Filed 9/30/15 P. v. Martinez CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G050494

         v.                                                            (Super. Ct. No. 12CF3099)

ANTHONY LEE MARTINEZ,                                                  OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Kimberly
Menniger and W. Michael Hayes, Judges. Affirmed.
                   James R. Bostwick, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Lise
S. Jacobson, Stacy Tyler and Kimberley Donohue, Deputy Attorneys General, for
Plaintiff and Respondent.
              A jury convicted defendant Anthony Lee Martinez of a variety of crimes,
including driving under the influence and assaulting a police officer with a deadly
weapon, i.e., his car. On appeal, he contends the trial court erred in denying his motion
to suppress the results of his blood test, and there is insufficient evidence to support his
assault conviction. We disagree and affirm the judgment.
                                  The Suppression Motion
              Before trial, defendant moved to suppress the results of his blood test on the
basis the test was conducted without a judicially authorized warrant. The motion was
based on stipulated facts:
              “On October 19, 2012, at approximately 6:00 p.m., Placentia Police Officer
Alcala was on duty, wearing a uniform, and driving a marked police vehicle. . . . Officer
Alcala was flagged down by a passing motorist, who told him that the vehicle directly in
front of him (defendant’s vehicle) had collided with his vehicle and refused to stop to
exchange information. Officer Alcala pulled behind [defendant’s] vehicle to attempt a
car stop in the area of Bristol and Civic Center. . . . Officer Alcala activated his
emergency lights. Defendant made eye contact with Officer Alcala in his driver’s side
mirror and continued traveling southbound on Bristol for about two blocks . . . . When
defendant reached Santa Ana Boulevard, he turned eastbound and fled at a high rate of
speed. Officer Alcala activated his siren along with his overhead rotating lights and
advised [dispatch] that he was now in pursuit of the vehicle.
              “Defendant sped down Santa Ana Boulevard, weaving in and out of the
eastbound lanes, and collided with a stop sign and a tree at the southwest corner of Santa
Ana and Baker. Defendant’s vehicle then came to a rest. Officer Alcala pulled in behind
defendant’s vehicle, leaving approximately ten to twelve feet between the two vehicles.
. . . As [he] stepped out of his unit, with his service weapon drawn, he made eye contact



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with defendant as defendant turned to look at him. Defendant then put his transmission
into reverse and stepped on the accelerator, smoking the tires. Defendant then rammed
his vehicle into Officer Alcala’s patrol unit, causing him to jump out of the way.”
              After that, the chased resumed. With Officer Alcala in hot pursuit,
defendant “fled eastbound on Santa Ana at a high rate of speed [until he eventually]
crashed into a parked car on the southwest corner of Flower and Pine while attempting to
complete a right turn. To prevent defendant from fleeing another time . . ., Officer Alcala
positioned his unit’s push bumper directly against defendant’s rear bumper and put the
transmission into ‘park.’ Defendant again put his transmission into reverse and stepped
on the accelerator, smoking the tires. Santa Ana Police officers arrived seconds after the
final collision and assisted Officer Alcala in taking defendant into custody.
              “Santa Ana Police Officer Valenzuela responded to the area of Pine and
Flower. He contacted defendant at the scene and noticed [his] eyes were red, watery, and
bloodshot. Defendant’s speech was slurred, and he had a strong odor of an alcoholic
beverage on his breath. Due to defendant’s injury, he was transported to Western
Medical Center by ambulance. . . .
              “Corporal Bell responded to the hospital and conducted a DUI
investigation. When [he] arrived at the hospital, defendant was in the room where the
CAT scans are performed, yelling at the hospital staff that he would not let them do the
[procedure] unless his mother was with him. Corporal Bell noticed that defendant’s
speech was slurred as he was yelling. After [he] explained to defendant how the [CAT
scan] was for his benefit . . ., defendant still refused to cooperate. He was transported to
a regular room in the hospital. Corporal Bell was able to get close enough to defendant to
smell a very strong odor of an alcoholic beverage on [his] breath, and could see that
defendant’s eyes were watery and droopy. Corporal Bell attempted to ask defendant the
DUI interview questions from the arrest report form, but defendant refused to answer any
of them.

