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SUPERIOR COURT OF CALIFORNIA
COUNTY OF FRESNO FILE
APPELLATE DIVISION NOV 2 2 2021
SUPERIOR
BY.
AYE ecg
TY
THE PEOPLE OF THE STATE OF ) Case No. 0002983
CALIFORNIA, )
) (Trial Court Case No.
Plaintiff and Respondent, ) M20919773)
Vv
DESMES CASANOVA MARTINEZ,
Defendant and Appellant.
APPELLANT’S OPENING BRIEF
APPEAL FROM THE JUDGMENT OF THE
FRESNO COUNTY SUPERIOR COURT
HONORABLE LEANNE L. LE MON, COMMISSIONER PRESIDING
Frederick A. Hurst
State Bar No.: 133248
Post Office Box 620362
Las Vegas, Nevada 89162
(818) 400-0891
Attorney for Appellant,
Desmes Casanova Martinez
TABLE OF CONTENTS
STATEMENT OF ISSUES PRESENTED
STATEMENT OF THE CASE
STATEMENT OF FACTS
ARGUMENT 10
1. THE TRIAL COURT ERRED BECAUSE IT DENIED 10
APPELLANT’S MOTION TO SUPPRESS EVIDENCE
PURSUANT TO PENAL CODE SECTION 1538.5
A. STANDARD OF REVIEW 10
B. APPELLANT DID NOT CONSENT TO THE BLOOD 1
TEST
C. IF THIS COURT FINDS THAT APPELLANT 14
CONSENTED TO THE BLOOD TEST, THAT CONSENT
WAS INVALID BECAUSE OFFICER HOWARD DID NOT
GIVE ADEQUATE ADMONITIONS TO APPELLANT
D. OFFICER HOWARD DID NOT HAVE PROBABLE 19
CAUSE TO ARREST APPELLANT FOR DRIVING
UNDER THE INFLUENCE OF MARIJUANA
E. APPELLANT’S CONVICTION OF VIOLATION OF 23
VEHICLE CODE SECTION 23152(F) SHOULD BE
REVERSED BECAUSE THE BLOOD TEST RESULTS
WERE THE ONLY EVIDENCE WHICH SHOWS THAT
HE WAS UNDER THE INFLUENCE OF MARIUANA
WHEN HE STOPPED BY OFFICER PATTERSON
CONCLUSION 24
TABLE OF AUTHORITIES
Page
Cases
Bumper v. North Carolina (1968) 391 U.S. 543 16,18
Dunaway v. New York (1979) 442 U.S. 200 19
Florida v. Royer (1983) 460 U.S. 491 15
Illinois v. Gates (1983) 462 U.S. 213 19,20
Kaupp v. Texas (2003) 538 U.S. 626 19
Mapp v. Ohio (1961) 367 U.S. 643 10
Maryland v. Pringle (2003) 540 U.S. 366 20
McDonnell vy. Comm’r of Pub. Safety, 473 N.W.2d 848 (Minn.1991) 18
People v. Balov (2018) 23 Cal.App.5" 696 16
People v. Boyer (2006) 38 Cal.4" 412 15
People v. Enriquez (1996) 42 Cal.App.4" 661 20
People v. Gutierrez (2019) 33 Cal.App.5" Supp. 11 14,15
People v. Harris (2015) 234 Cal.App.4" 671 16,17,18
People v. Ibarra (1980) 114 Cal.App.3d 60 16
People v. Ledesma (1987) 43 Cal.3d 171 15
People vy, Leyba (1981) 9 Cal.3d 591 1
People v. Loewen (1983) 35 Cal.3d 117 11
People v. Mason (2016) 8 Cal.App.5" Supp. 11 12,13
People v. Medina (2003) 110 Cal.App.4" 171 24
People v. Monterroso (2004) 34 Cal.4" 743 15
People v. Sedillo (1982) 135 Cal.App.3d 616 10
People v. Torres (2009) 173 Cal. App.4" 977 22
People v. Weathington (1991) 231 Cal.App.3d 69 20
People v. West (1970) 3 Cal.3d 595
People v. Wilkins (1986) 186 Cal.App.3d 804 10,11
People v. Williams (1988) 45 Cal.3d 1268 i
People v. Williams (1999) 20 Cal.4 119 10
People v. Zamudio (2008) 43 Cal.4" 327 16
Schneckloth v. Bustamante (1973) 412 U.S. 218 13
South Dakota v. Neville, 103 S.Ct 916 (1983) 18
State v. Brooks, 838 N.W.2d 563 (Minn.2013) 18,19
State v. Hanley, 363 N.W.2d 735 (Minn.1985) 19
State v. Harris, 590 N.W.2d 90 (Minn.1999) 18,19
State v. Moore (2013) 318 P.3d 1133 17,18
Wong Sun v. United States (1963) 371 U.S. 371 23
Statutes
Evidence Code section 115 10
Government Code section 70373(a)
Harbors and Navigation Code section 655(b) 14
14
Harbors and Navigation Code section 655(c)
Penal Code section 1202.4
Penal Code section 1465.8(a)(1)
2,4,10
Penal Code section 1538.5
2
Vehicle Code section 12500
14
Vehicle Code section 23152
22
Vehicle Code section 23152(a)
Vehicle Code section 23152(f} 2,20,23,24
Vehicle Code section 23153 14
Vehicle Code section 23593(a) 3
Vehicle Code section 23612 14
Vehicle Code section 23612(aX1)(D)
13,17
Vehicle Code section 23612(a)(4) 13
Vehicle Code section 23645
Vehicle Code section 23649
Vehicle Code section 24252
Other authority
California Constitution, article I, section 13 10
CALCRIM No. 2110 20
United States Constitution, Fifth Amendment 18
United States Constitution, Fourth Amendment 10,17
ferFREDERICK A. HURST, ESQ.
State Bar No. 133248
P.O. Box 620362
Las Vegas, Nevada 89162
Telephone: (818) 400-0891
Fax: (702) 221-8306
E-mail: fredhurst@aol.com
Attorney for Appellant, Desmes Casanova Martinez
SUPERIOR COURT OF CALIFORNIA
COUNTY OF FRESNO
APPELLATE DIVISION
THE PEOPLE OF THE STATE OF ) Case No. 0002983
CALIFORNIA, )
) (Trial Court Case No.
Plaintiff and Respondent, ) M20919773)
)
Vv. } APPELLANT’S OPENING
) BRIEF
DESMES CASANOVA MARTINEZ, )
)
Defendant and Appellant. )
)
STATEMENT OF ISSUES PRESENTED
1. Whether the trial court erred because it denied appellant’s motion to suppress
evidence.
2, Whether appellant consented to take the blood test.
3. Whether Officer Howard gave adequate admonitions to appellant regarding the
blood test.
4. Whether Officer Howard had probabie cause to arrest appellant for driving
under the influence of marijuana.
5. Whether appeliant’s conviction of violation of Vehicle Code section 23152(f)
should be reversed because the blood test results were the only evidence which
shows that he was under the influence of marijuana when he was stopped by
Officer Patterson.
STATEMENT OF THE CASE
By Misdemeanor Complaint filed on July 31, 2020, Appellant, Desmes
Casanova Martinez, was charged with the following offenses:
Count 1, Misdemeanor Driving Under the Influence of a Drug, a
Misdemeanor, a violation of Vehicle Code section 23152(f).
Count 2, Unlicensed Driver, a violation of Vehicle Code section 12500.
(CT “1. Misdemeanor Complaint filed 07/31/2020”) !
' The Clerk’s Transcript consists of two transcripts, the original Clerk’s Transcript
and a Supplemental Clerk’s Transcript.
The Clerk’s Transcript is referred to as “CT __” and includes the number and
title of the document referenced as stated in the “RECEIPT FOR Completed Record on
Appeal,”
The Supplemental Clerk’s Transcript was added to the record pursuant to
appellant’s motion to augment the record on appeal. The Supplemental Clerk’s
Transcript contains “People’s Opposition to Defendant’s Motion to Suppress Per PC
1538.5.” The Supplemental Clerk’s Transcript on Appeal is referred to as “Supplemental
CT __” and also includes the title of the document referenced.
On July 29, 2021, the trial court denied appellant’s motion to suppress
evidence. (RT 13:3)?
On July 29, 2021, appellant withdrew his not guilty plea and pled nolo
contendere to Count 1. Appellant was advised pursuant to Vehicle Code section
23593(a) that he could be prosecuted for murder if he was involved in a vehicle
accident while under the influence and another individual died in the accident.
Appellant signed the plea form and the trial court found that it was knowingly,
intelligently and voluntarily made and the plea was supported by a factual basis
pursuant to People v. West (1970) 3 Cal.3d 595. (RT 13:3, RT 14:0-1; CT “i6.
Minute Order dated 7/29/2021”).
The trial court suspended imposition of sentence and placed appellant on
conditional probation on the terms and conditions that that he obey all laws;
submit his person and property to search if driving a car; not drive without a valid
California driver’s license and valid liability insurance; not drive with any
measurable amount of alcohol in his system; submit to an alcohol or drug test
upon request by any law enforcement officer; attend and complete the SB 38 18-
month alcohol program; install an ignition interlock device in his vehicle; serve
180 days in Fresno County Jail, with 176 days suspended and 1 day credit, to be
completed in the Adult Work Offender Program; pay a fine of $424.00; pay a
2 The Reporter’s Transcript consists of audiotapes for the dates of June 24, 2021
and July 29, 2021. The audiotape for the date of June 24, 2021 is not referred
to in this
brief. The audiotape for the date of July 29, 2021 is referred to as “RT ” and tists the
track number of the audiotape and the applicable minute.
3
probation fine of $150.00; pay a probation revocation fine of $150.00, stayed
pending successful completion of probation, pursuant to Penal Code section
1202.4; and pay an alcohol abuse education fee of $50.00 pursuant to Vehicle
Code section 23645.
