Filed 3/25/14 Vega v. Valverde cA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE



ANTHONY AMADOR VEGA,                                                     B247484

         Plaintiff and Appellant,                                       (Los Angeles County
                                                                        Super. Ct. No. BS138101)
         v.

GEORGE VALVERDE, DIRECTOR OF
THE CALIFORNIA DEPARTMENT OF
MOTOR VEHICLES,

         Defendant and Respondent.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Luis A. Lavin, Judge. Affirmed.
         Law Offices of Chad R. Maddox and Chad R. Maddox for Plaintiff and Appellant.
         Kamala D. Harris, Attorney General, Alicia M.B. Fowler, Assistant Attorney
General, Michael E. Whitaker and Bruce Reynolds, Deputy Attorneys General, for
Defendant and Respondent.

                                        _________________________
       Plaintiff and appellant Anthony Amador Vega (Vega) appeals a judgment denying
his petition for writ of mandate. (Code Civ. Proc., § 1094.5.) Vega’s petition sought to
overturn a decision by the Department of Motor Vehicles (Department) imposing a one-
year suspension of his driving privilege for his refusal to complete a required chemical
test to determine the alcohol content of his blood.
       Vega does not dispute that he refused to undergo testing after being requested to
do so by a peace officer, and that he was advised of the consequences of a refusal to
submit to testing. Vega’s essential contention is that the record is insufficient to establish
the sobriety checkpoint was conducted in accordance with constitutional guarantees.
       We conclude Vega’s arguments are without merit and affirm the judgment.
                  FACTUAL AND PROCEDURAL BACKGROUND
       1. Facts relating to Vega’s refusal to undergo chemical testing.
       On April 30, 2011 at 12:40 a.m., Officer Rodney Castillo (Castillo) observed
Vega driving into a DUI checkpoint that was being conducted by the Alhambra Police
Department Traffic Division on Atlantic Boulevard and Beacon Street. Castillo was
assigned to work the line detail to check for valid drivers’ licenses and verify that drivers
were not driving under the influence of alcohol or drugs. After Castillo contacted Vega
at the checkpoint and requested his driver’s license, Castillo observed Vega’s eyes were
bloodshot and watery and he smelled a strong odor of alcohol emanating from the interior
of the vehicle. Based on these indicia, Castillo asked Vega to step out of the vehicle so
that Castillo could conduct a DUI investigation.
       When Vega got out of the vehicle, he did not use the vehicle for balance or need
any assistance or walk with an unsteady gait. However, when Castillo conducted a
horizontal gaze nystagmus test on Vega, he showed a lack of smooth pursuit and tested
positive for nystagmus. Castillo also conducted a Rhomberg test and observed Vega
sway one to two inches in a circular motion. Vega estimated 16 seconds to be 30
seconds. Vega performed the finger-to-nose test by touching his finger to his nose six
times. Vega performed the one-leg extended test and did not hop, sway, use his arms for
balance, or put his foot down on that test. Finally, Castillo conducted a walk-and-turn

                                              2
test. Vega did not walk heel to-toe in both directions as required by the test. Vega
admitted to having two beers that night; his last drink was at 10:00 p.m. Castillo noted
that Vega’s breath had a strong odor of alcohol.
       Vega refused to take a Preliminary Alcohol Screening Test. After Vega refused to
take said test, Castillo arrested him for violation of Vehicle Code section 23152(a)
(driving under the influence of alcohol). Castillo asked Vega to submit to a chemical
test, which he also refused.
       2. Administrative proceedings.
       On April 30, 2011, the date of the arrest, the Department issued an administrative
per se suspension of Vega’s driving privilege.
       Vega challenged his suspension. The Department conducted hearings on
January 30, 2012 and May 8, 2012.
       Officer Castillo was a witness at the first session. He testified, inter alia, he was
not involved in the background preparation or the criteria that went into setting up the
sobriety checkpoint. His role was merely to serve as a line officer at the checkpoint.
In conducting the checkpoint, “[w]e went every five cars, let five go, stop five cars, let
five go.” That’s “what we usually do at the DUI checkpoints.”
       There were no other witnesses. Vega did not attend the proceedings but was
represented by counsel. There was no testimony at the brief second session, which
consisted of closing arguments.
       On June 8, 2012, the hearing officer issued a decision upholding the suspension
of Vega’s driving privilege.
       3. Superior court proceedings.
              a. Vega’s petition for writ of mandate.
       On June 22, 2012, Vega filed a petition for writ of mandate, seeking to overturn
the Department’s decision. Vega contended he rebutted the constitutionality of the DUI
checkpoint because Castillo did not have a neutral formula with which to conduct the
checkpoint. Further, even if the DUI checkpoint were constitutional, Castillo lacked
probable cause to arrest him for driving under the influence. Vega also argued the

