Opinion
F039878.
10-30-2003
THE PEOPLE, Plaintiff and Respondent, v. JOSE SANTANA AISPURO, Defendant and Appellant.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Stephen G. Herndon and James B. Damrell, Deputy Attorneys General, for Plaintiff and Respondent.
Jose Santana Aispuro (Aispuro) was convicted of driving under the influence and driving with a blood/alcohol level of .08 percent or more, which caused bodily injury to three passengers in his vehicle. On appeal, he contends there is insufficient evidence to support the convictions, he was subject to custodial interrogation in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and the trial court improperly allowed an officer to testify as an expert and admitted the officers inadmissible hearsay testimony into evidence. We disagree and will affirm the judgment.
PROCEDURAL SUMMARY
On October 16, 2001, an information was filed in the Superior Court of Kern County charging Aispuro with driving under the influence and doing an act forbidden by law or neglecting any duty imposed by law, which proximately caused bodily injury (Veh. Code, § 23153, subd. (a)) (count I); and driving with a blood/alcohol level of .08 percent or more and doing an act forbidden by law or neglecting any duty imposed by law, which proximately caused bodily injury (§ 23153, subd. (b)) (count II). As to both counts, it was alleged Aispuro proximately caused bodily injury to more than one victim (§ 23558), and suffered one prior felony conviction within the meaning of the three strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12).
All statutory references are to the Vehicle Code unless otherwise indicated.
On December 10, 2001, the trial court granted Aispuros motion to bifurcate the prior strike allegation, and Aispuros jury trial began. On December 12, the jury found Aispuro guilty as charged and found the section 23558 enhancements true. On December 13, the trial court found the prior strike allegation true.
On January 24, 2002, the trial court denied Aispuros motion to dismiss the prior strike conviction and denied probation. As to count I, the trial court imposed the lower term of 16 months and doubled the term to 32 months, and added a consecutive term of two years for the section 23558 enhancement, for an aggregate term of four years eight months. The trial court imposed the same term for count II but stayed the sentence pursuant to Penal Code section 654.
FACTUAL SUMMARY
On April 27, 2001, Aispuro rented a Chevrolet Blazer from Enterprise Rent-A-Car, and indicated on the rental agreement that he would be the only driver of the vehicle. Aispuro rented the vehicle on a cash basis and complied with the agencys requirement to provide several forms of identification, including a copy of his utility bill, paycheck stub, proof of insurance, and a copy of his drivers license.
At 1:30 a.m. on May 4, 2001, Christopher Bradley (Bradley) was driving a truck/trailer rig on the three-lane northbound Highway 99 in Kern County. Bradley was driving in the far right lane (lane No. 3) and going 55 to 57 miles per hour. Another truck/trailer rig was traveling about 80 feet in front of him in the same lane, and going about the same speed. There were no other vehicles on the road. The speed limit for trucks was 55 miles per hour, while the limit for cars was 65 miles per hour.
As Bradley approached the Olive Drive overpass, he noticed a vehicle in the far left lane (lane No. 1) pass on his left side at a high rate of speed. Bradley believed this vehicle was going between 60 to 75 miles per hour. As the vehicle passed his truck, Bradley suddenly saw "a big flash" and a "real bright" ball of light between the far left and middle lanes. The speeding vehicle veered toward the middle lane and flipped over. The vehicle flipped from side to side at least two to three times, crossed between the lanes, and went into the third lane between the two trucks. Bradley slowed down to avoid the vehicle, as the vehicle came very close to hitting the truck in front of him. The vehicle came to rest on its wheels on the far right shoulder of the road. Bradley stopped his truck on the shoulder, activated his flashing lights to prevent other cars from hitting the damaged vehicle, and called 911. The truck/trailer rig which had been in front of Bradleys truck also pulled over to the right shoulder.
The damaged vehicle that had flipped over was the Chevrolet Blazer, which Aispuro had rented from Enterprise Rent-A-Car. Bradley saw a Hispanic man get out of the front drivers door, and a man and a woman emerge from the passenger side. The three individuals were walking around but they seemed dazed, confused, and shaken. Bradley did not observe any of the occupants with obvious physical injuries.
At trial, Bradley testified that he did not get a good look at the man who emerged from the drivers door, and he was unable to identify Aispuro as the driver of the Blazer.
At approximately 1:45 a.m., California Highway Patrol (CHP) Officers Jason Baker (Baker) and Douglas Morrison (Morrison) responded to the accident scene. The two big rigs and the severely damaged Blazer were on the highways right shoulder. The Blazers roof was caved in, the windshield was shattered, and the left rear wheel was completely missing. The Blazer had been damaged in a circular rotational manner, consistent with completely rolling over one to two times.
The paramedics and other emergency personnel were already at the scene when the officers arrived. There had been four people in the Blazer: Aispuro, Maria Meza, Ivan Bertran, and Maria Martinez. Aispuro, Martinez, and Bertran got out of the Blazer on their own. Meza, however, was trapped in the back seat and emergency personnel had to cut her out of the vehicle.
Baker testified that the paramedics were treating all the occupants of the Blazer. He spoke with the individuals at the scene and they told him who had been driving the Blazer. Based on these conversations, Baker contacted Aispuro. Aispuro was laying on a backboard, which had been placed on a gurney, and the medical personnel were treating him. Baker immediately noticed Aispuros eyes were red and watery, his speech was thick and slurred, and the odor of alcohol was on his body. Baker did not observe any bleeding or physical trauma.
Baker asked Aispuro if he had been driving the Blazer, and Aispuro said yes. Baker asked if he had been drinking that night, and Aispuro said yes. Baker asked what he drank, and Aispuro said he drank two Budweiser beers. Baker asked where he was going, and Aispuro said he was driving from Los Angeles to his home in Visalia.
