Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County, Super. Ct. No. 1086178. Ricardo Cordova, Judge.
Gordon B. Scott, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Harry Joseph Colombo and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Levy, J.
INTRODUCTION
On August 14, 2004, appellant Marina Yvette Pulido was driving a car on a public street. Her husband, Mike Pulido, Sr., was riding on the car’s hood. Mike lost his balance and fell onto the street, sustaining a fatal brain injury.
Numerous members of the Pulido family testified. To avoid confusion, Marina Pulido will be referenced as appellant. Mike Pulido, Sr., will be referenced as Mike. Their son, Mike Pulido, Jr., will be referenced as Junior. Their daughter, Sandra Pulido, will be referenced as Sandra.
Appellant was convicted after jury trial of misdemeanor manslaughter without gross negligence as a lesser included offense to the crime of vehicular manslaughter with gross negligence, as charged in count II of the information. (Pen. Code, § 192, subd. (c)(2).) She was acquitted of voluntary manslaughter and assault with a deadly weapon, as charged in counts I and III of the information. Appellant was placed on court probation for 36 months and ordered to serve 90 days in jail as a condition of probation.
Unless otherwise specified, all statutory references are to the Penal Code.
Although the jury was instructed on self-defense, appellant argues that the trial court erred by failing to instruct, sua sponte, on the related defense of lawfully resisting the commission of a public offense. (§ 692.) Alternatively, she argues that defense counsel was deficient because he did not request instruction on this defense. Appellant also challenges admission of expert testimony that zero miles per hour is the safe speed to drive a vehicle when a person is on the hood. None of appellant’s arguments are convincing; we will affirm.
FACTS
I. Prosecution Evidence.
On the morning of August 14, Mary Dominguez saw Mike riding his bicycle on the street in front of her home; appellant was following Mike in her vehicle. Appellant shouted profanity at Mike and said that she was tired of his infidelity. Appellant “cut him off,” knocking Mike off his bike and causing him to fall to the ground. Mary’s daughter, Dina, testified that she heard her mother yelling, “Dina, come here. Marina just hit Mikey.” Mike picked up his bicycle and went into the home of his sister, Irene Carrillo.
Carrillo and Dina both testified that Mike used methamphetamine. Dina testified that appellant repeatedly accused her of having an affair with Mike; Dina denied this accusation.
Crystal Madrigal testified that appellant told her that she had been waiting in her car on the street where Mike’s girlfriend, named “Joy,” lived. At approximately 8:00 a.m., appellant saw Mike riding his bicycle. Appellant drove up to Mike and saw a “hickey” on his neck. Mike pedaled away from her. She followed him, “telling him stuff.” She said that she was going to take his clothes to his mother’s house and he said, “[G]o ahead.” Appellant unintentionally knocked Mike off his bicycle; she only meant to “block him in” because she wanted to talk to him and he was ignoring her.
Madrigal also testified that on prior occasions she saw injuries on Mike, such as scratches across his cheeks, that appellant inflicted. Madrigal testified that on an unspecified occasion appellant had bruises on her arms. Appellant told Madrigal that Mike caused the bruises when he grabbed her arms to prevent her from hitting him. Appellant told Madrigal that on an unspecified occasion she hit Mike over the head with a crowbar to separate Mike and Junior, who were fighting.
Shortly before 11:30 a.m. on that same day, members of the Pulido family prepared to attend a family gathering. Sandra, her boyfriend Ryan Garibay, and two others got into Sandra’s car. Appellant and Junior got into appellant’s car. Both cars were parked in the driveway of the Pulido residence.
Junior testified that while appellant and he were getting into the car, Mike approached them. Mike did not want them to leave without him. When appellant backed out of the driveway, Mike hit the car with his fist and said they were not going anywhere unless they left with him on the hood. Mike jumped on the hood of the car. Junior asked appellant if she wanted him to remove Mike from the hood. She replied, “[D]o what [you] want.” Junior got out of the car. Mike said that if Junior attempted to remove him from the car, he would hit him. Junior got back into the car because he did not “want to get hit.” Junior saw Mike hit appellant on prior occasions and saw appellant hit Mike “[d]uring the same time that he was hitting her.”
