach to group voir dire upheld].)
c. Questioning of Prospective Juror C.
The trial court excused for cause a prospective juror who indicated on her questionnaire that a friend of hers had been murdered. She gave a detailed account of the murder, and the court ascertained that she could not be fair and impartial. Another prospective juror who did not serve on the panel mentioned that the first juror's story had influenced him. Defendant now claims that the prospective juror who was excused should have been questioned in private, and the court should have delivered a curative admonition to the other prospective jurors.
Defendant forfeited his right to raise any error because he never asked the court to question privately the prospective juror whose friend had been murdered and did not request an admonition for the remaining panel members. (People v. Sanchez (1995) 12 Cal.4th 1, 61-62, 47 Cal.Rptr.2d 843, 906 P.2d 1129 (Sanchez) [failure to object to court's questioning of prospective juror during voir dire forfeits claim].) On the merits, we find the trial court's careful questioning of the panel ensured the removal of the first prospective juror, and there is no indication that the second prospective juror's remarks that he was influenced by the account of the unrelated murder affected the other prospective jurors or undermined the court's ability to empanel a fair and impartial jury. (People v. Martinez (1991) 228 Cal.App.3d 1456, 1465-1467, 279 Cal.Rptr. 858 [using totality of circumstances test to evaluate effect of juror's remark on other prospective jurors].)
d. Prospective juror exposure to media and gender bias
Defendant next complains that he was denied his Sixth Amendment right to a fair and unbiased jury because the court refused to remove jurors who were exposed to the media and who were sensitive to issues involving gender bias. (See People v. Earp (1999) 20 Cal.4th 826, 852-853, 85 Cal.Rptr.2d 857, 978 P.2d 15 [trial court must conduct adequate voir dire to ensure defendant's constitutional right to an impartial jury].)
Initially, we note that defendant has forfeited the right to raise any alleged error because he failed to object on either basis during trial. (Sanchez, supra, 12 Cal.4th at pp. 61-62, 47 Cal.Rptr.2d 843, 906 P.2d 1129.) Even on the merits, we would reject the claims. The jury questionnaire that the parties provided the court fully explored potential media bias and whether the jurors could avoid media exposure. The questionnaire also probed the effect of media exposure on the panel and satisfied the court that the voir dire adequately probed the media question.
In addition, the trial court supplemented the questionnaire with follow-up questioning on potential media exposure. For example, the court's discussion with prospective Juror C. about the potential media influence on her views of the case proceeded as follows:
"[Court] Now that you have sat through this process before, do you feel you have heard something about the case, or heard something about the case beyond what is in this questionnaire answer?
"[Juror C.] I remember reading a little bit about the — it, when it happened.
595*595 "[Court] Would you be able to set aside what you might have read about it, and decide this case based on the evidence —
"[Juror C.] Yes.
"[Court] Received here?
"[Juror C.] Yes, I can.
"[Court] You heard the questions I have asked other jurors that may have read something about this. It is important that this case be decided with a fresh mind, based only on evidence that appears here in the courtroom.
"[Juror C.] Um-hum, yes.
"[Court] Okay. Even though you may have some vague recollection about reading something, the case can not be based on that. Would you be able to set that aside and listen to the evidence here?
"[Juror C.] Yes, I can."
The above colloquy is typical of the trial court's follow-up voir dire on media exposure, and adequately explored the potential for prejudice. After reviewing the entire voir dire of all prospective jurors, we are satisfied that the inquiry into possible media bias was adequate under the Sixth Amendment. We find no error here.
Defendant's additional claim that gender bias was not fully explored on voir dire is also without merit. First, defendant failed to preserve the issue by timely objection. (Sanchez, supra, 12 Cal.4th at pp. 61-62, 47 Cal.Rptr.2d 843, 906 P.2d 1129.) In addition, his claim that gender bias caused him to commit the murders is without merit. The jury had ample evidence that defendant's violent acts were not gender specific, and that his prior criminal activity included several acts of violence against men. For example, defendant committed acts of violence against male jail and prison personnel and threatened to harm male acquaintances, including Jess Martin, Mary Cagle's boyfriend. In addition, the fact that the jury may have been exposed to a newspaper article discussing defendant's apparent disdain for women serving in combat does not make his gender bias defense claim any more credible, and his attempt to blame Cagle for "inciting" his murder spree is nothing more than an attempt to refuse to take responsibility for the brutal murders. Because the case did not involve a credible gender bias claim, no need arose for the additional voir dire questioning on the subject.
e. Other voir dire related claims
Defendant also claims that the court inadequately conducted follow-up questioning of another prospective juror who was excused for cause because she strongly believed she could not impose the death penalty. The record is devoid of any objection from defendant or any question offered by defendant in an attempt to rehabilitate the juror, indicating defendant forfeited his right to raise the claim. In addition, as the record shows, the court's questioning of that juror revealed significant bias against the death penalty. She indicated she could never vote to impose the penalty, regardless of the evidence, and repeated similar sentiments when the court's questioning continued. Given the prospective juror's adamant bias against imposing the death penalty, we find no error in the removal for cause.
Defendant's claim that the prosecutor improperly exercised peremptory challenges to remove prospective jurors who opposed the death penalty or were neutral to the penalty has been considered and rejected in other cases. (See, e.g., People v. Pinholster (1992) 1 Cal.4th 865, 912, 4 Cal.Rptr.2d 765, 824 P.2d 571; People v. Ashmus (1991) 54 Cal.3d 932, 967-968, 2 Cal.Rptr.2d 112, 820 P.2d 214.)
596*596 2. Alleged Juror Misconduct
Defendant makes specific claims of error involving separate instances of juror misconduct during the penalty trial. We address the contentions seriatim. As to all claims, we find that even if misconduct did occur, it was not prejudicial.
a. Reading of newspaper articles
The jury commenced deliberation on Monday, November 9, 1992. After less than two hours, it recessed until the next morning. The jury then deliberated all that day, making several requests for clarification of legal issues and reading of testimony. The jury next deliberated on November 12. That day, the court received a note from the jury foreperson: "We are having great difficulty in reaching a unanimous decision. We would like further instruction on how to proceed." After discussion, the jury agreed to return the next day and attempt to resolve its differences.
On Friday, November 13, at 2:30 p.m., the jury sent another note to the court: "We can go no further. We are not unanimous in our decision." Before the court could act on the note, the jury sent another one at 2:55 p.m., stating: "Upon further discussion, we have decided to take one last vote on Monday morning." On Monday, November 16, the jury returned a verdict of death.
On December 22, defendant moved for a new trial. He alleged that a juror had read newspaper articles about the case during the trial and that two other jurors had considered an article before rendering the verdict. Jury Foreman M.G., in a supplemental declaration, identified the juror who said she had read articles about the case during trial as Juror R.D. Juror M.G. was "reasonably certain" that some jurors had discussed the article on November 16, before reaching the verdict, namely, Juror M.B. and either Juror S.S. or Juror P.B. The foreman also stated: "I am reasonably certain that it was Juror S.S. who pulled the newspaper article out of her purse."
These jurors submitted counterdeclarations. Juror R.D. denied reading any articles during the trial or deliberations. "I never told anyone that I was reading articles about the case during the trial." Juror M.B. also denied reading any articles. She did state that after the jury was discharged, she heard someone (she could not remember who) mention one article. Juror S.S. also stated that she had not read any newspaper articles or heard Juror P.B. discuss the weekend article in the jury deliberation room on November 16.
Juror S.S. did describe what occurred in a restaurant when the jury gathered after rendering the verdict: "After the verdict had been reached on Monday, November 16, the jury was waiting to be called into 597*597 the courtroom. Juror B.T. pulled a folded newspaper out of her purse. She stated someone had given her the paper, but she had not read it. [¶] I told [B.T.] I would like to read the article. [B.T.] handed me the folded paper and I put it in my purse. I did not read it at that time. [¶] After the verdicts were read, and the jury dismissed, many jurors met for breakfast. [¶] At the restaurant, I remembered the newspaper in my purse. I took the paper out and read the Saturday, November 14 article at that time."
Juror L.S. also filed a declaration stating she did not read any newspaper articles during the trial or deliberations. She did note that after the jurors had reached a verdict and were waiting to be called into the courtroom, Juror M.B. pulled an article about the case out of her purse that a coworker had given her sometime over the weekend. Juror L.S. interrupted and advised Juror M.B. not to discuss the article.
The new trial motion was argued on January 8, 1993. The court found that under a preponderance of the evidence "the defense has shown misconduct, in that the articles may have been read during the course of this trial." The court summarized the content of the articles, and concluded that in general, they consisted of neutral summaries of the trial events. In finding misconduct, the court never identified which incident or article influenced its conclusion. The court simply stated: "I feel that by a preponderance of the evidence that the defense has shown misconduct, in that articles may have been read during the course of this trial." The objective nature of the articles, and their seemingly innocuous content, however, led the court to conclude that defendant had not been prejudiced, even assuming the jurors read them. The court also noted that "[t]his was also a case in which the facts really were not in dispute." After assessing the entire case record, and determining the jury was conscientious, the court denied defendant's motion for a new trial.
b. General legal principles
Juror misconduct involving the receipt of extraneous information about a party or the case that was not part of the evidence received at trial, creates a presumption that the defendant was prejudiced by the evidence and may establish juror bias. (People v. Nesler (1997) 16 Cal.4th 561, 578, 66 Cal.Rptr.2d 454, 941 P.2d 87.) This is because "due process means a jury capable and willing to decide the case solely on the evidence before it." (Smith v. Phillips (1982) 455 U.S. 209, 217, 102 S.Ct. 940, 71 L.Ed.2d 78.) When, as here, the jury receives the evidence from an outside source, the verdict is set aside if there is a "substantial likelihood" of juror bias. (Nesler, supra, 16 Cal.4th at p. 578, 66 Cal.Rptr.2d 454, 941 P.2d 87.) Defendant may establish bias if (1) the extraneous material, judged objectively, "is so prejudicial in and of itself that it is inherently and substantially likely to have influenced a juror" (id. at pp. 578-579, 66 Cal.Rptr.2d 454, 941 P.2d 87) or (2) from the nature of the misconduct and surrounding circumstances, it is substantially likely a juror "was actually biased" against the defendant. (Ibid.) Because it is impossible to shield jurors from every contact that may influence their vote, courts tolerate some imperfection short of actual bias. (In re Hamilton (1999) 20 Cal.4th 273, 296, 84 Cal.Rptr.2d 403, 975 P.2d 600 (Hamilton).)
As noted, although the trial court determined that misconduct did occur, it concluded that any misconduct was not prejudicial because it did not influence the jurors to the defendant's detriment. The court relied on Juror M.G.'s initial 598*598 declaration specifying two possible times when jurors could have been exposed to information from an extraneous source. First, Juror M.G. accused Juror R.D. of informing him, during deliberations, that he had read "all of the articles that have come out" during the proceedings. Although Juror R.D. later denied reading the articles, the court resolved the apparent conflict between her declaration and Juror M.G.'s comments in defendant's favor.
In addition, Juror M.G. accused Jurors M.B. and S.S. of discussing an article, following their sentencing vote, "in a way that indicated that each of them had read the article prior to taking their final vote." As the People observe, Juror L.S.'s counterdeclaration absolved Juror M.B, and Juror S.S.'s counterdeclaration absolved Juror P.B. The court resolved the conflicting declarations in defendant's favor, after weighing all the evidence.
An appellate court will accept the trial court's determinations and findings on questions of historical fact if they are supported by substantial evidence. (In re Carpenter (1995) 9 Cal.4th 634, 646, 38 Cal.Rptr.2d 665, 889 P.2d 985 (Carpenter).) Because we find the evidence supporting defendant's allegations close, we agree with the trial court's finding of misconduct. The question whether the misconduct was prejudicial is a mixed one of law and fact, and is subject to an appellate court's independent determination. (Id. at pp. 658-659, 38 Cal.Rptr.2d 665, 889 P.2d 985.) Keeping these principles in mind, we review the trial court's finding that the articles, even if read, were not prejudicial.
c. Prejudice analysis
Defendant contends that each of the articles "skews and telescopes" the evidence and testimony presented toward the rendering of a verdict of death. He complains that the articles were "inherently prejudicial," and the fact that several jurors were aware of them and filed dishonest affidavits in response to the court's questions regarding their reading of the articles, should have led the trial court to grant his new trial motion.
Defendant initially discussed two separate articles appearing October 27, 1992, and November 14, 1992. The first article reported on Mary Cagle's testimony, and is objective and contained no information the jurors did not hear themselves in the courtroom. Nothing in the article's description of Cagle's testimony harbored the potential for influencing a juror who might read it. (See Hamilton, supra, 20 Cal.4th at p. 301, fn. 21, 84 Cal.Rptr.2d 403, 975 P.2d 600.)
The second article described defendant's behavior while listening to the tape of his threats to Cagle. Defendant complains that the article reports that while listening to the tape, he was "slightly smiling," "tapping his fingers," and "stroking his beard." As the People point out, however, the article describes a momentary change in facial expression, nothing else. Defendant fails to note that the jurors observed, firsthand, his change of expression, and it is doubtful that his brief change in expression influenced the jury's overall impression of the defendant. Although the article briefly referred to the fact that defendant did not believe women should engage in combat, the jury was already aware of defendant's views on women and combat. We find no substantial likelihood that the article influenced the jury negatively.
Two additional newspaper articles, printed on October 23, and November 10, 1992, described the opening and closing arguments. Defendant claims the summaries focused on his violent past, and contained gruesome details of his murders, but so did the arguments. The articles 599*599 contained nothing significant that the jury did not hear themselves. They contained no extraneous information. We conclude the trial court correctly found that the information they disclosed was not prejudicial.
Other articles reporting on defendant's statement that he believed he would be sentenced to death, and reporting the events at trial, were evenhanded in their discussions and noninflammatory. No evidence exists that any of the jurors read these articles, and even if they did, there is no evidence the jurors exposed to the articles discussed the information with the other jurors. (Hamilton, supra, 20 Cal.4th at p. 301, fn. 21, 84 Cal.Rptr.2d 403, 975 P.2d 600.) We have held that reading a newspaper account of the trial is not sufficient to create a substantial likelihood of prejudice, and we find none here. (Ibid.; Carpenter, supra, 9 Cal.4th at pp. 656-657, 38 Cal.Rptr.2d 665, 889 P.2d 985.)
Defendant's remaining complaint about the trial court's no prejudice finding is that the court failed to hold an evidentiary hearing "to resolve any conflicts that required resolution and to permit counsel to elicit further details relevant to the issue of prejudice." The details defendant seeks "existed in all of the jurors' declarations submitted in defendant's motion for a new trial and the prosecution's opposition to the motion."
As the People observe, although defendant's initial showing satisfied the evidentiary standard for proving that misconduct occurred, it was insufficient to require the trial court to conduct an evidentiary hearing. The court gave defendant the benefit of the doubt in interpreting the statements made in the declarations in favor of finding misconduct, and conducting an evidentiary hearing would not have changed the misconduct finding.
In addition, the evidence supporting the death verdict was overwhelming. Defendant pleaded guilty to the murders and admitted the special circumstance allegations. The proof of his prior violent acts was extensive, and there was no evidence that any offending juror discussed the newspaper articles with any innocent juror. (Hamilton, supra, 20 Cal.4th at p. 301, fn. 21, 84 Cal.Rptr.2d 403, 975 P.2d 600.) We find no reason to overturn the trial court's finding that the jurors' exposure to newspaper articles reporting on defendant's trial did not prejudice the verdict.
3. Juror's Request to Speak with Defendant
After the defense completed its case on November 5, 1992, the trial court excused the jury until Monday morning, November 9, for final arguments. Once the jurors left the courtroom, the court revealed to counsel that Juror M.B. had sent it a note earlier that afternoon that stated: "I would like to talk to the defendant at the close of trial in the presence of the attorney and Your Honor." Asked to explain the note, the juror indicated "it has nothing to do with me, as a juror." The juror also told the court that her inquiry was related to her work as a missionary, and that she "would just like to talk to [defendant], person to person, and maybe say a prayer with him." Juror M.B. also revealed that Jurors S.S. and R.D. had expressed the same desire to meet with defendant, although the jurors had not discussed the case among themselves. "[T]his was just a question that was brought up: Was it ever permissible for the jurors to talk to the defendant after the trial was over?" During the discussion, defense counsel never objected to Juror M.B.'s request, but stated that "I think we need to get together and work out a specific question to ask each of them. Because the one that you said here about the moral or humanitarian, it could kind of impinge on what they are told in the instruction. There might be some divergence there. I think we have to be extremely careful of our words." Before leaving the courtroom, Juror M.B. told the court that she promised to follow the court's directions about how to evaluate the case.
600*600 The following Monday, the trial court questioned Jurors R.D. and S.S. Juror R.D. indicated she simply wondered whether jurors could say "hi" to defendant. Juror S.S. stated she had been a bystander when the discussion about communication with defendant occurred, and she did not desire to speak with him.
Defendant contends "that the manner in which the trial court conducted its bias inquiry of Juror M.B. compromised the juror's ability to be impartial and rendered her unable to fulfill her juror duties." He claims that the court's questioning effectively nullified any sympathy she may have felt toward defendant by alerting her to the fact that her note may have compromised her ability to impose the death penalty.
By failing to object, defendant forfeited his claim. (Evid.Code, § 353; see Saunders, supra, 5 Cal.4th at pp. 589-592, 20 Cal.Rptr.2d 638, 853 P.2d 1093.) We also find the claim lacks merit. Nothing indicates that Juror M.B.'s note contained information that "jurors had commenced their deliberations or had formed any tentative conclusions regarding the appropriate penalty." (People v. Anderson (1990) 52 Cal.3d 453, 481, 276 Cal.Rptr. 356, 801 P.2d 1107.) The note indicated the juror was concerned only with defendant's spiritual well-being. Because the note did not raise the possibility of juror misconduct, the court had no duty to conduct an inquiry into the juror's motives. (People v. Barnett (1998) 17 Cal.4th 1044, 1117, 74 Cal.Rptr.2d 121, 954 P.2d 384.)
4. Shield Law Claim
Following defendant's arrest, William Hutchinson, a reporter for the Antioch Daily Ledger Post Dispatch, interviewed defendant about the charges pending against him. On March 12, 1991, the newspaper published the interview, entitled I'll Get Death Penalty. (Hutchinson, I'll Get Death Penalty, Antioch Daily Ledger-Post Dispatch (Mar. 12, 1991), p. 1.) According to Hutchinson, defendant told him that he expected to be convicted of the crimes, and "`I figure they will find me guilty because they've got a lot of evidence against me.'" (Id. at p. 1.) The article also quoted defendant as saying, "`I figure I'll get the death penalty. I knew that before any of this happened. But like I said, I weighed all that before I did anything.'" He also commented that "`if you push my button, then whatever happens, happens.'" (Id. at p. 12.)
Prior to the penalty trial, the prosecution subpoenaed Hutchinson as a witness. Hutchinson and the newspaper filed a motion to quash the subpoena, on the ground that the information the prosecution sought was protected by the California shield law (Cal. Const., art. I, § 2, subd. (b); Evid.Code, § 1070). The shield law, as explained further below, provides news-persons, including reporters who are engaged in legitimate journalistic pursuits, protection against compulsory disclosure of the information they acquire in gathering news. (Delaney v. Superior Court (1990) 50 Cal.3d 785, 798, 268 Cal.Rptr. 753, 789 P.2d 934 (Delaney); Cal. Const., art. I, § 2, subd. (b) [repeats language of Evid.Code, § 1070 immunity and elevates protection to constitutional status]; Evid. Code, § 1070 [immunity applies to any unpublished information obtained in gathering, receiving, or processing information for communication to public].)
A hearing on the motion to quash was held on October 27, 1991. The prosecutor told the court that "all the People would seek to elicit from Mr. Hutchinson is an affirmation as to whether or not [defendant] made certain statements which are attributed to him in the article." The prosecution noted that it did not seek any unpublished information or Hutchinson's notes.
The prosecutor then asked Hutchinson whether defendant had made the comments attributed to him in the March 12 article. Hutchinson replied that although he could not remember exactly 601*601 what defendant told him during the interview, "at the time I wrote it, I believed it to be accurate." Defense counsel then moved to strike Hutchinson's proposed testimony "[o]n the grounds I can't adequately cross-examine him."
The court stated that Hutchinson's testimony would be allowed, but that it was concerned with defendant's cross-examination rights. When asked to identify areas of potential cross-examination, defense counsel replied, "I want to know every single thing about this conversation from start to finish. If he had a tape recording of it, that would be great. If he doesn't, then I want to elicit as much information as I can get; short of there being some recording of every single statement that was made, every question that was asked."
The court continued the hearing after learning that Hutchinson had not taped the interview. Defense counsel objected to any in camera hearings that counsel could not attend, commenting, "I am asserting now that this Court can not, in any way, shape or form make a decision about what's useful to the defense in this case, Your Honor. It's too complicated a defense."
The court then granted defendant's request for an in camera hearing, with defendant and his counsel present. The court conducted the in camera hearing without the prosecutor, in order to explore what would assist in defendant's cross-examination. Defendant told the court that he sought Hutchinson's notes "and the following information: (1) The context of [defendant's] statements; (2) the flow of conversation; (3) the specific words [defendant] used; (4) the intensity of [defendant's] voice; (5) how long [defendant] spoke about matters which in his mind justified his action without interruption; (6) whether [defendant] presented his justifications logically; and (7) whether [defendant] evidenced a strong belief in what he was saying."
The court next held an in camera hearing with Hutchinson, his attorneys, the prosecutor, and defense counsel present. During the hearing, Hutchinson indicated he had no independent recollection of the interview, except the information provided in his notes. The notes indicated that defendant made the reported statements to Hutchinson, appeared calm and spoke in a monotone, discussed very seriously his life philosophy, did not appear delusional, presented his arguments logically, and believed what he was saying.
The court determined that on the basis of Hutchinson's in camera testimony, it would allow the defense to cross-examine Hutchinson on his observations of defendant's demeanor, mental status, and the manner in which defendant answered questions. Hutchinson's notes would not be produced.
The court allowed the defense to question Hutchinson outside the jury's presence in order to determine the scope of his potential trial testimony and whether he would rely on the shield law. Hutchinson invoked the shield law as to all questions regarding defendant's demeanor during the interview. The trial court found the reporter in contempt for his refusal to answer the questions initially. The court suggested that Hutchinson answer the questions that were covered in the protected notes "independent of the notes." Hutchinson eventually spoke on the length of his interview with defendant and whether defendant smiled. The trial court then discharged the contempt citation.
During trial, Hutchinson testified for the prosecution (with the jury present) that he had written the March 12 article a day or so after interviewing defendant. He noted that defendant "is not a man who does things impulsively and he thinks beforehand of the consequences of his actions." According to Hutchinson, defendant told him: "Let's say, I consider everything before 602*602 I do it. I weigh all the angles, make my decision and I go ahead and do it." Hutchinson also recalled that defendant told him in reference to the fact that he shaved his head shortly after the murders, "I wanted to change my looks. I wasn't done. I didn't intend for them to catch me for awhile." "I had some other things I wanted to do. Getting caught wasn't one of them. At least getting caught so quick wasn't part of my plan." In reference to Janice Butler, defendant told Hutchinson, "she crossed the line. I told her if she ever got between me and my wife, they'd find her body out back in Brentwood." Defendant made similar comments regarding his ex-wife, Mary Cagle, his belief that "If I draw a line and tell you not to cross that line, you've got everything coming to you if you cross it because I'm not going to draw two lines."
On cross-examination, Hutchinson testified that throughout the interview, defendant spoke in a stern voice and was calm, and that at times his eyes stared intently through the glass. Hutchinson could not recall the order in which defendant made the statements the article attributed to him, but believed that the statements, though paraphrased, were accurate. Hutchinson noted that his "definition of someone who is calm would be someone who is lucid, rational, someone who isn't jumping around or delusional," although he did acknowledge to defense counsel that a person could appear calm but be irrational at the same time. Dr. Kormos later testified that Hutchinson's account of the interview would not change his diagnosis.
b. Failure to produce interview notes
Defendant's principal complaint is that the trial court abused its discretion in failing to require Hutchinson to produce his interview notes and limiting his responses to describing defendant's demeanor and perceived mental state. Defendant claims the interview notes were essential to support his mental disorder defense and necessary for his counsel to show that his statements "were said in a context and manner to validate [defendant's] psychiatric disorder and to provide evidence of a mitigating factor for the jury to consider in rendering a verdict." We disagree.
As both defendant and the People agree, the standard for determining whether a defendant may compel disclosure of information otherwise protected under the shield law was set forth in Delaney, supra, 50 Cal.3d 785, 268 Cal.Rptr. 753, 789 P.2d 934. Delaney held that the law protects a reporter from contempt for refusal to disclose either unpublished information or the source of the information, whether published or unpublished. (Id. at pp. 796-797, 268 Cal.Rptr. 753, 789 P.2d 934.) Delaney observed that "a newsperson's protection under the shield law must yield to a criminal defendant's constitutional right to a fair trial when the newsperson's refusal to disclose information would unduly infringe on that right." (Id. at p. 793, 268 Cal.Rptr. 753, 789 P.2d 934.) As we have observed in several cases, "In order to compel disclosure of information covered by the shield law, the defendant must make a threshold showing of a reasonable possibility that the information will materially assist his defense. The showing need not be detailed or specific, but it must rest on more than mere speculation." (People v. Cooper (1991) 53 Cal.3d 771, 820, 281 Cal.Rptr. 90, 809 P.2d 865, paraphrasing Delaney, supra, 50 Cal.3d at pp. 809-813, 268 Cal.Rptr. 753, 789 P.2d 934; see also Sanchez, supra, 12 Cal.4th at p. 53, 47 Cal.Rptr.2d 843, 906 P.2d 1129.) If the threshold showing is made, the court then balances various factors in determining whether it must compel disclosure of 603*603 the information. (Delaney, supra, 50 Cal.3d at pp. 809-813, 268 Cal.Rptr. 753, 789 P.2d 934.) These factors include whether the information is confidential or sensitive, the interests that the shield law protects, the importance of the information to the defendant, and, in some cases, whether there is an alternative source for the information. (Id. at p. 813, 268 Cal.Rptr. 753, 789 P.2d 934.)
