In re Nicholas D.

Filed 3/13/07 In re Nicholas D. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Butte)

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Following a contested jurisdictional hearing, the Butte County Juvenile Court found that minor Nicholas D. came within the provisions of Welfare and Institutions Code section 602 in that he drove under the influence of an alcoholic beverage and a drug. (Veh. Code, 23152, subd. (a).) At the prosecutors request, a count of possession of marijuana while driving (Veh. Code, 23222, subd. (b)) was dismissed. The minor was declared a ward, ordered to serve 48 hours in custody with credit for 24 hours, and directed to complete level one of DUI school by May 29, 2007.

On appeal, the minor contends lay and expert evidence of his driving under the influence of marijuana was erroneously admitted. We shall affirm the judgment.

Facts

Prosecution Case-in-Chief

On September 23, 2005, around 11:30 p.m., Paradise Police Officer Ricky Gabler was on patrol in the area of Clark Road and Bille Road. He was investigating a citizen complaint that a person driving a white Ford F-150 pickup truck was possibly under the influence. Gabler observed the truck on Clark Road and followed it up Bille Road. The truck was weaving within its traffic lane and traveling approximately five miles per hour less than the posted and safe maximum speed.

Officer Gabler stopped the truck and approached its driver, whom he identified in court as the minor. Gabler noticed that the minor had red, watery eyes, droopy eyelids, slurred speech, and poor motor skills. Gabler also smelled the odor of burnt marijuana coming from inside the truck. He directed the minor to leave the truck and walk toward the patrol car. The minor had an unsteady gait. Upon speaking with him, Gabler observed an off-white crusting around the minors lips and an off-green coloring on his tongue.

Officer Gabler suspected that the minor was under the influence of marijuana and asked him to perform several field sobriety tests. The minor was uncooperative and refused to perform any tests. Gabler took the minor to Feather River Hospital where a blood sample was obtained. The sample showed the presence of marijuana.

Defense

The minors father testified that he owned the pickup truck the minor was driving on the night of his arrest. The father testified that the truck is old, has loose steering, and needed to be driven slowly because a new engine had recently been installed.

The minor testified that he smoked marijuana around 8:00 p.m. on the night of the arrest. He did not feel that he was under the influence of marijuana while he was driving.

Discussion

The minor contends the juvenile court erroneously admitted improper expert and lay opinion evidence that he drove a vehicle while marijuana had appreciably impaired his ability to do so. Neither point has merit.

A. The Toxicologists Expert Opinion

The minor argues the juvenile court allowed the prosecutions toxicologist to answer a deficient hypothetical question, causing him prejudice. The contention is not properly before us.

The People presented evidence from Thueng Doan, a forensic toxicologist. Doan earned a bachelor of science degree in forensic science with a minor in chemistry. He also had taken courses on the effects of controlled substances on the human body, and had read research indicating that a person with more than two nanograms per milliliter of Delta 9 THC in his blood is impaired and unable to maintain the straight line while driving. The minors blood sample contained 31 nanograms per milliliter of Delta 9 THC.

The prosecutor asked Doan a hypothetical question: if he were aware of the blood test results and Officer Gablers observations of the minor on the night he was arrested (driving below the speed limit, weaving within his lane, slurred speech, red, watery and droopy eyes, impaired balance and an unsteady gait while walking, and white crusty material around his mouth), did Doan have an opinion as to the minors condition at the time he was driving?

The minors counsel objected on the ground that Doan was not present when the minor was arrested. The court ruled that Doans not being present at the stop went to the weight of his opinion and not to his ability to express an opinion to a hypothetical question.

Doan answered that a person with those symptoms would not be capable of operating a motor vehicle in a safe and prudent manner.

The minor contends the hypothetical question called for improper opinion evidence because it omitted the critical fact that Officer Gabler knew and recognized [the minor] by former acquaintance, and on that basis could reliably judge the slurred speech, red, watery and droopy eyes, unsteady gait, and encrusted mouth he observed as possible physiological [or side] effects of marijuana ingestion, rather than personal characteristics owing to causes other than drugs. [The prosecutor] might have adduced this undisputed fact during direct examination of Officer Gabler, but did not. The minor has not preserved this claim.