Turlock Police Officer Steve Crawford testified that Junior did not tell him that Mike hit the car’s hood with his fist or that Mike threatened to hit anyone.
Junior testified that appellant started driving the car with Mike on the hood. Appellant was upset and crying. Appellant called the police from her cell phone while she was driving. She told Junior that she was driving to the police station. Junior estimated the car’s speed as 25 to 30 miles per hour. Junior testified that he wasn’t afraid for Mike’s safety because Mike had jumped on the car’s hood “a lot of times” to stop them from going places. Junior acknowledged that this was the first time appellant drove the car when Mike was on the hood. The car slowed down and Mike put his arms out and said, “Wee.” Mike started sliding off the hood. Mike tried to regain his balance but fell to the ground. Junior saw a methamphetamine pipe fall out of Mike’s pocket. Junior smashed the pipe. Earlier that day, he had seen his father smoking methamphetamine in the garage. It appeared to Junior that Mike was under the influence of methamphetamine.
Sandra testified that after appellant and Junior got into appellant’s car, Mike approached appellant’s car. Sandra rolled up the windows and locked the doors of her car so that Mike would not attempt to get inside. She was “[a] little” afraid of Mike because he was walking like he was angry, with his fists clenched and a forceful step. Sandra backed her car of the driveway. As appellant backed her car out of the driveway, Mike jumped on the hood. Although Sandra saw Mike’s lips moving, she did not hear him say anything to appellant. Both cars began traveling on Julian Street. Sandra’s car was traveling behind appellant’s car. Mike was on the hood of appellant’s car. Sandra saw brake lights activate two times. She heard a skidding noise and then saw her father rolling on the street. She did not know how fast appellant’s car was traveling but she remembered telling police officers that it was traveling 30 miles per hour. Also, she told the officers that on the day before this incident Mike refused to allow appellant to leave the family home. Mike attempted to prevent appellant and his children from leaving the house “[t]oo many [times] to count.” During altercations, Mike pushed and shoved appellant.
Garibay testified that Mike approached appellant’s car as they were leaving. Prior to getting on the hood of the car, Mike hit it with his fist and told appellant to “get out of the car or I’m going to beat your ass.” Garibay testified that appellant’s car was traveling around 30 miles per hour before appellant applied the brakes and Mike fell off the car. In April 2004, Garibay saw bruises on appellant’s neck.
Crawford testified that Garibay did not tell him that Mike hit the car’s hood with his fist. Garibay said that appellant’s car was traveling about 15 to 20 miles per hour.
Jim Trousdale testified that appellant’s car was traveling about 45 to 50 miles per hour in an easterly direction on Julian Street. Mike was sitting on the hood of the car facing forward. Appellant braked and Mike fell backward, hitting his head on the windshield. Mike fell off the car and hit his head on the pavement.
Nathan Bernhardt was sitting in his truck on Julian Street. He saw appellant’s car traveling toward his truck. Mike was lying on the car’s hood facing the windshield. Bernhardt estimated the car’s rate of speed as 40 to 45 miles per hour. The car made a “nose dive” as if the brakes had been applied. Mike’s head hit the windshield. The brakes were released and then applied a second time. Mike fell off the car onto the ground and rolled three times. Mike did not “raise his hands and [say] ‘whee.’”
Jess Rodriguez testified that he saw appellant’s car traveling about 30 to 40 miles per hour with “someone” on the hood. Rodriguez saw the car’s brake lights come on a couple of times.
Turlock Police Officer Steve Crawford arrived at the scene around 11:30 a.m. Mike was lying in the road on his side; appellant was on her knees trying to stabilize his head. Appellant told Crawford that they were leaving for a family gathering when Mike walked up. Appellant did not want Mike to go to the gathering with them. Mike jumped onto the hood of the car. She tried to call the police but the line was busy so she decided to drive to the police station. She was driving about 30 to 35 miles per hour. Mike said, “[W]hee, this is fun.” She began to slow down. Mike let go with both hands and began to slide off the hood. She slammed on the brakes so that she wouldn’t run over him. He fell off the hood.
