Filed 7/18/19
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                       DIVISION THREE

THE PEOPLE,                             B286201

       Plaintiff and Respondent,        Los Angeles County
                                        Super. Ct. No. BA459662
       v.

SHEILA COOPER,

       Defendant and Appellant.



     APPEAL from a judgment of the Superior Court of
Los Angeles County, Robert J. Perry, Judge. Affirmed.

     Darden Law Group and Christopher Darden for
Defendant and Appellant.

      Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Stephanie C. Brenan and Lindsay Boyd,
Deputy Attorneys General, for Plaintiff and Respondent.
                       _________________________
       A jury convicted defendant and appellant Sheila Cooper
of driving under the influence of alcohol causing injury
within 10 years of a prior driving under the influence offense.
On appeal, Cooper contends the trial court erred in denying
her motion to suppress statements she made to police during
field sobriety tests administered at the police station.
Cooper claims a violation of her Fifth Amendment rights
under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
We find no error and affirm.
         FACTS AND PROCEDURAL BACKGROUND
1.     Cooper slams into the victims’ car
       Just after 8:30 p.m. one January night in 2017, Yessenia
Rosales was driving her Kia Forte on Manchester Boulevard
in Los Angeles. In the passenger seat was her fiancé, Edmundo
Mendez. Both Rosales and Mendez were wearing seat belts.
Rosales was stopped at a red light. Just as the light turned
green, Rosales and Mendez saw in their rearview mirror the
lights of a car coming up behind them, closer and closer. The
lights in the rearview mirror were getting brighter and more
intense. The oncoming car hit the Kia very, very hard. Rosales’s
car went flying forward at least 50 feet and ended up on the other
side of the intersection.
       Mendez called 911. The operator told him just to get the
information from the other driver. Mendez walked over to the
car that hit him, a Chevrolet Camaro. Cooper was sitting in
the driver’s seat. Mendez spoke to her. At first she was
“unresponsive” but after a few seconds she seemed to “c[o]me to.”
Cooper told Mendez he had no authority to ask for her
identification because he was not a police officer. Cooper’s
speech was slurred and Mendez smelled alcohol on her breath.
       A tow truck happened to drive by and stopped to help.
Cooper got out of her car, approached the tow truck driver,



                                2
and said, “I need to get out of here. Can you get me out of here?”
Mendez noticed Cooper was “wobbling,” “swaying side to side”
“like she couldn’t walk straight.” Mendez called 911 again.
       Donyell Journagin also was driving down Manchester
that night. While sitting at the red light, Journagin saw the
lights of a car coming fast. He estimated the car was traveling
at least 65 or 70 miles per hour; the speed limit there is 35.
The car “just smack[ed]” into another car, “hit[ting] it hard”
and knocking it “a good 70, 80 feet” across the intersection.
Journagin pulled over and got out to make sure everyone
was alright, “[b]ecause the crash . . . was like a hard hit.”
       Journagin saw Cooper, who was “kind of stumbling” and
kind of disoriented. Journagin asked Cooper if she was okay
and told her “[t]he people [were] going to need [her] I.D. to
exchange the information.” Cooper started “acting crazy.”
As Mendez walked up, Cooper “turned around” and “start[ed]
saying like, what the fuck? You motherfuckers work for Trump
or something like that.” Journagin backed up; he and Mendez
walked to the curb and Journagin told Mendez he’d have to wait
for the police because “[y]ou can’t take her I.D. or anything.”
       Los Angeles Police Department Officers Samual Colwart
and Nathan Grate arrived at the scene about 10 minutes after
the collision. Cooper was standing on the sidewalk. Colwart
asked Cooper for her driver’s license, registration, and proof of
insurance. Colwart noticed Cooper’s eyes were red and watery,
she smelled like alcohol, and she was chewing gum. Her speech
was slurred. Cooper walked back to her car. She was stumbling
and unable to walk straight.
       Cooper got into her car and “kind of just sat there.” She
was upset and crying. Eventually Cooper went through her
wallet and handed her license to Colwart. She got out of her car.
Colwart again asked Cooper for her registration and proof of



