Opinion
D070056
02-27-2017
THE PEOPLE, Plaintiff and Respondent, v. MARYANN JOHNSON, Defendant and Appellant.
Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCS277341) APPEAL from a judgment of the Superior Court of San Diego County, Edward P. Allard, III, Judge. Affirmed. Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Maryann Johnson guilty of assault with force likely to cause great bodily injury based on her throwing of a rock at a car driving next to her. (Pen. Code, § 245, subd. (a)(4).) The trial court sentenced Johnson to a two-year prison term.
Johnson contends that the trial court abused its discretion in admitting testimony and photographic evidence presented by a police detective who conducted surveillance on Johnson to assess whether, as Johnson's doctor testified, it would have been extremely painful, due to her arthritis, for Johnson to have thrown the rock at issue in this case. We conclude that Johnson's argument is without merit, and accordingly we affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On January 25, 2015, at around 5:00 p.m., Johnson was driving her sports utility vehicle through a shopping center parking lot in a reckless manner. Witnesses observed Johnson speeding around, nearly missing other vehicles, swerving, and cutting off other vehicles.
Alexis L. was exiting the parking lot in a sedan, with two passengers in the car, Because Alexis felt threatened and unsafe due to Johnson's reckless driving, Alexis "flipped off" Johnson by raising her middle finger. The two cars drove side by side down the city street and then stopped at a traffic signal. While driving beside Alexis's car, Johnson was yelling, cursing and pointing at Alexis.
Pursuant to California Rules of Court, rule 8.90(b), which directs us to consider the use of first names and last initials where appropriate to preserve crime victim anonymity, we refer to Alexis L. by her first name, and we intend no disrespect by doing so.
At the traffic signal, Johnson was in the left turn lane and Alexis was in the lane next to her. After Alexis rolled up her window at the traffic signal, she heard a loud thud on the driver's side of the car. According to one of Alexis's passengers, Johnson reached across to the passenger window of her vehicle and threw a rock at Alexis's vehicle with an underhand throw of her left arm. Based on a mark later observed on Alexis's car, the rock hit the upper left-hand corner of the driver's side backseat window.
Alexis took photographs of Johnson's vehicle and noted the license plate number, and one of Alexis's passengers retrieved the rock from the ground at the scene. While the passenger was retrieving the rock, Johnson returned in her vehicle and yelled but then sped off. Alexis called 911 and reported the incident, along with providing Johnson's license plate number.
Detective Anthony Molina identified Johnson using the license plate number provided by Alexis. Detective Molina also examined Alexis's car and noted a mark on the window that was consistent with being caused by the rock that had been retrieved at the scene, which weighed 0.6 pounds. According to Detective Molina's investigation at the intersection where the incident occurred, Johnson would have been no more than approximately nine feet from Alexis's vehicle when she threw the rock.
Johnson was charged with assault with force likely to cause great bodily injury. (§ 245, subd. (a)(4).) It was also alleged that Johnson had a prior strike (§§ 667, subd. (b)-(i), 1170.12) and a prison prior (§§ 667.5, subd. (b), 668).
A first jury trial ended in a mistrial when the jury was not able to reach a verdict.
During the second trial, as during the first, Dr. Anselmo Roldan was the only witness called by the defense. As Roldan testified, Johnson was a patient who was referred to him because of her rheumatoid arthritis and carpal tunnel syndrome. According to Roldan, Johnson is classified as disabled by the Department of Veterans Affairs and the Social Security Administration. Roldan testified that Johnson's arthritis decreases the strength and flexibility in her hands, and her ability to throw an object is decreased. If Johnson were to throw an object weighing 0.6 pounds, she would have no distance or accuracy. According to Roldan, Johnson's underhand throwing ability is greater than her overhand throwing ability, but still decreased, and she is ambidextrous but with a stronger left hand. When asked whether Johnson could throw a 0.6-pound rock a distance of 10 to 15 feet, Roldan said it was "very unlikely." Later Roldan testified that although it was "unlikely" Johnson could throw something a distance of nine feet, it might be theoretically possible under some circumstances were she to ignore her pain.
According to Roldan, Johnson was prescribed arm braces by her orthopedic surgeon, which Roldan discourages her from wearing 100 percent of the time. Describing the pain associated with Johnson's condition, Roldan stated that when she takes off her arm braces for his examination of her, Johnson can barely tolerate movement, and it would cause "extreme pain" were Johnson to flick her wrist. Roldan acknowledged, however, that his understanding of the level of Johnson's pain was based on her own statements to him. Roldan prescribes several drugs to Johnson for her pain management and associated problems, including Vicodin, Xanax and Temazepam. The purpose of the surveillance was to disprove Johnson's defense, presented through Roldan, that she did not throw a rock as charged in this case because it would have caused extreme pain due to her arthritis. As the People's motion in limine argued, Johnson's "ability to . . . move her wrists around without any indication of pain is highly relevant in this case" and "is highly probative to impeach [Johnson's] claim that she was unable to throw a rock [o]n the day in question." The trial court deferred ruling until after Roldan testified, stating that "this is potential rebuttal evidence."
