(Super. Ct. No. CRF080336)
The opinion of the court was delivered by: Mauro , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Shannon Sterrett and her boyfriend, Kevin Bair, were traveling in a pickup truck through downtown Woodland when the truck drove up on a sidewalk and hit a tree. Both had a blood alcohol content of at least .20 percent, both were ejected in the crash, and nobody saw who had been driving. Bair was killed in the accident. A jury convicted defendant of gross vehicular manslaughter while intoxicated.
Defendant contends on appeal that the trial court erred when it (1) excluded evidence that Bair previously drove defendant's car while intoxicated, (2) allowed Officer Darrell Nishimi to give expert testimony on accident reconstruction without first determining that he was qualified, and (3) denied probation based on defendant's continued assertion that she was not the driver.
We conclude (1) the trial court did not abuse its discretion in excluding evidence that Bair previously drove defendant's car while intoxicated, because Bair's prior conduct did not show a fact admissible under Evidence Code section 1101, subdivision (b),*fn1 and defendant does not challenge the trial court's exclusion of the evidence under section 352; (2) the trial court did not abuse its discretion in allowing Officer Nishimi to give expert opinion, because defendant did not timely object or move to strike the officer's testimony and did not establish that Officer Nishimi was not qualified; and (3) the trial court had other reasons for denying probation, including defendant's repeated violations arising from her alcohol use, and it is not reasonably probable that the trial court would have granted probation even if it had not considered defendant's denial that she was the driver.
We will affirm the judgment.
After defendant finished her work shift in Davis at 6:00 p.m. on November 24, 2006, she returned to her apartment in Woodland. She was driving her grandparents' gray 1991 Ford F-250 pickup truck. Bair, her boyfriend of about three months, was already at her apartment when she arrived home. Bair had been drinking beer.
Defendant convinced Bair to go out with her. She drove Bair in her grandparents' truck to Kenney's Bar and Grill in Woodland (the bar), arriving there about 8:00 p.m. Defendant parked the truck at the Olive Tree Plaza parking lot. Defendant gave the truck keys to Bair because her pants pockets were small.
Defendant said she had four drinks at the bar and Bair may have had three beers. Diana Villarreal, Sheri Mojica and Heidi Delfin were also at the bar that evening. They said defendant appeared very drunk, slurred her words, and had trouble walking and sitting on the bar stool. Mojica and Delfin saw what appeared to be vomit on defendant's shirt.
Brent Guam was walking across the Olive Tree Plaza parking lot when he saw a man and a woman sitting in a gray Ford pickup truck. The truck's engine was running and its headlights were on. The driver-side window was rolled down. Guam heard the man and woman arguing. Guam saw the woman in the driver's seat, with her arms on the steering wheel and her head resting on her forearms. The woman was crying. Guam heard the man yell, "how the fuck could you do this" and saw the man throw what could have been a cell phone at the dashboard. Guam did not see anyone drive the truck.
At about 10:45 p.m., Guam received a call on his cell phone from his roommate, reporting that there was an accident down the street. Guam and his friends walked to the accident scene about half a mile from the bar. According to Guam, the truck involved in the accident was the same one in which the couple had been arguing.
At about 10:35 p.m., Joseph Munoz, Jr., was stopped at the traffic signal at the intersection of East Street and Main Street in Woodland. Munoz saw a truck traveling north on East Street at a speed of 55 to 60 miles per hour. Munoz saw the truck pass a car, cross the intersection of East and Main, drive up on the curb and hit a tree. Munoz did not see the occupants of the truck before the truck struck the tree.
Paramedic Hope Youngblood, her partner Paul Otteson, and Youngblood's paramedic intern Marco Scachetti arrived at the collision scene at 10:40 p.m. Defendant was unconscious but came around slowly. Defendant was very confused at first and then became combative.
Defendant stated more than once that she had been driving the truck. At the accident scene, Youngblood asked defendant what happened and defendant responded, "Oh, my God. I hit a tree. Oh, my God. I wrecked the truck." In the ambulance, Youngblood again asked defendant what happened and defendant repeated the statement that she had wrecked the truck. According to Youngblood, defendant described going around a vehicle that had stopped in front of the truck, speeding up, losing control of the truck, and hitting a tree.
Scachetti likewise testified that defendant admitted she had been driving. Scachetti recalled that when he was putting defendant in the ambulance, defendant said "[O]h, my God. Did I kill him? Is he dead?" Defense counsel introduced evidence, through his private investigator James Peoples, that during a January 2009 interview Scachetti could not remember who told him that defendant was the driver. However, Scachetti testified that at the time of the January 2009 interview, he had not reviewed his patient care report for the November 24, 2006, incident.
Youngblood testified that defendant was completely alert and did not appear confused when defendant admitted that she drove the truck. On cross-examination, however, Youngblood testified that defendant kept repeating her statements and was "altered," "combative" and hysterical during the trip to the hospital. Scachetti similarly testified that defendant was hysterical and repeated questions over and over again. Youngblood admitted that making repetitive statements is a symptom of a concussion.
The Woodland Police Department asked the Multidisciplinary Accident Investigation Team (MAIT) to determine the identity of the driver who caused the collision. MAIT performs accident reconstruction and investigates complex vehicle collisions that require in-depth analysis or speed calculations. Officer Nishimi, a state-certified traffic accident reconstruction specialist, was assigned primary investigative duties for MAIT's investigation of the November 24 collision.
According to Officer Nishimi, the truck went up on the sidewalk on East Street, the truck's passenger-side bumper hit a speed limit sign on the sidewalk, and the front passenger side of the truck hit a large tree. When the truck hit the tree, the truck was crushed rearward. The truck then rotated in a clockwise direction as it travelled up the tree, uprooting it. The truck rolled over approximately 180 degrees and continued moving in a clockwise direction until its right tire struck the curb and the truck came to a rest on the roadway, approximately 70 feet from where the large tree originally stood. The force of the impact caused the truck's cab to separate from the frame with the exception of one of the six body-to-frame mounts. The truck cab sat upright, with the back of the cab touching the roadway. The truck bed lay upside down on the roadway.
Officer Nishimi opined that the truck was traveling at a speed of at least 50 miles per hour when it collided with the tree. The posted speed limit for the location where the collision occurred was 35 miles per hour.
The impact with the tree caused significant damage to the front, passenger side of the truck. The impact pushed the passenger side of the dashboard toward the rear of the cab. The passenger-side door suffered significant rearward crushing, causing the door to bow out from the vehicle and crumple in toward the rear of the truck. The passenger-side window was shattered. ...