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                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,

         Plaintiff and Respondent,                                                    F066125

                   v.                                                    (Super. Ct. No. CRF37647)

CALEB DANIEL MANTZOURANIS,                                                        OPINION
SR.,

         Defendant and Appellant.



                                                   THE COURT
         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.
                                                        -ooOoo-

        Before Levy, Acting P.J., Cornell, J., and Franson, J.
       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 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), 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

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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.

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       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

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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[.]”




                                              5
       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.”

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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



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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]

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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



                                              9
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.)1


1      The case of People v. Coleman, supra, 38 Cal.3d 69 was disapproved on another
point in People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32.


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          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

                                                11
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

                                             12
California and United States Constitutions. (See Cal. Const. art. I, § 7; U.S. Const. 5th &
14th Amends.) This contention too is without merit.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


2      Appellant did not make this constitutional argument in the trial court. We assume
without deciding that appellant’s constitutional claims are cognizable on this appeal.
(See People v. Thornton (2007) 41 Cal.4th 391, 443 [“‘[a] party cannot argue the court
erred in failing to conduct an analysis it was not asked to conduct’” but a constitutional
claim is not forfeited if “it merely asserts that the trial court’s ruling, insofar as wrong on
grounds actually presented to that court, had the additional legal consequence of violating
the Constitution”].)


                                              13
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.




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