Appellant told Crawford that on at least three prior occasions appellant had climbed onto the hood of her car to keep her from driving away. Appellant told Crawford that if she let Mike get into the car on this occasion, “he would have … gone to the family reunion and … acted like nothing happened, basically been an embarrassment to the family with a hickey on his neck walking around at the family reunion.”
Olson was designated as an expert witness in accident reconstruction. Based on his measurements of skid marks left on the pavement, he estimated that appellant’s car was traveling at a minimum speed of 30.2 miles per hour. In response to a question what was a safe speed to drive when someone was on the hood of a car, Olson testified, “Zero [miles per hour].”
Bill Posey, a forensic toxicologist, testified that at the time of his death, Mike’s blood contained .59 milligrams per liter of methamphetamine. This amount is “a potentially toxic range, not necessarily fatal, but a range that you typically would see [in] an individual who abuses the drug.” Violent, paranoid behavior is “associated with methamphetamine use.”
II. Defense evidence.
Appellant testified that Mike began using methamphetamine after he was fired from his job in 1994. After Mike “got into drugs really bad,” he began physically abusing her and began seeing other women. Mike climbed on the hood of her car two times prior to the fatal incident to prevent her from going places. She did not drive with him on the hood on those occasions.
On the morning of August 14, she drove around looking for appellant. She saw him on his bicycle and asked him why he did not come home. Mike had a “hickey” on his neck. They exchanged accusations of infidelity. When Mike rode away, the right front tire of her car collided with a bicycle tire. She did not try to hit Mike’s bicycle.
Appellant drove home, gathered Mike’s clothes and took the clothing to her mother-in-law’s residence. Mike was there. He told her to wait for him at their house because he wanted to go to the family gathering with her.
Appellant left her mother-in-law’s residence and drove home. Mike arrived just as she and other family members were leaving for the family gathering. Mike was angry because she did not wait for him. He struck one of the side windows of her car and said that she “wasn’t going to fucking leave anywhere.” As appellant backed out of the driveway Mike jumped onto the car’s hood. When Junior considered removing Mike from the hood, Mike warned Junior, “You get me off, I’ll fuck your ass up too.” Appellant told Junior to get into the car. Appellant backed out of the driveway and drove down the street with Mike on the car’s hood because “I didn’t want him to hit me. He’s pulled me out of my car before. I didn’t want him and my son to fight.”
While appellant was driving with Mike on the hood, she attempted to call the police but the line was busy. Mike clung to the windshield wipers. Mike let go and said, “Whee, this is fun.” Mike started to slide off the hood and she attempted to prevent the car from hitting him by slamming on her brakes. Mike fell off the car onto the ground.
Appellant testified that Crawford repeatedly asked her how fast she was driving. She distractedly responded to his query whether she was traveling “30, 35” miles per hour, “I guess. I don’t know. I guess.” Appellant acknowledged that driving 30 miles per hour with Mike on the hood seemed fast, but she did not think that Mike would let go of the car. She also acknowledged that she had more than one opportunity to pull over and let Mike get off the hood. Appellant testified that she did not tell Crawford that Mike threatened her or hit the car’s windows because she “was protecting [Mike].” She told Crawford “about [the] prior domestic violence in [her] life.”
Robert Rase testified that after Mike fell onto the ground, appellant held Mike’s head and said, “Mike, why did you do that? That was stupid. Why did you do that?” Rase saw a crack pipe in Mike’s pocket.
Tiffany Jantz is a neighbor. On one occasion, she heard appellant yelling, “Just stop. Mike, please stop.” She went into their house and saw Mike choking and punching appellant. Earlier that day, Jantz smoked methamphetamine with Mike. On a different occasion, Jantz saw Mike throw rocks at appellant.
Misty Roberts smoked methamphetamine from a pipe with Mike on numerous occasions from 2002 to 2004 in Mike’s garage.
DISCUSSION
I. The trial court did not have a sua sponte obligation to instruct on the defense of lawful resistance to the commission of a public offense.
The jury was instructed on the law of self-defense. Judicial Council of California Criminal Jury Instructions (2006), CALCRIM No. 3470 was given. In relevant part, this instruction provides:
“The defendant is not guilty of Voluntary Manslaughter if she used force against the other person in lawful self-defense or defense of another. The defendant acted in lawful self-defense or defense of another if:
“1. The defendant reasonably believed that she or someone else was in imminent danger of suffering bodily injury or was in imminent danger of being touched unlawfully;
“2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger;
“AND
“3. The defendant used no more force than was reasonably necessary to defend against that danger.
“Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of violence to herself or someone else. Defendant’s belief must have been reasonable and she must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary is the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful self-defense or defense of another.” (Emphasis added.)
Appellant contends that the instructions on self-defense were inadequate, arguing that the trial court had a sua sponte duty to instruct that she had the right to resist Mike’s commission of the crimes of assault and false imprisonment, even if she was not in any imminent danger.
“An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.) “False imprisonment is the unlawful violation of the personal liberty of another.” (§ 236.)
In formulating this argument, appellant relies on section 692 and on this court’s decision in People v. Myers (1998) 61 Cal.App.4th 328 (Myers).
Myers found CALJIC No. 5.30 deficient because it failed to specify that the defendant may defend himself against an attempt to commit an offensive touching (i.e. an assault), even though the touching inflicts no bodily harm. (Id. at p. 335.)
Section 692 codifies a variant on self-defense, the defense of resistance to the commission of a public offense. Enacted in 1872 and never amended, this section provides: “Lawful resistance to the commission of a public offense may be made: [¶] 1. By the party about to be injured; [¶] 2. By other parties.” (§ 692; See also Civ. Code, § 50.) Section 692 applies to the crime of false imprisonment. In People v. Denby (1985) 108 Cal. 54, the California Supreme Court found the trial court erred by refusing to instruct that the defendant was justified in resisting an unlawful arrest by a private citizen or attempting to free himself from the hold of the citizen. And in People v. Muse (1961) 196 Cal.App.2d 662, defendant unsuccessfully raised self-defense and the defense of prevention of a felony, specifically the crime of false imprisonment, to a charged assault with a deadly weapon. Although the appellant court affirmed the judgment, concluding that there was sufficient evidence for the jury to reject these defenses, it assumed the legal viability of the defense of prevention of a felony.
Civil Code section 50 provides, “Any necessary force may be used to protect from wrongful injury the person or property of oneself, or of a wife, husband, child, parent, or other relative, or member of one’s family, or of a ward, servant, master, or guest.”
After examining the record in this case, we conclude that appellant’s instructional claim cannot succeed.
First, the trial court did not have a sua sponte obligation to instruct on the defense of lawful right to resist the crime of assault because this theory is adequately covered by the self-defense instructions that were given to the jury. CALCRIM No. 3470 corrected the deficiency in CALJIC No. 5.30 that was identified in Myers. As given, CALCRIM No. 3470 permitted the jury to find that appellant acted in lawful self-defense if she reasonably believed that she or someone else was “in imminent danger of being touched unlawfully.” Thus, the instruction does not require the defendant to fear that great bodily injury is about to be inflicted upon her person or the person of another. Fear of an unlawful touching is sufficient. Therefore, CALCRIM No. 3470 includes resistance to the crime of assault within the ambit of self-defense.
This case is similar in some respects to People v. Haeussler (1952) 109 Cal.App.2d 363, in which defendant claimed that he struck or pushed the victim because the victim was waving his arms and he was afraid that the victim was going to strike him. The appellate court concluded that it was proper to instruct on self-defense. Similarly here, appellant’s defense that she drove away from her house with Mike on the hood because she feared that Mike would hit her or Junior if she did not flee (i.e. that Mike assaulted her) was properly considered by the jury in the context of self-defense. The instructions given to the jury on self-defense adequately instructed the jury on the legal principles necessary to fairly and fully consider appellant’s contention that she was resisting an assault when she drove with appellant on the hood of her vehicle.
Second, the trial court did not have a sua sponte obligation to instruct on the defense of lawful right to resist the crime of false imprisonment because this theory was not presented by defense counsel at trial and it was not reasonably apparent from the evidence as constituting a separate defense that is distinct and severable from the asserted self-defense theory. The trial court has a sua sponte duty to instruct the jury on general principles of law that are relevant to the issues of the case. (People v. Silvey (1997) 58 Cal.App.4th 1320, 1327.) However, the trial court does not have an obligation to tease obscure variants of established defenses from the evidence and instruct sua sponte on arcane theories. “There is no duty on the trial court to dissect the evidence in an effort to develop some arcane, remote or nebulous theory of the evidence on which to instruct. The duty of the trial court involves percipience -- not omniscience.” (People v. Cram (1970) 12 Cal.App.3d 37, 41.)