The trial court ordered, not as conditions of probation, that appellant pay a
court operations assessment of $40.00 pursuant to Penal Code section
1465.8(a)(1); pay a court facilities assessment of $30.00 pursuant to Government
Code section 70373(a); and pay an alcohol assessment fee of $100.00 pursuant to
Vehicle Code section 23649.
The court set the matter for a review hearing on January 30, 2023, and
stated that it would consider terminating appellant’s probation on that date if he
provided proof that he was in compliance with the terms and conditions of his
probation. (RT 13:4, RT 14:2-4; RT 15:0; CT “16. Minute Order dated
7/29/2021”).
On August 27, 2021, appellant filed timely Notice of Appeal. (CT “17.
CR-132 Notice of Appeal filed 08/27/2021”).
STATEMENT OF FACTS
The prosecution casi
At the hearing on appeliant’s motion to suppress evidence pursuant to Penal
Code section 1538.5, Brian Patterson, police officer with the city of Fresno,
testified that he had been a police officer for six years. (RT 1:0-1). He had
received training at the six-month police academy, including training on vehicle
4
code violations and driving under the influence investigations involving drugs and
alcohol. (RT 1:2-3).
Officer Patterson had completed many post-academy courses concerning
impaired driving investigations and was certified as a drug recognition expert. (RT
1:3, RT 2:0). He had arrested over 500 individuals in connection with driving
under the influence investigations. (RT 2:0).
On May 23, 2020, Officer Patterson was on motorcycle patrol, working
with his partner, Officer Ames. (RT 2:0). Officer Patterson was traveling
westbound on Belmont and observed a silver 500 Ford stopped at the stoplight at
Blackstone. (RT 2:0-1). He observed that a brake light on the Ford was not
operating, which was a violation of Vehicle Code section 24252, and conducted a
traffic stop. (RT 2:1-2). He did not observe the driver drive in an impaired manner
or violate any vehicle code section. (RT 2:4). He performed a traffic stop;
contacted appellant, the driver; and observed a considerable amount of marijuana
smoke in the interior of the Ford. (RT 2:1-3).
Appeliant admitted he had been smoking marijuana just prior to the traffic
stop. (RT 2:1,3). He had red, watery eyes and was slow to answer Officer
Patterson’s questions. (RT 2:2). Officer Patterson asked him to exit his vehicle.
(RT 2:3).
Craig Howard, police officer with the city of Fresno, testified that he had
been a police officer for seventeen years. (RT 3:1). He successfully completed the
six-month police academy training program and had received additional training
5
on driving under the influence investigations involving drugs and alcohol. (RT
3:1-2). He completed a 72-hour class on drug recognition. (RT 3:2). He was also
a drug recognition instructor and had completed additional courses on drug
recognition. (RT 3:2-3). He had conducted approximately 3,000 driving under the
influence investigations and arrested approximately 2,000 individuals for driving
under the influence. (RT 3:3).
On May 23, 2020, at approximately 8:57 p.m., Officer Howard was on
motorcycle patrol in Fresno. (RT 3:4). Officer Patterson requested that he respond
to the area of Belmont and Calaveras and he drove there. (RT 3:4).
Officer Patterson explained to Officer Howard that he had stopped
appellant for the brake light violation and noticed a strong odor of marijuana in his
vehicle. (RT 3:4). Officer Patterson requested that Officer Howard evaluate
appellant for being under the influence of marijuana. (RT 3:4). Officer Howard
interviewed appeliant and observed that he had red, watery eyes, a strong odor of
marijuana, and slow speech. (RT 4:0-1).
Appellant said he had not consumed any alcohol, but had consumed
marijuana approximately fifteen to twenty minutes before the traffic stop. (RT
4:2). He said he smoked marijuana fifty to sixty times per week. (RT 4:2).
Officer Howard requested that he perform some field sobriety tests. (RT 4:2).
Officer Howard administered the nystagmus test to appellant, whereby he
had appellant visually track his finger in order to determine if appellant’s eyeballs
tracked smoothly or bounced. (RT 4:3-4). Appellant did not exhibit any
6
nystagmus but did have a lack of convergence, i.e., an inability to cross his eyes.
(RT 4:4, RT 5:1). This indicated to Officer Howard that appellant might be under
the influence of marijuana but not under the influence of alcohol. (RT 5:0-1).
Officer Howard administered the Romberg balance test to appellant,
whereby he had him tilt his head back, close his eyes, and count silently for thirty
seconds. (RT 5:1-2). Officer Howard testified that any deviation of five seconds
over or under the thirty seconds might indicate that appellant was impaired. (RT
5:2). Appellant had approximately two inches of sway and estimated the thirty
seconds in twenty-five seconds. (RT 5:3).
Officer Howard administered the walk-and-turn test to appellant, whereby
he had him look at his feet with his hands to his side; walk heel-to-toe nine steps
forward; and turn around and walk back in the same manner. (RT 5:4). Appellant
stepped outward while being instructed on the test; stepped forward ten steps
instead of nine, and stepped off the imaginary line; tuned incorrectly; and stepped
off the imaginary line when he turned and walked back. (RT 6:0-1). Appellant’s
performance on the test was consistent with an individual who might be under the
influence of marijuana. (RT 6:1).
Officer Howard administered the one-leg-stand test to appellant, whereby
he had appellant stand with his feet together and both hands to his side while he
gave instructions; pick one foot up approximately six inches above the ground;
and count out loud one thousand one, one thousand two, etc., until told to stop.
(RT 6:1). Appellant had a sway of approximately two inches; and counted to 29
when he was ordered to stop at thirty seconds. (RT 6:2).
Officer Howard administered the finger-to-nose test to appellant, whereby
he had appellant stand with his feet together and both hands to his side while he
gave instructions; and tilt his head back. (RT 6:3). Appellant attempted to touch
his nose, but missed the tip of his nose on three of the six attempts. (RT 6:4).
Appellant’s performance on the test was consistent with an individual who might
be under the influence of marijuana. (RT 6:4).
Officer Howard checked appellant’s pulse to determine his heart rate. (RT
6:4). His pulse rate was 126 heartbeats per minute at the beginning of the tests
and 120 heartbeats per minute at the end of the tests. (RT 7:0). This indicated that
he might be under the influence of marijuana because Officer Howard was aware
that marijuana consumption elevated an individual’s pulse rate. (RT 7:0).
Officer Howard arrested appellant for driving under the influence of a
controlled substance and placed him in handcuffs. (RT 7:0-1). He toid appellant
he was required under California law to perform a chemical test because he
believed appellant was under the influence. (RT 7:1). He requested that appellant
perform a blood test. (RT 7:1). Appellant agreed to submit to the blood test. (RT
72).
Officer Howard transported appellant to the Fresno Police Department
facility where a phlebotomist was available to administer the blood test. (RT 7:2).
Appellant did not indicate at any time that he would refuse to take the blood test.
(RT 7:2).
ARGUMENT
I
THE TRIAL COURT ERRED BECAUSE IT DENIED
APPELLANT’S MOTION TO SUPPRESS EVIDENCE
PURSUANT TO PENAL CODE SECTION 1538.5
A. STANDARD OF REVIEW
The Fourth Amendment to the Constitution of the United States, adopted
nearly in its entirety by California, provides:
“The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall
not be violated, and no warrant shall issue, but upon probable cause,
supported by oath or affirmation, and particularly describing the
place to be searched and the persons or things to be seized.” (See
also California Constitution, article I, section 13).
It is well settled in California when the question of the legality of an arrest
or a search or seizure is raised, the defendant makes a prima facie case of illegality
where the arrest search or seizure was accomplished without a warrant. The
burden, therefore, rests upon the prosecution to show proper justification for the
arrest search or seizure. (People v. Sedillo (1982) 135 Cal.App.3d 616, 623).
Evidence obtained by law enforcement officers violative of the Fourth
Amendment is inadmissible in criminal prosecutions. (Mapp v. Ohio (1961) 367
U.S. 643, 655; People v. Williams (1999) 20 Cal.4 119, 125.)
The prosecution has the burden of proving by a preponderance of the
evidence the validity of a warrantless search. (Evidence Code section 115; People
10
v. Wilkins (1986) 186 Cal. App.3d 804, 809). In reviewing suppression motion
rulings, the appellate court decides whether a search was constitutionally
reasonable. (People v. Leyba (1981) 9 Cal.3d 591, 596).
On appeal, the trial court’s determination of facts is reviewed for
substantial evidence. (People v. Loewen (1983) 35 Cal.3d 117, 123). Because
selecting the proper application rule involves a pure question of law, it is subject
to independent review. Whether the rule was properly applied to the facts is a
mixed fact/law question. (People v. Williams (1988) 45 Cal.3d 1268, 1301).
Despite its hybrid characteristics, this final determination of whether the
challenged police conduct was constitutionally reasonable also warrants
independent review. (People v. Loewen, supra, 35 Cal.3d 117, 123).
B. APPELLANT DID NOT CONSENT TO TAKE THE BLOOD TEST
The test results which determined the amount of marijuana in appellant’s
system should have been suppressed because appetlant did not consent to take the
blood test. Defendant’s Exhibit #A1 states in relevant part:
“Speaker 1 (Officer Howard): . . . Right now you’re going to
be placed under arrest for driving a motor vehicle under the
influence of marijuana, okay? This is what we’re gonna do, man.
We’re gonna go to the, to the traffic office and I’m gonna do a more
thorough drug evaluation on you there, okay? Um, because you are
under arrest for driving a motor vehicle under the influence of a
drug, you’re required by state law to submit to a chemical test.
Because I believe you’re under the influence of a drug, that’s gonna
be a blood test. You willing to submit to a drug test?
Mr. Martinez: (inaudible).
Speaker 1: (Huh).
Mr. Martinez: inaudible.” (CT “15. Defendant’s Exhibit #A1
dated 07/29/2021”)
i
Defendant’s Exhibit #A1 originally stated “No.” However, the trial court
crossed out the word “No” and inserted the word “inaudible” on the transcript.