We have observed that "[a]lthough Delaney did not and could not specify what evidence would meet its threshold test, the court did observe that the defendant need not prove evidence he sought to discover would lead to his exoneration and that `the defendant's showing need not be detailed or specific, but it must rest on more than mere speculation.'" (Sanchez, supra, 12 Cal.4th at p. 56, 47 Cal.Rptr.2d 843, 906 P.2d 1129, quoting Delaney, supra, 50 Cal.3d at p. 809, 268 Cal.Rptr. 753, 789 P.2d 934.) One example in capital cases where we have recognized the evidence might meet the threshold test and is necessary to a defendant's constitutional right to a fair trial is in his ability to "establish mitigating circumstances relevant to the penalty determination." (Delaney, supra, 50 Cal.3d at p. 809, 268 Cal.Rptr. 753, 789 P.2d 934.)
Using Delaney's threshold test, defendant claims Hutchinson's notes of the March 12 interview were essential to validate defendant's psychiatric disorder and provide evidence of a mitigating factor for the jury to consider in favor of a life sentence.
The evidence defendant asserts would have materially assisted his mental state defense consists of nothing more than mere speculation on his part. Defendant has made no attempt to show that the notes reveal anything different from Hutchinson's testimony, and the record does not suggest the notes contain anything of substance that the jury had not already heard. In addition, the only matters in the notes to which Hutchinson did not testify (whether defendant was promised confidentiality and the interview's duration) do not bear on defendant's mental state at the time of the murders. Dr. Kormos did testify that nothing in Hutchinson's testimony changed or contradicted his diagnosis of paranoid personality. But defendant has failed to meet Delaney's threshold test, and we find no abuse of discretion in the trial court's use of the shield law in protecting Hutchinson's notes. Because defendant has not met Delaney's threshold test, we need not balance the Delaney factors in order to determine whether disclosure is required. (Delaney, supra, 50 Cal.3d at p. 813, 268 Cal.Rptr. 753, 789 P.2d 934.)
c. The in camera proceeding
Defendant contends that the trial court's determination that nothing existed in Hutchinson's notes to materially assist his defense was the result of a constitutionally defective in camera hearing. Claiming Hutchinson's notes were "neither confidential nor sensitive," defendant asserts that the notes were essential to establishing his mental health defense because they contained the demeanor evidence the defense sought to procure to demonstrate his mental state.
Again, defendant overlooks the fact that Hutchinson did testify as to defendant's demeanor and mental state during the interview. The fact that the court held an in camera hearing to determine the extent of Hutchinson's reliance on the shield law in no way affected the gist of his later testimony as to defendant's interview demeanor.
In a related argument, defendant claims that the trial court's decision to hold an in camera hearing excluding both defendant 604*604 and his counsel denied him his constitutional right to be present and to assistance of counsel. He also claims that application of the shield law denied him his right to the "entirety of the interview," thwarting his ability to present a defense and obtain a fair trial. (See Evid.Code, § 356.) Defendant again fails to show how the in camera proceeding or the protection of the unpublished notes in any way negatively influenced his ability to present a defense or receive assistance from counsel, or in any way changed his defense or the context of Hutchinson's testimony. (Sanchez, supra, 12 Cal.4th at p. 58, 47 Cal.Rptr.2d 843, 906 P.2d 1129.)
d. Additional claims
Defendant also claims that the failure to produce Hutchinson's interview notes denied him his right to confront and cross-examine the reporter, his right to present a defense, a fair and reliable penalty phase trial, compulsory process, and his right to effective assistance of counsel. As the facts show, Hutchinson was cross-examined on his testimony regarding the interview, and defendant does not establish that further cross-examination would have revealed additional information or otherwise influenced the jury's verdict. No evidence suggests Hutchinson's testimony prejudiced the presentation of defendant's case.
5. Exclusion of Evidence
Defendant complains that the trial court abused its discretion when it excluded evidence, and in so doing denied him his Sixth, Eighth, and Fourteenth Amendment rights to present a penalty phase defense. He specifically refers to three types of evidence: (1) the proposed testimony of prison expert James Park concerning Park's anti-death-penalty beliefs; (2) the proposed testimony of Mary Cagle's former boyfriend, Jess Martin, as to Cagle's alleged bias as a witness; and (3) Martin's proposed testimony about Cagle's alleged manipulative behavior. In each instance, defense counsel offered proof as to the evidence he sought to introduce. (See People v. Livaditis (1992) 2 Cal.4th 759, 778, 9 Cal.Rptr.2d 72, 831 P.2d 297 [requiring offer of proof].) We find no abuse of discretion and no violation of defendant's constitutional rights in the trial court's decision to exclude the testimony.
As the People observe, defendant's Sixth Amendment right to present a defense includes the right not to have the trial court interfere with a defendant's ability to receive a fair trial. The Eighth and Fourteenth Amendments require the jury in a capital case to hear any relevant mitigating evidence that the defendant offers, including "any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." (Frye, supra, 18 Cal.4th at p. 1015, 77 Cal.Rptr.2d 25, 959 P.2d 183.) In turn, the court does have the authority to exclude, as irrelevant, evidence that does not bear on the defendant's character, record, or circumstances of the offense. (Ibid.) "[T]he concept of relevance as it pertains to mitigation evidence is no different from the definition of relevance as the term is understood generally." (Id. at pp. 1015-1016, 77 Cal.Rptr.2d 25, 959 P.2d 183.) Indeed, "excluding defense evidence on a minor or subsidiary point does not impair an accused's due process right to present a defense." (People v. Fudge (1994) 7 Cal.4th 1075, 1103, 31 Cal.Rptr.2d 321, 875 P.2d 36 (Fudge).)
a. James Park's testimony
James Park, a former correctional employee and prison condition expert, testified for the defense about defendant's likely ability to adjust well in a maximum 605*605 security prison if he were sentenced to life without parole. He was asked on cross-examination whether he supported imposition of the death penalty. He replied that he did not. On redirect, defense counsel asked why he was opposed to the penalty, and the court sustained the prosecution's objection to the question, under Evidence Code section 352, finding the information irrelevant. The trial court correctly concluded that Park's views on the death penalty were irrelevant to defendant's ability to adjust to prison life or any other factor in mitigation.
b. Jess Martin's testimony
During a sidebar conference outside the presence of the jury, defense counsel sought to proffer the testimony of Jess Martin, Mary Cagle's former boyfriend, (1) that Cagle asked Martin to retaliate against defendant's family after the murders, in an effort to show Cagle's testimony was biased, and (2) that Cagle was prone to manipulating men and committing welfare and other "scams" in order to get her way. The court properly excluded the evidence as irrelevant. (Evid.Code, § 352.)
Martin's proposed testimony about Cagle's behavior after the murders was cumulative and did not help further explain defendant's character, the facts of the offense, or defendant's prior record. (Frye, supra, 18 Cal.4th at pp. 1015-1016, 77 Cal.Rptr.2d 25, 959 P.2d 183.) The jury had been permitted to view Cagle's record, and Dr. Kormos had testified that defendant's paranoid personality disorder was triggered in part by Cagle's manipulative tendencies. In addition, there is no indication that Cagle's alleged scams had anything to do with defendant or that defendant was even aware of her behavior when he committed the three murders. The court's exclusion of these minor or subsidiary points did not amount to an abuse of discretion. (Fudge, supra, 7 Cal.4th at p. 1103, 31 Cal.Rptr.2d 321, 875 P.2d 36.)
6. Alleged Instructional Errors — CALJIC No. 8.85
The jury was given the standard instruction on aggravating and mitigating factors under CALJIC No. 8.85 and its requirement that the jury, in determining penalty, shall be guided by and "shall consider all of the evidence which has been received during any part of the trial of this case." Defendant complains that, for several reasons, the court deprived him of his right to due process and a reliable sentence when it instructed the jury as to the statutory sentencing factors. As will appear, we have repeatedly considered and rejected defendant's claims in previous opinions, and we see no reason to reconsider those decisions in light of defendant's arguments.
a. Argument that CALJIC No. 8.85 is misleading
Defendant first claims the instruction is misleading because it required the jury to aggravate "the sentence upon the basis of statutory sentencing factors which, as a matter of state law, were relevant solely as mitigators." In particular, defendant complains that CALJIC No. 8.85, repeating section 190.3, factors (d) to (h), and (j), should have been deleted because it misled the jury into believing that the absence of a mitigating factor becomes a factor in aggravation and the jury would be confused by the inconsistent scheme of aggravating and mitigating factors, potentially giving greater weight to the absence of mitigating factors.
We have considered and rejected the identical contention in several recent cases, and no evidence suggests the jury was unable to properly apply the instruction. 606*606 (See, e.g., People v. Mendoza (2000) 24 Cal.4th 130, 191, 99 Cal.Rptr.2d 485, 6 P.3d 150 (Mendoza); People v. Kipp (1998) 18 Cal.4th 349, 380-381, 75 Cal.Rptr.2d 716, 956 P.2d 1169 (Kipp).) In addition, the jury was also given defendant's requested supplemental instructions that limited the jurors' consideration to only those aggravating factors that actually existed: "You have been read the list of aggravating circumstances which the law allows you to consider if you find they have been established as required. These are the only aggravating circumstances that you may consider. You are not allowed to take into account any other facts or circumstances as the basis for deciding that the death penalty would be appropriate in this case." There is no indication the jury misapplied CALJIC No. 8.85, as defendant suggests.
b. Factors (d) and (k)
CALJIC No. 8.85 factor (d), reflecting section 190.3, factor (d), asks the jury to consider, if applicable, "Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance." Defendant complains that the court erroneously refused to modify the factor in order to inform the jury that it should consider "any mental or emotional disturbance" or delete the factor altogether so that the jury would give due weight to defendant's mental illness. The trial court also rejected defendant's request to modify the catchall factor in section 190.3, factor (k), to include 10 items described by Dr. Kormos as the possible causes of defendant's mental illness.
As the People observe, the court did not err. CALJIC No. 8.85, as given, permitted the jury to consider defendant's mental illness even though it might have amounted to an extreme condition, and defendant is not entitled to a pinpoint instruction. (People v. Jenkins (2000) 22 Cal.4th 900, 1054-1055, 95 Cal.Rptr.2d 377, 997 P.2d 1044 (Jenkins).) In addition, in refusing to modify the wording of section 190.3, factor (k) as reflected by CALJIC No. 8.85, factor (k), the court placed no improper limitation on mitigating evidence. Under the instruction as given, the jury could consider any circumstance that extenuated the gravity of the crime, including Dr. Kormos's testimony on the causes of defendant's mental illness. (See Jenkins, supra, 22 Cal.4th at p. 1055, 95 Cal.Rptr.2d 377, 997 P.2d 1044.)
c. Failure to instruct the jury not to double-count aggravating factors
Defendant also complains that the court's refusal to modify CALJIC No. 8.85, factor (a), reflecting section 190.3, factor (a), the circumstance of the offense, led the jury to double count that factor by inviting the jury to count the special circumstance he admitted twice, "once by itself, and once as a circumstance of the crime." The trial court rejected defendant's proposed alternative instruction telling the jury to "not consider an aggravating factor if you have already considered the facts surrounding it as a circumstance of the crime." He adds that the prosecutor "implicitly coaxed the jury to count the special circumstance twice."
Defendant's argument has no merit. As we held in People v. Ayala, supra, at page 289, 99 Cal.Rptr.2d 532, 6 P.3d 193, the possibility the jury would double-count the aggravating factors is remote, in the absence of prosecutorial misconduct. Here, the prosecutor's limited explicit reference to section 190.3, factor (a) was that the items under the factor "as the [c]ourt has instructed you, are all considered as one big aggravating factor." There is no reason for us to believe the prosecutor's brief 607*607 reference to factor (a) in any way misled the jury.
d. Failure to admonish the jury
As discussed ante, 21 Cal.Rptr.3d at pp. 595-597, 101 P.3d at pp. 495-496, during the jury's first and only weekend recess after the first week of trial, several jurors might have read and shared newspaper articles about defendant's crimes. We concluded that although there may have been misconduct, it did not prejudice the verdict. Defendant also complains that the trial court's failure to admonish the jury prior to its weekend recess, that it should not read newspapers or consult outside sources, led the jurors to read the articles related to the crimes, and prejudiced the penalty verdict. (§ 1122, subd. (b) [requiring the court, at each adjournment, to admonish jury not to converse among themselves or anyone else on any subject connected with trial].)
Initially, we note that defendant failed to object to the court's omission, and therefore forfeited the claim on appeal. (People v. Campbell (1976) 63 Cal.App.3d 599, 609-610, 133 Cal.Rptr. 815.) In addition, the jury was admonished several times (while receiving jury instructions, and after closing and rebuttal arguments) that it must not consult reference works or persons for additional information, must not discuss the case with any person other than a juror after the case is submitted, and must not seek or receive any evidence outside the evidence that was presented at trial. The jury was also told that the Hutchinson newspaper article, which was an exhibit in the case, was not in evidence and that "Headlines on a newspaper are not evidence." Also, as we have observed, although the jurors should not have referred to any articles about the crimes, the fact that some jurors might have been exposed to media reports did not prejudice the penalty verdict. Declarations from several jurors satisfied the court that the exposure, if any, was limited in nature, and not prejudicial to a fair verdict. Thus, although the court should have repeated the admonition not to consult outside sources prior to the final weekend recess, we do not find the omission was prejudicial. (See, e.g., People v. Heishman (1988) 45 Cal.3d 147, 174, 246 Cal.Rptr. 673, 753 P.2d 629 [failure to admonish jury at time of adjournment not grounds for reversal unless the defendant shows prejudice resulting from the omission].)
7. Motion to Modify the Verdict
Following the death verdict, the trial court denied defendant's motion to modify the verdict under section 190.4, subdivision (e). Defendant complains the court erred in refusing to modify the verdict by failing to consider defendant's mental illness as the causative factor for the murders and in mitigation the fact that he pleaded guilty. During the court's consideration of defendant's motion, the court observed that "I am independently reweighing the evidence, trying to determine whether the weight of the evidence supports the jury's findings and the verdict." The court then described the defense evidence in detail and what aggravating factors it deemed important. After concluding the aggravating factors outweighed mitigating ones, the court denied the modification motion.
We find the court's explanation for denying the motion sufficient. The court reasonably found the evidence of defendant's mental condition did not influence his conduct. (Welch, supra, 20 Cal.4th at p. 775, 85 Cal.Rptr.2d 203, 976 P.2d 754.) It also did not accept defendant's assertion that he pleaded guilty in order to mitigate his sentence, and the court's failure to refer to that fact was not error. (See People v. 608*608 Memro (1995) 11 Cal.4th 786, 885, 47 Cal.Rptr.2d 219, 905 P.2d 1305.)
8. Constitutionality of Death Penalty
Defendant makes familiar arguments that the 1978 death penalty scheme is unconstitutional. We have repeatedly rejected the claim that the statute does not meaningfully narrow the class of persons eligible for the penalty. (Mendoza, supra, at p. 191, 99 Cal.Rptr.2d 485, 6 P.3d 150.)
Defendant also asserts that section 190.3, factor (a) is impermissibly vague because the phrase "circumstances of the crime" can be interpreted too broadly to encompass any fact. The United States Supreme Court has rejected the identical claim that factor (a) is unconstitutionally vague. (Tuilaepa v. California (1994) 512 U.S. 967, 976, 114 S.Ct. 2630, 129 L.Ed.2d 750.) This court has also found that "the purpose of the sentencing selection factors set forth in section 190.3 is to guide the jury's discretion in deciding the appropriate penalty, not to distinguish a death-worthy case from one that is not." (Mendoza, supra, 24 Cal.4th at p. 192, 99 Cal.Rptr.2d 485, 6 P.3d 150.)
In addition, defendant complains that the court should require the jury to make written findings or achieve unanimity as to aggravating circumstances. We have previously rejected the identical claim. (Kipp, supra, 18 Cal.4th at p. 381, 75 Cal.Rptr.2d 716, 956 P.2d 1169.)
Other claims defendant makes are largely repetitive of earlier claims, or have been rejected in numerous cases. We touch on his key arguments. The court need not have instructed the jury that aggravating circumstances must outweigh mitigating circumstances beyond a reasonable doubt, and jury unanimity on the findings was not required. (Mendoza, supra, 24 Cal.4th at p. 191, 99 Cal.Rptr.2d 485, 6 P.3d 150.)
Intercase proportionality review is not required. (See People v. Crittenden (1994) 9 Cal.4th 83, 157, 36 Cal.Rptr.2d 474, 885 P.2d 887.) Conducting intracase proportionality review does not assist defendant's cause because the penalty is proportionate to his culpability; he committed three brutal first degree murders of defenseless victims. (See Sanchez, supra, 12 Cal.4th at pp. 84-85, 47 Cal.Rptr.2d 843, 906 P.2d 1129.) Use of unadjudicated criminal activity during the penalty phase does not violate due process or lead to an unreliable verdict. (People v. Carpenter (1999) 21 Cal.4th 1016, 1060-1061, 90 Cal.Rptr.2d 607, 988 P.2d 531.) The presence of certain adjectives in section 190.3 ("extreme" in factor (d) and "substantial" in factor (g)) does not impermissibly limit consideration of mitigating factors in violation of the federal Constitution. (Jenkins, supra, at pp. 1054-1055, 95 Cal.Rptr.2d 377, 997 P.2d 1044.) The court need not designate what mitigating factors the jury may consider as mitigating. (People v. Carpenter, supra, 21 Cal.4th at pp. 1063-1064, 90 Cal.Rptr.2d 607, 988 P.2d 531.)
9. International Law Claim
Defendant's final contention is that international law compels the elimination of the death penalty. We have previously concluded, however, that international law and treaties do not compel elimination of the death penalty in this state, when it has been rendered in accordance with state and federal constitutional and statutory requirements. (People v. Hillhouse (2002) 27 Cal.4th 469, 511, 117 Cal.Rptr.2d 45, 40 P.3d 754; Jenkins, supra, 22 Cal.4th at p. 1055, 95 Cal.Rptr.2d 377, 997 P.2d 1044.)
609*609 III. DISPOSITION
We affirm the judgment.
WE CONCUR: GEORGE, C.J., KENNARD, BAXTER, WERDEGAR, BROWN, and MORENO, JJ.
 All further statutory citations are to the Penal Code unless otherwise indicated.
 As the People observe, the record is silent on whether defendant ever actually attempted suicide, although correctional personnel testified that defendant did hoard drugs, and that someone in prison had voiced a concern that the drugs could be used for an overdose.
 We recently held that when officers conduct a warrantless search unaware of a parole search condition, the condition cannot be used to make the search valid. (People v. Sanders (2003) 31 Cal.4th 318, 333, 2 Cal.Rptr.3d 630, 73 P.3d 496.) That is not the case here, as the officers were aware that defendant was on probation and subject to a search condition at the time of their search.
 We have also rejected defendant's claim that a search conducted under a search condition is invalid if the police, rather than a probation officer, conducts the search. (See In re Tyrell J. (1994) 8 Cal.4th 68, 80, fn. 2, 32 Cal.Rptr.2d 33, 876 P.2d 519.) We see no reason to revisit the issue here.
 Although not applicable to the present matter, we do note that in 2000 the Legislature amended Code of Civil Procedure section 223 in order to allow counsel in criminal cases to question prospective jurors without a good cause showing. (Stats.2000, ch. 192, § 1.)
 The People initially assert that defendant forfeited his objections to the trial court's group voir dire because defense counsel only complained about the pace at which voir dire would proceed and requested that voir dire should be conducted in private. Because defendant's claim involves voir dire generally through the question of practicability, we conclude defendant adequately preserved the question on appeal. (See People v. Saunders (1993) 5 Cal.4th 580, 590, 20 Cal.Rptr.2d 638, 853 P.2d 1093 (Saunders) [general waiver doctrine encourages defendants to bring potential claim of error to trial court's attention].)
 Juror M.G.'s supplemental declaration contained several other comments, including additional references to juror misconduct. "During the course of deliberations in this case, the content of newspaper articles was never discussed by the jury, as far as I can recall." The one juror who, until the final vote, held out for life imprisonment, never mentioned the newspaper articles during the trial, and there is no evidence to suggest that the articles allegedly read by other jurors influenced the holdout juror's eventual willingness to impose the death penalty. Defendant contends that this portion of the supplemental declaration must be ignored because it violates Evidence Code section 1150's prohibition against allowing a court to consider a juror's mental processes in reaching the verdict. We do not find, however, the testimony of the juror holdout to be anything other than a statement of an objective fact, and it does not concern the mental processes by which the verdict was determined. (See People v. Steele (2002) 27 Cal.4th 1230, 1261, 120 Cal.Rptr.2d 432, 47 P.3d 225.)
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People v. McNeal, 46 Cal. 4th 1183 - Cal: Supreme Court 2009ReadHow citedSearch
People v. McNeal, 46 Cal. 4th 1183 - Cal: Supreme Court 2009
46 Cal.4th 1183 (2009)
THE PEOPLE, Plaintiff and Respondent,
TIMMIE LANCE McNEAL, Defendant and Appellant.
Supreme Court of California.
July 9, 2009.
1187*1187 Jamie L. Popper, under appointment by the Supreme Court, and Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.
Darryl W. Genis for California DUI Lawyers Association, David Stanford, Marta Gajewski, Lyle Clayton Turner and Ronald Audia as Amici Curiae on behalf of Defendant and Appellant.
Michael A. Ramos, District Attorney, Mark A. Vos, Lead Deputy District Attorney, and Astrid G. Alfonso, Deputy District Attorney, for Plaintiff and Respondent.
Bonnie M. Dumanis, District Attorney (San Diego); Albert C. Locher, Assistant District Attorney (Sacramento); Margaret O'Malley, Deputy District Attorney (Santa Barbara); and W. Scott Thorpe for California District Attorneys Association as Amicus Curiae on behalf of Plaintiff and Respondent.
A defendant accused of driving under the influence of alcohol can be charged under two separate code sections. The "generic DUI" provision prohibits driving "under the influence" of alcohol. (Veh. Code, § 23152, subd. (a) (hereafter section 23152(a).) The "per se DUI" provision prohibits driving with a blood-alcohol level of 0.08 percent or more. (§ 23152, subd. (b) (hereafter section 23152(b).) This case concerns how a generic DUI charge can be proven, or defended, at trial.
1188*1188 The Vehicle Code requires all drivers who are lawfully arrested for DUI to submit to chemical testing of the blood or breath to determine the alcohol content of their blood. (§ 23612, subd. (a)(1)(A).) Whereas a blood test directly measures the subject's blood-alcohol level, a breath sample must be converted to derive a blood-alcohol percentage. The conversion factor, known as a "partition ratio," reflects the relationship between alcohol measured in a person's breath and alcohol in the blood. Breath-testing machines in California incorporate a partition ratio of 2,100 to 1, which means the amount of alcohol in 2,100 milliliters of breath is considered equivalent to the amount of alcohol in 1 milliliter of blood. It is undisputed, however, that partition ratios can vary widely, both in the general population and within an individual.
Defendant was charged with generic and per se DUI after he produced a breath sample indicating a blood-alcohol concentration of 0.10 percent. By statute, if a chemical test within three hours of driving measures a driver's blood alcohol at 0.08 percent or more, the driver is presumed to have been driving "under the influence" of alcohol. (§ 23610, subd. (a)(3) (hereafter § 23610(a)(3)).) Defendant claims he was wrongly prevented from introducing evidence about partition ratio variability to rebut this presumption. In People v. Bransford (1994) 8 Cal.4th 885, 887-888 [35 Cal.Rptr.2d 613, 884 P.2d 70] (Bransford), we confronted a similar claim in the context of the per se DUI offense. We concluded evidence about partition ratio variability is irrelevant in those cases because the Legislature incorporated a 2,100-to-1 partition ratio within its definition of the offense. (Id. at pp. 892-893.)
However, a generic DUI charge is defined differently, and the presumption is not part of that definition. A generic DUI charge requires proof that the defendant's ability to drive safely was impaired because he had consumed alcohol. We conclude this difference is significant and hold that competent evidence about partition ratio variability may be admitted to defend against a generic DUI charge. Reversal is not required, though, because any error in this case was harmless under People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].
Defendant was stopped after an officer saw him drive through two red lights. Defendant's eyes were watery and bloodshot, his speech was slurred, he smelled of alcohol, and he admitted he had consumed a beer. Defendant was arrested and given a breath test about an hour after the initial stop. 1189*1189 Defendant blew into the machine five times but produced only two samples sufficient for testing. Both valid samples registered a blood-alcohol level of 0.10 percent.
Defendant was charged with both generic and per se DUI. At trial, a prosecution expert testified that a person is too impaired to operate a motor vehicle safely if he displays slurred speech and bloodshot, watery eyes, commits traffic infractions, performs poorly on field sobriety tests, and records a blood-alcohol level of 0.10 percent in a breath test. A defense expert agreed that scientific authorities consider a person with a blood-alcohol level over 0.08 percent to be under the influence of alcohol. However, he considered defendant's test results unreliable because the machine's repeated failure to register sufficient samples suggested it was not functioning properly. The defense expert also testified that breath-testing machines have a margin of error of 0.02 percent.
After both sides had rested but before closing arguments, defense counsel moved to reopen to present expert testimony about partition ratio variability in connection with the generic DUI charge. The record does not disclose whether defendant intended to introduce evidence of his own partition ratio or evidence about the variability of partition ratios in the general population. The court denied the motion and instructed the jury regarding the statutory presumption of intoxication. (CALJIC No. 12.61.) Specifically, with regard to the generic DUI count, the jury was instructed: "If the evidence establishes beyond a reasonable doubt that at the time of the chemical analysis of the defendant's blood, breath or urine there was .08 percent or more, by weight, of alcohol in the defendant's blood, you may, but are not required [to,] infer that the defendant was under the influence of an alcoholic beverage at the time of the alleged offense."
The jury convicted on the generic DUI charge but hung on the per se count. Defendant moved for a new trial, arguing he should have been permitted to introduce partition ratio evidence to rebut the presumption that 1190*1190 he was under the influence of alcohol. (§ 23610(a)(3).) Defense counsel said his expert would testify that 30 percent of the population has a partition ratio other than 2,100 to 1. When the new trial motion was denied, defendant sought relief in the superior court's appellate division, claiming the exclusion of his partition ratio evidence was reversible error. The appellate division concluded partition ratio evidence is relevant and admissible but found the error harmless given the strength of the evidence supporting the jury's verdict.