At no point did defense counsel argue that appellant and Junior were falsely imprisoned in the car and that appellant was lawfully resisting this false imprisonment when she drove with Mike on the hood. Rather, defense counsel argued that appellant and Junior were in imminent danger of being beaten if they did not leave and so appellant drove the car for this reason. She telephoned the police and was heading toward a police station. This defense is supported by the testimony of appellant and Junior. They testified that they feared Mike would hit them; Mike hit the car with his fist and threatened to beat them. Appellant testified that she drove because “I didn’t want [Mike] to hit me. He’s pulled me out of my car before. I didn’t want him and my son to fight.” Testimony was presented about prior incidents of domestic abuse and about the violence and paranoia that can accompany methamphetamine use. The theory that Mike falsely imprisoned appellant and Junior in the car and that appellant drove the car as an act of resistance to this crime is a creative idea. However, it is not a defense that is “closely and openly connected to the facts before the court [or] is necessary for the jury’s understanding of the case.” (People v. Montoya (1994) 7 Cal.4th 1027, 1047.)
For these reasons, we hold that the trial court did not have a sua sponte obligation to instruct on the defense of resistance to the commission of a public offense and that the instructional omission did not infringe any of appellant’s constitutional rights or protections.
II. Appellant’s contention that defense counsel was ineffective because he did not request instruction on the defense of lawful resistance to commission of a public offense fails on direct appeal and must be pursued in a habeas corpus proceeding.
Next, appellant contends that if the court did not have a sua sponte duty to instruct on the defense of lawful resistance to commission of a public offense, then defense counsel’s failure to request such an instruction constitutes ineffective assistance of counsel. As we will explain, this claim fails on direct appeal and is properly pursued on habeas corpus. (People v. Pope (1979) 23 Cal.3d 412, 426-428 (Pope).)
Appellant bears the burden of establishing inadequate assistance of counsel. (Pope, supra, 23 Cal.3d at p. 425.) She is not entitled to trial without error. (People v. Perez (1978) 83 Cal.App.3d 718, 734.) Rather, to prevail she must show both deficient performance and a reasonable probability of a more favorable outcome. (People v. Duncan (1991) 53 Cal.3d 955, 966 (Duncan).) If a defendant meets this burden, the appellate court must look to see if the record contains any explanation for the challenged area of representation, such as an informed tactical choice. (Pope, supra, 23 Cal.3d at p. 425.) The “review of counsel’s performance is to be highly deferential.... ‘… Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.”’” (Duncan, supra, 53 Cal.3d at p. 966.)
To resolve an ineffective assistance claim on direct appeal, the appellate record must clearly demonstrate that the alleged error was a “mistake beyond the range of reasonable competence.” (People v. Montiel (1993) 5 Cal.4th 877, 911.) When the record does not illuminate the basis for the challenged act or omission and it is not necessarily an incompetent mistake, an ineffective assistance claim is more appropriately made in a petition for habeas corpus. Reviewing courts are not to become engaged “‘in the perilous process of second-guessing.’” (Pope, supra, 23 Cal.3d at p. 426.) They will not run the risk of unnecessarily ordering reversal in a case “where there were, in fact, good reasons for the aspect of counsel’s representation under attack. Indeed, such reasons might lead a new defense counsel on retrial to do exactly what the original counsel did, making manifest the waste of judicial resources caused by reversal on an incomplete record.” (Ibid.)
