Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR-461750.
Banke, J.
Defendant Alfred Mark Fournier (Fournier) appeals from his conviction of vehicular manslaughter. He argues the court made erroneous instructional and evidentiary rulings. We conclude there was no instructional error and no abuse of discretion in evidentiary rulings, and affirm.
Procedural Background
The Sonoma County District Attorney charged Fournier by information with voluntary manslaughter (Pen. Code, § 192, subd. (a)), vehicular manslaughter (§ 192, subd. (c)(1)), and assault with a deadly weapon (§ 245, subd. (a)(1)). As to the latter count, the information also alleged a great bodily injury enhancement under section 12022.7, subdivision (a).
All further statutory references are to the Penal Code unless otherwise indicated.
Fournier initially pled not guilty. On May 8, 2006, he entered no contest pleas to the voluntary and vehicular manslaughter charges on the condition he be placed on probation and not receive a state prison sentence, and the assault count would be dismissed. Fournier again changed his plea on June 29, 2006, to not guilty.
In June 2007, Fournier was found mentally incompetent to stand trial and was committed to Napa State Hospital. In February 2008, the court found him to be mentally competent, and the criminal proceedings were reinstated. Fournier then changed his plea to not guilty by reason of insanity.
A jury found Fournier guilty of vehicular manslaughter with gross negligence and assault with a deadly weapon, and found true the great bodily injury enhancement. The jury deadlocked as to the voluntary manslaughter charge, and the court dismissed that count.
The court sentenced Fournier to the lower term of two years for the assault with a deadly weapon conviction and three years for the great bodily injury enhancement, to run consecutively. The court imposed and stayed a four-year term for the vehicular manslaughter conviction. This timely appeal followed.
Factual Background
This case arises out of a motor vehicle accident involving Fournier’s Ford Explorer and Eric Stern’s Harley Davidson motorcycle. The accident took place on Bohemian Highway, a two-lane road divided by a double yellow line.
On July 13, 2004, Fournier’s sister, Cathleen Hart, and her family were visiting Fournier, and they decided to take a drive to see the redwoods. Fournier led the way in his Explorer, with his eight-year-old nephew (nephew) in the front passenger seat and his dog in the back. Cathleen and her husband, Keith Hart, followed in their minivan. Keith was driving, Cathleen was in the front passenger seat, and their three other children were in the rear passenger seats.
We will refer to the Harts by their first names in the remainder of the opinion for clarity.
As they were driving along Bohemian Highway, Stern, on his motorcycle, passed the Hart’s vehicle and “came in between” them and Fournier’s Explorer. Cathleen saw Stern “tailgating” Fournier, who “put his arm out the window and was trying to wave him like you can go ahead now or something.” Stern passed Fournier and moved back into the lane in front of him. Cathleen did not see Stern make any gestures. The vehicles began to go around a curve in the road. Cathleen “couldn’t see the motorcycle guy, but... saw [Fournier] swerve around him.” She saw Fournier “swerv[e] around fast, ” “it was sudden.” Fournier went “around the motorcycle and... [was] really far ahead... 100 yards or so....” Cathleen was concerned because “he never drove like that before so [she] didn’t know what was happening.” Stern was “going really fast” and speeding up when Fournier passed him.
Fournier then moved back into the right lane “way up there” ahead of the motorcycle. Cathleen saw him drive “really fast” and then it “seemed like” the Explorer stopped-“like they were waiting for us to catch up.... It seemed like they were just still, just like sitting there.” She acknowledged telling police in a telephone interview her brother stopped in the road and “it looked like he was just sitting there..., ” though she had not mentioned she saw him stopped in an earlier interview with the police. Cathleen also recalled testifying at the preliminary examination that she saw the Explorer actually stop, but at trial testified “As I sit here today, I don’t really recall it very much because it happened a long time ago.”
Cathleen saw the motorcyclist “trying to slow himself down because the smoke was coming out and he was wobbling around and skidding.” She “could just tell” Fournier was “not moving fast enough or maybe... [not] even moving because it was hard to tell, and the motorcycle guy was like not slowing himself down good and I thought he was going to hit them.” The motorcycle was still wobbling and had turned “sort of sideways.” Cathleen saw him hit the Explorer “on the back left side.” The motorcycle then turned and was facing the Harts’ vehicle, with Stern “still holding onto his handlebars after he hit” the Explorer. Then the motorcycle “fell over and he tumbled off.” Fournier’s Explorer “was still there. He hadn’t left yet.”
