Filed 8/25/15 P. v. Taylor CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065618

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD248804)

KATHERINE TAYLOR,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Eugenia A.

Eyherabide, Judge. Affirmed.

         Alex David Kreit, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Peter Quon, Jr., Deputy Attorney General, for Plaintiff and Respondent.

         Following a bench trial, Katherine Taylor was convicted of felony driving under

the influence (Veh. Code,1 § 23153, subd. (a); count 1) and felony driving with a blood



1        All statutory references are to the Vehicle Code unless otherwise stated.
alcohol level of 0.08 percent causing bodily injury (§ 23153, subd. (b); count 2). Taylor

stipulated to her guilt for misdemeanor driving with a license that was revoked for

driving under the influence of alcohol (§ 14601.2, subd. (a); count 3). As to counts 1 and

2, it was alleged that Taylor was previously convicted of violating section 23152,

subdivision (a) within the meaning of sections 23626 and 23540 for refusing to submit to

a chemical test requested by a peace officer within the meaning of section 23577 and that

Taylor, in the commission of the above offenses, caused injury to more than one victim

within the meaning of section 23558. Taylor appeals, contending (1) a warrantless blood

draw conducted after she refused to submit to a voluntary blood test violated her Fourth

Amendment right against warrantless searches and seizures and (2) she was denied

effective assistance of counsel by the trial court's failure to conduct a hearing pursuant to

People v. Marsden (1970) 2 Cal.3d 118 (Marsden). We affirm the judgment.

                  FACTUAL AND PROCEDURAL BACKGROUND2

       The facts underlying this case are not materially disputed. Several stipulations

were entered into before trial including the fact Taylor drove a vehicle involved in a

collision with at least one other vehicle and the collision caused bodily injury to three

other people. Taylor's car swerved from the number three lane on northbound Interstate

805 into the number two lane, hitting someone else and causing another car to lose

control. Witness Scott Staples described Taylor's driving as erratic and observed her in




2      The facts pertaining to Taylor's arrest and blood draw are taken from the transcript
of the Penal Code section 1538.5 suppression motion.
                                              2
the driver's seat of her vehicle. The accounts of Taylor swerving between lanes and

causing the accident were substantiated by other witnesses.

       California Highway Patrol (CHP) Officer Kevin Rinehart arrived on the scene of

the multi-car collision at approximately 3:56 p.m. He noted several vehicles were on the

northbound center divider of Interstate 805 and took statements from the witnesses.

Damage to all the vehicles involved in the collision was consistent with the witnesses'

accounts of Taylor's driving.

       Officer Rinehart spoke to Taylor who appeared intoxicated because she stumbled

around, was incoherent in answering questions, had bloodshot eyes, and stated "Satan"

had caused her to crash. At no time during the investigation did Taylor suggest or state

that another car had caused her to swerve between lanes. Officer Rinehart administered

several field sobriety tests on which Taylor performed poorly.

       Taylor was arrested at 4:25 p.m. and transported to a local CHP Office where she

refused to undergo a chemical blood alcohol test. When Taylor refused, officers

explained to her when a person drives a vehicle in California he or she has impliedly

consented to chemical testing of his or her blood or breath to determine blood alcohol

content (§ 23612, subd. (a)(1)(A)). Additionally Officer Rinehart explained to Taylor if

she did not consent to the chemical test her license would be suspended for a year.

Taylor still refused.

       CHP Officer Brad Clinkscales testified that because Taylor had refused to submit

to a blood test, the fact she was arrested for a felony, and the alcohol in her blood was

dissipating, he decided to seek a telephonic search warrant. He specifically took steps to

                                              3
obtain a warrant due to then recent United States Supreme Court authority, Missouri v.

McNeely (2013) 569 U.S. ___ [133 S.Ct. 1552] (McNeely). Officer Clinkscales contacted

the on-call deputy district attorney who attempted to call the on-call magistrate judge, but

the judge was not available and did not answer the phone. Officer Clinkscales knew the

courts were closed and not due to open until 8:00 o'clock the next morning. He was also

aware that on average, alcohol dissipates from the body at a rate of 0.02 percent per hour

and a delay could have resulted in the evidence being completely gone or almost

nonexistent. According to Officer Clinkscales, his department's standard procedure did

not include multiple attempts to contact a judge. Rather, the deputy district attorney

advised him that McNeely allowed him to take Taylor's blood when the judge was

unavailable to issue a warrant. Following this discussion, Officer Clinkscales went ahead

and arranged for a warrantless blood draw of Taylor at 6:43 p.m. The parties stipulated

that Taylor's blood alcohol content was 0.18 percent.

