People v. Dellinger

¶1Concurring and Dissenting.

¶2I

¶3“If a witness is testifying as an expert, his [or her] testimony in the form of an opinion is limited to such an opinion as is: ... [fj (b) Based on matter . . . perceived by or personally known to the witness or made known to him 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 his [or her] testimony relates, ...” (Evid. Code, § 801, italics added.) “Frequently, a controlled experiment may be conducted in an effort to have a particular circumstance of a case replicated. An expert may then testify about the results. Based on those results, the expert may further offer an opinion regarding how the actual circumstance of the case occurred. In such a situation, ‘[t]he relevancy of experimental evidence ordinarily depends upon a showing that the conditions of the experiment were substantially similar to those which gave rise to the issue on which the evidence is offered.’ [Citation.]” (People v. Guillebeau (1980) 107 Cal.App.3d 531, 550-551 [166 Cal.Rptr. 45].)

¶4The crux of Dr. Ward’s testimony concerned the experiment she conducted regarding the fall of an anthropomorphic dummy down the stairs. Even her verification of this experiment relied on data developed from the *304stairway experiment. In other words, her expert opinion was as good, or as poor, as the experiment. And her experiment and expert opinion were, in turn, crucial evidence as they caused the prosecution’s pathologist to conclude, contrary to his original opinion, the fall down the stairs was not accidental.

¶5“Admissibility of experimental evidence depends upon proof of the following foundational items: (1) The experiment must be relevant (Evid. Code, §§ 210, 351); (2) the experiment must have been conducted under substantially similar conditions as those of the actual occurrence [citation]; and (3) the evidence of the experiment will not consume undue time, confuse the issues or mislead the jury [citation]. [1] In the case of experimental evidence, the preliminary fact (see Evid. Code, § 403, subd. (a)(1)) necessary to support its relevancy is that the experiment was conducted under the same or similar conditions as those existing when the accident took place. The standard that must be met in determining whether the proponent of the experiment has met the burden of proof of establishing the preliminary fact essential to the admissibility of the experimental evidence is whether the conditions were substantially identical, not absolutely identical. [Citation.]” (Culpepper v. Volkswagen of America, Inc. (1973) 33 Cal.App.3d 510, 521 [109 Cal.Rptr. 110]; see also Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 548-549 [138 Cal.Rptr. 705, 564 P.2d 857, 99 A.L.R.3d 158]; People v. Law (1974) 40 Cal.App.3d 69, 84 [114 Cal.Rptr. 708].) “[I]t is incumbent upon the trial judge to determine whether preliminary facts have been established, including the foundational material upon which an expert makes his [or her] assumptions. [Citation.]” (Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 659 [151 Cal.Rptr. 399].)

¶6Therefore, contrary to the majority’s reasoning, the fatal flaw with the evidence was not Dr. Ward’s lack of expertise or the field of biomechanics in general.1 Rather, it was the inability to recreate substantially similar conditions. Simply put, with no available witnesses to describe what actually *305happened to Jaclyn, there were entirely too many crucial variables to render any experiment “conducted under substantially similar conditions.”2

¶7In Andrews v. Barker Brothers Corp. (1968) 267 Cal.App.2d 530 [73 Cal.Rptr. 284], the plaintiff sued after a fall from a chair. The defendants attempted to show plaintiff’s contributory negligence by conducting an experiment which assumed the chair was sound and plaintiff tipped it in a certain way, causing the fall. The Court of Appeal recognized the fallacy of such an approach: “It was necessary to assume, in proving the experiment, that Andrews was negligent in his misuse of the chair in order to prove he was negligent, and it was therefore necessary to assume that the chair was sound, which would mean that Barker was free of negligence. If there had been evidence of those facts there would have been no need for expert testimony; no one could have doubted that Andrews was negligent, [f] To approve the admission of the testimony ... it would be necessary to expand the rules under which experimental evidence may be received so as to permit evidence of experiments when identity of conditions could only be made to appear by assuming the existence of material facts of which there was no evidence. This, of course, would completely destroy the usefulness of evidence of experiments.” (Id., at p. 538.)

¶8In a case factually similar to ours, Martin v. Angel City Baseball Assn. (1935) 3 Cal.App.2d 586 [40 P.2d 287], plaintiff sued after a fall down a stairway at a baseball stadium. The Court of Appeal upheld the trial court’s rejection of an experimental recreation of the occurrence: “During the trial appellant’s offer of evidence of experiments made by a witness in approaching and descending the stairway in the manner described by respondent was refused by the court, and of this appellant complains. While it is the general rule that experimental evidence is admissible if it substantially tends to establish the fact it is offered to prove, it is nevertheless discretionary with the trial court to limit the extent to which such evidence may be received; and it is the duty of the court to refuse its admission when it is doubtful whether it is likely to tend more to confusion than to justice or certainty. [Citations.] The results of experiments made by an individual chosen for *306the purpose to demonstrate bodily movements in walking or in approaching and descending a stairway are so likely in the nature of things to be what the mind of the individual suggests that it is extremely doubtful whether such personal experiments are safe as proof. Clearly there was no abuse of discretion in denying admission of such proof under the circumstances of the case.” (Id,., at p. 590.)

¶9. “ ‘[T]he weight to be given to the opinion of an expert depends on the reasons he [or she] assigns to support that opinion.’ [Citation]; [sz'c] its value ‘ “ ‘rests upon the material from which his [or her] opinion is fashioned and the reasoning by which he [or she] progresses from his [or her] material to his [or her] conclusion. . . [Citation.] Such an opinion is no better than the reasons given for it [citation], ...” (White v. State of California (1971) 21 Cal.App.3d 738, 759-760 [99 Cal.Rptr. 58]; see also Richard v. Scott (1978) 79 Cal.App.3d 57, 63-64 [144 Cal.Rptr. 672].) “An expert opinion must not be based upon speculative or conjectural data. [Citations.]” (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 338 [145 Cal.Rptr. 47].)