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              “Corporal Bell told defendant that he believed [he] was under the influence
of an alcoholic beverage and/or drugs. He told defendant that a blood sample would be
taken from him. Defendant first refused to consent to give a sample of his blood. . . .
Corporal Bell told defendant that he was going to have a blood technician take a sample
of his blood anyway. Defendant then stated that he would only give his blood if the
officers tested it for heroin. At 7:35 p.m. Corporal Bell had [a technician] take a sample
of blood from defendant, which was retained and book[ed] at the Orange County
Sheriff’s Crime Lab.”
              The parties further stipulated defendant’s blood was drawn in a medically
approved manner, although the police did not try to get a search warrant before the draw.
Testing revealed defendant’s blood alcohol level was .18 percent, over twice the legal
limit.
              Defendant moved to suppress the results of his blood draw on Fourth
Amendment grounds. He argued the draw was illegal because it was conducted without a
warrant and in the absence of exigent circumstances. The trial court did not render an
opinion as to whether defendant’s blood draw was lawful. Instead, it denied defendant’s
motion based on the good faith exception to the warrant requirement. As we now
explain, that ruling is unassailable.
              At the time this case arose in 2012, the law respecting warrantless blood
draws was based on the United States Supreme Court’s decision in Schmerber v.
California (1966) 384 U.S. 757 (Schmerber). Schmerber held probable cause alone
could justify such a draw if the officer ordering it reasonably believed he “was confronted
with an emergency, in which the delay necessary to obtain a warrant, under the
circumstances, threatened the destruction of evidence[.]” (Id. at p. 770.) Given the
natural dissipation of alcohol over time and the delays inherent in obtaining a warrant,
Schmerber determined the need to ascertain a person’s blood-alcohol level may present
an exigency that justifies a warrantless blood draw. (Id. at pp. 770-771.)

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              Although Schmerber did not expressly so hold, many courts interpreted it
as establishing a per se exigency rule in drunk driving cases. In fact, in People v.
Superior Court (Hawkins) (1972) 6 Cal.3d 757, the California Supreme Court construed
Schmerber as authorizing the warrantless blood draw of a suspected drunk driver, so long
as the draw is conducted “in a medically approved manner, is incident to lawful arrest,
and is based upon the reasonable belief that the person is intoxicated.” (Id. at p. 761.)
Following Hawkins, “our Supreme Court and this state’s intermediate appellate courts
uniformly reiterated that a warrantless blood draw was justified under the Fourth
Amendment if ‘the arresting officer has reasonable cause to believe the arrestee is
intoxicated’ with alcohol [citation], and those courts did not require any additional
showing of exigency to excuse the lack of a warrant. [Citations.]” (People v. Harris
(2015) 234 Cal.App.4th 671, 702.)
              However, in 2013, six months after defendant’s blood was drawn in this
case, the United States Supreme Court decided Missouri v. McNeely (2013) 569 U.S. __
[133 S.Ct. 1552] (McNeely). McNeely held the natural dissipation of alcohol from the
body does not, by itself, constitute exigent circumstances justifying a warrantless search
in the form of a blood draw from a person who is suspected of drunk driving. (Id. at p.
1568.) Although natural dissipation is an important factor in determining the
reasonableness of a warrantless blood draw, McNeely ruled exigency “must be
determined case by case based on the totality of the circumstances.” (Id. at p. 1556.)
              While Supreme Court opinions are generally given retroactive effect to
cases pending on appeal (Griffith v. Kentucky (1987) 479 U.S. 314), that does not mean
defendant is entitled to relief based on the McNeely decision. Even if the totality of the
circumstances presented in this case did not justify a warrantless blood draw, we would
still have to decide whether the remedy of suppression would be appropriate. (Davis v.




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United States (2011) 564 U.S. __, __ [131 S.Ct. 2419, 2430-2431] (Davis) [retroactive
application of a judicial opinion does not dictate what remedy, if any, the defendant
should obtain].)
              In Davis, the court considered whether the exclusionary rule should be
applied when the police conduct a search in compliance with binding precedent that is
later overruled. (Davis, supra, 131 S.Ct. at p. 2423.) In particular, the court had to
decide whether the good faith exception to the exclusionary rule applied to a search
conducted before it narrowed the permissible scope of warrantless automobile searches in
Arizona v. Gant (2009) 556 U.S. 332. Davis held, “[b]ecause suppression would do
nothing to deter police misconduct in these circumstances, and because it would come at
a high cost to both the truth and the public safety, . . . searches conducted in objectively
reasonable reliance on binding appellate precedent are not subject to the exclusionary
rule.” (Davis, supra, 131 S.Ct. at pp. 2423-2424.)
              The same rationale applies in this case. Because the California Supreme
court and the intermediate appellate courts of this state had consistently interpreted
Schmerber as permitting a warrantless blood draw under the circumstances presented in
this case, there is no reason to apply the exclusionary rule to bar the results of that
procedure. Although defendant argues the police should have known California’s
exigency per se rule was out of line with the United States Supreme Court’s totality-of-
the-circumstances approach, he forgets the job of the police is to follow the law, not
interpret it. The officers in this case “were in no way culpable for following the law of
this state that had been settled for just over 40 years. To penalize [them] for the courts’
error, which was only brought to light after defendant’s blood draw, would not logically
serve to deter future Fourth Amendment violations. [Citation.] Therefore, because [they]
acted ‘in objectively reasonable reliance on binding appellate precedent’ interpreting
Schmerber, [the results of defendant’s blood test are] not subject to the exclusionary rule.
[Citation.]” (People v. Harris, supra, 234 Cal.App.4th at p. 703.)