       Taylor moved to suppress evidence of her blood draw on grounds police violated

her constitutional rights against unreasonable searches and seizures by detaining her

without reasonable suspicion, drawing her blood without a warrant or exigent

circumstances, and obtaining statements during the allegedly unlawful arrest. In

September 2013, after the motion was continued a few times, Taylor became frustrated

and wrote a letter to the judge stating she was "getting ready to ask for a Mardisen [sic]

hearing" and "I think this is grounds for dismissal!" In the letter, Taylor asked for

leniency because "this was not a car-jacking or stolen vehicle." She expressed frustration

about not being offered DUI classes and asked for alternative sentencing, listing the

                                             4
options she would prefer: "#1 I'll take re-entry program. [¶] #2 I'll take jiont [sic]

suspension, lid. Stay prison term. C-PAC [¶] #3 Or time served. DUI classes"

       Taylor's suppression motion was heard in October 2013. Following the testimony

of Officers Reinhart and Clinkscales, Taylor argued the single telephone call to the judge

was an insufficient effort to obtain a search warrant so as to justify the forced warrantless

blood draw. The trial court confirmed that McNeely, supra, 133 S.Ct. 1552 governed, but

expressed its view that the decision did not provide clear guidance on the issue. Though

the court stated that Taylor's arguments were reasonable, it found McNeely did not

require anything more than what Officer Clinkscales did, which was to contact the deputy

district attorney who then unsuccessfully attempted to contact a magistrate judge in an

effort to obtain a warrant. After summarizing the circumstances of Taylor's blood draw,

the court denied the motion to suppress, ruling the warrantless blood draw was

constitutionally permitted under McNeely.3



3       In part, the court stated: "In this particular case, Officer Rinehart came upon kind
of a chaotic scene, out on [Interstate] 805, with all these three or four cars that were
involved in an accident, all of these people out of their cars. It took him a while to kind
of get the lay of the land and see what was going on. [¶] I mean, he said that the call
came in at 3:46; so that's the time of the crash, the time of the driving. And then by the
time—he got there at 3:56, arrested [Taylor] at 4:25, took her back to the station, talked
to Officer Clinkscales. [¶] Officer Clinkscales spoke to the D.A. and finally got the
word back, and then they did the blood draw at 6:43. It is now a full three hours from
3:46, the time of the accident, to 6:46, a full three hours. So I think the officers were well
within the guidelines to do this forced blood draw under the circumstances. [¶] Three
hours had gone by, and the alcohol in the blood was obviously dissipating. It would have
been different, as I said, if she was arrested, taken back to the station. I think the delay in
the accident scene caused a lot of the delay; so there was quite a bit of delay here through
no fault of the officers, and I really can't find any fault with what they did and that they
were required to keep trying to find a judge. [¶] So I think that blood draw was
                                              5
       In December 2013, the court held a hearing to determine if Taylor was mentally

competent to stand trial. During the hearing, Taylor made multiple unsolicited outbursts

in the courtroom. After the court found Taylor competent to stand trial, it proceeded to

set January dates for a pretrial readiness hearing and trial. Taylor continued to interject

commentary in the following colloquy:

       "[Taylor:] No. I'm, I'm sorry. That's too much. I need more time. It's too far

away. I am going crazy in San Diego jail, okay? [Defense counsel is] telling me I got to

sign for three years before I go to this behavioral health court. [¶] The whole thing is

backwards and it's not right, Your Honor. I've been sitting in county jail for eight months

on this, something that I didn't—I was drinking. I will never drink again, but I didn't

cause this accident. [¶] And for me to lose my social security and be put in

(unintelligible) is not humanly fair. It's not what you guys are doing to me. It's

(unintelligible.) It's turning me into somebody that I'm not. I don't want (unintelligible).

       "The Court: "All right. Miss Taylor, that's why you have an attorney to represent

you.

       "[Taylor]: I can't stay in jail. I can stay in county jail (unintelligible) any more

time. I can't do it—[¶] . . . [¶] It's too far away. I'm losing my mind, I'm losing my

mind. [¶] . . . [¶] I didn't kill anyone. No one got hurt in this accident. Why are you

doing this to me, why? I want to know. I stopped smoking crack cocaine. I am trying—

I got back into society by working hard and doing something productive, and this is what


constitutionally permitted under the McNeely case; . . . the [section] 1538.5 motion is
going to be denied . . . ."
                                              6
you're doing? [¶] It's going to put me back in jail. That's going to create me back into a

person that I don't want to go back to, and it's not right. What you guys are doing to me,

it's not fair. [¶] I spoke to Jerry Brown. I want a person that needs to pay attention. I

should be in D.U.I. classes right now, be with my grandchildren for the holidays. What

you guys are doing is wrong. [¶] She wants me to sign for a three-year deal before you

even put me in (unintelligible) don't accept me. I'm just railroaded into doing something

that is not even fair, and it's supposed to be punishment, not brutal. I've served enough

time for this. I still don't feel that—

       "The Court: [Defense counsel], would it be of any benefit to your client if we

moved up the readiness?

       "[Defense counsel]: If they have something available next week because, after

that, I'm going to be on vacation until the end of the year, so I don't know.

       "[Taylor]: Why are you doing this? I'm sorry. Why? I did enough time for this.

I realize what I did wrong. Any more time is not going to—

       "The Clerk: We can try to do December 9.

       "The Court: [Defense counsel], how about we put the readiness on December 9th?

I don't know what will be accomplished. Are you available then?

       "[Defense counsel]: I am, your honor. My, my concern is this case has been on

for readiness and trial quite a few times, and I've actually—

       "[Taylor]: I would like to fire her.

       "[Defense counsel]:—I've spoken with the D.A. several times outside the

readiness department, through e-mail, over the phone, to try to renegotiate and

                                              7
renegotiate this case. [¶] The problem is they have come up with some, some options for

Miss Taylor. Part of that includes a stayed prison time with local custody followed by

residential treatment. She's not interested in that. And the other option is a state prison

sentence. Because of this charge, it is a state prison case; it is not local prison.

       "[Taylor]: I'm AB 109, doing excellent on probation.

