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APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge. Law Office of Gene Vorobyov, Gene D. Vorobyov, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez and Stephen G. Herndon, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- Gordon Douglas Tutton appeals from a sentence of 17 years for gross vehicular manslaughter while intoxicated. He contends that the trial court erred in allowing a California Highway Patrol (CHP) officer to opine that appellant was the driver of the pickup truck that caused the accident. He also contends that the prosecutor committed misconduct during closing argument. For the following reasons, we affirm. STATEMENT OF THE CASE On October 3, 2007, the Kern County District Attorney filed an information charging appellant with, in count one, gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a))[1]; in count two, driving while intoxicated (Veh. Cod, § 23153, subd. (a)); and in count three, being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)). Counts one and two further alleged that appellant had caused bodily injury to three persons (Veh. Code, § 23558), had caused great bodily injury to one person (§§ 12022.7 & 1192.7, subd. (c)(8)), and had served one prior prison term (§ 667.5, subd. (b).). On October 10, 2007, appellant pled not guilty to all counts and denied all the allegations. Following a jury trial, on May 1, 2008, the jury found appellant guilty on counts one and two and found true the four bodily injury special allegations. On May 2, 2008, the trial court found true the prior prison conviction allegation and dismissed count 3. On June 24, 2008, the trial court sentenced appellant to state prison for 17 years and assessed various fees, fines, and presentence custody credits. On July 14, 2008, appellant filed a timely notice of appeal. FACTS On the afternoon of August 5, 2007, a blue pickup truck ran a stop sign and hit the right passenger side of a SUV that had entered the intersection. Kellie Rowland was driving the SUV; her son, Brock, and his friend, J.R., were in the back. Appellant and his girlfriend, Shalee Cole, were in the blue pickup truck. The collision caused the SUV to rollover, and during the rollover, Brock was ejected from the vehicle. Brock died from his injuries. The impact with the SUV caused the pickup truck to spin clockwise 270 degrees, and resulted in injuries to appellant and Cole. At the subsequent trial, Rowland testified that appellant was the driver of the vehicle. She stated that she locked eyes with appellant just before the collision. She did not know if anyone else was in the pickup truck because she focused on appellant. After the collision occurred, appellant walked up to Rowland and, in a very slurred tone, said that he was sorry. Rowland did not tell the California Highway Patrol (CHP) officers who arrived at the accident scene that she saw appellant driving. However, when she was interviewed at the hospital, she explicitly told the interviewing officer that, “The man was driving.” Furthermore, when she was interviewed on August 15, 2007, Rowland told the officers that appellant was in the blue truck that had run a stop sign and had hit her. J.R. testified that he saw appellant’s blue truck hit the SUV, and he saw the silhouette of a man driving. When the SUV finally came to a rest after being hit, J.R. got out and looked for Brock. Before he found Brock, he saw appellant helping a woman who was sitting on the ground outside the passenger side of the blue truck. Dagoberto Morales testified that he drove up to the accident scene just after the accident happened. He saw appellant walking from the driver’s side of the truck towards the woman who was seated on the ground on the passenger side of the truck. The prosecution also introduced prior inconsistent statements that Morales had made to a CHP officer about the accident. Morales had previously told the officer that, as he pulled up right after the collision occurred, appellant was in the driver’s seat and a female was in the passenger seat. The female opened the passenger door and fell out; appellant then got out, ran around the back of the pickup, and attempted to pick up the female. Morales talked with appellant, who said he was driving the blue truck and did not see the stop sign. Emergency Medical Technician (EMT) Chad Powers treated appellant inside the ambulance. Appellant said his back and right arm hurt. Appellant had lacerations to his ear and cuts to his arm; he showed no sign of concussion or head injury. Powers asked appellant “if he was the driver or passenger in the vehicle, and if he had his seat belt on.” Appellant said that “he was the driver in the vehicle and he did have his seat belt on.” Appellant thought that the other vehicle’s driver ran