P. v. Mantzouranis

 

 

 

 

 

 

 

Filed 1/17/14 
P. v. Mantzouranis CA5

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.

 

 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

 
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THE PEOPLE,               Plaintiff and Respondent,                           v.   CALEB DANIEL MANTZOURANIS, SR.,               Defendant and Appellant.

F066125   (Super. Ct. No. CRF37647)   O P I N I O N

 

 

THE COURThref="#_ftn1" name="_ftnref1" title="">^*

            APPEAL
from a judgment of the Superior Court of Tuolumne
County.  James A. Boscoe, Judge.

            Tara
K. Hoveland, under appointment by the Court of Appeal, for Defendant and
Appellant.

            Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant
Attorney General, Louis M. Vasquez, Leanne Le Mon and Lewis A. Martinez,
Deputy Attorneys General, for Plaintiff and Respondent.

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            A jury convicted appellant, Caleb
Daniel Mantzouranis, Sr., of driving under the influence of drugs and/or
alcohol (Veh. Code, § 23152, subd. (a)), and in a separate proceeding appellant
admitted a special allegation that he had suffered a prior conviction of that
offense (Veh. Code, §§ 23550, 23550.5). 
The court suspended imposition of sentence and placed appellant on five
years’ probation, one of the conditions of which was that he serve nine months
in county jail. 

            As
discussed more fully below, prior to the defense’s presentation of the
testimony of an expert witness, the court made a ruling prohibiting the expert
from testifying as to any opinion that the expert based on certain matters set
forth in a document prepared by a physician who, according to defense href="http://www.mcmillanlaw.us/">counsel, had treated appellant.  On appeal, appellant argues that this ruling
violated Evidence Code section 801
(section 801) and appellant’s rights under the United States and California
Constitutions “to Due Process, a fair trial and to present a defense” because
the ruling “improperly restricted appellant’s direct examination of his expert
witness regarding a critical issue.”  We
affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Facts – Prosecution Case

Testimony
of Deputy Speers

            At
approximately 1:40 a.m. on April 10, 2011 (April 10), href="http://www.sandiegohealthdirectory.com/">Tuolumne County Deputy
Sheriff Robert Speers was on patrol when he observed a car that, while
traveling around a bend, crossed the fog line before correcting its course and
returning to its lane.  The car then
slowed down to approximately five miles per hour.  The posted speed limit was 35 miles per
hour.  

            Speers
followed the car in his patrol vehicle, and observed the car, while still
traveling at approximately five miles per hour, go off the roadway onto the
shoulder several times.  At that point,
Speers, who was traveling behind the car, turned on his emergency flashers to
initiate a traffic stop.  The driver of
the car—later determined to be appellant—pulled into a convenience store
parking lot, where he parked the car in a space, after first backing up and
pulling into the space two or three times. 
Appellant then got out of the car. 
He “seemed unsteady on his feet,” and Speers had him sit back down in
the car, explained the reason for the stop and asked for appellant’s
identification.  Appellant’s speech was
slurred and he “seemed really slow to come up with responses to normal
questions.”  At that point, Speers asked
appellant to step out of the car. 

            Appellant
complied, and again “appeared very unsteady on his feet.”  He told Speers he had just fallen and hit his
head but Speers saw no marks consistent with this.  Speers directed appellant to the sidewalk,
where appellant stood leaning against a building, and Speers placed a call to
the California Highway Patrol (CHP) “to come and conduct an evaluation.”  Speers opined, using a scale of 0 to 10, with
10 indicating highly intoxicated and 0 indicating sober, that appellant was
“[p]robably a seven or an eight.”  While
Speers was waiting for a CHP officer to arrive he asked appellant if he had
taken any drugs or medication.  Appellant responded he had not. 

Testimony
of Officer Mahaney

            CHP
Officer Joshua Mahaney arrived on the scene at approximately 2:28 a.m. on April
10.  Upon making contact with appellant,
Mahaney observed that appellant was unsteady on his feet, his speech was
slurred, his eyes were red and “he had a … confused look on his face.”  Mahaney asked appellant if he had “any
physical impairments … that would affect [his] ability to stand, walk.”  Appellant responded “he did not have any
physical defects.” 

            Mahaney
then administered a series of field sobriety tests to appellant.  Mahaney’s practice when administering these
tests is to tell test subjects not to begin any of the tests until he (Mahaney)
instructs them to begin. 

            Mahaney
first conducted a horizontal gaze nystagmus test, which can show the presence
of head injury.  The test showed no
indication of such injury.  

