Opinion
C097036
11-17-2023
THE PEOPLE, Plaintiff and Respondent, v. ANDREW JOHN BERGESON, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 20FE018046
RENNER, J.
In October 2020, defendant Andrew John Bergeson and the victim, T.B., were involved in a traffic collision in Sacramento near the intersection of Elkhorn Boulevard and Walerga Road. T.B. and an eyewitness claimed defendant drove erratically after crossing the intersection and hit T.B.'s car, while defendant asserted T.B. was the aggressor and hit his truck. Based on the incident, a jury found defendant guilty of simple assault as a lesser included offense to assault by means of force likely to produce great bodily injury, and the trial court sentenced him to one year informal probation.
Defendant appeals, arguing that the trial court abused its discretion by precluding his expert from testifying about the meaning of a traffic sign located at an intersection near the collision. He claims that had the trial court allowed his expert to testify that the traffic sign did not obligate defendant to turn right, as T.B. and the eyewitness had improperly assumed, the expert would have exposed their biased perception of the events leading up to the collision, which would have undermined their credibility before the jury.
We conclude the trial court did not err in excluding the proffered expert testimony, and, in any event, any alleged error was harmless on this record. We therefore affirm.
I. BACKGROUND
A. The Charges and Motions in Limine
Following the car accident, defendant was charged with assault with a deadly weapon (a motor vehicle) (Pen. Code, § 245, subd. (a)(1)-count one), and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)-count two). In a pretrial motion, defendant sought to introduce the testimony of retired California Highway Patrol Officer Charles Swift as an expert on several topics, including accident investigations and traffic signage. The People moved in limine to exclude Swift's proposed testimony on various grounds.
Further undesignated statutory references are to the Penal Code.
As relevant here, the People objected to Swift testifying as an expert on the meaning of a traffic sign located at the intersection of Elkhorn Boulevard and Walerga Road, including that the sign did not require defendant to turn right on Walerga Road from Elkhorn Boulevard. Over defense counsel's objection, the trial court granted the motion, finding that much of Swift's proffered testimony was not relevant, that many of the topics could be explored during defendant's cross-examination of other witnesses, or that his testimony was barred by the Sanchez rule precluding an expert from relaying case-specific hearsay.
People v. Sanchez (2016) 63 Cal.4th 665.
Defendant re-raised the issue the following day, arguing that he should be allowed to call Swift to introduce a picture of the intersection at Walerga Road and Elkhorn Boulevard, which showed the far right lane and traffic signage to establish whether it was a turn lane. The court ruled that defense counsel could ask Swift whether the lane was a right turn lane but cautioned him not to expand his questioning to the topics precluded the previous day.
B. Trial
At trial, the prosecution called two witnesses: an eyewitness, Sarah Butler, and the victim, T.B. Butler testified that on October 9, 2020, she was driving home from work on Elkhorn Boulevard when she stopped two cars back at a red light at the intersection of Walerga Road. At the intersection, Elkhorn Boulevard had a left turn lane, two lanes of traffic that continued straight after Walerga Road, and a right-hand turn lane. Next to the right lane was a yellow traffic sign that Butler believed meant the far right lane was a right-turn-only lane. According to Butler, the far right turn lane on Elkhorn Boulevard ended at Walerga Road and became a bike lane past the intersection.
While stopped at the red light, she noticed defendant's large diesel truck in what she believed was the right turn lane. When the light turned green, defendant did not turn right but instead quickly drove through the intersection and attempted to merge left from what she now perceived to be a bike lane, cutting off the cars that were in the right lane of continuing traffic, including a green car driven by T.B. T.B. slowed down and swerved closer to the median in the left lane to avoid defendant's truck. The truck then pulled in front of T.B., and T.B. maneuvered his car back to the right lane.
According to Butler, T.B.'s green car and defendant's truck drove next to one another until the truck appeared to swerve into the right lane to purposefully hit T.B.'s car. The front of the truck collided with the driver's side of T.B.'s car. She observed the truck's tires spinning and smoking, and it appeared defendant's truck was pushing the car. Although she was approximately 20 car lengths back, she was able to see the collision clearly because no cars were in front of her to block her view. She testified that the collision occurred on Elkhorn Boulevard just before the intersection with Sprig Drive. After witnessing the collision, Butler called 911 and a recording of the call was played for the jury.
During cross examination, Butler conceded that there was nothing painted on the roadway indicating that the far right lane at the intersection of Elkhorn Boulevard and Walerga Road was a right-turn-only lane. She also agreed that none of the traffic signs at the intersection said that the right lane must turn right. She did not see the victim flip off the defendant while driving.
T.B. testified that on the afternoon of October 9, 2020, he was driving his green car in the right lane of Elkhorn Boulevard when he stopped at a red light at the intersection of Walerga Road. T.B. noticed defendant's truck to his right in a lane that T.B. believed was a right-turn-only lane. When the light turned green, T.B. proceeded on Elkhorn Boulevard in the right lane of continuing traffic. Defendant did not turn right on Walerga Road like T.B. had anticipated but instead drove his truck through the intersection, which T.B. acknowledged irritated him. T.B. remained in the right lane while the truck was in what T.B. described as a bike lane.
