Rehearing denied by, 10/01/2014
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Superior Court of San Mateo County, No. SC064912, H. James Ellis, judge. Court of Appeal, First Appellate District, Division Three, No. A124765 and No. A130151.
Marc J. Zilversmit for Defendant and Appellant.
Michael T. Risher for American Civil Liberties Union of Northern California as Amicus Curiae on behalf of Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Stan Helfman, Mark S. Howell, Laurence K. Sullivan, Seth K. Schalit and Jeffrey M. Laurence, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion by Baxter, J., with Cantil-Sakauye, C. J., Chin, and Corrigan, JJ., concurring. Dissenting opinion by Werdegar, J. Dissenting opinion by Liu, J., with Rylaarsdam, J., concurring.
On a clear evening in February 2007, defendant Richard Tom broadsided at high speed a vehicle driven by Loraine Wong, who was making a left turn from Santa Clara Avenue onto Woodside Road in Redwood City. Wong's younger daughter, Sydney Ng, eight, was killed; her older daughter, Kendall Ng, 10, sustained serious injuries. The evidence at trial showed tat defendant did not brake prior to the crash. He had been speeding, although his precise speed was disputed. He had been drinking earlier that evening, although (again) the amount he had consumed was disputed.
The issue before us arises from the People's reliance in their case-in-chief on defendant's failure to inquire about the occupants of the other vehicle as evidence that he was driving without due regard for their safety. Did it violate the Fifth Amendment privilege against self-incrimination to admit evidence that defendant, following his arrest but before receipt of Miranda  warnings, expressed no concern about the well-being of the other people involved in the collision?
The issue is one of first impression for this court. However, a plurality of the high court recently addressed the " closely related" issue of prearrest silence in Salinas v. Texas (2013) 570 U.S. __, __ [186 L.Ed.2d 376, 133 S.Ct. 2174, 2182] (plur. opn. of Alito, J.) ( Salinas ), and we find that analysis instructive. Declaring that " [t]he privilege against self-incrimination 'is an exception to the general principle that the Government has the right to everyone's testimony,'" the Salinas plurality applied " the 'general rule' that a witness must assert the privilege to subsequently benefit from it." ( Id. at pp. __, __ [133 S.Ct. at pp. 2179, 2181] (plur. opn. of Alito, J.).) We likewise apply the general rule here and conclude that defendant, after his arrest but before he had received his Miranda warnings, needed to make a timely and unambiguous assertion of the privilege in order to benefit from it. Because the Court of Appeal held that the Fifth Amendment privilege against self-incrimination categorically prohibited any reference to defendant's postarrest failure to inquire about the others involved in the collision without ever considering whether defendant had clearly invoked the privilege, we reverse the judgment of the Court of Appeal and remand for further proceedings.
Defendant was charged with gross vehicular manslaughter while intoxicated, driving under the influence causing harm to another, and driving with a blood-alcohol level of 0.08 percent or higher causing harm to another, along with various enhancement allegations. A jury acquitted defendant of the alcohol-related charges but convicted him of vehicular manslaughter with gross negligence and found true the allegation that he personally inflicted great bodily injury on Kendall Ng. (Pen. Code, § 192, subd. (c)(1); id., former § 12022.7, subd. (a).) The court sentenced defendant to seven years in prison.
Events Surrounding the Fatal Collision
Defendant spent the early evening of February 19, 2007, entertaining his longtime friend Peter Gamino, a retired San Francisco police officer who was visiting from out of state. Defendant cooked a steak dinner at his Redwood City home and, after waking Gamino from a nap around 5:30 or 6:00 p.m., made them vodka tonics. Around 6:30 p.m., Gamino made another round of drinks. He did not know whether defendant finished that drink.
After dinner, defendant announced that they needed to pick up a vehicle from his son's home just north of Woodside Road. Gamino testified that defendant exhibited no signs of intoxication, but admitted defendant had trouble finding his son's house: " We didn't get there right away. Couldn't find our--the way. We eventually found it." On the return trip, defendant
drove his Mercedes E320, and Gamino followed 100 to 150 yards behind in the Toyota Camry they had picked up at the son's house. Gamino was traveling at the speed limit.