Appellant also introduced Defendant’s Exhibit #A, the videotape of the
transcript. This video was not part of the original record on appeal. It was added
to the record on appeal pursuant to appellant’s Application for an Order Allowing
Appellate Division to Consider Exhibit on Appeal. The Appellate Division
granted the Application on October 22, 2021.
Defendant’s Exhibit #A shows that the transcript was correct. Officer
Howard asked appellant at minute 14-15 on the video if he would submit to a
blood test. Appellant did not affirmatively answer.
In People v. Mason (2016) 8 Cal.App.5" Supp. 11, the court held that an
evidentiary test to determine an individual’s alcohol level is improper if the
defendant does not give actual or implied consent. (Ibid. at pp. Supp. 20-21).
In Mason, a police officer observed the defendant driving in the wrong
direction on a one-way street. The officer conducted a traffic stop and
subsequently arrested her for suspected driving under the influence of alcohol.
The defendant refused to take a preliminary alcohol screening (PAS) test. The
officer transported her to a law enforcement facility.
The officer told the defendant that she had to take a blood or breath test and
“told her she was required to give one or the other.” (Ibid. at p. 14.) He said that
“(declining the (chemical) test is an option” (Ibid.). He did not explain the
12
consequences for failing to provide a sample. The defendant chose to take a blood
test.
The reviewing court held that this did not constitute valid consent. The
court stated:
“The defendant need not be advised of the right to refuse as a
prerequisite to a finding of voluntariness. But if so advised, this fact
supports that a search was in fact voluntary as a product of free
choice and not coercion. (Schneckloth, supra,412 U.S. at pp. 226-
227, 93 S.Ct. 2041.) The question of consent most commonly turns
on whether the person searched in fact manifested consent for it and
whether, in view of ‘the totality of all the circumstances,’ that
consent ‘was in fact “voluntary” or was the product of duress or
coercion, express or implied.’ (Schneckloth, supra, 412 U.S. at p.
227, 93 S.Ct. 2041, italics added.)” (Ibid. at pp. 20-21.)
The Mason court further stated:
“(Officer Stromska’s) statement was misleading. For
constitutional purposes, notwithstanding the consent she may have
been ‘deemed’ to have given under the implied consent law --
implied in law as distinguished from actual consent -- Mason still
had a Fourth Amendment right to refuse to submit to chemical
testing and bear the consequences of that choice. Under the implied
consent law, those consequences include license suspension or
revocation, payment of a fine, mandatory imprisonment if convicted
of driving under the influence, and use of the refusal against the
person in a court of law. (Vehicle Code sections 23612 (a)(1)(D) and
(a)(4).) And Officer Stromska was obligated by statute to inform her
of those consequences, which, as we will get to, are an integral part
of the full implied consent admonition and go hand in hand with the
‘requirement’ to submit to a chemical test or refuse and bear the
consequences.” (Ibid. at p. 22).
Therefore, since appellant did not consent to the blood test, the results of
the test should be suppressed.
13
C. IF THIS COURT FINDS THAT APPELLANT CONSENTED TO THE
BLOOD TEST, THAT CONSENT WAS INVALID BECAUSE OFFICER
HOWARD DID NOT GIVE ADEQUATE ADMONITIONS TO APPELLANT
Even if appellant did consent to the administration of the blood test (an
assertion which appellant denies, as stated above), any consent was invalid
because Officer Howard did not properly admonish appellant concerning the test
Vehicle Code section 23612. It states in relevant part:
“(D) The person shall be told that his or her failure to submit
to, or the failure to complete, the required breath or urine testing will
result in a fine and mandatory imprisonment if the person is
convicted of a violation of Section 23152 or 23153. The person
shall also be told that his or her failure to submit to, or the failure to
complete, the required breath, blood, or urine tests will result in the
administrative suspension by the department of the person’s
privilege to operate a motor vehicle for a period of one year.
(2) (A) If the person is lawfully arrested for driving under the
influence of an alcoholic beverage, the person has the choice of
whether the test shall be of his or her blood or breath and the officer
shall advise the person that he or she has that choice.”
In People v. Gutierrez (2019) 33 Cal.App.5™ Supp. 11, the defendant was
arrested for violation of Harbors and Navigation Code section 655(b), operating a
vessel while under the influence of alcohol or drugs; and violation of Harbors and
Navigation Code section 655(c), operating a vessel with a 0.08% or greater blood-
alcohol concentration.
Deputies administered field sobriety tests to the defendant and arrested him
for boating under the influence. A deputy told him he had “a choice of a blood or
breath test,” but “did not advise him that he had the right to refuse to submit to
14
either test.” (Ibid. at p. Supp. 14.) The defendant chose to take a blood test.
Medical staff administered a blood test to him and obtained a blood sample.
The trial court denied the defendant’s motion to suppress the results of the
blood test. It stated: “(U)nder the totality of the circumstances, (Mr. Gutierrez's
consent) . . . was not simply an acquiescence to the police or a coercion or
anything like that. . .. (1)t was valid consent.” (Ibid.)
The Appellate Division reversed. It held that the defendant’s consent to the
blood test was invalid and stated:
“To be effective, consent must be voluntary. (Citations.)’
{People v. Ledesma (1987) 43 Cal.3d 171, 233.) “(W)here the
validity of a search rests on consent, the State has the burden of
proving that the necessary consent was obtained and that it was
freely and voluntarily given, a burden that is not satisfied by
showing a mere submission to a claim of lawful authority.
(Citations.)’ (Florida v. Royer (1983) 460 U.S. 491, 497.) ‘The
voluntariness of consent is a question of fact to be determined from
the totality of circumstances. (Citations.) If the validity of a consent
is challenged, the prosecution must prove it was freely and
voluntarily given - i.e., “that it was (not) coerced by threats or force,
or granted only in submission to a claim of lawful authority.”
(Citations.)’ (People v. Boyer (2006) 38 Cal.4"" 412, 445-446.)”
(Ibid. at p. Supp. 17.)
Based on the on the above law, the Gutierrez court found that the
defendant’s consent to the blood draw was not voluntary. It contrasted the police
conduct with police conduct in People v. Monterroso (2004) 34 Cal.4" 743 and
stated:
“In People v. Monterroso (2004) 34 Cal.4* 743, the
defendant was arrested and in handcuffs at the time police asked him
to consent to a search, but police did not make any false or
misleading statements to procure the defendant’s consent. (See
15
also People v. Ibarra (1980) 114 Cal.App.3d 60, 65 (defendant did
not contend that police had made any false or misleading statements
to procure his consent); People v. Balov (2018) 23 Cal.App.5" 696,
702-703, review granted Sept. 12, 2018, $249708 (officer correctly
told defendant under implied consent law that he had a choice of
blood or breath test, he just omitted a recitation of the consequences
if defendant refused; court held advisement merely incomplete not
false.) Here, defendant was told he had to take a blood or breath
test. This was a false statement that, when coupled with other
circumstances, compels a finding of involuntariness.” (Ibid. at Supp.
19.)
If “the prosecution relies on consent to justify a warrantless search or
seizure, it bears the burden of proving that the defendant’s manifestation of
consent was the product of his free will and not a mere submission to an express or
implied assertion of authority.” (People v. Zamudio (2008) 43 Cal.4“ 327, 341.) If
the officer obtains the consent based on his or false statements to the defendant,
any consent given is not free and voluntary. (See Bumper v. North Carolina
(1968) 391 U.S. 543, 548-549, wherein the police improperly obtained consent to
conduct a search by falsely telling the defendant’s grandmother that they already
had a warrant to conduct a search.)
Here, Officer Howard told appellant, “what we’re gonna do . . . . because
you are under arrest for driving a motor vehicle under the influence of a drug,
you’re required by state law to submit to a chemical test.” (CT “15. Defendant’s
Exhibit #A1 dated 07/29/2021”).
In People v. Harris (2015) 234 Cal.App.4" 671, an officer told the
defendant that “his driver’s license would be suspended if he refused to submit to
a chemical test, and that his refusal could be used against him in court.” (Ibid. at p.
16
678.) The defendant argued that the officer misinformed him because the officer
admonished him that he “was required to submit to a chemical test, and that a
blood test was ‘the only option’ available.” (Ibid. at p. 691.)
The defendant also claimed that the officer misinformed him because he
admonished him “if he refused to submit to a blood test, his license would be
suspended ‘for the next two to three years,’” (Ibid.) The defendant argued that
“this was false because refusing to submit to a chemical test results in a one-year
suspension for a first-time DUI offense. (Veh. Code, § 23612, subd. (a)(1)(D).”
(Ibid.)
The defendant further asserted that “Deputy Robinson’s admonition under
the implied consent law was false, and . . . valid Fourth Amendment consent may
not be obtained if the police lie about the implied consent law.” (Ibid.)
Harris referred to State v. Moore (2013) 318 P.3d 1133 and stated:
“Similarly, in Moore, . . . the Oregon Supreme Court held that
an advisory read to a motorist pursuant to the state’s implied consent
law does not render involuntary the motorist’s submission to a
chemical test. ‘(It is difficult to see why the disclosure of accurate
information about a particular penalty that may be imposed -- if it is
permissible for the state to impose that penalty -- could be
unconstitutionally coercive. Rather, advising a defendant of the
lawful consequences that may flow from his or her decision to
engage in a certain behavior ensures that that defendant makes an
informed choice whether to engage in that behavior or not. Indeed,
the failure to disclose accurate information regarding the potential
legal consequences of certain behavior would seem to be a more
logical basis for a defendant to assert that his or her decision to
engage in that behavior was coerced and involuntary.’ (318 P.3d at
p. 1138.)” (Ibid. at p. 689.)
17
The admonitions given by the officer in Harris and Moore were adequate if
not totally accurate or complete. This case is distinguishable because Officer
Howard did not inform appellant that he had the right to refuse to take the test.