After Roldan testified, the trial court revisited the issue of Detective Molina's testimony about his surveillance of Johnson. Defense counsel objected to the admission of the evidence on the ground that the People should have called a medical expert to rebut Roldan's testimony. Defense counsel stated, "Your Honor, I think the People have an innate problem here, and that's that they can attempt to show surveillance. They can attempt to do a variety of things. But in the end, if they really wanted to attack the disabled quality, I think the People should have had the foresight to obtain a medical expert to say that my medical expert is incompetent, lying, or whatever they wanted; so I think that it's a problem. I think the doctor has said that she is encouraged to do certain movements so that she can maintain some strength in her hands. So if, you know, the court wants to allow it, fine. But as I understand it, as I say, I don't think that there is a Fifth Amendment privilege against someone being physically examined. I don't think that the People couldn't have gotten their own medical expert. It isn't like they didn't know I was going to be presenting a medical expert. With that I'll submit to the discretion of the court."
The prosecutor argued for the admission of the evidence, pointing out, among other things, that Detective Molina's testimony about his surveillance of Johnson would be relevant to the issue of "whether or not [Johnson's arthritis] prevent her from throwing a half-pound rock." As the prosecutor argued, Roldan testified that Johnson "can barely 'tolerate movement.' And here it shows that she is tolerating movement just fine. . . . He doesn't understand that when she is not around him trying to get pills, she is fine . . . to an extent, of course." The prosecutor emphasized that she was not seeking to establish through Detective Molina's surveillance that Roldan was untruthful during his testimony, but rather was attempting to show that because Roldan is giving Johnson medication "based on what she says her pain is," Johnson was "pulling fast ones on him" by exaggerating her pain level.
The trial court ruled that it would allow Detective Molina to testify about his surveillance of Johnson and would admit the related photographs and video footage. In explaining its ruling, the trial court stated, "Dr. Roldan . . . is really painting a picture of Ms. Johnson basically . . . being constantly in pain; . . . having a very difficult time with any types of movements." As the trial court pointed out, the evidence offered by the People would attempt to "paint a different picture," would demonstrate "the extent of the limitations," and would "put into perspective . . . that which she is telling Dr. Roldan" about her level of pain.
During Detective Molina's testimony, he described the surveillance that he conducted of Johnson approximately a week before trial, and the jury was shown photographs and videos that Detective Molina took during his surveillance, which depicted the activities engaged in by Johnson.
Johnson did not request, pursuant to California Rule of Court, rule 8.224, that the exhibits referred to during Detective Molina's testimony be transmitted to this court as part of the appellate record. We therefore rely solely on the content of Detective Molina's testimony for our understanding of what was depicted in the photographs and videos introduced into evidence during Detective Molina's testimony.
According to Detective Molina's testimony, he first observed Johnson leaving her house while carrying a "pretty large purse" on her right arm. Johnson was not wearing an arm brace at the time, although later that day Detective Molina observed Johnson wearing an arm brace on her left arm. Detective Molina then followed Johnson throughout the day, during which he observed her (1) pump gas with no assistance; (2) hug someone with her right hand extended around the person's back, bending her wrist at "a pretty strong angle"; and (3) flick her wrist three to five times while doing something that may have been eating a popsicle. Detective Molina testified that he did not observe Johnson show any sign that she was in pain during his observations of her, such as wincing. Detective Molina explained that the reason he conducted surveillance of Johnson was "to assess her apparent mobility" and to determine if she was somehow conning her doctor.
The jury found Johnson guilty of assault with force likely to cause great bodily injury. (§ 245, subd. (a)(4).) The trial court granted Johnson's motion to strike her prison prior and strike prior, and sentenced Johnson to a two-year prison term.
II.
DISCUSSION
Johnson's sole contention on appeal is that the trial court abused its discretion by admitting Detective Molina's testimony about his surveillance of Johnson, along with the related photographs and videos. According to Johnson, the testimonial and photographic evidence presented through Detective Molina should have been excluded because it was improper impeachment of Roldan's expert medical testimony.
Johnson argues that Detective Molina's testimony was improper because it "was intended to impeach Dr. Roldan's expert opinion, rather than the underlying facts upon which that opinion was based." According to Johnson, the People "could have and should have designated an expert to offer that contradictory opinion," and "should not have been permitted . . . to offer the opinion of a non-expert layperson that the defendant was not in any pain (and implicitly, that she could have thrown the rock as alleged), based on his momentary observation of her a year after the incident."