                                3
insurance. Cooper “became very upset” and “threw her wallet on
the hood of the car.” She was “walking around” and “cursing.”
       Colwart asked Cooper if she had been drinking; she said no.
Colwart asked Cooper if she had “any physical defects”; she said
no. Colwart asked Cooper where she had been going; she refused
to answer. In response to Colwart’s questions, Cooper told him
what she had eaten and when she had last slept. Colwart asked
Cooper if she was under a doctor’s care and she responded,
“Ain’t your business.”
       Rosales saw that, while Cooper was talking with the
officers, “[s]he was throwing her hands up” “then down in
a slumping over motion,” “walking back and forth,” and
“walking away from [the] officers.”
2.     Officers take Cooper to the police station and
       ask her to perform field sobriety tests
       Colwart decided to take Cooper to the 77th Street police
station to administer the field sobriety tests (FSTs). Colwart
later explained: “[S]he was just so upset at the scene, she wasn’t
focused on any—the questions I was asking. She just was really
upset. She wasn’t . . . with the investigation at the time . . . .
It would be unsafe.” Cooper was “pacing around” and the
roadway “was still an active collision scene.” Female officers
arrived. They had to “grab [Cooper] and bring her to the
[police] car.” The station was one and one-half to two miles
from the scene.
       Once at the station, Colwart began the FSTs with Cooper
in the long hallway next to the watch commander’s room. Cooper
was not handcuffed. Colwart did not see any “physical defects,”
physical problems, or medical issues that might prevent Cooper
from performing the FSTs. According to Colwart, there are
“preset instructions” for the FSTs—officers give the tests in
a particular order. Colwart typically explains each test in turn,



                                4
asks the suspect if she understands the test, and then asks
the suspect to perform the test.
       The first test was the “eye examination,” looking for
horizontal gaze nystagmus. Cooper’s performance was
“consistent with somebody who is impaired due to alcohol.”
       Next, Colwart had Cooper perform the modified Romberg
test.1 Colwart instructed Cooper to stand with her feet together,
hands to her sides, close her eyes, tilt her head back, and
estimate 30 seconds. Colwart demonstrated. Cooper swayed
back and forth slightly while performing the test; she estimated
23 seconds to be 30 seconds. Variation within the “normal range”
is five seconds in either direction; Cooper’s estimate of 23 seconds
thus was just outside the normal range. Her performance on
that test—without more—would not demonstrate impairment.
       Next, Colwart explained, then demonstrated, the walk-
and-turn test. Cooper indicated she understood the test but
she refused to perform it. Cooper told Colwart “her thighs were
too big and her pants were too tight.” Colwart then explained
and demonstrated the one-leg stand test. Cooper refused to do
that test as well. She told Colwart “she wouldn’t be able to do it
because she had a disability.” Cooper told Colwart the nature
of the disability “ain’t [your] business.”
       Colwart read Cooper the chemical admonition, advising her
she was required to submit to a breath test or a blood test.2


1    Colwart testified the Romberg test is not a standardized
FST recognized by the National Highway Traffic Safety
Administration. The LAPD uses the test anyway.
2     Under California’s Implied Consent Law, “[a] person who
drives a motor vehicle is deemed to have given his or her consent
to chemical testing of his or her blood or breath for the purpose
of determining the alcohol content of his or her blood, if lawfully


                                 5
Cooper chose the breath test. Colwart’s partner Grate
administered the EC/IR intoxilyzer breath test. Grate first
observed Cooper for 15 minutes. Grate then explained to Cooper
how to do the test. Cooper purported to blow into the machine
but she didn’t blow hard enough and the machine “said
insufficient sample.” Grate asked Cooper three more times
to blow into the machine properly and with sufficient force,
without success. At one point, Cooper wrapped her lips too
tightly around the mouthpiece so her breath was “block[ed]”
from “go[ing] into the EC/IR machine to provide a sample.”
       Colwart summoned the watch commander, Sergeant
Deanna Quesada, from her office. Quesada explained to Cooper
“that she’s required by the state to submit to a chemical test
to determine the alcohol content of your blood.” Quesada told
Cooper she could have a breath test or a blood test. Quesada
advised Cooper of the consequences of refusing to submit to
a test. According to Quesada, Cooper did not respond; she was
just silent. Colwart recalled Cooper did respond; he could not
remember her exact words, but she “essentially refuse[d] to
take any more tests.”
3.     The victims’ injuries
       The victims’ Kia was totaled. At the time of trial, about
nine months after the collision, Rosales still had headaches
every day. She suffered from knee pain, shoulder pain where
her seatbelt had crossed her shoulder, and insomnia, even though
she was taking muscle relaxants. The shoulder pain was
“constant”: “[i]t really hurts . . . all the time now.” Rosales
was unable to perform some of her job duties as a nanny.



arrested for [a driving under the influence] offense . . . .”
(Veh. Code, § 23612, subd. (a)(1)(A).)