Baker administered a field sobriety test, the horizontal gaze nystagmus, and Aispuro failed it. Baker also administered the preliminary alcohol-screening test, where the subject is asked to blow into a machine. Aispuro acted as if he was attempting to cooperate but he blew into the machine for a very short amount of time, contrary to Bakers instructions, and Baker believed that Aispuro was not trying very hard. Baker instructed Aispuro to try again, and the device indicated the presence of alcohol in Aispuros system.
Baker formed the opinion that Aispuro was under the influence of alcohol based on his objective signs and symptoms, his failure of the field sobriety tests, and the nature and circumstances of the accident. Baker arrested Aispuro but the paramedics transported Aispuro to the hospital. The three other occupants of the Blazer were also taken to the hospital by ambulance. No one else was injured.
Baker inspected the roadway and discovered fresh tire marks in the dirt of the center divider, which indicated the left side of the Blazer had gone off the road into the median. The tire marks continued in the dirt for 236 feet in a semi-straight position, then suddenly veered to the right into a sharp turn for 181 feet. There were gouge marks and glass in the asphalt where the vehicle had flipped over. There was a large debris field on the road that led to the far right shoulder, where the Blazer had finally stopped. There was a large pool of fluid flowing from underneath the Blazer.
Baker also determined the Blazer had made contact with the truck/trailer rig that had been traveling in front of Bradley. Baker found tire friction marks on the road from the trailers left rear tire. The friction marks indicated the truck went into a locked wheel skid for 60 feet. There was damage on the outside rim of the left rear portion of the trailer near the dual set of tires. The trailers left rear tire was blown out, and the left side clearance marker light was broken. Baker believed the Blazer hit the left rear side of the trailer at the point where the locked wheel skid began.
Baker testified that the primary collision factor, and the most significant reason for the collision, was that Aispuro was driving while intoxicated. There also was the associated factor that he made "an unsafe turning movement to the right once in the center divider." The tire marks in the dirt indicated the Blazer entered the median in a "pretty straight manner" as if it just veered off the roadway, but it suddenly went to the right. "Thats very consistent with a person who realizes all of a sudden that they are off the roadway and they are taking an evasive action. At this point the driver overcorrected to the right, which caused [the Blazer] to roll over later." Baker believed the truck/trailer rig remained in the far right lane, it never drifted into the middle lane, and the Blazer crossed over and made impact.
About three hours after the accident, Morrison spoke with Aispuro at the hospital as his blood sample was being drawn. Aispuros eyes were red and bloodshot, and Morrison smelled the odor of an alcoholic beverage from him. Aispuros blood/alcohol level was .10 percent.
Morrison also spoke with Meza, Bertran, and Martinez at the hospital and observed the following injuries: Bertran had scratches on his face and arms but otherwise appeared okay; Martinez also had scratches on her face and arms, and had some glass in her hair; and Meza, who had to be cut out of the back seat, had a "silver dollar" sized gash in her right knee, which almost exposed her kneecap and the bone inside.
A criminalist testified that an individual with a blood/alcohol level of .08 percent or greater would be considered an "impaired" driver, regardless of driving ability. If a person with a . 14 percent blood/alcohol level was tested two hours later, that persons level would be approximately .10 percent, based on the percentage of alcohol which an individual absorbs or burns off in one hour. The criminalist conceded that alcohol levels in the blood can both fall and rise and, under a rising scenario, a person with a .10 percent blood/alcohol level could have had a level under .08 percent just a few hours earlier.
On appeal, Aispuro argues there is insufficient evidence he engaged in an unsafe lane change as alleged in the information, or that his three passengers suffered any bodily injuries as a result of the accident. He also contends he was in custody when Baker questioned him at the scene, and he should have been given the Miranda warnings. Aispuro claims that the trial court improperly allowed Baker to testify as an accident reconstruction expert, and allowed inadmissible hearsay into evidence.
DISCUSSION
I. Substantial Evidence to Support the Conviction
The conviction was based on Aispuro performing an "unsafe turn" in violation of section 22107 as the requisite unlawful act. In addition, the jury found that Aispuro proximately caused bodily injury to more than one victim (§ 23558).
Aispuro raises two substantial evidence challenges to the conviction and finding. First, he argues there is no evidence he made an unsafe turn in violation of section 22107 because no one testified at trial that he or she saw him make such a turn, and Bakers opinion testimony was speculative and lacked foundation. Second, he argues there is no evidence the passengers suffered any bodily injuries as a result of his conduct as none of them testified at trial.
A. Standard of Review
We begin with the well-settled standard of review for substantial evidence challenges. In assessing the sufficiency of the evidence to sustain a criminal conviction, the reviewing courts task is to review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Earp (1999) 20 Cal.4th 826, 887.) The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on "`isolated bits of evidence." (People v. Johnson, supra, at p. 577; People v. Cuevas (1995) 12 Cal.4th 252, 260-261.)
Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of the defendants guilt beyond a reasonable doubt. (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also be reconciled reasonably with a contrary finding does not warrant a reversal of the judgment. (Ibid.) Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt. (Ibid.; People v. Stanley (1995) 10 Cal.4th 764, 792-793; People v. Bean (1988) 46 Cal.3d 919, 932-933.)
An appellate court must "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425.) It must not reweigh the evidence, reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact. (People v. Pitts (1990) 223 Cal.App.3d 606, 884.) Furthermore, an appellate court may reject the testimony of a witness who was apparently believed by the trier of fact only if that testimony is inherently improbable or impossible of belief. (People v. Jackson (1992) 10 Cal.App.4th 13, 21; People v. Maxwell (1979) 94 Cal.App.3d 562, 577.) An appellate court may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
With these principals in mind, we turn to Aispuros contentions.