       "[Defense counsel]: So the problem I have—

       "[Taylor]: You're fired. I'm not working well with you. [¶] December 9th would

be fine, Sir.

       "The Court: Okay. Ma'am, I need to speak to your attorney.

       "[Defense counsel]: My concern is that I don't know if another readiness is going

to change anything. If Miss Taylor wants to do a Marsden hearing on that morning, we

can do that; that's fine—

       "The Court: Well—

       "[Defense counsel]:—I just, I, I'm concerned because there have been several

readinesses in this case where I've negotiated and renegotiated, and Miss Taylor is not

happy with the deals that I've negotiated. And I've explained the behavioral health court

situation to her because you have to enter a plea with a certain amount of time on the plea

form, if you're not accepted, then you get that sentence. And so she's not happy with that,

either—

       "[Taylor]: Because the sentence is way too high."

       The trial court eventually reiterated the upcoming January hearing dates, but

remarked: "Well, [defense counsel], your client's obviously upset. She wants to move

                                               8
her case along." When counsel expressed her view that she did not think her client's offer

would change with an earlier date. Taylor interjected: "December 9th, [defense

counsel], and e-mail me and do your job; you're not doing your job."

       After moving up the court date, the court advised Taylor that her attorney was

"one of the best attorneys in the courthouse" with good rapport with the district attorney's

office, that counsel was respected and Taylor "couldn't do better." Taylor responded in

part that she appreciated the comment, but "this term that you're giving me is an

outrageous term." The court responded, "Well, okay. You're entitled to your opinion,

ma'am. You're the one that's charged with a crime here; and it's totally up to you as to

what's going to, what you're going to do. . . . [¶] So as I said, you do what you want.

We've moved up your date [to] the 9th of December. [Defense counsel] will go in, talk to

the D.A. again for you, and try to get the best deal that she can for you." Taylor replied,

"Yes, Sir." The court and Taylor engaged in further conversation about Taylor's

background. The hearing concluded without Taylor renewing her request to fire her

counsel.

       Following a bench trial, the court denied Taylor probation and sentenced her to a

four-year prison term.

                                      DISCUSSION

                         I. Motion to Suppress Blood Draw Evidence

A. Legal Principles

       1. Fourth Amendment



                                             9
       The Fourth Amendment provides in part that "[t]he right of the people to be secure

in their persons, houses, papers and effect, against unreasonable searches and seizures,

shall not be violated, and no Warrants shall issue, but upon probable cause." (U.S.

Const., 14th Amend.; see McNeely, supra, 133 S.Ct. at p. 1558.) The touchstone of the

Fourth Amendment is reasonableness. (Riley v. California (2014) ___ U.S. ___ [134

S.Ct. 2473, 2482].) Searches without a warrant are presumptively unreasonable. (See

People v. Troyer (2011) 51 Cal.4th 599, 602; People v. Harris (2015) 234 Cal.App.4th

671, 682-683.) " 'Nevertheless, because the ultimate touchstone of the Fourth

Amendment is "reasonableness," the warrant requirement is subject to certain

exceptions.' " (Troyer, at p. 602; McNeely, 133 S.Ct. at p. 1558.) The principle that a

warrantless search is reasonable only if it falls within a recognized exception applies to

compelled blood draws for use as evidence in a criminal investigation, as "[s]uch an

invasion of bodily integrity implicates an individual's 'most personal and deep-rooted

expectations of privacy.' " (McNeely, supra, 133 S.Ct. at p. 1558.)

       One well-recognized exception to the warrant requirement is when the

" 'exigencies of the situation make the needs of law enforcement so compelling that a

warrantless search is objectively reasonable under the Fourth Amendment.' " (McNeely,

supra, 133 S.Ct. at p. 1558.) Exigency may arise, for example, when law enforcement

officers have the need to prevent the imminent destruction of evidence. (Ibid.; see People

v. Thompson (2006) 38 Cal.4th 811, 820.)

       In April 2013, the United States Supreme Court decided McNeely, supra, 133

S.Ct. 1552. There, the defendant was pulled over for speeding and repeatedly crossing

                                             10
the centerline. (Id. at p. 1557.) He was placed under arrest after refusing to take a breath

test. (Ibid.) The officer began to take McNeely to a station, but after McNeely stated he

would not provide a breath sample, police transported him to a hospital, where McNeely

refused to provide a blood sample and his blood was drawn without a warrant. (Ibid.)

       The McNeely court held that the natural dissipation of alcohol in the bloodstream

did not categorically establish exigency that would justify an exception to the warrant

requirement for nonconsensual blood testing in drunk-driving investigations. (McNeely,

supra, 133 S.Ct. at p. 1556.) Instead, "exigency in this context must be determined case

by case based on the totality of the circumstances" and thus "the metabolization of

alcohol in the bloodstream and the ensuing loss of evidence are among the factors that

must be considered in deciding whether a warrant is required." (Id. at pp. 1556, 1558.)

Pointing out that delay is inevitable in the transportation of drunk-driving suspects to a

medical facility, the court stated that "in those drunk-driving investigations where police

officers can reasonably obtain a warrant before a blood sample can be drawn without

significantly undermining the efficacy of the search, the Fourth Amendment mandates

that they do so." (Id. at p. 1561.) In cases where "the warrant process will not

significantly increase the delay before the blood test is conducted because an officer can

take steps to secure a warrant while the suspect is being transported to a medical facility

by another officer . . . , there would be no plausible justification for an exception to the

warrant requirement." (Ibid.) The court acknowledged that "improvements in

communications technology do not guarantee that a magistrate judge will be available

when an officer needs a warrant after making a late-night arrest. But technological

                                              11
developments that enable police officers to secure warrants more quickly, and do so

without undermining the neutral magistrate judge's essential role as a check on police

discretion, are relevant to an assessment of exigency." (Id. at p. 1562.)

