P. v. Diaz CA2/6

Filed 6/24/13 P. v. Diaz CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B239571 (Super. Ct. No. F461988) Plaintiff and Respondent, (San Luis Obispo County)

v.

JOHN SYLVESTER DIAZ,

Defendant and Appellant.

John Sylvester Diaz appeals from the judgment entered after his no contest plea to driving with a blood-alcohol level of .08 percent or more. (Veh. Code, § 23152, subd. (b).) Appellant admitted three prior convictions of driving under the influence. The three priors made the present crime a felony offense. ( Id., § 23550.) Appellant was granted probation on condition that he serve 300 days in county jail. Appellant pleaded no contest after the trial court had denied his motion to suppress evidence pursuant to Penal Code section 1538.5.1 Appellant contends that the trial court erred because the police made a warrantless entry into his residence without probable cause or exigent circumstances. He also contends that the 1 Unless otherwise stated, all further statutory references are to the Penal Code.

1

warrantless, nonconsensual drawing of blood from his person violated his Fourth Amendment rights. We affirm. Evidence Presented at the Section 1538.5 Hearing In the afternoon on June 29, 2011, Officer Adrian Ayala was on patrol when he received a call from a police dispatcher about a vehicle collision. The dispatcher said that the driver of the vehicle, who appeared to be intoxicated, had fled the scene on foot and entered a residence. According to the dispatcher, "the suspect had been staggering and had to . . . h[o]ld on to some mailboxes as he was fleeing the scene." The dispatcher relied upon a 911 call from Tim Strobridge. Strobridge had not witnessed the collision. He was inside his house when he heard "a very loud crash." He "immediately ran out because [he] was afraid somebody got hurt and saw the car precariously on its side up against a barbwire fence." Appellant was behind the wheel of the vehicle. Strobridge told the dispatcher that the driver was "drunk." About 10 minutes after the call from the dispatcher, Officer Ayala arrived at the scene. He saw the vehicle in question, which had "crashed up against" and damaged a fence. The vehicle was off the south roadway edge on the wrong side of the road. No other vehicle had been involved in the collision. Officer Ayala met Strobridge at the residence that the driver had entered. Strobridge said that two sisters resided there and that he did not recognize the driver. Strobridge also said that the driver "was bleeding . . . from the face and head and that his shirt was torn and bloody." In addition, Strobridge said that the driver "was stumbling all over the place and . . . needed to use the mailbox [for support] just to stand and continue." Strobridge assured Ayala that the driver was still inside the residence.