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Filed 10/14/15 P. v. Bar ajas CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Yolo)

----

THE PEOPLE,

Plaintiff and Respondent,

v. REYES BARAJAS,

Defendant and Appellant. C075010 (Super. Ct. No. CRF 12

- 3530)

Defendant Reyes Barajas appeals his convictions for two counts of second degree murder and two counts of gross vehicular manslaughter while intoxicated. He c ontends the trial court erred by denying his motion to exclude statements made while he was being booked into county jail and , by admitting these statements , violated his Miranda 1

1 Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] ( Miranda ).2

rights. E ven if the trial court er red in admitting the statements, we conclude any error was harmless beyon d a reasonable doubt and affirm the judgment.
FACTUAL BACKGROUND Defendant, his wife Ann Marie Miller, and their teenage son, Marco, were in Lake County visiting family over Labor Day weekend 201 2 . That Monday, they went to Anne Marie’s mother’s ho use an d stayed until about 2:30 or 3:00 p.m. Defendant drank beer throughout the day . He regularly drank more than five beers. When they left, defendant was driving his Toyota pickup truck. Neither Marco nor Ann Marie had a driver’s
license. At appr oximat ely 5:00 p.m., Franky Gons alves was driving on Highway 16 and
noticed debris on the road. Looking further, he saw a pickup truck down an embankment lying on its side. Gon s alves drove to a fire station to get hel p. When he returned, he
learned there were three people inside the truck. Defendant was the driver . He w as hanging by the driver’s seat belt. Marco was hanging from a seat belt in the backseat
area of the truck

. Ann Marie was in the front passenger area lying beneath the male
driver. Defendant was groaning , but unconscious and unresponsive. Another passerby
cut defendant loose from the seat belt to keep him from strangling. Defendant’s wife and

son died as a result of injuries sustained in the cr ash. California Highway Patrol (CHP ) Officer Gregory Aston was the first officer to arrive at the scene. He saw the truck 40 to 50 feet down the embankment, wedged on its
side against a tree. Upon questioning by Officer Aston, defendant denied driving,
claimed nobody had been driving, and the vehicle had not gone off the roadway. T he paramedics who assisted defendant informed Officer Aston that defendant smelled of
alcohol. That fact, and the nature of the accident, led Officer Aston to suspect the case could involve driving under the in fluence (DUI). H e informed Officer Eduardo Gar cia of that suspicion.3

When Officer Garcia arrived at the scene, he saw defendant lying on a backboard
on the south shoulder of the roadway, with injuries to his face and the left side of his body, as well as to both of his arm s

. Officer Garcia asked defendant what had happened, he answered, “Nothing.” When asked who was in the truck with him and who was driving, he said, “No one.” Officer Garcia concluded defendant was the driver of the truck, in part be cause of an injury to his left s houlder area which was consistent with a driver’s side seat belt. A helicopter transported defendant to Santa Rosa Memorial Hospital for tr eatment to his injuries. CHP Officer Juan Inguanzo interviewed defendant at the h ospital. He immediately smelled alcohol coming from defendant. Defendant claimed not to remember being in a collision . He also claimed he had not been driving. He initi ally told
Officer Inguanzo he le ft his Redwood City home at approximately 4:00 or 5: 00 p.m. , drove to a friend’s house, then drove to a hospital and admitted himself for treatment of a
disease

. He then told another story, saying he left his Redwood City home at approximately 11:00 a.m., drove to a different friend’s house in San Jose, where he drank
some beer , then drove to Santa Rosa to admit himself to a hospital for a disease. In his
thi rd statement, he claimed he left his Redwood City home at 7:00 a.m. and d rove to his
in

- laws home , arriving at approximately 9:00 a.m. He claimed n ot to remember anything after that. Defendant initially said h e had not been drinking at all , and then said he had
two beers between 9:30 and 10:00 p.m. the night before.
Officer Inguanzo administered field sobriety tests, including a horizontal gaze

n y stagmus test. Repeatedly, he had to remind defendant to move only his eyes, not his
head. He demonstrated a finger count field sobriety test. Defendant could not follow his instructions. The results of both tests were consistent with alcohol impairmen t. Officer Inguanzo administered two prelimina ry alcohol screening tests . The first, at 7:45 p.m. and the second, four minutes later. The tests showed blood

- alcohol levels of 0.111 percent and 0.112 percent. In the first test, defendant was blowing too softly into the4

mouthpiece to maintain a tight seal, so Officer Inguanzo use d a manual “trap function” to get a result. Both results were consistent with alcohol impairment