                                   6
      Mendez suffered from back pain caused by discs that were
“protruding a few centimeters out of place.” He also had muscle
weakness in his hip and went to physical therapy for five months.
He was not able to perform all of his duties as a security officer.
4.    The charges, Miranda hearing, trial, verdicts,
      and sentence
      The People charged Cooper with driving under the
influence of alcohol (DUI) within 10 years of a prior felony DUI
conviction (count 1), and DUI causing injury within 10 years
of another DUI offense (count 2). The People alleged Cooper
had refused to submit to the mandatory chemical test, and
she had suffered a prior strike conviction for criminal threats.
      Before trial, Cooper filed a Miranda motion. Cooper
“object[ed] to the admission in [the] trial of any and all evidence
related to admissions of the Defendant made prior to being
advised of her Miranda rights, after she was detained
(handcuffed and placed in a patrol vehicle).” Before the trial
began, the court conducted an evidentiary hearing. Officer
Colwart testified Cooper almost certainly was handcuffed
while being transported to the station in the police car. Officers
removed the cuffs at the station before Cooper began the FSTs.
      Colwart described each test he demonstrated for Cooper.
He testified she did not perform the walk-and-turn test; she said
“her thighs [were] too big” and her “jeans [were] too tight.”
Colwart testified after he explained the one-leg stand test and
asked Cooper to perform it, she said, “I won’t be able to due to
disability.” The court asked, “So you’ve done the one test, now
you’re moving to the next test . . . and you’re explaining that test
to her? . . . And then at some point she makes certain statements
to you about why she can’t perform that test?” Colwart
answered, “Yes. . . . That’s the way it happened.”




                                 7
      On cross-examination, Colwart testified he had not yet
arrested Cooper, nor even formed an opinion that she was under
the influence or impaired, when he had her transported to the
station. It was still a pending investigation at that juncture.
      Cooper’s counsel argued Cooper was in custody once she
was put in the police car and taken to the station. The court
asked, “[Y]ou’re not contesting that they had the right to
administer these tests, are you?” Counsel responded, “They are
voluntar[y] test[s].” The court said, “But what interrogation was
going on there? This was an administration of tests.” The court
continued, “Your issue is . . . there is no way that the police can
transport someone to the station and give them sobriety tests
unless they give them a Miranda warning and the person
consents to the test[s]; that’s your position?” Counsel answered,
“Yes.” The court asked, “You want me to suppress all oral
statements she made from the time she got out of the car and was
asked to do the field sobriety tests; is that what your position is?”
Counsel said, “Yes.” The court denied the motion.
      In October 2017, a jury convicted Cooper of both counts
and found the refusal allegation true. Cooper waived jury on,
and later admitted, her prior convictions. The trial court denied
Cooper’s Romero motion.3 The court earlier had said it might
well grant the motion, as Cooper’s strike was more than 13 years
old. But after reading the probation department report, the court
stated it was “astonished” at Cooper’s record. The court
recounted Cooper’s numerous DUI convictions.4 The court said,


3     People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
4     According to the probation department, Cooper pled to
reckless driving in August 2002 in a case initially filed as a DUI.
Less than a month later, she again was charged with a DUI.
Less than two months later, Cooper was arrested again for DUI,


                                 8
“I just was astonished at the record and dismayed by the number
of convictions. I feel she has a serious problem with alcohol and
with driving under the influence, and I would consider her to be
a serious danger to those in the community.” The court
sentenced Cooper to six years in the state prison, calculated as
the upper term of three years doubled because of Cooper’s strike.
The court also ordered Cooper to serve four additional days
in custody for refusing to submit to a chemical test.
                               DISCUSSION
       Cooper argues the trial court erred in declining to suppress
six statements she made at the police station:
       • “That her thighs were to[o] big [to] perform a field
          sobriety test”;
       • “That her jeans were too tight to perform a field sobriety
          test”;
       • “That she could not perform a field sobriety test because
          she suffered a disability”;
       • “That when asked the nature of her disability she
          stated, ‘Ain’t none of your business’ ”;
       • “ ‘I don’t want to take any more tests’ ”; and



convicted, and ordered to complete an 18-month alcohol education
program. Less than six months later, Cooper was arrested and
charged with DUI as well as criminal threats, battery on a peace
officer, and gassing. In November 2004, she was arrested for
driving with a suspended license. In October 2006, Cooper again
committed a DUI. In July 2007 she committed a hit-and-run; she
also was charged with driving while her license was suspended
for failure to comply with DUI conditions. In July 2009, Cooper
was charged with felony DUI causing injury and hit-and-run with
injury committed in November 2007. Cooper also was convicted
of theft and drug crimes between 1989 and 2008.



