Filed 12/11/19 Tavorn v. Shiomoto CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

XAVIER TAVORN,

Plaintiff and Appellant,

v.

JEAN SHIOMOTO, as Director, etc.,

Defendant and Respondent.

F076994

(Super. Ct. No. BCV-17-101412)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Thomas S. Clark, Judge.

Middlebrook & Associates, Richard O. Middlebrook and Patrick R. Bowers for Petitioner and Appellant.

Xavier Becerra, Attorney General, Chris A. Knudsen, Assistant Attorney General, Kenneth C. Jones and Jaclyn V. Younger, Deputy Attorneys General, for Defendant and Respondent.

-ooOoo-

Appellant Xavier Tavorn filed a petition for writ of mandate to challenge the one-year suspension of his driver’s license by respondent Department of Motor Vehicles (Department). The superior court denied the petition. Tavorn appealed.

Tavorn contends the traffic stop that lead to his refusal to complete a blood-alcohol test was made without a reasonable suspicion that a crime was being committed. He contends the initial detention violated his rights under the Fourth Amendment and, therefore, the administrative decision suspending his license must be vacated. The superior court’s decision addressed this issue by stating “Officer Plotner had probable cause to contact [Tavorn]” and “[t]his was not contested in this proceeding.”

Tavorn’s primary challenge is based on determinations apparently made by a judge in a criminal proceeding. Those determinations are not part of the appellate record and, thus, cannot be considered in deciding this appeal. The appellate record, which includes the certified administrative record of proceedings, contains substantial evidence supporting the findings of fact underlying the superior court’s conclusion that Officer Plotner had a particular and objectively reasonable ground for stopping Tavorn’s vehicle. Consequently, the superior court did not commit reversible error. As to Tavorn’s secondary challenge, we conclude the statutory provision setting forth the consequences of failing to complete a chemical test need not be read verbatim to arrestees. Here, the warnings given to Tavorn adequately advised him the consequences of failing to take a test—namely, the suspension of his license for a year.

We therefore affirm the judgment.

FACTS

On Friday, September 30, 2016, Officer Plotner and Officer Avis of the California Highway Patrol were on routine patrol in a fully marked black and white vehicle. At approximately 1:15 a.m., while traveling north in the number one lane of Calloway Drive, south of Hageman Road, Officer Plotner saw a white pickup truck ahead of him in the left turn lane. As the pickup was making a U-turn, Officer Plotner observed the rear passenger in the pickup moving in a manner suggesting he was not wearing a seatbelt. While the pickup was still making the U-turn, Officer Plotner noticed a light on the rear license plate was inoperable. Officer Plotner testified, “And after he completed the u-turn I noticed when he made the turn, completed the turn, in the number 2 lane, the middle lane, his left tires touched over the broken white lines on the left hand side of the lane.” The pickup then slowed down and the driver turned on his right turn signal. Officer Plotner activated his vehicle’s red emergency lights and the pickup pulled into a convenience store parking lot.

Officer Plotner approached the stopped pickup on its driver’s side and smelled the odor of alcohol coming from its rolled down windows. Officer Plotner made contact with Tavorn, identified Tavorn by his driver’s license, and asked him to step out of the pickup. Officer Plotner then asked Tavorn a few questions, went into a driving-under-the-influence investigation, and placed Tavorn under arrest at approximately 1:34 a.m. A Mobile Video Audio Recording System (MVARS) was activated during the stop.

PROCEEDINGS

The administrative hearing on the suspension of Tavorn’s driving privileges took place on May 18, 2017, before Hearing Officer L. Williams. At the start of the hearing, Hearing Officer Williams stated the scope of the hearing was limited to the following issues: (1) Did Officer Plotner have reasonable cause to believe that Tavorn had been driving a motor vehicle in violation of Vehicle Code sections 23152 or 23153? (2) Was Tavorn lawfully arrested? (3) Was Tavorn told that if he refused to submit to a chemical test or failed to complete a chemical test his driving privilege would be suspended for one year or revoked for two or three years? (4) Did Tavorn refuse to submit to, or fail to complete, a chemical test after being requested to do so by Officer Plotner?

