1 Filed 1/29/14 Kroll v. DMV CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

BENJAMIN KROLL, Plaintiff and Appellant,

v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Respondent. A137416
(Marin County Super. Ct. No. CIV 1203977)

Benjamin Kroll appeals the denial of his petition for writ of mandate challenging the suspension of his driver’s license by th e Department of Motor Vehicles (DMV). (Code Civ. Proc., § 1094. 5; Veh. Code, § 13559, subd. (a ).) He contends: (1) the trial
court’s reliance on the out-of-court statemen ts of a witness who invoked the Fifth
Amendment at the DMV administ rative hearing deprived him of due process; (2) the trial court did not independently determine the cred ibility of witnesses at the DMV hearing as it was required to do; and (3) the trial cour t’s decision is unsupported by substantial
evidence. We affirm.
I. BACKGROUND At about 3:20 a.m. on October 1, 2011 , California Highway Patrol officers responded to a single vehicle rollover acciden t on a freeway onramp in San Francisco. They found a Jeep Cherokee upended on its roof with m oderate damage, including a shattered passenger side window. Kroll a nd Tracy Mahon were at the scene. The registered owner of the Jeep was James Mahon.2 Kroll told Officer Farley someone named “Maureen” ha d been driving the Jeep, though he was unable to provi de any additional information about this person. Kroll
asserted he had not been in the Jeep, but had received a telephone call from “Dave” and had been dropped off at the accident scene by his good friend “Ken.” He could not provide any details about the car in which he had been riding, nor did he remember where he had been sitting inside that car. Farley not iced a two-inch red bu rn mark on the left
side of Kroll’s neck consistent with a seatbe lt, which Kroll explained by saying, “Well[,] I do martial arts.” Farley also noticed a fresh spot of blood on Kr oll’s left sock, caused by a cut on his left ankle that was still oozing blood. Asked about th e injury, Kroll again stated he did martial arts. Farley noted Kro ll’s height (six feet) was consistent with the position of the Jeep’s driver’s seat . Mahon was shorter than Kroll. Farley smelled alcohol and noticed Kro ll’s speech was very slurred. Kroll acknowledged drinking three rum and gin cocktails. After he failed field sobriety tests, Kroll was arrested on suspicio n of driving under the influe nce and with a blood alcohol level in excess of .08 percent. (Veh. Code, § 23152, subds. (a), (b).) A breath test conducted at 4:52 a.m. produced blood alcohol level readings of .085 and .084 percent, and a blood draw taken at 5:05 a.m. resulted in a reading of .08 percent. Mahon, who was transported to the hosp ital from the accident scene, was given presumptive alcohol screenings at 3:46 and 3: 49 a.m. that showed blood alcohol levels of .126 and .116 percent. Duri ng questioning by another o fficer, Mahon said she had been at a party in San Francisco and was on her wa y to her home in San Bruno, riding in the front passenger seat with someone named “Marga ret” driving. At first Mahon said Kroll
had not been in the J eep, but she later stated he had been sitting in th e back passenger seat at the time of the accident. She appe ared intoxicated and was unable to provide
further information about the accident.
Kroll was notified his driver’s license would be suspended. (Veh. Code, § 13353.2, subd. (a)(1).) An administrative hearing was held before a DMV officer, at which Kroll stipulated to having a blood alc ohol level of .08 percen t but challenged the license suspension on th e ground that Mahon had been driving the Jeep.3 Kroll testified that on the night of th e accident, he attended a nautically-themed party in San Francisco along with his friends Rosalie Morgan, Kyle Misner and David Anderson. Kroll dressed up as a pirate , and carried a long rapier-type sword. 1 Sometime after 3:00 a.m., Kroll determined he was too in toxicated to drive, and Misner offered to drive Kroll and Morgan back to his (Misner’s) ho use for the night. Th ey left in Misner’s car, with Misner driving, Kroll riding in the front passenger seat, and Morgan riding in
the back. As the three of th em were leaving the party, th ey saw Anderson and Mahon, who said they were going back into th e party and then on to Mahon’s house. Shortly after leaving the party, Morg an got a call from Anderson saying he had
been in an accident and needed help. Misner drove to the scene, wh ere they saw the Jeep flipped over on the onramp, with Mahon and Anderson standing in the center of the onramp trying to wave off other cars. Kroll used Morgan’s cell phone to call the police and stayed on the line with them until officers arrived. Ma hon told Kroll someone named Maureen had been driving but ha d run off. Kroll denied havi ng a red mark on his left shoulder as described by Farl ey, presenting photographs he had taken of his upper torso the evening following the accide nt that did not show any re d marks. As to the ankle wound, Kroll explained that the sword he wa s carrying as part of his costume cut his ankle while he was dancing. Morgan and Misner similarly testified that Kroll had left the party in Misner’s car.
Anderson testified he had ridd en with Mahon, who was drivin g the Jeep at the time of the
accident. All three maintained Kroll had only arrived at the accident scene after Anderson called Morgan to tell her about the crash. They also testified that Kroll
remained at the scene with Mahon while Misner drove An derson and Morgan to his