The elements of driving under the influence and causing injury in violation of section 23153, subdivision (a) are: (1) driving a vehicle while under the influence of an alcoholic beverage; (2) when so driving, committing some act which violates the law or fails to perform some duty required by law; and (3) as a proximate result of such violation of law or failure to perform a duty, another person was injured. (People v. Minor (1994) 28 Cal.App.4th 431, 437-438; People v. Verlinde (2002) 100 Cal.App.4th 1146, 1159-1160.) Section 23153, subdivision (b), has the same elements except the first element is expressed as driving a vehicle "while having 0.08 percent or more, by weight, of alcohol in his or her blood." (People v. Minor, supra , at p. 438.)
To satisfy the second element for both offenses, the evidence must show an unlawful act or neglect of duty in addition to driving under the influence. (People v. Minor, supra, 28 Cal.App.4th at pp. 437-438; People v. Weems (1997) 54 Cal.App.4th 854, 858.) The unlawful act or omission "need not relate to any specific section of the Vehicle Code, but instead may be satisfied by the defendants ordinary negligence. (§ 23153, subd. (c); People v. Oyaas (1985) 173 Cal.App.3d 663, 669.)" (People v. Hernandez (1990) 219 Cal.App.3d 1177, 1185.)
In the instant case, the section 23153 violations alleged Aispuro performed an "unsafe turn" in violation of section 22107 as the requisite unlawful act. Section 22107 states:
"No person shall turn a vehicle from a direct course or move right or left upon a roadway until such movement can be made with reasonable safety and then only after the giving of an appropriate signal in the manner provided in this chapter in the event any other vehicle may be affected by the movement."
Section 22107 "is not limited to true left or right turns. Rather, by its express terms, the statute applies to any movement to the left or right from a direct course, and this is generally understood to include moving from ones lane." (People v. Thompson (2000) 79 Cal.App.4th 40, 61.) Thus, in People v. Smylie (1963) 217 Cal.App.2d 118, 121, the defendant violated the statute when he veered from his lane off the road and hit a pedestrian.
Contrary to Aispuros contention, there is substantial evidence he made an unsafe turn in violation of section 22107. Baker followed the fresh marks in the dirt median and testified that the Blazer drove off the highway and continued into the median, then suddenly veered to the right. Bakers testimony on this point was based on his observations of the evidence on the roadway. Bradley testified the Blazer drove past his left side at a high rate of speed, there was a big flash in front of him, and the Blazer crossed the lanes and between the two trucks as it flipped over. Bradley believed the Blazer just missed the truck/trailer rig in front of him, but the trailers left rear tire was blown out and there was damage on that side. The Blazer finally stopped on the far right shoulder, having crossed the entire width of the three-lane highway from the median to the shoulder.
As we will explain in issue II, post, Baker properly testified as to his opinion for the cause of the accident.
There is not only substantial but overwhelming evidence that Aispuros movements to the left and then the right caused the accident, and that the movements constituted an unsafe turn in violation of section 22107.
C. Bodily Injuries
Aispuro contends there is insufficient evidence linking any injury of the three passengers to Aispuros driving because neither the passengers nor any medical personnel testified about the injuries. Aispuro concedes Morrison observed injuries on the passengers at the hospital, but argues that Morrisons testimony was impeached and there is no direct evidence whether they suffered the injuries before, during, or after the accident.
A defendant who drives under the influence of alcohol or drugs and proximately causes bodily injury in violation of section 23153 may be sentenced to a greater term than one who does not cause injury. (People v. Sainz (1999) 74 Cal.App.4th 565, 576, fn. 7.) Section 23558 provides for an enhancement for any person "who proximately causes bodily injury or death to more than one victim in any one instance of driving in violation of Section 23153 ...."
The "bodily injury" referred to in section 23153 need not be "great" or "substantial" as required by Penal Code section 12022.7. (People v. Sainz, supra, 74 Cal.App.4th at p. 569, fn. 2.) Instead, "bodily injury" under this section requires only proof of "`"harm or hurt to the body."" (People v. Arndt (1999) 76 Cal.App.4th 387, 393; see also People v. Dakin (1988) 200 Cal.App.3d 1026, 1035-1036 [two cuts on the forehead, a severe headache and stiff neck]; People v. Lares (1968) 261 Cal.App.2d 657, 662 [acute back strain].) "Bodily injury means just what it says—harm or hurt to the body. Common sense requires more for conviction than a `shaking up of a person in a car which is in an accident, or fright, or a minor headache; it means very obviously a hurt to the body." (People v. Lares, supra , at p. 662.) In Dakin, the defendant argued that a bodily injury had to be "substantial" to satisfy section 23153. Dakin followed Lares and rejected defendants argument, and held that if "the Legislature intended the term `bodily injury to mean `substantial bodily injury, it would have so specified." (People v. Dakin, supra, at p. 1036.)
The record contains both direct and circumstantial evidence the Blazers three passengers suffered bodily injuries as a result of Aispuros conduct. Bradley observed the Blazer flip and roll over two to three times as it crossed the highway. Aispuro, Martinez, and Bertran got out of the vehicle on their own. Bradley described them as looking dazed, confused, and shaken, but he didnt see any obvious injuries. Meza was trapped in the back seat and emergency personnel had to cut her out of the vehicle.
Baker testified that when he arrived on the scene, the fire and emergency personnel were already there and he observed three people besides Aispuro who were injured and being treated. Baker did not speak with these people, but he knew they were treated at the scene and transported to the hospital.
Morrison testified that emergency personnel at the scene treated the three passengers—Meza, Bertran, and Martinez—and they were transported to the hospital by ambulance. Morrison contacted Meza at the hospital about two hours after the accident. Morrison testified that Meza suffered a "half dollar to silver dollar size gash" in her right knee, and "you could almost see her kneecap and the bone inside there. She had [a] pretty good gash."