            Mahaney
next administered the Romberg balance test. 
He told appellant to stand, and, when told to do so but not before, tilt
his head back, estimate when 30 seconds had passed, and at that point put his
head back down, look at the officer and state he had finished the test.  Appellant began the test before being told to
begin, estimated 25 seconds to be 30 seconds and swayed approximately one to
two inches from center.  The “C.H.P.
D.U.I. manual” says swaying “within one inch … can be present.” 

            Next,
Mahaney administered the one-leg stand test. 
He told appellant that while standing, and upon being told to begin,
while keeping his arms as this side, to lift one foot six inches off the
ground, look at the toes of the raised foot, and count out loud until directed
to stop.  Appellant raised his foot off
the ground before being told to begin and immediately upon doing so began
losing his balance, at which point he raised his arms away from his body and
began hopping to regain his balance.  He
did not count as instructed.  He could
raise his foot for only two or three seconds before setting it down. 

            Next,
Mahaney explained to appellant the finger-count test, telling him to choose
which hand to use and then, when told to do so, touch the tip of his thumb to
the tips of his fingers in succession while counting.  Appellant began the test before being told,
missed his touches several times, and when he did touch his fingers, he did so
“in a sweeping motion instead of a distinct tip to tip.”  

            Finally,
Mahaney administered a preliminary alcohol screening test, which was negative
for the presence of alcohol.  Mahaney
formed the opinion, based on his “entire contact” with appellant, that
appellant was unable to operate a motor vehicle safely.  

Testimony
of Toxicologist Giorgi

            California
Department of Justice toxicologist Nadina Giorgi testified to the
following:  She tested a blood sample
taken from appellant.  The test showed
the sample contained, inter alia, Zolpidem, a sleep aid also known as Ambien,
and Carisoprodol, a muscle relaxant also known as Soma.  The effects of Ambien typically last
approximately eight hours and Soma’s effects typically last approximately four
to six hours.  Both drugs are central
nervous system depressants; the effects of such drugs include drowsiness,
dizziness, lack of coordination, slurred speech, confusion and loss of
balance.  In response to a hypothetical
question positing facts similar to those of the instant case, Giorgi opined
that the driver would be “too impaired by the presence of the drugs to safely
operate a motor vehicle.” 

Facts - Defense Case

Testimony
of Toxicologist Zehnder

            Jeffrey
Zehnder, a forensic toxicologist, testified as an expert witness to the
following:

            In
the Romberg test, the term “sway” is vague. 
“[T]here is really no standard for sway in terms of drug or alcohol
impairment,” and the “sway aspect doesn’t have a lot of value.”  A subject starting the test before being
instructed to do so “hasn’t really been adequately studied” and “we don’t know
what it means.” 

            The
finger count “is not a standardized test” and “there is not a lot of support
for … what it means.”  The one-legged
stand test is “not … conclusive” as to whether the subject is impaired by drugs
or alcohol because a sober person might have difficulty standing on one
leg.  Injury can affect performance on
field sobriety tests. 

            The
drug Ambien is designed to induce sleep. 
Persons who take the drug can develop a tolerance, such that a person
“[would] have to take more of the drug to get the same effect.”  Persons taking Soma can also develop a
tolerance for the drug.  For both Soma
and Ambien, it is “very difficult to evaluate impairment in terms of blood
levels … because of the tolerance that can occur.”  There is “[no] proven correlation between an
Ambien level and any particular level of impairment[.]” 

            Zehnder
viewed and listened to a video/audio recording of the traffic stop.  The video did not show the field sobriety
tests.  Zehnder did not hear appellant
exhibit slurred speech.  Appellant
“sounded like a sober person ….”

            In
response to a hypothetical question positing facts similar to the instant case
and which included the factor that the person involved had a hip injury that
would eventually require hip replacement, Zehnder opined, “I wouldn’t be able
to say with this information, basically, that they were impaired.”  Zehnder also testified that “crossing over
the fog line on a curve once is not evidence of impairment because … that is
something that a sober person could do. 

Appellant’s
Testimony

            Appellant
testified to the following:  As of the
time of trial, he had been taking Ambien and Soma for over three years.  On the night he was stopped, he took Soma at
approximately 6:00 p.m. and Ambien at approximately 8:00 or 9:00 p.m. 

