Filed 10/22/14
                          CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                    DIVISION FOUR


THE PEOPLE,
        Plaintiff and Respondent,
                                                    A139041
v.
                                                    (Contra Costa County
GIOVANNI ROMMEL ROSSETTI,
                                                    Super. Ct. No. 51309657)
        Defendant and Appellant.

                                             I.
                                    INTRODUCTION
        Appellant Giovanni Rommel Rossetti appeals after entering a plea of no contest to
driving with .08 percent or higher blood-alcohol content. He also admitted he had three
prior convictions for driving under the influence (DUI). (Veh. Code, §§ 23152, subd. (a),
23550.) He claims the court erred in denying his motion to suppress (Pen. Code,
§ 1538.5), contending that the nonconsensual blood draw taken after his DUI arrest
without first obtaining a search warrant violated his rights under the Fourth Amendment
of the United States Constitution.1 He also argues that the blood draw was not performed
in a constitutionally reasonable manner. We reject these arguments and affirm the trial
court’s denial of appellant’s motion to suppress.


        1
          In relevant part, the Fourth Amendment states, “ ‘The right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated . . . .’ ” (See Mapp v. Ohio (1961) 367 U.S. 643, 646,
fn. 4.) The purpose of this provision is to protect people from unreasonable search and
seizure, and it applies to the states through the Fourteenth Amendment. (Id. at p. 650.)
The remedy for a violation of the Fourth Amendment is to render inadmissible any
evidence seized during the illegal search. (Id. at pp. 654-655.)


                                             1
                                            II.
                       FACTS AND PROCEDURAL HISTORY
       The statement of facts is taken from the evidence introduced at the hearing on
appellant’s suppression motion which, as appellant concedes, “is essentially undisputed.”
At about 1:50 a.m. on November 9, 2011, California Highway Patrol Officer Jason
Tyhurst was driving north on Highway 242 in Contra Costa County when he saw a car
traveling an estimated 90 miles per hour in a 65 miles-per-hour-zone. The car was
weaving out of its lane and crossing into other lanes. After pacing the car for about one-
quarter mile to determine its speed, Officer Tyhurst activated his emergency lights.
       After the vehicle was stopped, Officer Tyhurst approached the driver, who was
later identified as appellant. The officer observed that appellant’s eyes were bloodshot
and watery, and his speech was thick and slurred. The officer could smell alcohol
emitting from the passenger compartment. Officer Tyhurst explained the reason for the
stop, requested identification, and asked appellant whether he had been drinking that
evening. When appellant was unable to produce identification, Officer Tyhurst directed
him to get out of the car.
       Officer Tyhurst conducted a series of field sobriety tests. Appellant’s performance
on these tests was consistent with alcohol impairment. Officer Tyhurst concluded that
appellant had been driving while intoxicated and placed him under arrest.
       After Officer Tyhurst drove appellant to the California Highway Patrol area office,
he advised appellant that state law required a person arrested for DUI to submit to a
chemical test, either blood or breath. Appellant refused to take either test. Appellant was
then restrained by Officer Tyhurst and three other officers, and his blood was drawn
without his consent at 2:38 a.m. by Jonathan Young, a lab technician both state and
nationally certified in phlebotomy. Young executed a declaration under penalty of
perjury that he drew the blood in a medically approved manner. Officer Tyhurst did not
obtain a warrant for the blood draw, even though there was a judge on call, based on his
understanding “[w]e’re not required to.” The results of the blood-alcohol test showed
appellant had a 0.19 percent blood-alcohol level, well above the .08 percent legal limit.


                                             2
       Appellant moved to suppress the blood sample taken from him, as well as the
observations of and statements stemming from the forcible blood draw and any related
evidence. The People filed opposition. On June 10, 1013, the superior court heard and
denied appellant’s motion. On June 12, 2013, appellant entered a plea of no contest to
count two, alleging that he drove with a .08 percent or higher blood-alcohol level, and he
admitted three prior convictions. Count one was dismissed. The court placed appellant
on probation for five years with the condition that he serve 365 days in county jail. On
June 20, 2013, appellant filed a timely notice of appeal.
                                             III.
                                       DISCUSSION
       A. Suppression of Blood Test Results
       Appellant claims the court erred in denying his motion to suppress because “there
was no constitutional justification for the warrantless, forcible draw of blood in this case,
when the officer was aware that a magistrate was available to issue a warrant if he
applied for one.”
       “ ‘In reviewing a suppression ruling, “we defer to the superior court’s express and
implied factual findings if they are supported by substantial evidence, [but] we exercise
our independent judgment in determining the legality of a search on the facts so found.” ’
[Citation.] [¶] Thus, while we ultimately exercise our independent judgment to determine
the constitutional propriety of a search or seizure, we do so within the context of
historical facts determined by the trial court.” (People v. Tully (2012) 54 Cal.4th 952,
979.) We review issues relating to the suppression of evidence derived from police
searches and seizures under federal constitutional standards. (People v. Bradford (1997)
15 Cal.4th 1229, 1291.)
       At the time of appellant’s arrest on November 9, 2011, long-standing California
law permitted blood testing without a warrant, and without the consent of the person
tested, so long as “the procedure (1) is done in a reasonable, medically approved manner,
(2) is incident to a lawful arrest, and (3) is based upon reasonable belief the arrestee is
intoxicated. [Citations.]” (People v. Ford (1992) 4 Cal.App.4th 32, 35.) California