The Court of Appeal transferred the case to itself on its own motion. That court distinguished between evidence about the variability of partition ratios in the general population and evidence showing defendant had a nonstandard ratio. It concluded evidence challenging the validity of the statutory 2,100-to-1 ratio was irrelevant, but evidence that this particular defendant had a different partition ratio should have been admitted. The court reasoned that if defendant's own ratio differed significantly from the standard ratio, this fact could support an inference that defendant was not actually impaired at the time of the offense. The court therefore held such personal partition ratio evidence is relevant and admissible in generic DUI cases. Although it found defendant's offer of proof insufficient to determine the precise nature of the partition ratio evidence he sought to introduce, the Court of Appeal concluded that even assuming defendant intended to present evidence about his own ratio, and assuming the issue was preserved for review, any error was harmless under People v. Watson, supra, 46 Cal.2d at page 836.
The People and defendant separately petitioned for review. We granted both petitions to address the admissibility of partition ratio evidence in section 23152(a) cases.
I. The Science of Alcohol Testing
Alcohol affects the central nervous system. When ingested, it is absorbed into the blood and carried through the carotid arteries to the brain. (State v. Downie (1990) 117 N.J. 450 [569 A.2d 242, 245] (Downie); State v. Brayman (1988) 110 Wn.2d 183 [751 P.2d 294, 297] (Brayman).) After passing through the brain, alcohol travels through venous blood to the liver and heart, and from there, to the lungs, where it diffuses into alveolar air space and is 1191*1191 exhaled in the breath. (Downie, 569 A.2d at pp. 245-246.) As a practical matter, it is impossible to measure the amount of alcohol in a person's carotid arteries or brain. (Id. at p. 246; Taylor & Tayac, supra, Forensic Chemist: Blood-Alcohol, § 12.2, p. 712.) However, most experts agree that measurements of alcohol in venous blood or breath give a good indication of the amount of alcohol in the brain during the postabsorptive phase. (Downie, at p. 246.)
When a subject blows into a breath-testing machine, the device measures the amount of alcohol vapor expelled into alveolar spaces deep in the lungs. From this measurement of breath alcohol, a blood-alcohol percentage can be computed using a mathematical constant. The conversion from breath alcohol to blood alcohol is based on the chemistry principle of "Henry's law," which holds that there is "a constant ratio between the concentration of alcohol in the blood and the concentration of alcohol in the alveolar air of the lungs." (Taylor & Tayac, supra, Forensic Chemist: Blood-Alcohol, § 12.19, p. 770.) Breath-testing machines in California use a conversion factor of 2,100 to 1, meaning "the amount of alcohol in 2,100 milliliters of alveolar breath is equivalent to the amount of alcohol in 1 milliliter of blood." (Cal. Code Regs., tit. 17, § 1220.4, subd. (f); see People v. McDonald (1988) 206 Cal.App.3d 877, 880 [254 Cal.Rptr. 384].) This ratio is used, apparently without exception, in breath-testing devices throughout the United States. (See Brayman, supra, 751 P.2d at p. 297; State v. McManus (1989) 152 Wis.2d 113 [447 N.W.2d 654, 656].)
Nevertheless, courts here and across the country have long recognized that actual partition ratios vary, both among members of the population and within a single individual. In Bransford, supra, 8 Cal.4th at page 889, we noted that an individual's ratio of breath-alcohol to blood-alcohol concentration can be influenced by many variables, including "body temperature, atmospheric pressure, medical conditions, sex, and the precision of the measuring device. [Citations.]" (See also Brayman, supra, 751 P.2d at p. 297 [mentioning, in addition to these factors, hematocrit level and elapsed time between drinking and breath-alcohol measurement].) Experts have also described a wide range of variability in partition ratios throughout the general population. In People v. McDonald, supra, 206 Cal.App.3d at page 880, for example, the people's expert testified a person's ratio could be as high as 2,700 to 1 or as low as 1192*1192 1,550 to 1, and in Downie, supra, 569 A.2d at page 247, the court noted that partition ratios measured in a group of experimental subjects ranged from a low of 1,706 to 1 to a high of 3,063 to 1.
Despite this recognized variability, most scientists agree that the 2,100-to-1 ratio roughly approximates or even underestimates the ratio of most people. In the late 1980's, the New Jersey Supreme Court considered evidence presented by ten experts at a hearing addressing partition ratios and the reliability of breath test results. (Downie, supra, 569 A.2d at pp. 243-244.) These experts "generally agreed" that breath-testing machines using the 2,100-to-1 partition ratio "will usually underestimate the amount of alcohol in the blood" for several reasons. (Id. at p. 247.) "First, most people's partition ratios may be closer to 2300:1 than to 2100:1. Second, the breathalyzer results are truncated, or the third decimal position is dropped when read. If a person reads 0.099 on the breathalyzer, the results will be shortened to read 0.09, thereby underestimating the breath alcohol. Third, a suspect may not provide enough deep breath to register all of the alcohol present in the alveolar air. Fourth, the breathalyzer's scale is set 0.003 below the start line and this gives suspects an added benefit." (Ibid.) Several experts opined that the standard partition ratio is set artificially low, and the true mean ratio in the population is closer to 2,300 to 1. (Id. at p. 247.) Dr. Robert Borkenstein, inventor of the breathalyzer machine, stated that "breathalyzer researchers and members of the National Safety Council adopted the 2100:1 partition ratio instead of the more accurate 2300:1 ratio because they wanted to err on the low side and have almost no errors on the high side." (Id. at p. 247.)
II. Development of California Law Regarding Partition Ratio Evidence
California's first drunk driving statute, enacted in 1913, prohibited any "intoxicated person" from driving a motor vehicle on a public highway. (Stats. 1913, ch. 326, § 17, p. 646; see Burg v. Municipal Court (1983) 35 Cal.3d 257, 262 [198 Cal.Rptr. 145, 673 P.2d 732].) The prohibition was later redefined as driving "under the influence" of alcohol. "To be `under the influence' within the meaning of the Vehicle Code, the liquor or liquor and 1193*1193 drug(s) must have so far affected the nervous system, the brain, or muscles as to impair to an appreciable degree the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties. [Citations.]" (Byrd v. Municipal Court (1981) 125 Cal.App.3d 1054, 1058 [178 Cal.Rptr. 480], italics omitted.) In 1969 the Legislature enacted a statutory presumption that a driver was under the influence if the driver's blood contained 0.10 percent or more, by weight, of alcohol. (Stats. 1969, ch. 231, § 1, p. 565; Burg v. Municipal Court, at p. 263.) However, "[e]ven these laws, which considerably assisted the prosecution of `driving under the influence' cases, proved inadequate in many respects. Under them, the ultimate question was defined in terms of the defendant's subjective behavior and condition: `Was the defendant under the influence at the time he drove?' Celerity and certainty of punishment were frustrated by the ambiguity of the legal criteria; no matter what his bloodalcohol level, a defendant could escape conviction merely by raising a doubt as to his intoxication. [Citations.]" (Burg v. Municipal Court, at p. 263.) These difficulties led the Legislature to create a new crime. Section 23152(b), added in 1981, made it unlawful for a person to drive with a blood-alcohol level of 0.10 percent or more, by weight, and specified that, "percent, by weight, of alcohol shall be based upon grams of alcohol per 100 milliliters of blood." (Stats. 1981, ch. 940, § 33, p. 3578.) To secure a conviction for this new "per se DUI" offense, the prosecution no longer had to prove the accused driver was actually impaired at the time of the offense, but only that he drove with a blood-alcohol level at or exceeding 0.10 percent. (Burg v. Municipal Court, at p. 265.) In 1989, the Legislature further strengthened our state's DUI laws by lowering the punishable blood-alcohol threshold from 0.10 percent to 0.08 percent. (Stats. 1989, ch. 1114, § 27, p. 4080; see People v. Ireland (1995) 33 Cal.App.4th 680, 689 [39 Cal.Rptr.2d 870].)
Thus, after 1981 there were two parallel statutes making it a crime to drive while intoxicated. The generic DUI provision (§ 23152(a)) retained the historical approach, requiring proof that the defendant was actually impaired by his drinking. The per se DUI statute (§ 23152(b)) simply required proof that the defendant had been driving with a blood-alcohol level over the legal limit. If the limit was exceeded, the statute was violated, and no additional proof of the defendant's impairment was required.
Throughout this time, both the per se DUI offense and the presumption of intoxication applicable to the generic DUI offense were defined based on measurements of blood alcohol. As a result, whenever a defendant elected to have a breath test instead of a blood draw, it was necessary to convert the breath results into an equivalent blood-alcohol percentage. (Bransford, supra, 8 Cal.4th at pp. 888-889; People v. Ireland, supra, 33 Cal.App.4th at p. 689.) 1194*1194 A Department of Health Services regulation required that this conversion be made using a partition ratio of 2,100 to 1. (Cal. Code Regs., tit. 17, § 1220.4, subd. (f).)
The mandated use of a standard partition ratio, in the face of scientific knowledge that such ratios vary greatly, provided fertile ground for defense arguments challenging the reliability of breath test results. Initially, courts permitted defendants to show only that their personal partition ratio differed from the norm. (Bransford, supra, 8 Cal.4th at p. 889.) Applying the judicially created "rule of convenience," these courts placed the burden on the defendant to produce evidence of a nonstandard personal ratio because this fact was considered to be peculiarly within the defendant's knowledge. (People v. Pritchard, supra, 162 Cal.App.3d at p. Supp. 16; see People v. Gineris (1984) 162 Cal.App.3d Supp. 18, 23 [209 Cal.Rptr. 317]; People v. Herst (1987) 197 Cal.App.3d Supp. 1, 3-4 [243 Cal.Rptr. 83].)
Later courts questioned this application of the rule of convenience when confronted with evidence showing that an individual's partition ratio can vary from time to time due to the influence of numerous external factors. (See, e.g., People v. McDonald, supra, 206 Cal.App.3d at p. 883.) This evidence directly contradicted something the Pritchard line of cases had apparently assumed: "that one's partition ratio is constant and can be measured by the defendant." (Ibid.; see also People v. Lepine, supra, 215 Cal.App.3d at pp. 97-99.) Because partition ratios may vary depending on many factors, reliable measurements may be difficult and costly to acquire. Thus, some courts reasoned that defendants did not have substantially better access to evidence of their personal partition ratios and could not be expected to carry the burden of production on the issue. (People v. McDonald, at p. 883; People v. Lepine, at pp. 99-101; People v. Thompson (1989) 215 Cal.App.3d Supp. 7, 13 [265 Cal.Rptr. 105].) Further, having freed defendants from the rule of convenience, these courts saw no reason to exclude general partition ratio evidence describing the variability of partition ratios among the general population. (People v. Lepine, at p. 100; People v. Thompson, at pp. Supp. 13-14; People v. Cortes (1989) 214 Cal.App.3d Supp. 12, 18 [263 Cal.Rptr. 113].) After citing a string of out-of-state decisions permitting such evidence, one court reasoned: "[I]t seems clear from the evidence submitted in this case and from a host of opinions in this and other states, that the partition ratio may vary from time to time and from individual to individual. This being the case it is appropriate a jury be allowed to consider that fact. We trust in the general rules of evidence, the preparation of 1195*1195 counsel and the good judgment of trial judges to insure that this question of partition ratio variability is presented to jurors in a proper, complete and understandable form." (People v. Lepine, at p. 100, fn. omitted.)
(1) The Legislature responded swiftly to these developments. In April 1989, legislators amended a pending Senate Bill on a related topic to specify for purposes of the per se DUI offense and the presumption of intoxication that the percentage of alcohol in a person's blood is to be based upon grams of alcohol per 100 milliliters of blood "or grams of alcohol per 210 liters of breath." (Sen. Amend. to Sen. Bill No. 1119 (1989-1990 Reg. Sess.) Apr. 27, 1989, p. 23; Stats. 1989, ch. 1114, §§ 24-25, pp. 4078-4079 [amending § 23152(b)]; Sen. Amend. to Sen. Bill No. 1119 (1989-1990 Reg. Sess.) Apr. 27, 1989, p. 26; Stats. 1989, ch. 1114, §§ 34-35, pp. 4085-4086 [amending former § 23155, subd. (b)].) In so doing, the Legislature codified 2,100 to 1 as the partition ratio to be used in converting breath test results into blood-alcohol levels.
As we observed in Bransford, supra, 8 Cal.4th at page 890, scant explanation for these amendments appears in the legislative history of Senate Bill No. 1119 (1989-1990 Reg. Sess.), but more illumination can be found in the history of Assembly Bill No. 4318 (1989-1990 Reg. Sess.), enacted as Statutes 1990, chapter 708, section 1, page 3289. The purpose of Assembly Bill No. 4318 was to accelerate the effective date of the partition ratio amendments to section 23152(b) that had been enacted by passage of Senate Bill No. 1119. (Assem. Com. on Public Safety, com. on Assem. Bill No. 4318 (1989-1990 Reg. Sess.) as introduced May 15, 1990; see People v. Ireland, supra, 33 Cal.App.4th at p. 691.) Committee reports concerning this bill evince the Legislature's desire to prohibit challenges to breathtest results based on the partition ratio. For example, the Assembly Committee on Public Safety observed that "[a]ttacks on the partition ratio may result in expensive and time consuming evidentiary hearings and undermine successful enforcement of driving under the influence laws." (Assem. Com. on Public Safety, com. on Assem. Bill No. 4318 (1989-1990 Reg. Sess.) as introduced May 15, 1990, p. 2.) The express purpose of Assembly Bill No. 4318 was to "[e]liminate the need for conversion of a breath quantity to a blood concentration of alcohol by statutorily defining driving under the influence in terms of the concentration of alcohol found in the breath when breath analysis is used." (Ibid.; see also Sen. Rules Com., Off. of Sen. Floor Analyses, Rep. on Assem. Bill No. 4318 (1989-1990 Reg. Sess.) Aug. 9, 1990, p. 1.)
1196*1196 The Legislature accomplished this purpose by defining the offense of per se DUI in terms of a prohibited level of blood alcohol or breath alcohol. As we explained in Bransford, supra, 8 Cal.4th at page 890, the amendment of section 23152(b) providing for an alternative measurement based upon breath changed the definition of the offense. In the per se DUI statute, the Legislature has set a legal limit on permissible blood alcohol and has defined how that limit is to be measured in a breath sample. If the limit, measured as the statute sets out, is exceeded, the statute has been violated. Because section 23152(b) now defines the offense of per se DUI as the presence of a prohibited level of alcohol in either 100 milliliters of blood or 210 liters of breath, a conversion from breath to blood-alcohol concentration is no longer required to establish guilt. Accordingly, evidence attacking the standard partition ratio is no longer relevant in a per se DUI prosecution because the Legislature has codified the 2,100-to-1 ratio as part of the offense. (Bransford, at pp. 890-892.)
Assembly Bill No. 4318 (1989-1990 Reg. Sess.) did not amend former section 23155, however. The bill amended only the per se DUI offense (§ 23152(b)) and a similar offense of per se DUI causing bodily injury (§ 23153, subd. (b)). (Stats. 1990, ch. 708, §§ 1-4, pp. 2870-2872.) Thus, committee statements reflecting the Legislature's desire to end the conversion of breath results to blood alcohol were all made in regard to changing the definition of the per se DUI offense. No legislative history clarifies exactly what the Legislature intended when it amended the presumption of intoxication applicable to generic DUI cases
III. Admissibility of Partition Ratio Evidence in Generic DUI Cases
Despite our holding in Bransford that partition ratio evidence is inadmissible in per se DUI cases, defendant argues partition ratio variability evidence should be admissible in generic DUI cases to rebut the presumption that a person who produces a certain breath result is actually "under the influence" of alcohol. (§§ 23152(a), 23610(a)(3).) This issue was not presented in Bransford, and we specifically declined to consider it. (Bransford, supra, 8 Cal.4th at p. 893, fn. 10.) Defendant's claim does involve the same statutory language we interpreted in Bransford: "Percent, by weight, of alcohol in the person's blood shall be based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath." (§ 23610(b); see Bransford, at p. 890, quoting § 23152(b).) However, in Bransford this language was used in the definition of a criminal offense. Here, it is part of a rebuttable presumption. The question is whether a defendant who has a 1197*1197 blood-alcohol concentration of 0.08 percent or more measured by breath is entitled to rebut the presumption that he was "under the influence" in a section 23152(a) case by introducing evidence that use of a 2,100-to-1 partition ratio may have produced an inaccurate measure of his blood alcohol.
(2) The Legislature passed section 23152(b) to facilitate the prosecution of drunk drivers. The creation of a per se DUI offense did away with the need to prove the defendant was actually impaired. However, impairment must still be proven for a charge of generic DUI under section 23152(a). In a generic DUI case, section 23610 creates a rebuttable presumption that the defendant was under the influence of alcohol if a chemical test measures his blood-alcohol concentration at 0.08 percent or higher. As relevant here, section 23610 states:
"(a) Upon the trial of any criminal action, or preliminary proceeding in a criminal action, arising out of acts alleged to have been committed by any person while driving a vehicle while under the influence of an alcoholic beverage in violation of subdivision (a) of Section 23152 or subdivision (a) of Section 23153, the amount of alcohol in the person's blood at the time of the test as shown by chemical analysis of that person's blood, breath, or urine shall give rise to the following presumptions affecting the burden of proof: [¶] . . . [¶]
"(3) If there was at that time 0.08 percent or more, by weight, of alcohol in the person's blood, it shall be presumed that the person was under the influence of an alcoholic beverage at the time of the alleged offense.
"(b) Percent, by weight, of alcohol in the person's blood shall be based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.
"(c) This section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether the person ingested any alcoholic beverage or was under the influence of an alcoholic beverage at the time of the alleged offense."
(3) Although section 23610 applies to chemical testing of the driver's blood, breath, or urine, the presumption of intoxication arises only if the testing shows the presence of 0.08 percent or more of alcohol in the driver's blood. (§ 23610(a)(3).) The statute is not written to invoke a presumption based on a certain blood result or breath result; it is framed in terms of blood 1198*1198 alcohol only. Thus, if the prosecution is relying on the result of a breath test, the breath result must be converted into a blood-alcohol equivalent for the section 23610 presumption to apply. Subdivision (b) sets this conversion factor at a ratio of 210 liters of breath to 100 milliliters of blood.
The logic of the presumption proceeds as follows. The Legislature has concluded that most people with a blood-alcohol concentration at or above 0.08 percent are too impaired to operate a vehicle safely. Breath tests are a convenient way to measure a suspect's alcohol consumption, and they can be converted into an equivalent blood-alcohol level by applying a mathematical ratio. A conversion ratio of 2,100 to 1 is a safe standard to use because, for most people, it will produce an accurate or slightly low measure of alcohol in the blood. (See, e.g., People v. Lepine, supra, 215 Cal.App.3d at p. 94; Downie, supra, 569 A.2d at p. 247; Brayman, supra, 751 P.2d at p. 300.) Thus, if a driver's breath test shows a converted blood-alcohol level of 0.08 percent or more, the measurement is generally accurate and may fairly be used to prove the driver was actually under the influence, as the generic DUI statute requires. Other evidence of actual impairment may include the driver's appearance, an odor of alcohol, slurred speech, impaired motor skills, slowed or erratic mental processing, and impaired memory or judgment. Conversely, absence of these manifestations may indicate that the driver was not impaired.
(4) With regard to the inference to be drawn from a breath result, the question of whether a defendant's converted blood-alcohol level is accurate depends upon the validity of the 2,100-to-1 partition ratio. If the defendant's own partition ratio is the same as or higher than this standard ratio, his converted blood-alcohol result is valid or skewed in his favor. If, however, the defendant's own partition ratio at the time of testing is lower than the standard ratio, conversion of the breath result using the statutory formula produces an artificially high measure of his blood alcohol.
Evidence that a defendant has a comparatively low partition ratio would thus tend to show that a blood-alcohol concentration calculated with the standard 2,100-to-1 ratio overstates the actual amount of alcohol in his blood. For someone with an extremely low ratio of 1,100 to 1, for example, use of the 2,100-to-1 partition ratio would overstate blood-alcohol content by almost 50 percent. (See State v. Burling (1987) 224 Neb. 725 [400 N.W.2d 872, 876-877].) Evidence showing the defendant had a low partition ratio, and thus a lower concentration of blood alcohol than was reported, could also support an inference that he was not under the influence in violation of the 1199*1199 generic DUI law. In addition, evidence about the variability of partition ratios in the general population is relevant to raise a reasonable doubt about the accuracy of a defendant's converted blood-alcohol level. Because partition ratios vary among individuals and the 2,100-to-1 ratio used by breath-testing machines is based on an average, there is a possibility that the blood-alcohol level such a machine produces for a given defendant is inaccurate.
(5) The People contend the Legislature rendered partition ratio evidence irrelevant when it amended section 23610, subdivision (b) to state that blood-alcohol percentages "shall be based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath." According to the People's reasoning, because the Legislature has placed a partition ratio in section 23610, no evidence can be offered to contradict or question that ratio in a particular case. Evidence that defendant may have a different ratio is irrelevant, the People assert, because the Legislature has spoken and established 2,100 to 1 as the ratio to be used in every case. Our reasoning was similar when we construed the partition ratio amendments to section 23152(b) in Bransford, supra, 8 Cal.4th at page 892, but the People's attempt to apply Bransford here overlooks an important difference in context. As noted, in Bransford, we were construing language in a statute that defines an offense. Section 23512(b) makes it a crime to drive with a blood-alcohol content of 0.08 percent or more as measured in grams of alcohol per 100 milliliters of blood or per 210 liters of breath. The crime itself is defined in terms of a prohibited blood or breath result. Here, we are considering language in a statute that describes a rebuttable presumption. Section 23610 permits, but does not require, the jury to infer that the defendant was under the influence if he had a blood-alcohol level of 0.08 percent or more. (See People v. Milham (1984) 159 Cal.App.3d 487, 505 [205 Cal.Rptr. 688]; see also CALJIC No. 12.61; CALCRIM No. 2110.) Although section 23610, subdivision (b) incorporates the same conversion factor for breath test results as appears in section 23152, subdivision (b), here this factor is not part of the definition of an offense and, like the rest of the presumption, it is rebuttable.
(6) Moreover, section 23610 specifically mandates that it "shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether the person ingested any alcoholic beverage or was under the influence of an alcoholic beverage at the time of the alleged offense." (§ 23610, subd. (c).) Thus, even in light of the presumption, a defendant charged under the generic 23152(a) provision is entitled to offer "other competent evidence" relevant to whether he was actually under the influence of alcohol.
1200*1200 (7) Competent evidence that the 2,100-to-1 ratio does not accurately reflect the partition ratio for all people, or that the defendant's partition ratio may have been lower, is relevant to this question. "`Relevant evidence' means evidence ... having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) The central disputed fact in a generic DUI prosecution is whether the defendant was under the influence of alcohol while driving. The chemical test result is circumstantial evidence that supports an inference regarding that disputed fact. (8) Specifically, when a defendant's breath test result is equivalent to 0.08 percent or more of blood alcohol, section 23610 permits the jury to infer he was indeed under the influence of alcohol. The defendant is entitled to challenge this inference and can do so by, among other things, raising a reasonable doubt as to whether the test result was an accurate measure of his blood-alcohol level. Evidence casting doubt on the accuracy of the breath-to-blood conversion ratio is just as relevant as other evidence rebutting the presumption of intoxication from a breath test result, such as evidence that the defendant had a high tolerance for alcohol or performed well in field sobriety testing.
(9) Accordingly, we hold that evidence about partition ratio variability is relevant in generic DUI cases to rebut the presumption of intoxication in section 23610. Although the Court of Appeal distinguished between "general" and "personal" partition ratio evidence, concluding only the latter is potentially admissible, this distinction does not survive close scrutiny. Both types of evidence challenge the accuracy of a defendant's reported blood-alcohol level, and therefore both can be used to support an inference that, despite a high breath test result, the defendant was not under the influence. Although the inference is less direct when the evidence is not tied to the defendant, and concerns only variability of partition ratios in the population at large, indirectness alone is not a reason to exclude evidence that is logically relevant to a defense.
We do agree with the Court of Appeal, however, that partition ratio evidence may not be used to negate the basic fact triggering the section 23610 presumption, and thereby defeat operation of the presumption itself. Because section 23610 expressly incorporates a 2,100-to-1 partition ratio, defendant 1201*1201 may not argue the presumption does not apply because a different ratio should have been used. The result of the statutorily mandated test remains admissible, and the jury is still properly instructed on the presumption. Defense evidence is relevant to rebut the presumption that defendant was intoxicated, but not to remove the presumption altogether.
Our decision is in accord with those of the two other state courts that have discussed the admissibility of partition ratio evidence in generic DUI cases. In State v. Hanks (2001) 172 Vt. 93, 96 [772 A.2d 1087, 1089] (Hanks), the Vermont Supreme Court considered the effect of a statute that defined "alcohol concentration" for purposes of the state's DUI laws to mean grams of alcohol per 100 milliliters of blood or per 210 liters of breath. The defendant in Hanks conceded this statute may have made evidence about partition ratio variability inadmissible in cases alleging a violation of the state's per se DUI law, but he argued such evidence was still relevant in cases alleging the defendant drove "under the influence of intoxicating liquor" in violation of the generic DUI law. (Id., 772 A.2d at pp. 1088, 1091.) The Vermont Supreme Court agreed. (Id. at p. 1091.) The court observed that "any evidence raising a doubt as to [the] defendant's condition, which is the ultimate question in a generic DWI prosecution . . . is relevant and admissible." (Id. at p. 1092, italics added, citation omitted.) Like California, Vermont has a statutory presumption that permits the jury to infer a person with a blood-alcohol concentration of 0.08 percent or more was under the influence of alcohol at the time of the offense. (23 Vt. Stat. Ann. § 1204, subd. (a)(2); see Hanks, at p. 1088.) The Hanks court explained that evidence about partition ratio variability is relevant to rebut this inference because it could cast doubt on the accuracy of the breath test result as an indicator of the defendant's impairment. (Hanks, at p. 1092.) Finally, the court observed, where the "defendant is charged with driving while under the influence rather than driving with an alcohol concentration exceeding the statutory limit, admitting scientifically accepted evidence concerning the variability of partition ratios will not negate a statutory offense or even an element of a statutory offense; rather, it will merely allow defendant to challenge the permissive inference and the State's charge that he was impaired." (Id. at pp. 1092-1093.)