As the two cars turned from Alameda de las Pulgas onto Woodside Road, defendant was about 200 yards ahead. Gamino accelerated on Woodside, but defendant remained " a ways ahead."
Meanwhile, Loraine Wong had left her home on Santa Clara Avenue in Redwood City to drive her daughters to an overnight visit at her sister's house in Sunnyvale. Her sister, Geneva, had a new baby, and the girls were excited to see their new cousin. They were bringing some books they had purchased at Barnes and Noble that evening.
As they left the house, Wong called Geneva to let her know that they were on their way. Wong had completed the call by the time she reached the intersection of Santa Clara Avenue and Woodside (a two-lane divided state highway) less than a mile away, but the phone was still in her hand. Wong came to a full stop at the stop sign and inched forward, looking both ways. Her lights and blinker were on. She first looked left, and saw it was clear all the way to Alameda de las Pulgas, four-tenths of a mile away. She looked right, where it was also clear. Turning back to the left, she still saw no headlights or vehicles coming and began her turn onto Woodside. Wong, who had lived on Santa Clara Avenue for 15 years, had driven through this intersection several thousand times before.
This time was different. Suddenly, there was a flash of light, a feeling of soreness, and the pressure of the airbag. She had not seen headlights or heard any sound of braking, but Wong realized they had been hit. She looked outside but did not see any cars around her. She looked back and saw her daughters were unconscious and their faces were bleeding. As Wong climbed into the backseat, people nearby came to offer assistance. Wong shouted out her husband's phone number for someone to call him. Kendall regained consciousness, but Sydney never did. Sydney was pronounced dead at Stanford Hospital at 8:53 p.m. The cause of death was multiple blunt injuries. Kendall suffered a three-inch gash on her forehead, which was closed with 30 to 40 stitches, and a broken arm. She had to use a brace for her injured neck and spent a week in the hospital. Wong suffered internal injuries, a broken rib, and a broken finger. Pieces of broken glass had scratched her face, arms, knees, and feet.
Sergeant Alan Bailey of the Redwood City Police Department received a report of the crash at 8:20 p.m. and arrived at the scene 10 minutes later. Wong's vehicle, a 1996 Nissan Maxima, was badly damaged. The point of
contact was the left rear quarter panel and passenger door, where there was a " massive intrusion." The left rear passenger window and the rear windshield were shattered; the front windshield was broken. Defendant's vehicle, a 2006 Mercedes E320, was considerably north of the intersection, about 200 feet from the Nissan. Bailey testified that it was " incredible to see those vehicles that far apart in an accident that occurred in the city," where the posted speed limit is 35 miles per hour. The Mercedes had suffered major damage to its front end, a cracked windshield, a broken left-side mirror, and a couple of flat tires. Based on the circumstances at the scene, Bailey concluded that the Nissan had come from Santa Clara Avenue in a westbound direction turning left onto Woodside; the Mercedes had come north on Woodside " [e]xtremely fast," " [n]ot even close" to the speed limit; and there was a broadside collision.
Officer Janine O'Gorman, who arrived about an hour after Bailey, was assigned to be the lead investigator for this incident. She found no evidence that the Mercedes had applied its brakes prior to impact.  Based on the glass fragments, she opined that the Nissan had spun at least 360 degrees following the impact. She testified that although defendant's view of the intersection would have been partially obstructed by the Dodge Caravan parked on the corner of Woodside and Santa Clara as well as by the Arco sign at the corner gas station, in that those objects would have made it harder to see cars turning left onto Woodside, defendant was driving recklessly and was responsible for the collision.
Officer Jincy Pace, a traffic accident investigator with the San Jose Police Department, agreed that the Mercedes barreled into the left rear portion of the Nissan and spun it around and that the primary cause of the collision was the Mercedes's unsafe speed. Using a conservatively low " drag factor" (a measurement of the frictional relationship between the tire and the roadway), Pace calculated the Mercedes was traveling at a speed of at least 67 miles per hour prior to the collision; the Nissan was traveling about 12 miles per hour. Pace estimated that the Mercedes would have been at least 334 feet away from the intersection at the time the Nissan began its turn and opined that the Nissan would thus have had the right of way. Pace estimated that the Nissan would have been in the intersection for at least three to four and one-half seconds prior to the collision, which would have given the Mercedes enough time to stop even if it were speeding at 67 miles per hour.
