Opinion
C051088
12-11-2006
THE PEOPLE, Plaintiff and Respondent, v. DAVID PAUL DeHERRERA, Defendant and Appellant.
A jury found defendant David Paul DeHerrera guilty of driving under the influence of alcohol causing injury, a felony (Veh. Code, § 23153, subd. (a); unspecified section references that follow are to the Vehicle Code), and driving with .08 percent blood alcohol causing injury, a felony (§ 23153, subd. (b)), and, with respect to both counts, that he inflicted great bodily injury within the meaning of Penal Code section 12022.7, subdivision (a). The court suspended imposition of sentence and granted probation for a period of four years under specified terms and conditions, including 365 days in county jail.
On appeal, defendant contends his convictions must be reversed because there was insufficient evidence to prove he drove a vehicle while either having .08 percent or more alcohol in his blood or while under the influence of any alcoholic beverage, and the court committed reversible error by allowing a California Highway Patrol (CHP) officer to testify as an accident reconstruction expert. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On the afternoon of July 27, 2003, Christopher N. was driving his white Dodge pick-up truck along Pleasant Valley Road in El Dorado County. He and his passenger, Christopher K., were heading eastbound when a wasp flew into the cab of the truck. Christopher N. crossed over the westbound lane and pulled the truck onto the north shoulder where Moon Lake Road meets Pleasant Valley Road. Christopher N. parked the truck so that it was parallel to Pleasant Valley Road and facing oncoming traffic, approximately three feet off the white line separating the road from the shoulder (sometimes called the fog line).
When the truck came to a stop, both men got out. Christopher N. left the drivers side door open and stood some 10 feet from the truck. Christopher K. got out, closed his door, walked around the back of the truck and stood with Christopher N. They waited there for about three or four minutes until the wasp flew out.
At approximately 3:30 p.m., as Christopher K. moved around the truck and began to open the door to get back in the truck, he was hit by a blue Chevy truck with a boat in tow, driven by defendant and traveling westbound on Pleasant Valley Road. Christopher K. was "caught up in the middle in between the two rigs" and then thrown approximately eight feet from the road, landing underneath a row of mailboxes. Christopher N. ran over to Christopher K. and, after seeing the extent of his injuries, tried to call 911, as did one of the bystanders. At the suggestion of someone at the scene, Christopher N. moved his truck forward to make room for emergency personnel. Defendant, who had pulled his truck over and stopped down the road, walked up to where Christopher K. was laying and began to apologize.
Emergency personnel arrived on the scene first and attended to Christopher K., followed by law enforcement officers, including CHP Officers Lacey and Flahavan, who arrived at approximately 3:48 p.m. Flahavan attempted to obtain a statement from Christopher K., but was unable to due to the severity of his injuries. Christopher K. was eventually taken by helicopter to the hospital, where he remained in a coma for a month, after which he spent approximately seven months recovering from his extensive injuries. Meanwhile, Lacey took Christopher N.s statement, going over the facts three or four times. Lacey and Flahavan also had Christopher N. move his truck back to the position it was in at the time of the accident.
Flahavan interviewed defendant and his passenger, defendants father, about what occurred. Both men confirmed that defendant had been driving the vehicle that hit Christopher K. According to defendant, he was driving 40 miles per hour westbound on Pleasant Valley Road when he noticed Christopher N.s truck stopped on the north shoulder. All of a sudden, Christopher K. "jumped out of the right front door," leaving the door wide open and standing with his back turned, talking to Christopher N. through the cab of Christopher N.s truck. Defendant tried to swerve left into oncoming eastbound traffic, but could not avoid hitting Christopher K.
During his investigation, Flahavan noted the presence of vehicle debris just north of the fog line where the accident occurred, which was consistent with the damage he found on the vehicles. He also observed damage to the right side of defendants truck, boat and boat trailer and damage to the right side of Christopher N.s truck, and noted that the damage to both vehicles was consistent with a "sideswipe" impact.
