Filed 2/24/14 P. v. Christian CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047683

         v.                                                            (Super. Ct. No. 10WF2352)

ABUNDIO CHRISTIAN,                                                     OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Gregg L.
Prickett, Judge. Affirmed as modified.
                   Sarah A. Stockwell, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Kristine Gutierrez and
Warren Williams, Deputy Attorneys General, for Plaintiff and Respondent.
                  After the trial court denied Abundio Christian’s motion to suppress
evidence of his blood test results, a jury convicted him of driving under the influence and
driving with a blood-alcohol level of .08 percent or above with an enhancement for
driving with a blood-alcohol level of .20 percent as to each count. The jury also found
true allegations Christian had a prior serious conviction within the meaning of the “Three
Strikes” law, and that he refused a peace officer’s request to submit to and complete a
chemical test.1
                  The trial court denied Christian’s motions to reduce the felony conviction
to a misdemeanor pursuant to Penal Code section 17, subdivision (b),2 and to strike his
prior serious felony conviction for sentencing purposes (People v. Superior Court
(Romero) (1996) 13 Cal.4th 497 (Romero)). Ultimately, Christian received a determinate
term of six years in prison, and the court awarded custody credits in the amount of 57
actual days, plus 28 conduct credit for a total of 85 days.3
                  On appeal, Christian challenges the trial court’s ruling on his motion to
suppress the results of his blood test and to strike his prior conviction. He also claims he
is entitled to additional conduct credits under a recent amendment to section 4019. We
affirm the judgment as modified.




          1   The jury found not true an allegation Christian personally inflicted great bodily
injury.

          2   All further statutory references are to the Penal Code.

         The court’s minute order and abstract of judgment lists 61 actual days, plus 30
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days conduct credit for a total of 91 days. When there is a discrepancy between the oral
pronouncement of a sentence and the minute order or the abstract of judgment, the oral
pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Consequently,
we order the abstract of judgment corrected to reflect the trial court’s oral pronouncement
of sentence.


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                                            FACTS
                In the early morning hours of September 20, 2010, Christian collided with a
car driven by Jillian P. As a result of the collision, Jillian lost control of her car and it
rolled over. She sustained multiple injuries to her face, stomach, arms, and legs.
                Police officers were dispatched to the scene at approximately 12:53 a.m.
One of these officers asked Christian if he had consumed alcohol before the crash.
Christian said he had. The officer smelled alcohol on his breath and noticed that he had
watery, bloodshot eyes. In light of these symptoms of intoxication, and considering the
fact of the accident, the officer decided to ask Christian to perform standard field sobriety
tests. During the administration of the tests, Christian repeatedly lost his balance, swayed
back and forth, and generally failed each field sobriety test he performed. Based on a
totality of the circumstances, the officer believed Christian to be under the influence and
impaired.
                After arresting Christian for driving under the influence, the officer gave
Christian the choice of either a blood test or a breath test. Christian said he wanted the
blood test, and the officer took him to the Huntington Beach jail for the blood draw.
However, after arrangements had been made to take his blood, Christian told the officer
he wanted a breath test instead because he feared needles.4 The officer took Christian to
a holding cell to begin a 15-minute observation period. The officers testified the
observation period is necessary to ensure the individual does not burp, belch, regurgitate
or vomit alcohol into his or her mouth because doing so affects the accuracy of the breath
test.
                During the observation period, the officer heard Christian belch repeatedly,
and he complained of stomach pain and said he had acid reflux. The officer warned
Christian that if he continued to belch and burp he would be unable to take the breath test,