                                              3
administrative record was incomplete because portions of the record were transcribed
as “inaudible.”
              b. Department’s opposition.
       With respect to Vega’s challenge to the sobriety checkpoint, which is the focus of
this appeal, the Department contended field officers are not involved in setting up the
sobriety checkpoint. Case law recognizes the decision to establish a sobriety checkpoint
is made by supervisory law enforcement personnel, not by field officers. (Ingersoll v.
Palmer (1987) 43 Cal.3d 1321, 1341-1342 (Ingersoll).) Thus, Castillo could not be
expected to “know the decisions regarding the checkpoint location, duration, etc., and
therefore would not be qualified to testify to them. [Vega] failed to present any evidence
from senior officers who established the checkpoint. It was his burden to do so. As a
result, the Department’s hearing officer was entirely appropriate in deciding that the
sobriety checkpoint was not at issue.”
              c. Trial court’s ruling.
       The matter was argued and submitted on February 19, 2013. Thereafter, the trial
court ruled as follows:
       The trial court found, inter alia, the weight of the evidence supported the
conclusions that Vega was lawfully arrested, and that Castillo had reasonable cause to
believe Vega was driving while under the influence of alcohol.
       With respect to the pivotal issue on appeal concerning the propriety of the sobriety
checkpoint, the trial court determined: “The weight of the evidence demonstrates that
[Vega] did not rebut the presumption of the checkpoint’s legality by affirmative
evidence. Contrary to [Vega’s] argument, the evidence in the administrative record
demonstrates that Officer Castillo testified that the discretion of field officers was limited
regarding who is to be stopped because of the application of a neutral formula. (AR 35)
Indeed, Officer Castillo stated that the checkpoint stopped every five cars such that five
cars would go through and the next five cars would be stopped. (Id.) Although Officer
Castillo was not involved in the marketing, publication, or preparation of the checkpoint
and other details surrounding the checkpoint, Officer Castillo’s lack of knowledge is not

                                              4
affirmative evidence that the checkpoint was unlawful pursuant to the holding in
Arthur v. Department of Motor Vehicles [(2010) 184 Cal.App.4th 1199, 1206-1208
(Arthur) (affirmative evidence overcoming the presumption must be presented; that an
officer was unaware of the formula applied at the checkpoint is not affirmative evidence
sufficient to overcome the presumption).]
       “[Vega’s] attempts to distinguish Arthur from the instant case are unavailing.
While Officer Castillo testified to a neutral formula that was applied to the checkpoint,
his lack of knowledge regarding other details such as the checkpoint’s publication and
decision making at the supervisory level does not constitute affirmative evidence
overcoming the presumption of the checkpoint’s legality. Moreover, unlike in Arthur,
there is no evidence in the record that [Vega] attempted to obtain documents from the
Alhambra Police Department or the DMV pertaining to the sobriety checkpoint. Indeed,
although Petitioner requested, and received, a continuance to allow him to call other
witnesses regarding ‘the Ingersoll criteria,’ he never called any witness at the subsequent
hearing date on May 8, 2012. . . . [¶] In sum, the Court finds that [Vega] has not
presented any affirmative evidence rebutting the presumptive legality of the checkpoint.”
       As for Vega’s argument with respect to the hearing officer’s denial of a
continuance, the trial court ruled that because Vega’s attorney did not have a copy of
the subpoena that was allegedly sent but “ ‘rejected,’ ” the hearing officer did not abuse
her discretion in denying Vega’s May 8, 2012 request to continue the hearing for a
second time.
       Finally, the trial court rejected Vega’s contention concerning the alleged
inadequacy of the administrative record. “The Court finds that, despite a few portions of
the transcript that were transcribed as ‘inaudible,’ the administrative record is sufficiently
adequate for judicial review. In any event, most of the inaudible sections of the transcript
were on the second day of the hearing, May 8, 2012, when no witness testified.”
       On March 11, 2013, the trial court entered judgment denying the petition for writ
of mandate. Vega filed a timely notice of appeal from the judgment.