As Flahavan was talking with defendant, he noticed that defendants breath smelled of alcohol, his eyes were red and watery and his speech was slow. When questioned about it, defendant told Flahavan he had been drinking all night and, after waking up with a hangover, had had one beer at 9:00 a.m. After taking defendants statement, Flahavan administered three field sobriety tests: the Rhomberg test, the horizontal gaze nystagmus test and the preliminary alcohol screening (PAS) test. The Rhomberg test required defendant to place his hands to his side, tilt his head back, close his eyes, estimate a period of 30 seconds and then open his eyes. Although defendant did not sway or move his feet during the test, he had difficulty understanding what to do, requiring Flahavan to explain it twice, and "estimated 30 seconds in actually 16 seconds." Defendant was able to track on the nystagmus test (where the test subject is required to follow the tip of a pen while keeping his/her head still), but had to be reminded several times not to move his head and exhibited distinct eye jerking at two different test points. Flahavan administered the PAS test twice. At 4:25 p.m., defendant showed a blood alcohol level of .102 percent, and at 4:27 p.m., a blood alcohol level of .098 percent. Based on the results of those tests, as well as the "the fact that [defendant] had gone on the right shoulder," the objective symptoms of impairment Flahavan observed, and defendants own admission that he had consumed alcohol, Flahavan concluded that defendant was driving under the influence of alcohol at the time of the accident and placed him under arrest.
According to an analysis of defendants blood screen taken at 5:00 p.m. that day, defendant had a blood alcohol content of .06 percent.
At trial, the prosecutions expert, criminalist Boyd Lassiter, testified that everyone becomes impaired at a blood alcohol level of .10 percent, and some can be impaired at levels as low as .05 percent. Lassiter also testified regarding the process by which the body begins to eliminate or "burn off" alcohol in the blood over time, and concluded that, according to studies conducted on the subject, the accepted burn-off rate is .071 percent. Given a hypothetical in which the subjects blood alcohol level is .06 percent at 5:00 p.m., the subject consumed his last drink at 9:00 a.m., and a burn-off rate of .071 percent, Lassiter concluded that the subjects blood alcohol level at 3:30 p.m. would have been "most likely at least .08 percent." Lassiter further opined that other factors, such as a persons driving pattern, his/her performance on the field sobriety tests and the reason for the vehicle stop, play a part in determining whether that individual was driving under the influence of alcohol.
At trial, both Christopher N. and Christopher K. testified that Christopher K. had been standing by the truck, several feet north of the fog line on the shoulder of Pleasant Valley Road when defendant hit him, and both men denied that Christopher K. "jumped out of the truck into the roadway and then was hit."
Flahavan also took the stand for the prosecution at trial. He testified regarding his 13 years as a CHP officer, during which he received 72 hours of accident investigation training, took two 40-hour classes on techniques of accident investigation, and personally investigated 640 accidents. Flahavan recalled his observations, as lead investigator, at the scene of the accident and described the evidence collected, including photographs of damage to the vehicles and statements from the defendant and other witnesses. Over defendants repeated objections, Flahavan testified that it was his conclusion, based on the original location of Christopher N.s truck, the statements of the witnesses and the defendant himself, and the physical evidence found at the accident scene, that the collision occurred after defendant made an unsafe turning movement allowing his vehicle to cross over the fog line onto the north shoulder of Pleasant Valley Road and hit Christopher K. The trial court overruled defendants objection, but admonished the jury to make its own mind up regarding what weight to give to Flahavans conclusions, given his background and experience.
The emergency medical personnel who treated Christopher K. at the scene testified on behalf of the defendant, as did Dr. Andrew DeMar, the trauma surgeon who treated Christopher K. at the hospital. DeMar testified that he remembered Christopher K. telling him there was a bee in the car and "he jumped out of the car quickly," but did not have a specific recollection of Christopher K. saying that he was then struck by a passing car. DeMar added that he may have obtained the information contained in the report that Christopher K. was hit after jumping out of the car quickly from Christopher K. or from the emergency personnel, or he "may have just put two and two together."
Jason Lindberg, a paramedic with the El Dorado County Fire Department who responded to the 911 call, testified that an unidentified individual at the scene stated that Christopher K. "got stung by a bee, jumped out, got hit by a truck." Although the individual did not identify himself as the driver of the truck in which Christopher K. had been riding, Lindberg assumed that he was, and further assumed that Christopher K. got stung by a bee, panicked, jumped out of the truck into the roadway and was immediately hit in the roadway, even though he was not provided with any additional information regarding the timing of those events.
