Filed 1/29/14 Kroll v. DMV CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


BENJAMIN KROLL,
         Plaintiff and Appellant,                                    A137416
v.
                                                                     (Marin County
DEPARTMENT OF MOTOR VEHICLES,                                        Super. Ct. No. CIV 1203977)
         Defendant and Respondent.


         Benjamin Kroll appeals the denial of his petition for writ of mandate challenging
the suspension of his driver’s license by the Department of Motor Vehicles (DMV).
(Code Civ. Proc., § 1094.5; Veh. Code, § 13559, subd. (a).) He contends: (1) the trial
court’s reliance on the out-of-court statements of a witness who invoked the Fifth
Amendment at the DMV administrative hearing deprived him of due process; (2) the trial
court did not independently determine the credibility of witnesses at the DMV hearing as
it was required to do; and (3) the trial court’s decision is unsupported by substantial
evidence. We affirm.
                                            I.        BACKGROUND
         At about 3:20 a.m. on October 1, 2011, California Highway Patrol officers
responded to a single vehicle rollover accident on a freeway onramp in San Francisco.
They found a Jeep Cherokee upended on its roof with moderate damage, including a
shattered passenger side window. Kroll and Tracy Mahon were at the scene. The
registered owner of the Jeep was James Mahon.



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       Kroll told Officer Farley someone named “Maureen” had been driving the Jeep,
though he was unable to provide any additional information about this person. Kroll
asserted he had not been in the Jeep, but had received a telephone call from “Dave” and
had been dropped off at the accident scene by his good friend “Ken.” He could not
provide any details about the car in which he had been riding, nor did he remember where
he had been sitting inside that car. Farley noticed a two-inch red burn mark on the left
side of Kroll’s neck consistent with a seatbelt, which Kroll explained by saying, “Well[,]
I do martial arts.” Farley also noticed a fresh spot of blood on Kroll’s left sock, caused
by a cut on his left ankle that was still oozing blood. Asked about the injury, Kroll again
stated he did martial arts. Farley noted Kroll’s height (six feet) was consistent with the
position of the Jeep’s driver’s seat. Mahon was shorter than Kroll.
       Farley smelled alcohol and noticed Kroll’s speech was very slurred. Kroll
acknowledged drinking three rum and gin cocktails. After he failed field sobriety tests,
Kroll was arrested on suspicion of driving under the influence and with a blood alcohol
level in excess of .08 percent. (Veh. Code, § 23152, subds. (a), (b).) A breath test
conducted at 4:52 a.m. produced blood alcohol level readings of .085 and .084 percent,
and a blood draw taken at 5:05 a.m. resulted in a reading of .08 percent.
       Mahon, who was transported to the hospital from the accident scene, was given
presumptive alcohol screenings at 3:46 and 3:49 a.m. that showed blood alcohol levels of
.126 and .116 percent. During questioning by another officer, Mahon said she had been
at a party in San Francisco and was on her way to her home in San Bruno, riding in the
front passenger seat with someone named “Margaret” driving. At first Mahon said Kroll
had not been in the Jeep, but she later stated he had been sitting in the back passenger
seat at the time of the accident. She appeared intoxicated and was unable to provide
further information about the accident.
       Kroll was notified his driver’s license would be suspended. (Veh. Code,
§ 13353.2, subd. (a)(1).) An administrative hearing was held before a DMV officer, at
which Kroll stipulated to having a blood alcohol level of .08 percent but challenged the
license suspension on the ground that Mahon had been driving the Jeep.