                                              5
                                     CONTENTIONS
       Vega contends: he rebutted the presumption that the checkpoint was
constitutional; inaudible gaps in the administrative transcript requires the administrative
decision to be set aside; and the Department abused its discretion in denying a
continuance of the administrative hearing.
                                       DISCUSSION
       1. Standard of review.
       When “a person petitions for a writ of mandate following an order suspending
his or her driver’s license, the [trial] court is required to determine, based on the exercise
of its independent judgment, whether the weight of the evidence supports the
administrative decision. (Lake v. Reed (1997) 16 Cal.4th 448, 456; Code Civ. Proc.,
§ 1094.5) In making that determination, the [trial] court acts as a trier of fact; it has
the power and responsibility to weigh the evidence and make its own determination
about the credibility of witnesses. (Barber v. Long Beach Civil Service Com. (1996)
45 Cal.App.4th 652, 658.) The administrative findings, however, are entitled to ‘a strong
presumption of correctness,’ and ‘the party challenging the administrative decision bears
the burden of convincing the court that the administrative findings are contrary to the
weight of the evidence.’ (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.)”
(Arthur, supra, 184 Cal.App.4th at pp. 1204-1205, italics added.)
       On appeal, “we review the record to determine whether the court’s findings are
supported by substantial evidence. ‘ “ ‘We must resolve all evidentiary conflicts and draw
all legitimate and reasonable inferences in favor of the trial court’s decision. [Citations.]
Where the evidence supports more than one inference, we may not substitute our
deductions for the trial court’s. [Citation.] We may overturn the trial court’s factual
findings only if the evidence before the trial court is insufficient as a matter of law to
sustain those findings. [Citation.]’ ” ’ (Lake v. Reed, supra, 16 Cal.4th at p. 457.)”
(Arthur, supra, 184 Cal.App.4th at p. 1205.)




                                               6
       2. General principles.
              a. Sobriety checkpoints are a legitimate means of promoting public safety
by deterring intoxicated persons from driving.
       In Ingersoll, the Supreme Court “held that ‘within certain limitations,’
sobriety checkpoints may be operated without violating the Fourth Amendment to the
federal Constitution or the state Constitution. (Ingersoll, supra, 43 Cal.3d at p. 1325.)
In Ingersoll, the court rejected the argument that the validity of sobriety checkpoints
should be analyzed under the standard set forth in In re Tony C. (1978) 21 Cal.3d 888,
‘requiring an individualized suspicion of wrongdoing.’ (Ingersoll, supra, at p. 1327.)
The Ingersoll court explained the primary purpose of a sobriety checkpoint is not to
detect evidence of crime or arrest drunk drivers, but to ‘promote public safety by
deterring intoxicated persons from driving on the public streets and highways.’
(Id. at p. 1328.) The court concluded the validity of sobriety checkpoints ‘is to be
determined not by the standard pertinent to traditional criminal investigative stops,
but rather by the standard applicable to investigative detentions and inspections
conducted as part of a regulatory scheme in furtherance of administrative purpose.’
(Ibid.)” (Arthur, supra, 184 Cal.App.4th at p. 1205.)
       Ingersoll court held “that ‘stops and inspections for regulatory purposes may be
permitted if undertaken pursuant to predetermined specified neutral criteria.’ (Ingersoll,
supra, 43 Cal.3d at p. 1335.) The court assessed the constitutionality of a sobriety
checkpoint by ‘weighing the gravity of the governmental interest or public concern
served and the degree to which the program advances that concern against the
intrusiveness of the interference with individual liberty.’ (Id. at p. 1338.) The court
explained that ‘[d]eterring drunk driving and identifying and removing drunk drivers
from the roadways undeniably serves a highly important governmental interest’ (ibid.),
and there is evidence sobriety checkpoints ‘do advance this important public goal.’
(Id. at p. 1339.)” (Arthur, supra, 184 Cal.App.4th at pp. 1205-1206.)




                                             7
              b. Criteria for evaluating the lawfulness of a sobriety checkpoint.
       In “ ‘examining the intrusiveness of such checkpoints, the Ingersoll court
identified eight factors to “provide functional guidelines for minimizing the intrusiveness
of the sobriety checkpoint stop.” [Citation.] These factors are: (1) decisionmaking at the
supervisory level; (2) limits on discretion of field officers as to who is to be stopped;
(3) maintenance of safety conditions; (4) reasonable location of the checkpoint;
(5) a reasonable time and duration of the checkpoint; (6) indicia of the official nature
of the roadblock; (7) the length and nature of the detention; and (8) advance publicity
regarding each checkpoint. [Citation.]’ [Citation.] ‘The eight factors identified in
Ingersoll provide “functional guidelines” to assess the intrusiveness of a checkpoint.” ’
[Citation.]” (Arthur, supra, 184 Cal.App.4th at p. 1206.)
              c. Presumption of checkpoint’s validity; licensee has burden to
rebut presumption.
       Under Evidence Code section 664,1 “it is presumed the checkpoint was
operated consistent with Ingersoll. The official duty—setting up and operating the
sobriety checkpoint—is presumed to have been regularly performed. [Citation.]
Once the presumption attaches, it is then up to the licensee to attack the propriety of
the checkpoint. [The licensee] must show there was ‘some irregularity’ in the sobriety
checkpoint operation. [Citation.] Until [the licensee] does so, the constitutionality of
the checkpoint is not at issue.” (Roelfsema v. Department of Motor Vehicles (1995)