            At
approximately 1:30 a.m., at his wife’s request, he set out in his car for a
convenience store to buy some cigarettes. 
As he was driving he saw two patrol cars, at which point he slowed down
from approximately 35 miles per hour to approximately 15 miles per hour.  Appellant saw Deputy Speers following him and
he pulled over “[s]everal times” to let him pass.  When appellant parked in the convenience
store parking lot he “knew that there was an officer behind [him] and [he]
didn’t want a ticket for parking over the lines ….”  He did not recall why he needed multiple
tries to park between the lines; he testified, “I think there was … a vehicle
in the way and I didn’t want to hit [it] ….” 


            Appellant
suffered a crushed pelvis in 1986.  He
has chronic arthritis in “both sides” of his hips.  He had “problems” with the one-legged stand
test because of his arthritis, which “makes it hard.”  He told Officer Mahaney that he did not have
any “physical impairments” because he “[does not] consider [his] hips an
impairment.”   

Procedural
Background

Dr. Renwick’s Report

            Appellant’s argument on appeal
concerns a document entitled “MEDICAL RECORD Progress Notes” (report) prepared
by a person identifying himself in the report as Kenneth Renwick, MD, MPH,
medical director of “TMWIHC, Inc.”  In
the report, Dr. Renwick stated the following: 


            He
had “been asked to write a note regarding the medication [appellant] was
taking” on the night he was stopped by police.

            A
blood sample was taken from appellant at 3:20 a.m. on April 10.  Appellant has taken Ambien and Soma “for some
years” to help him sleep, and he had taken these medications, in amounts set
forth in the report, approximately six hours prior to his blood being
drawn.  The test of appellant’s blood
showed the presence of Ambien and Soma at levels that “rated low therapeutic,
indicating that they were wearing off, and had not been used in excess.”  In addition, “Given [that appellant] had used
[those medications] for years, he had accommodated to the medication side
effects so that at any level he would be less impaired than a new user, and the
medications would also be less effective at helping him sleep.”

            The
report also stated:  “[Appellant] also
suffers from chronic pain due to old orthopedic injuries.  He has an old pelvic fracture … and deformity
of the obtorator formain due to hip trauma. 
He has been told he will need hip joint replacement.  These injuries make it hard for him to stand
on one leg, making one legged standing an invalid field sobriety test.”

            Dr.
Renwick concluded:  “In my opinion
[appellant] can not [sic] be validly
considered intoxicated based on the field test and on the drug levels
found.  The low drug levels suggest that
the medications were wearing off, and would have little, if any effect on a
chronic user of those medications.  The
invalid field sobriety test likely misidentified an orthopedic problem as an
intoxication.” 

The
Challenged Ruling

            Prior
to Zehnder’s testimony, the prosecutor informed the court that he (the
prosecutor) was “anticipating that Mr. Zehnder is not going to be basing any of
his testimony on the information contained in [the report] because absent that
testimony, there is no foundation,” and that he (the prosecutor) was “seeking
to … put everyone on notice that foundation objections would be made ….” 

            The
court asked defense counsel if Zehnder “rel[ied] on [the report] in forming his
opinion[.]”  Defense counsel explained
that Dr. Renwick was appellant’s treating physician, and that “experts rely
upon information like that all the time.” 
Counsel further stated as follows: 
“ … [Appellant] is going to [testify] that he does have a hip injury and
that he … has, in fact, taken the Ambien and Soma for quite a while.  So that information will come in, not from
the doctor.  [¶]  [Dr. Renwick] also states an opinion as to
impairment, which I really don’t think that doctor is … qualified to give, so
there are problems with the content of the [report].  I didn’t control it.”  The court at that point directed defense
counsel to “Find out if [Zehnder] relied on [the report], and what his
testimony is going to be, and … the extent [to which] he relied on [the
report].”  Counsel stated she would do
so, and that “[her] knowledge is [Zehnder] relied upon “the fact” that
appellant had taken Ambien and Soma “for a while” and that “there was a hip
injury.  That’s it.” 

            Later
that day, the court asked defense counsel if she had spoken to Zehnder.  Counsel responded, “I told Mr. Zehnder that
[appellant] is going to provide evidence with respect to his pelvic fracture
and the length of time he’s been using Ambien, so that will come in.”  The court responded that its “concern” was
that the court knew nothing about Dr. Renwick or his qualifications, and that
Dr. Renwick had “expressed [in the report] opinions … that he may not be
qualified to give based on his training and experience.”  Defense counsel responded, “I think that is
correct.”  

