Filed 3/19/15 P. v. Zepeda CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H040604
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1243253)

         v.

ALFREDO MENDOZA ZEPEDA,

         Defendant and Appellant.


                                           I.        INTRODUCTION
         After his motion to suppress evidence was denied, defendant Alfredo Mendoza
Zepeda pleaded no contest to driving under the influence (DUI) with a blood alcohol
level of 0.08 percent or higher within 10 years of a prior felony DUI conviction (Veh.
Code, §§ 23152, subd. (b), 23550.5, subd. (a))1 and driving with a license that was
suspended or revoked for a prior DUI conviction within five years of a prior conviction
of section 14601.5 (§ 14601.2, subd. (a)). Defendant also admitted he had served a prior
prison term (Pen. Code, § 667.5, subd. (b)). At the sentencing hearing, the trial court
struck the prior prison term allegation and placed defendant on probation for three years.
         On appeal, defendant contends the trial court erred by failing to suppress the
results of a warrantless, nonconsensual blood draw, which was conducted prior to the

         1
        All further statutory references are to the Vehicle Code unless otherwise
indicated.
United States Supreme Court decision in Missouri v. McNeely (2013) 569 U.S. __ [133
S.Ct. 1552] (McNeely). Defendant also contends that we should modify a probation
condition that provides, “You shall not possess or consume alcohol or illegal controlled
substances” by including an express knowledge requirement.
       We will modify the challenged probation and affirm the judgment as modified.

                                 II.    BACKGROUND
       A.     Defendant’s Arrest and Blood Draw
       At 12:40 a.m. on September 29, 2012, California Highway Patrol Officer Gustavo
Ruvalcaba and his partner were on patrol in San Jose. They noticed a dark gray Ford
pickup truck with a camper shell. The driver appeared to be having a difficult time
parallel parking. After a few attempts, the truck drove down the street and went through
a stop sign without making a complete stop.
       The officers initiated a vehicle stop and found defendant was the driver. Officer
Ruvalcaba noticed the smell of alcohol coming from defendant’s truck. He also smelled
alcohol on defendant’s breath and person. Defendant had slow, slurred speech and very
red, watery eyes. Defendant was asked for but did not provide a driver’s license.
       Defendant admitted he had consumed eight beers. He was unable to perform field
sobriety tests. Officer Ruvalcaba arrested defendant and informed defendant that he was
required to take a chemical test. Defendant initially agreed to take a chemical test,
choosing a blood draw rather than a breath test, but when he arrived at the chemical
testing area, he “changed his mind and refused.”
       Officer Ruvalcaba obtained his supervisor’s approval for a forced blood draw.
Defendant was placed on his knees and handcuffed with his arms apart. Three officers
held him down while a technician drew his blood.2


       2
        Evidence at the preliminary hearing showed that defendant’s blood alcohol level
was 0.23 percent.

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       B.     Charges
       Defendant was charged with driving under the influence of alcohol within 10 years
of a prior felony DUI conviction (count 1; §§ 23152, subd. (a), 23550.5, subd. (a)),
driving under the influence with a blood alcohol level of 0.08 percent or higher within
10 years of a prior felony DUI conviction (count 2; §§ 23152, subd. (b), 23550.5,
subd. (a)), driving with a license that was suspended or revoked for a prior DUI
conviction within five years of a prior conviction of section 14601.5 (count 3; § 14601.2,
subd. (a)), and driving with a license that was suspended or revoked pursuant to
section 13353.2 within five years of a prior conviction of section 14601.5 (count 4;
§ 14601.5, subd. (a)). As to counts 1 and 2, the information alleged that defendant had
willfully refused to submit to a chemical test (§ 23577, subd. (a)) and that his blood
alcohol level had been 0.15 percent or higher (§ 23578). The information further alleged
that defendant had served a prior prison term. (Pen. Code, § 667.5, subd. (b).)
       C.     Motion to Suppress
       On September 11, 2013, defendant filed a motion to suppress evidence. (See Pen.
Code, § 1538.5.) He alleged that he was detained and searched without a warrant, and
that the prosecution was obligated to justify the warrantless detention and search. (See
People v. Williams (1999) 20 Cal.4th 119, 130.)
       The prosecution filed opposition to defendant’s motion, arguing that the detention
was justified by reasonable suspicion, that the detention was no longer than necessary,
and that defendant’s arrest was justified by probable cause.
       In supplemental briefing, the prosecution argued that the exclusionary rule did not
apply to defendant’s blood draw. The prosecution noted that under the recent United
States Supreme Court decision in McNeely, supra, 133 S.Ct. 1552, a warrantless blood
draw has to be supported by exigent circumstances besides the evanescent nature of
blood alcohol, but that prior to McNeely, California cases had held, based on Schmerber
v. California (1966) 384 U.S. 757 (Schmerber), that the evanescent nature of blood