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               Accordingly, the trial court did not error in denying defendant’s
suppression motion. Regardless of whether the police violated defendant’s Fourth
Amendment rights by drawing his blood without a warrant, the exclusionary rule is inapt
in light of the good faith rule.
                                   Sufficiency of the Evidence
               Defendant also contends there is insufficient evidence to support the jury’s
finding he assaulted Officer Alcala with a deadly weapon when he backed his car into the
officer’s vehicle. This claim also fails.
               “When considering a challenge to the sufficiency of the evidence to support
a criminal conviction, we review the whole record in the light most favorable to the
verdict, drawing all inferences that reasonably support it, and determine whether it
contains substantial evidence – that is, evidence which is reasonable, credible, and of
solid value – from which a trier of fact could rationally find the defendant guilty beyond a
reasonable doubt. [Citations.] In making this determination, we do not reweigh the
evidence, resolve conflicts in the evidence, draw inferences contrary to the verdict, or
reevaluate the credibility of witnesses. [Citation.] Moreover, because it is the jury, not
the reviewing court, that must be convinced of the defendant’s guilt beyond a reasonable
doubt, we are bound to sustain a conviction that is supported by only circumstantial
evidence, even if that evidence is also reasonably susceptible of an interpretation that
suggests innocence. [Citation.]” (People v. Little (2004) 115 Cal.App.4th 766, 771; see
also People v. Kraft (2000) 23 Cal.4th 978, 1053.)
               Assault is defined as “an unlawful attempt, coupled with a present ability,
to commit a violent injury on the person of another.” (Pen. Code, § 240.) The gravamen
of the offense “‘is the likelihood that the force applied or attempted to be applied will
result in great bodily injury.’ [Citation.]” (People v. Williams (2001) 26 Cal.4th 779,
787.) In other words, the crime focuses on what might happen, not what did happen or



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what the victim intended. (Id. at pp. 787-788.) Accordingly, actual injury to the victim is
not required. (People v. Valdez (1985) 175 Cal.App.3d 103, 113.) “[A]ssault only
requires an intentional act and actual knowledge of those facts sufficient to establish that
the act by its nature will probably and directly result in the application of physical force
against another.” (People v. Williams, supra, 26 Cal.4th at p. 790.)
              Here, the record shows that after defendant hit a tree at the intersection of
Santa Ana and Baker, Alcala pulled up about 10-12 feet behind his car. Alcala parked his
squad car in the “offset position,” meaning he positioned the center of his vehicle in line
with the left rear corner of defendant’s car. With his gun drawn, Alcala exited his car and
started walking toward defendant’s car, but he only got a couple of feet before defendant
put his car in reverse and rammed into Alcala’s squad car. Even though the two cars
were only 10-12 feet apart, defendant accelerated so rapidly there was smoke coming
from his tires.
              Describing his position at the time of the collision, Alcala testified he was
“kind of in no man’s land.” He had just cleared his door, which was still open, and was
walking toward defendant’s car when defendant made eye contact with him and threw his
car into reverse. Although he was not directly behind defendant’s car, i.e., in the direct
path of the car, Alcala “had to jump out of the way.” “At most,” he was “just a couple
feet” away from the door of his squad car when the collision occurred. The force of the
impact “jolted [Alcala’s] entire [squad car] causing the whole car” to move. Asked if he
felt he was in danger of being struck, Alcala answered in the affirmative, saying either his
car or defendant’s car could have hit him. As it turned out, the collision only resulted in a
few dents and scratches to the right side of Alcala’s front push bumper.
              Relying on the fact Alcala was not inside his squad car or in the direct path
of harm when he was backing up his car, defendant contends no reasonable person could
conclude his actions were likely to result in the application of physical force to the



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officer. However, despite the fact Alcala was off to the side of the cars when the
collision occurred, he was standing only a few feet away from his open car door. Not
knowing how the incident was going to play out, he felt he had to jump out of the way to
avoid being hit by either his or defendant’s car. Given the inherent unpredictability of
automobile crashes, this belief was not unreasonable; the circumstances clearly suggest
Alcala was in the zone of danger when the collision occurred. In fact, while defendant
claims he wasn’t going very fast when he backed into Alcala’s squad car, his tires were
smoking, and the force of the impact caused Alcala’s entire car to move. Granted,
Alcala’s push bumper only sustained minor damage, but that is easily explainable by the
fact it is comprised of solid, heavy-duty metal, as opposed to the standard chrome or
plastic – or human being. All things considered, a jury could reasonably find defendant’s
actions would directly and probably cause harm to Alcala.
              Defendant also makes the closely related but differently phrased argument
he did not use his car as a deadly weapon since he did not drive directly toward Alcala.
But as explained, defendant did smash his car directly into Alcala’s vehicle while the
officer was standing in close proximity to his open car door. For the reasons explained
above, it was reasonable for the jury to conclude defendant used his car in a manner that
was capable of producing and likely to produce great bodily injury. (People v. Aguilar
(1997) 16 Cal.4th 1023, 1028-1029.) We see nothing to justify disturbing the jury’s
verdict.




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                                  DISPOSTION
            The judgment is affirmed.




                                             BEDSWORTH, ACTING P. J.

WE CONCUR:



ARONSON, J.



FYBEL, J.




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