1 The police report indicates that at th e time of his arrest, Kroll was wearing “casual” clothes: brown tennis shoes, tan cord uroy pants and a green wool collared shirt. Asked about this apparent di screpancy by the DMV hearing o fficer, Kroll explained that the people holding the party had made costumes available for guests to wear, and that he had left the costume portion of his clothing in his own car, which was parked near the party.4 (Misner’s) house. Misner claimed he later returned and told po lice Kroll was not the driver, but was directed to leave. Mahon was also called as a witness, a nd testified she had seen Kroll and his friends at the party. When asked about le aving the party and the circumstances of the accident and its aftermath, she invoked her Fifth Amendment right against selfincrimination and refused to answer further questions. Farley testified that he concluded Kroll was the driver based on the fresh seat belt mark on Kroll’s left shoulder, which was cons istent with the partial distention of the Jeep’s driver’s side seat belt, as well as th e positioning of the driver’s seat to fit a person of Kroll’s height, and Mahon’s statement placi ng Kroll inside the Jeep. He had Kroll sit
in the driver’s seat to confirm that he fit the driver’s seat as adjusted. Farley indicated he would not be surprised if the red mark he ha d observed on Kroll’s sh oulder had faded by the following morning. 2 He did not recall Misner coming to the accident scene. The DMV hearing officer upheld the license suspension. In her written findings, the hearing officer indicated she was giving no weight to Mahon’s testimony at the hearing, and concluded that Morgan, Misner and Anderson were not cr edible witnesses. The officer also noted, “[Kroll] stated that he sat on the right passenger side of Mr. Misner’s car, however, [Farley] determined that the belt ma rk[] was on his left neck and left shoulder. His excuse[] that martial arts caused his ankle injury is given little weight because his ankle’s injury still had fresh blo od bleeding. The pictures taken by [Kroll] [were] not taken at the time of the acciden t therefore, they are given no weight. Therefore, the testimony of [Kroll] is not deemed credible at the hearing. [¶] [Farley] was consistent while testifying, in that his test imony at the hearing is consistent with his report which [was] made at or near the time of the accident.” Kroll filed a petition for writ of mandate in superior court challenging the license suspension. He argued: (1) his Sixth Am endment right to con front witnesses was