                                             3
alcohol, alone, created an exigency. The prosecution further argued that under Davis v.
U.S. (2011) 564 U.S. __ [131 S.Ct. 2419, 2423-2424] (Davis), the warrantless blood draw
in this case had been performed “in objectively reasonable reliance on binding appellate
precedent” and was therefore not subject to the exclusionary rule.
       Defendant then filed a supplemental motion to suppress evidence. He argued
there was no reasonable suspicion justifying the vehicle stop and that the forced blood
draw violated the Fourth Amendment. He contended that the McNeely rule should be
applied, because “Schmerber did not create a rule that blood could always be withdrawn
without a warrant when an arrestee refuses.” Defendant argued that California courts had
previously misinterpreted Schmerber.
       The trial court denied defendant’s motion to suppress in a written order filed on
October 22, 2013. The trial court found that defendant’s initial detention was justified,
that the officer was justified in prolonging the detention for a DUI investigation, and that
defendant’s arrest was supported by probable cause. The trial court further found that the
warrantless blood draw was conducted in reasonable reliance on binding appellate
precedent and that it was conducted in a reasonable manner.
       D.     Pleas and Sentencing
       On October 29, 2013, defendant pleaded no contest to count 2 (driving under the
influence with a blood alcohol level of 0.08 percent or higher within 10 years of a prior
felony DUI conviction in violation of § 23152, subd. (b) and § 23550.5, subd. (a)) and
count 3 (driving with a license that was suspended or revoked for a prior DUI conviction
within five years of a prior conviction of § 14601.5 in violation of § 14601.2, subd. (a)).
       At the sentencing hearing held on January 24, 2014, the trial court struck the prior
prison term allegation and placed defendant on probation for three years, with 365-day
county jail sentences for each of the two counts. One of defendant’s probation conditions
provided: “You shall not possess or consume alcohol or illegal controlled substances or
knowingly go to places where alcohol is the primary item of sale.”

                                             4
                                   III.    DISCUSSION
       A.     Blood Draw
       Defendant contends the trial court erred by failing to suppress the results of the
warrantless, nonconsensual blood draw.
       In Schmerber, supra, 384 U.S. 757, the United States Supreme Court upheld a
warrantless, nonconsensual blood draw following a DUI arrest. The court held that the
Fourth Amendment’s warrant requirement was excused because the arresting 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,’ ” since “the percentage of alcohol in the blood begins to diminish shortly
after drinking stops, as the body functions to eliminate it from the system.” (Id. at
p. 770.)
       In McNeely, supra, 133 S.Ct. 1552, the United States Supreme Court revisited
Schmerber and held that “the natural metabolization of alcohol in the bloodstream” does
not present “a per se exigency that justifies an exception to the Fourth Amendment’s
warrant requirement for nonconsensual blood testing in all drunk-driving cases.” (Id. at
p. 1556.) The McNeely court clarified that “consistent with general Fourth Amendment
principles, . . . exigency in this context must be determined case by case based on the
totality of the circumstances.” (Ibid.)
       In Davis, supra, 131 S.Ct. 2419, the United States Supreme Court held that
“searches conducted in objectively reasonable reliance on binding appellate precedent are
not subject to the exclusionary rule,” even if that precedent is later overruled. (Id. at
pp. 2423-2424.)
       Several recent published California appellate decisions have upheld warrantless
blood draws conducted prior to McNeely, despite the lack of exigent circumstances, based
on the Davis rule. (People v. Harris (2015) 234 Cal.App.4th 671 (Harris); People v.
Jones (2014) 231 Cal.App.4th 1257, 1265 (Jones); People v. Rossetti (2014) 230