Morrison spoke with Martinez and Bertran at the hospital about three and a half hours after the accident. Morrison testified that Bertran "mostly had scratches on his arms and little bit to his face, I believe," but he otherwise appeared unharmed. Morrison also observed scratches on Martinezs face and arms, and some glass in her hair.
On cross-examination, Morrison was impeached with his preliminary hearing testimony that Bertran just complained of back and neck pain but didnt have any visible injuries. On redirect examination, the prosecutor asked Morrison to read the rest of his preliminary examination testimony, in which he reviewed his report about the accident and clarified that Mr. Bertran and Ms. Martinez "just had some lacerations to their arms and maybe a few to their face. Nothing major."
Aispuro claims that Bradley did not observe any obvious injuries on the passengers, the emergency personnel did not testify about their treatment at the scene or the hospital, and Morrisons account of the passengers injuries was impeached by his preliminary hearing testimony. Defense counsel squarely presented this issue to the jury when he argued there was no evidence the passengers were injured as a result of the accident and characterized Morrisons testimony as suspect and equivocal. The jury found otherwise.
There is substantial direct and circumstantial evidence that the three passengers suffered bodily injuries as a result of the accident. As discussed ante, the credibility of witnesses and the resolution of conflicts are for the trier of fact. The jury here rejected Aispuros arguments on this issue when it convicted him of both counts. The jury would have had to ignore the obvious to find in Aispuros favor.
II. The Admissibility of Bakers OpinionTestimony
Aispuro next contends that the trial court improperly allowed Baker to testify as an accident reconstruction expert because he lacked sufficient qualifications to testify as such an expert. Aispuro also claims that Baker improperly referred to a nontestifying witness when he gave his opinion, and such testimony violated his right to confront and cross-examine witnesses.
A. Background
During the pretrial motions, defense counsel noted that Bakers report contained opinions and conclusions about the cause of the accident. The trial court inquired whether the prosecutor was going to elicit any opinions from the officer concerning how the accident occurred. The following dialogue occurred in response to the inquiry:
"[The prosecutor]: Basically, the only things I would be eliciting would be the investigative kinds of things, the things that he observed, the damages to the car, things like that.
"THE COURT: As opposed to an opinion that the car went this way and was going 82 miles an hour at the end of it.
"[The prosecutor]: Yeah. This kind of stuff really isnt too relevant to this case particularly.
"THE COURT: That would be accident reconstruction ...."
The prosecutor explained that an eyewitness would testify as to the exact nature of the accident, but he reserved the ability to "elicit something of that sort from the officer" if the witness couldnt appear and "I would be happy to have some kind of hearing." The trial court noted that some but not all CHP officers can qualify as accident reconstruction experts, and many officers "will testify they have never done a reconstruction as opposed to an investigation. So we might have to do something about that."
At trial, Baker testified he had been a CHP officer for six years and received training to investigate driving-under-the-influence cases. At the academy, he received 42 hours of "driving under the influence training," which dealt with "recognizing the signs and symptoms of persons who are under the influence, as well as providing thorough investigation, including giving and demonstrating field sobriety tests, specifically completing the arrest and afterwards documenting it in a formal report." After the academy, he attended various training courses on driving under the influence of both alcoholic beverages and controlled substances. He indicated that he had conducted over 1,000 investigations and made approximately 500 to 550 arrests for driving under the influence.
As set forth in the factual summary, Baker testified as to his observations of the scene, the fresh marks in the median dirt, the directions of the marks, the locked wheel skid marks, the measurements of these marks, and the conditions of the Blazer and the truck/trailer rig. Baker prepared a diagram that depicted these observations, and testified without objection about the diagram. When Baker testified the marks in the dirt represented where the Blazers left side went into the median, defense counsel objected and moved to strike, and the trial court sustained the objection. The trial court subsequently admitted the diagram into evidence without objection.
On cross-examination, defense counsel asked Baker several questions about the marks depicted on the diagram. Baker testified about the measurements of the truck/trailers locked wheel skid as follows:
"[Defense counsel:] The only locked wheel skid you saw was on what you would — would be the rear left tire of the trailer?
"A. Yes. It is from the one that was struck by the vehicle. And more than likely that mark was left by the car striking it. It is not left by the [truck] driver applying the brakes or anything such as that.
"THE COURT: Well, was it — it is a locked wheel skid, it has to have prevented—the wheel locked up.
"A. Yes, sir. However, the point where the vehicle strikes it during rollover it is going to cause a tire to stop moving for a point of time. If it was a locked wheel skid, both sides as well as the duals would have locked up so you would see at least four sets of skids there.
"THE COURT: But youre confident this is not a side skid as a result of the impact.
"A. A side skid from the trailer?
"THE COURT: From the trailer.
"A. No sir. If there was
"THE COURT: That is further down the road.
"A. If there was, it would have been more than one tire leaving a mark."
Defense counsel never objected or moved to strike this testimony, and he continued his questions about the condition of the truck/trailer. Counsel asked whether the locked wheel skid indicated the truck crossed lanes, and Baker explained the road curved to the right. Baker did not take photographs of the scene because the CHP left it to the officers discretion whether to take photographs in a nonfatality accident. Baker testified that there was a "very minimal amount of evidence and there wasnt a whole lot of question as far as what happened."
On redirect examination, the prosecutor asked Baker whether anyone else was injured as a result of the accident:
"Q. Were you able to determine if there was anyone else who was injured in the accident other than the people who were in that Blazer?
"A. Other than the people in the Blazer, no.
"Q. So, the only injured people in this case were the people who were inside the Blazer?
"A. Yes.
"[DEFENSE COUNSEL]: I object, calls for foundation.
"THE COURT: It is sustained, calls for foundation."
The prosecutor asked Baker if he saw anyone else at the scene who was injured, and he said no.
The prosecutor next asked Baker for his opinion as to the cause of the accident:
"Q. Officer, did you come to a conclusion of what was the cause of this accident?