"A trial court's ruling on the admission or exclusion of evidence is reviewed for abuse of discretion." (People v. DeHoyos (2013) 57 Cal.4th 79, 131 (DeHoyos).) A. Johnson's Argument Is Preserved for Appeal
As an initial matter, we address the People's argument that Johnson's argument has not been preserved for appeal. To preserve a claim of erroneous admission of evidence for appeal, a party must make a timely and specific objection at trial. "Evidence Code section 353, subdivision (a) allows a judgment to be reversed because of erroneous admission of evidence only if an objection to the evidence or a motion to strike it was 'timely made and so stated as to make clear the specific ground of the objection.' Pursuant to this statute, ' ". . . the 'defendant's failure to make a timely and specific objection' on the ground asserted on appeal makes that ground not cognizable," ' " and the defendant forfeits his appellate arguments based on the erroneous admission of the evidence. (People v. Demetrulias (2006) 39 Cal.4th 1, 20.) The People contend that defense counsel's statements at trial were insufficient to preserve the argument that Johnson makes on appeal because defense counsel objected to the admission of Detective Molina's testimony concerning the surveillance only on the ground that the People should have retained a medical expert, but otherwise stated that "if . . . the court wants to allow it, fine" and stated he would "submit to the discretion of the court."
Having reviewed the record, we conclude that although defense counsel's comments were inartfully worded and somewhat unclear, defense counsel took the position that Detective Molina's testimony concerning the surveillance should not be admitted because only expert medical testimony was competent to rebut Roldan's opinion regarding Johnson's medical limitations. Johnson asserts essentially the same position on appeal, arguing that Detective Molina's testimony was improperly admitted as layperson impeachment of expert testimony. Accordingly, we conclude that Johnson's argument is preserved for appeal. B. The Trial Court Did Not Abuse Its Discretion by Admitting Evidence About Detective Molina's Surveillance of Johnson
As we have explained, Johnson contends that Detective Molina's testimony about the surveillance was improperly admitted because it was improperly used to impeach an expert opinion. As Johnson summarizes her argument, "evidence of Detective Molina's observations and his photographic surveillance was intended to impeach Dr. Roldan's expert opinion, rather than the underlying facts upon which that opinion was based. The evidence should have been excluded because a party is not permitted to offer a contrary opinion of an expert under the guise of impeachment [citation], and particularly not when the contradictory opinion is by a layperson." The sole authority from which Johnson derives the legal principle that underlies her argument is Kennemur v. State of California (1982) 133 Cal.App.3d 907 (Kennemur).
The issue in Kennemur was whether the plaintiff's expert witness in a civil litigation should have been permitted to testify in rebuttal to the testimony of the defendant's expert witness regarding tire marks and the roadway conditions during a car accident, even though the plaintiff had not disclosed in pretrial discovery that the expert witness it proposed to offer in rebuttal would testify on those issues. (Kennemur, supra, 133 Cal.App.3d at pp. 912-915.) The court observed that the controlling statute was former Code of Civil Procedure section 2037.5, which "applies to those situations where a party calls an expert witness in rebuttal. The expert's testimony is limited to 'impeachment' if . . . the designation (or subsequent depositions or interrogatories) does not contain all of the information required by section 2037.3." (Kennemur, at p. 918, italics added.)
As explained by Kennemur, former Code of Civil Procedure section 2037.3 stated that regarding an expert witness, prior to trial a party must disclose " 'the general substance of the testimony which the witness is expected to give.' " (Kennemur, supra, 133 Cal.App.3d at p. 917, italics omitted [quoting former Code Civ. Proc., § 2037.3].) --------
In Kennemur, because the plaintiff had not disclosed that the expert witness would offer an opinion on roadway conditions and tire marks, the court determined that the only way the plaintiff's expert witness could testify in rebuttal under former Code of Civil Procedure section 2037.5 was if the testimony constituted impeachment but not a "general rebuttal" of the other expert's opinion. (Kennemur, supra, 133 Cal.App.3d at p. 922.)
Kennemur pointed out that, as set forth in the Evidence Code, a witness may be impeached by proving "the 'nonexistence of a fact' " testified to by that witness. (Kennemur, supra, 133 Cal.App.3d at p. 922.) Therefore, even if a party did not properly disclose the subject matter of an expert witness's testimony during pretrial discovery, that expert witness should nevertheless be permitted "to testify that a fact relied upon by the opponent's expert was incorrect or nonexistent," and "should be allowed to give his reasons why the opposing expert's foundational fact was false or nonexistent." (Id. at p. 925.) However, a trial court should "sustain an objection to any question going beyond the contradiction of the foundational fact and into the realm of general rebuttal of the opinion of the expert being impeached." (Ibid.)