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       Kroll testified that on the night of the accident, he attended a nautically-themed
party in San Francisco along with his friends Rosalie Morgan, Kyle Misner and David
Anderson. Kroll dressed up as a pirate, and carried a long rapier-type sword.1 Sometime
after 3:00 a.m., Kroll determined he was too intoxicated to drive, and Misner offered to
drive Kroll and Morgan back to his (Misner’s) house for the night. They left in Misner’s
car, with Misner driving, Kroll riding in the front passenger seat, and Morgan riding in
the back. As the three of them were leaving the party, they saw Anderson and Mahon,
who said they were going back into the party and then on to Mahon’s house.
       Shortly after leaving the party, Morgan got a call from Anderson saying he had
been in an accident and needed help. Misner drove to the scene, where they saw the Jeep
flipped over on the onramp, with Mahon and Anderson standing in the center of the
onramp trying to wave off other cars. Kroll used Morgan’s cell phone to call the police
and stayed on the line with them until officers arrived. Mahon told Kroll someone named
Maureen had been driving but had run off. Kroll denied having a red mark on his left
shoulder as described by Farley, presenting photographs he had taken of his upper torso
the evening following the accident that did not show any red marks. As to the ankle
wound, Kroll explained that the sword he was carrying as part of his costume cut his
ankle while he was dancing.
       Morgan and Misner similarly testified that Kroll had left the party in Misner’s car.
Anderson testified he had ridden with Mahon, who was driving the Jeep at the time of the
accident. All three maintained Kroll had only arrived at the accident scene after
Anderson called Morgan to tell her about the crash. They also testified that Kroll
remained at the scene with Mahon while Misner drove Anderson and Morgan to his



       1
         The police report indicates that at the time of his arrest, Kroll was wearing
“casual” clothes: brown tennis shoes, tan corduroy pants and a green wool collared shirt.
Asked about this apparent discrepancy by the DMV hearing officer, Kroll explained that
the people holding the party had made costumes available for guests to wear, and that he
had left the costume portion of his clothing in his own car, which was parked near the
party.


                                             3
(Misner’s) house. Misner claimed he later returned and told police Kroll was not the
driver, but was directed to leave.
       Mahon was also called as a witness, and testified she had seen Kroll and his
friends at the party. When asked about leaving the party and the circumstances of the
accident and its aftermath, she invoked her Fifth Amendment right against self-
incrimination and refused to answer further questions.
       Farley testified that he concluded Kroll was the driver based on the fresh seat belt
mark on Kroll’s left shoulder, which was consistent with the partial distention of the
Jeep’s driver’s side seat belt, as well as the positioning of the driver’s seat to fit a person
of Kroll’s height, and Mahon’s statement placing Kroll inside the Jeep. He had Kroll sit
in the driver’s seat to confirm that he fit the driver’s seat as adjusted. Farley indicated he
would not be surprised if the red mark he had observed on Kroll’s shoulder had faded by
the following morning.2 He did not recall Misner coming to the accident scene.
       The DMV hearing officer upheld the license suspension. In her written findings,
the hearing officer indicated she was giving no weight to Mahon’s testimony at the
hearing, and concluded that Morgan, Misner and Anderson were not credible witnesses.
The officer also noted, “[Kroll] stated that he sat on the right passenger side of Mr.
Misner’s car, however, [Farley] determined that the belt mark[] was on his left neck and
left shoulder. His excuse[] that martial arts caused his ankle injury is given little weight
because his ankle’s injury still had fresh blood bleeding. The pictures taken by [Kroll]
[were] not taken at the time of the accident therefore, they are given no weight.
Therefore, the testimony of [Kroll] is not deemed credible at the hearing. [¶] [Farley] was
consistent while testifying, in that his testimony at the hearing is consistent with his
report which [was] made at or near the time of the accident.”
       Kroll filed a petition for writ of mandate in superior court challenging the license
suspension. He argued: (1) his Sixth Amendment right to confront witnesses was

       2
        Although Farley was asked about the injury dissipating by the following
morning, the photographs of Kroll’s torso were taken the evening of October 1 after
7:00 p.m.