"A. Yes, sir, I did.
"Q. And what is your conclusion?
"[DEFENSE COUNSEL]: Objection, improper, no proffered foundation.
"THE COURT: Its overruled. You can answer."
Baker testified "[t]he primary collision factor, which is what we feel is the most significant reason for the cause of the collision," (italics added) was Aispuro driving while intoxicated, with the associated factor of making an unsafe turning movement once he was in the center divider, as depicted on the diagram. As set forth ante, Baker testified the tire marks indicated the Blazer went into the dirt, then suddenly veered to the right. The driver overcorrected and the Blazer rolled over.
As we will discuss herein, Bakers use of "we," as emphasized above, is the basis for Aispuros claim that Bakers testimony violated the confrontation clause.
On recross-examination, Baker testified he was not an accident reconstruction expert, but there were CHP officers who were. Defense counsel extensively questioned Baker as to whether the tire marks supported his conclusions about the accident. There were no further objections to Bakers testimony.
B. Analysis
Aispuro relies on this sequence and contends that the trial court improperly overruled his objection and allowed Baker to testify as an accident reconstruction expert.
"A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert." (Evid. Code, § 720, subd. (a).) Such expertise may be shown "by any otherwise admissible evidence, including his own testimony." (Id., subd. (b).) An expert may offer opinion testimony if the subject is sufficiently beyond common experience that it would assist the trier of fact. (Id., § 801, subd. (a).) The opinion must be based on matter perceived by, or personally known, or made known to the witness at or before the hearing that is of the type that reasonably may be relied on in forming an opinion on the subject to which the experts testimony relates. (Id., § 801, subd. (b).) On direct examination, an expert may state the reasons for his or her opinion and the matter upon which the opinion is based. (Id., § 802; People v. Killebrew (2002) 103 Cal.App.4th 644, 651.)
To challenge a witness on the ground of inadequate qualifications, the opponent of the testimony must lodge an objection, and the trial court determines the witnesss competency as a preliminary fact. (Evid. Code, § 720, subd. (a); In re Joy M. (2002) 99 Cal.App.4th 11, 19; see also People v. Flores (1992) 7 Cal.App.4th 1350, 1359-1360 [claim that witness lacked necessary expertise was forfeited due to lack of objection].) The trial court is given considerable latitude in determining the qualifications of an expert and its ruling will not be disturbed on appeal unless a manifest abuse of discretion is shown. (People v. Singh (1995) 37 Cal.App.4th 1343, 1377.) The trial courts ruling may not be reversed unless it exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Ochoa (2001) 26 Cal.4th 398, 437-438.) This court may find error only if the witness "`clearly lacks qualification as an expert." (People v. Hogan (1982) 31 Cal.3d 815, 852, overruled on other grounds in People v. Cooper (1991) 53 Cal.3d 771, 836.)
Whether a person qualifies as an expert in a particular case depends on the facts of that case and the witnesss qualifications. In considering whether a person qualifies as an expert, the field of expertise must be carefully distinguished and limited. (Seneris v. Haas (1955) 45 Cal.2d 811, 833; People v. Brown (2001) 96 Cal.App.4th Supp. 1, 36-37.) "`Where a witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes more to the weight of the evidence than its admissibility." (Seneris v. Haas, supra, at p. 833; People v. Bolin, supra, 18 Cal.4th at pp. 321-322.) Error regarding a witnesss qualifications as an expert will be found only if the evidence shows that the witness clearly lacks qualification as an expert. (People v. Farnam (2002) 28 Cal.4th 107, 162.)
A law enforcement officer may be qualified to give an expert opinion as to the cause of an automobile accident based on the officers experience. (Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1616.) A proper foundation, however, must be laid for their testimony. "It is generally established that traffic officers whose duties include investigations of automobile accidents are qualified experts and may properly testify concerning their opinions as to the various factors involved in such accidents, based upon their own observations. [Citations.]" (Hart v. Wielt (1970) 4 Cal.App.3d 224, 229; Neumann v. Bishop (1976) 59 Cal.App.3d 451, 460; Davis v. Ward (1963) 219 Cal.App.2d 144, 148.) Traffic officers may properly give expert opinion testimony as to the circumstances surrounding collisions, including the point of impact (Wells Truckways, Ltd. v. Cebrian (1954) 122 Cal.App.2d 666, 676-677); whether the vehicle involved in the accident had been properly equipped and loaded (Risley v. Lenwell (1954) 129 Cal.App.2d 608, 631-634); and the vehicles speed at impact, determined by the amount of damage sustained (Neumann v. Bishop, supra, at pp. 459-460) or from skid marks (Jobe v. Harold Livestock Com. Co. (1952) 113 Cal.App.2d 269, 272-275).
Aispuro asserts Baker lacked the proper qualifications to render an ultimate opinion as to the cause of the accident, and the trial court abused its discretion when it allowed Bakers opinion testimony into evidence. Aispuro concedes Baker had training in DUI cases, but he was not an accident reconstruction expert qualified to render ultimate opinions on the causes of accidents.
As a secondary matter, Aispuro raises an issue concerning Bakers testimony when he described "[t]he primary collision factor, which is what we feel is the most significant reason for the cause of the collision ...." (Italics added.) Aispuro argues Baker testified collectively when he used "we" in his opinion, thus implying that he was relying on the opinion of a nontestifying witness, and violating Aispuros right to confront and cross-examine witnesses.