       Nevertheless, McNeely made clear that "exigent circumstances justifying a

warrantless blood sample may arise in the regular course of law enforcement due to

delays from the warrant application process." (McNeely, supra, 133 S.Ct. at p. 1553.)

"Other factors present in an ordinary traffic stop, such as the procedures in place for

obtaining a warrant or the availability of a magistrate judge, may affect whether the

police can obtain a warrant in an expeditious way and therefore may establish an

exigency that permits a warrantless search. The relevant factors in determining whether a

warrantless search is reasonable, including the practical problems of obtaining a warrant

within a timeframe that still preserves the opportunity to obtain reliable evidence, will no

doubt vary depending upon the circumstances in the case." (Id. at p. 1568.)

       2. The Good Faith Exception to the Exclusionary Rule

       The exclusionary rule " 'operates as a judicially[-]created remedy designed to

safeguard against future violations of Fourth Amendment rights through the rule's general

deterrent effect. [Citations.]' [Citation.] Thus, its ' "prime purpose" ' is to ' "effectuate" '

the Fourth Amendment's guarantee against unreasonable searches or seizures by

'deter[ring] future unlawful police conduct.' [Citation.] . . . [B]ecause the exclusionary

rule is a 'remedial device,' its application is 'restricted to those situations in which its

remedial purpose is effectively advanced.' " (People v. Willis (2002) 28 Cal.4th 22, 30.)

Thus, the remedy of the exclusionary rule is not warranted where it would " ' "not result

                                               12
in appreciable deterrence." ' " (Ibid.) These circumstances give rise to what is commonly

known as the "good faith exception" to the exclusionary rule. (Ibid.; see Davis v. U.S.

(2011) ___ U.S. ___ [131 S.Ct. 2419, 2434].)

       "When considering whether to apply the good faith exception, we consider the

objective reasonableness of both the officer who conducted the search and those who

provided information material to the searching officer. [Citations.] We consider

whether, in light of the source of the erroneous information, the deterrent effect of

exclusion is sufficient to warrant imposition of that sanction. [Citations.] The

determination of whether the application of the exclusionary rule is warranted is made on

a case-by-case basis." (People v. Hamilton (2002) 102 Cal.App.4th 1311, 1315.)

Typically, when police action manifests a "deliberate," "reckless," or "grossly negligent"

disregard for the Fourth Amendment, the deterrent value of exclusion will be strong and

will tend to outweigh the resulting cost of exclusion. (Herring v. United States (2009)

555 U.S. 135, 144.) Conversely, when police act with objectively reasonable good-faith

belief that their conduct is lawful or when conduct involves only isolated negligence,

exclusion of evidence will prove of little deterrent effect. (United States v. Leon (1984)

468 U.S. 897, 908, fn. 6, 919.)

B. Standard of Appellate Review

       The review of issues related to suppression of evidence is governed by federal

constitutional standards. (Robey v. Superior Court (2013) 56 Cal.4th 1218, 1223; see

People v. Bradford (1997) 15 Cal.4th 1229, 1291; Cal. Const., art. I, § 28.) Because a

warrantless search is presumed to be unreasonable, when a defendant moves to suppress

                                             13
evidence on grounds of an unreasonable search, the prosecution bears the burden of

demonstrating a legal justification for the search. (People v. Suff (2014) 58 Cal.4th 1013,

1053.) The prosecution therefore has the burden to prove an exigency existed. (See

People v. Duncan (1986) 42 Cal.3d 91, 97.) " ' "The standard of appellate review of a

trial court's ruling on a motion to suppress is well established. We defer to the trial

court's factual findings, express or implied, where supported by substantial evidence. In

determining whether, on the facts so found, the search or seizure was reasonable under

the Fourth Amendment, we exercise our independent judgment." ' " (People v. Suff, at p.

1053.)

         When the issue is whether exigent circumstances justified a warrantless search, we

engage in a similar two-step inquiry. First, we uphold the trial court's finding of fact as to

what the officer knew or believed and what action he took in response if those findings

are supported by substantial evidence. Second, we independently determine whether the

officer's conduct was reasonable under the circumstances. (People v. Duncan, supra, 42

Cal.3d at p. 97.)

C. Contentions

         Relying on McNeely, supra, 133 S.Ct. 1552, Taylor contends the People did

not meet their burden to show the police could not have " 'reasonably obtain[ed] a

warrant . . . without significantly undermining the efficacy of the search . . . .' " She

points out there was no evidence to explain why the deputy district attorney did not

continue his efforts to seek a warrant during the 30 minutes between his initial effort and

her blood test. She argues no evidence showed it would have been impractical or futile

                                              14
for the district attorney to try to call the on-call judge again, and the record does not show

he left the judge a message. According to Taylor, the judge's failure to pick up the phone

was a "momentary delay" that did not create an exigency, and the district attorney's

failure to take additional steps to obtain a warrant is, on its own, grounds for reversal.