Cathleen and her husband Keith pulled over and went “to see how the motorcycle guy was.” The motorcyclist was on his stomach in the road with his face in his helmet. He was not moving or making any sounds. Cathleen put her hand over his head and the motorcyclist reached up and made a “gasping/moaning sound.” Stern tried to get up but kept falling. Fournier left in his Explorer to get help.
Police and paramedics arrived. At some point while the paramedics were there, Fournier returned, and police interviewed him at the scene. Fournier told them he was afraid of the motorcyclist because he looked like a Hell’s Angel. Police asked Fournier if the motorcyclist made any gestures or statements to him, and Fournier told them he did not. After the motorcycle passed him, Fournier decided to pass the motorcycle to get away from him. He told police the motorcycle accelerated after he passed it, and he braked because he came to a curve in the road.
Stern died en route to the hospital. He suffered blunt force injuries in the accident, including five broken ribs, hemorrhaging, and compression injuries to his torso. Stern’s pericardial lining was torn and his heart, normally located on the left, was displaced into the right side of his chest cavity, indicating a “significant deceleration injury or impact injury.” Dr. Kelly Arthur, the forensic pathologist who performed the autopsy of Stern’s body, explained “the organs are all tethered in place in your body.... [I]f you’re moving at a brisk pace and all of a sudden stop... those organs can get torn away....”
Police again interviewed Fournier two days after the accident. Fournier then told police Stern gave him “the bird” and called him a “fucking asshole” when Stern passed him. Fournier said he responded “[H]ave a nice day.” He was concerned the motorcyclist wanted to “start something, ” so he decided to pass him. He then saw the motorcycle behind him approaching fast, but braked because there was a curve in the road, estimating he reduced his speed from 40-45 miles per hour to 25-30 miles per hour. He told police he “slowed down, probably pretty quick....” Fournier felt an impact when the motorcycle hit the back of his Explorer, which his nephew described as an “earthquake.” Fournier initially told police he was not upset at the motorcyclist before the accident, but then acknowledged he had been a “little irritated” or a “little upset” when the motorcyclist passed him. He denied moving in front of the motorcycle and then slamming on his brakes, though he admitted he may have braked harder then he normally would have.
Fournier’s nephew was riding in the front passenger seat of the Explorer at the time of the collision. In March 2007, he told Kenneth Pistorio, an investigator with the district attorney’s office, the Explorer did not stop prior to the collision. Fournier’s nephew also told Pistorio if the Explorer “slowed at all it was only by five miles per hour max.” Pistorio testified he “wasn’t confident in [the nephew’s] ability to determine how much the car had slowed” based on the nephew’s age and the time elapsed since the accident.
California Highway Patrol Officer Timothy Snyder testified as an expert in “the field of accident investigation.” He arrived at the accident scene shortly after noon. There was no posted speed limit on that portion of Bohemian Highway, making the “default speed” limit 55 miles per hour. There was a 111-foot tire friction mark at the accident scene, which “didn’t fit with” Fournier’s statement that the motorcyclist was “accelerating or attempting to try to pass [his] Ford Explorer.” Snyder opined the tire friction mark was left by the motorcycle. The friction mark, along with evidence of smoke coming from the motorcycle tires, indicated the motorcyclist was not “accelerating, [but]... in a panicked brake.” The length of the skid mark indicated the motorcyclist was braking for “a rather long period of time in an effort to try and stop....” Snyder believed the “motorcycle struck the roadway prior to any impact with the SUV....”
Robert Dias Mota, a sergeant with the California Highway Patrol, assisted in investigating the collision. Based on that investigation, it was Mota’s opinion that Stern’s body rather than a part of his motorcycle struck the Explorer and caused the damage to that vehicle. He also believed the motorcycle was on its side when Stern’s body struck the Explorer. The skid mark and gouges in the roadway at the scene of the accident were “very consistent with a motorcycle skidding and then going to its side” in what he described as a “panic brake situation.”
California Highway Patrol Sergeant Ivan Tien testified as an expert in accident investigation and reconstruction. He also assisted in the investigation of the accident in this case, primarily to provide a “speed analysis of the motorcycle at the time of the collision, ” tire friction mark analysis, and motorcycle rider dynamics. He opined the motorcyclist was “actually pinned in between the Ford Explorer and the motorcycle[, b]ecause what we believe is the Ford Explorer was traveling at a speed that [was] much less than the motorcycle.” Based on the investigation and his mathematical calculations, he determined the motorcycle was traveling at approximately 44 miles per hour when it began to brake, and 26.4 miles per hour at impact. His opinion was “the Ford Explorer must have reduced its speed to a certain stage that caused the driver to take evasive action; in this case, braking. [¶] Though we cannot calculate the speed of the Ford Explorer..., we know it has to be traveling less than 26.4 miles per hour.”