. Officer Inguan zo arrested defendant. Under the implied consent law, defendan t elected to have a blood test. The results
showed a blood

- alcohol level of 0.13 percent. A person with a 0.13 percent blood

alcohol level cannot safely drive a motor vehicle. Based on alcohol absorption rates, a criminalist for the California Departmen t of Justice estimated that at the time of the accident defendant’s blood

- alcohol level would have been between 0.16 and 0.19 percent. To reach that level of intoxication, a person would have to drink nine and a half 12

- ounce beers. With that level of in toxication , a person would not be capable of driving safely, particularly on a wind ing rural highway.
After Officer Inguanzo drew defendant’s blood, he advised defendant of his
Miranda rights. Officer Inguanzo informed defendant there were passengers in the car. Defendant accused him of lying. Officer Inguanzo told defendant his wife and son were
in the truck and that they had sustained fatal injuries. D efendant responded, “It is what it is.”
Dr. Allen Cortez treated defendant at the hospital. He observed multiple injuries : defendant’s left eye was bulging, swollen and bleeding, he was missing teeth, had lacerations on his forehead and scalp, and a possibly fractured left elbow. Defen dant was

aw ake but confused. He had a concussion. Upon admission to the hospital, defendant
said he drank one to two beers a day, and he had his last drink at 2:00 p.m. that day.
Another blood

- alcohol test taken during his admission show ed a blood

- alcohol level of
0.1 3 percent. Dr. Cortez did n ot recall whether paramedics administered medication to defendant during transpor t to the hospital. Two days later, defendant was released from the hospital. Officer Garcia transported him to the Yolo County jail for boo king. During booking, a jail nurse and a correctional officer questioned defendant as part of the medical intake screening5

procedure. Officer Garcia was present during the process bu t did not question defendant. In response to intake questioning, defend ant said he drank two or three beers a day and had his last beer on Monday morning (the day of the accident). When asked about what had happened, he said “they had rolled.” The nurse asked defendant when the accident happened, and he told her it happened on Monday between 3:00 p

. m

. and 4:00 p

. m. He
said he did not experience alcohol withdrawals. He also said he lost consciousness after the vehicle rolled. Every inmate being booked into county jail is subjected to screening
for medical problems . The st andard form includes questions about alcohol and drug consumption, accidents, and loss of consciousness. The jail nurse and correctional
officer utilized the intake screening form in their questions, but some of the questions they asked went beyond the in formation sough t on the form. Steve Ruppert, a CHP accident reconstruction expert, investigated the scene. He concluded the truck rolled and slid across the road before careening down the
embankment. He noted there was no evidence the truck was brakin g while on the road, instead, the accident resulted from the driver consciously hard steering to the left, causing the vehicle to “yaw , ” then rotate and flip. He estimated the truck was traveling at least 75 miles per hour when it began to skid. A person under the influence of alcohol could not safely drive on that road, at that speed. The speed limit in that section of road is 55 miles per hour. Officer Garcia testified he never exceeds 40 miles per hour at that part of the road, because the curve is d ange rous. Christopher Lee, a criminalist in alcohol forensics, testified a blood

- alcohol content (BAC) of 0.08 renders a driver too impaired to drive. When defendant’s blood was drawn, it yielded a BAC of 0.13. BAC usually drops over time, so defendan t’s BAC
would have been 0.19 at the time of the accident. An individual with a 0.13 BAC could not drive safely. To reach a 0.13 BAC, a person would have to consume six to seven beers. To reach a 0.19 BAC a person would have to consume nine and a half be ers.6

Defendant was convicted of a DUI in 2007 and completed an 18

- month drinking driver program. The program included instruction on the hazards of drunk driving, through videos , group sessions, and counseling. Defendant was again convicted of DUI
in 2009. He completed another 18

- month education program. As part of these programs, defendant signed and dated an acknowledgement that he understood driving under the influence of alcohol is extremely dangerous to human lif e. PROCEDURAL HISTORY
An infor mation charged defendant with two counts of murder (Pen. Code, § 187, subd. (a)), 2 and two counts of gross vehicular manslaughter while intoxicated ( § 191.5, subd. (a)). As to the vehicular manslaughter counts, the information further alleged defendant had two prior convictions for driving under the influence. (Veh. Code, § 23 152, subd. (b)). Prior to trial, defendant moved to exclude the statements he made while he was in custody and after he invoked his Miranda rights. Specifically, he sought to exclude the statements made in response to questions asked as part of the medical intake screening procedure . Following an evidentiary hearing, the trial c ourt denied his motion. The jury found defendant guilty as charged on all four counts. In bifurcated proceedings, the trial court found true the allegations defendant had prior convictions for violating Vehicle Code section 23152, subdivision (b) , in 2007 and 2009. The trial court
sentenced defendant to two consecutive terms of 15 years to life, one each for the two second degree murders, for an indeterminate term of 30 years to life in state prison. The court imposed and stayed two terms of 15 year s to life, one each for the vehicular manslaughters

.