An Arizona appellate court considered the same question, in light of similar statutes, and concluded evidence about partition ratio variability "is not relevant to a prosecution for per se DUI, but may be relevant to a prosecution for traditional DUI if, in the latter instance, the State introduces evidence of the defendant's breath alcohol level to support conviction." (Guthrie v. Jones (Ct.App. 2002) 202 Ariz. 273, 274 [43 P.3d 601, 602] (Guthrie).) The court reasoned that when the prosecution relies on a breath test result to invoke Arizona's statutory presumption that the defendant was under the influence of alcohol (Ariz. Rev. Stat. § 28-1381, subd. (G)), 1202*1202 partition ratio evidence casting doubt on that presumption is relevant and admissible. (Guthrie, at p. 604.) The Guthrie court relied in part on statutory language similar to our section 23610, subdivision (c), concluding that the statute "does not limit the introduction of any other competent evidence bearing on the question of whether or not the defendant was under the influence of intoxicating liquor." (Ariz. Rev. Stat. § 28-1381, subd. (H); see Guthrie, at p. 604.)
(10) We reach the same conclusion as the Vermont and Arizona courts. If the defendant in a section 23152(a) case offers competent evidence showing that the use of a 2,100-to-1 conversion ratio may have yielded an inaccurate representation of his blood-alcohol level, introduction of this evidence is permissible. In light of this decision, we need not consider whether a contrary interpretation of section 23610 would raise constitutional concerns. (See Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230 [45 Cal.Rptr.2d 207, 902 P.2d 225] [the court will not decide constitutional questions where other grounds are available and dispositive]; see also Lyng v. Northwest Indian Cemetery Prot. Assn. (1988) 485 U.S. 439, 445 [99 L.Ed.2d 534, 108 S.Ct. 1319].)
Naturally, the proffered evidence must still satisfy standards of competence and all other applicable evidentiary requirements. We do not here consider how a party might establish partition ratio variability in general or in regard to an individual. In particular, we express no opinion as to whether evidence of an individual's personal partition ratio has gained sufficient acceptance in the scientific community to be admissible. (See People v. Kelly (1976) 17 Cal.3d 24, 30-32 [130 Cal.Rptr. 144, 549 P.2d 1240].)
In addition, like all other evidence, partition ratio evidence must be timely offered. Here, defendant attempted to introduce this evidence only after both sides had rested. His motion to reopen was one addressed to the court's sound discretion. (People v. Jones (2003) 30 Cal.4th 1084, 1110 [135 Cal.Rptr.2d 370, 70 P.3d 359]; People v. Marshall (1996) 13 Cal.4th 799, 836 [55 Cal.Rptr.2d 347, 919 P.2d 1280].) We need not discuss this procedural question further. Like the Court of Appeal, we may assume that defendant could have made an adequate offer of proof, to be presented by a competent witness, and that the trial court would have allowed him to reopen. Nevertheless, defendant is not entitled to a reversal here, because any error in excluding the partition ratio evidence was harmless.
1203*1203 (11) "As a general matter, the `[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant's right to present a defense.' [Citations.]" (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103 [31 Cal.Rptr.2d 321, 875 P.2d 36].) Because the trial court merely rejected some evidence concerning a defense, and did not preclude defendant from presenting a defense, any error is one of state law and is properly reviewed under People v. Watson, supra, 46 Cal.2d at page 836. (People v. Fudge, at p. 1103.) Having examined all the evidence, we conclude it is not reasonably probable defendant would have achieved a more favorable result absent the exclusion of partition ratio evidence.
The question for the jury was whether defendant was under the influence of alcohol when he drove through two red lights. Defendant was stopped at 11:00 p.m. When asked to produce his driver's license, he initially could not find it. Asked why he ran the lights, defendant replied, at first, that he was chasing someone who had threatened him with a gun. Later, he said he was looking for his wife, or that his wife was following right behind him. The arresting officer saw no one else around. Defendant's eyes were watery and bloodshot, his speech was slurred, and a strong odor of alcohol came from the interior of his car and from his person. His face was flushed and he had difficulty answering questions. When he got out of his car, he leaned on the vehicle for support as he made his way to the sidewalk. Defendant said he had consumed one beer and had taken medication that morning for diabetes; however, no evidence offered at trial showed defendant was diabetic. Defendant failed every one of the field sobriety tests he tried to perform. A preliminary alcohol screening test given at the scene showed the presence of alcohol in his breath. Based on defendant's driving, appearance, and performance on the field sobriety tests, the arresting officer formed an opinion that defendant was impaired due to the influence of alcohol.
In addition to this significant evidence of defendant's intoxication, the jury's verdict also indicates that the admission of partition ratio evidence was not reasonably likely to have produced a more favorable result. (See People v. Watson, supra, 46 Cal.2d at p. 836.) Although they found him guilty of generic DUI, the jury could not agree whether defendant was also guilty of per se DUI. They reported an unspecified split of "five to seven" on this issue. Thus, even without partition ratio evidence, nearly half the jury rejected the accuracy of defendant's breath test result and declined to find that he had exceeded the legal limit of 0.08 percent blood alcohol. Nevertheless, all jurors believed defendant was "under the influence" for purposes of section 23152(a). It is difficult to imagine that the jurors who rejected defendant's breath result in considering the per se DUI charge would have relied on this result, and the section 23610 presumption, to convict him of the generic DUI charge.
The judgment of the Court of Appeal is affirmed.
George, C. J., Kennard, J., Baxter, J., Werdegar, J., Chin, J., and Moreno, J., concurred.
 All unspecified statutory references are to the Vehicle Code.
 If blood and breath tests are not available, the driver's blood-alcohol content is determined from a urine test. (§ 23612, subds. (a)(1)(A), (d)(2).)
 The test was administered using a Draeger Alcotest 7110 machine. To produce a valid sample for this machine, the subject must exhale at least 1.5 liters of breath over at least 4.5 seconds. (Taylor & Tayac, Cal. Drunk Driving Defense (4th ed. 2008) Forensic Chemist: Blood-Alcohol, § 12.40, p. 874 (hereafter Taylor & Tayac).) If the subject fails or refuses to exhale a sufficient volume of breath, the sample is considered invalid. (Ibid.)
 He was also cited for two infractions for failing to stop at a red light. (§ 21453, subd. (a).)
 As the body absorbs ingested alcohol, blood-alcohol levels rise until they reach a peak. The rate of absorption depends on many variables, including the amount of food in the stomach, the amount of alcohol consumed, the time over which it was consumed, and numerous individual factors. (Downie, supra, 569 A.2d at pp. 245-246; Taylor & Tayac, supra, Forensic Chemist: Blood-Alcohol, § 12.2, pp. 712-714.) During active absorption, blood-alcohol levels are highest in arterial blood. (Downie, at p. 246; Taylor & Tayac, § 12:2, p. 712.) The postabsorptive phase occurs after the blood-alcohol level has peaked and begun to decline.
 See also People v. Lepine (1989) 215 Cal.App.3d 91, 94 [263 Cal.Rptr. 543] (defense expert testified that the average partition ratio is 2,286 to 1); People v. Pritchard (1984) 162 Cal.App.3d Supp. 13, 16 [209 Cal.Rptr. 314] (people's expert testified that 95 percent of the population falls within the range of 2,100 to 1, plus or minus a 10 percent margin of error); People v. Gustafson (1990) 194 Ill.App.3d 910 [141 Ill.Dec. 639, 551 N.E.2d 826, 829] (state's expert testified "he believed the 2,100:1 ratio was applicable to at least 95 [percent] of the population"); State v. McManus, supra, 447 N.W.2d at pages 656-657 (noting "the 2,100:1 ratio has been shown to either correctly estimate or underestimate a person's corresponding blood alcohol concentration with 94 percent accuracy"); Brayman, supra, 751 P.2d at page 300 (citing studies indicating breath tests underestimate blood-alcohol levels 80 to 91 percent of the time and overestimate them only 5 to 6 percent of the time).
 "A breath alcohol concentration shall be converted to an equivalent blood alcohol concentration by a calculation based on the relationship: the amount of alcohol in 2,100 milliliters of alveolar breath is equivalent to the amount of alcohol in 1 milliliter of blood." (Cal. Code Regs., tit. 17, § 1220.4, subd. (f).)
 As a result, partition ratio amendments to the statutory presumption of intoxication did not go into effect until January 1, 1992, the operative date set forth in Senate Bill No. 1119 (1989-1990 Reg. Sess.).
 Deleted subdivisions state that a blood-alcohol level between 0.05 and 0.08 gives rise to no presumption, and a blood-alcohol level under 0.05 gives rise to a presumption that the driver was not under the influence. (§ 23610(a)(1)-(2).)
 Burling's holding that a breath test result must be reduced to 52.38 percent of the machine's reading (to reflect this potential margin of error) has been overruled by Nebraska's high court. (State v. Baue (2000) 258 Neb. 968 [607 N.W.2d 191, 200-201].)
 The People assert that by "other competent evidence" the statute is referring to evidence "other" than the partition ratio set forth in subdivision (b). This overly narrow reading does not follow from the plain language of the statute. Clearly, the import of subdivision (c) is to preserve a defendant's ability to rebut the presumption, not to limit the type of evidence that can be introduced. Moreover, the People's interpretation of subdivision (c) makes little sense given that the subdivision existed in essentially its present form before the breath provision was added to subdivision (b). (Former § 23126, subd. (c), added by Stats. 1969, ch. 231, § 1, p. 565 ["The foregoing provisions shall not be construed as limiting the introduction of ... other competent evidence bearing upon the question whether the person was under the influence of intoxicating liquor at the time of the alleged offense."].) The reference to "other competent evidence" cannot have meant "other than the partition ratio" when no partition ratio was specified.
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People v. Thompson, 135 P. 3d 3 - Cal: Supreme Court 2006ReadHow citedSearch
People v. Thompson, 135 P. 3d 3 - Cal: Supreme Court 2006
43 Cal.Rptr.3d 750 (2006)
38 Cal.4th 811
135 P.3d 3
The PEOPLE, Plaintiff and Respondent,
Daniel Lyon THOMPSON, Defendant and Appellant.
Supreme Court of California.
June 1, 2006.
752*752 Richard B. Lennon, Los Angeles, under appointment by the Supreme Court, for Defendant and Appellant.
Thomas W. Sneddon, Jr., District Attorney, and Gerald McC. Franklin, Deputy District Attorney, for Plaintiff and Respondent.
David Labahn, Sacramento; George Kennedy, District Attorney (Santa Clara) and Neal J. Kimball, Deputy District Attorney, for California District Attorneys Association as Amicus Curiae on behalf of Plaintiff and Respondent.
751*751 BAXTER, J.
A concerned citizen followed defendant, who was driving dangerously and under the influence of alcohol, through the streets of Santa Barbara in the early evening of July 21, 2003. Although defendant sped away and managed to get home, the police, with that citizen's assistance, arrived at the house a short time later. The officers spoke to defendant, who remained inside the house and was visibly intoxicated. When defendant refused to come outside to have his blood tested for the presence of alcohol, the police became anxious about the dissipation of alcohol in his bloodstream and entered the house without a warrant to arrest him for the criminal offense of driving under the influence (DUI).
Relying on Welsh v. Wisconsin (1984) 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (Welsh), the Court of Appeal determined that the Fourth Amendment categorically prohibits warrantless entries into the home to effect a DUI arrest when the asserted exigency is merely to prevent the destruction of blood-alcohol evidence. Based on its conclusion that the arrest was unlawful, the Court of Appeal suppressed all the evidence seized during and after the warrantless entry.
Because the Court of Appeal has misread Welsh and because exigent circumstances justified the warrantless entry to effect the DUI arrest here, we reverse the Court of Appeal. We therefore need not consider the People's additional argument that even if the arrest violated the Fourth Amendment, evidence seized outside the home subsequent to the arrest—including the results of a blood-alcohol test—are nonetheless admissible under New York v. Harris (1990) 495 U.S. 14, 110 S.Ct. 1640, 109 L.Ed.2d 13.
On July 21, 2003, Madelene Orvos returned to her apartment complex in Santa Barbara from a walk at the beach with her dogs. She found defendant Daniel Lyon Thompson passed out in a white Ford Bronco in her assigned parking space. A neighbor came out, woke defendant up, and asked him to leave. Before defendant left, Orvos saw him stumble around, toss an empty vodka bottle out of the Bronco, and pass out a second time in the vehicle. She could tell he was intoxicated.
753*753 Having seen defendant in this condition on many prior occasions, Orvos decided this time to follow defendant and called 911 to report the situation as she got into her car. Defendant ran a red light and drove about 70 miles per hour when he got onto the freeway, at one point going "way to his right ... close to the concrete on the side of the road." He exited the freeway and turned right onto State Street from the center lane. After defendant turned right onto South Ontare Road, Orvos fell behind because he was running stop signs and driving too fast in a neighborhood where children were present. Fortunately, Santa Barbara Police Officer Adrian Gutierrez arrived at 7:15 p.m., just as Orvos lost track of the Bronco. Gutierrez instructed Orvos to wait at the parking lot of the nearby golf course while he continued the pursuit.
Officer Gutierrez proceeded to 3610 San Jose Lane, which was the address of the Bronco's registered owner, and found the white Bronco parked in front. When Officer Ryan Dejohn arrived to assist, Gutierrez went back to update Orvos and ask her to follow him to identify the vehicle. After Orvos did so, Gutierrez touched the hood of the vehicle and discovered the hood was warm, indicating the Bronco had been driven very recently. He and Dejohn approached the front door, which was wide open, and rang the doorbell.
Slavka Kovarick answered the door. Officer Dejohn asked her who had been driving the Bronco. Kovarick said that Daniel owned the vehicle. Dejohn asked to speak to him, but Kovarick said he was asleep. When Dejohn asked whether she could wake Daniel up, Kovarick entered a bedroom directly to the left of the front door. She remained there a few moments and came back to tell them she could not wake Daniel up. She also refused to let the officers inside and instead walked away.
Officer Dejohn heard people speaking softly down the hall and then saw a tall shirtless White male, about 45 years old, leave the house and go into the backyard. This man, later identified as defendant, matched the description Orvos had provided of the driver. When defendant turned around, he made eye contact with Dejohn, who motioned for him to come to the front door. Defendant reentered the house and approached the officers by exiting the bedroom door near the entryway. He was staggering or swaying slightly, slurring his speech, and gave off a strong odor of alcohol. Dejohn, who addressed defendant as Daniel, explained that they suspected him of driving under the influence of alcohol and wanted to talk to him and perform some tests, but defendant refused to cooperate. As defendant began to walk away, Dejohn entered the house. He was afraid defendant might flee, so he placed his hand on defendant's shoulder. Defendant turned around and grabbed the doorjamb to the bedroom near the entryway. Officer Gutierrez entered the house only to assist Dejohn in effecting the arrest.
After defendant was handcuffed, Orvos identified defendant as the driver. His blood test revealed a blood-alcohol level of 0.21 percent. On the way to the jail, defendant told Officer Dejohn, "I'll kick your fucking ass."
Following a hearing on defendant's motion to suppress, the trial court found there was probable cause to arrest defendant based on Orvos's report of the driver's behavior, defendant's resemblance to the description Orvos had provided of the driver, and defendant's visible intoxication. Under these circumstances, it was a "reasonable implication" that defendant was the driver. Relying on People v. Hampton (1985) 164 Cal.App.3d 27, 209 Cal.Rptr. 754*754 905, the trial court also found that the warrantless entry to arrest defendant was justified by exigent circumstances—i.e., the need to preserve the evidence of defendant's blood-alcohol level.
Defendant then pleaded no contest to driving with a blood-alcohol level in excess of 0.08 percent (Veh.Code, § 23152, subd. (b)) and to resisting an officer in the performance of his duties (Pen.Code, § 148, subd. (a)(1)) and admitted two prior convictions within the meaning of Vehicle Code section 23546. He was sentenced to 24 months, execution of which was suspended for three years under specified conditions.
A divided panel of the Appellate Division of the Santa Barbara County Superior Court affirmed the denial of the suppression motion, relying on "[t]he exigencies of preventing defendant from fleeing and possibly again driving while intoxicated, and of preserving evidence of his blood alcohol content." The Court of Appeal transferred the matter under rule 62 of the California Rules of Court and reversed in a published opinion. The court disagreed that defendant "was likely to flee and again drive while intoxicated" and declared that the likelihood evidence of driving under the influence would be concealed or destroyed by the passage of time could not justify a warrantless entry into a residence under Welsh.
We granted the People's petition for review.
"The Fourth Amendment protects `[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' In conformity with the rule at common law, a warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed." (Devenpeck v. Alford (2004) 543 U.S. 146, 152, 125 S.Ct. 588, 160 L.Ed.2d 537.) When, as here, the arrest occurs in the home, additional principles come into play. "It is a `basic principle of Fourth Amendment law' that searches and seizures inside a home without a warrant are presumptively unreasonable." (Payton v. New York (1980) 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639.) Indeed, "the `physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.'" (Id. at p. 585, 100 S.Ct. 1371.) The requirement of a warrant "minimizes the danger of needless intrusions of that sort." (Id. at p. 586, 100 S.Ct. 1371.)
Yet, as with so much of its Fourth Amendment jurisprudence, the high court has stopped short of erecting a categorical bar. The presumption of unreasonableness that attaches to a warrantless entry into the home "can be overcome by a showing of one of the few `specifically established and well-delineated exceptions' to the warrant requirement (Katz v. United States (1967) 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576), such as `"hot pursuit of a fleeing felon, or imminent destruction of evidence, . . . or the need to prevent a suspect's escape, or the risk of danger to the police or to other persons inside or outside the dwelling"' (Minnesota v. Olson (1990) 495 U.S. 91, 100, 110 S.Ct. 1684, 109 L.Ed.2d 85). The United States Supreme Court has indicated that entry into a home based on exigent circumstances requires probable cause to believe that the entry is justified by one of these factors such as the imminent destruction of evidence or the need to prevent a suspect's escape." (People v. Celis (2004) 33 Cal.4th 667, 676, 16 Cal.Rptr.3d 85, 93 P.3d 1027.)
755*755 Defendant asserts that the warrantless entry here was unreasonable under the Fourth Amendment. He argues in particular that the police lacked probable cause to arrest him and that, even if probable cause existed, Welsh precluded a finding of exigent circumstances for warrantless DUI arrests in the home.
The trial court found that probable cause existed to arrest defendant and that the warrantless entry was justified by exigent circumstances. Because the underlying facts are undisputed, we review the trial court's rulings independently. (People v. Williams (1988) 45 Cal.3d 1268, 1301, 248 Cal.Rptr. 834, 756 P.2d 221.)
A. Did Probable Cause Exist to Justify an Arrest of Defendant for DUI?
We first consider whether the officers had probable cause to arrest defendant for DUI. "Probable cause exists when the facts known to the arresting officer would persuade someone of `reasonable caution' that the person to be arrested has committed a crime. [Citation.] `[P]robable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts....' (Illinois v. Gates (1983) 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527.) It is incapable of precise definition. (Maryland v. Pringle (2003) 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769.) `"The substance of all the definitions of probable cause is a reasonable ground for belief of guilt,'" and that belief must be `particularized with respect to the person to be ... seized.' (Ibid.)" (People v. Celis, supra, 33 Cal.4th at p. 673, 16 Cal.Rptr.3d 85, 93 P.3d 1027.)
That standard was satisfied here. Although Madelene Orvos did not see defendant drinking, she did see him have difficulty walking, toss an empty vodka bottle out of the Bronco, and pass out again in the vehicle. When he woke up, he drove erratically and too fast. He also ran red lights and stop signs. As defendant concedes, the record fully supported Orvos's belief, which she communicated to the police, that the driver of the Bronco was intoxicated. Orvos's report thus established probable cause to justify a warrantless arrest of the Bronco's driver. (Veh. Code, § 40300.5; People v. Schofield (2001) 90 Cal.App.4th 968, 972-975, 109 Cal.Rptr.2d 429; see generally People v. Smith (1976) 17 Cal.3d 845, 852, 132 Cal. Rptr. 397, 553 P.2d 557 [citizen-informant who has personally observed the commission of a crime "is presumptively reliable"].)
The officers also had ample justification for suspecting that defendant had been the driver of the Bronco. The registered owner of the vehicle lived at 3610 San Jose Lane. A Bronco was parked in front of that residence, and Orvos confirmed that this was the vehicle she had just been following. Officer Gutierrez touched the Bronco's hood and concluded that it had been driven very recently. The officers went to the door and inquired who had been driving the Bronco. Slavka Kovarick said that the Bronco belonged to Daniel and that she "was going to call Daniel out" to speak to them. Kovarick went into the bedroom immediately to the left of the front door and came out a short time later to say she could not wake Daniel up. Shortly thereafter, Officer Dejohn heard quiet voices coming from down the hall and then saw defendant, a tall White male, approximately 45 years old and shirtless, walk out the back door. At Dejohn's invitation, defendant walked back into the house and approached the entryway by exiting through the bedroom door immediately to the left of the front door. He was staggering and swaying, slurring his speech, and smelled of alcohol. His appearance 756*756 and demeanor matched the description of the driver provided by Orvos. He also had walked into and out of the bedroom that belonged to Daniel. The officers, having reasonable grounds for believing that defendant was Daniel and that Daniel was the driver, thus had probable cause to arrest him for DUI.
Defendant claims probable cause was nonetheless lacking because the description Orvos had provided was too general to justify suspicion of any individual person. He cites People v. Curtis (1969) 70 Cal.2d 347, 74 Cal.Rptr. 713, 450 P.2d 33, in which a "cursory description" of the suspect's race, color of clothing, and presence in the neighborhood where a prowler has been reported was deemed sufficient to justify a detention but not an arrest (id. at p. 350, 74 Cal.Rptr. 713, 450 P.2d 33), and on People v. Mickelson (1963) 59 Cal.2d 448, 30 Cal.Rptr. 18, 380 P.2d 658, in which the suspect's description as a fairly tall White man of large build with dark hair and a red sweater likewise failed to justify the arrest of a man matching that description who was merely in the "neighborhood" where a robbery had occurred more than 20 minutes earlier and was "driving toward the scene of the crime, not away from it." (Id. at pp. 450, 454, 30 Cal.Rptr. 18, 380 P.2d 658.) But we have in this case much more than a vague description of a suspect that happens to be matched by someone in the general neighborhood where a crime occurred. The Bronco was traced to a particular residence by its registration as well as by Orvos's visual identification and the fact the engine was still warm. Kovarick told the officers that Daniel, the owner of the Bronco, was indeed home and that she would tell him to come to the door. Only then did a man matching Orvos's description attempt to flee from the house, although he eventually came to the door— after passing through Daniel's bedroom. When the man arrived at the front door, the officers immediately could tell that he was intoxicated. These additional facts soundly distinguish Curtis and Mickelson. (People v. Schader (1965) 62 Cal.2d 716, 724, 44 Cal.Rptr. 193, 401 P.2d 665; In re Louis F. (1978) 85 Cal.App.3d 611, 616, 149 Cal.Rptr. 642 ["Curtis and Mickelson should not be understood as standing for the proposition identification data furnished to a police officer can never alone be sufficient to justify a warrantless arrest unless there could not have been anyone other than the person arrested who could have fit the description. Rather, the question is one of degree. And when identification information of the kind here present is buttressed by additional probative evidence of complicity, it cannot be maintained probable cause was lacking"].)
Defendant also errs in supposing that the officers' lack of certainty defendant was the driver precludes a finding of probable cause. "`[S]ufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment.'" (Maryland v. Garrison (1987) 480 U.S. 79, 87, 107 S.Ct. 1013, 94 L.Ed.2d 72.)
B. Did Exigent Circumstances Justify a Warrantless Entry to Effect the Arrest?
The imminent destruction of evidence is an exigent circumstance justifying a warrantless entry into a residence to effect an arrest. (People v. Celis, supra, 33 Cal.4th at p. 676, 16 Cal.Rptr.3d 85, 93 P.3d 1027.) The People contend that the body's metabolization of alcohol qualified as the imminent destruction of evidence justifying a warrantless entry. Defendant disagrees, relying largely on Welsh.
Welsh held that the need to ascertain a suspect's blood-alcohol level did not justify a warrantless entry into a residence to effect an arrest for driving under the influence 757*757 in Wisconsin. (Welsh, supra, 466 U.S. at pp. 753-754, 104 S.Ct. 2091.) Welsh did not dispute the evanescent character of evidence of intoxication. Rather, the high court invalidated the arrest because "an important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made." (Id. at p. 753, 104 S.Ct. 2091; see also Brigham City v. Stuart (May 22, 2006, No. 05-502) ___ U.S. ___, ___, 126 S.Ct. 1943, ___ L.Ed.2d ___ [2006 WL 1374566, *5].) "[T]he best indication of the State's interest in precipitating an arrest," the court explained, is the classification of the offense and the possible punishment, which "can be easily identified both by the courts and by officers faced with a decision to arrest." (Welsh, supra, at p. 754, 104 S.Ct. 2091.)
Defendant, like the Court of Appeal here, reasons that DUI is likewise a minor offense in California and, under Welsh, cannot justify a warrantless entry to effect an arrest. We disagree. Wisconsin has chosen to classify a first offense for DUI as a noncriminal, civil forfeiture offense for which no imprisonment is possible. (Welsh, supra, 466 U.S. at p. 754, 104 S.Ct. 2091, citing Wis. Stat. § 346.65(2) (1975).) The issue thus presented in Welsh, as the high court explicitly stated, was whether "the Fourth Amendment prohibits the police from making a warrantless night entry of a person's home in order to arrest him for a nonjailable traffic offense." (Welsh, supra, 466 U.S. at p. 742, 104 S.Ct. 2091, italics added.) California, by contrast, classifies a first offense for driving under the influence as a criminal act that is punishable by no more than six months and no less than 96 hours in jail. (Veh. Code, § 23536, subd. (a).) The possibility of imprisonment distinguishes DUI in California from DUI in Wisconsin.