There are several problems with Aispuros challenges to Bakers testimony. First, we will dispense with Aispuros confrontation clause argument that Bakers use of "we" referred to nontestifying witnesses. Aispuro never objected to Bakers use of this plural pronoun or moved to strike it. His contention is deemed waived unless he made a timely and specific objection on the ground he now asserts on appeal. (People v. Mitcham (1992) 1 Cal.4th 1027, 1044; People v. Benson (1990) 52 Cal.3d 754, 786, fn. 7; People v. Hill (1992) 3 Cal.4th 959, 994-995, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) In addition, there is nothing in Bakers testimony, which reflected that he consulted with any other officers or experts about the case. Indeed, Baker clearly testified that he personally investigated the accident scene and prepared the diagram that demonstrated the objective evidence on the roadway.
Second, Aispuro never objected to Bakers testimony as consisting of improper opinion evidence or that he was not qualified to testify as an accident reconstruction expert. He never requested to question Baker about his expertise in investigating accidents, or a hearing outside the jurys presence to raise the issues he discussed at the pretrial proceedings. He never moved to strike Bakers opinion testimony. Instead, his objection to Bakers opinion testimony was limited to "improper, no proffered foundation." There is nothing in the record that indicates Aispuro preserved the issue, which he now seeks to raise on appeal.
An objection must alert the trial court and the parties to the specific nature of the objection so that the other party can establish the admissibility of the evidence and the trial court can avoid error. (Evid. Code, § 353; People v. Williams (1988) 44 Cal.3d 883, 906.) The reason for the rule is clear—failure to identify the specific ground of objection denies the opposing party the opportunity to offer evidence to cure the asserted defect. (People v. Wright (1990) 52 Cal.3d 367, 404.)
In People v. Flores, supra, 7 Cal.App.4th 1350, an officer was called as a prosecution gang expert witness, and testified as to his training and expertise in gang-related cases. The defendant did not object when the officer was called as a witness, and did not object when he described his qualifications as a gang expert. As the officer testified, the defendant raised objections based on relevancy, matters outside the officers expertise, speculation, and lack of foundation that the officer had personal knowledge on a particular issue. (Id. at pp. 1357-1359.) On appeal, the defendant argued the trial court should have excluded the officers testimony for various reasons, including the claim that gang behavior was not a proper subject for an expert and the officer was not a qualified expert. (Id. at p. 1359.) Flores declines to reach these issues because the defendant never objected to the officers testimony on these same grounds, and his objections for "`beyond expertise" and "`improper foundation" were insufficient to preserve these issues on appeal. (Id. at p. 1360.) In addition, the defendants foundation objections were properly overruled because the questions were limited to the officers personal knowledge in his investigations. (Ibid. ; see also People v. Fonville (1973) 35 Cal.App.3d 693, 707 [objection based on improper foundation was not adequate to preserve for appeal a claim that the evidence violated a discovery order].)
In the instant case, as in Flores, Aispuro never objected to Bakers testimony as consisting of improper opinion evidence or that he wasnt qualified to testify as an expert. Aispuro was well aware of how to raise such an objection because he objected to Bakers initial interpretation of the tire marks in the dirt as improper "opinion conclusion of the officer" and moved to strike his testimony on that point, and the trial court sustained the objection. When Baker was asked about other possible victims, Aispuro objected based on improper foundation given Bakers admission that he didnt investigate whether anyone else was injured. Immediately thereafter, the prosecutor asked Baker for his opinion as to the cause of the accident, and Aispuro raised the same foundational objection. The trial court properly overruled the objection because Baker had extensively described his personal knowledge in investigating the accident scene, observing and measuring the tire marks on the roadway, and preparing the diagram that depicted these observations.
In some cases, a pretrial motion in limine may be sufficient to preserve an objection, and the party is excused from failing to object when the same evidence is introduced at trial. (See, e.g., People v. Rowland (1992) 4 Cal.4th 238, 264, fn. 3.) This principle might apply in the instant case given Aispuros stated intent to object to any attempt by Baker to give his opinions about the accident. The trial court and the prosecutor agreed before trial that a hearing might be necessary to determine Bakers qualifications. The parties, however, specifically agreed to reserve the issue pending Bakers actual testimony. Aispuro failed to raise this issue or request a hearing, and his pretrial motion cannot be deemed sufficient to preserve any objections to the opinion testimony that Baker actually gave.
Even if Aispuros pretrial comments could be construed as preserving this issue, the trial court did not abuse its discretion when it permitted Baker to testify as to his opinion for the cause of the accident. Aispuro contends Bakers testimony was inadmissible because he conceded on cross-examination that he was not an accident reconstruction expert. Bakers concession, however, addressed the weight rather than the admissibility of his testimony. Indeed, Aispuros failure to object based on improper opinion testimony deprived the prosecution of the opportunity to fully explore Bakers obvious experience in investigating drunk driving accidents.
We thus conclude that the trial court did not abuse its discretion in admitting Bakers opinion testimony.
III. Admissibility of Aispuros Statements
Aispuro contends he was in custody when Baker questioned him at the accident scene because he was restrained on a backboard and gurney. Aispuro argues that he should have been advised of the Miranda warnings, and admission of his statements was prejudicial and requires reversal because there was no other evidence that Aispuro was driving the Blazer.
A. Background
During the pretrial motions, defense counsel indicated he would object if the prosecutor introduced the statements Aispuro made at the accident scene. Counsel requested an evidentiary hearing before such evidence was presented to the jury.
The trial evidence established there were four people in the Blazer. Baker testified that he spoke to the people at the scene and they told him which person had been driving the Blazer. Based on these conversations, Baker approached Aispuro, who was "[o]n the right shoulder [of the highway] just south of where the vehicle came to rest. He was laying on the roadway on a gurney being treated by medical personnel." Aispuros eyes were red and watery, and he smelled of an alcoholic beverage. Baker testified that he asked Aispuro if he had been drinking, and defense counsel objected and requested an evidentiary hearing.
We will discuss Aispuros challenge to this testimony in issue IV, post.