2 Undesignated statutory references are to the Penal Code.7 DISCUSSION Defendant contends the trial court erred in admitting the statements he made in response to questioning when he was booked into the county jail. He claims these
statements fell outside the booking exception to Miranda , as the questions were not “confined to legitimate booking questions,” and the questions should have been reasonably expected to evoke incriminating responses. 3 We find no prejudicial error.
The Miranda rule generally requir es exclusion of statements made by a defendant while being subjected to custodial interro gation without provision of Miranda warnings. ( People v. Andreasen (2013) 214 Cal. App.4th 70, 86 ( Andreasen ) .) However, under the booking exception to the Miranda ru le, the authorities need not provide Miranda warnings prior to asking routine questions related to health or safety concerns that arise during the arrest or booking process. ( Andreasen , supra, at p. 87; People v. Williams (2013) 56 Cal. 4th 165, 174, 187

- 1 89 [ Miranda not triggered by prison intake question
about reason for defendant ’ s request for protective custody]; People v. Jones (1979)
96 Cal. App.3d 820, 827

- 828 [ Miranda not triggered by arrest question related to
defendant ’ s medical condition]; People v. Gomez (2011) 192 Cal. App.4th 609, 634

- 635 [ Miranda not triggered by routine booking question about gang affiliation designed to ensure safety of jail placement].) However, a Miranda interrogation may emerge during routine exchanges if the authorities ask questions “ ‘ “that are designed to elicit incriminatory admissions.” ’ [Citation.]” ( People v. Williams, supra, at p. 187; Andreasen, supra, at p. 87.)

3 Appellant claims this issue is “nearly identical” to the one in People v. Elizalde (2013) 222 Cal.App.4th 351 (S215260) which was pending before the California Supreme Court when his opening brief was filed. As in Elizalde , we find any error harmless, as other properly admitted and unchallenged evidence convincingly established every element of the offense. ( People v. Elizalde (2015) 61 Cal.4th 523, 533

- 534.)8

“ In determining whether a question is within the booking question exception,
courts should car efully scrutinize the facts surrounding the encounter to determine whether the questions are legitimate booking questions or a pretext for eliciting incriminating information. [Citation.] Courts have considered several factors, including
the nature of th e questions, such as whether they seek merely identifying data necessary for booking [citations]; the context of the interrogation, such as whether the questions were asked during a noninvestigative clerical booking process and pursuant to a standard
booki ng form or questionnaire [citations]; the knowledge and intent of the government agent asking the questions [citations]; the relationship between the question asked and the crime the defendant was suspected of committing [citations]; the administrative nee d for the information sought [citations]; and any other indications that the questions were designed, at least in part, to elicit incriminating evidence and merely asked under the guise or pretext of seeking routine biographical information [citations]. ” ( People v. Gomez, supra , 192 Cal. App.4th at p p. 630

- 631.) However, “[t]he fact that the information gathered from routine booking questions turns out to be incriminating does not, by itself, affect the applicability of the exception. [Citations.]” ( Id

. at p. 629.) We need not determine whether the questioning here crossed the line from routine fact gathering information to questions designed to elicit incriminatory admissions in
violation of Miranda. The alleged error, if any, in admitting appellant ’ s statement was harmless beyond a reasonable doubt. ( Chapman v. California (1967) 386 U.S. 18, 24 [17
L.Ed.2d 705 , 710

- 711]; Arizona v. Fulminante (1991) 499 U.S. 27 9, 306

- 310 [113 L.Ed.2d 302, 329

- 331]; People v. Johnson (1993) 6 Cal. 4th 1, 32

- 33.) Initially, the statements de fendant complains about are : (1) he drank beer the day of the accident; (2) he typically drank two to three beers a day; (3) he was in an accident and his truck rolled; (4) he was driving the truck; and (5) he lost consciousnes s. This evidence did not come before the jury exclusively through defendant’s statements.
D uring admission to the hospital, d efendant said he drank one to two beers a day and had9

his last beer the afternoon of the accident. He does not challenge on appe al the admission
of that statement into evidence. Defendant’s mother