Although T.B. thought defendant might turn right into an upcoming apartment complex, he did not; T.B. then sped up and defendant pulled his truck behind T.B. in the right lane. He denied that defendant had tried to swerve into his car at that point, but T.B. said he thought defendant had tried to cut him off and therefore T.B. made an obscene gesture at defendant by flipping him off.
Defendant honked at T.B. and drove erratically, speeding up and tailgating his car; defendant then moved into the left lane of continuing traffic and T.B. accelerated to get away from defendant's truck. Defendant's truck straddled the lane lines and swerved into T.B.'s lane. Eventually, defendant crossed over into T.B's right lane just past the intersection with Sprig Drive and the truck's bumper hit the driver's side of T.B.'s car. Defendant turned his truck until T.B. could no longer drive his car, and it felt as if the truck was dragging T.B.'s car.
After T.B. dislodged his car from defendant's truck, T.B. pulled over and got out of his car to inspect the damage. Photos showing the driver's side damage to his car, which had not been there before defendant collided with his car, were introduced and shown to the jury.
After the People rested, defense counsel informed the trial court that he anticipated calling Swift to establish that the far right lane on Elkhorn Boulevard at Walerga Road was not a right-turn-only lane nor did the lane become a bike lane after the intersection; instead, it was a merge lane that continuing traffic could legally drive through without turning right. Counsel argued that Swift, as a retired California Highway Patrol officer who teaches at the academy, was qualified to offer an opinion on what constituted a turn lane and a bike lane. According to counsel, whether the lane was a turn lane went to the witnesses' perception of the events that followed defendant's failure to turn right on Walerga Road and whether defendant had driven illegally before the collision.
The trial court, however, found Swift's proposed testimony irrelevant because whether the far right lane was a turn lane or not had little to do with defendant's driving at the time of the collision past the intersection. While the court acknowledged that asking the witnesses about whether or not it was a turn lane may go to their impression as to what they thought was going to happen, it did not matter who was legally correct about the status of the lane because whether the right lane was a turn lane had nothing to do with the elements of the charges.
The trial court noted that defendant himself could testify about whether the far right lane at the Walerga Road intersection was a through-lane or a turn lane, and that the jury also had access to pictures of the intersection in question. Defense counsel responded that the jury would likely discount defendant's testimony because he was an interested party.
Defense counsel then requested to call Swift not as an expert witness but simply as his private investigator to state that when he observed the scene several weeks later there was no right-hand turn lane at Walerga Road, and there was no bike lane past the intersection. The court rejected the argument, finding Swift's testimony irrelevant since the witnesses, including defendant, could testify to the scene and the jury had access to pictures showing the roadway and intersection. The court offered to give jurors a limiting instruction that they were not to decide whether defendant committed a traffic violation by continuing on Elkhorn Boulevard rather than turning right on Walerga Road. Defense counsel declined the trial court's proffered limiting instruction.
Defendant testified on his own behalf. According to him, he drove a large Ford F350 diesel truck for his work as a contractor and was familiar with Elkhorn Boulevard because he drove it at least once a week. After getting gas at the corner of Elkhorn Boulevard and Walerga Road, he pulled his truck into the far right lane on Elkhorn Boulevard and stopped at the red light; there were no traffic signs or any traffic directions painted on the lane indicating that it was a right-turn-only lane or a bike lane. When shown a picture of the yellow traffic sign at the intersection of Elkhorn Boulevard and Walerga Road that was admitted into evidence, defendant testified the signage meant "turning vehicles caution, yield to pedestrians."
When the light turned green, defendant accelerated through the intersection and attempted to merge left as he had previously seen other cars do from the far right lane. However, a green car, driven by T.B., sped up to block him. Defendant slowed down, and T.B. slowed down. Defendant then accelerated and merged into the right lane ahead of T.B. T.B. merged into the left lane, sped past defendant, flipped him off, and then pulled his car directly in front of defendant's truck in the right lane. Defendant slowed down to avoid T.B. T.B. sped off, and then defendant merged into the left lane and continued driving.
Defendant caught up with T.B.'s green car at a red light at the next intersection at Sprig Drive. Defendant was in the left lane while T.B. was in the right lane. When the light turned green, defendant drove through the intersection and T.B. "rammed" his car into the passenger side of defendant's truck, causing damage; T.B. continued to drive his car down the length of the truck and then turned in front of defendant to stop the truck. T.B. got out of his car and started yelling at defendant, and defendant called the police; a recording of defendant's 911 call was played for the jury.
Defendant denied swerving into T.B.'s lane or driving his truck into T.B.'s car. He called several character witnesses who testified that he was not prone to anger or easily agitated, and that they considered him to be calm and nonconfrontational.