                                 9
       • “Her response to the modified Romberg test, when
          she stated 23 seconds had passed when in fact
          only 30 seconds had lapsed [sic].”
The People argue “[t]he trial court properly found these
statements admissible because [Cooper] was not being
interrogated when she made the statements.”5
       In California, federal constitutional standards govern
the admissibility of statements made during a custodial
interrogation. (People v. Nelson (2012) 53 Cal.4th 367, 374;
People v. Cunningham (2001) 25 Cal.4th 926, 993.) “In reviewing
the trial court’s denial of a suppression motion on Miranda-
Edwards[6] grounds, ‘it is well established that we accept
the trial court’s resolution of disputed facts and inferences, and
its evaluations of credibility, if supported by substantial evidence.
We independently determine from the undisputed facts and
the facts properly found by the trial court whether the challenged
statement was illegally obtained.’ ” (People v. Gamache (2010)
48 Cal.4th 347, 385; see also Cunningham, at p. 992.)
       The Fifth Amendment does not bar the admission of
“[v]olunteered statements of any kind” (Miranda, supra, 384 U.S.
at p. 478), nor those otherwise not resulting from interrogation.
(Rhode Island v. Innis (1980) 446 U.S. 291, 299-300.)
Nontestimonial responses by a suspect—even though made
in the course of custodial interrogation—are not subject to
the Miranda rule. (Pennsylvania v. Muniz (1990) 496 U.S. 582
(Muniz).) The United States Supreme Court has drawn


5     The People do not dispute Cooper was in custody for
Miranda purposes once she was handcuffed and taken to
the police station.
6     Edwards v. Arizona (1981) 451 U.S. 477.



                                 10
“a distinction between ‘testimonial’ and ‘real or physical evidence’
for purposes of the privilege against self-incrimination.” (Id. at
p. 591.) Thus, a suspect may be compelled to provide a blood
sample (Schmerber v. California (1966) 384 U.S. 757); participate
in a lineup and repeat a phrase provided by police (United States
v. Wade (1967) 388 U.S. 218); provide a handwriting exemplar
(Gilbert v. California (1967) 388 U.S. 263); and read a transcript
to provide a voice exemplar (United States v. Dionisio (1973)
410 U.S. 1).
       In Muniz, police found Muniz parked on the shoulder of
a highway. He appeared to be under the influence. The officer
asked Muniz to perform three FSTs: the horizontal gaze
nystagmus test, the walk-and-turn test, and the one-leg stand
test. (Muniz, supra, 496 U.S. at p. 585.) Muniz performed
poorly. The officer arrested Muniz and took him to the station,
where he asked him to repeat the tests. Muniz “ ‘often requested
further clarification of the tasks he was to perform’ ” and
“ ‘attempted to explain his difficulties in performing the
various tasks.’ ” (Id. at pp. 585-586.)
       The officer also asked Muniz several questions, such as
his address, height, weight, and so forth. One of those questions
required Muniz to give the date of his sixth birthday. Muniz
was unable to do so. (Muniz, supra, 496 U.S. at p. 586.)
       The Court held requiring a suspect to perform FSTs
does not violate the Fifth Amendment “because the evidence
procured is of a physical nature rather than testimonial.” The
officer’s “dialogue with Muniz concerning the physical sobriety
tests consisted primarily of carefully scripted instructions as to
how the tests were to be performed. These instructions were
not likely to be perceived as calling for any verbal responses
and therefore were not ‘words or actions’ constituting custodial
interrogation . . . . The dialogue also contained limited and



