Filed 10/1/19 (unmodified opn. attached)
                  CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                   SECOND APPELLATE DISTRICT

                              DIVISION EIGHT


 THE PEOPLE                                B292164
                                           (Los Angeles County
        Plaintiff and Respondent,          Super. Ct. No. SA096190)

        v.                                 ORDER MODIFYING OPINION
                                           AND DENYING REHEARING
 JULIO NZOLAMESO
                                           [NO CHANGE IN JUDGMENT]
        Defendant and Appellant.


      THE COURT:
      It is ordered that the opinion filed herein on September 17,
2019, be modified as follows:
      On page 7, replace the last paragraph beginning with
“Birchfield therefore prohibits,” with the following paragraph:

      Birchfield therefore prohibits a court from finding implied
consent where an arrestee’s only choice is to consent to a
warrantless blood test or be prosecuted for refusing to do so. Any
consent obtained by law enforcement cannot be deemed valid
where the only choice is consent to the blood test or be punished
criminally. Here, however, that was not Nzolameso’s only choice.
Under California’s former implied consent law, Nzolameso was
given a choice of tests to choose from. He was subject to criminal
penalties only if he refused both the blood and breath test.
Under Birchfield, the state of California was not insisting on only
the more intrusive alternative of a blood test. Instead, it offered
motorists suspected of drunk driving a less intrusive alternative:
a breath test. And, even though the implied consent statute
required Nzolameso to submit to only blood or breath testing on
penalty of criminal penalty, the officers here also gave Nzolameso
the option of a urine test, which he subsequently requested.1
Nzolameso was not required to take the blood test or face
criminal prosecution; he was required only to choose between
alternative tests. Only refusing all tests would have exposed him
to criminal penalties under the law. As the First District stated
in People v. Gutierrez (2018) 27 Cal.App.5th 1155, review granted
January 2, 2019, S252532 (Gutierrez), just because “the state
cannot compel a warrantless blood test does not mean that it
cannot offer one as an alternative to the breath test that it clearly




1      The former implied consent law stated that a motorist is
deemed to have consented to a urine test on suspicion of driving
under the influence of alcohol only if blood or breath testing is
unavailable. (Veh. Code, § 23612, former subds. (a)(1)(A) &
(d)(2).)) Thus, under the law, Nzolameso would have faced
criminal penalties for refusing a urine test only if blood and
breath testing were unavailable. Whether Nzolameso would have
faced criminal penalties under the facts of this case if he had
refused blood and breath, but submitted to urine testing, is
immaterial because he gave actual consent to the blood and urine
tests.




                                 2
can compel.” (Id. at p. 1161.)2 Hence, Birchfield does not
prohibit a finding of implied consent under California’s former
law under these circumstances.

      There is no change in the judgment.
      Appellant’s petition for rehearing is denied.




____________________________________________________________
BIGELOW, P. J.         GRIMES, J.           STRATTON, J.




2     Review was granted in Gutierrez on whether law
enforcement violates the Fourth Amendment by taking a
warrantless blood sample from an unconscious defendant, or can
the defendant be deemed to have given implied consent under
California’s implied consent law?




                                 3
Filed 9/17/19 (unmodified version)
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                   SECOND APPELLATE DISTRICT

                              DIVISION EIGHT

 THE PEOPLE,                              B292164

        Plaintiff and Respondent,         (Los Angeles County
                                          Super. Ct. No. SA096190)
        v.

 JULIO NZOLAMESO,

        Defendant and Appellant.


     APPEAL from a judgment of the Superior Court of Los
Angeles County, Mark A. Young, Judge. Affirmed.