A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; . . . (Evid. Code, 353, italics added.) . . .  The reason for the rule is clear--failure to identify the specific ground of objection denies the opposing party the opportunity to offer evidence to cure the asserted defect. [Citation.] While no particular form of objection is required [citation], the objection must be made in such a way as to alert the trial court to the nature of the anticipated evidence and the basis on which exclusion is sought, and to afford the People an opportunity to establish its admissibility. [Citation.] (People v. Holt (1997) 15 Cal.4th 619, 666-667 (Holt).)

In this case, counsels objection did not even hint, let alone make clear, that its specific ground had anything to do with the officers prior acquaintance with the minor. Reversal of the judgment on this basis is prohibited by statute. (Holt, supra, 15 Cal.4th at pp. 666-667.)

In any event, Doan was not required to presume, in the absence of evidence, that the minor ordinarily exhibited symptoms of intoxication even though he was not intoxicated. The possibility that some of the observations recited in the hypothetical resulted from causes other than marijuana ingestion went to the weight of Doans opinion, not its admissibility. (See People v. Frye (1998) 18 Cal.4th 894, 960 [jurors properly instructed that, if they found any assumption in a hypothetical was not proved, they should determine what effect the failure of proof had on the weight of the experts opinion].)

Doan testified that his opinion was based upon the totality of the circumstances, including the results of the minors tests, his objective symptoms, his driving pattern, and his behavior. The minor does not claim he had preexisting conditions that explained away any of these circumstances, or that the remaining circumstances furnished an insufficient basis for the expert opinion.

Alternatively, any error was not prejudicial. The minor concedes that Officer Gabler was acquainted with him. Even if the prosecutor had elicited information from Gabler concerning the minors normal demeanor and then imparted it to Doan in the hypothetical question, his expert opinion would not have been different. Omission of the information from the hypothetical was harmless by any standard. (People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705].)

B. Officer Gablers Lay Opinion

The minor contends Officer Gabler was not qualified as an expert to testify to the ultimate conclusion that the minor was driving under the influence of marijuana. This claim has no merit.

The prosecutor asked Officer Gabler if he had an opinion with regard to the minors ability to operate a motor vehicle with the caution and characteristics of a reasonable and sober person. The minors counsel objected that the officer could testify to facts, but he could not offer his opinion as to the ultimate conclusion.

The prosecutor responded that Gabler was an experienced officer with a great deal of training and experience in dealing with under the influence offenses. Thus, he argued Gabler could testify to the ultimate conclusion that based upon his contact with the juvenile that it was his opinion that the juvenile was under the influence for purposes of [Vehicle Code section] 23152.

The juvenile court overruled the objection. Gabler then testified that, based on his training and experience, it was his opinion that the minor was under the influence.

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).) Expert opinion testimony is generally limited to topics sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. (Evid. Code, 801, subd. (a).) Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact. (Evid. Code, 805.)

Officer Gablers testimony was based on his 19 years in law enforcement and his professional and field training in the use of marijuana, classes he had taken on recognizing people under the influence of marijuana, and his numerous contacts with people driving under the influence of marijuana. He was thus duly qualified as an expert. (Evid. Code, 720.) His opinion was not objectionable merely because it addressed the ultimate issue in the case. (Evid. Code, 805; People v. Olguin (1994) 31 Cal.App.4th 1355, 1371.)

The minor, citing Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1017, replies that courts ordinarily do not consider expert testimony to the extent that it constitutes a conclusion of law. But the question whether the minor was under the influence of marijuana was one of fact, not law. The prosecutor argued that the officer could opine that the minor was under the influence for purposes of 23152, which arguably represents a conclusion of law, but the officer did not venture beyond the factual issue. People v. Nunn (1996) 50 Cal.App.4th 1357, 1365, on which defendant relies, is distinguishable because it applied Penal Code section 29, which provides that an expert shall not testify as to certain specified facts.

In determining whether to admit expert testimony, the trial court has broad discretion, and we may not interfere with that discretion unless it is clearly abused. [Citation.] (People v. Bui (2001) 86 Cal.App.4th 1187, 1196.) Admission of Officer Gablers opinion was not an abuse of discretion.

Because we have rejected both of the minors evidentiary contentions, we also reject his argument that admission of the evidence rendered his trial fundamentally unfair. Because the toxicologists opinion was properly admitted, there was sufficient reliable scientific evidence linking observed signs or symptoms of marijuana influence to appreciable safe-driving impairment.

Disposition

The judgment is affirmed.

DAVIS , J.

We concur:

BLEASE , Acting P.J.

BUTZ , J.

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