the red light or stop sign. Dr. John Ziomek was the emergency room physician who treated appellant at the hospital. When he was examined at the hospital, appellant had injuries to the left side of his head and his left elbow. Dr. Ziomek’s notes also indicated that appellant had been driving the pickup, but the doctor could not recall whether appellant specifically told him that appellant was the driver. Paramedic/EMT Edward Guevara treated and transported Shalee Cole. Cole complained of back pain. Guevara observed that Cole had abrasions on the right side of her face and head, but he did not see any injuries on the left side of Cole’s body. Guevara testified that he had 21 years of experience responding to traffic injury collisions. He opined that drivers normally suffer more left-sided injuries whereas passengers suffer more injuries to their right sides. He also testified that Cole told him that she was the front passenger. At the hospital, Cole was treated by Dr. Imran Imam. She had pain in her back, left side abdominal, and left leg. Cole also had an abrasion on the right side of her scalp. The doctor’s notes indicated that the paramedics had reported that Cole was not wearing a seat belt. Dr. Imran was told that Cole was a passenger in a vehicle and was ejected during a rollover. However, Cole did not show signs of having been expelled from the truck or injured by a seat belt. CHP officer Kenny Hagerman and his partner, John Lopez, were dispatched to the scene of the accident. By the time they arrived, fire department and ambulance personnel were already on site. Hagerman interviewed appellant about the accident. Appellant told Hagerman that he was the driver of the pickup. Appellant said he was driving westbound on Lerdo Highway at approximately 45 miles per hour. As he slowed down to make a right turn onto Magnolia, he was hit by the SUV. Hagerman then spoke with Cole. Subsequently, Hagerman and Lopez began taking photographs of the scene and marking all the evidence, such as tire friction or skid marks, fluid spills, dig marks, and debris from the vehicles. They spent approximately two and a half hours at the scene. After completing their field investigation, the CHP officers then went to San Joaquin Hospital to check appellant’s injuries and evaluate whether there was a DUI violation. Hagerman, a drug recognition expert (DRE), concluded that appellant was under the influence of a combination of drugs: a central nervous system (CNS) depressant and a CNS stimulant. Hagerman then placed appellant under arrest for DUI and causing great bodily injury and the death of one person. Appellant agreed to submit to a blood test. Appellant tested positive for THC (marijuana) and Diazepam (a benzodiazepine). Subsequently, the officers booked appellant into the Kern County jail. Hagerman had extensive training and experience in investigating traffic accidents. His training included 80 hours of accident investigation at the Highway Patrol Academy, and a 24-hour course on techniques of accident investigation. During his 10 and one- half year employment with CHP, Hagerman had investigated approximately 2,000 traffic accidents, not including the traffic accidents that he assisted other officers in investigating. Based upon the physical evidence, Hagerman opined that the pickup truck failed to stop at the stop sign as the SUV entered the intersection and collided with the right side or passenger side of the SUV. This caused the SUV to roll over and during the course of the vehicle rollover, a passenger (Brock) was ejected. Hagerman also opined that appellant’s injuries were consistent with being the driver of the vehicle. Hagerman explained how appellant may have sustained his injuries based upon the movement of the vehicles before, during, and after the collision. Joseph Yates, an experienced, accredited accident reconstructionist, disagreed with Hagerman about who was the driver of the pickup truck. He opined that the impact with the SUV caused the pickup truck to spin clockwise 270 degrees, which would result in both the truck’s driver and passenger going forward and to their left. In similar collisions, the truck’s driver would typically be injured by what was in front (the steering wheel) and to the left (the side door panel). Yates opined, based on the physical evidence and especially the injuries, that Cole was driving the truck at the time of impact. Yates also opined that Rowland would have had one second to view the truck prior to impact. Hagerman agreed with Yates about the angle of impact, the clockwise spin of the truck, and that the truck’s occupants started to be thrown forward and then were projected to the left. He did not agree with Yates that Cole was driving the truck. Hagerman based his disagreement upon the “totality of the investigation,” including