After carefully reviewing the record in this case, we conclude that it is insufficient to allow us to determine whether defense counsel’s failure to request instruction on the defense of resistance to a public offense was a conscious tactical choice. There are countless ways to provide effective assistance in a case and even the best criminal defense attorneys would not defend a particular client in the same way. (Duncan, supra, 53 Cal.3d at p. 966.) Here, defense counsel’s failure to present the defense of resistance to commission of a public offense could well have been sound trial strategy, as demonstrated by the favorable verdict he obtained for appellant in light of the entirety of the evidence -- misdemeanor manslaughter without gross negligence as a lesser included offense to the vehicular manslaughter charged in count II and acquittal on counts I and III. We believe that the most powerful line of defense was that appellant feared that Mike would beat her or Junior, as Mike was angry and under the influence of methamphetamine; consequently, appellant fled in her car toward a police station while Mike was on the hood of the car. Defense counsel ably argued this defense theory and achieved a very favorable verdict. Competent counsel reasonably could have determined that the defense of resistance to commission a public offense was weak and unlikely to be accepted by the jury. On the silent record before us, we will not assume defense counsel’s failure to request instruction on the defense of lawful resistance to commission of a public offense rendered his assistance ineffective. (People v. Diaz (1992) 3 Cal.4th 495, 566.) Thus, appellant failed to meet her burden of establishing ineffective assistance on direct appeal; any further protest in this regard must be raised on habeas corpus. (Ibid; People v. Cummings (1993) 4 Cal.4th 1233, 1342.)
III. Admission of Olson’s opinion that there was no safe speed to drive a car when a person is on the hood was proper.
A. Facts
i. In limine proceedings
Appellant motioned in limine to exclude expert “testimony that zero miles per hour is the proper speed limit or a violation of the basic speed law when someone is on the hood of a car.” Defense counsel argued that this testimony “makes it strict liability and that [it] is illegal in criminal law.” The court denied the motion because “clearly Evidence Code [section] 805 would allow that testimony.”
Next, defense counsel motioned to exclude expert testimony opining whether appellant “violated any Penal Code or Vehicle Code statute, misdemeanor or infraction.” The court ruled that “Nonexpert witnesses will not be allowed to testify concerning any violation of law. They can establish what the speed limit was at that time and whatever testimony they have concerning the speed of the vehicle in question.” Defense counsel replied, “That still doesn’t allow the expert to conclude that a Penal Code or Vehicle Code was violated. Isn’t that a jury question?” The court responded, “No, I suppose it doesn’t. That’s something for the jury to decide.”
The prosecutor argued that the expert should be permitted to give his opinion whether there was a legal violation based on a hypothetical. The court gave the prosecutor an opportunity to present authorities supporting this argument. There is no indication in the record that the prosecutor submitted any authorities.
ii. Trial proceedings
Immediately after Detective Olson testified that appellant could have been traveling faster than 30 miles per hour, the prosecutor asked, “In your opinion, what is a safe speed when someone is on the hood of your car?” Olson responded, “Zero.”
Defense counsel objected and motioned for a mistrial on the ground that the court had ruled in limine that such testimony was inadmissible because it was a matter for the jury to determine. The court took the issue under submission to examine the transcript of the in limine hearing. It directed the jury not to consider “that answer at this time.”
On the following day, defense counsel apologized to the court because “… I was incorrect when I represented to the Court yesterday that you had granted that [in limine] motion.” Then, he argued that testimony on this issue should be excluded because “it is an ultimate issue in the case.” Furthermore, Olson’s testimony “was so prejudicial to [appellant] yesterday that it removes the issue from the jury’s consideration.”
The court overruled the objection and denied the mistrial motion. It reasoned that Evidence Code section 805 does not prohibit an expert from offering an opinion concerning an ultimate issue. Olson’s opinion about the safe speed to drive with a person on the hood involves a factual question that “is something beyond the common knowledge of individuals.” There “could [be] 12 different opinions from the jury as to what they believe is a safe speed to be driving with someone on the hood.” The court concluded that “this is more of a factual issue rather than a legal issue.” Furthermore, the defense “can still argue imminent peril and issues of fear in terms of excusing that behavior.” Finally, Evidence Code section 352 does not require exclusion of this testimony.
The court instructed the jury that it had overruled the defense’s objection to the last question asked of Olson and that it “can consider that statement that was made by Detective Olson at the end of the day yesterday.”
Thereafter, Olson testified that he concluded that zero miles per hour is a safe speed limit when someone is on the hood of a vehicle because “if you check any manufacturer’s recommendation concerning someone other than being in the passenger’s compartment in proper restraints, they highly recommend not doing that.” Olson opined that it is unsafe to drive a vehicle when a person is on the hood. His opinion is based on the manufacturer’s recommendations and other safety issues, such as “visual obscurements.”
