Filed 2/28/18 P. v. Hill CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES LEE HILL,

Defendant and Appellant.
C083707

(Super. Ct. No. 16F00007)




Defendant James Lee Hill appeals his conviction for involuntary manslaughter. He contends the trial court prejudicially misinstructed the jury in response to a question asked during deliberations as to whether the forensic pathologist’s testimony regarding the size and strength of the assailant was expert opinion or lay opinion. We find no error and affirm.
BACKGROUND OF THE CRIME
In December 2015, five friends, defendant, Veotis Parker, Shay Thibodeaux, Brandon Williams, and Brice Stewart were hanging out together in an apartment, using methamphetamine and marijuana. Later, Stewart was found dead in the apartment.
Thibodeaux, Parker, and Williams each testified under grants of immunity. Their testimony was frequently inconsistent with their prior statements. They also failed to remember events related to the killing. Their prior statements were presented to the jury. All three were methamphetamine users. Thibodeaux and Williams were also convicted felons.
The day before the killing, Stewart gave Thibodeaux and Parker some marijuana and methamphetamine to repay a favor they had done for him. The methamphetamine was reportedly substandard. The next morning, Stewart came to defendant’s apartment to sell some marijuana. Defendant, Parker, Thibodeaux, Williams, and Stewart were all in the bedroom together. Thibodeaux and Parker were using methamphetamine. For reasons unclear, defendant lunged at Stewart and hit him in the face. The two continued to fight and wrestle, slamming into walls. Defendant got behind Stewart and put him in a stranglehold. They fought for about five minutes. Stewart lost consciousness and was not moving.
Defendant left the apartment. Parker and Thibodeaux left about 10 or 15 minutes later. Parker and Thibodeaux told the mailman there had been a fight inside the apartment and someone inside needed help. Thibodeaux also called 911. Then Parker and Thibodeaux went to the sheriff’s station and told deputies someone at the apartment needed help. Deputies found Stewart’s body at the apartment. He had died there.
Stewart’s larynx was fractured, he had multiple hemorrhages, and petechiae in his eyelids. His injuries were the type frequently associated with compression or blunt injuries and in strangulation cases. They were consistent with death by asphyxiation. The forensic pathologist was unable to determine the height or weight of the killer. On cross-examination, he testified he did not believe a woman of average size could have committed the crime, because, “usually, according to the literature, the assailant is a larger individual or stronger individual.” Stewart was 5 feet 11 inches tall and weighed 192 pounds. Defendant was six feet one inch tall and at the time of the killing weighed approximately 205 pounds. Parker was five feet seven inches tall and weighed 162 pounds.
DNA matching Parker’s complete profile was found under one of Stewart’s fingernails. Defendant was excluded from all the DNA samples taken from Stewart, except for one. That sample was also consistent with Stewart and Stewart’s girlfriend.
Stewart also had methamphetamine in his system. The methamphetamine was not the cause of death, but could have made him more susceptible to cardiac arrest.
PROCEDURAL HISTORY
Defendant was charged with murder. Following many days of trial, the matter was submitted to the jury. Among the instructions given, the jury was instructed on expert witness testimony (CALCRIM No. 332) and opinion testimony of lay witness (CALCRIM No. 333). In the course of deliberations, the jury asked for readbacks of the testimony of various witnesses and asked questions, including: “How should we consider Dr. [Brian] Nagao’s [(the forensic pathologist)] testimony during [defense counsel’s] cross that the assailant was ‘larger or stronger’? (1) Dr. Nagao is offering expert opinion about the size and strength of the assailant OR (2) Dr. Nagao is testifying to the size and strength of the assailant as a lay witness.”
Defense counsel argued the trial court should instruct the jury that the testimony in question was lay opinion, as the testimony was not a proper subject for expert testimony and Dr. Nagao was not an expert in combat sports or physics. Alternatively, defense counsel argued the court should instruct the jury whether the opinion was expert or lay opinion was a matter for the jury to decide. The People argued the testimony was within the scope of Dr. Nagao’s expertise and the context of the question and answer showed it was intended as expert opinion.
Relying on People v. Brown (2014) 59 Cal.4th 86, the trial court found the question was within the doctor’s area of expertise. The trial court instructed the jury: “Dr. Nagao, the pathologist, was testifying as an expert witness. [¶] Instruction # 332 explains that you must consider the opinions of an expert witness, but you are not required to accept them. The meaning and importance of any opinion are for you to decide.” Approximately one hour later, the jury acquitted defendant of murder and found him guilty of the lesser included offense of involuntary manslaughter. In total, the jury deliberated nine days. The trial court sentenced defendant to a determinate term of four years in prison.