     Aaron J. Schechter, under appointment by the Court of
Appeal, 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 Jonathan M. Krauss,
Deputy Attorneys General, for Plaintiff and Respondent.
                   _________________________
                         INTRODUCTION
        Police arrested appellant Julio Nzolameso for alleged
drunk driving after he drove his car into a crowd of people and
seriously injured four pedestrians. The arresting officers
admonished Nzolameso that he was required to submit to either
blood, urine, or breath testing and that refusal to submit to any
testing at all would result in civil and criminal penalties.
Nzolameso chose the blood test, which revealed a blood alcohol
level above the legal limit.
       Nzolameso moved to suppress the results of the blood test
on the grounds that the blood testing was a warrantless search in
violation of the Fourth Amendment. He also argued that his
consent to the blood test was invalid because it was given under
threat of criminal prosecution. The court denied the motion.
       On appeal, Nzolameso relies on Birchfield v. North Dakota
(2016) 579 U.S. ___, [136 S.Ct. 2160] (Birchfield) in support of his
argument that his consent was illegal per se because it was given
under threat of criminal prosecution. Because we disagree with
Nzolameso’s broad interpretation of Birchfield and agree
Nzolameso’s consent was freely and voluntarily given, we affirm.

        FACTS AND PROCEDURAL BACKGROUND
      On a night in June 2017, Nzolameso drove his car into a
crowd of pedestrians who were socializing in the parking lot of a
club. After hitting several pedestrians, Nzolameso exited the
parking lot, made a right-hand turn into heavy traffic, and
crashed into a parked car. Nzolameso was immediately detained
by Los Angeles Police Department Officers Ernest Fields and
Samuel Kim, who transported Nzolameso to a hospital to ensure
he was not injured. At the hospital, Officer Fields conducted field
sobriety tests, which Nzolameso failed.




                                 2
      Officer Fields then placed Nzolameso under arrest and
advised him of California’s implied consent law as follows:
             “You must submit to a blood test, urine test, breath
      test, or urine and breath test, per California Vehicle Code
      23612. Failure to submit to or failure to complete required
      chemical testing will result in a fine, mandatory
      imprisonment if convicted of 23152 or 23153, and the
      suspension of your privilege to operate a motor vehicle for
      one year.
             “[¶] . . . [¶]
             “Breath test violation 23614 C.V.C. If you choose the
      breath test, the breath testing equipment does not retain
      any sample of the breath and no breath sample will be
      available after the first test, which could be analyzed later
      by any other person or yourself.
             “Because no breath sample is retained, . . . you have
      the opportunity to provide a blood sample that will be
      retained at no cost to you. There will be something
      retained that may be subsequently analyzed for the alcohol
      content of your blood. And if you choose the blood or urine,
      your sample may be tested by either party in any criminal
      prosecution.”
      Nzolameso informed Officers Fields and Kim that he
wanted a blood test. He also asked for a urine test. At no point
did he withdraw his consent to either test. His urine and blood
were taken by the nursing staff as the officers looked on. The
nursing staff also took Nzolameso’s consent to the blood test to
satisfy its own ethical obligations. He was given a cup for the
urine test and shown the toilet. He asked for water, which he
received, and discussed the timing of the testing with the nursing




                                 3
staff, ultimately telling the nurses exactly when he was ready to
give urine and blood. Nzolameso’s blood alcohol concentration
was measured at 0.05 percent. Using retrograde extrapolation,
the People’s criminalist estimated Nzolameso’s blood alcohol
concentration was between 0.05 and 0.16 at the time of the
collision.
       Nzolameso was charged via information with six counts:
driving under the influence (DUI) of alcohol causing great bodily
injury within 10 years of two other DUI offenses (Veh. Code,
§§ 23153, subd. (a) & 23566, subd. (b); count 1); DUI with a
0.08 percent blood alcohol content causing great bodily injury
within 10 years of two other DUI offenses (Veh. Code, §§ 23153,
subd. (b) & 23566, subd. (b); count 2); driving when privilege
suspended or revoked for being a habitual offender (Veh. Code,
§ 14601.3, subd. (d)(2); count 3); driving when privilege
suspended or revoked for driving under the influence conviction
(Veh. Code, § 14601.2, subd. (a); count 4); driving a vehicle not
equipped with an ignition interlock device when privilege
restricted (Veh. Code, § 23247, subd. (e); count 5); and hit and
run driving resulting in injury to another person (Veh. Code,
§ 20001, subd. (b)(1); count 6). Count 5 was later dismissed
pursuant to Penal Code section 995.
       Nzolameso moved to suppress the blood test. At the
hearing on the motion at which Officers Fields and Kim testified,
Nzolameso stipulated that he was lawfully arrested and had been
properly advised of the implied consent law, and that he had
consented to a blood test. Nzolameso’s sole argument was that
the police were required to obtain a warrant to draw his blood.
Relying on Birchfield, Nzolameso argued he did not freely and
voluntarily consent to the blood draw because he faced criminal