        4   The officer also testified Christian had numerous tattoos on his arm.

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but Christian continued to belch and burp. The officer then told Christian he would need
to submit to a blood test. Christian refused the blood test and insisted on a breath test.
Jail personnel placed Christian in a chair and restrained him.
                 At around 2:00 a.m., the arresting officer advised Christian of the penalties
for refusing to submit to a chemical test. Afterward, Christian’s blood was drawn
without incident at approximately 2:18 a.m. Subsequent analysis revealed Christian had
a blood-alcohol concentration of .206 percent. The prosecution’s forensic scientist
testified that even without the blood test results, Christian’s performance on the field
sobriety tests suggested he was under the influence of alcohol and impaired at the time of
the collision.
                                         DISCUSSION
1. Motion to Suppress
                 Christian filed a pretrial motion to suppress the results of his blood test. He
claimed the police officers “unlawfully and unnecessarily extracted” his blood without a
warrant despite his expressed preference for a breath test and without a showing of
exigent circumstances. The prosecution asserted the police officers’ forcible extraction
of Christian’s blood did not violate his right to be free of unreasonable search and
seizures as guaranteed by the Fourth Amendment.
                 After considering the parties’ arguments and moving papers, the trial court
denied the motion without a hearing. The ruling was based, at least in part, on long-
standing and then applicable United States Supreme Court precedent. (Schmerber v.
California (1966) 384 U.S. 757 (Schmerber).)
                 In Schmerber, the petitioner was involved in a traffic accident and
transported to a nearby hospital. He was arrested for driving under the influence of
alcohol while undergoing treatment for his injuries. At the same time, a police officer
directed a physician to withdraw a blood sample for purposes of determining the
petitioner’s blood-alcohol level, and the results of the test were used at trial. The United

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States Supreme Court rejected petitioner’s claim that a compelled blood draw constitutes
an unreasonable search and seizure, and approved the “warrantless compulsory seizure of
blood for the purpose of a blood-alcohol test if the procedure (1) is done in a reasonable,
medically approved manner, (2) is incident to a lawful arrest, and (3) is based upon
reasonable belief the arrestee is intoxicated. [Citations.]” (People v. Ford (1992) 4
Cal.App.4th 32, 35-36 (Ford).)
              In April 2013, over three years after Christian’s arrest and 11 months after
the trial court’s ruling on his motion to suppress, the United States Supreme Court
decided Missouri v. McNeely (2013) __ U.S. __ [133 S.Ct. 1552] (McNeely). In
McNeely, the court determined the natural metabolic elimination of alcohol from the
blood does not present a per se emergency justifying a warrantless, forcible blood draw.
(Id. at p. __ [133 S.Ct. at p. 1568].) Rather, consistent with general Fourth Amendment
principles, exigency in the context of “drunk-driving cases” must be determined on a
case-by-case basis in light of a totality of the circumstances. (Id. at p. __ [128 S.Ct. at
p. 1556].)
              Relying on McNeely, Christian argues that under a totality of the
circumstances the prosecution failed to demonstrate any exigency in his case. He asserts
“[a] delay of another hour would not have made a significant difference in the results, a
fact that is undisputed.” We disagree.
              First, the delay of an hour would have affected the results, although
Christian’s expert witness testified the difference would not have been significant. But
more importantly, we need not determine whether the McNeely holding that the
elimination of alcohol from the blood does not constitute a per se exigent circumstance
justifying a warrantless blood draw is a new procedural rule of law to be applied
retroactively to Christian’s case. Regardless of our determination of that issue, the police
conduct here fell within the “good faith” exception to the exclusionary rule. (See United
States v. Leon (1984) 468 U.S. 897.)