B. The subject matter was an appropriate subject for expert testimony and did not invade the province of the jury.
Appellant argues that the question whether there is a safe speed to drive a car when a person is on the vehicle’s hood is a matter within common sense and logic and therefore is not appropriate for expert testimony. Furthermore, he contends that Olson’s testimony on this subject invaded the province of the jury. We disagree.
“We apply an abuse of discretion standard in reviewing a trial court’s decision to admit the testimony of an expert.” (People v. Prince (2007) 40 Cal.4th 1179, 1222 (Prince).) In Prince, our Supreme Court recently explained that although it is a general precept that courts ordinarily “should not admit expert opinion testimony on topics so common that persons of ‘“ordinary education could reach a conclusion as intelligently as the witness”’ [citations], experts may testify even when jurors are not ‘wholly ignorant’ about the subject of the testimony. [Citation.]” (Ibid.) Prince observed that, “‘[I]f that [total ignorance] were the test, little expert opinion testimony would ever be heard.’ [Citation.]” (Ibid.) Pursuant to Evidence Code section 801, “the pertinent question is whether, even if jurors have some knowledge of the subject matter, expert opinion testimony would assist the jury. [Citations.]” (Ibid.)
In this case, notwithstanding the jurors’ general experience driving and riding in automobiles, it may aid them to receive the opinion of a person with extensive training in accident reconstruction and traffic investigation on the question whether there is a safe speed to drive a vehicle with a person on the hood. We agree with the trial court that “expert testimony does give the jury knowledge that they would not otherwise have, because I think we could have 12 different opinions from the jury as to what they believe is a safe speed to be driving with someone on the hood.”
Furthermore, admission of Olson’s opinion on this subject did not invade the province of the jurors. Olson’s opinion is not equivalent to a legal conclusion that appellant drove recklessly. The trial court correctly recognized that admission of Olson’s testimony did not foreclose appellant from arguing that her actions were justified because she was in imminent peril and was acting in self-defense. Olson’s testimony is not analogous to a gang expert’s opinion regarding the subjective knowledge and intent of individual gang members. (See, e.g., People v. Killebrew (2002) 103 Cal.App.4th 644, 651-659.) We agree with the trial court that Olson’s testimony on this topic does not constitute a legal conclusion in the guise of an expert opinion.
For these reasons, we conclude that admission of the challenged opinion testimony was not an abuse of discretion.
C. Appellant waived appellate review of her challenge to this testimony as being outside Olson’s area of expertise because objection was not interposed on this ground during trial.
Appellant also argues that Olson’s testimony that “zero” miles per hour is the safe speed to drive when a person is on the hood of the car is admissible because it is outside Olson’s proffered area of expertise. We summarily reject this contention because objection was not interposed on this ground below. It is a well established principle of jurisprudence that only points that were raised and ruled on in the trial court are considered on appeal. (Evid. Code, § 353; People v. Clark (1993) 5 Cal.4th 950, 988, fn. 13.) To preserve an evidentiary issue for appellate review, timely objection must have been interposed on the same ground during trial. (People v. Hill (1992) 3 Cal.4th 959, 989.) Although defense counsel objected to admission of Olson’s opinion concerning whether there was a safe speed to drive a vehicle with a person on the hood, he did so on different grounds. Defense counsel did not assert that this subject was outside Olson’s area of expertise; he did not argue that Olson’s expertise in the area of accident reconstruction failed to qualify him to offer opinions about driver safety. Since this point was not raised and ruled upon during trial, the issue was not preserved for appellate review. (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1014-1015.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Vartabedian, Acting P.J., Wiseman, J.
Unless otherwise specified, all dates refer to 2004.
Turlock Police Detective Lance Olson testified that when he spoke with Junior about the incident, Junior did not say that Mike hit the car with his fist or that Mike threatened appellant. Also, Junior did not tell him that Mike said that he would hit Junior if he did not get back into the car. Junior said that appellant was not afraid of Mike; it was Mike who was afraid of appellant.