Edward H. Lewis, a member of the Multi-Disciplinary Accident Investigation Team of the California Highway Patrol (MAIT) performed a mechanical inspection of Stern’s motorcycle after the accident. He concluded “[t]here were no mechanical failures to the motorcycle which would have contributed to the collision.”
Paul Herman, Ph.D., a physicist, testified for the defense as an expert in accident reconstruction. He opined the speed of the motorcycle at the beginning of the skid mark was “approximately somewhere between 43 and 62 miles per hour” and the speed at impact was 23 to 26 miles per hour. He also opined the speed of the motorcycle and the speed of the Explorer at the time of impact were “approximately the same, ” but “[o]f course, the motorcycle was going a little bit faster or else there wouldn’t have been an impact.” He estimated the speed of the Explorer at impact at “20 to 23; 21 to 24... something in that neighborhood, ” and acknowledged his “numbers... are basically the same or not significantly different from” the California Highway Patrol experts. Herman also opined the motorcycle itself, not a part of Stern’s body, hit the Explorer before the motorcycle went down, though he conceded it was possible the motorcyclist’s body could have hit the Explorer and caused the damage.
Discussion
Failure to Instruct on Superseding or Intervening Cause
Fournier maintains the trial court erred in instructing the jury with a modified version of CALCRIM No. 620, and in failing to instruct, sua sponte, on superseding or intervening causation. The court instructed the jury with the following modified version of CALCRIM No. 620: “The failure of Eric Stern or another person to use reasonable care may have contributed to the death, but if the defendant’s act was a substantial factor causing the death, then the defendant is legally responsible for the death, even though Eric Stern or another person may have failed to use reasonable care.”
Fournier claims “Stern’s speeding was in fact the superseding cause of the accident” and therefore the court erred in not instructing on superseding causation. He also suggests Stern’s tailgating was a superseding cause. Fournier never requested an instruction on superseding or intervening causation, and made no objection to CALCRIM No. 620 in the form proposed by the prosecutor, thus waiving any objections in this regard. (See People v. Davis (2005) 36 Cal.4th 510, 539.)
The parties dispute whether Fournier’s counsel “agreed” to the particular instruction in whole or part, but Fournier does not dispute he did not request the instruction he now claims was required or object to the one given, instead claiming the court had a sua sponte duty to instruct on his claimed defense.
Even had Fournier preserved his objections, his assertions of error lack merit. “It is well established that a crime victim’s contributory negligence is not a defense.” (People v. Marlin (2004) 124 Cal.App.4th 559, 569.) A defendant may be “ ‘criminally liable for a result directly caused by his or her act, even though there is another contributing cause.’ ” (People v. Catlin (2001) 26 Cal.4th 81, 156, quoting 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Elements, § 37, p. 243.) “In criminal prosecutions, the contributing negligence of the victim or a third party does not relieve the criminal actor of liability, unless the victim’s or third party’s conduct was the sole or superseding cause of the death.” (People v. Autry (1995) 37 Cal.App.4th 351, 360.) Only an unforeseeable intervening cause rises to the level of an exonerating, superseding cause. (People v. Armitage (1987) 194 Cal.App.3d 405, 420-421.) “Facts attacking legal causation are only relevant if the defendant’s act was not a substantial factor in producing the harm or injurious situation.” (People v. Wattier (1996) 51 Cal.App.4th 948, 953.) To constitute a sole or superseding cause, the victim’s conduct must have been “so unusual, abnormal, or extraordinary that it could not have been foreseen.” (People v. Schmies (1996) 44 Cal.App.4th 38, 52.) Absent such conduct, evidence the victim “may have shared responsibility or fault for the accident does nothing to exonerate [a] defendant for his role” and “is not relevant.” (Id. at p. 51.)
A “superseding cause must break the chain of causation after the defendant’s act before he or she is relieved of criminal liability for the resulting harm.” (People v. Wattier, supra, 51 Cal.App.4th at p. 953.) “To relieve a defendant of criminal responsibility... the intervening or superseding cause must break the chain of causation after defendant’s original act.” (1 Witkin & Epstein, Cal. Criminal Law, supra, § 40, p. 246.) “ ‘An intervening force is one which actively operates in producing harm to another after the actor’s negligent act or omission has been committed.’ [Citation.] Whether it prevents an actor’s antecedent negligence from being a legal cause of harm to another is determined by other rules [citation], chiefly those governing the related concept of superseding cause. [¶] ‘A superseding cause is an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.’ ” (Brewer v. Teano (1995) 40 Cal.App.4th 1024, 1030, quoting Rest.2d Torts, § 440, citing Rest.2d Torts, § 441, subds. (1), (2).)