            The
court further stated, “… to the extent that [Zehnder’s] opinion is based on the
content of [the report] … I certainly don’t expect [Dr. Renwick’s] opinion to
be expressed by Mr. Zehnder.”  Counsel
stated, “No.”  

            The
court continued, “I don’t want [Zehnder] to rely on the opinions of Dr. Renwick
as they related to the effects of Ambien.” 
Counsel responded, “Oh no, he wouldn’t be.” 

            The
court concluded:  “But in terms of the
opinions expressed by Dr. Renwick as it relates to the orthopedic injuries or
the effect of Ambien and the summary in this [report] that’s basically Dr.
Renwick’s opinion, I don’t expect Mr. Zehnder to rely on that [report] as a
basis for his opinion.” 

DISCUSSION

            Section
801 limits expert opinion testimony to an opinion that is, inter alia, “[b]ased
on matter ... perceived by or personally known to the witness or made known to
[the witness] 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 [the
expert] testimony relates ....” 
(Evid. Code, § 801, subd. (b), italics added.)  Appellant contends the court’s ruling on
Zehnder’s testimony violated section 801 because (1) the report was prepared by
appellant’s treating physician and was therefore the “type of material which is
regularly reasonably relied upon by related experts in forming their opinions,”
and (2) the court’s ruling “restricted” the defense expert’s testimony so as
“to exclude evidence” contained in the report, viz., “evidence of appellant’s
orthopedic injuries.”  (Emphasis,
unnecessary capitalization omitted.)  The
court’s error was prejudicial, appellant argues further, in part because “[it]
left appellant as the only person who could tell the jury about his injuries, a
critical issue in his defense.” 

            Appellant’s
claim lacks merit.  We recognize that, as
appellant points out and as the court stated in People v. Gardeley (1996) 14 Cal.4th 605, 618, under section 801,
“Expert testimony may … be premised on material that is not admitted into
evidence so long as it is material of a type that is reasonably relied upon by
experts in the particular field in forming their opinions.  [Citations.]  Of course, any material that forms the basis of
an expert’s opinion testimony must be reliable.”  However, this rule does not permit what
appellant seeks to accomplish here, viz., putting before the jury inadmissible
hearsay (Evid. Code, § 1200), in the guise of the basis for expert opinion
testimony, as independent proof of facts—in this case appellant’s injuries.  As the court stated in Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516:  “Although experts are … given considerable
leeway as to the material on which they may rely, the rules governing actual
communication to the jury of any hearsay matter reasonably relied on by an
expert are more restrictive.  Although
experts may properly rely on hearsay in forming their opinions, they may not
relate the out-of-court statements of another as independent proof of the fact.  [Citations.] 
Although an expert ‘may rely on inadmissible hearsay in forming his or
her opinion [citation], and may state on direct examination the matters on
which he or she relied, the expert may not testify as to the details of those
matters if they are otherwise inadmissible [citation].’  [Citations.]  In People
v. Coleman (1985) 38 Cal.3d 69, 92, the Supreme Court said with regard to
an expert witness that ‘... he may not under the guise of reasons bring before
the jury incompetent hearsay evidence.’ 
[Citation].”  (>Id. at pp. 1524-1525.)href="#_ftn2" name="_ftnref2" title="">^[1]

            We
find instructive People v. Loy (2011)
52 Cal.4th 46 (Loy).  In that case, a murder prosecution, a
prosecution expert, entomologist David Faulkner, testified as to two points
regarding maggots found on the victim’s body. 
First, he testified, based on the maggots’ development, how long they
had been associated with the body. 
Second, he testified as to the time and date the maggots were deposited
on the body.  Faulkner based this second
conclusion on a letter he had received from the medical examiner’s office saying
that maggot samples had been collected on certain dates.  The trial court overruled the defense’s
lack-of-foundation objection to this evidence. 


            The
appellate court found no error in the court’s ruling as to the first
point.  Citing the principle that “‘Under
… section 801, expert opinion testimony is admissible only if the subject
matter of the testimony is “sufficiently beyond common experience that the
opinion of an expert would assist the trier of fact,”’” the court stated that
the length of time the maggots had been associated with the body, based as it
was on the expert’s knowledge of how such organisms develop, was “clearly a
subject sufficiently beyond common experience that expert opinion would assist
the jury.”  (Loy, supra, 52 Cal.4th
at p. 69.)