Taylor further argues Officer Rinehart's and Officer Clinkscales's inexplicable delay in

beginning to seek a warrant after her arrest negates any possible inference of exigency.

       The People respond that evidence from the forced blood sample should not be

suppressed because the officers directed the blood draw in good faith reliance on

McNeely. They point out McNeely recognized that anticipated delays may arise in

obtaining a warrant, such as here where a magistrate judge was unavailable, which could

justify a warrantless blood draw.

D. Analysis

       The trial court found, contrary to Taylor's argument, that the officers did not

unreasonably prolong their investigation or create their own exigency by delaying the

request for a search warrant. We conclude that finding is supported by substantial

evidence. As summarized above, Officer Rinehart arrived on the scene of a multi-car

accident. He assessed damage to each of the vehicles, interviewed the witnesses on the

scene, and also spoke to Taylor and administered field sobriety tests. Taylor presented no

evidence to indicate Officer Rinehart in any way prolonged his investigation

unnecessarily or purposefully delayed requesting a warrant. Officer Clinkscales testified

at the suppression hearing that Taylor was arrested by Rinehart at roughly 4:25 p.m.

After her arrest, Taylor was transported to a local CHP station. Once there, Taylor was

                                              15
advised of the implied consent rules of the California Vehicle Code which requires those

arrested for driving under the influence to submit a sample of their blood or have his or

her license suspended for a year. Officer Clinkscales then needed to speak to Officer

Rinehart and get the facts of the case before attempting to secure a warrant. After

speaking to the on-call deputy district attorney, Officer Clinkscales waited to hear back

from the Marshall's service. Instead, at about 6:00 p.m. he heard back from the deputy

district attorney, who stated that the magistrate judge was unavailable; that the judge did

not pick up the phone.4 Based on his experience, Officer Clinkscales knew the court was

closed and not due to open until the next day. Clinkscales stated he only made one

attempt to contact the judge because that was standard procedure. Given the number of

vehicles involved in the accident and the need to convey so much information and wait

for a response, it cannot be said that this 90-minute delay between Taylor's arrest and the

officer's attempt to secure a warrant was unreasonable.

       While Taylor might, with the benefit of hindsight, conjure myriad options for what

the district attorney or officers could have further done in the 30 minutes between the

callback and Taylor's blood draw, this is not the appropriate inquiry. The United States

Supreme Court has explained that the inquiry is not on what could have been done but

"whether the Fourth Amendment requires such steps; it is not our function to write a

manual on administering routine, neutral procedures of the stationhouse. Our role is to



4      On cross-examination, Officer Clinkscales stated that "the conversation that I had
with [Deputy District Attorney] Mosler was he explained to me there is not going to be a
judge available. And I said, 'Okay. Well, we need to get the blood.' "
                                             16
assure against violations of the Constitution." (Illinois v. Lafayette (1983) 462 U.S. 640,

647.) Given the totality of the circumstances, including the passage of time from the

accident, the inevitable dissipation of the alcohol in Taylor's blood, and Officer

Clinkscales's unsuccessful effort to obtain a warrant beforehand with the understanding

that McNeely required such an effort, it appears the exigency of the circumstances

rendered Taylor's warrantless blood draw objectively reasonable.

       We need not, however, further analyze or resolve the question of whether Taylor's

warrantless blood draw was reasonable and met McNeely's standards because we agree

with the People that the blood evidence is not subject to the exclusionary rule under the

good faith exception. (See, e.g., People v.Youn (2014) 229 Cal.App.4th 571; People v.

Rossetti (2014) 230 Cal.App.4th 1070; People v. Jones (2014) 231 Cal.App.4th 1257;

People v. Harris (2015) 234 Cal.App.4th 671.) That is, there is no dispute in this case

that Officer Clinkscales was aware of McNeely, supra, 133 S.Ct. 1552 and therefore took

steps to obtain a telephonic warrant to permit a blood sample to be taken. Having

contacted the district attorney, who in turn attempted to call the on-call magistrate judge

who was then unavailable, and knowing that Taylor's blood alcohol level was dissipating,

he ultimately concluded McNeely would permit the blood draw without a warrant based

on the exigency of the circumstances. Faced with more than a three-hour passage of time

since the accident, Officer Clinkscales ordered the administration of Taylor's blood draw.

Clinkscales did not attempt to contact the judge again because he said that was "not

standard procedure. If you can't get a judge, you can't get a judge."



                                             17
       We acknowledge that People v. Youn, supra, 229 Cal.App.4th 571, People v.

Rossetti, supra, 230 Cal.App.4th 1070, People v. Jones, supra, 231 Cal.App.4th 1257,

and People v. Harris, supra, 234 Cal.App.4th 671 involve an officer's reliance on

Schmerber v. California (1966) 384 U.S. 757, the law preceding McNeely,5 but the cases

in our view do not limit application of the good faith exception to such circumstances. In

Youn, the defendant in 2011 was involved in a car collision and unresponsive to potent

sedatives. (Id. at pp. 573-574.) Seeing his behavior, a responding officer suspected he

was on a stimulant and placed him under arrest, ordering a blood draw from defendant

without a warrant because obtaining a warrant was not standard operating procedure at

that time. (Id. at p. 574.) Two years later, after McNeely was decided, the court held a

hearing on the defendant's motion to suppress evidence of his blood draw and denied the

motion, finding the officer acted reasonably and suppression would not have a deterrent

effect on police misconduct because the officer did not engage in any misconduct.

