(Santa Clara County Super. Ct. No. CC649614)
The opinion of the court was delivered by: Elia, J.
CERTIFIED FOR PUBLICATION
After an unsuccessful motion to suppress, George Constantine Xinos was convicted by a jury of vehicular manslaughter while violating Vehicle Code*fn1 section 23153 (former Pen. Code, § 192, subd. (c)(3)) (count one), failing to stop at scene of an accident resulting in the death or permanent, serious injury of another person (§ 20001, subds. (a), (b)) (count two), driving under the influence of alcohol and causing injury (§ 23153, subd. (a)) (count three), and driving under the influence of alcohol with a blood alcohol level of at least 0.08 percent and causing injury (§ 23153, subd. (b)) (count four). The jury also found true that defendant fled the scene after committing vehicular manslaughter (§ 20001, subd. (c)) and, with respect to counts three and four, defendant personally inflicted great bodily injury upon the victim within the meaning of Penal Code sections 12022.7, subdivision (a), and 1203, subdivision (e)(3). The court sentenced defendant to a total prison term of seven years for vehicular manslaughter and fleeing the scene after committing that offense (former Pen. Code, § 192, subd. (c)(3); § 20001, subd. (c)) and stayed imposition of sentence on the remaining convictions and enhancements.
In a case of first impression in California, defendant argues that the downloading of data from his vehicle's sensing and diagnostic module (SDM), also sometimes referred to as an event data recorder (EDR), following the fatal vehicle-pedestrian collision violated his Fourth Amendment rights and the trial court erred in denying his motion to suppress. He also claims instructional error. We conclude defendant's suppression motion should have been granted and reverse.
At about 12:30 a.m. on May 6, 2006, a white SUV driven by defendant struck and killed Marcus Keppert, who was crossing Almaden Expressway at Camden Avenue. Keppert was six foot, seven inches tall and weighed approximately 260 pounds. His blood contained no drugs, and he had a blood alcohol content of .00.
Kay Hoagland, a driver on southbound Almaden Expressway who was waiting to turn left onto Camden Avenue, witnessed the collision. She saw a pedestrian, who was wearing dark clothing, walking toward the intersection at Almaden Expressway on the sidewalk on Camden Avenue. She was watching him on and off as he approached the intersection and saw him looking at a car traveling southbound. She saw the pedestrian go out into the intersection and she saw a white SUV strike him in lane number one, next to the left turn lane. She had thought that the pedestrian had gone a "little bit" into lane number one and the SUV would miss him but the SUV's right front side, close to the mirror area, struck the pedestrian.
She estimated that the driver of the SUV was traveling near or just over the speed limit. She did not see anything to indicate that the SUV driver applied the brakes before striking the pedestrian. She thought the SUV driver had reacted by stepping on the brake but "it wasn't a full brake . . . ." Following the collision, she turned left and then called 9-1-1.
Aaron Weiss was driving northbound on Almaden Expressway at "roughly 50, 55 miles an hour." Weiss believed the SUV was traveling at about the same speed as was he. Weiss never suspected that defendant was driving under the influence based upon how the SUV was being driven.
The signal light was green for northbound traffic on Almaden Expressway. As Weiss approached the intersection at Camden, he saw the pedestrian's legs in stride lit up by the SUV's headlights and "then almost simultaneously thereafter [he saw] brake lights and then the collision." It had appeared to him that the pedestrian had just barely gotten into the roadway when he was hit. At most, a second or two passed between the illumination of the pedestrian's legs and the collision. Weiss heard a thud.
Weiss agreed that a pedestrian wearing dark clothing would be difficult to see against the dark background and he had not anticipated anybody stepping out into the pedestrian walkway against a red light. He would not have been able to see the pedestrian if the lights of the SUV had not illuminated him.
Weiss saw the SUV stop north of the intersection. Weiss crossed the intersection and pulled up behind the SUV. His assessment, as he passed the body, was that the pedestrian had been killed.
Defendant did not get out of the car or return to the location of the body. He drove away and Weiss followed. The SUV turned into the first side street off the expressway. When Weiss located the SUV, he called 9-1-1 and gave the license plate number. Defendant was standing outside his car toward the front on the passenger side. He looked a bit dazed and in shock; he did not try to flag Weiss down. Weiss drove back to the scene of the collision.