The same principles of causation apply to crimes as well as torts. (People v. Schmies, supra, 44 Cal.App.4th at p. 46.)
The evidence did not support an instruction on Stern’s speed or tailgating as a superseding cause primarily because the alleged speeding and tailgating occurred before Fournier’s act of braking and slowing in front of Stern. The only evidence of Stern’s “tailgating” was that it occurred before Stern passed the Explorer, and thus before Fournier passed Stern and then slowed. Cathleen, Fournier’s sister, testified to the sequence of events: “Q. To be clear, ma’am, you described the motorcycle as tailgating your brother [(Fournier)] before it passed him the first time? [¶] A. Yes. [¶] Q. And in the next period of time when your brother was in front of the motorcycle again, was the motorcycle tailgating him then at any time? [¶] A. You mean before Mark [(Fournier)] swerved around him? [¶] Q: After Mark got back way up ahead of him. [¶] A. So Mark swerves around and goes way up there, no, because the motorcycle was too far away to ever tailgate him again.” (Italics added.)
Similarly, there was no evidence Stern’s speed broke “the chain of causation after the defendant’s act....” (People v. Wattier, supra, 51 Cal.App.4th at p. 953.) Even had Stern been speeding, the evidence showed Fournier accelerated to pass him, passed him by crossing over the double yellow line, moved back into the lane in front of Stern, and then applied the brakes. By passing Stern, Fournier necessarily had to be traveling at a faster rate of speed than Stern. Any speeding by Stern took place before Fournier slowed or stopped in front of him, and thus could not be a superseding cause. And, even if Stern accelerated after Fournier passed him, the evidence did not demonstrate Stern’s speed was so grossly negligent or reckless to be a superseding, rather than contributing, cause of his death. Prosecution expert Tien testified he believed the motorcycle was going about 44 miles per hour when it began to brake. Defense expert Herman opined the motorcycle was traveling “approximately between 43 and 62 miles per hour” when it began to brake. Officer Snyder testified the speed limit on Bohemian Highway at the time was unposted, and therefore presumptively 55 miles per hour. Snyder believed a safe speed on Bohemian Highway at the spot where the accident occurred was 40 to 45 miles per hour. Indeed, Fournier does not argue Stern was going too fast for conditions, which were described as “[p]leasant” and sunny, with no heavy fog.
In sum, the record does not support Fournier’s assertion that he was entitled to instructions on superseding causation.
Alternate Theories of Liability
Fournier argues the charge of gross vehicular manslaughter was submitted to the jury on alternate theories, one of which was legally insufficient to support his conviction. He also maintains the jury was “wrongfully instructed that it could convict based on either one of the two theories as long as they were unanimous as to that theory.” (Italics omitted.)
Vehicular manslaughter is defined as “driving a vehicle in the commission of an unlawful act, not amounting to a felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.” (§ 192, subd. (c)(1).)
The trial court instructed the jury the prosecution alleged three possible underlying acts: “Vehicle Code section 22400[, subdivision] (a), no person shall drive upon a highway at such a slow speed as to impede or block the normal and reasonable movement of traffic unless the reduced speed is necessary for safe operation because of the grade or in compliance with the law. No person shall bring a vehicle to a complete stop upon a highway so as to impede or block the normal and reasonable movement of traffic unless the stop is necessary for safe operation or in compliance with [the] law. [¶] Vehicle Code section 21651[, subdivision] (a) reads: Whenever a highway has been divided into two or more roadways by means of intermittent barriers or by means of a dividing section of not less than two feet in width, either unpaved or delineated by curbs, double parallel lines or other markings on the roadway, it is unlawful to do the following: To drive any vehicle over, upon or across the dividing section. [¶] The People also allege that the defendant committed the following otherwise lawful act that might cause death: Slowing in the lane of travel.”
Fournier argues the “crossing the double yellow line” theory was legally insufficient to support his conviction.
There are “two types of cases involving insufficient evidence: (a) those in which ‘a particular theory of conviction... is contrary to law, ’ or, phrased slightly differently, cases involving a ‘legally inadequate theory’; and (b) those in which the jury has merely been ‘left the option of relying upon a factually inadequate theory, ’ or, also phrased slightly differently, cases in which there was an ‘insufficiency of proof.’ ” (People v. Guiton (1993) 4 Cal.4th 1116, 1128 (Guiton), quoting Griffin v. United States (1991) 502 U.S. 46, 59 (Griffin).) When “jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error. Quite the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, since jurors are well equipped to analyze the evidence....” (Griffin, supra, at p. 59.)