State v. Brooks, 838 N.W.2d 563 (Minn.2013) is instructive. In Brooks, an
officer told a suspected intoxicated driver that he was required by law to take an
evidentiary test and that failure to take the test was a crime. The Brooks court
stated:
“Neville (South Dakota v. Neville, 103 S.Ct 916 (1983) and
McDonnell (McDonnell v. Comm’r of Pub. Safety, 473 N.W.2d 848
(Minn. 1991)) examine the issue of coercion within the context of the
Fifth Amendment privilege against self-incrimination. But the
question in both cases was whether the existence of a consequence
for refusing to take a chemical test rendered the driver’s choice
involuntary... We address the same question in the context
presented here when we examine whether Brooks’s consent was
voluntary, as the State argues, or whether it was coerced, as Brooks
argues. See Harris, 590 N.W.2d at 102 (Minn.1999) (explaining
that consent to search becomes involuntary when the encounter with
police becomes ‘coercive’). Based on the analysis in Neville and
McDonnell, a driver’s decision to agree to take a test is not coerced
simply because Minnesota has attached the penalty of making it a
crime to refuse the test.” Ibid. at p. 570.)
However, the Brooks court also stated:
“But, Brooks argues, the Supreme Court’s decision
in Bumper v. North Carolina requires us to conclude that he did not
consent to the searches. . . 88 S.Ct. 1788 (1968). We are not
persuaded. In Bumper, police sought to justify their search of a
house based on the owner’s consent, contending that she consented
to the search by saying ‘(G)o ahead’ after police told her they had a
warrant. fd. at... 88 S.Ct. at 1790. The Court held that this sort of
submission to authority did not constitute consent. Jd. at... 88
S.Ct. at 1791-92. The Court concluded that when a police officer
claims authority to search a house under a warrant, ‘he announces in
effect that the occupant has no right to resist the search. The
18
situation is instinct with coercion -- albeit colorably lawful coercion.
Where there is coercion there cannot be consent.’ Jd. at... 88 S.Ct.
at 1792.” (Ibid. at p. 571.)
Brooks further stated:
“In addition, by reading Brooks the implied consent advisory
police made clear to him that he had a choice of whether to submit to
testing. While an individual does not necessarily need to know he or
she has a right to refuse a search for consent to be voluntary, the fact
that someone submits to the search after being told that he or she can
say no to the search supports a finding of voluntariness. See Harris
590 N.W.2d at 103 (finding that a defendant consented to a search
after police told him that ‘any questioning or searching would be
voluntary’); see also State v. Hanley, 363 N.W.2d 735, 739
(Minn.1985).” (Ibid. at p. 572).
Here, Officer Howard’s statement to appellant that he was required by law
to take the blood test, but not informing him that he could refuse to take the test,
was misleading. Therefore, assuming appellant did consent to take the test, the
consent was invalid. The results of the blood test should be suppressed.
D. OFFICER HOWARD DID NOT HAVE PROBABLE CAUSE TO ARREST
APPELLANT FOR DRIVING UNDER THE INFLUENCE OF MARIJUANA
An arrest must be supported by probable cause. (Kaupp v. Texas (2003) 538
US. 626, 630.) Probable cause exists when the facts known to the arresting
officer would persuade someone of “reasonable caution” that the person to be
arrested has committed a crime. (Dunaway v. New York (1979) 442 U.S. 200, 208,
fn. 9.)
“(P)robable cause is a fluid concept -- turning on the assessment of
probabilities in particular factual contexts.” (Illinois v. Gates (1983) 462 U.S. 213,
19
232.) It is incapable of precise definition. (Maryland v. Pringle (2003) 540 U.S.
366, 371). The substance of all the definitions of probable cause is a “reasonable
ground for belief of guilt” and that belief must be “particularized with respect to
the person to be . . . seized.” (Ibid.)
Vehicle Code section 23152(f) states: “It is unlawful for a person who is
under the influence of any drug to drive a vehicle.” A person is under the
influence if, as a result of consuming a drug, “his or her mental or physical
abilities are so impaired that he or she is no longer able to drive a vehicle with the
caution of a sober person, using ordinary care, under the circumstances.”
(CALCRIM No. 2110; see also People v. Enriquez (1996) 42 Cal.App.4" 661,
665; People v. Weathington (1991) 231 Cal_App.3d 69, 80-81.)
Here, Officer Howard did not have probable cause to arrest appellant. No
evidence was produced to show that appellant was under the influence pursuant to
CALCRIM No. 2110.
Officer Howard testified that he believed he had probable cause to arrest
appellant because of the marijuana smoke in appellant’s vehicle and appeliant’s
performance on the field sobriety tests. This is not true.
Appellant’s conduct as shown on Defendant’s Exhibit #A shows that he
‘was not impaired.
Officer Howard testified that appellant had red and watery eyes and slow
speech. (RT 4:0-1). However, Defendant’s Exhibit #A (Minutes 1-5) shows that
appellant was talking in a normal manner and had no difficulty responding to
20
Officer Howard’s questions. Furthermore, he had no visible coordination or
balance problems. He told Officer Howard he did not feel any of the effects of the
marijuana because he had a high tolerance. (Minute 5).
Officer Howard testified that appellant had convergence when he tracked
appellant’s eyes. (RT 4:4, RT 5:1). However, a review of Defendant’s Exhibit #A
shows that appellant’s eyes were totally normal during the test and did not indicate
convergence or impairment in any way. (Minutes 6-7).
Officer Howard testified that appellant had approximately two inches of
sway and estimated thirty seconds in twenty-five seconds on the Romberg test.
(RT 5:3). However, Defendant’s Exhibit #A shows that appellant began the test at
8 minutes, 20 seconds and concluded the test at 8 minutes 47 seconds, for an
estimation of 27 seconds in 30 seconds. This was within the normal range.
Furthermore, his sway was minimal and did not indicate any sign of impairment.
(Minute 8).
Officer Howard testified that appellant stepped forward ten steps instead of
nine and did not walk straight on the walk-and-turn test. (RT 6:1). However,
Defendant’s Exhibit #A shows that appellant performed the test in a normal
manner. (Minute 10). He kept his balance during the test and had no problem
performing the test. The minimal deviations which appeared when he performed
the test were certainly not sufficient to show any level of impairment.
Officer Howard testified that appellant had a two-inch sway on the one-leg-
stand test and counted to 29 when he was ordered to stop at thirty seconds. (RT
21
6:2). Defendant’s Exhibit #A shows that appellant performed the test in a normal
manner without any signs of impairment. (Minute 11).
Officer Howard testified that appellant’s performance on the finger-to-nose
test showed that he was impaired because he missed the tip of his nose on three of
the six attempted touches. (RT 6:4). However, Defendant’s Exhibit #A shows that
this was not true. Appellant touched his nose correctly on all six tests. (Minute
12-13). Furthermore, he understood Officer Howard’s directions perfectly.
When ordered to touch his nose with his right hand a second consecutive time,
obvious attempt to confuse him, he had no problems following the instruction.
Officer Howard testified that appellant’s pulse rate was 120-126 beats per
minute. (RT 7:0). Officer Howard further testified that marijuana consumption
elevated an individual’s pulse rate. (RT 7:0). However, this was not related to
appellant’s alleged level of impairment. Furthermore, no evidence was provided
upon which Officer Howard could base this assumption that appellant was
impaired due to a fast pulse rate.
In People v. Torres (2009) 173 Cal.App.4" 977, an officer followed the
defendant for approximately a half block and observed him run half of his vehicle
past the limit line of a stop sign. The officer conducted a traffic stop and observed
that the defendant was jittery, his face twitched, and he stuttered. He was
sweating, had rigid muscles, could not stand still. and had a chemical odor.
The defendant was convicted of violation of Vehicle Code section
23152(a), driving while under the influence of a drug (methamphetamine).
22
However, the Court of Appeals reversed the conviction on insufficiency of the
evidence grounds. It stated:
“Here, there is substantial evidence Torres was under the
influence of methamphetamine when he was arrested. . . .
However, there is no evidence Torres’s methamphetamine
use actually impaired his driving ability on the night of his arrest.
Both Morales and Savage observed Torres and neither testified he
was driving erratically. Savage pulled over Torres for failing to stop
at the limit line, a common traffic violation that Bawardi testified is
not sufficient to establish a person is under the influence for driving
purposes.” (Ibid. at p. 983.)
Here, appellant did not show any signs of impairment and was observed
driving in a normal and safe manner. Furthermore, as opposed to the defendant in
Torres, appellant did not commit a moving violation. Therefore, it was improper
for Officer Howard to arrest him for violation of Vehicle Code section 23152(f).
The trial court erred when it denied his motion to suppress due to the illegal arrest.
E. APPELLANT’S CONVICTION OF VIOLATION OF VEHICLE CODE
SECTION 23152(F) SHOULD BE REVERSED BECAUSE THE BLOOD TEST
RESULTS WERE THE ONLY EVIDENCE WHICH SHOWS THAT HE WAS
UNDER THE INFLUENCE OF MARIJUANA WHEN HE STOPPED BY
OFFICER PATTERSON
All evidence stemming from the illegally obtained consent to administer the
blood test to appellant (if he even consented at all), and his illegal arrest should
have been suppressed pursuant to the “fruit of the poisonous tree” doctrine
enunciated in Wong Sun v. United States (1963) 371 U.S. 371, 484-488. (See also
23
People v. Medina (2003) 110 Cal.App.4" 171, 178.) Therefore, appellant’s blood
test results should have been suppressed.
The only evidence which shows that appellant was under the influence of
marijuana when he was stopped by Officer Patterson was the blood test results.
Therefore, his conviction of violation of Vehicle Code section 23 152(f) should be
reversed.
CONCLUSION
For the foregoing reasons, appellant’s conviction of violation of Vehicle
Code section 23152(f) should be reversed and his case should be dismissed.
DATED: jj ~/G-s_/
Respectfully submitted,
Lee
24
CERTIFICATION OF WORD COUNT
I, Frederick A. Hurst, hereby certify pursuant to California Rule of Court,
Rule 8.883(b)(1), that the enclosed Appellant’s Opening Brief is produced using
13-point Times New Roman type, and contains 5,837 words.
I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct. Executed this 19th day of November, 2021,
in Las Vegas, Nevada.