Sometime after midnight on May 6, 2006, San Jose Police Officer Robert Forrester responded to a citizen report that a suspicious vehicle was parked in front of the person's house. He was also aware of a fatal hit and run collision in the area. When he arrived at Cloverhill Drive at 1:04 a.m., he observed a vehicle with fresh body damage and blood and biological fluids on it. He spoke to the person who had called. The officer then began taking photos of the vehicle, which was locked. As he was doing so, the fog lamps flashed once, which indicated to him that "someone with a key fob set off the button." Officer Forrester "began to walk door to door because [he knew] the remote normally only works within about 150 feet."
Officer Forrester made contact with defendant in the doorway of a house on the same side of the street. Defendant said the vehicle belonged to him. He indicated that he did not know what had happened and he admitted to having had "a little" to drink that night. Defendant was obviously intoxicated; he had "red bloodshot watery eyes, slurred speech, and a stagger in his gait." The officer arrested defendant, searched him incident to arrest, and recovered the key fob from a pocket. He filled out a tow sheet to have the vehicle, which was suspected to have been in a hit and run collision, moved from that location to the police warehouse. Police protocol in the case of a fatal collision required the vehicle to be towed to the police warehouse for further inspection.
San Jose Police Officer Jaime Almaraz arrived at Cloverhill Street and took defendant into custody on May 6, 2006 at about 0132 hours. At that time, defendant displayed the objective symptoms of alcohol, including slurred speech, a non-steady gait, and the smell of alcohol. He refused to take a breathalyzer test in the field. Defendant said he did not know what he hit. Officer Almaraz reported that defendant's weight was 160 pounds and he was five foot, eight inches tall.
San Jose Police Officer Liz Checke, the lead investigator on the case, and her partner San Jose Police Officer Kevin Cassidy went to the intersection of Almaden Expressway and Camden Avenue in the early morning hours of May 6, 2006. After she learned that the driver and vehicle were nearby, she proceeded to that location and took photographs of the vehicle. She then returned to the scene of the collision. Officers Checke and Cassidy took photographs of the scene.
At 2:35 a.m. on May 6, 2006, defendant's blood was drawn. His blood alcohol content was 0.18.
Officer Checke completed her investigative report in November 2006. She determined, based upon reconstruction of the accident, that the vehicle's minimum speed was 48 miles per hour (mph) and the maximum speed was 61 mph. Her calculations were consistent with the physical evidence and witness statements. The posted speed limit was 45 mph. She had no evidence that defendant had been braking prior to the collision. She concluded that "the probable and likely speed" was 55 mph. The officer did not consider 55 mph to be an excessive speed at that location, at that time.
Photographs of the damage to defendant's vehicle indicated that the pedestrian was struck in front of the vehicle, went up onto its hood and into the windshield, and then rotated off the vehicle. Body fluids, blood, and "flesh debris" were located on the vehicle. In this case, the officers were not looking for trace evidence inside the vehicle.
Officer Checke determined that the crash occurred in lane number one, the lane closest to the median, and that the pedestrian had been in the intersection for three to five seconds. He had been wearing a black T-shirt, dark blue jeans, and dark shoes. She had information that defendant's blood alcohol level was .18, which was "an associated collision factor." She concluded, however, that speed was not a factor and the primary cause of this collision was the pedestrian stepping out into the intersection. The stretch of roadway between intersections was very dark and it would be difficult for a driver to see someone wearing dark clothing, especially if the driver did not expect to see anyone crossing against a red light. She further concluded that defendant could not have avoided this accident because of the pedestrian's lack of visibility. An unimpaired driver, traveling at 45 to 55 mph, would have about a second and a half reaction time in response to an unexpected danger in the roadway. Even if defendant's vehicle had been traveling at exactly 45 mph, a reasonable driver would not have been able to react quickly enough to avoid hitting a pedestrian stepping out unexpectedly against a red light at night.