Instruction on a factually unsupported theory is “prejudicial only if that theory became the sole basis of the verdict of guilt; if the jury based its verdict on the valid ground, or on both the valid and the invalid ground, there would be no prejudice, for there would be a valid basis for the verdict.” (Guiton, supra, 4 Cal.4th at p. 1130.) In cases where the jury was given the option of relying on both a factually adequate and a factually inadequate theory, the conviction will be affirmed unless “a review of the entire record affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory.” (Ibid.) In contrast, “when the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand.” (People v. Green (1980) 27 Cal.3d 1, 69 (Green), overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225 & People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3.)
Mindful of the differing standards of review, Fournier claims the “crossing the double yellow line” theory presented to the jury was legally incorrect, thus mandating reversal as in Green. In Green, the defendant was charged, among other things, with kidnapping. The prosecutor argued three different segments of asportation were each sufficient to support a kidnapping conviction. The evidence showed the defendant asported the victim 20 miles by fraud but without use of threat or force, 5 miles by threat or force, and 90 feet by threat or force. (Green, supra, 27 Cal.3d at pp. 65-68.) Both the 20-mile distance and the 90-feet distance were legally insufficient to form the basis for kidnapping; the former because it was accomplished without force or fear, and the latter because that distance, at the time, was legally insufficient to constitute asportation. (Id. at p. 67.) The court thus reversed the kidnapping conviction because two of the three asportations alleged by the prosecutor to support a kidnapping conviction were legally insufficient. (Id. at pp. 69, 73-74.)
In contrast, the infraction of crossing the double yellow line as the underlying unlawful act necessary for a vehicular manslaughter conviction is not legally insufficient; had crossing the double yellow line caused Stern’s death, it would have been legally sufficient to support the vehicular manslaughter conviction. The issue here is whether the unlawful act of crossing the double yellow line was the cause in fact of Stern’s death. This situation is more akin to that in People v. Tinajero (1993) 19 Cal.App.4th 1541, where the defendant was charged with sale or transportation of cocaine. (Id. at p. 1544.)The Tinajero court explained: “[t]he only questionable issue presented to the jury was the factual sufficiency of the sale evidence. The concern, in the absence of the alternate transportation theory, would be the fear that the jury convicted appellant of sale despite the nature of the evidence, given that the only other option would be acquittal. However, we need not be concerned with the all-or-nothing possibility because Guiton permits us to presume the jury, if they found the evidence of sale questionable or insufficient, instead turned to the alternate transportation charge which is overwhelmingly supported by the record.” (Id. at pp. 1551-1552.)
Fournier has pointed to no affirmative demonstration in the record the jury relied solely on the “crossing the double yellow line” theory, and our review of the record has not revealed one. And, while there was conflicting evidence as to whether Fournier stopped in the lane ahead of Stern or slowed down, there was no question he slowed. Thus, at least one of the alleged unlawful acts necessary for vehicular manslaughter was overwhelmingly supported by the evidence.
Fournier also maintains the “jury was wrongfully instructed that it could convict based on either one of the two theories as long as they were unanimous as to that theory.” (Italics omitted.) The trial court here gave the following unanimity instruction: “The People have presented evidence of more than one act to prove that the defendant committed these offenses. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed.”
“[I]n cases in which the evidence indicates the jurors might disagree as to the particular act committed, the court should deliver the standard unanimity instruction.” (People v. Brown (1996) 42 Cal.App.4th 1493, 1500.) “When a defendant is charged with a single criminal act but the evidence reveals more than one such act, the prosecution must either select the particular act upon which it relies to prove the charge or the jury must be instructed that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act.” (Id. at p. 1499.) Thus, the court did not err in giving a unanimity instruction: it was required to do so.
Admission of Expert Testimony
Fournier maintains the trial court erred in finding two of the Highway Patrol witnesses, Officer Snyder and Sergeant Mota, qualified to testify as to their expert opinions. He also argues their testimony, as well as that of Sergeant Tien, was speculative and lacked foundation. We review the trial court’s admission of expert testimony for abuse of discretion. (People v. Prince (2007) 40 Cal.4th 1179, 1222.)
At trial, Fournier objected only to the qualification of Officer Snyder as an expert witness. He made no objection to the qualifications or testimony of Sergeants Mota or Tien, and thus waived any objections in that regard. “It is difficult to believe that the judge owed some hazy duty to interfere with the testimony of the expert witness in the total absence of any objection. Generally speaking, failure to object at a trial is equivalent to a waiver of any claim of error in the admission of evidence.” (People v. Campbell (1965) 233 Cal.App.2d 38, 44.)