the statements by appellant and other witnesses. Hagerman also believed that Cole’s left leg injury could have been caused by hitting the gear shift lever, the steering wheel, or the dashboard. He also disagreed with Yates’s testimony about how drivers or passengers could suffer injuries from the steering wheel, seat belts, and vehicle debris. He maintained his opinion that appellant was the driver of the pickup truck. Cole invoked her Fifth Amendment right to remain silent at trial and only admitted that she was in the blue pickup truck. Four defense witnesses, however, testified that Cole had admitted to them that she was the driver but that appellant would take responsibility for being the driver. The witnesses included Cole’s mother, stepfather, and two friends. DISCUSSION I. That Appellant Was Driving the Truck Appellant first contends that the trial court abused its discretion by permitting CHP officer Hagerman to opine that appellant was the driver of the vehicle based upon appellant’s injuries. According to appellant, Hagerman did not have the necessary qualifications, such as being a biomechanical engineer or accident reconstruction expert, to testify about the source and medical causes of appellant’s injuries. We disagree that there was an abuse of discretion. “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 is testimony relates.” (Evid. Code, § 720, subd. (a).) “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.) Here, based upon his training and experience, Hagerman was qualified to testify about the causes of the accident and the movement and location of the vehicles before and after impact. His experience investigating over 2,000 accidents also qualifies Hagerman to testify about the injuries that drivers and passengers typically receive in these types of collisions. While we agree with appellant that being a biomechanical engineer or accident reconstruction expert would qualify a person to testify about the injuries that a driver or passenger would normally receive, we conclude that Hagerman’s experience are sufficient to qualify him to testify that appellant was the driver because appellant suffered injuries that are typical to those suffered by drivers. The jury, however, may give Hagerman’s testimony less or more weight based upon whether the jury believes that experience in investigation over 2,000 accidents is less or more valuable than education as a biomechanical engineer. We also conclude that 1326 (Williams) is inapposite. In Williams, we concluded that a police officer could not give expert testimony that a driver was intoxicated based upon the results of a controversial field sobriety test, the horizontal gaze nystamus test, because the officer did not have the necessary qualifications to opine that the results of the test indicated alcohol ingestion as opposed to some other cause. (Id. at p. 1330-1331.) In several causes other than alcohol ingestion could result in the test results. (Id. at p. 1331.) In contrast, in this case, there is no controversy that the impact of the vehicles could cause certain injuries to a driver that are distinct from injuries to a passenger. Hagerman provided an explanation for how appellant may have been injured during the accident and gave his opinion that the injuries, along with statements by other witnesses, led him to conclude that appellant was the driver. Thus, there was no abuse of discretion in admitting Hagerman’s testimony. II. Assistance of Counsel Testimony About Cole Appellant next complains that his trial counsel provided ineffective assistance when trial counsel failed to object to Hagerman’s testimony that, based upon her injuries, Cole was not the driver of the pickup truck. In order to prevail on a claim for ineffective assistance of counsel, appellant must make two showings. First, he must show that counsel’s representation fell below an objective standard for reasonableness under prevailing professional norms. ( 668, 687-88; People v. Gray (2006) 37 Cal.4th 168, 206-207.) Second, he must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been more favorable to the defendant. (Strickland v. Washington, supra, 466 U.S. at p. 687; People v. Kelly (1992) 1 Cal.4th 495, 519-520.) Furthermore, appellant’s claims implicate his trial counsel’s trial tactics or strategic reasons for not making certain objections at trial. However, in this direct appeal, there is no evidence in the record for why trial counsel did not object. “‘In the usual case, where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions.’” (People v. Jones (2003) 29 Cal.4th 1229, 1254.) Here, trial counsel objected to Hagerman’s testimony that, based upon his injuries and other evidence, appellant was the driver. The trial court overruled the objection. When Hagerman testified that Cole was not