Terri Simmons, an engineer and emergency medical technician who also responded to the accident, testified that she also spoke with an unidentified person whom she assumed to be the driver, who stated that a bee flew in the window and "he pulled his vehicle off to the side of the road and his friend jumped out into the road and got hit." Simmons further testified that she was given no additional information regarding the timing of events from the time Christopher K. got out of the truck until the time he was hit.
The jury found defendant guilty of driving under the influence of alcohol causing injury and driving with .08 percent blood alcohol causing injury and, as to each count, found the enhancements for great bodily injury to be true. The court suspended imposition of sentence and placed defendant on probation for four years, the first year of which was to be spent in county jail. Defendant filed a timely notice of appeal.
DISCUSSION
I
Defendant contends the evidence was insufficient to prove that he was driving with a blood alcohol level of .08 percent or more. Relying on People v. Collins (1968) 68 Cal.2d 319 (Collins), he urges that the Peoples evidence of intoxication is little more than a statistical analysis of probabilities in which, at best, it was only "77.8 percent probable that [defendants] blood alcohol level was 0.08 percent or higher," a conclusion not sufficient to find defendant guilty beyond a reasonable doubt. We disagree.
We review "the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which 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.) "`The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt." (Id. at p. 576, quoting from People v. Reilly (1970) 3 Cal.3d 421, 425.)
As a preliminary matter, defendants reliance on Collins is misplaced. Collins dealt with testimony from the prosecutions purported expert witness, a mathematician, offered to demonstrate the statistical probability of guilt based on an inaccurate eyewitness identification. The appellate court found the experts deductions were not based on statistical data derived from scientific research, but rather on statistical theory unsupported by any evidence whatsoever. The court further found that, as a result of trying to calculate a result using the experts deductions, the jury was distracted from its proper function of weighing evidence, rendering results so unreliable or completely lacking in evidentiary foundation that they were inadmissible as a matter of law. (Collins, supra, 68 Cal.2d at p. 327.)
Unlike Collins, the prosecutions expert in this case offered a range within which defendants blood alcohol level fell at the time of the accident based on undisputed scientific research and accepted principles of calculation. Given defendants blood alcohol level of .06 percent an hour and a half after the accident, and the generally accepted burn-off rate, Lassiter calculated defendants blood alcohol level at the time of the accident to have been within the range of at least .075 percent to more than .08 percent. Considering the entire factual scenario, i.e., assuming the objective symptoms observed by Flahavan, the circumstances of the accident, and defendants poor performance on the field sobriety tests, Lassiter opined that the most likely conclusion was that defendant had a blood alcohol level at the time of the accident of at least .08 percent.
The jury had the ability to, and we presume they did, determine what weight Lassiters opinion should be given in its consideration of whether or not defendant was guilty of the crimes charged. In other words, given the range presented by Lassiter, we can infer the jury weighed all of the evidence to determine whether or not Lassiters opinion that it was "most likely" defendant was under the influence of at least .08 percent blood alcohol at the time of the accident was sufficient to prove defendants guilt beyond a reasonable doubt. That evidence was certainly not limited to Lassiters testimony, but also included, among other things, Flahavans testimony regarding his observations of the signs of intoxication exhibited by defendant, defendants poor performance on the field sobriety tests, the PAS results of .102 percent and .098 percent blood alcohol levels at the accident scene and, perhaps most importantly, defendants own statements regarding his consumption of alcohol.
In the same way those facts increased the likelihood defendants blood alcohol level was .08 or greater in Lassiters opinion, so too could they have provided a basis for the jury to determine, beyond a reasonable doubt, that defendants level of intoxication was .08 percent or higher at the time of the accident. We conclude sufficient evidence exists for the jurys finding in that regard.
II
Defendant also contends there was insufficient evidence to prove that he was driving under the influence of alcohol when he hit Christopher K. Defendant bases his argument in part on the same reasons proffered for his first argument, namely that Lassiters testimony was defective because it was equivocal. We find no reason to depart from our disposition in section I, ante, and again find defendants argument to be without merit.