                                4
penalties if he refused. The trial court determined Nzolameso did
not face any criminal prosecution for failing to comply with
California’s implied consent law. The trial court also found, after
looking “at all of the factors” and “under the totality of the
circumstances,” that Nzolameso freely and voluntarily consented
to the blood draw. The court denied the motion.
      Nzolameso pled nolo contendere to count 2, admitted he
caused great bodily injury to two victims, and admitted he
suffered two prior DUI convictions. The court sentenced
Nzolameso to 10 years in prison, consisting of four years on
count 2, plus three years on each of the great bodily injury
enhancement allegations.
      Nzolameso timely appealed.

                           DISCUSSION
      Nzolameso’s sole argument on appeal is that the trial court
erred in denying his motion to suppress the blood test because
the Fourth Amendment required law enforcement to obtain a
warrant before taking a sample of his blood. Nzolameso argues
California’s former implied consent law, which was amended
after his conviction, made his failure to submit to a blood draw
subject to mandatory imprisonment upon a DUI conviction and
therefore invalidated his consent. We agree there can be no
implied consent to a warrantless blood draw upon threat of
criminal penalty, but disagree with Nzolameso’s contention that
Birchfield mandates that we invalidate his actual consent.
      A. The Warrant Requirement
      The first issue in Birchfield was whether the Fourth
Amendment permits warrantless blood alcohol chemical testing
incident to an arrest for drunk driving. (Birchfield, supra,
136 S.Ct. at pp. 2166–2167.) The Birchfield court considered




                                5
three consolidated cases: two involving a North Dakota law
requiring drunk drivers to submit to warrantless blood tests or
face misdemeanor prosecution for refusing the test; and one in
Minnesota which requires a breath test and threatens criminal
prosecution upon refusal to consent. (Id. at p. 2170.) As the
Court noted, “success for all three petitioners depends on the
proposition that the criminal law ordinarily may not compel a
motorist to submit to the taking of a blood sample or to a breath
test unless a warrant authorizing such testing is issued by a
magistrate.” (Id. at p. 2172.)
       The Court began with a recap of its jurisprudence—that
taking a blood sample or administering a breath test is a search
governed by the Fourth Amendment and that a search warrant
must be secured unless an exception to the warrant requirement
applies. (Birchfield, supra, 136 S.Ct. at p. 2173.) The Court held
that a breath test comes within the categorical search-incident-
to-arrest exception to the warrant requirement. It held that, as
in all cases involving reasonable searches incident to arrest, a
warrant is not needed. (Id. at p. 2185.) Thus, the Minnesota
arrestee who refused the warrantless breath test was out of luck.
(Id. at p. 2186.)
       As to blood tests, however, the Court held a warrant is
required. (Birchfield, supra, 136 S.Ct. at pp. 2184, 2186.) In
reaching “a different conclusion with respect to blood tests,” the
Court found that “[b]lood tests are significantly more intrusive,
and their reasonableness must be judged in light of the
availability of the less invasive alternative of a breath test.”
(Id. at p. 2184.) The Court found no satisfactory justification for
demanding the more intrusive alternative without a warrant.
(Ibid.) Thus, the North Dakota arrestee who refused a