Other factors confirm that, in California, driving under the influence is not an "extremely minor" offense within the meaning of Welsh, supra, 466 U.S. at page 753, 104 S.Ct. 2091. When the Legislature amended Vehicle Code section 40300.5 to allow warrantless arrests for this misdemeanor offense not committed in the presence of the officer, it found and declared "that driving while under the influence of alcohol or drugs continues to pose a substantial danger to public health and safety, injuring over 65,000 people per year and killing an additional 2,400. Given the severity of the conduct involved, the exception in Section 40300.5 of the Vehicle Code from the general requirements of Section 836 of the Penal Code should be expanded to cover other instances in which the officer has reasonable cause to believe that the person to be arrested had been driving while under the influence of alcohol, drugs, or both." (Stats.1984, ch. 722, § 2, pp. 2646-2647; see also People v. Schofield, supra, 90 Cal.App.4th at p. 973, 109 Cal.Rptr.2d 429 ["The Legislature has recognized that driving under the influence is widespread and serious with potential for catastrophic consequences"].) This court, too, has recognized the "monstrous proportions of the problem" as well as "the horrific risk posed by those who drink and drive" (Burg v. Municipal Court (1983) 35 Cal.3d 257, 262, 198 Cal.Rptr. 145, 673 P.2d 732) and has declared its "resolve to support `all possible means of deterring persons from driving automobiles after drinking.'" (Peterson v. Superior Court (1982) 31 Cal.3d 147, 155, 181 Cal.Rptr. 784, 642 P.2d 1305.) We therefore believe Welsh was limited to Wisconsin's "amazing" decision to classify DUI as a civil nonjailable offense (Welsh, supra, 466 U.S. at p. 755, 104 S.Ct. 2091 (conc. opn. of Blackmun, J.)) and not as a categorical bar on warrantless arrests in the home for DUI in the vast majority of states that, like California, classify it as a 758*758 crime with the possibility of imprisonment. (People v. Hampton, supra, 164 Cal. App.3d 27, 34, 209 Cal.Rptr. 905; see also Welsh, supra, 466 U.S. at p. 761, 104 S.Ct. 2091 (dis. opn. of White, J.) ["a bright-line distinction between felonies and misdemeanors is untenable"; "the Court—wisely in my view—does not adopt such an approach"].)
Illinois v. McArthur (2001) 531 U.S. 326, 121 S.Ct. 946, 148 L.Ed.2d 838 (McArthur), which construed the scope of exigent circumstances in the related circumstance of preventing a suspect from entering his own home, provides additional support for our understanding of Welsh. In McArthur, the police suspected that marijuana had been hidden underneath the couch of the trailer where McArthur was living. The police informed McArthur of their suspicions and asked for permission to search the trailer, which McArthur denied. While one officer went to get a search warrant, McArthur was told he could not reenter the trailer unless an officer accompanied him. McArthur then reentered the trailer two or three times, and each time an officer stood just inside the door to observe what McArthur did. About two hours later, an officer returned with the warrant and found a small amount of marijuana in the trailer. (McArthur, supra, 531 U.S. at p. 329, 121 S.Ct. 946.) Relying on Welsh, McArthur argued that misdemeanor possession of marijuana, which was punishable in Illinois by up to 30 days in jail, was too minor an offense to justify the warrantless restraint he had suffered. (McArthur, at pp. 335-336, 121 S.Ct. 946.) The high court disagreed, reiterating that "`the penalty that may attach to any particular offense seems to provide the clearest and most consistent indication of the State's interest in arresting individuals suspected of committing that offense'" (id. at p. 336, 121 S.Ct. 946, quoting Welsh, supra, 466 U.S. at p. 754, fn. 14, 104 S.Ct. 2091.) and finding "significant distinctions" between "crimes that were `jailable,' not `nonjailable.'" (McArthur, at p. 336, 121 S.Ct. 946; see also id. at p. 337, 121 S.Ct. 946 (conc. opn. of Souter, J.) [observing that the risk of destruction of evidence of the misdemeanor would have justified a warrantless entry into the trailer].)
A substantial majority of our sister jurisdictions have limited Welsh's holding to nonjailable offenses and have thereby rejected defendant's extension of its rule to misdemeanor offenses where imprisonment is a potential penalty. (Mendez v. People (Colo.1999) 986 P.2d 275, 283 [distinguishing Welsh as involving "a minor, civil, nonjailable offense"]; Dolan v. Salinas (Conn.Super.Ct.1999) 1999 WL 566943, *4, 1999 Conn.Super. LEXIS 1988, *13 ["Unlike the State of Wisconsin, Connecticut provides for incarceration on a first conviction" for DUI]; Dyer v. State (Fla.Dist.Ct.App.1996) 680 So.2d 612, 613 [a misdemeanor punishable by up to a year in jail is "classified as a much more serious offense than in Welsh"]; Threatt v. State (1999) 240 Ga.App. 592, 524 S.E.2d 276, 280 (Threatt) [distinguishing Welsh because DUI, which is punishable by imprisonment of 10 days to 12 months, is "sufficiently serious criminal activity to justify an officer's warrantless, nonconsensual entry into a suspect's home to arrest the suspect"]; People v. Lagle (1990) 200 Ill. App.3d 948, 146 Ill.Dec. 551, 558 N.E.2d 514, 519 [distinguishing Welsh because DUI, a misdemeanor, is "considered a serious offense in Illinois"]; State v. Legg (Iowa 2001) 633 N.W.2d 763, 773 [distinguishing Welsh because DUI, which is punishable by two days to one year in jail, is a "serious misdemeanor"]; State v. Paul (Minn.1996) 548 N.W.2d 260, 267 [distinguishing Welsh because DUI is a misdemeanor 759*759 and the legislature had authorized warrantless arrests for this offense when it occurs outside the officer's presence]; City of Kirksville v. Guffey (Mo.Ct.App.1987) 740 S.W.2d 227, 229 [distinguishing Welsh because DUI is punishable by up to six months in jail]; State v. Ellinger (1986) 223 Mont. 349, 725 P.2d 1201, 1204 [distinguishing Welsh because DUI is a criminal offense with the possibility of imprisonment]; State v. Nikola (App.Div.2003) 359 N.J.Super. 573, 821 A.2d 110, 118 [distinguishing Welsh because "in this State a charge of driving while under the influence of alcohol may subject an offender to a jail term of up to thirty days even for a first offense"]; People v. Odenweller (1988) 137 A.D.2d 15, 527 N.Y.S.2d 127, 129 [distinguishing Welsh because DUI is punishable by up to one year in jail]; Beachwood v. Sims (1994) 98 Ohio App.3d 9, 647 N.E.2d 821, 825 [distinguishing Welsh because DUI is a misdemeanor punishable by a minimum term of three days in jail]; State v. Roberts (1985) 75 Or.App. 292, 706 P.2d 564, 566 [distinguishing Welsh because DUI is a misdemeanor punishable by up to one year in jail]; Beaver v. State (Tex.App. 2003) 106 S.W.3d 243, 248 [distinguishing Welsh "from cases, such as this one, where the offense is `jailable'"]; City of Orem v. Henrie (Utah Ct.App.1994) 868 P.2d 1384, 1392 [distinguishing Welsh because DUI is a misdemeanor punishable by imprisonment]; Cherry v. Com. (2004) 44 Va.App. 347, 605 S.E.2d 297, 307 ["if any bright line exists for warrantless entries into the home, it should be drawn between jailable and nonjailable offenses rather than between felonies and misdemeanors"]; State v. Griffith (1991) 61 Wash.App. 35, 808 P.2d 1171, 1176 & fn. 7 [distinguishing Welsh as a case involving a noncriminal, civil forfeiture offense without possible imprisonment]; Goines v. James (1993) 189 W.Va. 634, 433 S.E.2d 572, 577-578 [distinguishing Welsh because DUI is a serious traffic offense punishable by up to six months in jail]; State v. Hughes (2000) 233 Wis.2d 280, 607 N.W.2d 621, 631 [distinguishing Welsh because the misdemeanor offense was punishable by up to six months in jail]; Rideout v. State (Wyo. 2005) 122 P.3d 201, 210 ["The unmistakable implication of the discussion in McArthur is that the distinction drawn by the Court in Welsh between minor offenses that do not justify a warrantless entry into a residence and those offenses that do is predicated upon whether the subject offense carries a potential jail term"]; accord, Joyce v. Town of Tewksbury, Mass. (1st Cir.1997) 112 F.3d 19, 22 (en banc) ["the fact that Massachusetts classifies the alleged violation here as a misdemeanor does not reduce it to a `minor offense'" within the meaning of Welsh].).)
Against this impressive array of authority, we have found only three courts that, like the Court of Appeal below, have extended Welsh to misdemeanors carrying a possibility of imprisonment. In Patzner v. Burkett (8th Cir.1985) 779 F.2d 1363, the Eighth Circuit asserted, without much analysis, that the punishment for DUI in North Dakota—a minimum sentence of a $100 fine or three days in jail—was only a "minor difference in penalty" and thus was "not sufficient to support a result different from that reached in Welsh," inasmuch as the state had since amended its statute to eliminate the possibility of imprisonment for first-time offenders. (Patzner, supra, 779 F.2d at pp. 1368-1369 & fn. 6.) In State v. Flegel (S.D.1992) 485 N.W.2d 210, the South Dakota Supreme Court made the remarkable assertion that the misdemeanor penalties for first-offense DUI, which ranged up to one year in jail, were "similar" to those attaching to the nonjailable traffic offense in Welsh and the misdemeanor penalties in Patzner. (Flegel, supra, 485 N.W.2d at p. 215.) And in 760*760 Norris v. State (1999) 338 Ark. 397, 993 S.W.2d 918, the Arkansas Supreme Court held that DUI, which was punishable by up to one year in jail, was "relatively minor" when compared to criminal offenses involving violence or the threat of violence. (Id. at p. 923; but see 3 LaFave, Search and Seizure (4th ed.2004) § 6.1(f), p. 316, fn. 211 [criticizing Norris].))
We do not find these decisions persuasive. First of all, they ignore Welsh itself, which cautions that the critical factor is not the nature of the crime but "the penalty that may attach to any particular offense." (Welsh, 466 U.S. at p. 754, fn. 14, 104 S.Ct. 2091; see also Colb, The Qualitative Dimension of Fourth Amendment "Reasonableness" (1998) 98 Colum. L.Rev. 1642, 1683 ["If Wisconsin were unhappy with the Court's decision, it could, therefore, nullify it prospectively by simply changing (legislatively) the status of driving while intoxicated from a civil violation to a criminal offense"].) Indeed, they all predate McArthur, which clarified that the significant distinction for Fourth Amendment purposes in an analogous context is whether the crimes were "`jailable'" or "`nonjailable.'" (McArthur, supra, 531 U.S. at p. 336, 121 S.Ct. 946.) Moreover, none of these cases acknowledges the substantial weight of authority limiting Welsh to nonjailable offenses—or even cites a single contrary case. Finally, a bright-line rule limiting warrantless entries to felonies "would send a message to the `bad man' who drinks and drives that a hot pursuit or arrest set in motion can be thwarted by beating the police to one's door. The Fourth Amendment simply cannot be stretched nor can public safety be ensured by a bright-line felony rule which would encourage drunk drivers to elude the police by racing through the streets to the sanctuary of their houses in order to `freeze' a hot pursuit or to otherwise evade a lawful arrest." (State v. Paul, supra, 548 N.W.2d at p. 268.)
If, as we have concluded, a finding of exigent circumstances in DUI cases is not categorically precluded by Welsh, we must next consider whether exigent circumstances justified the warrantless entry in this particular case. The People rely on the exception to the warrant requirement for the imminent destruction of evidence. They point out (1) that defendant's blood-alcohol level would have diminished while the police sought a warrant as the body metabolized the alcohol, and (2) that defendant could have masked his blood-alcohol level while the police sought a warrant by ingesting more alcohol. The People's concerns are well founded.
It is beyond dispute that "the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system." (Schmerber v. California (1966) 384 U.S. 757, 770, 86 S.Ct. 1826, 16 L.Ed.2d 908.) Because the "delay necessary to procure a warrant ... may result in the destruction of valuable evidence," "blood and breath samples taken to measure whether these substances were in the bloodstream when a triggering event occurred must be obtained as soon as possible." (Skinner v. Railway Labor Executives' Assn. (1989) 489 U.S. 602, 623, 109 S.Ct. 1402, 103 L.Ed.2d 639.) Neither defendant nor the dissenting opinion here offers any reason why the dissipation of blood-alcohol evidence may be deemed to threaten the imminent destruction of evidence in Schmerber and in Skinner but not in this case. Nor does defendant offer any authority for his assertion at oral argument that the exigent circumstance relating to the imminent destruction of evidence encompasses only that evidence which qualifies as contraband or as an instrumentality of a crime. To the contrary, 761*761 most courts have concluded that the dissipation of blood-alcohol evidence "may constitute an exigent circumstance under the facts of a particular case." (City of Orem v. Henrie, supra, 868 P.2d at p. 1389; accord, Threatt, supra, 524 S.E.2d at p. 281, fn. 1 ["when an officer has probable cause to arrest for the offense of DUI, the need to prevent destruction of evidence (which may occur by the dissipation of alcohol from a DUI suspect's blood while a warrant is obtained) may constitute an exigent circumstance which could justify a nonconsensual, warrantless entry into the suspect's home to arrest the suspect"]; State v. Komoto (1985) 40 Wash. App. 200, 697 P.2d 1025, 1033 ["This proposition is generally accepted by federal and state courts"]; State v. Bohling (1993) 173 Wis.2d 529, 494 N.W.2d 399, 404-405 [citing cases]; U.S. v. Reid (4th Cir.1991) 929 F.2d 990, 993-994.)
Defendant contends that no exigency existed because there is a rebuttable presumption that a driver had a blood-alcohol level of 0.08 percent or more at the time of driving if the person had a blood-alcohol level of 0.08 percent or more in a chemical test performed "within three hours after the driving." (Veh.Code, § 23152, subd. (b).) Defendant misapprehends the significance of this provision, which is not a presumption at all, but only a permissive inference. (Judicial Council of Cal., Jury Instns. (2006) Bench Note to CALCRIM No. 2111, p. 149; accord, Use Note to CALJIC No. 12.61.1 (Jan.2005 ed.) p. 845.) That the jury may, but is not required to, conclude that defendant's blood-alcohol level was in excess of legal limits based on a test taken within three hours of the driving does not eviscerate the People's interest in securing a blood test as soon as possible. (State v. Bohling, supra, 494 N.W.2d at p. 405; City of Orem v. Henrie, supra, 868 P.2d at p. 1393, fn. 10 [such a limitation "evinces the Legislature's intent to promote the rapid attainment of chemical tests for alcohol content"].)
We are likewise unpersuaded by defendant's claim that any exigency is eliminated because of the possibility an expert could testify about the defendant's blood-alcohol level at an earlier point "by extrapolating backward from the later-taken results." As courts have recognized, "such extrapolations can be speculative." (State v. Bohling, supra, 494 N.W.2d at p. 405.) "[T]here are numerous variables such as weight, or time and content of last meal which may affect the rate at which the alcohol dissipates." (Carleton v. Superior Court (1985) 170 Cal.App.3d 1182, 1185, 216 Cal.Rptr. 890; see also Bennett v. Coffman (1987) 178 W.Va. 500, 361 S.E.2d 465, 469 [degree of physical exertion can affect body's metabolism of alcohol].)
762*762 In any event, none of defendant's arguments is responsive to the corruption of evidence that occurs when the suspect takes advantage of any delay to ingest more alcohol—or to claim to have done so—or when the suspect evades police capture until he or she is no longer intoxicated. Numerous courts have recognized this possibility as an additional reason supporting a finding of exigent circumstances in DUI cases. (Welsh, supra, 466 U.S. at p. 763, 104 S.Ct. 2091 (dis. opn. of White, J.); State v. Lovig (Iowa 2004) 675 N.W.2d 557, 566 & fn. 2; State v. Legg, supra, 633 N.W.2d at pp. 772-773; State v. Seamans, supra, 2005 Me.Super. LEXIS 105, *11, fn. 3; State v. Paul, supra, 548 N.W.2d at p. 267; City of Kirksville v. Guffey, supra, 740 S.W.2d at p. 229; People v. Odenweller, supra, 527 N.Y.S.2d at p. 129; Stark v. N.Y. State Dept. of Motor Vehicles (1984) 104 A.D.2d 194, 483 N.Y.S.2d 824, 826-827, affd. (1985) 65 N.Y.2d 720, 492 N.Y.S.2d 8, 9, 481 N.E.2d 548; City of Orem v. Henrie, supra, 868 P.2d at p. 1393; State v. Komoto, supra, 697 P.2d at p. 1033.) In this case, the corruption of evidence was not merely a theoretical possibility. The officers had good reason to believe that defendant, who had attempted to flee out the back door upon learning of their presence, would escape again or otherwise act to conceal his intoxication if given the opportunity. (See People v. Murphy (2005) 37 Cal.4th 490, 500, 36 Cal.Rptr.3d 125, 123 P.3d 155.) Time was of the essence here.
In holding that exigent circumstances justified the warrantless entry here, we need not decide—and do not hold—that the police may enter a home without a warrant to effect an arrest of a DUI suspect in every case. We hold merely that the police conduct here, taking into account all of the circumstances, was reasonable—with reasonableness measured as "`a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers.'" (Pennsylvania v. Mimms (1977) 434 U.S. 106, 109, 98 S.Ct. 330, 54 L.Ed.2d 331; accord, People v. Ramey (1976) 16 Cal.3d 263, 276, 127 Cal.Rptr. 629, 545 P.2d 1333 ["There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers"].)
The state's interest in effecting an arrest here was substantial. There was strong evidence that defendant had committed the dangerous act of DUI, a jailable offense. Officer Dejohn feared, however, the evidence of that crime was in imminent danger of destruction. His suspicions were justified. Slavka Kovarick had told the police, alternately, that defendant would be coming to the door soon, and that he was asleep and could not be woken up, but he was in fact neither sleeping nor coming to the door. Instead, he spoke quietly in the hall with Kovarick and then 763*763 walked away from the officers into the backyard. The police were able to see defendant leave the house only because the front door was open, and defendant returned to the house only after Officer Dejohn made eye contact with him and motioned for him to come back in. Having attempted to flee once, defendant was at risk of doing so again if he was not promptly taken into custody. Had he escaped, the evidence of his crime would have dissipated. Even if he had been prevented from escaping, he had already demonstrated plainly his desire to evade police investigation and could have corrupted the evidence simply by resuming drinking. The police thus had ample cause to believe defendant was inside the house and that the evidence was at risk of imminent destruction, as the superior court found. (Cf. Vale v. Louisiana (1970) 399 U.S. 30, 34-35, 90 S.Ct. 1969, 26 L.Ed.2d 409 [no exigency existed where the officers had no basis for suspecting anyone was inside the house or about to destroy the narcotics].)
The Court of Appeal emphasized in particular that the police had not conducted a hot pursuit in that the pursuit was initiated by a citizen and the police did not observe defendant driving or entering the house. Even if the definition of hot pursuit were to exclude the situation here (but see People v. Escudero (1979) 23 Cal.3d 800, 810, 153 Cal.Rptr. 825, 592 P.2d 312 ["it is not necessary that the suspect be kept physically in view at all times"]), it is clear that defendant had arrived at the house only minutes before the police. The police thus had reasonable cause to believe the evidence of defendant's intoxication would be fresh at the time of his arrest.
The intrusion on defendant's privacy, by contrast, was a diminished one. Kovarick had left the front door wide open during the entire encounter. This not only rendered a forcible entry unnecessary, but it exposed to public view the very area where the arrest would later occur. (Cf. U.S. v. Gori (2d Cir.2000) 230 F.3d 44, 53 ["Once the apartment was opened to public view by the defendants in response to the knock of an invitee, there was no expectation of privacy as to what could be seen from the hall"]; U.S. v. Vaneaton (9th Cir.1995) 49 F.3d 1423, 1427.) Moreover, Officer Dejohn entered only a few feet beyond the threshold, and Officer Gutierrez followed only when it became apparent that his assistance was necessary to overcome defendant's resistance. Neither conducted a search of the residence. In short, the state's intrusion into the home was the minimum necessary to effect the arrest and extended only to areas already exposed to public view. Under these circumstances, it was reasonable for the police to enter the home without a warrant in order to arrest defendant and thereby prevent the imminent destruction of evidence of his crime.
In light of our holding, we find it unnecessary to address the People's additional argument that even if the warrantless entry had violated the Fourth Amendment, the exclusionary rule would not extend to the officers' observations of defendant outside the house, any statements defendant made prior to the entry or after defendant was removed from the house, or the results of his blood-alcohol test. (See New York v. Harris, supra, 495 U.S. at p. 19, 110 S.Ct. 1640; People v. Marquez (1992) 1 Cal.4th 553, 569, 3 Cal.Rptr.2d 710, 822 P.2d 418.)
The judgment of the Court of Appeal is reversed.
764*764 WE CONCUR: GEORGE, C.J., KENNARD, CHIN, MORENO, and CORRIGAN, JJ.
Dissenting Opinion by WERDEGAR, J.
"A man's house is his castle." (Miller v. United States (1958) 357 U.S. 301, 307, 78 S.Ct. 1190, 2 L.Ed.2d 1332.) This phrase expresses the view that one's home is a place of personal privacy and its inhabitants are entitled to freedom from governmental intrusion absent a very good reason. "At the risk of belaboring the obvious, private residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant, and that expectation is plainly one that society is prepared to recognize as justifiable." (United States v. Karo (1984) 468 U.S. 705, 714, 104 S.Ct. 3296, 82 L.Ed.2d 530, quoted with approval in People v. Camacho (2000) 23 Cal.4th 824, 831, 98 Cal.Rptr.2d 232, 3 P.3d 878.) "We have, after all, lived our whole national history with an understanding of `the ancient adage that a man's home is his castle [to the point that t]he poorest man may in his cottage bid defiance to all the forces of the Crown.'" (Georgia v. Randolph (2006) ___ U.S. ___, ___, 126 S.Ct. 1515, 1524, 164 L.Ed.2d 208.)
Not just some forgotten vestige of 15th century English law that allowed English peasants to assert their rights against a powerful monarchy, the view that one's home is a place of privacy was also shared by the Framers of the United States Constitution. We need not interpret or gloss the constitutional text for hidden or obscure meaning, for the drafters of the Fourth Amendment made this point plain on the face of the document: "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause." (U.S. Const., 4th Amend., italics added.)
The United States Supreme Court has emphasized repeatedly the primacy of the constitutional protection for persons in their homes. "`[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.'" (Payton v. New York (1980) 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639.) "At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." (Silverman v. United States (1961) 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734.) The high court has been vigilant in extending this concept in the face of new technological threats to the sanctity of the home. (See Kyllo v. United States (2001) 533 U.S. 27, 28, 121 S.Ct. 2038, 150 L.Ed.2d 94 [warrantless use of a thermal imaging device to explore details inside home violated 4th Amend.]; United States v. Karo, supra, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 [warrantless placement of a beeper into a home violated 4th Amend.].)
This court has also on numerous occasions recognized this special constitutional protection for persons in their homes. For example, we held a warrantless search of a suspect's home could not be justified by a parole search condition of which police were unaware (People v. Sanders (2003) 31 Cal.4th 318, 324, 2 Cal.Rptr.3d 630, 73 P.3d 496); that, absent more, the warrantless entry into a suspect's home was not justified solely by the arrest of the suspect outside the home (People v. Celis (2004) 33 Cal.4th 667, 676, 16 Cal.Rptr.3d 85, 93 P.3d 1027); that a person's expectation of privacy in the home was not compromised by his exposure of the home's interior to a private side yard (People v. Camacho, supra, 23 Cal.4th 824, 98 Cal. 765*765 Rptr.2d 232, 3 P.3d 878); and that the presumptive constitutional protection of the home extended to an attached garage (People v. Robles (2000) 23 Cal.4th 789, 795, 97 Cal.Rptr.2d 914, 3 P.3d 311; see Cal. Const., art. I, § 13). Perhaps our seminal case in this area is People v. Ramey (1976) 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333, where we held the warrantless entry into a suspect's home to make an arrest, even though supported by probable cause to believe he was guilty of a felony, was unreasonable per se under the Fourth Amendment to the United States Constitution and the state Constitution, at least in the absence of exigent circumstances. Four years later, the United States Supreme Court came to this view itself, holding in Payton v. New York that, in the absence of exigent circumstances, police entry into a suspect's home to arrest him for a felony was "presumptively unreasonable" in the absence of a warrant. (Payton v. New York, supra, 445 U.S. at p. 587, 100 S.Ct. 1371.)
I agree with the majority that Welsh v. Wisconsin (1984) 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732, wherein the high court concluded the warrantless arrest of a suspected drunk driver in his home was invalid, may plausibly be distinguished from the instant case on the ground the crime at issue in that case was not a jailable offense. (Maj. opn., ante, 43 Cal. Rptr.3d at pp. 756-757, 135 P.3d at pp. 8-9; Welsh v. Wisconsin, at pp. 742, 104 S.Ct. 2091 [emphasizing crime was "a nonjailable traffic offense"], 753, 104 S.Ct. 2091 ["important factor" was "the gravity of the underlying offense" and that crime was "a noncriminal, traffic offense"].) But even assuming Welsh is distinguishable from the instant case on the ground that incarceration is a possible punishment for drunk driving in California, I am not persuaded police were legally entitled, on the facts of this case, to enter defendant's home against his wishes without a warrant. The majority concedes, as it must, the Fourth Amendment's presumptive protection of persons in their homes, but reasons the warrantless entry into this defendant's home was justified by exigent circumstances. Because I disagree such circumstances existed here, and because I also find the majority's attempt to circumscribe the sweep of its holding unpersuasive, I dissent.
The ultimate standard established by the Fourth Amendment to the United States Constitution is one of reasonableness. (Cady v. Dombrowski (1973) 413 U.S. 433, 439, 93 S.Ct. 2523, 37 L.Ed.2d 706.) Beginning with the unassailable proposition that the warrantless entry by government agents into a person's home is "presumptively unreasonable" (Payton v. New York, supra, 445 U.S. at p. 587, 100 S.Ct. 1371, italics added), courts have nevertheless recognized some "`specifically established and well-delineated exceptions' to the warrant requirement (Katz v. United States (1967) 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576), such as `"hot pursuit of a fleeing felon, or imminent destruction of evidence, ... or the need to prevent a suspect's escape, or the risk of danger to the police or to other persons inside or outside the dwelling"' (Minnesota v. Olson (1990) 495 U.S. 91, 100, 110 S.Ct. 1684, 109 L.Ed.2d 85)." (People v. Celis, supra, 33 Cal.4th at p. 676, 16 Cal.Rptr.3d 85, 93 P.3d 1027.) "A warrantless search by the police is invalid unless it falls within one of the narrow and well-delineated exceptions to the warrant requirement." (Flippo v. West Virginia (1999) 528 U.S. 11, 13, 120 S.Ct. 7, 145 L.Ed.2d 16; People v. Wharton (1991) 53 Cal.3d 522, 576-577, 280 Cal. Rptr. 631, 809 P.2d 290 [same].)