¶10“[T]he test on review is whether or not the trial court abused its discretion in ruling as to whether a proper foundation has been or could be laid.” (Id., at p. 339.) I agree the trial court abused its discretion and the evidence should not have been admitted. Because the required foundation could not be established, Dr. Ward’s evidence was inadmissible as a matter of law.

¶11The experiment was the fundamental basis for Dr. Ward’s expert opinion. And, as previously noted, Dr. Ward’s opinion caused the prosecution pathologist to change his opinion about the cause of death. Thus, the evidence as to the cause of death was infected by error; it necessarily follows a result more favorable to Dellinger is reasonably probable. For this reason I agree his conviction must be reversed. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)

¶12II

¶13The majority concludes the evidence of Dellinger’s cocaine use was inadmissible. I do not agree; therefore I do not join in that portion of the majority’s opinion.3

¶14“All relevant evidence is admissible unless there is a positive rule excluding it. [Citation.] Relevant evidence is that which has ‘any tendency in *307reason to prove or disprove any disputed fact that is of consequence . . . .’ [Citation.] The test of relevancy is whether the evidence tends, logically, naturally, or by reasonable inference to establish a material fact, not whether it conclusively proves it. [Citation.]” {People v. Yu (1983) 143 Cal.App.3d 358, 376 [191 Cal.Rptr. 859].) “ ‘[T]o be admissible, evidence need not absolutely confirm anything. It is axiomatic that its weight is for the jury. ’ [Citation.]” {People v. Peggese (1980) 102 Cal.App.3d 415, 420 [162 Cal.Rptr. 510].) “The trial court is vested with wide discretion in determining relevance. . . . [1|] Furthermore, the fact that this evidence involved another crime does not make it inadmissible per se. As a general rule evidence of uncharged offenses is inadmissible when offered merely to prove a defendant’s criminal disposition. [Citations.] [f] ‘It is settled that evidence of other crimes is ordinarily admissible despite the prejudicial effect where it tends to establish guilty knowledge, motive, intent or presence of a common design or plan.’ [Citations.]” {People v. Yu, supra, at p. 376.)

¶15Toxicological test results showed significant amounts of cocaine in Jaclyn’s blood, liver and stomach. In the prosecution pathologist’s expert opinion the toxic effects of cocaine were probably a contributing cause of death. Jaclyn’s mother denied using cocaine or ever giving the child narcotics, but testified Dellinger had used cocaine before they were married. They had been only married five months when Jaclyn died and, as far as she knew, he had stopped.

¶16As the majority opinion indicates, particularly in its discussion of CALJIC No. 17.01,4 the People pursued two theories of culpability at trial. One theory was Dellinger threw Jaclyn down the stairs; the other was Dellinger poisoned Jaclyn with cocaine.

¶17To prove the latter theory, it was relevant to show Dellinger was at least familiar with the drug. Granted, this prior usage did not “absolutely confirm anything.” Were this strictly a murder by poisoning case and prior narcotic usage the only evidence inculpating Dellinger, the evidence would clearly be insufficient. But the issue here is entirely different. Where poisoning is a contributing cause of death and thus properly a source of murder liability (see People v. Ross (1979) 92 Cal.App.3d 391, 401 [154 Cal.Rptr. 783]), *308it simply cannot be said evidence showing the defendant’s familiarity5 with the particular poison at issue is irrelevant and inadmissible as a matter of law. The determination of relevance lay within the sound discretion of the trial court. (People v. Yu, supra,143 Cal.App.3d 358, 376.) The evidence was relevant; the fact it may have shown the commission of another crime does not render it inadmissible on review. “Since the admission of uncharged offenses lies within the sound discretion of the trial court [citation], [I] cannot say the court in the instant case abused its discretion.” (Ibid..)6

¶18“ ‘The state of mind of a person is a fact to be proved like any other fact when it is relevant to an issue in the case; and when knowledge of a fact has important bearing upon the issues, evidence is admissible which relates to the question of the existence or nonexistence of such knowledge, [citations].’ [Citation.]” (People v. Manson (1976) 61 Cal.App.3d 102, 147 [132 Cal.Rptr. 265].)

¶19People v. Goodall (1982) 131 Cal.App.3d 129 [182 Cal.Rptr. 243], is instructive. Goodall was charged with narcotics offenses involving PCP. She objected to evidence about a prior incident during which she was present while another person attempted to pour PCP down a sink drain. “She urges such evidence would be insufficient to convict her of a crime .... That is not the point. It was not necessary to prove . . . [she] committed a crime . . . [citation.] Her presence at that scene was relevant to establish her familiarity with PCP, whether or not she committed a crime. [Citations.]” (Id., at p. 142.)

¶20It is much the same here. It was relevant to show Dellinger was familiar with one of the agents of death in the present case. However weak an inference of guilt this might permit, it was nonetheless relevant7 and its *309probative weight was for the jury to determine. (People v. Peggese, supra,102 Cal.App.3d 415, 420.) The evidence was not admitted to show Dellinger was a “cokehead” and, in any event, it cannot be said as a matter of law any prejudicial effect outweighed the probative value of proof he was familiar with the toxic substance which was a contributing cause to Jaclyn’s death.

¶21A petition for a rehearing was denied January 22, 1985, and respondent’s petition for a hearing by the Supreme Court was denied March 21, 1985. Lucas, J., was of the opinion that the petition should be granted.