In any case, Fournier’s assertion these officers lack qualifications to provide expert testimony is without merit. Fournier maintains Officer Snyder and Sergeant Mota “were not qualified based on their training or experience to provide expert testimony concerning the vehicle dynamics of appellant’s Explorer at the time of the accident” because “vehicle dynamics... requires specialized training in physics.” He asserts opinions about the “speed and motion” of the Explorer and motorcycle “required application of the laws of physics... ” and the “officers did not claim to have special training in that field.” He also claims their opinions were “guesswork” because “[t]he officers did not do any... calculations.”
We begin by setting forth the statutory basis for the testimony of an expert at trial. “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).) The testimony of a witness testifying as an expert is “limited to such an opinion as is: (a) [r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and [¶] (b) [b]ased on a matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness....” (Evid. Code, § 801.)
“[T]he determinative issue in each case must be whether the witness has sufficient skill or experience in the field so that his testimony would be likely to assist the jury in the search for the truth, and ‘no hard and fast rule can be laid down which would be applicable in every circumstance.’ ” (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 38, quoting Brown v. Colm (1974) 11 Cal.3d 639, 645.) “Where a witness has disclosed sufficient knowledge, the question of the degree of knowledge goes more to the weight of the evidence than its admissibility.” (Mann v. Cracchiolo, supra, at p. 38.) No particular educational background is required to testify as an expert. A university degree is “not indispensable to expertise. [Citation.] It is the function of a trial court to determine the qualifications of an expert, and the degree of his knowledge is a matter which affects the weight of his testimony, not its admissibility.” (People v. Stuller (1970) 10 Cal.App.3d 582, 597.) A reviewing court may find error only if the witness “ ‘clearly lacks qualification as an expert.’ ” (People v. Hogan (1982) 31 Cal.3d 815, 852, disapproved on other grounds in People v. Cooper (1991) 53 Cal.3d 771, 836.)
Police and highway patrol officers routinely testify to their expert opinions regarding vehicle dynamics. “ ‘Highway patrol officers, garage men, automobile mechanics and others with similar special experience [i.e., experts] may testify on various matters in issue in automobile accident cases.’ ” (Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1616, quoting 1 Witkin, Cal. Evidence (3d ed. 1986) Opinion Evidence, § 500, p. 472.) Highway patrol officers qualified as experts commonly testify regarding the speed of vehicles at the time of collision (People v. Howard (2005) 34 Cal.4th 1129, 1132-1133), the damage to a vehicle and whether it is consistent with a particular type of collision, (People v. Williams (2010) 49 Cal.4th 405, 418-419), and their opinion as to the cause of an accident (People v. Wattier, supra, 51 Cal.App.4th at pp. 951-952). “ ‘[A] traffic officer who has spent years investigating accidents in which he has been required to render official reports not only as to the facts of the accidents but also as to his opinion as to their causes, including his opinion, when necessary, as to the point of impact, is an expert. Necessarily, in this field, much must be left to the common sense and discretion of the trial court.’ ” (People v. Haeussler (1953) 41 Cal.2d 252, 261, superseded by statute as stated in De Woody v. Superior Court (1970) 8 Cal.App.3d 52, 56-57.) In Haeussler, the officer’s qualifications as a witness included “many years of experience in investigating traffic accidents and reporting their causes to his superiors. He based his opinion upon an inspection of skid and gouge marks on the pavement and the location of oil, broken glass, parts of the vehicles, and other debris. The trial court was justified in concluding that a determination, from these indicia, as to the point of impact might properly be made by an expert.” (Ibid.)
Fournier claims the officers were not qualified to testify as experts because “vehicle dynamics... requires specialized training in physics.” His only authority for this proposition is the testimony of his own expert. Dr. Herman, however, testified only that “accident reconstruction is generally the application of physics, ” not that accident reconstruction requires specialized physics training.
Any question of the officers’ “degree of knowledge goes more to the weight of the evidence than its admissibility, ” (Mann v. Cracchiolo, supra, 38 Cal.3d at p. 38) and the jury was properly instructed in this regard. We cannot say the officers “ ‘clearly lack[] qualification as... expert[s], ’ ” (People v. Hogan, supra, 31 Cal.3d at p. 852, italics omitted) and thus find no abuse of discretion in allowing the officers’ testimony.
The jury was properly instructed “Witnesses were allowed to testify as experts and give opinions. You must consider the opinions, but you are not required to accept them as true or correct. The meaning and importance of any opinion is for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert’s knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence.”