2 Although Farley was asked about th e injury dissipating by the following morning, the photographs of Kroll’s torso were taken the evenin g of October 1 after 7:00 p.m.5 violated because Mahon refuse d to answer questions about the accident; (2 ) the evidence he presented at the DMV hearing rebutted th e presumption that he was driving; and (3) the trial court had the power to make its own credibility determin ation and should find
his witnesses credible. After hearing argument and taking the matter under submission to review the administrative record, the trial court issued an order denying the writ. “The evidence strongly supports the Hearing Officer’s determination that ‘[Kroll] was driving a motor
vehicle at the time that concentr ation of alcohol in his blood was at or above 0.08%.’ . . . Moreover, the evidence also strongly supports the determination that the arresting officer had probable cause to believe that [Kro ll] was in violation of Vehicle Code [section] 23152 . . . , and that the arrest wa s lawful. The court notes that the Hearing Officer was in the best position to asse ss the credibility of the witnesses.” The criminal charges against Kroll for dr iving under the influence were dismissed
for lack of evidence.
II. DISCUSSION
A. License Suspension Procedur e and Standard of Review The DMV must immediately suspend the driving privileg es of a person who drives
a motor vehicle with a blood alcohol level of .08 percent or higher. (Veh. Code, § 13353.2, subd. (a)(1).) The driver may request an administrative hearing to challenge the suspension, which will be upheld if the DMV demonstrates by a preponderance of the evidence (1) the peace officer ha d reasonable cause to believe the person was driving in violation of Vehicle Code section 23152; (2) the person lawfully wa s arrested; and (3) the person was driving with a blood alcohol leve l of .08 percent or higher. (Veh. Code, §§ 13557, subd. (b)( 1), 13558, subds. (a), (c)(2); Lake v. Reed (1997) 16 Cal.4th 448, 454, 456 ( Lake ); Manriquez v. Gourley (2003) 105 Cal.A pp.4th 1227, 1232.) An administrative hearing on a license suspension “need not be conducted according to technical rules relating to evid ence and witnesses . . . . Any relevant
evidence shall be admitted if it is of the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any6 common law or statutory rule which might ma ke improper the admission of the evidence over objection in civil actions.” (Gov. Code, § 11513, subd. (c); Hildebrand v. Department of Motor Vehicles (2007) 152 Cal.App.4th 1562, 1569.) A police report is
“ ‘the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs.’ ” ( Lake , supra , 16 Cal.4th at p. 461.) Hearsay evidence may be introduced “for the purpose of suppleme nting or explaining ot her evidence, but over timely objection shall not be sufficient in its elf to support a finding unless it would be admissible over objection in civil actions.” (Gov. Code, § 11513, subd. (d); see
Hildebrand v. Department of Motor Vehicles, at p. 1569.)
A driver dissatisfied with the result of a license susp ension hearing may file a petition for writ of administrative mandate in superior court. (V eh. Code, § 13559, subd. (a); Code Civ. Proc., § 1094.5.) The co urt must exercise its independent judgment to determine whether the weight of the evid ence supports the DMV’s decision. (Veh. Code, § 13559, subd. (a); Lake, supra , 16 Cal.4th at p. 456.) On appeal, we review the
record to determine whether su bstantial evidence supports th e trial court’s findings, and may overturn the trial court’s factual findings only if the evidence is insufficient as a matter of law. ( Lake , at p. 457.) We review de no vo any pure questions of law. ( Brierton v. Department of Motor Vehicles (2005) 130 Cal.App.4th 499, 508 ( Brierton ).)
B. Kroll Was Not Denied Due Process Base d on Mahon’s Invocation of Her Fifth Amendment Right to Silence The police report introduced at the administrative hearing described three statements made by Mahon on the nigh t of the accident—that someone named “Margaret” had been driving the Jeep, that Kr oll had not been inside the Jeep at the time of the accident, and that Kroll had been in the back passenger seat of the Jeep. Kroll argues the use of these statements deprived him of due process because Mahon invoked her right to remain silent at the he aring and could not be cross-examined. 3 We disagree.

3 As might be expected, the reason for Mahon’s invocation of the Fifth Amendment privilege is not a part of the admi nistrative record. While Kroll’s briefing at times treats the invocation as su pport for his claim that Mahon was the actual driver and7 We begin by noting that only the last of the three statements by Mahon—that
Kroll was in the back seat of the Jeep at the time of the accident—was incriminating in any way, because it contradicted his claim he arrived at the scene after the accident. The other two statements—that someone named Marg aret had been drivin g the Jeep and that Kroll had not been in the Jeep —supported Kroll’s claim he was not the driver and were not in any sense prejudicial to his case. Our discussion therefore focuses on Mahon’s statement that Kroll was riding in the back seat of the Jeep. When, as here, the independent judgment test is applied at the trial court level, we
examine the actions of the trial court ra ther than the DMV hearing officer. ( Thompson v. Department of Motor Vehicles (1980) 107 Cal.App.3d 354, 358; see also MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 2 04, 218.) Although we review the trial court’s findings to determin e whether they are supported by substantial evidence, we review a challe nge to an evidentiary ruling for abuse of discretion. ( Miyamoto v. Department of Motor Vehicles (2009) 176 Cal.Ap p.4th 1210, 1217.) Kroll’s due process claim, though constitutionally based, concerns the admissibility of hearsay evidence. As he did not object at the administrative hearing to Mahon’s out-of-court statement placing him in side the Jeep, his claim was forfeited, and
the trial court would not have abused its di scretion in considering the statement. ( Dibble v. Gourley (2002) 103 Cal.App.4th 496, 503 [ objection at administrative hearing necessary to preserve challenge based on hearsay], overruled on another ground in MacDonald v. Gutierrez (2004) 32 Cal.4th 150, 158–159; Jackson v. Department of
Motor Vehicles (1994) 22 Cal.App.4th 730, 738 [failu re to make foundational objection to arrest report at DMV hearing forfeited ch allenge to admissibility of document]; see
also Bledsoe v. Biggs Unified School Dist. (2008) 170 Cal.App.4th 127, 141 & fn. 11 [current version of Govt. Code, § 11513 , subd. (d) requires hearsay objection at