1
        Evidence Code section 664 provides in relevant part: “It is presumed that
official duty has been regularly performed.” The “rebuttable presumption under
Evidence Code section 664 ‘effectuates the policy of relieving governmental
officials from having to justify their conduct whenever it is called into question.’
(Jackson v. City of Los Angeles (1999) 69 Cal.App.4th 769, 782.)” (Arthur, supra,
184 Cal.App.4th at p. 1206, fn. 3.) We “ ‘doubt that the Legislature intended to require
the DMV to prove the constitutionality of each and every sobriety checkpoint, at every
license revocation hearing, regardless of whether the issue had been raised.’ [Citation.]”
(Id. at p. 1207, fn. 4.)
                                              8
41 Cal.App.4th 871, 880 (Roelfsema); accord, Arthur, supra, 184 Cal.App.4th at
pp. 1206-1207.)
       3. Trial court properly rejected Vega’s attack on the propriety of the checkpoint.
               a. Trial court properly found that Vega failed to meet his burden to show
some irregularity in the operation of the checkpoint.
       As set forth above, the trial court found Vega failed to present “any affirmative
evidence rebutting the presumptive legality of the checkpoint.” The record supports the
trial court’s finding.
       With respect to the propriety of the checkpoint, Vega’s argument is simply that
Castillo, the officer who stopped him, “had no idea what, if any, neutral formula was
used at the checkpoint when he stopped [Vega]. There is no documentary or testimonial
evidence to establish that a neutral formula was used; therefore, the stop of [Vega] was
unlawful.”
       Vega’s argument fails because the Department did not have the initial burden to
establish the propriety of the checkpoint. Pursuant to Evidence Code section 664, the
official duty in “setting up and operating the sobriety checkpoint – is presumed to have
been regularly performed.” (Roelfsema, supra, 41 Cal.App.4th at p. 880; accord, Arthur,
supra, 184 Cal.App.4th at p. at p. 1206.) Therefore, Vega, as the licensee, had the initial
burden to show some irregularity in the sobriety checkpoint operation. (Roelfsema,
supra, at p. 880; Arthur, supra, at p. 1206.) Vega’s argument that Castillo lacked
recollection, and thus could not establish the propriety of the checkpoint, was insufficient
to rebut the presumption that official duty was regularly performed. To reiterate the trial
court’s ruling, “Castillo’s lack of knowledge is not affirmative evidence that the
checkpoint was unlawful.”
               b. Trial court, sitting as a trier of fact, properly weighed and credited
Castillo’s testimony.
       Further, and in any event, Castillo’s testimony was sufficient to establish that
neutral criteria were employed at the checkpoint.


                                              9
       Vega’s argument that Castillo was incompetent to testify regarding the operation
of the checkpoint is based on the following colloquy at the administrative hearing:
       “MR. SPINDEL [Vega’s attorney]: And when you were in the line, so to speak,
you were – you were not every fifth car, every sixth car, you were actually stopping every
vehicle that came across you and asking for their license, correct?
       “OFFICER CASTILLO: No. We went every five cars, let five go, stop five cars,
let five go.
       “MR. SPINDEL: . . . [N]ow, it doesn’t say anything there in your report about
that, does it?
       “OFFICER CASTILLO: No.
       “MR. SPINDEL: Okay. So you have no documentation to support that as the
protocol initiated or being used that night, correct?
       “OFFICER CASTILLO: Correct.
       “MR. SPINDEL: And it’s just your – your memory, correct?
       “OFFICER CASTILLO: That’s what we usually do at the DUI checkpoints.
       “MR. SPINDEL: Okay, motion to strike as non-responsive.
       “[¶] . . . [¶]
       “HEARING OFFICER GARCIA: Okay. Granted, the response will be stricken.”
(Emphasis added.)
       As discussed, the role of the trial court herein was to exercise its independent
judgment in ascertaining whether the weight of the evidence supported the administrative
decision; in making its decision, the trial court was sitting as a trier of fact, with the
power and responsibility to weigh the evidence and make its own determination as to the
credibility of witnesses. (Arthur, supra, 184 Cal.App.4th at pp. 1204-1205.) The trial
court was not confined by the hearing officer’s ruling to strike a nonresponsive answer
because the role of the trial court is to exercise its independent judgment on the entire
record. (ReadyLink HealthCare, Inc. v. Jones (2012) 210 Cal.App.4th 1166, 1172
[exercise of independent judgment requires trial court to review entire record to
determine whether weight of the evidence supports administrative findings].)