(People v. Youn, 229 Cal.App.4th at pp. 574-575.)

       The Court of Appeal recognized that "[Youn's] case is governed by the rule in

McNeeley." (People v. Youn, supra, 229 Cal.App.4th at p. 578.) However, it affirmed

the order without deciding whether the warrantless blood test was reasonable, pointing



5      "Prior to McNeely, all binding judicial precedent in this state, both at the Supreme
Court and intermediate appellate levels, consistently interpreted Schmerber to permit
warrantless blood draws incident to a valid arrest and done in a medically approved
manner. [Citation.] '[W]hen binding appellate precedent specifically authorizes a
particular police practice, well-trained officers will and should use that tool to fulfill their
crime-detection and public-safety responsibilities.' " (People v. Jones, supra, 231
Cal.App.4th at p. 1265.)
                                              18
out that " 'searches conducted in objectively reasonable reliance on binding appellate

precedent are not subject to the exclusionary rule.' " (Id. at pp. 578-579.) It held that in

2011, the officer acted in objectively reasonable reliance on binding California precedent

construing Schmerber, supra, 384 U.S. 757. Thus the exclusionary rule would not be

served by barring the admission of the warrantless blood draw because the officer acted

in objectively reasonable reliance on binding precedent and "there was no police

culpability." (Youn, at p. 579.)

       Here, Officer Clinkscales's understanding of McNeely—which acknowledges that

exigency may arise due to delays in the warrant process or where a magistrate is

unavailable—was not so entirely unreasonable as to negate his good faith. It cannot be

said that either he or Officer Rinehart acted in an objectively unreasonable manner; that

either acted " 'deliberately, recklessly, or with gross negligence,' " or that this " 'case

involv[ed] any "recurring or systematic negligence" ' " on their part. (People v. Harris,

supra, 234 Cal.App.4th at p. 703, quoting Davis v. U.S., supra, 131 S.Ct. at p. 2428.) As

in Youn and Harris, the exclusionary rule should not apply here "[b]ecause suppression

would do nothing to deter police misconduct in these circumstances," and because

"searches conducted in objectively reasonable reliance on binding appellate precedent are

not subject to the exclusionary rule." (Davis, at pp. 2423-2424.)

       To this point, Taylor argues in reply that since her blood was drawn three months

after McNeely was decided that the good faith exception does not apply as it did in Youn,

where the blood draw occurred before the decision. But the out-of-state authority on

which Taylor relies—State v. Fierro (S.D. 2014) 853 N.W.2d 235—is inapposite. There,

                                               19
the officer arrested and drew the defendant's blood four months after McNeely was

decided, and despite the officer's new training on McNeely's effect, he did not obtain her

consent or a warrant. (Id. at pp. 237-238.) The court there held that when an officer is

aware of new precedent, but conducts activity in accordance with prior, contrary

precedent, his actions cannot be objectively reasonable and suppression of the evidence

was proper. (Id. at p. 245.) The case does not compel reversal here, where Officer

Clinkscales sought to act in accordance with McNeely by seeking a warrant after Taylor

refused to consent to a blood draw. McNeeley is itself "binding appellate precedent" and

as such when Officer Clinkscales conducted a search in "objectively reasonable reliance"

on his knowledge of McNeeley, the search is not subject to the exclusionary rule. (See

Davis, supra, 131 S.Ct. at pp. 2423-2424.)

          II. Claim Regarding Court's Failure to Conduct a Marsden Hearing

       Taylor contends the trial court abused its discretion by failing to conduct a

Marsden hearing when she expressed her desire to fire her counsel. She points out the

court did not inquire about the reasons why she was dissatisfied with her lawyer, pose

any questions in response to her request that counsel email her and "do [her] job," or

follow up on counsel's suggestion that the court set a Marsden hearing on the day of

Taylor's continued readiness hearing. Taylor argues the error is prejudicial because

without a record regarding her concerns, the appellate court is unable to conclude beyond

a reasonable doubt that the denial of the motion did not contribute to her conviction.

       The People respond that Taylor's comments did not constitute a clear and

unambiguous Marsden request for substitute counsel. They argue her comments in

                                             20
reference to firing her court-appointed attorney were merely frustrated outbursts that

Taylor subsequently contradicted by asking defense counsel to send her an email and to

do her job. The People further contend that even if Taylor's statements constituted a

Marsden request, reversal is not warranted because any failure to hold a Marsden hearing

was harmless beyond a reasonable doubt in that Taylor never complained below that her

counsel's performance was inadequate, and does not contend on appeal that her counsel

provided ineffective assistance.

A. Legal Principles

       Criminal defendants are entitled under the state and federal Constitutions to

assistance of counsel if they cannot employ private counsel. (Marsden, supra, 2 Cal.3d at

p. 123; U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Gideon v. Wainwright (1963)

372 U.S. 335, 344-345.) That right may include the right to have counsel discharged or

substituted if the defendant shows that the right to competent counsel " 'would be

substantially impaired . . . in case the request is not granted . . . .' " (Marsden, supra, 2

Cal.3d at p. 123.) The court, however, is not required to conduct a Marsden hearing sua

sponte. (People v. Martinez (2009) 47 Cal.4th 399, 421.) Its duty to hold such a hearing

arises "only when there is 'at least some clear indication by defendant,' either personally

or through his current counsel, that defendant 'wants a substitute attorney' " because her

counsel's performance is so inadequate as to deny her the constitutional right to effective

counsel. (People v. Sanchez (2011) 53 Cal.4th 80, 90; People v. Lucky (1988) 45 Cal.3d

259, 281, fn. 8.)