                                              3
courts, including our Supreme Court, regularly approved warrantless blood draws where
these factors were satisfied. (People v. Superior Court (1972) 6 Cal.3d 757, 761-765;
People v. Harris (2014) 225 Cal.App.4th Supp. 1 (Harris) [citing numerous California
cases for the proposition that a warrant was not required in order for police to conduct a
blood draw of a suspect arrested for drunk driving].)
       These California cases were derived from Schmerber v. California (1966) 384
U.S. 757 (Schmerber), and were based on the presumed exigency created by the
dissipation of alcohol levels in the bloodstream. In Schmerber, the court upheld a
warrantless blood test of an individual arrested for drunk driving. The court did so
because the police officer “might reasonably have believed that he was confronted with
an emergency, in which the delay necessary to obtain a warrant, under the circumstances,
threatened the ‘destruction of evidence’ [citation].” (Id. at p. 770.) Following
Schmerber, many courts, including those in California, believed a warrant was virtually
never required in order for police to conduct a blood draw of a suspect arrested for drunk
driving, due to the exigency of the loss of incriminating evidence. (Harris, supra, 225
Cal.App.4th at Supp. 5 [“California courts uniformly interpreted Schmerber to mean that
no exigency beyond the natural evanescence of intoxicants in the bloodstream, present in
every DUI case, was needed to establish an exception to the warrant requirement.
[Citations.]”].)
       However, in 2013, over a year after appellant’s arrest, the United States Supreme
Court clarified Schmerber—and dramatically changed the legal landscape in California
and many other states—by holding that the natural dissipation of alcohol in the
bloodstream does not establish a per se exigency that suffices on its own to justify a
warrantless blood draw in every DUI case. In Missouri v. McNeely (2013) ___ U.S.___
133 S.Ct. 1552, 1563 (McNeely), the court indicated “while the natural dissipation of
alcohol in the blood may support a finding of exigency in a specific case, . . . it does not
do so categorically.” (Italics added.) Instead, “the metabolization of alcohol in the
bloodstream and the ensuing loss of evidence are among the factors that must be
considered in deciding whether a warrant is required.” (133 S.Ct. at p. 1568.) The


                                              4
McNeely decision concluded that every case involving a warrantless blood draw must be
examined on its own facts in light of the totality of the circumstances to determine
whether exigent circumstances existed that would justify an exception to the warrant
requirement. (133 S.Ct. at p. 1556.) The prosecution must prove there was “ ‘compelling
need for official action and no time to secure a warrant’ ” in order to justify a warrantless
blood draw. (133 S.Ct. at p. 1559, quoting Michigan v. Tyler (1978) 436 U.S. 499, 509.)
       It has been recognized “McNeely thus repudiated the long-standing California
interpretation of Schmerber.” (Harris, supra, 225 Cal.App.4th at Supp. 6.) Generally,
the Supreme Court’s new interpretation of the federal constitution must be given
retroactive application to pending cases. (Griffith v. Kentucky (1987) 479 U.S. 314, 328
[“We therefore hold that a new rule for the conduct of criminal prosecutions is to be
applied retroactively to all cases, state or federal, pending on direct review or not yet
final, with no exception for cases in which the new rule constitutes a ‘clear break’ with
the past.”].”2
       However, the United States Supreme Court also has recognized an exception for
Fourth Amendment search and seizures cases, and will not apply the exclusionary rule as
a remedy where the police conducted a search in good faith reliance on binding legal
precedent in the jurisdiction where the search occurred. (See Davis v. U.S. (2011) ___
U.S. ___, ___; 131 S.Ct. 2419, 2434 (Davis).) Davis addressed searches conducted prior
to Arizona v. Gant (2009) 556 U.S. 332, a case holding that police could not
automatically search the passenger compartment of a vehicle whenever an occupant was
arrested. (Davis, supra, 131 S.Ct. at pp. 2424–2425.) Recognizing that its prior holding
in New York v. Belton (1981) 453 U.S. 454, had been widely understood as permitting
such searches, the court concluded that the exclusionary rule was not an appropriate
remedy for pre-Gant searches. (Davis, supra, 131 S.Ct. at pp. 2428–2429.) The court
reasoned that, where the police act in reliance on established legal precedent, suppressing

       2
         Griffin held that the Supreme Court’s holding in Batson v. Kentucky (1986) 476
U.S. 79, 106 (Marshall, J. conc.), pertaining to the discriminatory use of preemptory
challenges, must be given retroactive application.