Fournier concedes Sergeant Tien was qualified as an expert in accident reconstruction, but urges his opinion should have been excluded because “he did no calculations to support his general opinion that the Explorer was going much slower than the motorcycle, ” and his opinion “lacked foundation and was mere guesswork.” Even were this true, there could be no prejudice given Fournier’s own expert witness testified the Explorer must have been going slower than the motorcycle.
Fournier also complains Snyder and Mota improperly relied on witness statements in forming their opinions, and that Mota “suggested that his opinion was based in part on the fact that he discounted some of the eyewitness testimony” because the eyewitnesses were Fournier’s relatives. This, he asserts, is error because the officers were unqualified as experts and thus were testifying as lay witnesses, who may not rely on witness statements in forming their opinions. And, he claims Mota’s “suggestion” that the testimony of Fournier’s relatives should be discounted “intruded on the functions of the jury.”
Experts may rely on witness statements in forming their opinion. In People v. Singh, the appellant complained the expert witnesses “did not examine the cars involved or the scenes, but instead relied only upon the statements of witnesses and various reports.” (People v. Singh (1995) 37 Cal.App.4th 1343, 1377.) The court found no error, explaining “[s]uch an approach is not uncommon, however, when expert witnesses become involved at trial.” (Ibid.) Because the court did not abuse its discretion in allowing the officers to testify as experts, their reliance on witness statements was not error.
Fournier’s own expert testified he relied on witness statements in conducting accident reconstruction. He explained accident reconstruction entailed “go[ing] out and collect[ing] pieces of evidence, primarily physical evidence, read statements from witnesses, and collect all the information you can and then lay all the pieces out on a table... [and] try to make a coherent picture out of that....” (Italics added.)
Fournier further claims Mota’s testimony was improper because he “suggested” eyewitness testimony about the accident should be discounted because the eyewitnesses were Fournier’s relatives. He claims this amounted to an expert opinion “suggesting that eyewitness testimony can be discounted because an ‘expert’ has opined that the witnesses are biased and the events did not occur as they testified.” In his reply brief, Fournier identifies the eyewitness testimony that he claims was improperly discounted as that of his eight-year-old nephew and passenger.
Sergeant Mota testified he interviewed Fournier’s nephew and “to an extent” factored the nephew’s statements about the case into his opinion. In the interview, Mota asked the nephew “Do you remember if your uncle-and this is very important here so if you don’t know, just tell me that you don’t know-before the motorcycle hit, before you felt that earthquake, did your uncle do anything that you remember[?]” “Did he [(Fournier)] hit the brakes or say anything?” and the nephew responded “I don’t know.” In forming his opinions about the accident, Mota considered the physical evidence and the witness statements, “including the fact that they are his family members, and came to the conclusion that [Fournier] did stop in the road.” Mota did not testify he discounted Fournier’s nephew’s statement that he “did not know” if Fournier hit the brakes.
Mota was unaware of Fournier’s nephew’s statement to Pistorio that Fournier slowed at most only five miles per hour before the accident. Pistorio testified he “wasn’t confident in [the nephew’s] ability to determine how much the car had slowed” based on his age and the time elapsed since the accident.
Fournier further claims because Snyder was improperly allowed to testify as an expert, he was testifying as a non-expert and thus his opinion that the Explorer had stopped in the road should have been excluded because it was not based on his own observations. Because we find no abuse of discretion in the admission of Snyder’s opinions as an expert, this claim is meritless.
Evidence Code section 800 provides in part that the testimony of a witness not testifying as an expert “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.”
In sum, even had Fournier preserved all his objections to the expert’s testimony, we find no error in its admission.
Cathleen Hart’s Prior Inconsistent Testimony
Fournier argues the trial court erred in admitting part of Cathleen’s prior testimony at the preliminary examination, asserting it was not inconsistent with her trial testimony. The inconsistency at issue concerned Cathleen’s differing statements about whether Fournier’s Explorer was stopped in the road in front of Stern’s motorcycle, and her supposed lack of recollection at trial about whether the Explorer actually was stopped. Following Cathleen’s testimony, Sergeant Mota read into the record about four pages of her preliminary examination testimony.
Section 1235 of the Evidence Code provides: “Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.” Prior inconsistent statements are admissible not only to impeach credibility but also to prove the truth of the matters stated. (People v. Fierro (1991) 1 Cal.4th 173, 221 (Fierro).) We review admission of this evidence for abuse of discretion. (People v. Martinez (2000) 22 Cal.4th 106, 120.)
Evidence Code section 770 provides in part that evidence of a prior inconsistent statement shall be excluded unless “(a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or [¶] (b) The witness has not been excused from giving further testimony in the action.”