Defendant finds further fault with the testimony of Flahavan, contending his opinion regarding defendants level of intoxication "should be rejected" because his expertise was limited to "knowing the Vehicle Code, recognizing signs of alcohol consumption, and administration of field sobriety tests," all of which goes to probable cause or reasonable suspicion, but not to whether the defendant was, in fact, under the influence of alcohol beyond a reasonable doubt. We do not agree.
Flahavan testified that his opinion that defendant was under the influence of alcohol was based on the results of the PAS tests, the fact that defendants breath smelled of alcohol, his eyes were red and watery and his speech was slow, defendants difficulty in understanding and poor performance on the field sobriety tests, the fact that defendant drove onto the shoulder of the road, and defendants own statement that he had been drinking. From that testimony, the jury could make its own determination as to whether the defendant was under the influence at the time of the accident or not. It is true that Flahavan "believed he had cause to believe that [defendant] drove under the influence." It was for the jury to determine whether Flahavan was correct based on the evidence before it. Evidently, the jury found that evidence sufficient to prove, beyond a reasonable doubt, that defendant was driving while under the influence. We conclude there was sufficient evidence for that finding.
III
Defendant contends that Flahavan was not properly qualified to testify as an expert in accident reconstruction, and that the court committed reversible error in allowing him to do so. We are not persuaded.
"[T]he responsibility for determining the competency and qualifications of an expert witness rests initially with the trial court. [Citations.] And on appeal, the lower courts ruling will not be disturbed unless there has been an abuse of discretion. [Citations.]" (Crooks v. Pirrone (1964) 228 Cal.App.2d 549, 553.)
It seems to be well "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." (Hart v. Wielt (1970) 4 Cal.App.3d 224, 229; Risley v. Lenwell (1954) 129 Cal.App.2d 608, 631; see also Enos v. Montoya (1958) 158 Cal.App.2d 394, 399.)
The evidence shows Flahavan had 13 years of experience as a CHP officer and had personally investigated over 640 accidents during that period. He responded to the accident within approximately 15 minutes of it occurring and testified regarding facts he obtained from his own personal observations at the scene. He testified regarding his training and experience in accident investigation. He gave an opinion as to how he thought the collision occurred (e.g., how the glass from the broken windshield ended up inside defendants truck, the significance of the lack of paint transfer marks on the cab portion of Christopher N.s truck and the points of contact between the two vehicles, and where the collision occurred), each time explaining that his opinion was based on the evidence he personally observed at the accident scene. The court found Flahavan was qualified to give those opinions based on his significant experience in accident investigation, and found the opinion testimony to be "a fair evaluation of this officers assessment of the scene based on his experience and training," overruling defendants objections. We conclude there was no abuse of discretion in that finding.
Defendant also argues that Flahavans testimony was not the proper subject of expert testimony because it was "speculative." We are similarly not persuaded.
Once it has been shown that the witnesss qualifications relate to the opinions expressed, "the only question remaining is whether the witness was possessed of sufficient facts and information to express those opinions, whether the evidence was of such a character as to indicate the necessity of and require an interpretation for the benefit of the jury, whether it was proper and necessary to an enlightened consideration and a correct disposition of the ultimate issue, and whether or not the facts sought to be shown by the expert were matters of such common knowledge as to preclude the admission of expert testimony." (Wells Truckways, Ltd. v. Cebrian (1954) 122 Cal.App.2d 666, 677.)
Flahavans opinions were based on numerous pieces of evidence gathered by him at the accident scene. Given that the jurys only experience of that evidence was through photographs and the testimony of witnesses, it was not unreasonable for the court to determine that Flahavans opinions could assist the jury in putting the pieces of the puzzle together to reach a conclusion as to how the accident occurred. Admission of Flahavans opinions based on facts in evidence and personally known to him was proper to "aid the jury in drawing correct inferences from the raw and unsorted facts." (Wells Truckways, Ltd. v. Cebrian, supra, 122 Cal.App. 2d at p. 678.)
Flahavans qualifications and opinions were tested on cross-examination, and we can infer that the jury, in its deliberations, was mindful of the courts instruction to give Flahavans testimony only as much weight as the jury saw fit given the evidence before it. We find no error in the trial courts admission of Flahavans testimony.
DISPOSITION
The judgment is affirmed.
We concur:
SIMS, Acting P.J.
ROBIE, J.