                                              5
evidence would not serve the purpose of the exclusionary rule, which is to deter lawless
police conduct. (131 S.Ct. at p. 2426.) The court stated that “[e]xcluding evidence in
such cases deters no police misconduct and imposes substantial social costs. We
therefore hold that when the police conduct a search in objectively reasonable reliance on
binding appellate precedent, the exclusionary rule does not apply.” (131 S.Ct. at
p. 2434.)
       Based on the foregoing, the police conduct in this case falls within the parameters
of the “good faith” exception to the exclusionary rule. Appellant does not identify any
pre-McNeely California decision suggesting that, in the circumstances before us, the
warrantless nonconsensual blood draw was legally impermissible. As the trial court
found, Officer Tyhurst acted in accordance with existing legal precedent and with a
reasonable, good faith belief that his actions were consistent with the law because “the
applicable law at the time of the arrest [was] that a warrant wasn’t necessary for a blood
draw.” Consequently, despite the change in the law, no “ ‘appreciable deterrence’ ”
would result from suppressing the results of the blood draw in this case, and the trial
court properly ruled this evidence was admissible. (Davis, supra, 131 S.Ct. at p. 2426.)3
       In so concluding we reject appellant’s claim that People v. Thompson (2006) 38
Cal.4th 811, which was the law in California at the time of appellant’s arrest, mandates
the conclusion that the police officers’ actions in this case “were inconsistent with
[existing] California law . . . .” In Thompson, our Supreme Court upheld a warrantless
entry into a residence to arrest the defendant for DUI because his “blood-alcohol level
would have diminished while the police sought a warrant . . . .” (Id. at p. 825.) However,
the Thompson court emphasized that it was not holding in every case “that the police may
enter a home without a warrant to effect an arrest of a DUI suspect . . . .” (Id. at p. 827.)
It reaffirmed it was considering the totality of the circumstances to determine whether the


       3
         Quite recently, the court in People v. Youn (2014) 229 Cal.App.4th 571, reached
the same conclusion, finding the police “acted in ‘objectively reasonable reliance’ on
binding California precedent” in conducting a warrantless blood draw, and “there was no
police culpability.” (Id. at p. 579.)

                                              6
police conduct was reasonable. (Ibid.) Appellant relies on Thompson to argue that
binding precedent at the time of his arrest required a “totality of the circumstances”
approach in assessing the “justification for the warrantless, forcible draw of blood” in this
case.
        We disagree, and find Thompson to be readily distinguishable. Thompson
involved circumstances where officers entered the defendant’s home without a warrant to
arrest him. “[P]hysical entry of the home is the chief evil against which the wording of
the Fourth Amendment is directed.” (United States v. United States District Court (1972)
407 U.S. 297, 313.) “ ‘[A] private home [is] where privacy expectations are most
heightened’ [citation].” (Kyllo v. United States (2001) 533 U.S. 27, 33.) Consequently,
Thompson did not involve what standard applies to government intrusions taking place
outside the home, and does not call into question the unbroken line of pre-McNeely
authority in California authorizing the officers’ actions in this case.
        B. Excessive Force
        Appellant also claims his constitutional rights were violated because the officers
used excessive force in obtaining the blood sample. He argues that the manner in which
the blood was taken by the police violated his due process rights and, by extension, his
Fourth Amendment rights.
        With or without a warrant, the police may not use unreasonable force to perform a
search or seizure of a person. (See Graham v. Connor (1989) 490 U.S. 386, 397.) In
Carleton v. Superior Court (1985) 170 Cal.App.3d 1182 (Carleton), the court stated:
“Law enforcement must act reasonably and use only that degree of force which is
necessary to overcome a defendant’s resistance in taking a blood sample. Even where
necessary to obtain a blood sample police may not act in a manner which will ‘shock the
conscience.’ A defendant’s arbitrary refusal to submit to a blood test will not excuse
unlawful police conduct.” (Id. at pp. 1187-1188, fn. omitted.)
        The evidence adduced at the suppression hearing reveals that at 2:38 a.m., Officer
Tyhurst and three other officers restrained appellant, whom Officer Tyhurst could not
subdue alone because appellant was “kicking around and not doing what [he was] told to