                                11
carefully worded inquiries as to whether Muniz understood
those instructions, but these focused inquiries were necessarily
‘attendant to’ the police procedure held by the court to be
legitimate. Hence, Muniz’s incriminating utterances during
this phase of the . . . proceedings were ‘voluntary’ in the sense
that they were not elicited in response to custodial interrogation.”
(Muniz, supra, 496 U.S. at pp. 602-604.)
       The officer’s request that Muniz calculate the date of
his sixth birthday was different, however. Because that question
required Muniz “to communicate an express or implied assertion
of fact or belief,” Muniz’s inability to answer the question was
testimonial. (Muniz, supra, 496 U.S. at pp. 592, 597.)
       Muniz forecloses Cooper’s argument as to the first four
of the six statements she lists in her brief. Asking a DUI suspect
to perform physical tests is not an “interrogation.” Colwart
testified he explained each test, demonstrated several of them,
asked Cooper if she understood, then asked her to perform
the tests. Cooper volunteered her statements, claiming an
inability to perform the tests and telling Colwart the nature
of the “disability” she cited was none of his business. It is plain
why the legal analysis Cooper proposes is not the law: A driver
suspected of being under the influence could simply behave
obstreperously at the scene, requiring officers to take her to the
station for everyone’s safety to perform the FSTs. The suspect
then could claim—because she was now “in custody”—her
Miranda rights attached and she had a Fifth Amendment right
to refuse to perform the tests. Where—as here—officers did not
yet have probable cause to arrest the suspect, but instead were




                                12
trying to continue their investigation, they would have no choice
but to release the suspect.7
       Cooper’s argument as to the fifth listed statement—that
she didn’t want to take any more tests—similarly fails.8 A police
inquiry to a suspect as to whether she will submit to a chemical
test is not an “interrogation” within the meaning of Miranda.
(South Dakota v. Neville (1983) 459 U.S. 553, 564; Muniz, supra,
496 U.S. at pp. 604-605 [officer read suspect script explaining
how breathalyzer examination worked, nature of state’s implied
consent law, and consequences of refusal; officer’s questions
whether suspect understood instructions and wished to submit
to test did not constitute interrogation under Miranda].)
       Cooper’s sixth challenged statement—her estimate of
23 seconds on the modified Romberg test when in fact 30 seconds
had elapsed—requires a different analysis. Cooper relies on
People v. Bejasa (2012) 205 Cal.App.4th 26 (Bejasa). There,
officers arrived at the scene of an auto accident and found Bejasa,
who had methamphetamine and syringes. He also was on parole.
An officer handcuffed Bejasa, told him he was being detained
for a possible parole violation, and put him in the police car.
After other officers arrived, Bejasa was let out of the car and
uncuffed. He was “interview[ed],” asked to do FSTs (including
the Romberg test), and then arrested. (Id. at pp. 30-31.)




7      Officer Colwart testified he did not arrest every suspect
who was detained and asked to perform FSTs. If—as a result
of the FSTs—Colwart determined the suspect was not under
the influence, Colwart would let that person go.
8     As noted, Sergeant Quesada’s recollection was Cooper
never made this statement. Officer Colwart testified Cooper said
something to that effect, but he could not recall her exact words.


                                13
       The appellate court concluded Bejasa’s “incriminating
statements regarding his use of drugs” made during questioning,
as well as his performance on the Romberg test, should have
been suppressed. The court noted officers already had probable
cause to arrest Bejasa on a parole violation. (Bejasa, supra,
205 Cal.App.4th at pp. 33, 39-45.) The officer’s questioning went
beyond general on-the-scene questioning; by the time the officer
“contacted [Bejasa], [he] had moved past interrogation and
into the realm of inculpation.” (Id. at p. 40.) Moreover, Bejasa’s
statement during the Romberg test was like Muniz’s response to
the question about the date of his sixth birthday: it required
the suspect to make a calculation and “to communicate an
implied assertion of fact or belief.” (Id. at p. 43.)
       Here, Officer Colwart testified he did not have probable
cause to arrest Cooper before he administered the FSTs.
His investigation was ongoing. In any event, any error by the
trial court in denying Cooper’s motion to suppress her estimate
of 23 seconds on the Romberg test was harmless beyond
a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.)
Cooper’s performance on the horizontal gaze nystagmus test
showed impairment, she refused to do two other FSTs, she was
swaying and unsteady on her feet on the roadway, and she
smelled of alcohol. Colwart admitted Cooper’s “slight” deviation
from normal on the Romberg test was not enough to constitute
probable cause for a DUI arrest.




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                       DISPOSITION
     We affirm Sheila Cooper’s conviction.

     CERTIFIED FOR PUBLICATION




                                   EGERTON, J.

We concur:




             EDMON, P. J.




             LAVIN, J.




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