During closing, the prosecutor argued that the central question the jury had to decide was whether defendant assaulted T.B. when he drove his truck into T.B.'s car. In discussing whether he had proven the elements of the charged assault offenses beyond a reasonable doubt, the prosecutor did not mention or otherwise raise whether the far right lane on Elkhorn Boulevard at Walerga Road was a right-turn-only lane.
Defense counsel argued in closing that both T.B.'s and Butler's perception of the incident was skewed because they started from a faulty premise-that defendant failed to turn right from a right-turn-only lane and tried to merge from a bike lane to cut off traffic. Counsel urged the jury to consider the physical evidence, including the photographs of the intersection and the traffic signage, which did not show a right-turn-only lane or a bike lane, making T.B.'s and Butler's version of the events less credible.
In rebuttal, the prosecutor asserted that whether defendant committed a Vehicle Code violation by failing to turn right on Walerga Road from the far right lane of Elkhorn Boulevard was irrelevant and not part of the elements of the charged assault crimes.
The jury found defendant not guilty of assault with a deadly weapon or the lesser included offense of simple assault for count one, and not guilty of assault by means of force likely to produce great bodily injury in count two, but guilty of the lesser included offense of simple assault. The trial court suspended imposition of sentence and placed defendant on informal probation for one year with various terms and conditions, including 60 days in county jail. Defendant timely appealed.
II. DISCUSSION
Defendant contends the trial court abused its discretion by precluding Swift from testifying about the meaning of the yellow traffic sign at the Walerga Road and Elkhorn Boulevard intersection. He argues that the trial court lacked a reasonable basis for concluding Swift's testimony was irrelevant because the testimony would have countered the testimony of Butler and T.B. that they thought defendant should have turned right on Walerga Road instead of continuing straight through the intersection. Had Swift been permitted to testify regarding the sign's meaning, defendant contends, Swift's testimony would have exposed the other witnesses' biased perception of the events that unfolded after the intersection and before the collision. We are not persuaded.
Expert opinion testimony is admissible when "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a); see People v. Garcia (2018) 28 Cal.App.5th 961, 968.)" 'Expert opinion is not admissible if it consists of inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by the witness.'" (People v. Chapple (2006) 138 Cal.App.4th 540, 546-547.) We review a trial court's ruling on the admissibility of expert testimony for abuse of discretion. (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773.)
Here, the trial court reasonably could conclude that Swift's testimony regarding the meaning of the traffic sign would not assist the trier of fact because whether the far right lane of Elkhorn Boulevard was a right-turn-only lane was not relevant to the elements of the assault charges or to how defendant drove when he later collided with T.B.'s car. As the court explained, whether defendant may or may not have violated the Vehicle Code by failing to turn right on Walerga Road had no tendency to prove or disprove whether he intentionally assaulted T.B. with his truck at a subsequent intersection further along Elkhorn Boulevard. (Evid. Code, §§ 350 ["[n]o evidence is admissible except relevant evidence"], 210 [evidence is relevant if it has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action"].)
Furthermore, photos of the intersection showing the lanes of travel as well as the yellow traffic sign were admitted into evidence and shown to the jury. Based on these photos, the jury could easily draw the same inferences and conclusions that Swift did when investigating the scene depicted in the photos, i.e., that the yellow sign did not require drivers in the far right lane to turn right but instead instructed drivers turning right to yield to pedestrians like defendant testified.
In any event, even if we assume without deciding that the court erred in precluding Swift's testimony, the error was not prejudicial on this record. As explained above, photos of the area clearly showed the yellow traffic sign and all of the lanes of travel on Elkhorn Boulevard, including the absence of any painting on the far right lane indicating it was a mandatory right turn lane. Thus, jurors could view the scene and determine for themselves whether Butler and T.B. had misperceived if defendant had improperly driven through the intersection before later colliding with T.B.
To the extent defendant argues that Swift's testimony was relevant to question the credibility of Butler's and T.B.'s perception of whether defendant was driving "illegally" and was the "bad guy" (People v. Williams (2008) 43 Cal.4th 584, 633 ["[t]he 'existence or nonexistence of a bias, interest, or other motive' on the part of a witness ordinarily is relevant to the truthfulness of the witness's testimony"]), defense counsel's cross-examination of Butler and his closing argument effectively did the same. On cross, Butler conceded that the yellow traffic sign did not state that drivers in that lane had to turn right, and that nothing was painted or written on the lanes requiring such a turn-the same testimony defendant sought to elicit from Swift had he been permitted to testify.
Defense counsel, moreover, argued that Butler and T.B. had misperceived the incident because they erroneously thought defendant should have turned right on Walerga Road when he was not required to do so. Thus, the jury was presented with defendant's theory of the case that Butler and T.B. were not credible witnesses based on their misperception of the roadway signs. Based on the physical evidence, including the pictures of the lanes and traffic signs, it is not reasonably likely the jury would have acquitted defendant of all charges had Swift testified that the yellow traffic sign did not indicate a right turn only lane.
III. DISPOSITION
The judgment is affirmed.
We concur: MAURO, Acting P. J., WISEMAN, J. [*]
[*] Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.