Fournier asserts Cathleen’s testimony at trial was not inconsistent with her testimony at the preliminary examination because, when confronted with “the details of her prior testimony, ” she “readily admitted her prior statements.” He cites no authority for this reasoning, and he misunderstands the inconsistency requirement. An acknowledgement that the witness made a prior statement inconsistent with his or her trial testimony, does not render the prior statement consistent with the trial testimony. If a witness’s “prior statements are clearly ‘inconsistent’ with her trial testimony[, t]hat character does not change simply because she admitted making them.” (People v. Brown (1995) 35 Cal.App.4th 1585, 1597.)
Fournier also claims Cathleen’s testimony “that she did not recall the details of the incident” prevented her prior testimony from being inconsistent. The testimony of a witness indicating he or she does not remember an event is not necessarily inconsistent with a prior statement describing the event. (People v. Sam (1969) 71 Cal.2d 194, 208-210.) “ ‘But justice will not be promoted by a ritualistic invocation of this rule of evidence. Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness’ prior statement [citation], and the same principle governs the case of the forgetful witness.’ ” (Fierro, supra, 1 Cal.4th at p. 221, quoting People v. Green (1971) 3 Cal.3d 981, 988, overruled on another ground in People v. Chavez (1980) 26 Cal.3d 334, 357.) While “ ‘ “prior statements are not admissible to impeach a witness whose answers to questions are exclusively of the ‘I-don’t-remember’ variety, ” ’ ” when the trial testimony “viewed as a whole is inconsistent in effect, it was not error to admit the prior statements.” (Ibid.) “[A] trial witness’s deliberately evasive forgetfulness is an implied denial of prior statements, which creates ‘inconsistency in effect’ and authorizes admission of the witness’s prior statements under Evidence Code section 1235.” (People v. Perez (2000) 82 Cal.App.4th 760, 764.)
In Fierro, a witness testified she heard two shots; but “could not be sure when she heard the second shot.” (Fierro, supra, 1 Cal.4th at p. 221.) Appellant claimed because she could not remember when she heard the second shot, her prior statements indicating she heard the two shots “in rapid succession” were not inconsistent. (Id. at pp. 221-222.) The court disagreed, holding it was not error to admit the prior statements. (Id. at p. 222.)
Cathleen’s trial testimony was not that she had no recollection of the event. Instead, she had selective lack of recollection. Her responses to questions were evasive and her testimony was internally inconsistent. Accordingly, the trial court did not abuse its discretion in determining her testimony was “inconsistentcy in effect.” Given Cathleen’s “deliberately evasive forgetfulness” (People v. Perez, supra, 82 Cal.App.4th at p. 764), the trial court likewise did not err in allowing evidence of her prior inconsistent testimony.
The following exchange is illustrative. “Q. After your brother got back into his regular lane of travel, what did you see your brother do? [¶] A. He drove really fast and then it seemed like they were just up there and I thought-I thought that they were stopped or it appeared-it seemed like they were just waiting for us to catch up maybe or something. It seemed like they were just still, just like sitting there. Even though I don’t remember any brake lights or anything, but I just thought that they were just like waiting and stopped there... [¶]... [¶]... for maybe us to catch up or something. [¶] Q. Let me stop you and ask you to describe what you saw the Explorer do when it got back in its lane of travel? [¶] A. When it went back in the regular lane? [¶] Q. Yes. Without guessing what he was doing, what was going through his mind, just tell us what you saw the Explorer do. [¶] A. Of my opinion? [¶] Q. What you saw. [¶] A. I think that they were just waiting for us to catch up so I thought that they were stopped. [¶] Q. Okay. Do you recall testifying that you saw the vehicle actually stop? [¶] A. Oh, like at the preliminary hearing? Yeah, I know I said that. [¶] Q. And do you recall telling the officer that in an interview shortly before- [¶] A. Yes, I used the word ‘stopped’ or I didn’t say-you know, like I just said it went around and it went up there and it stopped. That’s like how I said it. [¶] Q. But do you recall seeing your brother stop in the lane? [¶] A. That’s what I said. I remember saying that, yeah. [¶] Q. As you sit here today, do you recall your brother stopped in the lane? [¶] A. As I sit here today, I don’t recall it very much because it happened a long time ago.”
Fournier also urges the amount of Cathleen’s prior testimony admitted was error, claiming the court may not allow “wholesale admission” of “ ‘entire works’ in which some inconsistent statements appear.” However, Cathleen’s prior testimony covering less than four pages was narrowly tailored. It was not a wholesale admission of her entire preliminary examination testimony.
Disposition
The judgment is affirmed.
We concur: Marchiano, P. J., Margulies, J.