                                               4
violated because Mahon refused to answer questions about the accident; (2) the evidence
he presented at the DMV hearing rebutted the presumption that he was driving; and
(3) the trial court had the power to make its own credibility determination and should find
his witnesses credible.
       After hearing argument and taking the matter under submission to review the
administrative record, the trial court issued an order denying the writ. “The evidence
strongly supports the Hearing Officer’s determination that ‘[Kroll] was driving a motor
vehicle at the time that concentration of alcohol in his blood was at or above 0.08%.’ . . .
Moreover, the evidence also strongly supports the determination that the arresting officer
had probable cause to believe that [Kroll] was in violation of Vehicle Code
[section] 23152 . . . , and that the arrest was lawful. The court notes that the Hearing
Officer was in the best position to assess the credibility of the witnesses.”
       The criminal charges against Kroll for driving under the influence were dismissed
for lack of evidence.
                                   II.    DISCUSSION
A.     License Suspension Procedure and Standard of Review
       The DMV must immediately suspend the driving privileges of a person who drives
a motor vehicle with a blood alcohol level of .08 percent or higher. (Veh. Code,
§ 13353.2, subd. (a)(1).) The driver may request an administrative hearing to challenge
the suspension, which will be upheld if the DMV demonstrates by a preponderance of the
evidence (1) the peace officer had reasonable cause to believe the person was driving in
violation of Vehicle Code section 23152; (2) the person lawfully was arrested; and (3) the
person was driving with a blood alcohol level of .08 percent or higher. (Veh. Code,
§§ 13557, subd. (b)(1), 13558, subds. (a), (c)(2); Lake v. Reed (1997) 16 Cal.4th 448,
454, 456 (Lake); Manriquez v. Gourley (2003) 105 Cal.App.4th 1227, 1232.)
       An administrative hearing on a license suspension “need not be conducted
according to technical rules relating to evidence and witnesses . . . . Any relevant
evidence shall be admitted if it is of the sort of evidence on which responsible persons are
accustomed to rely in the conduct of serious affairs, regardless of the existence of any


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common law or statutory rule which might make improper the admission of the evidence
over objection in civil actions.” (Gov. Code, § 11513, subd. (c); Hildebrand v.
Department of Motor Vehicles (2007) 152 Cal.App.4th 1562, 1569.) A police report is
“ ‘the sort of evidence on which responsible persons are accustomed to rely in the
conduct of serious affairs.’ ” (Lake, supra, 16 Cal.4th at p. 461.) Hearsay evidence may
be introduced “for the purpose of supplementing or explaining other evidence, but over
timely objection shall not be sufficient in itself to support a finding unless it would be
admissible over objection in civil actions.” (Gov. Code, § 11513, subd. (d); see
Hildebrand v. Department of Motor Vehicles, at p. 1569.)
       A driver dissatisfied with the result of a license suspension hearing may file a
petition for writ of administrative mandate in superior court. (Veh. Code, § 13559,
subd. (a); Code Civ. Proc., § 1094.5.) The court must exercise its independent judgment
to determine whether the weight of the evidence supports the DMV’s decision. (Veh.
Code, § 13559, subd. (a); Lake, supra, 16 Cal.4th at p. 456.) On appeal, we review the
record to determine whether substantial evidence supports the trial court’s findings, and
may overturn the trial court’s factual findings only if the evidence is insufficient as a
matter of law. (Lake, at p. 457.) We review de novo any pure questions of law.
(Brierton v. Department of Motor Vehicles (2005) 130 Cal.App.4th 499, 508 (Brierton).)
B.     Kroll Was Not Denied Due Process Based on Mahon’s Invocation of Her Fifth
       Amendment Right to Silence
       The police report introduced at the administrative hearing described three
statements made by Mahon on the night of the accident—that someone named
“Margaret” had been driving the Jeep, that Kroll had not been inside the Jeep at the time
of the accident, and that Kroll had been in the back passenger seat of the Jeep. Kroll
argues the use of these statements deprived him of due process because Mahon invoked
her right to remain silent at the hearing and could not be cross-examined.3 We disagree.


       3
         As might be expected, the reason for Mahon’s invocation of the Fifth
Amendment privilege is not a part of the administrative record. While Kroll’s briefing at
times treats the invocation as support for his claim that Mahon was the actual driver and

                                              6
       We begin by noting that only the last of the three statements by Mahon—that
Kroll was in the back seat of the Jeep at the time of the accident—was incriminating in
any way, because it contradicted his claim he arrived at the scene after the accident. The
other two statements—that someone named Margaret had been driving the Jeep and that
Kroll had not been in the Jeep—supported Kroll’s claim he was not the driver and were
not in any sense prejudicial to his case. Our discussion therefore focuses on Mahon’s
statement that Kroll was riding in the back seat of the Jeep.
       When, as here, the independent judgment test is applied at the trial court level, we
examine the actions of the trial court rather than the DMV hearing officer. (Thompson v.
Department of Motor Vehicles (1980) 107 Cal.App.3d 354, 358; see also MHC Operating
Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 218.) Although we
review the trial court’s findings to determine whether they are supported by substantial
evidence, we review a challenge to an evidentiary ruling for abuse of discretion.
(Miyamoto v. Department of Motor Vehicles (2009) 176 Cal.App.4th 1210, 1217.)
       Kroll’s due process claim, though constitutionally based, concerns the
admissibility of hearsay evidence. As he did not object at the administrative hearing to
Mahon’s out-of-court statement placing him inside the Jeep, his claim was forfeited, and
the trial court would not have abused its discretion in considering the statement. (Dibble
v. Gourley (2002) 103 Cal.App.4th 496, 503 [objection at administrative hearing
necessary to preserve challenge based on hearsay], overruled on another ground in
MacDonald v. Gutierrez (2004) 32 Cal.4th 150, 158–159; Jackson v. Department of
Motor Vehicles (1994) 22 Cal.App.4th 730, 738 [failure to make foundational objection
to arrest report at DMV hearing forfeited challenge to admissibility of document]; see
also Bledsoe v. Biggs Unified School Dist. (2008) 170 Cal.App.4th 127, 141 & fn. 11
[current version of Govt. Code, § 11513, subd. (d) requires hearsay objection at