Fred ick! furst
PROOF OF SERVICE BY MAIL
I am employed in the County of Clark, State of Nevada, over the age of 18
years, and not a party to the within action or proceeding. My business address is
Post Office Box 620362, Las Vegas, Nevada 89162.
On November 19, 2021, I served the foregoing document, described as
Appellant’s Opening Brief by depositing a true copy thereof, enclosed in a sealed
envelope with postage thereon fully prepaid, in a mailbox maintained by the
government of the United States in Las Vegas, Nevada, and addressed as follows:
Fresno District Attorney
Attention: Amber Knight
2100 Tulare Street,
Fresno, California 93721
Honorable Leanne L. Le Mon
Fresno County Superior Court
1100 Van Ness Avenue
Fresno, California 93724
I declare under penalty of perjury that the foregoing is true and correct.
Executed at Las Vegas, Nevada, on November 19, 202
Tederick A. Hurst
Preview
SUPERIOR COURT OF CALIFORNIA COUNTY OF FRESNO FILE APPELLATE DIVISION NOV 2 2 2021 SUPERIOR BY. AYE ecg TY THE PEOPLE OF THE STATE OF ) Case No. 0002983 CALIFORNIA, ) ) (Trial Court Case No. Plaintiff and Respondent, ) M20919773) Vv DESMES CASANOVA MARTINEZ, Defendant and Appellant. APPELLANT’S OPENING BRIEF APPEAL FROM THE JUDGMENT OF THE FRESNO COUNTY SUPERIOR COURT HONORABLE LEANNE L. LE MON, COMMISSIONER PRESIDING Frederick A. Hurst State Bar No.: 133248 Post Office Box 620362 Las Vegas, Nevada 89162 (818) 400-0891 Attorney for Appellant, Desmes Casanova Martinez TABLE OF CONTENTS STATEMENT OF ISSUES PRESENTED STATEMENT OF THE CASE STATEMENT OF FACTS ARGUMENT 10 1. THE TRIAL COURT ERRED BECAUSE IT DENIED 10 APPELLANT’S MOTION TO SUPPRESS EVIDENCE PURSUANT TO PENAL CODE SECTION 1538.5 A. STANDARD OF REVIEW 10 B. APPELLANT DID NOT CONSENT TO THE BLOOD 1 TEST C. IF THIS COURT FINDS THAT APPELLANT 14 CONSENTED TO THE BLOOD TEST, THAT CONSENT WAS INVALID BECAUSE OFFICER HOWARD DID NOT GIVE ADEQUATE ADMONITIONS TO APPELLANT D. OFFICER HOWARD DID NOT HAVE PROBABLE 19 CAUSE TO ARREST APPELLANT FOR DRIVING UNDER THE INFLUENCE OF MARIJUANA E. APPELLANT’S CONVICTION OF VIOLATION OF 23 VEHICLE CODE SECTION 23152(F) SHOULD BE REVERSED BECAUSE THE BLOOD TEST RESULTS WERE THE ONLY EVIDENCE WHICH SHOWS THAT HE WAS UNDER THE INFLUENCE OF MARIUANA WHEN HE STOPPED BY OFFICER PATTERSON CONCLUSION 24 TABLE OF AUTHORITIES Page Cases Bumper v. North Carolina (1968) 391 U.S. 543 16,18 Dunaway v. New York (1979) 442 U.S. 200 19 Florida v. Royer (1983) 460 U.S. 491 15 Illinois v. Gates (1983) 462 U.S. 213 19,20 Kaupp v. Texas (2003) 538 U.S. 626 19 Mapp v. Ohio (1961) 367 U.S. 643 10 Maryland v. Pringle (2003) 540 U.S. 366 20 McDonnell vy. Comm’r of Pub. Safety, 473 N.W.2d 848 (Minn.1991) 18 People v. Balov (2018) 23 Cal.App.5" 696 16 People v. Boyer (2006) 38 Cal.4" 412 15 People v. Enriquez (1996) 42 Cal.App.4" 661 20 People v. Gutierrez (2019) 33 Cal.App.5" Supp. 11 14,15 People v. Harris (2015) 234 Cal.App.4" 671 16,17,18 People v. Ibarra (1980) 114 Cal.App.3d 60 16 People v. Ledesma (1987) 43 Cal.3d 171 15 People vy, Leyba (1981) 9 Cal.3d 591 1 People v. Loewen (1983) 35 Cal.3d 117 11 People v. Mason (2016) 8 Cal.App.5" Supp. 11 12,13 People v. Medina (2003) 110 Cal.App.4" 171 24 People v. Monterroso (2004) 34 Cal.4" 743 15 People v. Sedillo (1982) 135 Cal.App.3d 616 10 People v. Torres (2009) 173 Cal. App.4" 977 22 People v. Weathington (1991) 231 Cal.App.3d 69 20 People v. West (1970) 3 Cal.3d 595 People v. Wilkins (1986) 186 Cal.App.3d 804 10,11 People v. Williams (1988) 45 Cal.3d 1268 i People v. Williams (1999) 20 Cal.4 119 10 People v. Zamudio (2008) 43 Cal.4" 327 16 Schneckloth v. Bustamante (1973) 412 U.S. 218 13 South Dakota v. Neville, 103 S.Ct 916 (1983) 18 State v. Brooks, 838 N.W.2d 563 (Minn.2013) 18,19 State v. Hanley, 363 N.W.2d 735 (Minn.1985) 19 State v. Harris, 590 N.W.2d 90 (Minn.1999) 18,19 State v. Moore (2013) 318 P.3d 1133 17,18 Wong Sun v. United States (1963) 371 U.S. 371 23 Statutes Evidence Code section 115 10 Government Code section 70373(a) Harbors and Navigation Code section 655(b) 14 14 Harbors and Navigation Code section 655(c) Penal Code section 1202.4 Penal Code section 1465.8(a)(1) 2,4,10 Penal Code section 1538.5 2 Vehicle Code section 12500 14 Vehicle Code section 23152 22 Vehicle Code section 23152(a) Vehicle Code section 23152(f} 2,20,23,24 Vehicle Code section 23153 14 Vehicle Code section 23593(a) 3 Vehicle Code section 23612 14 Vehicle Code section 23612(aX1)(D) 13,17 Vehicle Code section 23612(a)(4) 13 Vehicle Code section 23645 Vehicle Code section 23649 Vehicle Code section 24252 Other authority California Constitution, article I, section 13 10 CALCRIM No. 2110 20 United States Constitution, Fifth Amendment 18 United States Constitution, Fourth Amendment 10,17 ferFREDERICK A. HURST, ESQ. State Bar No. 133248 P.O. Box 620362 Las Vegas, Nevada 89162 Telephone: (818) 400-0891 Fax: (702) 221-8306 E-mail: fredhurst@aol.com Attorney for Appellant, Desmes Casanova Martinez SUPERIOR COURT OF CALIFORNIA COUNTY OF FRESNO APPELLATE DIVISION THE PEOPLE OF THE STATE OF ) Case No. 0002983 CALIFORNIA, ) ) (Trial Court Case No. Plaintiff and Respondent, ) M20919773) ) Vv. } APPELLANT’S OPENING ) BRIEF DESMES CASANOVA MARTINEZ, ) ) Defendant and Appellant. ) ) STATEMENT OF ISSUES PRESENTED 1. Whether the trial court erred because it denied appellant’s motion to suppress evidence. 2, Whether appellant consented to take the blood test. 3. Whether Officer Howard gave adequate admonitions to appellant regarding the blood test. 4. Whether Officer Howard had probabie cause to arrest appellant for driving under the influence of marijuana. 5. Whether appeliant’s conviction of violation of Vehicle Code section 23152(f) should be reversed because the blood test results were the only evidence which shows that he was under the influence of marijuana when he was stopped by Officer Patterson. STATEMENT OF THE CASE By Misdemeanor Complaint filed on July 31, 2020, Appellant, Desmes Casanova Martinez, was charged with the following offenses: Count 1, Misdemeanor Driving Under the Influence of a Drug, a Misdemeanor, a violation of Vehicle Code section 23152(f). Count 2, Unlicensed Driver, a violation of Vehicle Code section 12500. (CT “1. Misdemeanor Complaint filed 07/31/2020”) ! ' The Clerk’s Transcript consists of two transcripts, the original Clerk’s Transcript and a Supplemental Clerk’s Transcript. The Clerk’s Transcript is referred to as “CT __” and includes the number and title of the document referenced as stated in the “RECEIPT FOR Completed Record on Appeal,” The Supplemental Clerk’s Transcript was added to the record pursuant to appellant’s motion to augment the record on appeal. The Supplemental Clerk’s Transcript contains “People’s Opposition to Defendant’s Motion to Suppress Per PC 1538.5.” The Supplemental Clerk’s Transcript on Appeal is referred to as “Supplemental CT __” and also includes the title of the document referenced. On July 29, 2021, the trial court denied appellant’s motion to suppress evidence. (RT 13:3)? On July 29, 2021, appellant withdrew his not guilty plea and pled nolo contendere to Count 1. Appellant was advised pursuant to Vehicle Code section 23593(a) that he could be prosecuted for murder if he was involved in a vehicle accident while under the influence and another individual died in the accident. Appellant signed the plea form and the trial court found that it was knowingly, intelligently and voluntarily made and the plea was supported by a factual basis pursuant to People v. West (1970) 3 Cal.3d 595. (RT 13:3, RT 14:0-1; CT “i6. Minute Order dated 7/29/2021”). The trial court suspended imposition of sentence and placed appellant on conditional probation on the terms and conditions that that he obey all laws; submit his person and property to search if driving a car; not drive without a valid California driver’s license and valid liability insurance; not drive with any measurable amount of alcohol in his system; submit to an alcohol or drug test upon request by any law enforcement officer; attend and complete the SB 38 18- month alcohol program; install an ignition interlock device in his vehicle; serve 180 days in Fresno County Jail, with 176 days suspended and 1 day credit, to be completed in the Adult Work Offender Program; pay a fine of $424.00; pay a 2 The Reporter’s Transcript consists of audiotapes for the dates of June 24, 2021 and July 29, 2021. The audiotape for the date of June 24, 2021 is not referred to in this brief. The audiotape for the date of July 29, 2021 is referred to as “RT ” and tists the track number of the audiotape and the applicable minute. 3 probation fine of $150.00; pay a probation revocation fine of $150.00, stayed pending successful completion of probation, pursuant to Penal Code section 1202.4; and pay an alcohol abuse education fee of $50.00 pursuant to Vehicle Code section 23645. The trial court ordered, not as conditions of probation, that appellant pay a court operations assessment of $40.00 pursuant to Penal Code section 1465.8(a)(1); pay a court facilities assessment of $30.00 pursuant to Government Code section 70373(a); and pay an alcohol assessment fee of $100.00 pursuant to Vehicle Code section 23649. The court set the matter for a review hearing on January 30, 2023, and stated that it would consider terminating appellant’s probation on that date if he provided proof that he was in compliance with the terms and conditions of his probation. (RT 13:4, RT 14:2-4; RT 15:0; CT “16. Minute Order dated 7/29/2021”). On August 27, 2021, appellant filed timely Notice of Appeal. (CT “17. CR-132 Notice of Appeal filed 08/27/2021”). STATEMENT OF FACTS The prosecution casi At the hearing on appeliant’s motion to suppress evidence pursuant to Penal Code section 1538.5, Brian Patterson, police officer with the city of Fresno, testified that he had been a police officer for six years. (RT 1:0-1). He had received training at the six-month police academy, including training on vehicle 4 code violations and driving under the influence investigations involving drugs and alcohol. (RT 1:2-3). Officer Patterson had completed many post-academy courses concerning impaired driving investigations and was certified as a drug recognition expert. (RT 1:3, RT 2:0). He had arrested over 500 individuals in connection with driving under the influence investigations. (RT 2:0). On May 23, 2020, Officer Patterson was on motorcycle patrol, working with his partner, Officer