Hearing Officer Williams introduced four exhibits into evidence. Exhibit No. 1 was Officer Plotner’s “Age 21 and Older Officer Statement” dated September 30, 2016. This exhibit contained his statement of probable cause that lead to the stop of Tavorn’s vehicle, which included the following: “I observed a white pickup ahead of my patrol vehicle in the left turn lane. I observed a passenger in the rear middle seat moving around and possibly not wearing a seatbelt. The pickup made a u-turn and I observed the rear license plate light was inoperable. As the pickup completed the turn, the left tires of the pickup crossed over the broken white lines.” Exhibit No. 3 was a driving under the influence arrest—investigation report on form CHP 202, which included six pages of narrative to supplement the form CHP 202. In a paragraph describing his first observations, Officer Plotner included the same description quoted from Exhibit No. 1. Tavorn’s exhibit at the administrative hearing was the MVARS recording.

During the administrative hearing, Officer Plotner confirmed he completed the documents marked as Exhibits Nos. 1 and 3 while the events were fresh in his mind and the information in the reports was true and correct to the best of his knowledge. He also testified to the events leading up to the vehicle stop and subsequent arrest of Tavorn. Under cross-examination, Officer Plotner was asked about the first thing that drew his attention to the pickup—that is, the movement in the backseat that caused him to believe the passenger in the back might not be belted in. He replied:

“It appeared that he was—when I drew closer to the rear of the vehicle, the rear of the pickup, he was on the right side of the rear seat. He moved almost completely within the middle of that bench seat and then moved back which, you know, made me—you know, it’s hard for me to believe that he was wearing any kind of seatbelt with that much movement.”

When asked about the amount of time that passed between seeing the passenger’s movement until he approached the pickup, Officer Plotner stated it was less than a minute. Officer Plotner did not recall if the passenger was wearing a seatbelt when he shown his light into the back of the vehicle.

On June 2, 2017, Hearing Officer Williams issued a five-page notification of findings and decision. The decision suspended Tavorn’s driving privilege for one year, beginning June 11, 2017. The decision’s findings of fact about probable cause for the vehicle stop accepted the testimony of Officer Plotner as accurate, found probable cause existed, and listed the evidentiary support as Officer Plotner’s testimony, the Department exhibits, and the MVARS recording offered by Tavorn.

On June 23, 2017, Tavorn filed a petition for writ of mandate requesting the superior court to set aside the Department’s order suspending his driver’s license. Tavorn also requested a stay of the operation of that order. Tavorn’s petition alleged, among other things, that Officer Plotner did not properly advise him, as required by Vehicle Code section 23612, that his driving privilege would be suspended or revoked if he refused or failed to complete a required chemical test to determine his blood-alcohol content. In addition, the petition alleged the Department failed to meet its burden of demonstrating Tavorn “was fully advised under Vehicle Code section 23612.”

In August 2017, after the certified administrative record was lodged and the parties completed their briefing, the superior court held a hearing on the petition. After discussing the court order staying the suspension, the court asked counsel if there was a criminal case “waiting for my ruling on this?” Tavorn’s counsel answered, “Yes, Your Honor.”

The primary issue at the hearing was whether Tavorn had been advised as required by Vehicle Code section 23612 of the consequences of failing to submit to a chemical test. During argument, the superior court stated, “it seems to me the legal issue is the interpretation of Vehicle Code section 23612, whether it requires verbatim reading of the card or whether it suffices to substantively advise as to the matters that are covered by the card. [¶] Then it sounds like there may be a contention that there’s a factual issue as to whether or not the driver was advised, specifically advised, that his license would be suspended if he refused. [¶] Am I overlooking any issues?” Counsel for Tavorn responded, “I think that’s it, Your Honor.”

On August 28, 2017, the superior court issued a written ruling denying the petition for writ of mandate. The superior court found “Officer Plotner observed that a passenger in the vehicle appeared to be unseatbelted,” determined Officer Plotner had probable cause to stop the pickup, and noted “[t]his was not contested in this proceeding.”

With respect to the advisement, the superior court found that after the arrest Officer Plotner began to read to Tavorn from Form DS-367, but did not complete reading the form on that occasion. The court found there was no evidence Officer Plotner completed reading the entire contents of Form DS-367 or advised Tavorn of all the matters referenced in Vehicle Code section 23612, subdivision (a)(1)(D). However, the court found Officer Plotner advised Tavorn of the consequences of refusing to perform a chemical test at the scene and subsequently at the hospital. Tavorn was informed he would lose his license for at least a year if he did not take a test. The court supported its findings by noting the audio recording on the MVARS captured numerous statements to Tavorn that his driving privilege would be suspended for one year if he did not submit to a test.

The superior court concluded there was no legal requirement that the entire Form DS-367 be read as a precondition to license suspension. Similarly, the court concluded each and every provision in Vehicle Code section 23612, subdivision (a)(1)(D) need not be read to an arrestee as a precondition to license suspension.