                                 6
warrantless blood test had his conviction for refusing the test
reversed. (Id. at p. 2186.)
      B. The Consent Exception to the Warrant Requirement
      Having found that blood tests require a warrant, the next
step was to determine whether any exception to the warrant
requirement applied. A defendant’s free and voluntary consent to
a blood draw constitutes an exception to the Fourth Amendment
search warrant requirement. (People v. Elder (2017)
11 Cal.App.5th 123, 131.) It is well established that a search is
reasonable when the subject consents and that sometimes
consent to a search need not be express but may be fairly inferred
from context. (Birchfield, supra, 136 S.Ct. at p. 2185.) As to the
remaining arrestee in Birchfield who had actually agreed to take
the blood test, the state court had found implied consent only
based on the erroneous assumption that the state could compel
both blood and breath tests. The Court found that motorists
cannot be deemed to have consented to blood tests on pain of
committing a criminal offense. (Id. at p. 2186.) The finding of
implied consent, then, was erroneous. Because actual consent
had not been adjudicated, the Court remanded the consent issue
so the state court could evaluate the voluntariness of the actual
consent under the totality of the circumstances test set out in
Schneckloth v. Bustamonte (1973) 412 U.S. 218, 227, 249–250.
(Birchfield, at p. 2186.)
      Birchfield therefore prohibits a court from finding implied
consent where an arrestee’s only choice is to consent to a
warrantless blood test or be prosecuted for refusing to do so. Any
consent obtained by law enforcement cannot be deemed valid
where the only choice is consent to the blood test or be punished
criminally. Here, however, that was not Nzolameso’s only choice.




                                7
Under California’s former implied consent law, Nzolameso was
given a choice of tests to choose from. He was subject to criminal
penalties only if he refused all options (breath, blood, urine).
Under Birchfield, the state of California was not insisting on only
the more intrusive alternative of a blood test. Instead, it offered
Nzolameso an array of less intrusive alternatives. He was not
required to take the blood test or face criminal prosecution; he
was required only to choose between alternative tests. Only
refusing all tests would have exposed him to criminal penalties
under the law. As the First District stated in People v. Gutierrez
(2018) 27 Cal.App.5th 1155, review granted January 2, 2019,
S252532 (Gutierrez), just because “the state cannot compel a
warrantless blood test does not mean that it cannot offer one as
an alternative to the breath test that it clearly can compel.”
(Id. at p. 1161.)3 Hence, Birchfield does not prohibit a finding of
implied consent under California’s former law under these
circumstances.
       Here, however, we need not rest our affirmance only on the
former implied consent law. The trial court held a hearing on the
issue of actual consent and found consent to be voluntary. The
voluntariness of a consent is to be determined in the first
instance by the trier of fact. On appeal all presumptions favor
the proper exercise of that power and the trial court’s findings—
whether express or implied—must be upheld if supported by
substantial evidence. (People v. James (1977) 19 Cal.3d 99, 107.)

3     Review was granted in Gutierrez on whether law
enforcement violates the Fourth Amendment by taking a
warrantless blood sample from an unconscious defendant, or can
the defendant be deemed to have given implied consent under
California’s implied consent law?




                                 8
       As set out above, both arresting officers testified to the
circumstances under which Nzolameso gave his consent to the
blood test. There was no testimony at all from Nzolameso,
including no testimony that he only gave actual consent because
of the threat of criminal prosecution. The court used the totality
of the circumstances test and found, after looking at all factors,
that Nzolameso freely and voluntarily consented to the blood test,
despite the admonition he was given. Substantial evidence
supports the trial court’s findings.
       Nzolameso does not challenge the factual bases of the trial
court’s findings except to insist that actual consent can never be
found where the defendant faces the threat of criminal
prosecution if he refuses. There is simply no language in
Birchfield suggesting that an implied consent law with criminal
penalties attached eviscerates the possibility of finding actual
consent. If that were the case, the third arrestee in Birchfield
would not have been accorded a remand on the issue of actual
consent.
       C. The Recent Amendment of The Implied Consent Law
       Nzolameso also argues that the Legislature’s decision to
amend California’s implied consent law in response to the
Birchfield decision “strongly indicates” that Nzolameso could not
have freely and voluntary consented to the warrantless blood
draw based on the former law, which was in effect at the time of
his arrest. We are not convinced.
       Assembly Bill No. 2717 (Assem. Bill 2717) amended
California’s implied consent laws by clarifying that criminal
penalties do not attach to a suspected drunk driver’s refusal to
submit to a blood test. In pertinent part, Vehicle Code
section 23612 stated that drivers were deemed to have given