Ames. (RT 2:0). Officer Patterson was traveling westbound on Belmont and observed a silver 500 Ford stopped at the stoplight at Blackstone. (RT 2:0-1). He observed that a brake light on the Ford was not operating, which was a violation of Vehicle Code section 24252, and conducted a traffic stop. (RT 2:1-2). He did not observe the driver drive in an impaired manner or violate any vehicle code section. (RT 2:4). He performed a traffic stop; contacted appellant, the driver; and observed a considerable amount of marijuana smoke in the interior of the Ford. (RT 2:1-3). Appeliant admitted he had been smoking marijuana just prior to the traffic stop. (RT 2:1,3). He had red, watery eyes and was slow to answer Officer Patterson’s questions. (RT 2:2). Officer Patterson asked him to exit his vehicle. (RT 2:3). Craig Howard, police officer with the city of Fresno, testified that he had been a police officer for seventeen years. (RT 3:1). He successfully completed the six-month police academy training program and had received additional training 5 on driving under the influence investigations involving drugs and alcohol. (RT 3:1-2). He completed a 72-hour class on drug recognition. (RT 3:2). He was also a drug recognition instructor and had completed additional courses on drug recognition. (RT 3:2-3). He had conducted approximately 3,000 driving under the influence investigations and arrested approximately 2,000 individuals for driving under the influence. (RT 3:3). On May 23, 2020, at approximately 8:57 p.m., Officer Howard was on motorcycle patrol in Fresno. (RT 3:4). Officer Patterson requested that he respond to the area of Belmont and Calaveras and he drove there. (RT 3:4). Officer Patterson explained to Officer Howard that he had stopped appellant for the brake light violation and noticed a strong odor of marijuana in his vehicle. (RT 3:4). Officer Patterson requested that Officer Howard evaluate appellant for being under the influence of marijuana. (RT 3:4). Officer Howard interviewed appeliant and observed that he had red, watery eyes, a strong odor of marijuana, and slow speech. (RT 4:0-1). Appellant said he had not consumed any alcohol, but had consumed marijuana approximately fifteen to twenty minutes before the traffic stop. (RT 4:2). He said he smoked marijuana fifty to sixty times per week. (RT 4:2). Officer Howard requested that he perform some field sobriety tests. (RT 4:2). Officer Howard administered the nystagmus test to appellant, whereby he had appellant visually track his finger in order to determine if appellant’s eyeballs tracked smoothly or bounced. (RT 4:3-4). Appellant did not exhibit any 6 nystagmus but did have a lack of convergence, i.e., an inability to cross his eyes. (RT 4:4, RT 5:1). This indicated to Officer Howard that appellant might be under the influence of marijuana but not under the influence of alcohol. (RT 5:0-1). Officer Howard administered the Romberg balance test to appellant, whereby he had him tilt his head back, close his eyes, and count silently for thirty seconds. (RT 5:1-2). Officer Howard testified that any deviation of five seconds over or under the thirty seconds might indicate that appellant was impaired. (RT 5:2). Appellant had approximately two inches of sway and estimated the thirty seconds in twenty-five seconds. (RT 5:3). Officer Howard administered the walk-and-turn test to appellant, whereby he had him look at his feet with his hands to his side; walk heel-to-toe nine steps forward; and turn around and walk back in the same manner. (RT 5:4). Appellant stepped outward while being instructed on the test; stepped forward ten steps instead of nine, and stepped off the imaginary line; tuned incorrectly; and stepped off the imaginary line when he turned and walked back. (RT 6:0-1). Appellant’s performance on the test was consistent with an individual who might be under the influence of marijuana. (RT 6:1). Officer Howard administered the one-leg-stand test to appellant, whereby he had appellant stand with his feet together and both hands to his side while he gave instructions; pick one foot up approximately six inches above the ground; and count out loud one thousand one, one thousand two, etc., until told to stop. (RT 6:1). Appellant had a sway of approximately two inches; and counted to 29 when he was ordered to stop at thirty seconds. (RT 6:2). Officer Howard administered the finger-to-nose test to appellant, whereby he had appellant stand with his feet together and both hands to his side while he gave instructions; and tilt his head back. (RT 6:3). Appellant attempted to touch his nose, but missed the tip of his nose on three of the six attempts. (RT 6:4). Appellant’s performance on the test was consistent with an individual who might be under the influence of marijuana. (RT 6:4). Officer Howard checked appellant’s pulse to determine his heart rate. (RT 6:4). His pulse rate was 126 heartbeats per minute at the beginning of the tests and 120 heartbeats per minute at the end of the tests. (RT 7:0). This indicated that he might be under the influence of marijuana because Officer Howard was aware that marijuana consumption elevated an individual’s pulse rate. (RT 7:0). Officer Howard arrested appellant for driving under the influence of a controlled substance and placed him in handcuffs. (RT 7:0-1). He toid appellant he was required under California law to perform a chemical test because he believed appellant was under the influence. (RT 7:1). He requested that appellant perform a blood test. (RT 7:1). Appellant agreed to submit to the blood test. (RT 72). Officer Howard transported appellant to the Fresno Police Department facility where a phlebotomist was available to administer the blood test. (RT 7:2). Appellant did not indicate at any time that he would refuse to take the blood test. (RT 7:2). ARGUMENT I THE TRIAL COURT ERRED BECAUSE IT DENIED APPELLANT’S MOTION TO SUPPRESS EVIDENCE PURSUANT TO PENAL CODE SECTION 1538.5 A. STANDARD OF REVIEW The Fourth Amendment to the Constitution of the United States, adopted nearly in its entirety by California, provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.” (See also California Constitution, article I, section 13). It is well settled in California when the question of the legality of an arrest or a search or seizure is raised, the defendant makes a prima facie case of illegality where the arrest search or seizure was accomplished without a warrant. The burden, therefore, rests upon the prosecution to show proper justification for the arrest search or seizure. (People v. Sedillo (1982) 135 Cal.App.3d 616, 623). Evidence obtained by law enforcement officers violative of the Fourth Amendment is inadmissible in criminal prosecutions. (Mapp v. Ohio (1961) 367 U.S. 643, 655; People v. Williams (1999) 20 Cal.4 119, 125.) The prosecution has the burden of proving by a preponderance of the evidence the validity of a warrantless search. (Evidence Code section 115; People 10 v. Wilkins (1986) 186 Cal. App.3d 804, 809). In reviewing suppression motion rulings, the appellate court decides whether a search was constitutionally reasonable. (People v. Leyba (1981) 9 Cal.3d 591, 596). On appeal, the trial court’s determination of facts is reviewed for substantial evidence. (People v. Loewen (1983) 35 Cal.3d 117, 123). Because selecting the proper application rule involves a pure question of law, it is subject to independent review. Whether the rule was properly applied to the facts is a mixed fact/law question. (People v. Williams (1988) 45 Cal.3d 1268, 1301). Despite its hybrid characteristics, this final determination of whether the challenged police conduct was constitutionally reasonable also warrants independent review. (People v. Loewen, supra, 35 Cal.3d 117, 123). B. APPELLANT DID NOT CONSENT TO TAKE THE BLOOD TEST The test results which determined the amount of marijuana in appellant’s system should have been suppressed because appetlant did not consent to take the blood test. Defendant’s Exhibit #A1 states in relevant part: “Speaker 1 (Officer Howard): . . . Right now you’re going to be placed under arrest for driving a motor vehicle under the influence of marijuana, okay? This is what we’re gonna do, man. We’re gonna go to the, to the traffic office and I’m gonna do a more thorough drug evaluation on you there, okay? Um, because you are under arrest for driving a motor vehicle under the influence of a drug, you’re required by state law to submit to a chemical test. Because I believe you’re under the influence of a drug, that’s gonna be a blood test. You willing to submit to a drug test? Mr. Martinez: (inaudible). Speaker 1: (Huh). Mr. Martinez: inaudible.” (CT “15. Defendant’s Exhibit #A1 dated 07/29/2021”) i Defendant’s Exhibit #A1 originally stated “No.” However, the trial court crossed out the word “No” and inserted the word “inaudible” on the transcript. Appellant also introduced Defendant’s Exhibit #A, the videotape of the transcript. This video was not part of the original record on appeal. It was added to the record on appeal pursuant to appellant’s Application for an Order Allowing Appellate Division to Consider Exhibit on Appeal. The Appellate Division granted the Application on October 22, 2021. Defendant’s Exhibit #A shows that the transcript was correct. Officer Howard asked appellant at minute 14-15 on the video if he would submit to a blood test. Appellant did not affirmatively answer. In People v. Mason (2016) 8 Cal.App.5" Supp. 11, the court held that an evidentiary test to determine an individual’s alcohol level is improper if the defendant does not give actual or implied consent. (Ibid. at pp. Supp. 20-21). In Mason, a police officer observed the defendant driving in the wrong direction on a one-way street. The officer conducted a traffic stop and subsequently arrested her for suspected driving under the influence of alcohol. The defendant refused to take a preliminary alcohol screening (PAS) test. The officer transported her to a law enforcement facility. The officer told the defendant that she had to take a blood or breath test and “told her she was required to give one or the other.” (Ibid. at p. 14.) He said that “(declining the (chemical) test is an option” (Ibid.). He did not explain the 12 consequences for failing to provide a sample. The defendant chose to take a blood test. The reviewing court held that this did not constitute valid consent. The court stated: “The defendant need not be advised of the right to refuse as a prerequisite to a finding of voluntariness. But if so advised, this fact supports that a search was in fact voluntary as a product of free choice and not coercion. (Schneckloth, supra,412 U.S. at pp. 226- 227, 93 S.Ct. 2041.) The question of consent most commonly turns on whether the person searched in fact manifested consent for it and whether, in view of ‘the totality of all the circumstances,’ that consent ‘was in fact “voluntary” or was the product of duress or coercion, express or implied.’ (Schneckloth, supra, 412 U.S. at p. 227, 93 S.Ct. 2041, italics added.)” (Ibid. at pp. 20-21.) The Mason court further stated: “(Officer Stromska’s) statement was misleading. For constitutional purposes, notwithstanding the consent she may have been ‘deemed’ to have given under the implied consent law -- implied in law as distinguished from actual consent -- Mason still had a Fourth Amendment right to refuse to submit to chemical testing and bear the consequences of that choice. Under the implied consent law, those consequences include license suspension or revocation, payment of a fine, mandatory imprisonment if convicted of driving under the influence, and use of the refusal against the person in a court of law. (Vehicle Code sections 23612 (a)(1)(D) and (a)(4).) And Officer Stromska was obligated by statute to inform her of those consequences, which, as we will get to, are an integral part of the full implied consent admonition and go hand in hand with the ‘requirement’ to submit to a chemical test or refuse and bear the consequences.” (Ibid. at p. 22). Therefore, since appellant did not consent to the blood test, the results of the test should be suppressed. 13 C. IF THIS COURT FINDS THAT APPELLANT CONSENTED TO THE BLOOD TEST, THAT CONSENT WAS INVALID BECAUSE OFFICER HOWARD DID NOT GIVE ADEQUATE ADMONITIONS TO APPELLANT Even if appellant did consent to the administration of the blood test (an assertion which appellant denies, as stated above), any consent was invalid because Officer Howard did not properly admonish appellant concerning the test Vehicle Code section 23612. It states in relevant part: “(D) The person shall be told that his or her failure to submit to, or the failure to complete, the required breath or urine testing will result in a fine and mandatory imprisonment if the person is convicted of a violation of Section 23152 or 23153. The person shall also be told that his or her failure to submit to, or the failure to complete, the required breath, blood, or urine tests will result in the administrative suspension by the department of the person’s privilege to operate a motor vehicle for a period of one year. (2) (A) If the person is lawfully arrested for driving under the influence of an alcoholic beverage, the person has the choice of whether the test shall be of his or her blood or breath and the officer shall advise the person that he or she has that choice.” In People v. Gutierrez (2019) 33 Cal.App.5™ Supp. 11, the defendant was arrested for violation of Harbors and Navigation Code section 655(b), operating a vessel while under the influence of alcohol or drugs; and violation of Harbors and Navigation Code section 655(c), operating a vessel with a 0.08% or greater blood- alcohol concentration. Deputies administered field sobriety tests to the defendant and arrested him for boating under the influence. A deputy told him he had “a choice of a blood or breath test,” but “did not advise him that he had the right to refuse to submit to 14 either test.” (Ibid. at p. Supp. 14.) The defendant chose to take a blood test. Medical staff administered a blood test to him and obtained a blood sample. The trial court denied the defendant’s motion to suppress the results of the blood test. It stated: “(U)nder the totality of the circumstances, (Mr. Gutierrez's consent) . . . was not simply an acquiescence to the police or a coercion or anything like that. . .. (1)t was valid consent.” (Ibid.) The Appellate Division reversed. It held that the defendant’s consent to the blood test was invalid and stated: “To be effective, consent must be voluntary. (Citations.)’ {People v. Ledesma (1987) 43 Cal.3d 171, 233.) “(W)here the validity of a search rests on consent, the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority. (Citations.)’ (Florida v. Royer (1983) 460 U.S. 491, 497.) ‘The voluntariness of consent is a question of fact to be determined from the totality of circumstances. (Citations.) If the validity of a consent is challenged, the prosecution must prove it was freely and voluntarily given - i.e., “that it was (not) coerced by threats or force, or granted only in submission to a claim of lawful authority.” (Citations.)’ (People v. Boyer (2006) 38 Cal.4"" 412, 445-446.)” (Ibid. at p. Supp. 17.) Based on the on the above law, the Gutierrez court found that the defendant’s consent to the blood draw was not voluntary. It contrasted the police conduct with police conduct in People v. Monterroso (2004) 34 Cal.4" 743 and stated: “In People v. Monterroso (2004) 34 Cal.4* 743, the defendant was arrested and in handcuffs at the time police asked him to consent to a search, but police did not make any false or misleading statements to procure the defendant’s consent. (See 15 also People v. Ibarra (1980) 114 Cal.App.3d 60, 65 (defendant did not contend that police had made any false or misleading statements to procure his consent); People v. Balov (2018) 23 Cal.App.5" 696, 702-703, review granted Sept. 12, 2018, $249708 (officer correctly told defendant under implied consent law that he had a choice of blood or breath test, he just omitted a recitation of the consequences if defendant refused; court held advisement merely incomplete not false.) Here, defendant was told he had to take a blood or breath test. This was a false statement that, when coupled with other circumstances, compels a finding of involuntariness.” (Ibid. at Supp. 19.) If “the prosecution relies on consent to justify a warrantless search or seizure, it bears the burden of proving that the defendant’s manifestation of consent was the product of his free will and not a mere submission to an express or implied assertion of authority.” (People v. Zamudio (2008) 43 Cal.4“ 327, 341.) If the officer obtains the consent based on his or false statements to the defendant, any consent given is not free and voluntary. (See Bumper v. North Carolina (1968) 391 U.S. 543, 548-549, wherein the police improperly obtained consent to conduct a search by falsely telling the defendant’s grandmother that they already had a warrant to conduct a search.) Here, Officer Howard told appellant, “what we’re gonna do . . . . because you are under arrest for driving a motor vehicle under the influence of a drug, you’re required by state law to submit to a chemical test.” (CT “15. Defendant’s Exhibit #A1 dated 07/29/2021”). In People v. Harris (2015) 234 Cal.App.4" 671, an officer told the defendant that “his driver’s license would be suspended if he refused to submit to a chemical test, and that his refusal could be used against him in court.” (Ibid. at p. 16 678.) The defendant argued that the officer misinformed him because the officer admonished him that he “was required to submit to a chemical test, and that a blood test was ‘the only option’ available.” (Ibid. at p. 691.) The defendant also claimed that the officer misinformed him because he admonished him “if he refused to submit to a blood test, his license would be suspended ‘for the next two to three years,’” (Ibid.) The defendant argued that “this was false because refusing to submit to a chemical test results in a one-year suspension for a first-time DUI offense. (Veh. Code, § 23612, subd. (a)(1)(D).” (Ibid.) The defendant further asserted that “Deputy Robinson’s admonition under the implied consent law was false, and . . . valid Fourth Amendment consent may not be obtained if the police lie about the implied consent law.” (Ibid.) Harris referred to State v. Moore (2013) 318 P.3d 1133 and stated: “Similarly, in Moore, . . . the Oregon Supreme Court held that an advisory read to a motorist pursuant to the state’s implied consent law does not render involuntary the motorist’s submission to a chemical test. ‘(It is difficult to see why the disclosure of accurate information about a particular penalty that may be imposed -- if it is permissible for the state to impose that penalty -- could be unconstitutionally coercive. Rather, advising a defendant of the lawful consequences that may flow from his or her decision to engage in a certain behavior ensures that that defendant makes an informed choice whether to engage in that behavior or not. Indeed, the failure to disclose accurate information regarding the potential legal consequences of certain behavior would seem to be a more logical basis for a defendant to assert that his or her decision to engage in that behavior was coerced and involuntary.’ (318 P.3d at p. 1138.)” (Ibid. at p. 689.) 17 The admonitions given by the officer in Harris and Moore were adequate if not totally accurate or complete. This case is distinguishable because Officer Howard did not inform appellant that he had the right to refuse to take the test. State v. Brooks, 838 N.W.2d 563 (Minn.2013) is instructive. In Brooks, an officer told a suspected intoxicated driver that he was required by law to take an evidentiary test and that failure to take the test was a crime. The Brooks court stated: “Neville (South Dakota v. Neville, 103 S.Ct 916 (1983) and McDonnell (McDonnell v. Comm’r of Pub. Safety, 473 N.W.2d 848 (Minn. 1991)) examine the issue of coercion within the context of the Fifth Amendment privilege against self-incrimination. But the question in both cases was whether the existence of a consequence for refusing to take a chemical test rendered the driver’s choice involuntary... We address the same question in the context presented here when we examine whether Brooks’s consent was voluntary, as the State argues, or whether it was coerced, as Brooks argues. See Harris, 590 N.W.2d at 102 (Minn.1999) (explaining that consent to search becomes involuntary when the encounter with police becomes ‘coercive’). Based on the analysis in Neville and McDonnell, a driver’s decision to agree to take a test is not coerced simply because Minnesota has attached the penalty of making it a crime to refuse the test.” Ibid. at p. 570.) However, the Brooks court also stated: “But, Brooks argues, the Supreme Court’s decision in Bumper v. North Carolina requires us to conclude that he did not consent to the searches. . . 