                                              21
       In Marsden, the defendant stated he did not believe he was " 'getting adequately

represented or competently represented' " and expressed his belief the " 'court's transcript

prior to this meeting here can reveal that fact.' " (Marsden, supra, 2 Cal.3d at p. 121.)

When the defendant sought to proffer specific instances of misconduct, the trial court

refused his request, telling the defendant the court did not want him to say anything that

might prejudice him as to his case. (Id. at p. 122.) The Marsden court held it was error

to deny defendant the opportunity to explain the basis for his claim because such a denial

based "solely on the basis of [its] courtroom observations, despite a defendant's offer to

relate specific instances of misconduct, abuses the exercise of [its] discretion to

determine the competency of the attorney." (Id. at p. 124.)

       Under Marsden, when a defendant seeks substitute counsel, in order to

thoughtfully exercise its discretion whether to discharge present counsel, a trial court is

required to listen to a defendant's complaints about his attorney. (See People v Lewis

(1978) 20 Cal.3d 496, 497 [purpose of the Marsden requirement was to ensure defendant

is "permitted to state the reasons why he believes a court-appointed counsel should be

discharged"].) Thus, "Marsden motions are subject to the following well-established

rules. ' " 'When a defendant seeks to discharge his appointed counsel and substitute

another attorney, and asserts inadequate representation, the trial court must permit the

defendant to explain the basis of his contention and to relate specific instances of the

attorney's inadequate performance. [Citation.] A defendant is entitled to relief if the

record clearly shows that the first appointed attorney is not providing adequate

representation [citation] or that defendant and counsel have become embroiled in such an

                                             22
irreconcilable conflict that ineffective representation is likely to result [citations].'

[Citations.]" ' [Citation.] Denials of Marsden motions are reviewed under an abuse of

discretion standard. [Citation.] Denial 'is not an abuse of discretion unless the defendant

has shown that a failure to replace the appointed attorney would "substantially impair"

the defendant's right to assistance of counsel.' " (People v. Barnett (1998) 17 Cal.4th

1044, 1085-1086.)

       Following Marsden, this state's high court and other courts have held its

requirements may be met without conducting a formal hearing. When "the basis of a

defendant's dissatisfaction with counsel is set forth in a letter of sufficient detail, . . . a

full-blown hearing is not required." (People v. Wharton (1991) 53 Cal.3d 522, 580

(Wharton); see also People v. Freeman (1994) 8 Cal.4th 450 (Freeman); People v. Terrill

(1979) 98 Cal.App.3d 291, 299 (Terrill).)

       In People v. Wharton, supra, 53 Cal.3d 522, the defendant challenged a prior

murder conviction alleging the trial court improperly denied his motion to substitute

counsel, thus violating his right to effective assistance of counsel. (Id. at pp. 579-580.)

In that prior case, he had sent a detailed letter to the trial judge complaining that his

attorney had met only briefly with him, he had not been given ample opportunity to relate

details on several matters to his attorney, and the attorney had too many other cases to

give the case more attention. (Id. at p. 580.) The California Supreme Court

acknowledged that the trial court had held a hearing and acknowledged receipt of that

letter. (Ibid.) In holding there was no Marsden error, the court stated: "When the basis

of a defendant's dissatisfaction with counsel is set forth in a letter of sufficient detail,"

                                                23
such that there are no more questions for the judge to ask, "a full-blown hearing is not

required." (Ibid., citing Terrill, supra, 98 Cal.App.3d at pp. 298-299.) The court did not

err in proceeding without a Marsden hearing because it was aware of grounds for the

motion and satisfied itself that defense counsel had adequately performed. (Wharton, at

pp. 580-581.)

       In Terrill, the defendant filed a handwritten motion for substitute counsel to the

judge. (Terrill, supra, 98 Cal.App.3d at pp. 296, 302.) He complained that his public

defender had only met with him twice and encouraged him to accept a 15-year

disposition for his murder charge because the jury would "fin[d] [him] guilty anyway."

(Id. at p. 296.) Defendant wanted a new lawyer because he did not believe his attorney

had his best intentions in mind. (Ibid.) On the date set for trial, the trial court

acknowledged reading the letter and the overwhelming evidence against the defendant.

(Id. at p. 297.) The trial court found it proper for counsel to attempt to explore a

disposition because of the severity of the offense and the inculpatory evidence. (Id. at p.

297.) The appellate court agreed, noting that the defendant's letter did not state vague

general dissatisfaction, and was of sufficient detail such that the trial court "was fully

apprised of the specific allegations leveled against defense counsel." (Id. at p. 299.) It

rejected the claim that the letter showed a breakdown in the attorney-client relationship,

observing that had that been the case, defense counsel would have joined in the motion

and not announced he readiness for trial. (Id. at p. 301.) Given the trial court's inquiry,

these circumstances were substantially different from those in Marsden; the defendant

had the opportunity in his letter and in court to present specific charges and "an adequate

                                              24
inquiry into the reasons for defendant's motion" were made. (Id. at p. 302.) Denial of the

motion was not an abuse of discretion. (Ibid.)