Defendant's friend Peter Gamino, on the other hand, testified that the Nissan pulled out from Santa Clara Avenue " fairly fast" and " instead of
stopping like [it] should have, [the Nissan] drove right in front of [defendant]." However, Gamino conceded that he did not recall mentioning to officers at the scene that the Nissan drove right in front of defendant.
Defendant's Postcollision Conduct
Right after the collision, Gamino parked and went over to defendant's car to see if he was all right. Defendant said, " I didn't even see it." Once the paramedics arrived, Gamino returned to the Camry.
Defendant was behind the wheel of the Mercedes when police first arrived. Two paramedics, one in the front seat and one in the back, were attending to defendant. Officer Josh Price had a brief conversation with defendant but did not detect any odor of alcohol. When defendant's girlfriend arrived and he got out of the car, he was limping slightly and complained of an ankle injury. The paramedics tried to convince defendant to go to the hospital to be examined, but defendant declined because he was concerned that his insurance would not cover it.
At some point, defendant and his girlfriend walked over and got into Gamino's Camry. About 15 minutes later, Officer Price walked over to the Camry to talk to Gamino. Defendant interrupted them to ask whether he could walk home, as he lived only half a block away. Price told him " no," since the investigation " obviously" was ongoing and he was needed at the scene. When defendant said his ankle hurt, he was given an icepack. Despite the recommendation of the paramedics that he seek treatment, defendant signed a form declaring that he had refused to seek treatment " against medical advice."
Around 9:30 p.m., when Sergeant Bailey discovered that defendant was sitting in the Camry, he ordered defendant be moved to the rear of a patrol vehicle. Defendant's girlfriend was allowed to join him in the backseat. He was not handcuffed. In accordance with the police department's general policy to ask for a voluntary blood sample when a major injury collision has occurred (and to obtain a detailed statement from defendant), Sergeant Bailey asked defendant whether he would cooperate. Defendant said he would, although he seemed irritated that his blood could not be drawn at the scene. Defendant and his girlfriend were transported to the police station so that defendant's blood could be drawn. They arrived at 9:57 p.m. A paramedic was dispatched to the police station around 10:00 p.m., but Redwood City's contract with American Medical Response did not authorize a blood draw for suspicion of driving under the influence unless the suspect had first been placed under arrest. When Officer Price asked whether defendant would be willing to go to the hospital to get his blood drawn, defendant again seemed
irritated. Defendant asked whether he could refuse and was told it would be in his interest to prove that he had nothing in his system.
Shortly thereafter, around 10:30 p.m., defendant asked to use the bathroom. He was accompanied there by Sergeant Bailey. While in the bathroom, defendant, who was limping, asked for an aspirin. Bailey, who was in " very close proximity" to defendant, for the first time noticed the odor of alcohol on his breath and the bloodshot and glassy appearance of his eyes. Back in the interview room, Officer Price likewise noticed the odor of alcohol on defendant, who had been chewing gum at the crash scene and at the station. Officer Roman Gomez, too, smelled alcohol and noticed that defendant's eyes were bloodshot and glassy. Officer Price administered three field sobriety tests (the horizontal gaze nystagmus test, the Romberg test, and the finger-to-nose test), concluded that defendant had been under the influence of alcohol at the time of the collision, and arrested him. During his contact with Officer Price and Sergeant Bailey, defendant never asked them about the welfare of the other people involved in the collision.
Defendant's blood was drawn at 11:13 p.m., around three hours after the crash. The test revealed a blood-alcohol level of 0.04 percent. Using a burnoff rate of 0.02 percent of alcohol per hour (which is a rate widely accepted in the scientific community) and taking account of the steak dinner consumed by defendant as well as the other circumstances, criminalist Carlos Jose Jiron opined that defendant must have consumed six drinks and that his blood-alcohol level at the time of the crash was 0.098 percent. In Jiron's opinion, defendant would have been too impaired to drive safely.