Johnson cites Kennemur for the proposition that "a party is not permitted to offer a contrary opinion of an expert under the guise of impeachment," and argues that Detective Molina's testimony about his surveillance of Johnson was improper because it offered an opinion contrary to Roldan's testimony under the guise of impeaching Roldan and was not limited to questioning the facts relied upon by Roldan in arriving at his opinion.
We reject Johnson's argument because it is based solely on Kennemur, but that case does not apply here. As we have explained, Kennemur dealt with the circumstances in which an undesignated expert witness in a civil litigation will be permitted to testify in rebuttal of another expert witness's opinion. As set forth in Kennemur, when an undesignated expert witness testifies in such a circumstance, the testimony must be limited to impeachment testimony, which may include an attack on the underlying facts of another expert's opinion, but may not constitute a general rebuttal. Here, however, Detective Molina was not offered as an undisclosed expert witness in rebuttal to Roldan and this case is not controlled by the rules of civil discovery. Instead, Detective Molina was called as a lay witness in a criminal trial to describe his observations of Johnson's activities and her demeanor during those activities. As Detective Molina was not an expert witness whose opinions were undisclosed prior to trial in a civil litigation, the limitations on an undisclosed expert witness's general rebuttal testimony described in Kennemur have no relevance here.
As Kennemur does not apply here, the question of whether Detective Molina's testimony about his surveillance of Johnson was admissible as rebuttal testimony is governed by the generally applicable rules of evidence. A witness's testimony may be admitted if it is relevant and not otherwise excluded by the rules of evidence. (See Evid. Code, § 350.) " 'Relevant evidence' means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) Therefore, "[p]rosecution rebuttal evidence must tend to disprove a fact of consequence on which the defendant has introduced evidence." (People v. Wallace (2008) 44 Cal.4th 1032, 1088.)
Here, as the trial court correctly observed, Detective Molina's observations during the surveillance were relevant to disprove a fact that Johnson introduced in her case-in-chief through Roldan's testimony. Specifically, Roldan testified that Johnson would have been in great pain if she threw a rock at Alexis's car, making it "very unlikely" that she could have done so. Given that testimony, Detective Molina's surveillance of Johnson became relevant in rebuttal because it provided information that would assist the jury in determining whether Johnson could have thrown the rock, despite the pain caused by her medical conditions.
Further, Detective Molina's testimony about his surveillance of Johnson was relevant as rebuttal evidence because it served to call into question the factual foundation for Roldan's testimony as to the level of pain associated with Johnson's medical conditions. As Roldan acknowledged in his testimony, his assessment of Johnson's pain level was based on Johnson's own reporting to him of how much pain she experienced. By testifying that Johnson was able to go about normal activities without any apparent pain, Detective Molina presented evidence relevant to the issue of whether Johnson was exaggerating her pain to Roldan.
As part of her argument, Johnson also contends that Detective Molina should not have been permitted to testify about his surveillance of Johnson because he was "not qualified to . . . offer an opinion that the plaintiff was not in pain." We reject this argument because it confuses two different types of opinion as to Johnson's pain: (1) an opinion on whether Johnson would have been in too much pain to throw the rock at Alexis's car; and (2) whether Johnson was in pain during Detective Molina's surveillance of her.
Had Detective Molina offered an opinion on the first issue, namely whether Johnson was in too much pain to throw a rock during the incident, defense counsel would have had a strong argument that Detective Molina was testifying to an opinion for which he had no reasonable foundation. (See Evid. Code, § 800 ["If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: (a) Rationally based on the perception of the witness; and (b) Helpful to a clear understanding of his testimony."].) However, Detective Molina did not offer an opinion as to the pain that Johnson would have experienced had she thrown a rock at Alexis's car. Instead, Detective Molina's opinion was limited to whether, during his surveillance, Johnson appeared to be in pain. It is well established that a lay person may offer an opinion, based on his or her own perception, as to whether someone else is experiencing pain and suffering. (People v. McAlpin (1991) 53 Cal.3d 1289, 1307 [" 'It does not require an expert to tell whether a person suffers. The appearance of a person who suffers severely is sufficient to manifest his condition to any one of ordinary intelligence and experience.' "].) Therefore, Detective Molina's testimony as to whether Johnson appeared to be in pain during his surveillance of her was properly admitted as lay opinion rationally based on Detective Molina's own perceptions.
In sum, we conclude that the trial court was well within its discretion to admit Detective Molina's testimony regarding his surveillance of Johnson and the accompanying photographic evidence, as the evidence constituted proper rebuttal to Roldan's testimony that the pain level associated with Johnson's medical conditions made it very unlikely that she could have thrown a rock at Alexis's car.
DISPOSITION
The judgment is affirmed.
IRION, J. WE CONCUR: HUFFMAN, Acting P. J. AARON, J.