                                9
consent to chemical testing of their blood or breath; and that
failure to submit to such chemical testing would result in both
civil and criminal penalties upon conviction of drunk driving.
(Veh. Code, § 23612, subd. (a)(1)(A) & former subd. (a)(1)(D).)
Former law also stated that the person lawfully arrested for
drunk driving shall be advised that he or she has the choice of
submitting to blood or breath testing. (Veh. Code, § 23612,
subd. (a)(2)(A).)
       Current law states that drivers are deemed to have given
consent to chemical testing of their blood or breath; that failure
to submit to the required breath testing will result in civil and
criminal penalties; and that failure to submit to both breath or
blood testing will result in civil penalties only. (Veh. Code,
§ 23612, subds. (a)(1)(A) & (D).) The provision stating a person
lawfully arrested for drunk driving shall be advised that he or
she has the choice of submitting to blood or breath testing
remains the same. (Veh. Code, § 23612, subd. (a)(2)(A).)
       Nowhere in the summaries of analysis of Assem. Bill 2717
does the Legislature express concern that the former implied
consent laws were unconstitutional. Rather, the legislative
history reveals that Assem. Bill 2717 was intended to comply,
comport, or be in conformity with Birchfield by clarifying that no
criminal penalty will attach to a driver’s refusal to submit to a
blood test only. (Legis. Counsel’s Dig., Assem. Bill No. 2717
(2018 Reg. Sess.); Sen. Rules Com., Off. of Sen. Floor Analyses,
3d reading analysis of Assem. Bill No. 2717 (2017–2018 Reg.
Sess.).)
       Nevertheless, even if the Legislature were concerned that
the former implied consent laws ran afoul of the Fourth
Amendment, our analysis would not change because, as discussed




                               10
above, Nzolameso gave actual consent to the blood draw. Again,
Birchfield does not render invalid a suspect’s actual consent to a
warrantless blood draw.4
      Here Officer Fields informed Nzolameso that he could
choose a breath or blood test. He was told that no sample would
be retained from a breath test; accordingly, he could provide a
blood test in order to retain a sample for testing should he be
criminally prosecuted. The only consequence Nzolameso would
have faced had he chosen a breath test instead of a blood test was
the loss of evidence that may or may not have benefitted him in a
prosecution. Birchfield made clear that its holding barring
warrantless blood tests on pain of criminal penalty should not be
read to “cast doubt” on the constitutionality of “implied-consent
laws that impose civil penalties and evidentiary consequences on
motorists who refuse to comply” with blood tests. (Birchfield,
supra, 136 S.Ct. at p. 2187.)
      At the time of his arrest, Nzolameso faced no threat of
criminal penalties for refusing a blood test only. That he chose a
blood instead of a breath test does not render the warrantless
blood draw in his case unconstitutional.




4      Not only does Nzolameso ask us to construe Birchfield as
eviscerating the possibility of actual consent, he is essentially
asking us to analyze his case as if the implied consent law as
applied to him involved only a blood test. Not only would this be
error, it would lead to an absurd result. Under Nzolameso’s
reasoning, a driver could actually consent to the blood test
instead of the breath test and then successfully move to suppress
the results to avoid criminal prosecution entirely.




                               11
                       DISPOSITION
     The judgment is affirmed.

     CERTIFIED FOR PUBLICATION




                                   STRATTON, J.

We concur:




             BIGELOW, P. J.




             GRIMES, J.




                              12