                                              5
Cal.App.4th 1070, 1076-1077 (Rossetti); People v. Youn (2014) 229 Cal.App.4th 571,
577 (Youn).) These cases explain that before McNeely, California cases had “ ‘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.]’ [Citation.]” (Harris, supra, at p. 702;
see also Jones, supra, at p. 1265; Rossetti, supra, at pp. 1074-1075; Youn, supra, at
p. 577.) Thus, the pre-McNeely warrantless, nonconsensual blood draws were conducted
in objectively reasonable reliance on California courts’ interpretation of Schmerber.
(Harris, supra, at p. 702; Jones, supra, at p. 1265; Rossetti, supra, at pp. 1076-1077;
Youn, supra, at p. 577.)
       Defendant contends that there was no California Supreme Court precedent
specifically authorizing warrantless, nonconsensual blood draws. (See Davis, supra, 131
S.Ct. at p. 2429.) Defendant points out that during the Davis court’s discussion of
whether application of a good faith rule would “prevent judicial reconsideration of prior
Fourth Amendment precedents,” the court commented, “In most instances, as in this case,
the precedent sought to be challenged will be a decision of a Federal Court of Appeals or
State Supreme Court.” (Id. at p. 2433.)
       Contrary to defendant’s claim, pre-McNeely decisions of both the California
Supreme Court and California appellate courts had held that under Schmerber, the quick
dissipation of alcohol provided a sufficient rationale for permitting a warrantless
chemical test following a DUI arrest. For instance, in People v. Superior Court
(Hawkins) (1972) 6 Cal.3d 757, the California Supreme Court stated: “It is clear that the
Fourth Amendment does not bar a compulsory seizure, without a warrant, of a person’s
blood for the purposes of a blood alcohol test to determine intoxication, provided that the
taking of the sample is done in a medically approved manner, is incident to a lawful
arrest, and is based upon the reasonable belief that the person is intoxicated. [Citations.]”
(Id. at p. 761.) The Hawkins court further stated, “Schmerber recognizes that once the

                                              6
suspect is arrested, a seizure incident thereto may be properly conducted without a
warrant, since the rapid dissipation of the alcohol would make the delay involved in
obtaining a search warrant unnecessary and unjustifiable.” (Id. at p. 765, fn. 7.) “After
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.]” (Harris, supra, 234 Cal.App.4th at p. 702; see
People v. Sugarman (2002) 96 Cal.App.4th 210, 214; People v. Ford (1992) 4
Cal.App.4th 32, 35.)
       Defendant notes that in People v. Thompson (2006) 38 Cal.4th 811, a case cited by
the trial court, the California Supreme Court did not categorically approve warrantless
entries into the homes of DUI suspects, instead holding that exigent circumstances—
including the natural dissipation of alcohol from the bloodstream—justified the
warrantless entry in that particular case. (Id. at pp. 825-827.) As the Rossetti court
pointed out, however, Thompson is “readily distinguishable,” since it involved the
question of whether the police could enter into a home without a warrant, and did not
“call into question the unbroken line of pre-McNeely authority in California” relating to
DUI arrests “taking place outside the home.” (Rossetti, supra, 230 Cal.App.4th at
p. 1077.)
       We conclude that the pre-McNeely warrantless, nonconsensual blood draw in this
case was conducted in objectively reasonable reliance on binding appellate precedent and
that therefore, the trial court did not err by denying defendant’s motion to suppress.
       B.     Probation Condition
       One of defendant’s probation conditions provided: “You shall not possess or
consume alcohol or illegal controlled substances or knowingly go to places where alcohol
is the primary item of sale.” Defendant contends that we should modify this condition by

                                               7
including an express knowledge requirement. The Attorney General concedes that the
condition should be modified. We will therefore modify the condition to read, “You shall
not knowingly possess or consume alcohol or illegal controlled substances or knowingly
go to places where alcohol is the primary item of sale.”

                                  IV.      DISPOSITION
       The probation condition providing, “You shall not possess or consume alcohol or
illegal controlled substances or knowingly go to places where alcohol is the primary item
of sale” is modified to read as follows:
       “You shall not knowingly possess or consume alcohol or illegal controlled
substances or knowingly go to places where alcohol is the primary item of sale.”
       As modified, the judgment is affirmed.




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                             ___________________________________________
                             BAMATTRE-MANOUKIAN, ACTING P.J.




WE CONCUR:




__________________________
MIHARA, J.




__________________________
MÁRQUEZ, J.
