Filed 4/20/15 P. v. Amezcua CA2/6
                NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified
for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.


            IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                 DIVISION SIX


THE PEOPLE,                                                                    2d Crim. No. B258312
                                                                            (Super. Ct. No. 2011024581)
     Plaintiff and Respondent,                                                   (Ventura County)

v.

JAIME MENDEZ AMEZCUA,

     Defendant and Appellant.


         After the denial of his motion to suppress evidence (Pen. Code, § 1538.5),1
appellant Jaime Mendez Amezcua pleaded guilty to two counts of driving under the
influence (DUI) with a prior DUI felony conviction. (Veh. Code, §§ 23550.5, subd.
(a)(1), 23152, subd. (a).) Appellant admitted one prior prison term (§ 667, subd. (b))
and one prior serious or violent felony conviction ("strike") within the meaning of
California's "Three Strikes" law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
The trial court dismissed the strike and sentenced appellant to prison for five years,
eight months.
         Appellant contests the validity of his conviction on only one of the two
counts: count 1, committed in July 2011. He argues that the trial court erroneously
denied his motion to suppress the results of a test of his blood. We affirm.


1
    All statutory references are to the Penal Code unless otherwise stated.
                                          Facts
         At 2:15 a.m. on July 9, 2011, Officer Rolando Tejeda was dispatched to the
scene of a vehicular collision. A Ford Mustang had struck a utility pole and chain
link fence. The utility pole had fallen on the Mustang. Both front airbags had
deployed. Two persons - Denise Lopez and appellant - were standing nearby. Lopez
told Tejeda that she had been driving the vehicle. She said that appellant had stopped
to help her and that she did not know him.
         Appellant told Officer Tejeda that Lopez was his girlfriend. He was a
passenger in a friend's vehicle that had been following Lopez's Mustang. When the
Mustang collided with the utility pole and fence, "his friend dropped him off and left
the collision scene." Tejeda requested the name of the friend, but appellant did not
reply.
         Officer Tejeda noticed that a Blackberry phone on the driver's side floorboard
of the Mustang appeared to match an empty phone case that was strapped to
appellant's belt. But the position of the driver's seat "was consistent with someone of
a short stature," and appellant was about six feet tall.
         Appellant displayed symptoms of intoxication: an "odor of alcohol, red watery
eyes, . . . unstead[iness] on his feet, and slurred speech." Officer Tejeda tried to
conduct a field sobriety test, but appellant took "a combative stance" and refused to
cooperate.
         Officer Tejeda concluded that appellant, not Lopez, was the driver of the
Mustang and was under the influence of alcohol. Tejeda arrested appellant and
advised him that he was required to submit to a chemical test of his blood or breath.
Appellant "did not answer."
         The police communications center informed Officer Tejeda that appellant was
on parole. Tejeda transported him to the Ventura County Medical Center. There,
appellant refused to consent to a chemical test of his blood or breath. Four officers
restrained appellant while a nurse drew blood from his arm. During the procedure,


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appellant was on the floor. Tejeda testified that appellant "constantly was yelling and
moving and attempting for us not to get that blood sample."
       Appellant's parole agent testified that, pursuant to the conditions of his parole,
appellant was "subject to search and seizure [at] any time of the day or night, with or
without a search warrant, with or without cause by any law enforcement or peace
officer."
                                  Standard of Review
       "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. [Citation.]" (People v. Glaser (1995) 11 Cal. 4th 354, 362.)

                                       Discussion
       In People v. Jones (2014) 231 Cal.App.4th 1257, 1265, 1267-1268, the court
held that a warrantless blood draw falls within the scope of a search-and-seizure
condition of parole, probation, or post-release community supervision (PRCS), so
long as the blood draw is not arbitrary, capricious, or harassing. The reasoning of
Jones is persuasive. "When parole or probation searches are involved, the balance
struck between individual interest and government necessity is implicit in the
determination that a 'warrantless search condition is a reasonable term' in a parole or
probation agreement. [Citations.] [¶] . . . When involuntary search conditions are
properly imposed, reasonable suspicion is no longer a prerequisite to conducting a
search of the subject's person or property. Such a search is reasonable within the
meaning of the Fourth Amendment as long as it is not arbitrary, capricious or
harassing." (People v. Reyes (1998) 19 Cal. 4th 743, 752; see also People v. Schmitz
(2012) 55 Cal. 4th 909, 916 ["Both we and the United States Supreme Court have
concluded that [warrantless and suspicionless parole] searches are reasonable, so
long as the parolee's status is known to the officer and the search is not arbitrary,
capricious, or harassing"].)

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         The defendant in Jones was subject to search and seizure without consent
pursuant to a condition of PRCS, which "is similar to parole." (People v. Jones,
supra, 231 Cal.App.4th at p. 1266.) In upholding the warrantless blood draw in
Jones, the court declared, "Far from being arbitrary or even absent reasonable
suspicion, the search here was conducted on unquestioned probable cause to believe
that Jones had been involved in an accident causing injury while intoxicated." (Id., at
p. 1267.)
         Appellant does not dispute the holding of Jones. His sole contention on
appeal is that his blood draw "was arbitrary, capricious, and harassing" because
"[t]here was absolutely no evidence presented . . . to support the officer's belief that
Appellant was the driver of the vehicle." Appellant notes that he is six feet tall, but
the driver's seat was positioned for a person of short stature. Furthermore, Lopez said
that she had been driving the Mustang at the time of the collision. Appellant argues:
"Unlike Jones, there was no evidence presented for the officer to reasonably suspect
that Appellant was the driver[;] therefore, there was no legal purpose for the blood
draw."
         Appellant's warrantless blood draw was not arbitrary, capricious, or harassing.
Officer Tejeda had reason to believe that Lopez was covering up for appellant when
she claimed to be the driver of the Mustang. Lopez told Tejeda that she did not know
appellant, but appellant said that Lopez was his girlfriend. Appellant declared that a
friend in another vehicle had "dropped him off and left the collision scene." But this
explanation for appellant's presence was unconvincing. Appellant refused to disclose
the friend's name to Tejeda. Moreover, because appellant and Lopez needed help, it
is unlikely that a friend would have abandoned them. It was 2:00 in the morning, and
they were unable to drive away because a utility pole had fallen on the Mustang and
the front airbags had deployed. Finally, a Blackberry phone on the driver's side
floorboard of the Mustang appeared to match an empty phone case that was strapped



                                            4
to appellant's belt. The evidence therefore supported a reasonable inference that
appellant was the driver of the Mustang.
                                     Disposition
      The judgment is affirmed.
      NOT TO BE PUBLISHED.



                                           YEGAN, J.


We concur:


             GILBERT, P.J.



             PERREN, J.




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                                Nancy Ayers, Judge

                          Superior Court County of Ventura

                        ______________________________


             Angelina Lane, under appointment by the Court of Appeal, for
Deendant and Appellant.


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Jason C.
Tran, Supervising Deputy Attorney General, Taylor Nguyen, Deputy Attorney
General, for Plaintiff and Respondent.




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