Aispuros objection at this point followed through with his stated intent to request a hearing on the Miranda issue if his statements were introduced into evidence, which stands in stark contrast to his failure to request a hearing about Bakers expertise when he gave his opinion about the cause of the accident, as discussed in issue II, ante.
The trial court conducted a hearing outside the jurys presence, and Baker testified about his observations at the scene of the crash. Baker determined the Blazer had been involved in a rollover-type accident. Another officer pointed out the people who had been in the Blazer, and they were receiving treatment from the paramedics. Baker and Morrison spoke with these people and they indicated Aispuro was the driver. Baker testified that the other individuals did not seem to be under the influence, and they didnt say Aispuro had been drinking. When Baker approached Aispuro, he immediately noticed signs of intoxication. Aispuro admitted he was the driver and that he had been drinking.
Defense counsel submitted the Miranda issue without argument, and the trial court denied his motion to exclude Aispuros prearrest statements.
Baker resumed his trial testimony and recounted his conversation with Aispuro. Aispuro admitted he was driving and had been drinking beer. Baker did not observe any visible injuries on Aispuro. Baker noted that the paramedics had placed Aispuro on a backboard as a precaution to protect against aggravating any spinal injuries.
Baker administered field sobriety tests that were appropriate for someone laying on a backboard, which included holding a pen in front of his face and having him follow it with his eyes. Aispuro failed the test because he moved his entire head to the left and right as the pen moved. Baker repeatedly instructed Aispuro to keep his head still, but he kept moving his head and was not able to follow the pen simply by moving his eyes.
On cross-examination, defense counsel asked Baker about the type of treatment Aispuro received at the scene:
"Q. Now, you are indicating that he was on his back on a backboard at that time. Is that correct?
"A. Yes, sir.
"Q. And he was being treated by the medical personnel. Is that right?
"A. Yes.
"Q. What were they doing to him, if you can remember?
"A. I dont have an independent recollection. I know that they had not secured his C spine at that time, which means that they had not put a neck collar on him or taped his head down to the gurney." (Italics added.)
B. Analysis
Aispuro claims that he was in custody because he was restrained on the backboard and gurney when Baker questioned him at the scene. The advisement of Miranda rights is required only when a person is subject to custodial interrogation. (People v. Mickey (1991) 54 Cal.3d 612, 648; People v. Mosley (1999) 73 Cal.App.4th 1081, 1088.) "The phrase `custodial interrogation is crucial. The adjective [custodial] encompasses any situation in which `a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. (Miranda v. Arizona, supra, 384 U.S. at p. 444.)" (People v. Mickey, supra, at p. 648; People v. Mayfield (1997) 14 Cal.4th 668, 732.) "Absent `custodial interrogation, Miranda simply does not come into play." (People v. Mickey, supra, at p. 648.)
The test for whether an individual is in custody is objective, i.e., "`[was] there a "formal arrest or restraint on freedom of movement" of the degree associated with a formal arrest." (Thompson v. Keohane (1995) 516 U.S. 99, 112; see also People v. Stansbury (1995) 9 Cal.4th 824, 830; People v. Ochoa (1998) 19 Cal.4th 353, 401.) The determination is "whether a reasonable person in defendants position would have felt he or she was in custody." (People v. Stansbury, supra, at p. 830.) As the United States Supreme Court has instructed, "the only relevant inquiry is how a reasonable man in the suspects position would have understood his situation." (Berkemer v. McCarty (1984) 468 U.S. 420, 442; People v. Stansbury, supra, at p. 830.) An officers focus of suspicion is "not relevant" to determining whether a suspect is in custody for purposes of Miranda. (Stansbury v. California (1994) 511 U.S. 318, 326.)
The question whether defendant was in custody for Miranda purposes is a mixed question of law and fact. (Thompson v. Keohane, supra, 516 U.S. at pp. 112-113; People v. Ochoa, supra, 19 Cal.4th at p. 401.) We defer to the trial courts findings on disputed facts when supported by substantial evidence, but independently decide if, under the facts found, a reasonable person would have felt he or she was in custody at the time of the interrogation. (People v. Ochoa, supra, at p. 402.)
In People v. Mosley, supra, 73 Cal.App.4th 1081, the defendant was convicted of first degree murder based on his involvement in a drive-by gang shooting. The defendant had been shot in the arm and remained at the scene as the police and emergency personnel arrived. A witness identified the defendant as being involved in the shooting. (Id. at pp. 1084-1086.) An officer approached the defendant, who was laying on a gurney in an ambulance. His arm was bleeding and the paramedics were treating him. The officer did not intend to place defendant under arrest at that time, but simply wanted to find out what had happened at the scene of the shooting. He did not know how the defendant was involved or whether the defendant was a victim, and thought he could obtain further information about the shooting suspects. The officer asked the defendant what happened to him and how he had been shot. The defendant claimed he was standing on the street and hit by the crossfire between the rival gang members. The entire conversation lasted only a couple of minutes and the paramedics continued to work on the defendant. (Id. at pp. 1086, 1089.) At trial, the defendant moved to exclude his statements and argued he was in custody because he was restrained in the ambulance, and he should have received Miranda warnings. (Id. at p. 1088.)
Mosley held that the defendant was not in custody for purposes of Miranda when he was questioned in the ambulance.
"... Any restraint of defendants freedom of action was caused by the need to treat his gunshot wound, which was still bleeding and was actively being treated during the interview. He had not been placed under arrest because the police did not know what had happened that caused him to be shot. If he was a victim of a shooting they needed information to put out a broadcast on his assailants. They knew that two shootings had occurred, but they did not know at the time of the interview what started the shooting, who was involved, or even if the two shootings were related to each other. Additionally, we note that the interview was in view of and in the presence of medical personnel who continued to treat defendant during the brief interview. We also note that the questioning was not accusatory or threatening, that defendant was not handcuffed, that no guns were drawn, and that defendant was about to be transported to a hospital and not to a police station or jail...." (People v. Mosley, supra, 73 Cal.App.4th at p. 1091.)