was concerned about a criminal prosecution for driving under the infl uence, the Attorney General notes that Mahon’s apparently false statements to police officers regarding the identity of the driver could ha ve caused her to fear prosec ution for violating Penal Code section 148.8 administrative hearing]; Lake , supra , 16 Cal.4th at pp. 461–462 [witness statements identifying person as the drive r, though otherwise hearsay subj ect to no exception, were admissible to supplement or explain the driver’s own admission under Govt. Code, § 11513, subd. (c)].) Even if Kroll’s challenge were cogniza ble on appeal, we would find any error harmless. “No judgment shall be set aside . . . in any cause . . . for any error as to any matter of procedure, unless, after an exam ination of the entire cause, including the evidence, the court shall be of the opinion that the error complain ed of resulted in a miscarriage of justice.” (C al. Const., art. VI, § 13; Leal v. Gourley (2002) 100 Cal.App.4th 963, 968 [apply ing standard of prejudice in California Constitution to error in DMV proceedings].) “In other words, it must be reasonably probable a more
favorable result would have been reache d absent the error. [Citation.]” ( Lone Star Security & Video, Inc. v. Bureau of Security & Investigative Services (2009) 176 Cal.App.4th 1249, 1255.) Error is not pr ejudicial when it is merely cumulative of other evidence properly in th e record or “ ‘was not ne cessary, the judgment being supported by other evidence.’ ” ( Ibid .) Mahon’s statement placing Kroll in the Jeep, though contrary to Kroll’s position he arrived at the scene after the accident, di d not identify him as th e driver. The evidence
as a whole made it clear Mahon was intoxicate d at the scene and woul d have had as much incentive as Kroll to deny having driven the Jeep if she had b een the guilty party. Other, stronger evidence supported the conclusion Kroll was the driver—his injuries, his implausible explanations for those injuries, the position of the Jeep’s driver’s seat, and his failure to direct the police to friends who could corroborate his story. It is not reasonably probable Kroll wo uld have obtained a more favorable result if Mahon’s statement had been disregarded. “Due process requires full and fair admini strative hearings that provide drivers a ‘ “meaningful opportunity to present their case.” ’ [Citation.]” ( Petrus v. Department of
Motor Vehicles (2011) 194 Cal.App.4th 1240, 1244.) Kroll was given a full administrative hearing, at which he was able to cross-examine the investigating officer9 and present the testimony of three witnesses who supported his vers ion of events. His case was reviewed by the tria l court in a mandamus procee ding. His inability to crossexamine Mahon regarding statements that di d not identify him as the driver did not render the proceedings unfair.
C. Witness Credibility The DMV hearing officer noted in her written findings that she had determined
Kroll’s witnesses were not credible. Kroll argues the trial court improperly deferred to this finding, rather than making its own a ssessment of witness credibility. We are not persuaded. When a driver petitions fo r a writ of mandate following a license suspension, the trial court exercises its independ ent judgment on the evidence. ( Morgenstern v. Department of Motor Vehicles (2003) 111 Cal.App.4th 366, 372 .) As part of this review, the court is permitted to draw its own infe rences from the evidence and make its own credibility determinations. ( Ibid .) At the same time, it must afford a strong presumption of correctness to the administrative findings, with the burden resti ng on the complaining party to show the decision is contrary to the weight of the evidence. ( Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817; Arthur v. Department of Motor Vehicles (2010) 184 Cal.App.4th 1199, 1204–1205.) The order denying the writ indicates th e court reviewed the writ petition, the administrative record, the DMV’s opposition, and supple mental points and authorities submitted by Kroll. The supplemental point s and authorities discuss the independent judgment standard at length and urge the cour t to find Kroll’s witnes ses credible. During oral argument before the trial court on the wr it, the parties discussed the weight of the