88 S.Ct. 1788 (1968). We are not persuaded. In Bumper, police sought to justify their search of a house based on the owner’s consent, contending that she consented to the search by saying ‘(G)o ahead’ after police told her they had a warrant. fd. at... 88 S.Ct. at 1790. The Court held that this sort of submission to authority did not constitute consent. Jd. at... 88 S.Ct. at 1791-92. The Court concluded that when a police officer claims authority to search a house under a warrant, ‘he announces in effect that the occupant has no right to resist the search. The 18 situation is instinct with coercion -- albeit colorably lawful coercion. Where there is coercion there cannot be consent.’ Jd. at... 88 S.Ct. at 1792.” (Ibid. at p. 571.) Brooks further stated: “In addition, by reading Brooks the implied consent advisory police made clear to him that he had a choice of whether to submit to testing. While an individual does not necessarily need to know he or she has a right to refuse a search for consent to be voluntary, the fact that someone submits to the search after being told that he or she can say no to the search supports a finding of voluntariness. See Harris 590 N.W.2d at 103 (finding that a defendant consented to a search after police told him that ‘any questioning or searching would be voluntary’); see also State v. Hanley, 363 N.W.2d 735, 739 (Minn.1985).” (Ibid. at p. 572). Here, Officer Howard’s statement to appellant that he was required by law to take the blood test, but not informing him that he could refuse to take the test, was misleading. Therefore, assuming appellant did consent to take the test, the consent was invalid. The results of the blood test should be suppressed. D. OFFICER HOWARD DID NOT HAVE PROBABLE CAUSE TO ARREST APPELLANT FOR DRIVING UNDER THE INFLUENCE OF MARIJUANA An arrest must be supported by probable cause. (Kaupp v. Texas (2003) 538 US. 626, 630.) Probable cause exists when the facts known to the arresting officer would persuade someone of “reasonable caution” that the person to be arrested has committed a crime. (Dunaway v. New York (1979) 442 U.S. 200, 208, fn. 9.) “(P)robable cause is a fluid concept -- turning on the assessment of probabilities in particular factual contexts.” (Illinois v. Gates (1983) 462 U.S. 213, 19 232.) It is incapable of precise definition. (Maryland v. Pringle (2003) 540 U.S. 366, 371). The substance of all the definitions of probable cause is a “reasonable ground for belief of guilt” and that belief must be “particularized with respect to the person to be . . . seized.” (Ibid.) Vehicle Code section 23152(f) states: “It is unlawful for a person who is under the influence of any drug to drive a vehicle.” A person is under the influence if, as a result of consuming a drug, “his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under the circumstances.” (CALCRIM No. 2110; see also People v. Enriquez (1996) 42 Cal.App.4" 661, 665; People v. Weathington (1991) 231 Cal_App.3d 69, 80-81.) Here, Officer Howard did not have probable cause to arrest appellant. No evidence was produced to show that appellant was under the influence pursuant to CALCRIM No. 2110. Officer Howard testified that he believed he had probable cause to arrest appellant because of the marijuana smoke in appellant’s vehicle and appeliant’s performance on the field sobriety tests. This is not true. Appellant’s conduct as shown on Defendant’s Exhibit #A shows that he ‘was not impaired. Officer Howard testified that appellant had red and watery eyes and slow speech. (RT 4:0-1). However, Defendant’s Exhibit #A (Minutes 1-5) shows that appellant was talking in a normal manner and had no difficulty responding to 20 Officer Howard’s questions. Furthermore, he had no visible coordination or balance problems. He told Officer Howard he did not feel any of the effects of the marijuana because he had a high tolerance. (Minute 5). Officer Howard testified that appellant had convergence when he tracked appellant’s eyes. (RT 4:4, RT 5:1). However, a review of Defendant’s Exhibit #A shows that appellant’s eyes were totally normal during the test and did not indicate convergence or impairment in any way. (Minutes 6-7). Officer Howard testified that appellant had approximately two inches of sway and estimated thirty seconds in twenty-five seconds on the Romberg test. (RT 5:3). However, Defendant’s Exhibit #A shows that appellant began the test at 8 minutes, 20 seconds and concluded the test at 8 minutes 47 seconds, for an estimation of 27 seconds in 30 seconds. This was within the normal range. Furthermore, his sway was minimal and did not indicate any sign of impairment. (Minute 8). Officer Howard testified that appellant stepped forward ten steps instead of nine and did not walk straight on the walk-and-turn test. (RT 6:1). However, Defendant’s Exhibit #A shows that appellant performed the test in a normal manner. (Minute 10). He kept his balance during the test and had no problem performing the test. The minimal deviations which appeared when he performed the test were certainly not sufficient to show any level of impairment. Officer Howard testified that appellant had a two-inch sway on the one-leg- stand test and counted to 29 when he was ordered to stop at thirty seconds. (RT 21 6:2). Defendant’s Exhibit #A shows that appellant performed the test in a normal manner without any signs of impairment. (Minute 11). Officer Howard testified that appellant’s performance on the finger-to-nose test showed that he was impaired because he missed the tip of his nose on three of the six attempted touches. (RT 6:4). However, Defendant’s Exhibit #A shows that this was not true. Appellant touched his nose correctly on all six tests. (Minute 12-13). Furthermore, he understood Officer Howard’s directions perfectly. When ordered to touch his nose with his right hand a second consecutive time, obvious attempt to confuse him, he had no problems following the instruction. Officer Howard testified that appellant’s pulse rate was 120-126 beats per minute. (RT 7:0). Officer Howard further testified that marijuana consumption elevated an individual’s pulse rate. (RT 7:0). However, this was not related to appellant’s alleged level of impairment. Furthermore, no evidence was provided upon which Officer Howard could base this assumption that appellant was impaired due to a fast pulse rate. In People v. Torres (2009) 173 Cal.App.4" 977, an officer followed the defendant for approximately a half block and observed him run half of his vehicle past the limit line of a stop sign. The officer conducted a traffic stop and observed that the defendant was jittery, his face twitched, and he stuttered. He was sweating, had rigid muscles, could not stand still. and had a chemical odor. The defendant was convicted of violation of Vehicle Code section 23152(a), driving while under the influence of a drug (methamphetamine). 22 However, the Court of Appeals reversed the conviction on insufficiency of the evidence grounds. It stated: “Here, there is substantial evidence Torres was under the influence of methamphetamine when he was arrested. . . . However, there is no evidence Torres’s methamphetamine use actually impaired his driving ability on the night of his arrest. Both Morales and Savage observed Torres and neither testified he was driving erratically. Savage pulled over Torres for failing to stop at the limit line, a common traffic violation that Bawardi testified is not sufficient to establish a person is under the influence for driving purposes.” (Ibid. at p. 983.) Here, appellant did not show any signs of impairment and was observed driving in a normal and safe manner. Furthermore, as opposed to the defendant in Torres, appellant did not commit a moving violation. Therefore, it was improper for Officer Howard to arrest him for violation of Vehicle Code section 23152(f). The trial court erred when it denied his motion to suppress due to the illegal arrest. E. APPELLANT’S CONVICTION OF VIOLATION OF VEHICLE CODE SECTION 23152(F) SHOULD BE REVERSED BECAUSE THE BLOOD TEST RESULTS WERE THE ONLY EVIDENCE WHICH SHOWS THAT HE WAS UNDER THE INFLUENCE OF MARIJUANA WHEN HE STOPPED BY OFFICER PATTERSON All evidence stemming from the illegally obtained consent to administer the blood test to appellant (if he even consented at all), and his illegal arrest should have been suppressed pursuant to the “fruit of the poisonous tree” doctrine enunciated in Wong Sun v. United States (1963) 371 U.S. 371, 484-488. (See also 23 People v. Medina (2003) 110 Cal.App.4" 171, 178.) Therefore, appellant’s blood test results should have been suppressed. The only evidence which shows that appellant was under the influence of marijuana when he was stopped by Officer Patterson was the blood test results. Therefore, his conviction of violation of Vehicle Code section 23 152(f) should be reversed. CONCLUSION For the foregoing reasons, appellant’s conviction of violation of Vehicle Code section 23152(f) should be reversed and his case should be dismissed. DATED: jj ~/G-s_/ Respectfully submitted, Lee 24 CERTIFICATION OF WORD COUNT I, Frederick A. Hurst, hereby certify pursuant to California Rule of Court, Rule 8.883(b)(1), that the enclosed Appellant’s Opening Brief is produced using 13-point Times New Roman type, and contains 5,837 words. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 19th day of November, 2021, in Las Vegas, Nevada. Fred ick! furst PROOF OF SERVICE BY MAIL I am employed in the County of Clark, State of Nevada, over the age of 18 years, and not a party to the within action or proceeding. My business address is Post Office Box 620362, Las Vegas, Nevada 89162. On November 19, 2021, I served the foregoing document, described as Appellant’s Opening Brief by depositing a true copy thereof, enclosed in a sealed envelope with postage thereon fully prepaid, in a mailbox maintained by the government of the United States in Las Vegas, Nevada, and addressed as follows: Fresno District Attorney Attention: Amber Knight 2100 Tulare Street, Fresno, California 93721 Honorable Leanne L. Le Mon Fresno County Superior Court 1100 Van Ness Avenue Fresno, California 93724 I declare under penalty of perjury that the foregoing is true and correct. Executed at Las Vegas, Nevada, on November 19, 202 Tederick A. Hurst