Mosley concluded that a reasonable person in defendants position would not have believed he was in police custody, and Miranda warnings were not required before questioning. (People v. Mosley, supra, 73 Cal.App.4th at p. 1091; see also Wilson v. Coon (8th Cir. 1987) 808 F.2d 688, 689-690; United States v. Martin (9th Cir. 1985) 781 F.2d 671, 673.)
A consensus of American case law agrees that an individual who is restrained by medical personnel for treatment or confined to a hospital bed is not in custody for purposes of Miranda. (See Cummings v. State (Md.App. 1975) 341 A.2d 294, 300-302 [consensus of American case law is that questioning of a suspect who is confined in hospital but not under arrest is not custodial interrogation]; Com. v. Lafleur (Mass.App.Ct. 2003) 791 N.E.2d 380, 382-384 [defendant not in custody when physically restrained by EMTs during brief questioning]; People v. DeBoer (Colo.App. 1991) 829 P.2d 447, 449 [defendant confined to hospital bed not in custody]; People v. Ripic (N.Y. 1992) 182 A.D.2d 226, 231-232, 587 N.Y.S.2d 776 [defendant not in custody even though restrained by medical devices in hospital bed]; State v. DesLaurier (Conn. 1994) 646 A.2d 108, 110, 112-113 [defendant restrained in neckbrace on bodyboard in ambulance not in custody]; State v. Lapp (Mont. 1983) 658 P.2d 400, 403 [hospital interrogation noncustodial where no coercion used to overcome suspects freedom of choice]; State v. Tyson (Or.App. 1982) 643 P.2d 396, 399 [hospital interrogation noncustodial where no evidence that police would have detained defendant had he attempted to leave]; but see Robinson v. State (Ala.App. 1969) 224 So.2d 675, 678 [hospital bed interrogation custodial where defendant "being detained"]; Commonwealth v. D Nicuola (Pa. 1972) 292 A.2d 333, 335-336 [deprivation of freedom of action includes hospital confinement], disapproved by Com. v. Ellis (Pa.Super. 1988) 549 A.2d 1323, 1333.)
Here, Aispuro contends he was in custody because he was being restrained on a gurney; his neck was in a collar, and his head was taped down to a backboard. Aispuro cites to page 93 of the reporters transcript to support this statement. Aispuros assertions, however, are refuted by this very page where Baker testified, without contradiction, that Aispuro was on the backboard and gurney when Baker questioned him, but the emergency personnel had not put a neck collar on him or taped his head down to the gurney. In addition, Baker testified that Aispuro failed the field sobriety test because he kept moving his head to follow the pen, which further implies that Aispuros head was not restrained to the backboard.
There is no conflict in the record on this point. Aispuro was not restrained or subject to any restriction of movement when Baker questioned him. As in Mosley, he was simply laying on the gurney and backboard and receiving treatment for his injuries, and he was not in custody for purposes of Miranda. The trial court properly denied Aispuros motion to exclude and his statements were not obtained in violation of Miranda.
IV. Admissibility of Statements about Aispuro
Aispuro contends the trial court improperly allowed Baker to testify about inadmissible hearsay statements from people at the scene as to the identity of the driver. He also argues that the trial courts admonitions to the jury concerning the statements were insufficient.
A. Background
At trial, Baker testified there were six people at the scene who were not part of the fire and emergency teams. The prosecutor asked if he obtained the names of any of these people, and Baker replied that he only got the name "of the person that I was told was the driver." Defense counsel objected and moved to strike as hearsay. The trial court overruled the objection with the following statement:
"No. No, its overruled. Not for the truth of the matter asserted but — that the person was the driver, but that was the only person whose name he got was the person he was told was the driver."
Baker then testified that he spoke to the people at the scene, and he was directed toward the person "who the passengers were stating were the driver. I obtained the name from that person later on." Defense counsel again objected and moved to strike as hearsay. The trial court again overruled the objection and admonished the jury:
"... Again, ladies and gentlemen, bear in mind this is why he went to a person. This is not whether it was true or not what people were saying about that person. You understand this? In other words, I might point to someone, say that guy stole the purse, that officer may go to that person, they might have or might not have stole the purse...."
Baker then testified Aispuro was the person who was pointed out to him.
B. Analysis
An out-of-court statement is properly admitted if a nonhearsay purpose for admitting the statement is identified, and the nonhearsay purpose is relevant to an issue in dispute. (People v. Turner (1994) 8 Cal.4th 137, 189.) The confrontation clause cannot be violated when evidence is received for a nonhearsay purpose. (Tennessee v. Street (1985) 471 U.S. 409, 414; People v. Harvey (1991) 233 Cal.App.3d 1206, 1224.) There is "`one important category of nonhearsay evidence—evidence of a declarants statement that is offered to prove that the statement imparted certain information to the hearer and that the hearer, believing such information to be true, acted in conformity with that belief. The statement is not hearsay, since it is the hearers reaction to the statement that is the relevant fact sought to be proved, not the truth of the matter asserted in the statement. [Citation.]" (People v. Scalzi (1981) 126 Cal.App.3d 901, 907.)
Here, Baker testified that the individuals at the scene indicated which person was the driver, and he approached Aispuro based on that information. This evidence was relevant and admissible for the nonhearsay purpose of explaining why Baker approached Aispuro and asked if he had been driving the Blazer. The trial court properly instructed the jury they were not to consider these statements for the truth of the matter asserted—the drivers identity—but merely to give context to Bakers decision to approach and question Aispuro. (People v. Turner, supra, 8 Cal.4th at p. 190.) There was no error.
CONCLUSION
The judgment is affirmed.
WE CONCUR: LEVY, Acting P.J. and GOMES, J.