On October 10, 2017, the superior court filed a judgment denying the petition for writ of mandate. The register of actions included in the clerk’s transcript shows no filing of a notice of entry of judgment. On February 6, 2018, Tavorn filed a notice of appeal, which was within the 180-day period specified by California Rules of Court rule 8.104(a)(1)(C). Thus, the appeal is timely.

DISCUSSION

I. LEGAL PRINCIPLES

A. Suspension of Licenses

Chapter 1 of division 6 of the Vehicle Code governs the issuance, expiration and renewal of drivers’ licenses. Chapter 2 addresses the suspension or revocation of licenses and is divided into four articles: (1) general provisions, (2) suspension or revocation by court, (3) suspension of revocation by Department, and (4) procedure. The article on procedure addresses both the administrative process and judicial review.

A final administrative decision by the Department to suspend an individual’s driver’s license is subject to judicial review in the superior court by means of a petition for writ of mandate. (Bussard v. Department of Motor Vehicles (2008) 164 Cal.App.4th 858, 862 (Bussard).) “The review shall be on the record of the hearing and the court shall not consider other evidence.” (Veh. Code, § 13559, subd. (a), italics added.) In conducting its review, the court considers whether “the department [1] exceeded its constitutional or statutory authority, [2] made an erroneous interpretation of the law, [3] acted in an arbitrary and capricious manner, or [4] made a determination which is not supported by the evidence in the record.” (Veh. Code, § 13559, subd. (a).) If the court finds one or more of these errors occurred, it “may order the department to rescind the order of suspension.” (Ibid.)

“A driver’s license is a fundamental right for the purpose of selecting the standard of judicial review of an administrative decision to suspend or revoke such license.” (Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392, 398.) The superior court must exercise its independent judgment when reviewing the Department’s decision to suspend a driver’s license. (Bussard, supra, 164 Cal.App.4th at p. 863.) In comparison, the appellate court’s review of the superior court’s decision generally is limited to determining whether its factual findings are supported by substantial evidence. (Ibid.) In some appeals, questions of law are presented, such as a question of statutory interpretation. In deciding questions of law, the appellate court exercises its independent judgment. (Ibid.)

B. Fourth Amendment

The Fourth Amendment of the United States Constitution guarantees “[t]he right of the people to be secure in their persons … against unreasonable searches and seizures .…” The Fourth Amendment protects the people from arrest without probable cause and from investigatory detention without a reasonable suspicion. (Bailey v. United States (2013) 568 U.S. 186, 192; Terry v. Ohio (1968) 392 U.S. 1, 6–7.)

The Fourth Amendment permits brief investigatory detentions, such as a traffic stop, when the law enforcement officer has “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” (United States v. Cortez (1981) 449 U.S. 411, 417–418.) Determining whether a reasonable suspicion exists requires a consideration of “the totality of the circumstances—the whole picture” (id at p. 417) and depends “upon both the content of information possessed by police and its degree of reliability” (Alabama v. White (1990) 496 U.S. 325, 330). A mere “hunch” is not the equivalent of a reasonable suspicion. (Terry v. Ohio, supra, 392 U.S. at p. 27.) However, “the level of suspicion the standard requires is ‘considerably less than proof of wrongdoing by a preponderance of the evidence,’ and ‘obviously less’ than is necessary for probable cause, [citation].” (Navarette v. California (2014) 572 U.S. 393, 397.)

C. Blood-Alcohol Testing

Pursuant to Vehicle Code section 23612, anyone who drives a motor vehicle and is lawfully arrested for allegedly driving under the influence of alcohol is deemed to have consented to chemical testing of his or her blood or breath to determine his or her blood-alcohol level. (See Veh. Code, §§ 23152 [driving under the influence], 23153 [driving under the influence and cause bodily injury to another].) Pursuant to subdivision (a)(1)(D) of Vehicle Code section 23612, “[t]he 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 (i) the administrative suspension by the department of the person’s privilege to operate a motor vehicle for a period of one year, (ii) .…”

II. REASONABLE SUSPICION FOR THE STOP OF TAVORN’S VEHICLE

A. Sufficiency of the Evidence

California’s Motor Vehicle Safety Act (Veh. Code, § 27315) makes the use of seatbelts by the driver and passengers of a motor vehicle mandatory. “A person shall not operate a motor vehicle on a highway unless that person and all passengers 16 years of age and over are properly restrained by a safety belt.” (Veh. Code, § 27315, subd. (d)(1).) An occupant is “‘properly restrained by a safety belt’” if “the lower (lap) portion of the belt crosses the hips or upper thighs of the occupant and the upper (shoulder) portion of the belt, if present, crosses the chest in front of the occupant.” (Veh. Code, § 27315, subd. (d)(2).)