Police Interview of Peter Gamino
Sergeant Paul Sheffield went to defendant's house around 11:30 p.m. to speak with defendant's houseguest, Peter Gamino. The interview was taped and played for the jury. Sergeant Sheffield noticed a large bottle of vodka, " much bigger than a fifth," in the kitchen. The bottle was two-thirds empty. Gamino, who was awakened by the police visit, seemed to have " had a drink or two." Gamino initially told police that he and defendant had nothing to drink during dinner, then admitted they had a " cocktail or so," but " no idea" how many. Gamino eventually claimed defendant had no more than two drinks, but he did not know whether defendant had anything to drink before he started making dinner. In describing defendant's driving prior to the collision, Gamino told police that although he and defendant were only a car length apart while waiting for the light at the intersection of Alameda de las Pulgas and Woodside, defendant " was a long ways in front" of him after the turn onto Woodside. Indeed, Gamino had just made the turn when the crash
occurred. Acknowledging the large vodka bottle that was more than half empty and the four missing tonic bottles, Gamino said, " Oh no, no, no, no. That was yesterday."
Kent E. Boots, who was retired from the Orange County Sheriff's Department and now performs collision reconstruction, disputed the drag factor calculation on which the prosecution's experts relied. He also denied that a driver on Woodside could lose his right of way because of excessive speed.
Traffic accident reconstructionist Christopher David Kauderer estimated that the Mercedes's preimpact speed was between 49 and 53 miles per hour and the Nissan's preimpact speed was between seven and nine miles per hour. He opined that the driver of the Nissan entered the roadway suddenly, violating the Mercedes's right of way, and that the driver of the Mercedes did not have sufficient time to react. Kauderer did not believe there was enough information to assign an appropriate drag factor to the Mercedes; the estimated drag factor had been the basis for the prosecution expert's estimate of the Mercedes's speed.
Forensic toxicologist Kenneth Allen Mark questioned the prosecution expert's estimate of defendant's blood-alcohol level at the time of the collision, an estimate that relied on retrograde extrapolation. Because retrograde extrapolation depends on so many factors that were unknown in this case, such as defendant's burnoff rate, how much food he had consumed and how quickly, the size of his liver, his physiological or emotional state, and whether defendant was in the absorption or elimination phase, Mark testified that it would not be possible to determine, with any degree of certainty, what defendant's blood-alcohol level had been at the time of the collision. In Mark's opinion, defendant's blood-alcohol level at the time of the crash could have been as low as 0.01 or 0.02 percent. The fact that no one detected the odor of alcohol until 10:30 p.m. was consistent with a blood-alcohol level of substantially less than 0.08 percent at the time of the crash. Mark did concede, however, that the odor of vodka is less detectable than that of other liquor and that chewing gum would make detection even more difficult. Mark also stated that the field sobriety tests performed here would not necessarily indicate impairment from alcohol, since those are " highly variable" tests and could have been affected by defendant's ankle injury.
Paramedic Daniel Giraudo arrived at the scene at 8:24 p.m. He testified that defendant had a perfect score on a test of alertness. Giraudo did not smell alcohol on defendant, and he did not recall whether defendant was chewing gum at the time.
Officer David Johnson, who was trained in accident reconstruction, testified that Kauderer's model vastly understated the Mercedes's preimpact speed, since the model would imply a drag factor so unreasonably low as to equate to vehicles skidding on ice. Based on the damage to the vehicles, their points of rest, and other information, Johnson estimated that the circumstances were consistent with a preimpact speed for the Mercedes of 67 miles per hour. Johnson further estimated that it would have taken Wong six to nine seconds to look left, right, and left again before pulling out into the intersection and then another three seconds to get to the point of impact. Under those assumptions, the Mercedes would have been between 884 and 1,179 feet away, too far away to be perceived as a hazard.