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               Prior to McNeely, California courts regularly allowed warrantless blood
draws where the factors outlined in Ford were satisfied. (See People v. McHugh (2004)
119 Cal.App.4th 202, 212; People v. Sugarman (2002) 96 Cal.App.4th 210, 216-217.) In
short, Christian identifies no California case law which suggests that, in the
circumstances presented here, a warrantless nonconsensual blood draw was not
permissible. Binding appellate precedent specifically authorized the officers’ actions
here. Thus, despite the change in the law, the police acted reasonably. (See Davis v.
United States (2011) 131 S.Ct. 2419, 2429.) Because they acted reasonably, no
“‘appreciable deterrence’” would result from the application of the exclusionary rule in
this case. (Id. at p. 2426.) Consequently, the trial court properly denied Christian’s
motion to suppress the results of the blood draw, and those results were properly admitted
into evidence at trial.
2. Romero Motion
               The information alleged Christian had a 1998 felony burglary conviction,
which qualified as a prior serious felony within the meaning of the Three Strikes law.
Christian filed a pretrial motion to strike the burglary conviction pursuant to section 1385
in an attempt to negotiate an agreement to plead guilty.
               At a hearing on the issue, Christian’s counsel argued his client had done his
time and changed his life since his burglary conviction, and that the imposition of the
sentence required by the Three Strikes law would be disproportionate to the instant
offense. Counsel also submitted several letters in support of his client. The trial court
acknowledged several factors in mitigation, but the trial court properly refused to
negotiate a plea bargain with Christian. (§§ 667, subd. (g), 1170.12, subd. (e); People v
Allan (1996) 49 Cal.App.4th 1507; People v Garcia (1999) 20 Cal.4th 490, 499.) Instead
the trial court was willing to give an indicated sentence. (People v. Trausch (1995) 36
Cal.App.4th 1239, 1247, fn. 9.) After allowing counsel a chance to discuss the situation
with his client over night, Christian decided to proceed to trial.

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              At the posttrial sentencing hearing, the trial court acknowledged its
discretion to strike Christian’s prior felony conviction, but concluded Christian’s case
was not outside the spirit of the Three Strikes law. After a thorough recitation of the
appropriate factors, including Christian’s criminal record and the circumstances of the
current conviction, the court denied Christian’s motion.
              On appeal, Christian concedes the trial court considered “the various factors
involved in deciding” a Romero motion. He simply argues the court’s ruling was
irrational because the judge did not give sufficient weight to the various mitigating
factors. This does not establish an abuse of discretion.
              Section 1385, subdivision (a) (section 1385(a)), permits a trial court to
strike prior felony conviction allegations in cases brought pursuant to the Three Strikes
law. (Romero, supra, 13 Cal.4th at p. 530.) “A court’s discretion to strike prior felony
conviction allegations in furtherance of justice is limited. Its exercise must proceed in
strict compliance with section 1385(a), and is subject to review for abuse.” (Ibid.) “[A]
trial court does not abuse its discretion unless its decision is so irrational or arbitrary that
no reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367,
377.) There is nothing arbitrary or irrational about the trial court’s determination in this
case.
              According to the probation report, Christian’s brushes with the law began
in 1995 when he was 20 years old. In January of that year, police officers responded to a
vandalism report at an apartment complex. Once there, the officers contacted a woman
who was getting out of Christian’s car and appeared to be under the influence of a
controlled substance. They searched her and found narcotics paraphernalia. Christian,
the driver of the car, also appeared to be under the influence of a controlled substance,
and a search of his person yielded a baggie of methamphetamine. Although he was
charged with being under the influence and possession of a controlled substance,
Christian received a grant of diversion under section 1000 and suffered no conviction.

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              Two years later, he was arrested for driving under the influence of
marijuana. The arresting officers found a registered firearm in his car. According to
Christian, he received a grant of probation and no conviction appears on his record for
this offense. A few months later, he was charged with cultivation of marijuana and
possession for sale when officers found several small marijuana plants in his residence.
It appears these charges were later dismissed and did not result in a conviction.
              Just four months after his arrest for cultivation and possession for sale of
marijuana, Christian was convicted of possession of methamphetamine for sale and
possession of controlled substance while armed with a loaded weapon. According to
police records, a search warrant was served at Christian’s home and officers found him to
be in possession of several baggies of methamphetamine in various amounts, a cutting
agent, multiple gram scales, pay/owe sheets, a .45-caliber semiautomatic pistol, a loaded
.22-caliber rifle, a nine-millimeter semiautomatic pistol, ammunition, multiple pagers,
and approximately $2,000 in cash.
              While Christian was on bail for these charges, a confidential informant
advised police that Christian would be delivering methamphetamine to a certain location
and carrying a loaded firearm. Officers set up surveillance of his anticipated drop spot,
and when Christian arrived, the officers contacted him and his two companions. They
found a loaded nine-millimeter handgun on Christian’s person, as well as an ounce of
methamphetamine and a gram scale. Ultimately, Christian was sentenced to seven years
in state prison as a result of this case and the one for which he was on bail at the time.
              Finally, in late 1997, before being sentenced for the above offenses,
Christian broke into a home where he believed he would find a lot of money. This act
resulted in his 1999 serious felony conviction and a violation of parole.
              As is apparent from a review of Christian’s record, the probation report,
and the circumstances of the current offense, factors the trial court carefully considered,
Christian’s case does not fall outside the spirit of the Three Strikes law. He has had