Here, Officer Plotner’s testimony at the administrative hearing constitutes substantial evidence supporting the finding that he had a reasonable suspicion that the rear passenger in Tavorn’s pickup was not wearing a safety belt and, thus, was violating Vehicle Code section 27315. (See Evid. Code, § 411; In re Marriage of Mix (1975) 14 Cal.3d 604, 614 [testimony of single witness may constitute substantial evidence].) Therefore, the superior court did not make an erroneous finding of fact when it impliedly determined the potential violation of the seatbelt requirement justified Officer Plotner’s decision to stop Tavorn’s pickup.

In addition, the superior court’s reference to “probable cause” for the investigative stop, rather than the reasonable suspicion standard, does not constitute prejudicial legal error. The evidence needed to create a “reasonable suspicion” is less than that needed for “probable cause.” (Navarette v. California, supra, 572 U.S. at p. 397.) Therefore, the superior court’s references to the more rigorous standard caused Tavorn no harm.

B. Procedural Matters

1. Forfeiture

As a second and independent ground for upholding the superior court’s denial of the petition for writ of mandate, we conclude Tavorn forfeited the Fourth Amendment claim by failing to raise it in the trial court. (Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 799–800.)

2. Scope of the Record

The proper scope of the record presented to the superior court is defined by Vehicle Code section 13559, subdivision (a). The statute provides that judicial “review shall be on the record of the [administrative] hearing and the court shall not consider other evidence.” (Veh. Code, § 13559, subd. (a).) Here, the superior court complied with this requirement. At the start of the hearing, the court asked if “this is going to be argued and submitted based on the transcript and the record” and received an affirmative answer from counsel. Also, to the extent that Tavorn contends the superior court should have considered the findings made by the judge handling the criminal case, that was impossible because the criminal case was still pending at the time of the superior court’s hearing on the petition for writ of mandate.

Alternatively, assuming for purposes of this appeal that the findings of the judge who handled the criminal case would be relevant to appellate review, those findings are not part of the appellate record. (See Christ v. Schwartz (2016) 2 Cal.App.5th 440, 450, fn. 5 [documents that are not part of the superior court’s record cannot be considered on appeal].) As a result, the description of those findings in Tavorn’s appellate briefs are not supported by cites to the record. (See Cal. Rules of Court, rule 8.204(a)(1)(C) [references to matters in the record].) Accordingly, this court cannot accept Tavorn’s description of what happened in the criminal proceeding because that description is not supported by matters in the appellate record. Based on Vehicle Code section 13559, subdivision (a) and the basic principles of appellate procedure, we cannot overturn the superior court’s decision based on determinations that might have been made in the criminal proceeding against Tavorn.

III. SUFFICIENCY OF ADVISEMENT

At oral argument, counsel for Tavorn asserted the record established part of the advisement set forth in Vehicle Code section 23612, subdivision (a)(1)(D) was not read to Tavorn and the defective advisement prevented the Department from suspending his license. The deputy attorney general argued the issue has been waived because it was not raised in the administrative hearing.

On the question of statutory interpretation presented by Tavorn’s argument, we conclude substantial compliance with the requirements of Vehicle Code section 23612, subdivision (a)(1)(D) is all the law requires. We reject the interpretation that the contents of the statutory provision or Form DS-367 must be read verbatim to the arrestee. In People v. Harris (2015) 234 Cal.App.4th 671, the Fourth District stated that, “although Deputy Robinson inaccurately advised defendant that refusing to submit to a blood test would automatically result in a two- or three-year license suspension, he correctly informed defendant that his license would in fact be suspended if he refused to submit to a blood test. As the appellate division recognized in its opinion, failure to strictly follow the implied consent law does not violate a defendant’s constitutional rights. [Citations.]” (Id. at p. 692; see People v Brannon (1973) 32 Cal.App.3d 971 [failure to advise defendant charged with drunk driving of his statutory right to choose among three blood-alcohol tests did not render results of breathalyzer inadmissible in prosecution for misdemeanor drunk driving].) Here, we conclude Tavorn was adequately advised of the consequences of his failure to complete a blood-alcohol test when Officer Plotner specifically told him that he was going to lose his license for at least a year if he did not take a test.

DISPOSITION

The judgment denying Tavorn’s petition for writ of mandate is affirmed.