was concerned about a criminal prosecution for driving under the influence, the Attorney
General notes that Mahon’s apparently false statements to police officers regarding the
identity of the driver could have caused her to fear prosecution for violating Penal Code
section 148.


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administrative hearing]; Lake, supra, 16 Cal.4th at pp. 461–462 [witness statements
identifying person as the driver, though otherwise hearsay subject to no exception, were
admissible to supplement or explain the driver’s own admission under Govt. Code,
§ 11513, subd. (c)].)
       Even if Kroll’s challenge were cognizable on appeal, we would find any error
harmless. “No judgment shall be set aside . . . in any cause . . . for any error as to any
matter of procedure, unless, after an examination of the entire cause, including the
evidence, the court shall be of the opinion that the error complained of resulted in a
miscarriage of justice.” (Cal. Const., art. VI, § 13; Leal v. Gourley (2002)
100 Cal.App.4th 963, 968 [applying standard of prejudice in California Constitution to
error in DMV proceedings].) “In other words, it must be reasonably probable a more
favorable result would have been reached absent the error. [Citation.]” (Lone Star
Security & Video, Inc. v. Bureau of Security & Investigative Services (2009)
176 Cal.App.4th 1249, 1255.) Error is not prejudicial when it is merely cumulative of
other evidence properly in the record or “ ‘was not necessary, the judgment being
supported by other evidence.’ ” (Ibid.)
       Mahon’s statement placing Kroll in the Jeep, though contrary to Kroll’s position
he arrived at the scene after the accident, did not identify him as the driver. The evidence
as a whole made it clear Mahon was intoxicated at the scene and would have had as much
incentive as Kroll to deny having driven the Jeep if she had been the guilty party. Other,
stronger evidence supported the conclusion Kroll was the driver—his injuries, his
implausible explanations for those injuries, the position of the Jeep’s driver’s seat, and
his failure to direct the police to friends who could corroborate his story. It is not
reasonably probable Kroll would have obtained a more favorable result if Mahon’s
statement had been disregarded.
       “Due process requires full and fair administrative hearings that provide drivers a
‘ “meaningful opportunity to present their case.” ’ [Citation.]” (Petrus v. Department of
Motor Vehicles (2011) 194 Cal.App.4th 1240, 1244.) Kroll was given a full
administrative hearing, at which he was able to cross-examine the investigating officer


                                              8
and present the testimony of three witnesses who supported his version of events. His
case was reviewed by the trial court in a mandamus proceeding. His inability to cross-
examine Mahon regarding statements that did not identify him as the driver did not
render the proceedings unfair.
C.     Witness Credibility
       The DMV hearing officer noted in her written findings that she had determined
Kroll’s witnesses were not credible. Kroll argues the trial court improperly deferred to
this finding, rather than making its own assessment of witness credibility. We are not
persuaded.
       When a driver petitions for a writ of mandate following a license suspension, the
trial court exercises its independent judgment on the evidence. (Morgenstern v.
Department of Motor Vehicles (2003) 111 Cal.App.4th 366, 372.) As part of this review,
the court is permitted to draw its own inferences from the evidence and make its own
credibility determinations. (Ibid.) At the same time, it must afford a strong presumption
of correctness to the administrative findings, with the burden resting on the complaining
party to show the decision is contrary to the weight of the evidence. (Fukuda v. City of
Angels (1999) 20 Cal.4th 805, 817; Arthur v. Department of Motor Vehicles (2010)
184 Cal.App.4th 1199, 1204–1205.)
       The order denying the writ indicates the court reviewed the writ petition, the
administrative record, the DMV’s opposition, and supplemental points and authorities
submitted by Kroll. The supplemental points and authorities discuss the independent
judgment standard at length and urge the court to find Kroll’s witnesses credible. During
oral argument before the trial court on the writ, the parties discussed the weight of the
evidence and the relative credibility of the witnesses. In light of the briefing and
argument on this subject, and given the lack of any indication to the contrary, we
presume the trial court was aware of the applicable law and applied the appropriate
standard when reviewing the administrative record. (Howard v. Thrifty Drug & Discount
Stores (1995) 10 Cal.4th 424, 443; In re Merrick V. (2004) 122 Cal.App.4th 235, 254