the driver of the pickup, trial counsel did not object. It is probable that trial counsel did not object because his previous objection was overruled. Trial counsel’s objection to Hagerman’s testimony about Cole was likely based upon the same grounds as his objection to Hagerman’s testimony about appellant. Thus, trial counsel may have tactically decided not to object because he did not want to lose credibility with the jury by raising futile objections. In any case, appellant cannot show that the failure to object was prejudicial because any objection to Hagerman’s testimony about Cole would be overruled for the same reason that the trial court overruled the objection to Hagerman’s testimony about appellant – namely, that Hagerman had the necessary qualifications to testify that Cole was the passenger based upon her injuries. (See People v. Ferraez (2003) 112 Cal.App.4th 925, 934 [noting that “[t]he failure to object to admissible evidence does not constitute ineffective assistance of counsel when to do so would have been futile.”].) III. Prosecutorial Misconduct Finally, appellant contends that the prosecutor committed misconduct in her closing argument. Appellant asserts that the prosecutor misstated the law on the prosecution’s burden of proof when she argued that a finding that appellant was not the driver would be tantamount to a finding that various prosecution witnesses, such as Hagerman and Rowland, had lied. Appellant also asserts that the prosecutor misrepresented the testimony of a toxicologist. We disagree that there was any reversible error. “The standards governing review of misconduct claims are settled.” ( 29.) “‘In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review.’ [Citation.] When a claim of misconduct is based on the prosecutor’s comments before the jury, ‘“the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.”’ [Citations.]” (Ibid.) Trial counsel objected to the prosecutor’s statements about the testimony of the toxicologist, which appellant asserts misrepresented the toxicologist’s testimony. The trial court responded by informing the jury that: “Well, we received a lot of testimony based on that. [¶] Once again, ladies and gentlemen, I will defer to your recollection of what the experts testified to about. [¶] And you can make up your own decision on that.” We conclude that this admonition cured any harm that may have been caused by the prosecutor’s statements. Trial counsel, however, did not object to the prosecutor’s assertion that “the only way the defendant cannot be the driver of th[e] vehicle” is if various prosecution witnesses “all lied to you.” Thus, the claim has been forfeited. Nevertheless, because appellant also is asserting a claim of ineffective assistance based upon the failure to object to the allegedly improper statements, we examine this claim on the merits. We conclude that appellant cannot show prejudice – that there was a reasonable probability that trial counsel’s failure to object to the statements would have resulted in a more favorable result. ( Here, the jury was properly instructed on the prosecution’s burden of proof. The jury also was advised that statements by attorneys were not evidence. The jury was specifically instructed that “[i]f anything concerning the law said by the attorneys in their argument or at any other time conflicts with [the trial court’s] instructions on the law, you must follow [the trial court’s] instructions.” The evidence in the case also showed that appellant was the driver. Appellant admitted to Hagerman and Powers that he was the driver. Rowland saw him driving the pickup truck right before the collision. J.R. saw the silhouette of a man and not a woman driving the truck. Morales either saw appellant exit from the driver’s side of the truck, or it could be deduced from Morales’s testimony that appellant exited from the driver’s side of the truck to assist Cole who was on the ground outside the truck, on the passenger side of the truck. Finally, based upon Hagerman’s testimony and Guevara’s testimony, appellant’s injuries were consistent with the injuries of the driver and Cole’s injuries were consistent with the injuries of a passenger of the truck. Thus, there is no reasonable probability that the jury would have found that appellant was not the driver of the truck. Therefore, appellant cannot prevail on his claim of ineffective assistance of counsel. DISPOSITION The judgment is affirmed. _ Ardaiz, P.J. WE CONCUR: _ Levy, J. _ Gomes, J. Publication courtesy of California pro bono legal advice. Analysis and review provided by La Mesa Property line Lawyers. San Diego Case Information provided by www.fearnotlaw.com id=ftn1> [1] All further section citations are to the Penal Code, unless otherwise stated. |
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