- in

- law also testified defendant regularly drank more than five beers at a time and had been drinking the day of the accident, before the family left her home. Witnesses at the scene of the accident said defendant was unconscious when they found him after the accident. He was hang ing from the driver’s seat belt. His injuries were consistent with being the driver. Lastly, the accident reconstruction expert described the accident and con cluded the truck rolled down the embankment. Thus, the evidence in every statement defendant complains about was also admitted through other witnesses. Furthermore, even without defendant’s statements during the medical intake, the evidence against defend ant was overwhelming. “Murder is the unlawful killing of a human being

. . . with malice aforethought.” ( § 187.) “Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” ( § 188.) Malice may be implied when defendant, “knowing that his conduct endangers the lif e of another, nonetheless acts deliberately with conscious disregard for life.” ( People v. Watson (1981) 30 Cal. 3d 290, 296 ( Watson ).) California courts have long recognized that a traffic fatality caused by a grossly intoxicated motorist may support a conviction for second degree murder. ( Id. at pp. 300

- 301; see People v. Autry (1995) 37 Cal. App.4th 351, 358, and cases cited therein.) “ ‘One who willfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operat e a motor vehicle, thereby combining sharply impaired physical and mental facilities with a vehicle capable of great force and speed, reasonably may be held to
exhibit a conscious disregard of the safety of others.’ ” ( Watson, supra, at p p. 300

- 301; Peopl e v. Johnigan (2011) 196 Cal. App.4th 1084, 1090.) Implied malice can be established by evidence that appellant had: “ (1) a blood

- alcohol level above the .0810

percent legal limit; (2) a predrinking intent to drive; (3) knowledge of the hazards of driving w hile intoxicated ; ” and (4) engaged in “ highly dangerous driving. ” ( People v. Talamantes (1992) 11 Cal. App.4th 968, 973.) These are not required elements, but factors to provide guidance on appellate review. ( People v. Johnigan, supra, at p. 1091.)
More over, p roof of a predrinking intent to drive is not an essential element of a vehicular
murder conviction , “ [t]he criminal act underlying vehicular murder is not use of intoxicating substances in anticipation of driving, but is driving under the influence with

c onscious disregard for life.” ( People v. Olivas (1985) 172 Cal. App.3d 984, 988

- 989.) The evidence established Ann Marie and Marco died as a result of the injuries they sustained in the accident. It was undisputed that d efendant was driving the truck. Ann Marie did not have a driver’s license. Marco was too young to drive. W itness es at the
scene of the accident found defendant suspended by the driver’s seat belt. His injuries
were consistent with hi s having been the d river. Because Ann Marie and Marco could not drive, defendant knew he had to drive

. He well knew the dangers to his family of drinking and driving

. H e drank anyway. Multiple tests showed defendant with a blood

alco hol level between 0.111 and 0.13

. An expert testifie d that at the time of the accident, defendant’s blood

- alcohol level would have been between 0.16 and 0.19 and he would
have had to have consumed between six and nine and a half beers to reach t hat level of intoxication. Not only is that lev el of intoxication over the legal limi t, well above the legal limit of 0.08 , but an expert testified a person cannot drive safely when that impaired. The accident reconstruction expert testified defendant was driving the car at speeds over 75 miles per h our, 20 miles over the speed limit. The expert and the CHP
officer testified that driving at that speed on that road was dangerous. Officer Garcia , a peace officer and a highly skilled driver, said he never drove more than 40 miles per hour
on that stret ch of the road. Defendant lost control of the vehi cle and his attempt to regain11

control by consciously hard steering the vehicle caus ed it to roll, then skid off the road and plunge down the embankment. Defendant had two prior DUI convictions, one in 20 07 and one in 2009. After each of these convictions, he attended an 18

- month e ducation and counseling program , which included instruction on the dangers of drunk driving. After each of these programs, defendant signed and dated statements that he underst ood driving under the influence is extremely dangerous to human life. Attendance at educational classes following a DUI conviction and the signed statements after them support an inference of implied malice in a subsequent vehicular homicide where , as her e, the person expressly learned from those programs about the risks to human life of driving while intoxicated. ( People v. Murray (1990) 225 Cal. App.3d 734, 746; People v. Brogna (1988)
202 Cal. App.3d 700, 705; People v. McCarnes (1986) 179 Cal. App.3d 525, 532.) On this record, there is no reasonable possibility these statements contributed to
the jury’s decision

. DISPOSITION The judgment is affirmed.

NICHOLSON , Acting P. J.

We concur:

MAURO , J.

DUARTE , J.