766*766 Once defendant demonstrated that police entered his home without a warrant, the burden shifted to the prosecution "to prove that the entry was nevertheless reasonable." (People v. Williams (1988) 45 Cal.3d 1268, 1300, 248 Cal.Rptr. 834, 756 P.2d 221.) Police admittedly did not have an arrest warrant permitting them to enter defendant's home and had been expressly denied consent to enter by defendant's housemate. (Georgia v. Randolph, supra, ___ U.S. ___, 126 S.Ct. 1515.) Although the majority hints otherwise (maj. opn., ante, 43 Cal.Rptr.3d at p. 763, 135 P.3d at p. 14), the forced entry cannot be justified under the hot pursuit doctrine, as "there was no immediate or continuous pursuit ... from the scene of the crime." (Welsh v. Wisconsin, supra, 466 U.S. at p. 753, 104 S.Ct. 2091.) Defendant had already arrived home, he was apparently sleeping in his bedroom, and police were on the scene; hence, "there was little remaining threat to the public safety." (Ibid.)
The majority concludes the failure by police to obtain a warrant before entering defendant's home is excused by the exigent-circumstances exception to the warrant requirement. "`"`[E]xigent circumstances' means an emergency situation requiring swift action to prevent imminent danger or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence. There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers."' [Citations.] The exception is applicable to the federal Constitution (see Mincey v. Arizona (1978) 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290) and `California courts are in full accord with the ... emergency exception to the warrant requirement.'" (People v. Wharton, supra, 53 Cal.3d at p. 577, 280 Cal.Rptr. 631, 809 P.2d 290.)
"In evaluating exigency, relevant factors include `"(1) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) reasonable belief that the contraband is about to be removed; (3) the possibility of danger to police officers guarding the site of the contraband while a search warrant is sought; (4) information indicating the possessors of the contraband are aware that the police are on their trail; and (5) the ready destructibility of the contraband and the knowledge `that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic.'"'" (People v. Gentry (1992) 7 Cal.App.4th 1255, 1261-1262, 9 Cal.Rptr.2d 742.)
The majority locates such an emergency situation inside defendant's body, which was slowly but inexorably metabolizing and thus destroying the alcohol police believed he had consumed. The emergency, in other words, involved the potential destruction of the evidence of defendant's crime of drunk driving. That such "burn off" occurs is undisputed. (People v. Schofield (2001) 90 Cal.App.4th 968, 975, 109 Cal.Rptr.2d 429; see In re Martin (1962) 58 Cal.2d 509, 512, 24 Cal.Rptr. 833, 374 P.2d 801 ["It is a matter of common knowledge that the intoxicating effect of alcohol diminishes with the passage of time"].) What is disputed is whether this natural metabolic process, standing alone, constitutes an emergency such that police may dispense with obtaining a warrant and immediately enter a person's home against his will.
None of the cases on which the majority relies supports its broad conclusion that the natural metabolization of blood alcohol alone constitutes an exigent circumstance sufficient to permit police to enter a person's 767*767 home against his or her wishes and without a warrant. For example, in Schmerber v. California (1966) 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, the United States Supreme Court cited the natural metabolization of a body's blood alcohol to justify the police taking a nonconsensual blood sample from a suspect notwithstanding the lack of a search warrant. But the defendant in Schmerber had already been arrested and was in police custody, not in his home. Moreover, the fact of the alcohol burn off was just one factor the high court considered: "We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner's arrest." (Id. at pp. 770-771, 86 S.Ct. 1826, italics added.) No such time pressures or "special facts" were shown in the instant case; indeed, police were on the scene just minutes after defendant apparently had taken his last drink. (See Vale v. Louisiana (1970) 399 U.S. 30, 35, 90 S.Ct. 1969, 26 L.Ed.2d 409 [in finding no exigent circumstances, court emphasized absence of evidence showing that obtaining a warrant was "impracticable"].)
Similarly, in Skinner v. Railway Labor Executives' Assn. (1989) 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639, the high court merely recognized that "alcohol and other drugs are eliminated from the bloodstream" (id. at p. 623, 109 S.Ct. 1402), a point no one disputes; it did not hold such elimination constituted an exigent circumstance entitling police to enter one's home without a warrant. Instead, the court held the warrant requirement was excused because the government's interest in regulating railway workers presented a special need beyond normal law enforcement. (Id. at p. 620, 109 S.Ct. 1402.)
The majority opines that "most courts have concluded that the dissipation of blood-alcohol evidence `may constitute an exigent circumstance under the facts of a particular case.'" (Maj. opn., ante, 43 Cal. Rptr.3d at p. 761, 135 P.3d at p. 12, italics added.) The qualifiers are important. The cases the majority cites in support are all distinguishable. In City of Orem v. Henrie (Utah Ct.App.1994) 868 P.2d 1384, the defendant was suspected not only of driving while intoxicated, but also of leaving the scene of an accident. In State v. Komoto (1985) 40 Wash.App. 200, 697 P.2d 1025, the defendant struck and killed a pedestrian. In both cases, the blood-alcohol evidence was needed to prosecute crimes far more serious than mere driving under the influence (DUI). The warrantless entry into a home may therefore have been justified. Here, by contrast, defendant was suspected only of driving while intoxicated, and at the time police entered his home any threat to public safety had ceased.
The majority also cites State v. Bohling (1993) 173 Wis.2d 529, 494 N.W.2d 399 and United States v. Reid (4th Cir.1991) 929 F.2d 990 in support (maj. opn., ante, 43 Cal.Rptr.3d at p. 761, 135 P.3d at p. 12), but in both cases the defendants were lawfully arrested outside the home, at the scene of a traffic accident (Bohling) or at a traffic stop on the highway (Reid); their challenges were to the warrantless drawing of a blood sample. The cases thus presented a straightforward application of Schmerber v. California, supra, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, and do not support the notion that the mere dissipation 768*768 of blood-alcohol evidence, standing alone, creates such an emergency that police may enter a suspect's home without a warrant or consent.
Finally, the majority cites Threatt v. State (1999) 240 Ga.App. 592, 596, 524 S.E.2d 276, but that case held, on facts similar to those here, that exigent circumstances did not, in fact, exist to authorize the warrantless entry to arrest for the crime of reckless driving. The Georgia appellate court then stated in dictum that—had officers possessed probable cause to arrest for DUI—the dissipation of evidence "may constitute an exigent circumstance." (Id. at p. 596, fn. 1, 524 S.E.2d 276, italics added.) In support, the Threatt court cited State v. Tosar (1986) 180 Ga.App. 885, 888, 350 S.E.2d 811, a case that did not involve entry into a home.
Invocation of the exigent-circumstances exception to the warrant requirement, moreover, must be supported by a showing of the "imminent destruction of evidence." (Minnesota v. Olson, supra, 495 U.S. at p. 100, 110 S.Ct. 1684, italics added; see also Brigham City v. Stuart (May 22, 2006, No. 05-502) ___ U.S. ___, ___, 126 S.Ct. 1943, ___ L.Ed.2d ___, 2006 WL 1374566, *4 [destruction of evidence must be "imminent"].) The prosecution made no showing in this case that the delay in obtaining a warrant would have resulted in the imminent destruction, as opposed to the gradual and incremental degradation, of the alcohol in defendant's body. Indeed, a delay of an hour or two to obtain a warrant would have made little difference, for "[i]t is common . . . for experts to take into account the metabolization rate of a substance and extrapolate from the amount of a substance in a blood sample to arrive at an opinion regarding the amount of the substance in the blood at a critical point in time." (People v. Clark (1993) 5 Cal.4th 950, 993, 22 Cal.Rptr.2d 689, 857 P.2d 1099.) The majority disparages the efficacy of so-called retrograde extrapolation evidence, asserting such evidence "`can be speculative'" (maj. opn., ante, 43 Cal. Rptr.3d at p. 761, 135 P.3d at p. 12), but surely it does not mean to suggest the admissibility of this type of evidence is suspect. In any event, the rule in this state (People v. Clark, supra, 5 Cal.4th 950, 22 Cal.Rptr.2d 689, 857 P.2d 1099) and, indeed, in the majority of jurisdictions, is that retrograde extrapolation evidence is admissible, though of course its weight is subject to challenge, as are the qualifications of the expert witness presenting the evidence. (See generally Annot., Admissibility and Sufficiency of Extrapolation Evidence in DUI Prosecutions (2004) 119 A.L.R.5th 379.)
To further support its contention the exigent-circumstances doctrine applies here, the majority relies on the possibility defendant could have corrupted the evidence of his alcohol consumption by consuming more alcohol. (Maj. opn., ante, 43 Cal.Rptr.3d at p. 762, 135 P.3d at p. 13.) But this argument proves too much, for the possibility exists in every case that a criminal suspect in his home will try to destroy evidence of his crime. The drug dealer may flush his stash away, the bookie may burn his betting slips, the killer may take a metal file to the barrel of his gun or clean his hands of gunshot residue. The mere possibility a defendant may drink additional quantities of liquor is insufficient to overcome the constitutionally 769*769 protected privacy interests of a person in his home. Instead, police must have articulable facts that would lead a reasonable officer to believe such destruction is about to occur. "`"[F]ear or apprehension alone that evidence will be destroyed will not justify a warrantless entry of a private home." [Citation.] Instead, "[t]here must exist `specific and articulable facts which, taken together with rational inferences...,' support the warrantless intrusion."'" (People v. Gentry, supra, 7 Cal.App.4th at p. 1262, 9 Cal.Rptr.2d 742.)
Vale v. Louisiana, supra, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409, illustrates this basic point of law. In that case, after police arrested the defendant outside a home, they entered the home without a warrant to search for drugs. The Louisiana Supreme Court upheld the search, in part, because the crime "involved narcotics, which are easily removed, hidden, or destroyed. It would be unreasonable, the Louisiana court concluded, `to require the officers under the facts of the case to first secure a search warrant before searching the premises, as time is of the essence inasmuch as the officers never know whether there is anyone on the premises to be search[ed] who could very easily destroy the evidence.'" (Id. at p. 34, 90 S.Ct. 1969.) The United States Supreme Court flatly rejected the state court's reasoning, explaining: "Such a rationale could not apply to the present case, since by their own account the arresting officers satisfied themselves that no one else was in the house when they first entered the premises. But entirely apart from that point, our past decisions make clear that only in `a few specifically established and well-delineated' situations [citation] may a warrantless search of a dwelling withstand constitutional scrutiny." (Ibid.) Because there was no evidence someone was about to remove or destroy evidence, the high court held the exigent-circumstances exception did not apply.
As in Vale v. Louisiana, supra, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409, the prosecution in this case presented no evidence suggesting defendant was about to alter evidence of his guilt by drinking again. Neither Officer Gutierrez nor Dejohn observed defendant drinking, or attempting to drink, any intoxicating beverage. Witness Madelene Orvos reported that defendant had discarded an empty bottle of vodka. Defendant's housemate, Slavka Kovarick, told police defendant was sleeping, which was apparently the case until police instructed her to awaken him. Although the majority opines that "[t]he officers had good reason to believe that defendant ... would ... act to conceal his intoxication if given the opportunity" (maj. opn., ante, 43 Cal.Rptr.3d at p. 762, 135 P.3d at p. 13), the record confirms police possessed no articulable facts suggesting defendant was actively corrupting, or about to corrupt, the blood-alcohol evidence by resuming his consumption of alcohol. By accepting in support of exigency the argument that defendant could corrupt the evidence, the majority converts the narrow exigent-circumstances exception to the constitutional warrant requirement into a free pass for police: So long as the destruction of evidence is possible, police may dispense with a warrant. But the possibility a suspect will destroy evidence exists in every case; that possibility thus cannot be the predicate for invoking the narrow exigent-circumstances exception to the constitutional requirement for a warrant. (Cf. People v. Gonzalez (1989) 211 Cal. App.3d 1043, 1050, 259 Cal.Rptr. 846 ["If specific indications of . . . destruction of evidence were not required, the exigent-circumstances exception would entirely consume" the knock-notice requirement].)
770*770 Realizing, perhaps, that none of its previous rationales adequately justify the warrantless entry, the majority suggests defendant had attempted to flee. (Maj. opn., ante, 43 Cal.Rptr.3d at pp. 762-763, 135 P.3d at pp. 13-14.) This suggestion finds no support in the record. Officer Dejohn testified defendant, on learning police were on his doorstep, left his house by the back door, walked about 10 feet into the backyard, and then returned to the house. Although this caused Dejohn to be concerned defendant would flee, he admitted defendant was so intoxicated that he was staggering and slurring his words and that he immediately returned to the house. But even assuming defendant might have attempted to flee, that possibility did not create an emergency situation justifying the warrantless entry. Police at the scene could easily have detained him while they sought a warrant. In any event, the prosecution did not argue below that defendant's asserted attempt to flee created an emergency situation, and the trial court did not mention this circumstance. The court denied defendant's suppression motion solely on the ground that his body's metabolization of alcohol in his blood constituted the destruction of evidence. (See Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640-641, 108 Cal.Rptr. 585, 511 P.2d 33 [People cannot change theory on appeal of suppression decision].)
Finally, the majority attempts to minimize the scope of its holding, explaining that it does not decide "that police may enter a home without a warrant to effect an arrest of a DUI suspect in every case. We hold merely that the police conduct here, taking into account all of the circumstances, was reasonable...." (Maj. opn., ante, 43 Cal.Rptr.3d at p. 762, 135 P.3d at p. 13.) I find the majority's attempt to circumscribe the sweep of its holding both unpersuasive and disingenuous. What are the circumstances in this case that make it unusual? Police had probable cause to believe defendant had recently become intoxicated and had driven home and that he was now inside his house. Police lacked both a warrant and consent to enter. Defendant's body was naturally metabolizing the alcohol, but that would be true in every crime involving alcohol. Defendant might consume additional alcohol, thereby corrupting the evidence, but that possibility, too, would exist in every case involving an alcohol-related crime. Police, in any event, had no articulable facts to suggest defendant was about to drink anything. Under the majority's reasoning, therefore, it would appear that any time police have probable cause to arrest someone for an alcohol-related crime (for which the possible penalty involves some jail time) and they reasonably believe the suspect is in his home, they may forcibly enter without a warrant to make an arrest to preserve the blood-alcohol evidence. One can only hope the majority's reasoning today is akin to "a restricted railroad ticket, good for this day and train only." (Smith v. Allwright (1944) 321 U.S. 649, 669, 64 S.Ct. 757, 88 L.Ed. 987 (dis. opn. of Roberts, J.).)
That those enforcing our criminal laws will proceed vigorously is generally to society's benefit, but the Fourth Amendment to the United States Constitution places reasonable and recognizable limits on such activities. One such limit is that the warrantless entry into an individual's home is presumptively unreasonable unless justified by one of the narrow exceptions to the warrant requirement. By requiring, in all other situations, the interposition of the considered judgment of a neutral magistrate, the Constitution protects the citizenry's reasonable expectation of privacy in their homes. As Justice Robert Jackson 771*771 explained: "The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers. Crime, even in the privacy of one's own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent." (Johnson v. United States (1948) 333 U.S. 10, 13-14, 68 S.Ct. 367, 92 L.Ed. 436.)
The majority endorses a scheme today by which police may too easily evade the warrant requirement. Because I conclude its reasoning and result are contrary to the Fourth Amendment to the United States Constitution, I dissent.
 The dissent concedes that the dissipation of blood-alcohol evidence may constitute an exigent circumstance to justify a warrantless entry to effect an arrest, but would limit such arrests to crimes "far more serious than mere driving under the influence." (Dis. opn., post, 43 Cal.Rptr.3d at p. 767, 135 P.3d at p. 17.) The text of the Fourth Amendment, however, offers no basis for distinguishing between DUI, which is a serious and jailable offense in California (see ante, at pp. 757-758, 135 P.3d at pp. 8-9), and the crimes alleged in Henrie and Komoto, nor does the dissent point to any case law to support such a distinction. Indeed, inasmuch as the dissent concedes that the nonjailable offense in Welsh is distinguishable from the jailable offense in this case (dis. opn., post, at p. 765, 135 P.3d at p. 15), the line the dissent would draw between this case and Henrie or Komoto remains undefined.
 Defendant also argues that a person suspected of DUI may refuse to submit to chemical testing and accept the specified punishment, rendering the blood-alcohol evidence superfluous. Defendant once again misapprehends the statutory scheme. A person who drives a motor vehicle "is deemed to have given his or her consent to chemical testing" of his or her blood, breath, or urine for the purpose of determining the alcoholic or drug content of his or her blood (Veh.Code, § 23612, subds.(a)(1)(A) & (B), (d)(2)). "It is thus firmly established that a drunken driver has no right to resist or refuse such a test." (Bush v. Bright (1968) 264 Cal.App.2d 788, 792, 71 Cal.Rptr. 123.) Moreover, the possibility of sanctions under Vehicle Code section 13353 for the driver's refusal to submit to chemical tests does not preclude the People from also obtaining a blood sample without any further approval, based on the consent any driver has given under section 23612, and punishing the driver for the criminal act of driving under the influence. (Covington v. Department of Motor Vehicles (1980) 102 Cal. App.3d 54, 60, 162 Cal.Rptr. 150; People v. Fite (1968) 267 Cal.App.2d 685, 690-691, 73 Cal.Rptr. 666.)
 To the extent dictum in People v. Schofield, supra, 90 Cal.App.4th at pages 970 and 975, 109 Cal.Rptr.2d 429, is inconsistent with the views expressed herein, it is disapproved.
 See also Vehicle Code section 23152, subdivision (b) which states in part: "In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving."
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People v. Bransford, 884 P. 2d 70 - Cal: Supreme Court 1994ReadHow citedSearch
People v. Bransford, 884 P. 2d 70 - Cal: Supreme Court 1994
8 Cal.4th 885 (1994)
884 P.2d 70
35 Cal. Rptr.2d 613
THE PEOPLE, Plaintiff and Respondent,
DONALD E. BRANSFORD et al., Defendants and Appellants.
Docket No. S033486.
Supreme Court of California.
November 23, 1994.
Gregg L. McDonough, Public Defender, under appointment by the Municipal Court, and Stephan Van Decker, Deputy Public Defender, for Defendants and Appellants.
Margaret H. Marr, Ed Kuwatch, John Halley, Esther R. Sorkin, Plourd & Breeze, John W. Breeze and Douglas E. Gee as Amici Curiae on behalf of Defendants and Appellants.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Frederick R. Millar, Jr., Patti W. Ranger, Deputy Attorneys General, William E. Haynes, District Attorney, and Albert J. Hackworth, Deputy District Attorney, for Plaintiff and Respondent.
Michael R. Capizzi, District Attorney (Orange) and E. Thomas Dunn, Jr., Deputy District Attorney, as Amici Curiae on behalf of Plaintiff and Respondent.
(1) We granted review in these consolidated matters to consider whether the trial court should have allowed defendants convicted of driving with 0.08 percent or more of alcohol in their blood to challenge 888*888 their breath-test results by showing that their personal ratio of breath-alcohol concentration to blood-alcohol concentration (the "partition ratio") differed from the standard partition ratio that breath-testing machines use to convert breath-alcohol readings into blood-alcohol equivalents. As will appear, we conclude the trial court correctly excluded such evidence, and we therefore affirm the judgment of the Court of Appeal to that effect.
Defendant Donald E. Bransford was arrested for drunk driving on August 18, 1991. He took a breath test, which showed a blood-alcohol concentration of 0.09 percent. A jury convicted him on October 22, 1992, of violating former Vehicle Code section 23152, subdivision (b) (hereafter section 23152(b)), i.e., driving a vehicle while having 0.08 percent or more, by weight, of alcohol in the blood.
Defendant Ralph Maldonado was arrested on or about June 27, 1991. Although the record does not specifically so state, he also took a breath test. He was convicted on September 24, 1991, of violating section 23152(b).
Both defendants contended on appeal to the appellate department of the superior court and, following certification, to the Court of Appeal that the trial court improperly excluded the above described evidence of their personal partition ratios. The Court of Appeal rejected the contention and affirmed the judgments.
In Burg v. Municipal Court (1983) 35 Cal.3d 257 [198 Cal. Rptr. 145, 673 P.2d 732] (Burg), we reviewed the history of the Legislature's initial responses to the problem of drunk driving, and upheld the first California statute to criminalize the act of driving with a specified percentage of alcohol in the blood. We held that the statute defined the "new and separate offense" of driving with a prohibited blood-alcohol concentration (35 Cal.3d at p. 265), and that it was a valid exercise of the police power and was not void for vagueness (id. at pp. 266-273).
In 1989, in the immediate predecessor to the statute under which defendants were convicted, the Legislature lowered the prohibited blood-alcohol concentration from 0.10 percent to 0.08 percent. Because the statute continued to define the offense solely in terms of "grams of alcohol per 100 889*889 milliliters of blood," the prosecution continued to convert breath-test results into equivalent readings per 100 milliliters of blood. The relevant regulation of the Department of Health Services required that such conversion use a standard partition ratio treating the amount of alcohol per 210 liters of breath as equivalent to the amount of alcohol per 100 milliliters of blood. (Cal. Code Regs., tit. 17, § 1220.4, subd. (f).)
Many variables, however, can affect the actual ratio of an individual's breath-alcohol concentration to blood-alcohol concentration. These variables include body temperature, atmospheric pressure, medical conditions, sex, and the precision of the measuring device. (Thompson, The Constitutionality of Chemical Test Presumptions of Intoxication in Motor Vehicle Statutes (1983) 20 San Diego L.Rev. 301, 327; Annot. (1991) 90 A.L.R.4th 155, 160.) Changes in these variables may result in a difference between an individual's actual blood-alcohol level and the blood-alcohol level determined by applying the standard partition ratio to the breath-test results.
Courts therefore allowed defendants charged under the predecessor statute to attack breath-test results on the basis of this variability. Defendants were initially allowed to demonstrate only that their personal partition ratio differed from the standard partition ratio. (See, e.g., People v. Pritchard (1984) 162 Cal. App.3d Supp. 13, 17 [209 Cal. Rptr. 314]; People v. Herst (1987) 197 Cal. App.3d Supp. 1, 3-4 [243 Cal. Rptr. 83].) They would do so by simultaneously measuring their breath-alcohol concentration and blood-alcohol concentration over a period of time. (See, e.g., People v. Cortes (1989) 214 Cal. App.3d Supp. 12, 21 [263 Cal. Rptr. 113] (Cortes); People v. Lepine (1989) 215 Cal. App.3d 91, 94 [263 Cal. Rptr. 543] (Lepine).) Later courts also allowed defendants to demonstrate that partition ratios differ among individuals generally. (See, e.g., Lepine, supra, 215 Cal. App.3d at p. 101.) Defendants would usually do so by having an expert testify that the standard partition ratio is merely an approximation and that different individuals have different personal partition ratios. (See, e.g., Lepine, supra, 215 Cal. App.3d at p. 101; Cortes, supra, 214 Cal. App.3d at p. Supp. 19.)
Defendants here, however, were convicted under section 23152(b), not its predecessor. By the time of their arrests, the Legislature had amended the predecessor statute by adding the following italicized language:
"It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.
890*890 "For purposes of this subdivision, percent, by weight, of alcohol in a person's blood shall be based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath." (Stats. 1990, ch. 708, § 1, italics added.)
Speaking largely through their amici curiae, defendants briefly contend the amendment made no substantive change to the predecessor statute but merely codified the existing administrative definition of the standard partition ratio. (Cal. Code Regs., tit. 7, § 1220.4, subd. (f).) They argue that section 23152(b) on its face continued to define the offense in terms of blood-alcohol concentration, and urge that the addition of the phrase, "in a person's blood," in the second paragraph reinforces this reading. Although the statute did specify that percent, by weight, of alcohol "shall be based on" grams of alcohol per 210 liters of breath, defendants argue that this phrase merely provided an alternate means for calculating the blood-alcohol concentration.
Although it is possible to read the statute this way, we believe there is instead only one reasonable manner in which to do so, i.e., the Legislature intended the statute to criminalize the act of driving either with the specified blood-alcohol level or with the specified breath-alcohol level. The second paragraph provided two distinct definitions, "For purposes of this subdivision," of the phrase, "percent, by weight, of alcohol in a person's blood." (Stats. 1990, ch. 708, § 1.) Under the second definition — i.e., "grams of alcohol per 210 liters of breath" — section 23152(b) prohibited the act of driving with 0.08 percent or more of blood alcohol as defined by grams of alcohol in 210 liters of breath.
The Legislature originally considered the addition of the phrase, "or grams of alcohol per 210 liters of breath," while enacting the bill that became the version of section 23152(b) effective January 1, 1992. (Sen. Bill No. 1119 (1989-1990 Reg. Sess.) § 25, enacted as Stats. 1989, ch. 1114, § 25, p. 4079.) Although the legislative history of that bill only briefly discusses the Legislature's reason for the change, one legislative digest does state that the bill would "Define [blood-alcohol concentration] as alcohol concentration expressed in ... grams of alcohol per 210 liters of breath." (Assem. Com. on Pub. Safety, Dig. of Sen. Bill No. 1119 (1989-1990 Reg. Sess.), as amended May 15, 1989, p. 3, italics added and deleted.)
891*891 The legislative history of the bill that became the version of section 23152(b) under which defendants were convicted (Assem. Bill No. 4318 (1989-1990 Reg. Sess.), enacted as Stats. 1990, ch. 708, § 1) lends further support to this interpretation. For example, the Court of Appeal buttressed with a legislative analysis of the bill its conclusion that section 23152(b) criminalized driving with either the stated blood-alcohol or breath-alcohol level. That analysis characterized the "key issue" of the bill as whether driving under the influence should "be statutorily defined in terms of the concentration of alcohol found in the breath when breath analysis is used." (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 4318 (1989-1990 Reg. Sess.) p. 1, italics added.) It observed that attacks by defendants on the partition ratio "result in expensive and time consuming evidentiary hearings and undermine successful enforcement of driving under the influence laws." (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 4318, supra, at p. 2.) It stated that the amendments would "eliminate the need for conversion of a breath quantity to a blood concentration of alcohol...." (Id. at p. 1, italics added.)
To read the statute to allow the prosecution to establish the offense solely by proof of a prohibited breath-alcohol level, moreover, promotes the state's interest in reducing the danger to the public caused by those who drink and drive. (See Burg, supra, 35 Cal.3d at pp. 261-262.) It will increase the likelihood of convicting such a driver, because the prosecution need not prove actual impairment. (American Bar Association Criminal Justice Section, Rep., Drunk Driving Laws and Enforcement (1986) p. 31.) Adjudication of such criminal charges will also require fewer legal resources, because fewer legal issues will arise. (Id. at p. 32.) And individuals prosecuted under 892*892 such a statute will be less likely to contest the charge. (Ibid.) It is true the Legislature could have drafted the statute more clearly. (E.g., U. Veh. Code (1992 rev.) § 11-902, subd. (a)(1); State v. McManus (1989) 152 Wis.2d 113 [447 N.W.2d 654, 657] [former Wisconsin statute].) Nevertheless, we hold as we did in Burg, supra, 35 Cal.3d at page 265, that section 23152(b) defined a particular type of prescribed conduct: it set forth an alternative definition of the offense of driving with a prohibited blood-alcohol concentration, i.e., driving with 0.08 percent or more of blood alcohol as defined by grams of alcohol in 210 liters of breath.