evidence and the relative cred ibility of the witnesses. In light of the briefing and argument on this subject, and given the la ck of any indication to the contrary, we presume the trial court was aware of the ap plicable law and applied the appropriate standard when reviewing th e administrative record. ( Howard v. Thrifty Drug & Discount
Stores (1995) 10 Cal.4th 424, 443; In re Merrick V. (2004) 122 Cal. App.4th 235, 25410 [absent indication to the cont rary, we presume court was aware of and followed the law]; Evid. Code, § 664.) Kroll points to the final sentence in th e order denying the writ, which states, “The court notes that the Hearing Officer was in th e best position to assess the credibility of the witnesses.” He argues this language shows the trial court declined to make its own
determination of witn ess credibility, citing Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 658. In that case, the trial court considered an administrative decision upholding the termination of a polic e officer “where the major underlying issue was one of credibility.” ( Id . at p. 653.) Though bound to apply an independent standard of review when considering the officer’s petition for writ of mandate, the trial court expressly, and incorrectly, stated it had no ability to rewe igh the credibility determinations made by th e administrative agency. ( Id . at pp. 658–659.) Because the court was “flatly wrong,” and because the e rror “went to the heart of [the] case” ( id . at p. 659), the matter was remanded to the trial court for a redetermination of the mandate petition ( id . at p. 660).
No similar error infects th e trial court’s decision in this case. The court simply
observed that the DMV officer who actua lly heard the testimony of the witnesses firsthand was in the best position to assess th eir credibility. Independent review “ ‘does not mean that the preliminary work performed by the [agency] in sifting the evidence and making its findings is wasted effort. . . . [I ]n weighing the eviden ce the courts can and should be assisted by the findings of the [agency]. The findings of the [ agency ] come before the court with a str ong presumption of their corre ctness, and the burden rests on the complaining party to co nvince the court that the [ agency ] ’s decision is contrary to the weight of the evidence . [Citation.]” ( Fukuda v. City of Angels , supra , 20 Cal.4th at p. 812.)
D. Substantial Evidence Kroll argues the evidence be fore the trial court was insu fficient as a matter of law
to sustain a determination he drove under the influence. Again we disagree. Our review
of the trial court’s decision is for substantial evidence, with all conflic ts resolved in favor11 of the trial court’s decision and all fact ual findings upheld un less the evidence was insufficient as a matter of law. ( Lake , supra , 16 Cal.4th at p. 457 .) When two or more
inferences can be deduced fro m the facts, the appellate court may not substitute its judgment for that of the trial court. ( Brierton , supra , 130 Cal.App.4th at p. 508.) A number of circumstances support the trial court’s determination Kroll was the driver: (1) he was present at the accident scene; (2) Farley obse rved a red mark on
Kroll’s shoulder that matched the distended seat belt in the driver’s seat of the Jeep; (3) Kroll’s initial explanation of his inju ries as resulting from “martial arts” was implausible, and was contrary to his equa lly implausible testimony at the DMV hearing that his ankle injury was caused by a sword wh ile dancing at the party; (4) the driver’s seat was adjusted for someone of Kroll’s hei ght, and Mahon, the only other person at the scene, was shorter than Kro ll; (5) Kroll identified “Maur een” as the driver, but this person was not at the scene of the accident; a nd (6) though Kroll told Farley he had been dropped off at the scene by a friend, he neve r provided contact info rmation to the police so they could verify his clai m he had not been dr iving. Though the trial court had the power to reweigh the evidence in its review, we do not. ( Brierton , supra , 130 Cal.App.4th at p. 508.) Substantial evidence supports the denial of the writ.12 III. DISPOSITION The judgment is affirmed.

NEEDHAM, J.

We concur.

JONES, P. J.

SIMONS, J.