                                              9
[absent indication to the contrary, we presume court was aware of and followed the law];
Evid. Code, § 664.)
       Kroll points to the final sentence in the order denying the writ, which states, “The
court notes that the Hearing Officer was in the best position to assess the credibility of the
witnesses.” He argues this language shows the trial court declined to make its own
determination of witness credibility, citing Barber v. Long Beach Civil Service Com.
(1996) 45 Cal.App.4th 652, 658. In that case, the trial court considered an administrative
decision upholding the termination of a police officer “where the major underlying issue
was one of credibility.” (Id. at p. 653.) Though bound to apply an independent standard
of review when considering the officer’s petition for writ of mandate, the trial court
expressly, and incorrectly, stated it had no ability to reweigh the credibility
determinations made by the administrative agency. (Id. at pp. 658–659.) Because the
court was “flatly wrong,” and because the error “went to the heart of [the] case” (id. at
p. 659), the matter was remanded to the trial court for a redetermination of the mandate
petition (id. at p. 660).
       No similar error infects the trial court’s decision in this case. The court simply
observed that the DMV officer who actually heard the testimony of the witnesses
firsthand was in the best position to assess their credibility. Independent review “ ‘does
not mean that the preliminary work performed by the [agency] in sifting the evidence and
making its findings is wasted effort. . . . [I]n weighing the evidence the courts can and
should be assisted by the findings of the [agency]. The findings of the [agency] come
before the court with a strong presumption of their correctness, and the burden rests on
the complaining party to convince the court that the [agency]’s decision is contrary to the
weight of the evidence. [Citation.]” (Fukuda v. City of Angels, supra, 20 Cal.4th at
p. 812.)
D.     Substantial Evidence
       Kroll argues the evidence before the trial court was insufficient as a matter of law
to sustain a determination he drove under the influence. Again we disagree. Our review
of the trial court’s decision is for substantial evidence, with all conflicts resolved in favor


                                              10
of the trial court’s decision and all factual findings upheld unless the evidence was
insufficient as a matter of law. (Lake, supra, 16 Cal.4th at p. 457.) When two or more
inferences can be deduced from the facts, the appellate court may not substitute its
judgment for that of the trial court. (Brierton, supra, 130 Cal.App.4th at p. 508.)
       A number of circumstances support the trial court’s determination Kroll was the
driver: (1) he was present at the accident scene; (2) Farley observed a red mark on
Kroll’s shoulder that matched the distended seat belt in the driver’s seat of the Jeep;
(3) Kroll’s initial explanation of his injuries as resulting from “martial arts” was
implausible, and was contrary to his equally implausible testimony at the DMV hearing
that his ankle injury was caused by a sword while dancing at the party; (4) the driver’s
seat was adjusted for someone of Kroll’s height, and Mahon, the only other person at the
scene, was shorter than Kroll; (5) Kroll identified “Maureen” as the driver, but this
person was not at the scene of the accident; and (6) though Kroll told Farley he had been
dropped off at the scene by a friend, he never provided contact information to the police
so they could verify his claim he had not been driving. Though the trial court had the
power to reweigh the evidence in its review, we do not. (Brierton, supra,
130 Cal.App.4th at p. 508.) Substantial evidence supports the denial of the writ.




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                                  III.   DISPOSITION
      The judgment is affirmed.




                                         NEEDHAM, J.




We concur.




JONES, P. J.




SIMONS, J.




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