Arguments of Counsel Concerning Defendant's
Failure to Inquire
Both sides mentioned in argument to the jury the evidence of defendant's postarrest, pre- Miranda silence.
The district attorney found it " particularly offensive" that defendant " never, ever asked, hey, how are the people in the other car doing? Not once. ... Now, you step on somebody's toe or you bump into someone accidentally, what is your first thing out of your mouth? Whoops. I'm sorry. I'm not saying that he has to say sorry as an expression of his guilt or as some kind of confession, but simply as an expression of his regret. Look, I'm sorry those people were hurt. [¶ ] Not once. Do you know how many officers that he had contact with that evening? Not a single one said that, hey, the defendant asked me how those people were doing. Why is that? Because he knew he had done a very, very, very bad thing, and he was scared. [¶ ] He was scared or--either that or too drunk to care."
Defense counsel argued in response that " there was a big point made of Richard Tom didn't ask about the condition of the people in the other vehicle. He didn't care. He wasn't telling the officers--asking the officers, what happened? What's going on? How are those other people? [¶ ] And I ask you: What's that go to do with anything? Does that help prove to you any element of the offense? They kind of stuck it there under consciousness of guilt. Does that have anything to do with the way you're supposed to look at the evidence in this case? No. It's there to make you dislike Mr. Tom, make you think he's a bad person, therefore, get you closer to deciding he's the one who caused this accident. [¶ ] My response to that, by the way, would be, police know at 8:53 there's a fatality in this case. I asked ... Sergeant Bailey, Officer Price, did you ever tell Richard Tom this was--there was a fatality, between 8:53 and his arrest around eleven o'clock? They didn't. Of course
they didn't. Why would they. But you can't simultaneously blame him for not asking and not blame them for not telling."
The Court of Appeal Decision
The Court of Appeal consolidated the appeal (A124765) with a petition for writ of habeas corpus (A130151). Although defendant did not object on Fifth Amendment grounds to the evidence that he failed to inquire about the occupants of the other vehicle (nor did he object to the prosecutor's argument on that basis), the Court of Appeal addressed the merits of the Fifth Amendment claim and reversed the judgment. The Court of Appeal concluded that defendant was under de facto arrest when he was transported to the police station in a patrol vehicle at 9:48 p.m.; that " the right of pretrial silence under Miranda is triggered by the inherently coercive circumstances attendant to a de facto arrest" ; that the trial court therefore erred in admitting evidence in the prosecution's case-in-chief of defendant's postarrest, pre- Miranda failure to inquire about the welfare of the occupants of the other vehicle; and that the error was prejudicial under Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824]. As to whether defendant ever invoked his privilege against self-incrimination, the court said simply that " 'the defendant who stands silent must be treated as having asserted it.' " (Quoting U.S. v. Moore (D.C. Cir. 1997) 322 U.S. App.D.C. 334 [104 F.3d 377, 384].)
We granted the People's petition for review. Our grant was limited to the admissibility of defendant's postarrest silence under the Fifth Amendment. No party challenged in the petition for review, the answer to the petition, or the extensive briefing here the Court of Appeal's decision to address the Fifth Amendment claim on the merits, nor does the Court of Appeal's conclusion on this procedural point present an issue worthy of review. (Cal. Rules of Court, rules 8.500(b)(1), 8.516(a), (b); Southern Cal. Ch. of Associated Builders etc. Com. v. California Apprenticeship Council (1992) 4 Cal.4th 422, 431, fn. 3 [14 Cal.Rptr.2d 491, 841 P.2d 1011].) We therefore will accept the lower court's conclusion that defendant's claim is cognizable (see People v. Weiss (1999) 20 Cal.4th 1073, 1076-1077 [86 Cal.Rptr.2d 337, 978 P.2d 1257]) and turn to the issue presented in the petition for review--namely, whether the trial court violated the Fifth Amendment privilege against self-incrimination by admitting evidence that defendant, during the period following his arrest but prior to receipt of Miranda warnings, failed to inquire about the welfare of the occupants of the other vehicle.
The Fifth Amendment's self-incrimination clause states that " [n]o person ... shall be compelled in any criminal ...