DISCUSSION
Defendant contends the trial court prejudicially misinstructed the jury in responding to its inquiry regarding whether the pathologist’s testimony about the relative size and strength of the assailant was expert or lay opinion. Without citing any authority for the proposition, defendant specifically contends it is for the jury to determine whether particular expert testimony falls within the scope of the witness’s expertise or whether the testimony was intended as expert testimony. The People argue the trial court’s response was proper and in any event was not prejudicial.
Penal Code section 1138 requires a judge to answer questions posed by the jury during their deliberations in open court: “After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.” (§ 1138.) “Where the original instructions are themselves full and complete, the court has discretion under [Penal Code] section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information. [Citation.] Indeed, comments diverging from the standard are often risky. [Citation.] The trial court [may be] understandably reluctant to strike out on its own. But a court must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given.” (People v. Beardslee (1991) 53 Cal.3d 68, 97.) The trial court’s decision to instruct or not to instruct is reviewed under the abuse of discretion standard. (People v. Waidla (2000) 22 Cal.4th 690, 745-746.) A claim that the substantive information conveyed was inaccurate is a question of law, which we review de novo. (People v. Guiuan (1998) 18 Cal.4th 558, 569; People v. Russell (2006) 144 Cal.App.4th 1415, 1424.)
Here, we find no error in the trial court’s response to the jury. The substantive information conveyed was accurate. There is no dispute that Dr. Nagao was qualified as a forensic pathologist and was testifying at trial as an expert on the cause of Stewart’s death. “ ‘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.’ (Evid. Code, § 720, subd. (a).) An expert witness may give opinion testimony ‘[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.’ (Evid. Code, § 801, subd. (b).)” (People v. Brown, supra, 59 Cal.4th at pp. 99-100.) Moreover, “experts may relate information acquired through their training and experience, even though that information may have been derived from conversations with others, lectures, study of learned treatises, etc.” (People v. Sanchez (2016) 63 Cal.4th 665, 675.) “A forensic pathologist who has performed an autopsy is generally permitted to offer an expert opinion not only as to the cause and time of death but also as to circumstances under which the fatal injury could or could not have been inflicted.” (People v. Mayfield (1997) 14 Cal.4th 668, 766 [experienced forensic pathologist was qualified to give an opinion regarding whether victim’s fatal wound could have been inflicted in the manner described by the defendant without leaving tattooing or stippling around the wound]; see also People v. Robinson (2005) 37 Cal.4th 592, 631 [rejecting argument that only a crime scene reconstructionist could give an opinion about the position of gunshot victims, where testifying forensic pathologist possessed extensive familiarity with gunshot wounds].) The relative size and strength of the person who asphyxiated Stewart was a relevant circumstance of his death, just as the length of time pressure was applied to Stewart’s throat; whether the mechanism of injury was a string or rope or a broader surface like a hand or arm; and whether the injuries were from thumbs at the front of the neck or an arm around the back of the neck. (See People v. Jones (2012) 54 Cal.4th 1, 57-58.) These were all circumstances surrounding the fatal injury upon which defense counsel asked for Dr. Nagao’s opinion. They were all circumstances which went to the issue of how the fatal injuries were inflicted. They were proper subjects of expert testimony from the forensic pathologist who performed the autopsy.
To the extent defendant did not believe Dr. Nagao’s testimony qualified as expert opinion, he was entitled to attack the expert’s credibility regarding the claimed basis of his opinion or his expertise on the particular subject. He did not. Questions regarding the validity or credibility of an expert’s opinion go to the weight of the testimony, not its admissibility as expert opinion. (People v. Rodriguez (2014) 58 Cal.4th 587, 638.) Nor do challenges to the validity or credibility of an expert’s opinion transform the character of the expert’s testimony from expert opinion to lay opinion. At no point did defense counsel ask Dr. Nagao to specify the literature or expound further on the basis of his opinions.
In response to the jury’s inquiry, the trial court properly advised the jury that Dr. Nagao was testifying as an expert witness. The trial court then referred the jury back to CALCRIM No. 332, explaining the jury must consider the opinions of an expert witness, but was not required to accept them, and that the meaning and importance of any opinion were for the jury to determine. This is a correct statement of law. We find no error in the trial court’s response to the jury.
DISPOSITION
The judgment is affirmed.



/s/
Robie, Acting P. J.



We concur:



/s/
Hoch, J.



/s/
Renner, J.