            The
entomologist’s second point, however, was a different matter.  Faulkner testified he learned of the date the
maggots were collected—the purported fact upon which he based his conclusion as
to when the maggots were deposited on the body—from a letter from the medical
examiner.  (Loy, supra, 52 Cal.4th
at p. 68.)  Thus, the court pointed
out, Faulkner’s testimony as to when the sample was collected, and his
resultant conclusion as to when the maggots were deposited on the body, were
based on hearsay.  (Ibid.)

            The
court acknowledged the principle, asserted by the Attorney General—and by
appellant here—that “‘Expert testimony may … be premised on material that is
not admitted into evidence so long as it is material of a type that is
reasonably relied upon by experts in the particular field in forming their
opinions.…’”  (Loy, supra, 52 Cal.4th at
p. 68.)  However, the court held
that “Faulkner’s testimony regarding the date the samples were collected does
not come within this rule” because “when the sample was collected was a simple
question of fact that the jury could decide for itself without expert
guidance.”  (Loy, supra, at pp. 68,
69, italics omitted.)  That is,
Faulkner’s testimony on this point ran afoul of the rule set forth in section
801 that expert opinion evidence “is limited to such opinion as is “(a) Related
to a subject that is sufficiently beyond common experience that the opinion of
the expert would assist the trier of fact ….” 
(§ 801, subd. (a).)  Accordingly,
the appellate court held the trial court erred in overruling the defendant’s
lack-of-foundation objection to the expert’s testimony as to when the maggots
were deposited on the body.

            Thus,
Loy teaches that expert opinion
testimony based on information that presents “a simple question of fact” that a
jury “[can] decide for itself without expert guidance” (Loy, supra, 52 Cal.4th at
p. 69) will not survive a lack-of-foundation objection.  Such a “foundational fact[ ]” is “for others
to establish.”  (Ibid.)  The information in
Dr. Renwick’s report regarding appellant’s injuries—that appellant had suffered
a pelvic fracture and had a “deformity” caused by hip trauma that made it
difficult for him to stand on one leg and which, appellant had been told, would
necessitate surgery to replace his hip joint—is precisely this kind of
information.  Therefore, under >Loy, the defense in the instant case
could not be permitted to establish the purported facts regarding appellant’s
physical condition through Zehnder’s testimony as to what Dr. Renwick said in
his report.  Appellant’s claim that he
should have been allowed to present evidence of his physical limitations
through the testimony of the defense expert witness must be rejected. 

            Appellant
also argues that the court’s ruling violated not only section 801, but also his
rights to a fair trial and to present a defense under the Due Process Clauses
of the California and United States Constitutions.  (See Cal. Const. art. I, § 7; U.S. Const. 5th
& 14th Amends.)  This contention too
is without merit.href="#_ftn3"
name="_ftnref3" title="">^[2]  

            “As
a general matter, the ordinary rules of evidence do not impermissibly infringe
on the accused’s right to present a defense.”  (People
v. Hall (1986) 41 Cal.3d 826, 834.) 
Here, appellant testified that he suffered a crushed pelvis in 1986 and that
he has chronic arthritis in both hips, and he performed poorly on the
one-legged-stand portion of the field sobriety testing because of his
injuries.  Thus, he was not prevented
from presenting the portion of his defense that was based on his physical
injuries.  He was merely precluded from
proving this part of his defense with hearsay evidence that was inadmissible
under the ordinary rules of evidence. 
Therefore, the court’s ruling did not violate appellant’s constitutional
due process rights.

            We
conclude further that even if the court erred in ruling Zehnder could not
testify as to appellant’s physical infirmities as related in the report, such
error was harmless.  First, the source of
Dr. Renwick’s information regarding appellant’s injuries is not apparent from
the report.  The report did not state
that Dr. Renwick based his statements on his examination of appellant.  Insofar as the report reveals, Dr. Renwick
could have simply been reporting what appellant told him.  Absent any showing of the basis of Dr.
Renwick’s statement regarding appellant’s injuries, that statement is of little
probative value and would not have added significantly to appellant’s testimony
on the subject.  In addition, evidence of
appellant’s orthopedic problems does not have a bearing on other evidence
damaging to the defense, such as appellant’s erratic driving, his difficulty in
parking and his slurred speech. 

            Because
the error complained of is not of constitutional dimension, reversal is not
compelled unless “it is reasonably probable that a result more favorable to [appellant]
would have been reached in the absence of the error.”  (People
v. Watson (1956) 46 Cal.2d 818, 836.) 
Under this standard, any error by the court in refusing to allow Zehnder
to testify to factual matters set forth in the report was harmless.

DISPOSITION

            The
judgment is affirmed.