On May 11, 2007, she and another officer went to the vehicle impound location and downloaded the data contained in the vehicle's SDM. They accomplished the download using a cable connected to the diagnostic link connector (DLC), which was located underneath the vehicle's dash area on the driver's side. An SDM receives data from various inputs related to the vehicle's restraint systems, seat belt pretensioners and airbags. The data includes information regarding engine speed, vehicle speed and deceleration, throttle percentage, braking, airbag deployment, and the restraint system. The officers did not expect any data from the collision to have registered because none of the airbags had deployed.
During subsequent training in November 2007, Officer Checke learned that there could be data in the SDM even if the airbags did not deploy. Deceleration of the vehicle, for any reason, can cause the module to "wake up." The module does not date stamp the data. Every time the ignition is turned on, a cycle registers. The cycle corresponding to the collision needed to be identified.
Using software, Checke produced a crash data retrieval (CDR) report. It showed information captured during the five seconds before defendant's vehicle experienced a change in velocity. It disclosed the vehicle's speed during the five seconds before the incident. The data indicated that there had been brake activation but the braking "could just be covering the pedal" and was not necessarily hard braking.
If Officer Checke had that additional data when she wrote her investigative report, she would have added speed as "an associated factor." But she still would have found the pedestrian, his action of stepping out against a red light and lack of visibility, was the primary collision factor.
Russell Haight, who ran the Collision Safety Institute and did accident reconstruction, crash research and training, was recognized as a expert in accident reconstruction and EDR technology. He explained that the EDR is a component of the airbag control module and the module's first priority is to decide whether or not the airbags need to be deployed. When an "algorithm wake-up" occurs, the airbag control module analyzes the event. The raw hexadecimal data recorded by EDR can be subsequently copied onto a computer. The data is then analyzed using special CDR system software.*fn2 Haight relied on Officer Checke's downloaded data and reopened the original file using the most recent version of the CDR software.
Although Haight acknowledged that a module's data can be incorrect under certain conditions, Haight concluded that the data in this case was reliable. The module in defendant's vehicle*fn3 recorded vehicle speeds of 69 to 76 mph immediately before the crash. The data indicates that the brake switch was on at minus one second before impact and there was a loss of speed before the crash, from which it may be inferred that defendant saw the pedestrian and was braking. He determined that defendant began braking 1.3 to 2.1 seconds before impact. Haight determined that the actual speed of defendant's vehicle at the time of impact was between 57 and 65 mph, and Haight believed that the pedestrian was struck at about 60 to 61 mph. In Haight's view, defendant "could have swerved easily at that speed and missed the pedestrian." If defendant had swerved the vehicle two feet to the left, he would have avoided killing the pedestrian. In Haight's opinion, defendant could have also avoided this accident by going slower. He did not think that conspicuity of the pedestrian against the background was an issue because, although the pedestrian was wearing dark clothing, he was moving and six foot, seven inches tall and conspicuity is usually tied to movement.
Haight explained that the GMC module has limited memory space and can store only one non-deployment event. The recorded data regarding the non-deployment event is overwritten by a more severe event and, after 250 ignition cycles, the module clears itself. There is no date and time stamp. He concluded that the non-deployment event reflected in the data was from the pedestrian collision. Haight concluded, based upon his experience and testing, that the collision occurred in northbound lane number one. He believed that speed was a substantial factor in the crash and alcohol contributed to the crash by lengthening perception and reaction time.
Karina Patel, a criminologist employed by the Santa Clara County Crime Laboratory, opined that individuals with a 0.08 percent alcohol concentration are too impaired to safely operate a motor vehicle. When individuals reach a concentration of 0.04 to 0.12, they experience vision impairment and are "less likely to be aware of their peripheral surroundings and be more focused straight ahead." Such individuals have decreased judgment and decreased fine muscle control and coordination. Their ability to process information is slower and it takes longer to react to a situation. When individuals reach an alcohol concentration of 0.08 to 0.25, they experience more decreased gross muscle control, resulting in a loss of balance, a staggering gait, and slurred speech.
According to the criminologist, a person with a 0.18 blood alcohol content is not able to safely operate a motor vehicle. A person weighing 160 who has a blood alcohol concentration of 0.18 at 2:30 a.m. could possibly have had a 0.22 blood alcohol concentration at 12:30 ...