(2) Defendants contend section 23152(b) unconstitutionally created an irrebuttable conclusive presumption that the amount of alcohol in 210 liters of breath was equivalent to the amount of alcohol in 100 milliliters of blood. (See Ulster County Court v. Allen (1979) 442 U.S. 140 [60 L.Ed.2d 777, 99 S.Ct. 2213]; Sandstrom v. Montana (1979) 442 U.S. 510 [61 L.Ed.2d 39, 99 S.Ct. 2450].) In Burg, supra, 35 Cal.3d 257, we rejected a similar challenge to the predecessor to section 23152(b), which set forth the then-new offense of driving with a blood-alcohol level of 0.10 percent or more. We held that the statute "does not create a conclusive presumption of intoxication.... Instead, the statute defines, in precise terms, the conduct proscribed." (35 Cal.3d at p. 265.) We observed that "In other states that have enacted a statute similar to section 23152, subdivision (b), the courts have drawn the same conclusion, notably the Washington Supreme Court which declared, `The statute does not presume, it defines.' (State v. Franco (1982) 96 [Wn.2d] 816 [639 P.2d 1320, 1323]; see also State v. Abbott (1973) 15 Ore.App. 205 [514 P.2d 355, 357] [question is not whether defendant is intoxicated, but whether he had the specified level of alcohol in his blood]; State v. Gerdes (S.D. 1977) 252 N.W.2d 335, 335-336 [by proscribing driving with 0.10 percent blood alcohol, the legislature is `stating an offense']; cf. People v. Dillon (1983) 34 Cal.3d 441, 472-476 [194 Cal. Rptr. 390, 668 P.2d 697] [Pen. Code, § 189 does not presume malice; it defines first degree felony murder as an offense in which malice is not an element]." (Ibid.) Similarly, here section 23152(b) did not presume that the driver was intoxicated or "under the influence"; instead, it defined the substantive 893*893 offense of driving with a specified concentration of alcohol in the body. Thus, it did not create an irrebuttable conclusive presumption.
Defendants also contend section 28, subdivision (d), of article I of the California Constitution — declaring that trial courts shall not exclude "relevant evidence" from criminal trials except as provided by statute — mandated that this evidence be admissible. But evidence of the variability of partition ratios was not relevant evidence because, once again, section 23152(b) defined the offense without regard to such ratios. Defendants further contend the court's refusal to consider evidence of the variability of partition ratios denied them their rights to confrontation and counsel under the Sixth Amendment to the United States Constitution. It is clear, however, that "The accused does not have an unfettered right [under the Sixth Amendment] to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence." (Taylor v. Illinois (1988) 484 U.S. 400, 410 [98 L.Ed.2d 798, 811, 108 S.Ct. 646].) Because section 23152(b) defined the offense on the basis of grams of alcohol per 210 liters of breath, the court correctly ruled such evidence irrelevant and therefore inadmissible. Moreover, defendants remained free to challenge the breath-test results on other, relevant grounds, including the reliability of the machine and the manner in which the test was administered.
The judgment of the Court of Appeal is affirmed.
Lucas, C.J., Arabian, J., Baxter, J., George, J., and Werdegar, J., concurred.
KENNARD, J., Concurring and Dissenting.
Understandably alarmed by the carnage caused by drunk drivers on California's highways, the Legislature has toughened this state's laws directed at those who drive a vehicle 894*894 after consuming alcoholic beverages. In interpreting Vehicle Code section 23152, subdivision (b) (hereafter section 23152(b)) in this case, however, the majority has gone beyond the stringent prohibitions enacted by the Legislature and has on its own created the new crime of driving with alcohol in one's breath. This result is achieved only at a serious cost, for it not only tramples the long-standing rule that a court interpreting a criminal statute with two possible meanings must choose the one more favorable to the defendant, but it also invades the Legislature's exclusive power to create new crimes. Because the law does not permit us to take either action, and because in any event the defendants here were not charged with the majority's newly created crime of driving with alcohol in the breath, I conclude that the evidence at issue in this appeal was erroneously excluded.
In two separate and unrelated cases, the Imperial County District Attorney filed complaints against Donald Bransford and Ralph Maldonado, alleging that each defendant "did willfully and unlawfully, while having .08 percent and more, by weight, of alcohol in his blood, drive a vehicle," in violation of section 23152(b).
At the time relevant to this case, section 23152(b) provided in its first sentence: "It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle." (Italics added.) The next sentence stated that the "percent, by weight, of alcohol in a person's blood shall be based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath."
The prosecution presented evidence to the jury in each case that the defendant, after arrest, was given a test to measure the amount of alcohol in his breath. As determined by experts, the amount of alcohol contained in 210,000 milliliters (210 liters) of the average person's breath is equal to the amount of alcohol contained in 100 milliliters of the person's blood. At each trial, a prosecution expert, relying on this "partition ratio" of 210,000 to 100 (or 2,100 to 1), testified that the breath test showed more than 0.08 percent, by weight, of alcohol in the blood.
In each case, the defendant asked the trial court, outside the presence of the jury, for permission to cross-examine the prosecution's expert by asking 895*895 questions designed to show that the partition ratio of 2,100 to 1, even if accurate for the average person, did not accurately measure the amount of alcohol in this defendant's blood. In each case, the trial court denied the request, and the jury convicted the defendant of violating section 23152 (b). In addition, defendant Maldonado was found guilty of the separate offense of driving under the influence of alcohol (Veh. Code, § 23152 subd. (a)), while defendant Bransford was acquitted of that charge.
Both defendants appealed their convictions to the appellate department of the superior court, which consolidated the two cases and certified them to the Court of Appeal. (Cal. Rules of Court, rule 62(c).) The Court of Appeal upheld the convictions.
To determine the meaning of section 23152(b), we first examine the statute's language, read in a commonsense manner. (People v. Broussard (1993) 5 Cal.4th 1067, 1071 [22 Cal. Rptr.2d 278, 856 P.2d 1134]; People v. Morris (1988) 46 Cal.3d 1, 15 [249 Cal. Rptr. 119, 756 P.2d 843].) If the statutory language is ambiguous and susceptible to two plausible interpretations, we must, because this is a criminal statute, adopt the one more favorable to the defendant. (People v. Overstreet (1986) 42 Cal.3d 891, 896 [231 Cal. Rptr. 213, 726 P.2d 1288] (plur. opn.).)
The rule of construction that requires us to construe ambiguities and resolve doubts as to the meaning of criminal statutes in a defendant's favor is an old and well-established one. (Ex Parte Rosenheim (1890) 83 Cal. 388, 391 [23 P. 372] ["[T]he defendant [in a criminal case] is entitled to the benefit of every reasonable doubt ... as to the true interpretation of words or the construction of language used in a statute ...."]; Harrison v. Vose (1850) 50 U.S. (9 How.) 372, 378 [13 L.Ed. 179, 182] ["In the construction of a penal statute, it is well settled, also, that all reasonable doubts concerning its meaning ought to operate in favor of the [defendant]."].) One early court, describing how criminal statutes "always have been and ever should be" construed, stated the rule this way: "It should be a principle of every criminal code, and certainly belongs to ours, that no person be adjudged guilty of an offence unless it be created and promulgated in terms which leave no reasonable doubt of their meaning.... [A] court has no option where any considerable ambiguity arises on a penal statute, but is bound 896*896 to decide in favour of the party accused." (The Schooner Enterprise (C.C.D.N.Y. 1810) 8 Fed. 732, 734-735.)
This principle, referred to as the rule of lenity by the United States Supreme Court, is not an arbitrary creation of judges; it arises from two fundamental tenets of our criminal justice system. "First, `a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.' [Citations.] Second, because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity." (United States v. Bass (1971) 404 U.S. 336, 348 [30 L.Ed.2d 488, 496-497, 92 S.Ct. 515], fn. omitted, quoting McBoyle v. United States (1931) 283 U.S. 25, 27 [75 L.Ed. 816, 818, 51 S.Ct. 340] (per Holmes, J.); accord, Keeler v. Superior Court (1970) 2 Cal.3d 619, 631, 633 [87 Cal. Rptr. 481, 470 P.2d 617, 40 A.L.R.3d 420].)
As this court observed nearly 25 years ago: "[C]ourts cannot go so far as to create an offense by enlarging a statute, by inserting or deleting words, or by giving the terms used false or unusual meanings. [Citation.] Penal statutes will not be made to reach beyond their plain intent; they include only those offenses coming clearly within the import of their language. [Citation.] Indeed, `Constructive crimes — crimes built up by courts with the aid of inference, implication, and strained interpretation — are repugnant to the spirit and letter of English and American criminal law.' [Citation.]" (Keeler v. Superior Court, supra, 2 Cal.3d at p. 632.)
These rules of construction make short work of the task of interpreting section 23152(b). The first sentence of section 23152(b) describes the conduct proscribed: "It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle." In unambiguous language, the statute prohibits anyone having at least 0.08 percent of alcohol in the blood from driving a car. Nothing in this statutory language prohibits driving with a given quantity of alcohol in the breath.
At the time of defendants' arrests, the statute's second sentence provided: "For purposes of this subdivision, percent, by weight, of alcohol in a person's blood shall be based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath." (Stats. 1990, ch. 708, § 1, 897*897 italics added.) As is true of the statute's first sentence, nothing in the second sentence expressly forbids driving with alcohol in the breath. The second sentence does not purport to make any conduct unlawful, in contrast to the first sentence, which begins "It is unlawful...." On its face, the second sentence — by stating that percent of blood alcohol by weight "shall be based upon" either blood-alcohol or breath-alcohol measurements — merely sets forth two alternatives by which the prosecution may prove the crime of driving with 0.08 percent, by weight, of alcohol in one's blood. The prosecution can establish the defendant's blood-alcohol level either by showing the grams of alcohol per 100 milliliters of the defendant's blood or circumstantially by showing the grams of alcohol per 210 liters of the defendant's breath.
Thus, the plain language of section 23152(b) expressly prohibits only driving with alcohol in the blood, and not driving with alcohol in the breath. The majority acknowledges that it is "possible" to construe section 23152(b) as prohibiting only the act of driving with alcohol in one's blood. (Maj. opn., ante, at p. 890.)
The majority nonetheless relies on the second sentence of section 23152(b) to create an ambiguity in the meaning of the otherwise unambiguous phrase "alcohol in his or her blood" used in the first sentence. The majority asserts that the second sentence provides "two distinct definitions" of alcohol in a person's blood and under the second "definition" prohibits "the act of driving with 0.08 percent or more of blood alcohol as defined by grams of alcohol in 210 liters of breath." (Maj. opn., ante, at p. 890, original italics.) In doing so, the majority mischaracterizes the language of the second sentence, which nowhere purports to define the term "alcohol in [the] blood" used in the first sentence and does not state that alcohol in the blood is "defined by" alcohol in the breath.
In the majority's view, its reading of the second sentence makes the phrase "alcohol in his or her blood," as it is used in the first sentence to describe the conduct prohibited by section 23152(b), ambiguous and capable of meaning either alcohol in one's blood or alcohol in one's breath. The majority concludes from this that "the Legislature intended the statute to criminalize the act of driving either with the specified blood-alcohol level or with the specified breath-alcohol level." (Maj. opn., ante, at p. 890.) The majority then supports this conclusion by invoking the legislative history of section 23152(b).
898*898 It is irrelevant, however, whether the majority is correct that the second sentence of section 23152(b) renders the first sentence ambiguous and makes the majority's interpretation a possible construction. Even assuming that a legitimate ambiguity exists, because the majority's construction is the harsher one, the rule of lenity forbids us from adopting it. "[W]here there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant." (United States v. Bass, supra, 404 U.S. at p. 348 [30 L.Ed.2d at p. 497].) Because driving with alcohol in the blood is the only crime clearly within the language of section 23152(b), it is the only crime the Legislature created in that statute. (See Keeler v. Superior Court, supra, 2 Cal.3d at p. 632.) We have "no option" in the matter and our task of interpretation should end here. (See The Schooner Enterprise, supra, 8 Fed. at p. 735.)
Nevertheless, the majority, contrary to the settled rule of construction described above, adopts the construction unfavorable to defendants and holds that section 23152 creates two separate offenses — driving with alcohol in the blood, and driving with alcohol in the breath. By its suggestion that in interpreting penal statutes courts should choose the interpretation that will "increase the likelihood of convict[ion]," cause "fewer legal issues [to] arise," and make defendants "less likely to contest the charge," (maj. opn., ante, at pp. 891-892), the majority appears to be applying a completely unprecedented "rule of harshness" in interpreting section 23152(b).
Long ago, Chief Justice Marshall rejected in the strongest terms the proposition that a court should choose the harsher of two interpretations of a criminal statute in order to make the statute more effective at eradicating the evil it is aimed at: "The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals; and on the plain principle, that the power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the court, which is to define a crime, and ordain its punishment. [¶] ... It would be dangerous, indeed, to carry the principle, that a case which is within the reason or mischief of a statute, is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity, or of kindred character, with those which are enumerated." (United States v. Wiltberger (1820) 18 U.S. (5 Wheat.) 76, 95-96 [5 L.Ed. 37, 42].)
899*899 Even if the rule of lenity did not exist, in my view the majority's interpretation of the statute is an implausible rendering of what the Legislature intended here. In section 23152(b), only the first sentence purports to make any conduct unlawful, and the only conduct it makes unlawful is driving with alcohol in the blood. The second sentence does not purport to define the term "alcohol in the blood" to mean as well alcohol in the breath. Instead of using the word "define" or some equivalent term, the second sentence uses the construction "shall be based upon" to describe the relationship between alcohol in the blood and alcohol in the breath. A base is something that supports or provides the foundation for something else, as, for example, a block supports a column or evidence supports a conclusion. As used in the second sentence of section 23152(b), the phrase "shall be based upon" does not suggest a definitional relationship of equivalence or interchangeability between the two matters it connects (here, blood alcohol as percent by weight and breath alcohol), as the majority's reading proposes. To the contrary, the words "percent, by weight, of alcohol in a person's blood shall be based upon ... grams of alcohol per 210 liters of breath" suggest that existence of a given amount of blood alcohol is a conclusion inferentially derived by some intermediate process of reasoning or deduction from the existence of alcohol in the breath. Had the second sentence been intended as a definition, it would have likely used the words "means" or "is defined as," instead of "shall be based upon."
Thus, the more plausible construction of section 23152(b) is that it creates a permissive presumption, permitting but not requiring the jury to find that a person who has 0.08 grams of alcohol per 210 liters of the breath has 0.08 percent, by weight, of alcohol in the blood. Under this construction, anyone driving with 0.08 grams of alcohol in 210 liters of the breath could thereby be presumed to also have 0.08 percent, by weight, of alcohol in the blood, and therefore to have violated section 23152(b). In turn, the defendant could attempt to rebut the inference that the presumption gives rise to, by introducing evidence of the type that was excluded here. In my view, interpreting the second sentence of section 23152(b) as creating this rebuttable presumption is the most reasonable interpretation of the statutory language, as well as the one that is in accord with the rule of lenity.
Even if, as the majority holds, the Legislature did make it an offense to drive with a certain percentage of alcohol in one's breath, that offense is irrelevant here because neither defendant was so charged. In each case, the complaint alleged that the defendant "did willfully and unlawfully, while having .08 percent and more, by weight, of alcohol in his blood, drive a vehicle." (Italics added.) In each case, the jury instructions made no mention of driving with alcohol in the defendant's breath. Rather, in each case the trial court instructed the jury: "Any person who drives a vehicle with 0.08 percent or more, by weight, of alcohol in his blood, is guilty of a misdemeanor." (Italics added.) And in each case the verdict form made reference only to the amount of alcohol in the defendant's blood.
In short, the complaints, the jury instructions, and the verdicts all show that both defendants were charged with and convicted of driving with alcohol in their blood, and not the crime of alcohol in the breath that the majority has discovered lurking in the statute. Accordingly, the majority's 901*901 conclusion — that evidence of the relationship between breath alcohol and blood alcohol is irrelevant to its new crime of driving with alcohol in the breath — has no application to these defendants because they were not charged with or convicted of that crime.
In each case, the trial court erred in excluding the "partition ratio" evidence of the relationship between breath alcohol and blood alcohol that the defendants sought to introduce. Because section 23152(b) does not criminalize driving with alcohol in the breath, and because in any event both defendants were only charged with driving with alcohol in the blood, the prosecution was required to prove that each defendant had a blood-alcohol level of 0.08 percent or more, by weight. The prosecution attempted to prove circumstantially how much alcohol was in each defendant's blood by means of evidence showing how much alcohol was in his breath, and expert evidence calculating the blood-alcohol level of each defendant by applying a partition ratio of 2,100 to 1 to the breath-alcohol level of each defendant.
Each defendant sought to refute this inference of his blood-alcohol level by introducing evidence, through the prosecution's experts, of possible variations between the average partition ratio and the partition ratio of the defendants. It is undisputed that the correlation between blood-alcohol levels and breath-alcohol levels can vary in different individuals, and that the partition ratio of 2,100 to 1 is only an average value for that correlation. Here, the defendants' partition ratio evidence, by attempting to show that the partition ratio of 2,100 to 1 did not accurately establish the quantity of alcohol in each defendant's blood, was relevant to disproving the prosecution's theory as to the relationship between alcohol in the defendants' breath and alcohol in their blood. In each case, the trial court erred in excluding this evidence.
The question in each case remains whether the error was prejudicial. With regard to defendant Maldonado, the appellate record does not show the results of the test that measured the alcoholic content of his breath. Thus, it is impossible to determine the effect of the trial court's erroneous ruling. It may be that the quantity of alcohol in Maldonado's breath was so great that the expert would have testified that, even applying a partition ratio far more favorable to Maldonado, his blood-alcohol content nevertheless exceeded 0.08 percent. Because Maldonado has failed to satisfy his burden of producing an adequate record from which this court can assess whether the trial court's error was prejudicial, I would affirm his conviction of violating section 23152(b).
With respect to defendant Bransford, the prosecution's expert witness testified that the breath test showed a blood-alcohol concentration of 0.09 902*902 percent, close to the legal limit of 0.08 percent. In my view, if the trial court had permitted Bransford to cross-examine the prosecution's expert witness regarding the accuracy of the partition ratio, there is a reasonable probability that the jury would have entertained a reasonable doubt that the alcohol in his blood equaled or exceeded 0.08 percent. (See People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) I would therefore reverse defendant Bransford's conviction of violating section 23152(b).
"The temptation to stretch the law to fit the evil is an ancient one, and it must be resisted." (Moskal v. United States (1990) 498 U.S. 103, 132 [112 L.Ed.2d 449, 473, 111 S.Ct. 461] (dis. opn. of Scalia, J.).) We all share a desire to drive our cars free from the fear of injury or death at the hands of a drunk driver. A statute criminalizing driving with alcohol in the breath may well "promote the state's interest in reducing the danger to the public caused by those who drink and drive." (Maj. opn., ante, p. 891].)
As a court, however, our task is to apply the laws that the Legislature has enacted, not those it could have enacted but did not. Thus, no matter how tempting, this court cannot create a new crime of driving with a given amount of alcohol in the breath, by stretching the language of section 23152(b) "to fit the evil" of drunk driving, as the majority has done. It is up to the Legislature to make such conduct unlawful, doing so in terms that plainly and unmistakably give fair notice of the prohibited behavior. (See United States v. Bass, supra, 404 U.S. at pp. 348-349 [30 L.Ed.2d at pp. 496-498]; Keeler v. Superior Court, supra, 2 Cal.3d at pp. 632-633.) The Legislature has not yet done so. Accordingly, I would reverse the judgment of the Court of Appeal as to defendant Bransford. With respect to defendant Maldonado, he failed to show prejudice from the error in his case; therefore, I would affirm the Court of Appeal's judgment as to him.
Appellants' petition for a rehearing was denied January 19, 1995. Kennard, J., was of the opinion that the petition should be granted.
 All statutory references are to this code unless otherwise specified.
 The statute made it unlawful for any person "who has 0.10 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.... [¶] For purposes of this subdivision, percent, by weight, of alcohol shall be based upon grams of alcohol per 100 milliliters of blood." (Stats. 1981, ch. 940, § 33, p. 3578.)
 The statute thus made it unlawful for any person "who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle. [¶] For purposes of this subdivision, percent, by weight, of alcohol shall be based upon grams of alcohol per 100 milliliters of blood." (Stats. 1989, ch. 479, § 3, p. 1691.)
 The regulation is actually written in terms of the amount of alcohol in 2,100 milliliters of breath and the amount of alcohol in 1 milliliter of blood.
 In 1989, the Legislature enacted, effective January 1, 1992, the successor to the statute under which defendants were convicted. (Stats. 1989, ch. 1114, § 25, p. 4079.) The phrase, "or grams of alcohol per 210 liters of breath," first appeared there. The Legislature enacted the statute under which defendants were convicted after it enacted the successor statute (Stats. 1990, ch. 708, § 1); that statute also contained the quoted phrase. Although the statute under which defendants were convicted remained in effect only until January 1, 1992, essentially the same language is in force today.
 See also Assembly Committee on Public Safety, Digest of Assembly Bill No. 4318 (1989-1990 Reg. Sess.) page 2 ("statutorily defining driving under the influence of alcohol in terms of the concentration of alcohol found in the breath when breath analysis is used"); Assembly Office of Research, third reading analysis of Assembly Bill No. 4318 (1989-1990 Reg. Sess.) page 1 ("statutorily defin[es] driving under the influence of alcohol in terms of the concentration of alcohol found in the breath"); Senate Rules Committee Analysis of Assembly Bill. No. 4318 (1989-1990 Reg. Sess.) page 1 (same).
 See also Assembly Committee on Public Safety, Digest of Assembly Bill No. 4318, supra, page 2 ("Eliminate the need for conversion of a breath quantity to a blood concentration of alcohol"); Assembly Office of Research, third reading analysis of Assembly Bill No. 4318, supra, page 1 (same); Senate Rules Committee, Analysis of Assembly Bill No. 4318, supra, page 1 (same).
Amicus curiae observe that the Legislative Counsel's Digest refers to "conforming changes." (See Legis. Counsel's Dig., Assem. Bill No. 4318 (1989-1990 Reg. Sess.).) They argue that the quoted phrase proves the Legislature merely added for the sake of consistency the phrase, "or grams per 210 liters of breath," to the language that referred only to milliliters of blood; they suggest it did so to simplify the conversion from breath-alcohol to blood-alcohol concentration, but they fail to explain how this incorporation simplifies the conversion. They also assert the Legislature believed the federal government required states to statutorily — as opposed to administratively — define the partition ratio, but they offer no support for this claim.
 The Uniform Vehicle Code provides in the cited section that a person shall not drive a vehicle when "The alcohol concentration in such person's blood or breath is 0.08 or more based on the definition of blood and breath units in [the definition section]...." (U. Veh. Code, § 11-902, subd. (a), italics added.) The definition section provides that "Alcohol concentration shall mean either grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath." (Id., § 11-903, subd. (a)(5), italics added.)
 Although Illinois's drunk driving statute is worded differently, the court in People v. Capporelli (1986) 148 Ill. App.3d 1048 [103 Ill.Dec. 864, 502 N.E.2d 11] interpreted it similarly. That court held that "The statute has provided two ways to measure the level of blood alcohol concentration; one by blood, by means of a blood test; the other by breath, by means of a breathalyzer test." (Id. at p. 14.)
 In their brief in this court defendants raise several additional issues. They make an equal protection argument. They also claim that "an erroneous conversion of an accurate breath-alcohol test resulted in an inaccurate blood-alcohol test," presumably implying the trial court should have allowed them to demonstrate that error. And they contend that under Penal Code section 1020 — providing that matters of fact tending to establish a defense are admissible on a guilty plea — they should have been allowed to present evidence of their personal partition ratios. Defendants did not timely raise these issues in the Court of Appeal. (Cal. Rules of Court, rule 29(b)(1).)
Defendant Maldonado, who was also convicted of driving under the influence of alcohol (§ 23152, subd. (a)), contends the court's failure to allow into evidence the fact of the variability of partition ratios converted the permissive presumption set forth in the standard instruction on the inference of intoxication (CALJIC No. 12.61 (5th ed. 1994 pocket pt.) p. 74) into an impermissible mandatory presumption. Because he failed to complain in a petition for rehearing that the Court of Appeal opinion did not discuss this issue, we do not address it. (Cal. Rules of Court, rule 29(b)(2).)
 Unless otherwise stated, all subsequent statutory references are to the Vehicle Code.
 In the case of defendant Bransford, the expert concluded that the breath test showed a blood-alcohol concentration of 0.09 percent, close to the legal limit of 0.08 percent. With respect to defendant Maldonado, the record does not disclose the exact results of the breath test.
 The appellate record contains no transcript of either trial, only settled statements. These reveal little about the evidence admitted at trial; each settled statement merely shows the trial court denied the defendant's request to cross-examine the expert on the accuracy of the partition ratio.
 The Legislature later amended the second sentence of section 23152(b) to read: "For purposes of this article and Section 34501.16, percent, by weight, of alcohol in a person's blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath." (Stats. 1992, ch. 974, § 16, italics added.)
 On occasion, we have construed facially ambiguous statutes adversely to criminal defendants when to do otherwise "`"`would result in absurd consequences which the Legislature did not intend.'"'" (People v. Broussard, supra, 5 Cal.4th at p. 1071; People v. Pieters (1991) 52 Cal.3d 894, 898-901 [276 Cal. Rptr. 918, 802 P.2d 420].) In this case, however, the majority does not contend that construing section 23152(b) favorably to defendants would result in "absurd consequences."
 As explained in People v. Milham (1984) 159 Cal. App.3d 487, 503 [205 Cal. Rptr. 688], "A permissive presumption allows — but does not require — the trier of fact to infer the ultimate fact from proof by the prosecutor of the `basic' fact, and places no burden of any kind on defendant."