                                               10
       On this record, the trial court properly found “the evidence in the administrative
record demonstrates that Officer Castillo testified that the discretion of field officers was
limited regarding who is to be stopped because of the application of a neutral formula.
(AR 35) Indeed, Officer Castillo stated that the checkpoint stopped every five cars such
that five cars would go through and the next five cars would be stopped.”
       We conclude the trial court properly weighed Castillo’s testimony to find “Castillo
testified to a neutral formula that was applied to the checkpoint.”
       4. No abuse of discretion in hearing officer’s denial of a second continuance.
       At the end of the first hearing, on January 30, 2012, the Department granted a
continuance to enable Vega to present additional evidence regarding the legality of the
checkpoint and the arrest. However, Vega contends the Department violated his right to
due process “when it failed to grant a second continuance when [his] law enforcement
witness was unavailable for the second hearing” on May 8, 2012.
       The administrative record reflects that at the May 8, 2012 session, Vega’s attorney
requested a continuance at the commencement of the hearing on the ground the officer
was unavailable. The hearing officer asked counsel: “Did you subpoena the officer to
appear today?” Counsel responded he attempted to subpoena the officer, but the
subpoena was “rejected.” The hearing officer then inquired, “And do you have copies of
the subpoena that was sent to the agency to have the officer appear?” Counsel responded,
“I do not have those available right now.”
       In the mandamus proceeding, Vega raised the issue of the hearing officer’s denial
of a continuance. In that regard, the trial court ruled that because Vega’s attorney did not
have a copy of the subpoena that was allegedly sent but “ ‘rejected,’ ” the hearing officer
did not abuse her discretion in denying Vega’s May 8, 2012 request to continue the
hearing for a second time.
       We agree. On this record, given the inadequate showing made in support of the
request for a continuance, we perceive no abuse of discretion in the hearing officer’s
denial of Vega’s request for a second continuance.


                                             11
       5. No merit to Vega’s contention regarding the alleged inadequacy of the
administrative record.
       The transcript of the May 8, 2012 session contains the following transcriptionist’s
note: “Audio volume was extremely low during this entire proceeding resulting in many
inaudible designations. I transcribed it to the best of my ability to hear the words.”
       Vega contends the Department has a duty to maintain an accurate record of the
hearing, and because of the gaps in the transcript, the evidence is insufficient to sustain a
finding that Vega’s witness was not lawfully subpoenaed. Vega’s position is that had the
May 8, 2012 session been properly transcribed, it would establish the hearing officer
abused her discretion in refusing a second continuance.
       In this regard, the trial court ruled, “despite a few portions of the transcript that
were transcribed as ‘inaudible,’ the administrative record is sufficiently adequate for
judicial review. In any event, most of the inaudible sections of the transcript were on the
second day of the hearing, May 8, 2012, when no witness testified.”2
       As discussed, the inability of Vega’s counsel to supply the hearing officer with a
copy of the subpoena was a sufficient basis for the hearing officer to deny the request for
a continuance.
       Further, Vega has not shown what the inaudible portions of the transcript would
have revealed. Vega did not identify the witness he attempted to subpoena, nor did he
make an offer of proof as to the nature of said witness’s testimony. Vega simply would
have this court speculate that a perfect transcript would lead to a result more favorable to
him.
       We conclude that irrespective of the gaps in the transcript of the May 8, 2012
session, Vega failed to present any evidence to show an irregularity in the sobriety
checkpoint. That is the beginning and the end of this case. Therefore, his contention
with respect to the gaps in the administrative transcript is unavailing.


2
       The transcript of the May 8, 2012 hearing amounts to seven pages. Following the
denial of Vega’s request for a continuance, counsel presented closing arguments.
                                              12
                                    DISPOSITION
      The judgment denying Vega’s petition for writ of mandate is affirmed.
The Department shall recover its costs on appeal.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                KLEIN, P. J.


We concur:



             KITCHING, J.




             ALDRICH, J.




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