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numerous opportunities to rehabilitate himself and find new ways to enjoy his life. Time
and again, he has chosen to act in ways that place at great risk not only his own life, but
also the lives of others. The fact the current case did not involve more serious injuries or
death was a result of chance, not a predetermined desire to live a better life.
              “To exercise the power of judicial discretion, all material facts and
evidence must be both known and considered, together with legal principles essential to
an informed, intelligent and just decision.” (People v. Davis (1984) 161 Cal.App.3d 796,
804.) The trial court’s inquiry into the propriety of striking a prior conviction alleged
pursuant to the Three Strikes law required the court to assess “‘whether, in light of the
nature and circumstances of his present felonies and prior serious and/or violent felony
convictions, and the particulars of his background, character, and prospects, the
defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence
should be treated as though he had not previously been convicted of one or more serious
and/or violent felonies.’” (People v. Carmony, supra, 33 Cal.4th at p. 377, citing People
v. Williams (1998) 17 Cal.4th 148, 161.)
              In this case, the trial court considered the relevant factors and made a
decision based on its balancing the circumstances of Christian’s criminal record, and his
background and social history, against the necessity to protect the public. Nothing
Christian cites or argues supports his contention the trial court’s ultimate determination
constitutes an abuse of discretion.
3. Calculation of Conduct Credits
              Section 4019 permits a defendant to earn additional presentence credit for
good behavior and work performance while incarcerated. (§ 4019, subds. (b), (c).) The
credits authorized by section 4019 collectively are referred to as “‘[c]onduct credit.’”
(People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) The version of section 4019 in effect
at the time Christian committed his crime allowed for six days of custody credit for every
four days of custody. (Former § 4019, subds. (b), (c), (f); Stats. 1982, ch. 1234, § 7 p.

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4553.) The statute has been twice amended since then, the most recent amendment in
conjunction with the realignment legislation. (§ 4019, subd. (h); see Stats. 2011 ch. 15,
§ 482; Stats. 2011, ch. 39, § 53; Stats. 2011-2012 1st Ex. Sess., ch. 12, § 35.)
              Currently, subdivision (f) of section 4019 provides, “that if all days are
earned under this section, a term of four days will be deemed to have been served for
every two days spent in actual custody.” Christian acknowledges the current statute
applies only to defendant’s whose crimes were committed on or after October 1, 2011 by
its express terms. (§ 4019, subd. (h).) He claims a classification based on offense date
violates constitutional principles of equal protection because it is arbitrary and not
rationally related to a legitimate public purpose.
              However, an opinion from this court (People v. Rajanayagam (2012) 211
Cal.App.4th 42, 55-56) and two from the California Supreme Court that addressed the
amendment (People v. Lara (2012) 54 Cal.4th 896, 906, fn. 9; People v. Brown (2012) 54
Cal.4th 314, 328-330) have concluded otherwise. We agree with the reasoning and result
in these cases. Consequently, we reject Christian’s equal protection claim and affirm the
trial court’s award of custody credits.




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                                     DISPOSITION
              The clerk of the superior court is directed to prepare an amended abstract of
judgment to reflect the award of presentence custody credits in the amount of 57 days
actual custody, plus 28 days conduct credit, for a total of 85 days, and to forward a
certified copy to the Department of Corrections and Rehabilitation. As modified, the
judgment is affirmed.



                                                 THOMPSON, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



BEDSWORTH, J.




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