                                              7
do.” Appellant, who was handcuffed, was forced down on the floor while lab technician
Jonathan Young, state and nationally certified in phlebotomy, drew two vials of blood
and gave them to Officer Tyhurst. The entire process was videotaped, and took
“probably less than 10 minutes, might have even been less than five minutes.”
          Defense counsel asked the court to review the videotape of the forced blood draw,
claiming “[t]his is excessive force.” After reviewing the videotape, the court found the
police did not use more force than necessary to overcome appellant’s resistance. The
court indicated, “And I think the video reveals that officer safety was an issue in this
case.”4
          The reasonableness of the officers’ conduct in this case is demonstrated by
comparing it to the forcible blood draw judicially approved in Carleton, supra, 170
Cal.App.3d 1182. In that case, police also had to obtain blood from a suspect who was
resisting. (Id. at p. 1190.) The Carleton court noted that the use of six officers to restrain
Carleton was necessary because he was a threat to the officers’ own security. (Ibid.)
Consequently, in order to draw blood, he was held in a “temporary carotid restraint”
position face down on the floor. (Id. at p. 1190.) The officers held Carleton’s extremities
while a registered nurse withdrew his blood. (Id. at pp. 1189-1190.) The court held this
to be a reasonable blood draw performed in a medically approved fashion. (Id. at
p. 1191; People v. Ryan (1981) 116 Cal.App.3d 168, 183 [evidence that “[defendant] was
restrained by five police officers while a technician removed the blood sample from his
left arm” without any showing the officers “introduced any wantonness, violence or
beatings” constituted valid use of necessary force “to overcome [defendant]’s
resistance”].)
          4
          Although the videotape was marked for identification and was viewed by the
trial court prior to making its ruling, it was never formally received into evidence at the
suppression hearing. However, it is obvious the videotape was intended by both counsel
to be considered as part of the evidence before the trial court in ruling upon the
suppression motion and “we do not consider the technical oversight [in failing to
formally offer it into evidence] sufficient to disregard” this evidence. (People v. White
(1963) 222 Cal.App.2d 774, 780.) In this regard, we have reviewed the video and
conclude it is consistent with the trial court’s findings.


                                               8
       By contrast, suppression was ordered in People v. Kraft (1970) 3 Cal.App.3d 890,
where the defendant refused to submit to a blood test and resisted being taken into the
hospital. (Id. at p. 895.) Without provocation, one of the officers struck the defendant on
the cheek with a closed fist. (Id. at p. 896.) Later, as officers tried to carry or lead the
defendant to a bed in an examination room, the defendant fell or was pushed to the floor.
(Ibid.) On the floor, police immobilized him while a physician withdrew blood. (Ibid.)
One officer testified that he held the defendant’s arm while also holding a scissor lock on
the defendant’s legs. (Id. at p. 898.) An officer acknowledged that the defendant’s
behavior had not been aggressive but was “defensive.” (Id. at p. 899.) The court
concluded that the officers’ “strong-arm” tactics were “aggressive beyond all need,” and
exceeded the limits of permissible force. (Ibid.)
       The present case bears more resemblance to Carleton, supra, 170 Cal.App.3d
1182, than it does to Kraft, supra, 3 Cal.App.3d 890. Appellant was described as
“kicking around,” so some amount of force was necessary to overcome his resistance and
to obtain the blood sample safely. However, unlike in Kraft, the police did not
gratuitously strike appellant or otherwise engage in unnecessary physical abuse. The
officers used no more force than necessary to hold appellant still so the officers would
not be endangered while his blood was being drawn. The blood sample was taken by a
phlebotomist in a medically reasonable manner. As the Supreme Court stated in
Schmerber, supra, 384 U.S. at page 760, footnote 4, “[i]t would be a different case if the
police initiated the violence, refused to respect a reasonable request to undergo a different
form of testing, or responded to resistance with inappropriate force. [Citation.]”
       Under these circumstances, there is substantial evidence supporting the superior
court’s conclusion that the force used was reasonable. (See Carleton, supra, 170
Cal.App.3d at p. 1188 [appellate court “must determine whether there is substantial
evidence to support the court’s findings the police acted lawfully”].)




                                               9
                                         IV.
                                   DISPOSITION
     The order denying appellant’s motion to suppress is affirmed.




                                               _________________________
                                               RUVOLO, P. J.


We concur:


_________________________
REARDON, J.


_________________________
RIVERA, J.




                                         10
Trial Court:              Contra Costa County Superior Court

Trial Judge:              Hon. Susanne Fenstermacher

Counsel for Appellant:    Law Office of Paul Kleven, Paul Kleven,
                          by appointment of the Court of Appeal under
                          the First District Appellate Project’s
                          independent case system

Counsel for Respondent:   Kamala D. Harris, Attorney General of
                          California, Dane R. Gillette, Chief Assistant
                          Attorney General, Gerald A. Engler, Senior
                          Assistant Attorney General, Catherine A.
                          Rivlin, Supervising Deputy Attorney General,
                          Ronald E. Niver, Deputy Attorney General




                            11