 In addition, the differences between the statute enacted by our Legislature and the model drunk driving statute of the Uniform Vehicle Code, which unambiguously does criminalize driving with alcohol in one's breath, also show that section 23152(b) is not a statute that criminalizes driving with alcohol in the breath. The Uniform Vehicle Code prohibits a person from driving a vehicle when "The alcohol concentration in such person's blood or breath is 0.08 or more...." (U. Veh. Code (1992 rev.) § 11-902, subd. (a)(1), italics added.) By contrast, the prohibitory language of section 21532(b) prohibits only driving with "alcohol in [the] blood." Moreover, in discussing the measurement of alcohol in the blood and the breath, the Uniform Vehicle Code provides that "Alcohol concentration shall mean either grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath." (U. Veh. Code, supra, § 11-903, subd. (a)(5), italics added.) By contrast, the second sentence of section 21352(b) is cast in terms of "alcohol in [the] blood," not "alcohol concentration" generally, and uses the phrase "shall be based upon," rather than the definitional phrase "shall mean."
The Wisconsin and Illinois statutes referred to by the majority (maj. opn., ante, at p. 892 & fn. 9) also are statutes that, like the Uniform Vehicle Code, expressly create a separate offense of driving with alcohol in the breath. (State v. McManus (1989) 152 Wis.2d 113 [447 N.W.2d 654, 657] ["(1) No person may drive or operate a motor vehicle while:  [¶] (b) The person has a blood alcohol concentration of 0.1% or more by weight of alcohol in the person's blood or 0.1 grams or more of alcohol in 210 liters of that person's breath."]; People v. Capporelli (1986) 148 Ill. App.3d 1048 [103 Ill.Dec. 864, 502 N.E.2d 11, 14] ["`(a) A person shall not drive or be in actual physical control of any vehicle within this State while: (1) The alcohol concentration in such person's blood or breath is 0.10 or more.... [¶] ... 5. Alcohol concentration shall mean either grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.'"].) Unlike those states, our Legislature has not enacted a similar statute.
 In defendant Bransford's case, the verdict read: "We, the jury in the above-entitled cause, find the defendant DONALD EDWARD BRANSFORD GUILTY of the offense charged, to wit: COUNT 2, in violation of Sec. 23152b, of the Vehicle Code, a misdemeanor, said defendant did willfully and unlawfully, while having .08 percent or more, by weight, of alcohol in his blood, drive a vehicle." In defendant Maldonado's case, the verdict read: "We, the jury in the above-entitled cause, find the defendant RALPH MALDONADO GUILTY of the offense charged, to wit: CT II DRIVING WITH .08% OR MORE, ALCOHOL IN HIS BLOOD, IN VIOLATION OF 23152b of the VEHICLE CODE."
 It is arguable that by restricting defendant Bransford's cross-examination of the expert witness, the trial court violated his federal constitutional right to confront the witnesses against him, and that the effect of the trial court's error should be measured by the "harmless beyond a reasonable doubt" standard set forth in Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065]. Because I conclude that the error was prejudicial in any event, I do not reach this question.
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People v. Snook, 16 Cal. 4th 1210 - Cal: Supreme Court 1997ReadHow citedSearch
People v. Snook, 16 Cal. 4th 1210 - Cal: Supreme Court 1997
16 Cal.4th 1210 (1997)
THE PEOPLE, Plaintiff and Respondent,
GUY EDWARD SNOOK, Defendant and Appellant.
Docket No. S056760.
Supreme Court of California.
December 18, 1997.
Jeff Brown, Public Defender, Paul F. DeMeester, Deputy Public Defender, and Susan Bookout, under appointments by the Supreme Court, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Janelle Marie Boustany, Laura W. Halgren, Esteban Hernandez and Demetra P. Lewis, Deputy Attorneys General, for Plaintiff and Respondent.
Dennis L. Stout, District Attorney (San Bernardino), Grover D. Merritt and Mary L. Andonov, Deputy District Attorneys, as Amici Curiae on behalf of Plaintiff and Respondent.
Driving a vehicle while under the influence of alcohol or drugs is a misdemeanor. (Veh. Code, § 23152; see id., §§ 23160, 23165, 23170; all further statutory references are to the Vehicle Code unless otherwise noted.) Driving under the influence (DUI) may be charged as a felony rather than a misdemeanor when the offense occurs within seven years of three or more separate DUI violations which resulted in convictions. (§ 23175, subd. (a); hereafter section 23175(a).)
In this case we decide what happens when DUI convictions do not follow the chronological sequence in which the offenses were committed. Does the enhanced penalty still apply when the conviction for the first offense comes last? And if the increased penalty is imposed, would it violate the ex post facto clauses of the state and federal Constitutions?
We conclude the Legislature intended to subject repeat DUI offenders to enhanced penalties regardless of the order in which the offenses were committed and the convictions obtained, and the imposition of such a penalty does not violate any constitutional prohibition against ex post facto laws. Accordingly, the judgment of the Court of Appeal is reversed.
I. FACTS AND PROCEDURAL HISTORY
On April 6, 1992, defendant was arrested for DUI. He was released from custody with a promise to appear in municipal court on May 6, 1992. On April 24, 1992, a three-count misdemeanor complaint was filed, charging 1214*1214 defendant with DUI (§ 23152, subd. (a)); driving a vehicle while having 0.08 percent alcohol in the bloodstream (§ 23152, subd. (b)); and driving with a suspended driver's license (§ 14601.1, subd. (a)). Defendant appeared in court on May 6 as promised, was informed the court had no record of his matter and was not detained, but a bench warrant was later issued.
For the next 22 months, no further proceedings were held in connection with the April 6, 1992, offense. In the meantime, defendant was arrested for DUI on June 11, 1992, two months after defendant had committed his first DUI offense, and twice the following year, on September 23, 1993, and October 25, 1993. Defendant was convicted of all charges arising from the three arrests on October 2, 1992, January 25, 1994, and February 25, 1994, respectively.
When action resumed on the April 6, 1992, violations, the original misdemeanor complaint was amended to charge count Nos. 1 and 2 as felonies under section 23175(a), and an information was filed on April 27, 1994. Defendant admitted the truth of the allegations of three separate DUI violations occurring within seven years of the charged offenses. On July 26, 1994, after court trial, defendant was found guilty of the April 6, 1992, offenses. Imposition of sentence was suspended and defendant was placed on three years' probation on condition he spend three hundred sixty-five days in local custody.
Defendant appealed his conviction on various grounds, arguing primarily the 22 months between his offenses and trial constituted a denial of the constitutional right to speedy trial. The Court of Appeal requested supplemental briefing from the parties on whether the section 23175(a) allegations constituted an ex post facto or other impermissible application of law because the separate violations resulting in convictions occurred after the April 6, 1992, offenses. Defendant made the same argument unsuccessfully in the trial court in a motion to dismiss, but did not raise the issue on appeal.
In the unpublished part of the Court of Appeal's opinion, the court rejected defendant's speedy trial claim. In the portion of its opinion certified for publication, the Court of Appeal held section 23175(a) could not be applied to increase defendant's present offense from a misdemeanor to a felony, and struck the enhanced penalty. Characterizing section 23175(a) as a general recidivist statute, the court determined the provision could not be used to increase the penalty for a first offense as a result of subsequent offenses. In the Court of Appeal's view, an interpretation of section 23175(a) permitting a penalty enhancement for a first offense on the basis of later-committed acts cannot further the purpose of a recidivist statute because the enhanced penalty could not deter earlier conduct. Consequently, 1215*1215 the court construed section 23175(a) to permit the enhanced penalty only for subsequent offenses. The Court of Appeal also concluded that applying section 23175(a) to enhance the penalty of defendant's first offense based on later-committed acts would violate the constitutional prohibition against ex post facto laws.
We granted the People's petition for review.
A. Construction of Section 23175(a)
(1a) Under the Court of Appeal's construction, in order to charge DUI as a felony, the offense must have occurred after the commission of the three or more separate violations triggering the enhanced penalty. In reviewing the decision of the Court of Appeal, we consider anew the proper interpretation of section 23175(a).
(2a) The court's role in construing a statute is to "ascertain the intent of the Legislature so as to effectuate the purpose of the law." (People v. Jenkins (1995) 10 Cal.4th 234, 246 [40 Cal. Rptr.2d 903, 893 P.2d 1224]; see also Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1226 [23 Cal. Rptr.2d 397, 859 P.2d 96].) In determining the Legislature's intent, a court looks first to the words of the statute. (People v. Pieters (1991) 52 Cal.3d 894, 898 [276 Cal. Rptr. 918, 802 P.2d 420].) "[I]t is the language of the statute itself that has successfully braved the legislative gauntlet." (Halbert's Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal. App.4th 1233, 1238 [8 Cal. Rptr.2d 298].)
(1b) When looking to the words of the statute, a court gives the language its usual, ordinary meaning. (Alexander v. Superior Court, supra, 5 Cal.4th at p. 1225; Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230 [110 Cal. Rptr. 144, 514 P.2d 1224].) If there is no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs. (People v. Coronado (1995) 12 Cal.4th 145, 151 [48 Cal. Rptr.2d 77, 906 P.2d 1232]; Kizer v. Hanna (1989) 48 Cal.3d 1, 8 [255 Cal. Rptr. 412, 767 P.2d 679].)
In relevant part, section 23175(a) provides: "If any person is convicted of a violation of Section 23152 and the offense occurred within seven years of three or more separate violations of [any of three enumerated DUI offenses], or any combination thereof, which resulted in convictions, that person shall be punished by imprisonment in the state prison, or in the county jail for not less than 180 days nor more than one year, and by a fine of not less than 1216*1216 three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000)."
Section 23175(a) does not require the three or more triggering offenses to precede commission of the DUI offense underlying the present charge. By its terms, the statute requires only that the three or more "separate violations" which resulted in convictions occurred within seven years of the charged offense. A "separate" violation is a violation that is "unconnected; not united or associated; distinct." (Webster's New Internat. Dict. (2d ed. 1959) p. 2281.)
Moreover, when read in the context of the entire DUI penalty enhancement scheme to which section 23175 belongs, it is clear the term "separate violations" means that the three or more DUI offenses which resulted in convictions must simply be different from the offense at issue in the present proceeding, and not merely different from one another. The Legislature has employed the term "separate violation" or "separate violations" in all of the statutes increasing the penalties for repeat DUI offenders. (See §§ 23165 [penalty for conviction of DUI enhanced when offense occurred within seven years of a "separate violation" of DUI], 23170 [same, but for two "separate violations"], 23185 [enhanced penalty for person convicted of DUI and causing bodily injury when offense occurred within seven years of a "separate violation" of DUI] and 23190 [same, but for two "separate violations"].) A "separate violation" as it appears in the penalty enhancement provisions triggered by only one DUI conviction (§§ 23165, 23185) clearly describes the relationship between the present offense and the offense triggering an enhanced penalty. There is nothing to indicate the Legislature intended this term to have any different meaning in section 23175(a). (Cf. People v. Wells (1996) 12 Cal.4th 979, 985 [50 Cal. Rptr.2d 699, 911 P.2d 1374] [recognizing principle that, absent contrary indications, Legislature's use of similar term in related statute reflects legislative intent that same meaning apply].)
Finally, we observe that the statute, by its terms, permits a DUI offense to be charged as a felony if the violation occurred within seven years "of" three or more other separate DUI violations that resulted in convictions, thus allowing convictions for offenses that occurred before or after the offense underlying the present conviction to be used to trigger an enhanced penalty. It would seem that if the Legislature had intended to count only "separate violations" that occurred prior to the offense presently at issue, it would have used the word "after" rather than "of."
(2b) If the statutory language is clear and unambiguous, the provision should be applied according to its terms without further judicial construction 1217*1217 so long as the literal meaning is in accord with the purpose of the statute. (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [248 Cal. Rptr. 115, 755 P.2d 299].) (1c) As the legislative history of section 23175 amply demonstrates, in enacting and amending the language of section 23175 to provide an enhanced penalty on conviction of a DUI offense occurring within seven years of three or more separate DUI violations, the Legislature "meant what it said."
When first enacted in 1983, former section 23175 provided for enhanced punishment when a defendant was convicted of DUI and the offense occurred "within five years of three or more prior offenses which resulted in convictions of violations of [enumerated DUI offenses]...." (Stats. 1983, ch. 637, § 3, p. 2546.) In 1984, shortly after the enactment of former section 23175, the Legislature amended that provision and four other DUI penalty enhancement statutes by substituting the words "separate violations" for "prior offenses." (Stats. 1984, ch. 1205, §§ 1-5, pp. 4129-4130.)
The legislation amending former section 23175 in 1984 also added section 23217 to the Vehicle Code to explain why "separate violations" replaced "prior offenses" in former section 23175 and the other enhanced penalty provisions amended in the same act. (Stats. 1984, ch. 1205, § 14, p. 4136.) Section 23217 read as follows when enacted:
"The Legislature finds and declares that some repeat offenders of the prohibition against driving under the influence of alcohol... may be escaping the intent of the Legislature to punish the offender with progressively greater severity if the offense is repeated one or more times within a five-year period. This situation may occur when a conviction for a subsequent offense occurs before a conviction is obtained on an earlier offense.
"The Legislature further finds and declares that the timing of court proceedings should not permit a person to avoid aggravated mandatory minimum penalties for multiple separate offenses occurring within a five-year period. It is the intent of the act enacting this section, in changing the word `prior' to the word `separate,' to provide that a person be subject to enhanced mandatory minimum penalties for multiple offenses within a period of five years, regardless of whether the convictions are obtained in the same sequence as the offenses had been committed." (§ 23217, as added by Stats. 1984, ch. 1205, § 14, p. 4136.)
1218*1218 Section 23217 expresses the Legislature's concern that some DUI offenders were escaping enhanced punishment for multiple offenses when their convictions did not occur in the same order as the offenses were committed. The Legislature sought to remedy this situation by defining the offenses triggering enhancement as "separate violations" rather than as "prior offenses." By enacting these amendments, the Legislature did away with the requirement of a sequential relationship between the offense underlying the present conviction and the three or more offenses triggering an enhanced penalty under section 23175(a), thereby broadening the reach of the enhanced penalty provisions. (Cf. People v. Albitre (1986) 184 Cal. App.3d 895 [229 Cal. Rptr. 289] [term "prior offenses" in former section 23190 refers to timing of offenses which trigger enhanced punishment].) Specifically changing the language of the statute from "prior offenses" to "separate violations" evidences the Legislature's purposeful departure from the traditional approach taken in habitual offender statutes. (Cf. People v. Balderas (1985) 41 Cal.3d 144, 201 [222 Cal. Rptr. 184, 711 P.2d 480] [applying rationale of habitual offender statutes that offender undeterred by prior experience in criminal justice system is deserving of more severe punishment]; see also People v. McGee (1934) 1 Cal.2d 611, 614 [36 P.2d 378]; People v. Espinoza (1979) 99 Cal. App.3d 59, 74 [159 Cal. Rptr. 894]; People v. Diaz (1966) 245 Cal. App.2d 74, 77-78 [53 Cal. Rptr. 666].)
The legislative materials available to lawmakers who considered Assembly Bill No. 3833 in 1984 (which became chapter 1205 of the 1984 Statutes) also strongly suggest section 23175(a) is aimed at punishing more harshly the person who commits multiple DUI offenses, regardless of the sequence in which the offenses were committed and the convictions obtained. As described in bill analyses prepared by several legislative committees, Assembly Bill No. 3833 sought to "prevent a person from being able to circumvent the enhanced penalties for repeat DUI offenses by manipulating the timing of court proceedings," and "close a loophole in the law that allows some repeat DUI offenders to escape enhanced punishments mandated by law for a repeat offense." (Sen. Com. on Judiciary, analysis of Assem. Bill No. 3833 (1983-1984 Reg. Sess.) p. 2; see also Assem. Crim. Law & Pub. Safety Com., analysis of Assem. Bill No. 3833 (1983-1984 Reg. Sess.) pp. 1-2; and see Sen. Republican Caucus, analysis of Assem. Bill No. 3833 (1983-1984 Reg. Sess.) p. 2; cf. Legis. Analyst, analysis of Assem. Bill No. 3833 (1983-1984 Reg. Sess.) p. 1 [because current law bases enhanced penalties on prior offenses, repeat offender may receive lower fine or sentence if court proceedings for prior offense are delayed].) As these analyses explained to legislators, by changing the words "prior offenses" to 1219*1219 "separate violations," a later-obtained conviction can be punished by the enhanced penalty for a multiple DUI offense regardless of when that offense occurred. (Sen. Com. on Judiciary, analysis of Assem. Bill No. 3833 (1983-1984 Reg. Sess.) p. 3; see also Assem. Crim. Law & Pub. Safety Com., analysis of Assem. Bill No. 3833 (1983-1984 Reg. Sess.) p. 1.)
Defendant argues nonetheless the legislative materials support the Court of Appeal's construction of section 23175(a). Defendant points to a statement in one committee bill analysis that Assembly Bill No. 3833 was meant "to prevent a person from being able to circumvent the enhanced penalties for repeat DUI offenses by manipulating the timing of court proceedings" (Sen. Com. on Judiciary, analysis of Assem. Bill No. 3833 (1983-1984 Reg. Sess.) p. 2, italics added), and a statement in an enrolled bill report that the Legislature "declares the intent for DUI offenders, convicted multiple times within a five-year period, [is] to suffer greater penalties for each succeeding offense." (Dept. of Health & Welfare, Enrolled Bill Rep., analysis of Assem. Bill No. 3833 (1983-1984 Reg. Sess.) Sept. 7, 1994, p. 1, italics added.)
(2c) Legislative materials inform our construction of a statute only when the words of the statute are unclear (People v. Jones (1993) 5 Cal.4th 1142, 1146 [22 Cal. Rptr.2d 753, 857 P.2d 1163]), but a clear statement of intent may serve to confirm a provision's plain meaning. (1d) Here, although some of the language in these legislative materials, read in isolation, could be viewed as supporting the Court of Appeal's construction of section 23175(a), when read in light of the entire available legislative history, the statements do not support defendant's claim that the date of the commission of the offense, but not the date of conviction, should control application of section 23175(a). To the contrary. The Legislature's substitution of "separate violations" for "prior offenses" in former section 23175, its explanation for doing so in section 23217, and the legislative materials available to assist and inform the Legislature's consideration of Assembly Bill No. 3833, taken together, amply reflect the Legislature's goal of preventing the DUI offender from escaping an enhanced penalty for multiple offenses. They indicate moreover the Legislature's intention to punish all repeat DUI offenders harshly, regardless of the order in which offenses and convictions have occurred. In light of the statute's purpose, we conclude section 23175 must be read to permit imposition of an enhanced penalty on conviction of a violation of section 23152 if that offense was committed within seven years of three or more separate DUI violations resulting in convictions, regardless of the order in which the three separate DUI offenses occurred or the convictions were obtained.
In construing section 23175 to provide an enhanced penalty only for subsequent offenses, the Court of Appeal reasoned that imposing a penalty 1220*1220 enhancement for a first offense on the basis of later-committed offenses could have no deterrent effect on past conduct. This rationale presumes a person can only be deterred from committing multiple DUI offenses by the threat of progressively harsher punishment for each subsequent DUI offense. However, in amending section 23175, the Legislature could reasonably have believed that closing the loophole that allowed some repeat offenders to avoid enhanced punishment would serve to increase the statute's overall deterrent effect. A person with DUI charges pending who knows he or she risks exposure to felony punishment if convicted of three other DUI offenses, in whatever order they were committed, may well refrain from driving under the influence again for fear of the consequences.
Moreover, to construe section 23175(a), as the Court of Appeal does, perpetuates the "loophole" the Legislature sought to close. Under the Court of Appeal's interpretation of section 23175(a), a defendant who committed four separate drunk driving offenses close in time could still escape the enhanced penalty by pleading guilty to the second, third and fourth offenses before going to trial on the first offense. This type of manipulation is precisely the situation the Legislature intended to remedy. (See § 23217.) Because the Court of Appeal's construction serves to defeat, rather than promote, the Legislature's purpose in amending former section 23175 in 1984, we decline to adopt it here. (People v. King (1993) 5 Cal.4th 59, 69 [19 Cal. Rptr.2d 233, 851 P.2d 27]; see also People v. Pieters, supra, 52 Cal.3d at pp. 898-901.)
B. Ex Post Facto
(3a) The Court of Appeal concluded its construction of section 23175(a) was compelled by the constitutional prohibition against ex post facto laws. (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9.) (4a) In deciding whether application of section 23175(a) to the circumstances of this case violates the ex post facto clause of the state and federal Constitutions, we begin by noting that we interpret the ex post facto clause in the California Constitution no differently than its federal counterpart. (See People v. McVickers (1992) 4 Cal.4th 81, 84 [13 Cal. Rptr.2d 850, 840 P.2d 955]; Tapia v. Superior Court (1991) 53 Cal.3d 282, 295 [279 Cal. Rptr. 592, 807 P.2d 434].) Thus, United States Supreme Court precedent not only controls the federal constitutional question, but also provides persuasive authority as to whether a statute is an ex post facto law under California law. (People v. Helms (1997) 15 Cal.4th 608, 614 [63 Cal. Rptr.2d 620, 936 P.2d 1230].)
In Collins v. Youngblood (1990) 497 U.S. 37 [110 S.Ct. 2715, 111 L.Ed.2d 30], the court endorsed the view of its earlier decisions establishing that the 1221*1221 ex post facto clause prohibits three categories of legislative acts: any provision "` which punishes as a crime an act previously committed, which was innocent when done;  which makes more burdensome the punishment for a crime, after its commission, or  which deprives one charged with crime of any defense available according to law at the time when the act was committed....'" (Id. at p. 42 [110 S.Ct. at p. 2719], quoting Beazell v. Ohio (1925) 269 U.S. 167, 169 [46 S.Ct. 68, 68, 70 L.Ed. 216]; cf. People v. McVickers, supra, 4 Cal.4th at p. 84.)
(3b) Focusing on the second category of prohibited legislative acts, those which make more burdensome the punishment for a crime after its commission, defendant argues the Court of Appeal correctly invoked the ex post facto clause in this case. Defendant points out that when he committed the April 6, 1992, offense, his crime was a misdemeanor, but at the time he was convicted of that offense, section 23175(a) made the crime a felony.
We reject defendant's argument. The increase in defendant's penalty in this case cannot be attributed to any change in law, since section 23175(a) was effective at the time defendant committed the instant offense. Rather, it was defendant's own conduct that ultimately increased his punishment. A self-inflicted change in defendant's status as a repeat offender does not constitute an ex post facto violation. The decisions of courts in other jurisdictions are in accord. (See Cornwell v. United States (D.C. 1982) 451 A.2d 628, 630; State v. Banks (1981) 105 Wis.2d 32 [313 N.W.2d 67, 76].)
(4b) Our conclusion is fully consistent with one of the primary purposes of the ex post facto clause: to prevent unforeseeable punishment. "Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated." (Weaver v. Graham (1981) 450 U.S. 24, 30 [101 S.Ct. 960, 965, 67 L.Ed.2d 17].) (3c) The portion of section 23175(a) relevant to this case has been in effect since 1985. At the time defendant committed his first offense in 1992, he was on notice that if he committed a DUI offense within seven years of three or more other DUI violations resulting in convictions, he could be subject to felony punishment. The mere fact that conviction of the offense that was first in time was obtained after he had committed the offenses triggering the enhanced penalty does not contravene the prohibition of the ex post facto clause.
III. CONCLUSION AND DISPOSITION
We conclude the Legislature intended to punish repeat DUI offenders with enhanced penalties, regardless of the order in which the offenses were 1222*1222 committed or the convictions obtained. Moreover, imposition of an enhanced penalty on a fourth DUI conviction for an offense predating the triggering violations does not contravene the constitutional proscription against ex post facto laws, so long as the commission of the offense underlying the section 23175(a) charge occurred after the statute's 1984 amendment became effective.
The judgment of the Court of Appeal striking the allegations and true findings of three or more separate violations under section 23175(a) and remanding to the trial court for resentencing is reversed. The Court of Appeal is hereby directed to affirm the trial court's judgment in its entirety.
George, C.J., Mosk, J., Kennard, J., Baxter, J., Werdegar, J., and Chin, J., concurred.
 In 1986, the Legislature amended section 23175 (Stats. 1986, ch. 1117, § 6, p. 3934), and the other DUI penalty enhancement provisions, substituting "seven years" for "five years" of a separate violation of the enumerated offenses. In 1988, section 23175 was further amended to make imprisonment in state prison an alternative to imprisonment in the county jail. (Stats. 1988, ch. 599, § 1, p. 2160; id., ch. 1553, § 2, p. 5580.) That provision was redesignated section 23175 (a) in 1990. (Stats. 1990, ch. 44, § 6, p. 255.)
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California Vehicle Code 23153
23153. (a) It is unlawful for a person, while under the influence of any alcoholic beverage to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver. (b) It is unlawful for a person, while having 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver. In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after driving. (c) In proving the person neglected any duty imposed by law in driving the vehicle, it is not necessary to prove that any specific section of this code was violated. (d) It is unlawful for a person, while having 0.04 percent or more, by weight, of alcohol in his or her blood to drive a commercial motor vehicle, as defined in Section 15210, and concurrently to do any act forbidden by law or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver. In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of performance of a chemical test within three hours after driving. (e) It is unlawful for a person, while under the influence of any drug, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver. (f) It is unlawful for a person, while under the combined influence of any alcoholic beverage and drug, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver. (g) This section shall become operative on January 1, 2014.
California Vehicle Code 23152(a)
23152. (a) It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle. (b) It is unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle. For purposes of this article and Section 34501.16, percent, by weight, of alcohol in a person's blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath. In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving. (c) It is unlawful for a person who is addicted to the use of any drug to drive a vehicle. This subdivision shall not apply to a person who is participating in a narcotic treatment program approved pursuant to Article 3 (commencing with Section 11875) of Chapter 1 of Part 3 of Division 10.5 of the Health and Safety Code. (d) It is unlawful for a person who has 0.04 percent or more, by weight, of alcohol in his or her blood to drive a commercial motor vehicle, as defined in Section 15210. In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving. (e) It is unlawful for a person who is under the influence of any drug to drive a vehicle. (f) It is unlawful for a person who is under the combined influence of any alcoholic beverage and drug to drive a vehicle. (g) This section shall become operative on January 1, 2014.
Arrested for DUI? Find Out What Everyone Should Know Before Talking to the Judge, Hiring an Attorney, Pleading Guilty or Going to Trial.
Patrick J. Silva - Attorney at Law
A Professional Law Corporation
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