       In Freeman, supra, 8 Cal.4th 450, the California Supreme Court once again

concluded that the trial court was not required to hold a Marsden hearing when the

defendant had itemized his complaints in a "self-contained document." (Id. at p. 481.) In

Freeman, the defendant filed a formal written petition for new counsel on a form that

permitted him to state facts that supported his request. (Ibid.) Concluding that the

defendant already had the equivalent of a Marsden hearing, the Freeman court stated:

"The form he used permitted him to state all reasons for the relief requested. . . . There

was no reason for the trial court to suppose defendant withheld his reasons or supporting

facts, or wished to state further examples of counsel's inadequate representation. He

certainly did not 'offer to relate specific instances of misconduct.' " (Ibid.)

B. Analysis

       Taylor interrupted proceedings twice during the December 2013 hearing

expressing her desire to "fire" her counsel and stating, "You're fired, I'm not working well

with you." These remarks, combined with Taylor's letter to the court in which she

suggested she might make a Marsden request, compel us to disagree with the People's

portrayal of Taylor's comments as merely frustrated outbursts. Such a characterization

disregards Taylor's status as a lay person ignorant of the law or the terms of art used to

present motions to the court. (See Marsden, supra, 2 Cal.3d at p. 124.) Marsden made

clear that "semantics employed by a lay person in asserting a constitutional right should

not be given undue weight in determining the protection to be accorded that right." (Ibid;

                                              25
see People v Lucky, supra, 45 Cal.3d at p. 281 & fn. 8 [a trial court must hear defendant's

reasons for dissatisfaction with his attorney "when the defendant in some manner moves

to discharge his current counsel" and "we do not necessarily require a proper and formal

legal motion"].) Thus, Taylor's remarks to the effect that she wanted to fire her court-

appointed counsel should be viewed as a lay person's motion for substitute counsel.

       After inartfully making her oral motion, however, Taylor appeared to acquiesce to

counsel's continued representation. The People suggest that Taylor abandoned her

request for substitute counsel when she thereafter contradicted herself and asked her

counsel to "do [her] job." We agree it is arguable that abandonment may be inferred from

Taylor's agreement after being informed that her counsel would be meeting with the

district attorney. (See People v. Vera (2004) 122 Cal.App.4th 970, 981-982; People v.

Jones (2012) 210 Cal.App.4th 355, 361-362.) There is no indication Taylor renewed her

request for substitute counsel before the matter proceeded to trial or at any other point.

Taylor's Marsden claim may be rejected on that basis alone.

       We alternatively conclude that Taylor's letter and communications sufficiently

informed the trial court about the reasons for her dissatisfaction so as to comply with

Marsden's requirements. As stated, "at any time during criminal proceedings, if a

defendant requests substitute counsel, the trial court is obligated, pursuant to our holding

in Marsden, to give the defendant an opportunity to state any grounds for dissatisfaction

with the current appointed attorney." (People v. Sanchez, supra, 53 Cal.4th at p. 90.) A

trial judge is unable to intelligently process such a request "unless he is cognizant of the

grounds which prompted the request." (Marsden, supra, 2 Cal.3d at p. 123).

                                             26
       Through her letter and in-court remarks, Taylor laid out her contentions against

defense counsel with specificity. She sought a Marsden hearing and to fire her court-

appointed attorney because there had been too many continuances on her readiness

hearing; the three-year negotiated sentence was too high; and she was not working well

with defense counsel. In her letter, Taylor listed her preferred sentences, none of which

required any further jail time. She was dissatisfied with the three-year sentence defense

counsel had negotiated if Taylor was interested in entering a plea. As in Terrill where the

court reasoned it was a "reasonable tactical decision" for counsel to attempt to explore a

disposition based on the severity of the offense (Terrill, supra, 98 Cal.App.3d at p. 297),

defense counsel in this case acted reasonably in attempted to negotiate a plea for Taylor.

(See also People v. Fairbank (1997) 16 Cal.4th 1223, 1243 [guilty plea deemed

reasonable tactical decision in light of the compelling evidence against the defendant].)

Tactical disagreements between the defendant and his attorney do not establish an

irreconcilable conflict so as to be sufficient cause for substitution of counsel. (People v.

Streeter (2012) 54 Cal.4th 205, 230-231; People v. Valdez (2004) 32 Cal.4th 73, 95.)

Taylor also indicated she was not working well with defense counsel. However, not

relating well with counsel does not establish that there were irreconcilable differences nor

does it follow that counsel's performance was ineffective. (People v. Smith (2003) 30

Cal.4th 581, 606 [lack of trust or inability to get along with counsel is not enough to

compel substitution].) The record does not show or suggest defense counsel's

representation was inadequate or that there was an irreconcilable conflict that cast doubt

on defense counsel's ability to provide adequate representation.

                                             27
      In light of Taylor's ability to proffer the facts of her dissatisfaction with defense

counsel, we conclude the trial court was fully apprised of the reasons for her motion. The

court met its obligations to Taylor by giving her an "opportunity to explain" and

"document" the basis for her contentions. (People v. Marsden, supra, 2 Cal.3d at p. 125.)

The court did not reversibly err by not conducting a Marsden hearing because it was

aware of the allegations made by Taylor and satisfied as to the representation provided by

defense counsel.

                                      DISPOSITION

      The judgment is affirmed.




                                                                              O'ROURKE, J.

WE CONCUR:


McINTYRE, Acting P. J.


IRION, J.




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