Garcia v. Gray CA2/7 ( 2021 )

Filed 1/19/21 Garcia v. Gray CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
MIGUEL GARCIA et al., B300661
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC618627)
v.
TOMMIE JEROME GRAY
et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Michael I. Levanas, Judge. Affirmed.
Berglund & Johnson and Anthony E. Vieira for Plaintiffs
and Appellants Miguel Garcia and Reina Garcia.
Booth, Hillary Arrow Booth and Ian P. Culver for
Defendants and Respondents Tommie Jerome Gray and Eddies
Trucking & Messenger Service LLC.
______________________
Twenty-one-year-old Arnold Garcia died after pitching over
his bicycle’s handlebars and skidding under the rear wheels of a
semi-tractor-trailer traveling next to him on Crenshaw Boulevard
in the City of Hawthorne. Garcia’s parents, Miguel and Reina
Garcia, filed a wrongful death and survival action against the
truck driver, Tommie Jerome Gray, and his employer, Edward
Barsoum, doing business as Eddie’s Trucking & Messenger
Service. After a two-week trial the jury returned a special verdict
finding neither Gray nor Barsoum had been negligent.
On appeal from the judgment entered in favor of Gray and
Barsoum, the Garcia parents argue the trial court committed
reversible error by permitting Hawthorne Police Officer Wilbert
Pereira, who arrived at the scene several minutes after the
collision, to testify the accident had been caused by Garcia’s
abrupt left turn into traffic. They also contend the court
committed prejudicial error by refusing to include in its
instructions Vehicle Code section 21202, which provides a bicycle
must be ridden as close “as practicable to the right-hand curb or
edge of the roadway” except in certain specified situations. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Garcia Parents’ Case-in-chief
The Garcia parents’ theory of the case was that Gray, while
passing Garcia as they both travelled southbound in the far-right,
number 3 lane on Crenshaw Boulevard, negligently failed to
move his semi-tractor-trailer entirely into the adjacent number 2
lane, instead straddling the number 2 and 3 lanes. The
proximity and noise of Gray’s large vehicle startled Garcia, who
2
reacted by turning to his left and braking, causing him to pitch
over the handlebars of his bicycle and fall directly into the path of
the semi-trailer’s rear wheels.
In addition to their own testimony and that of Garcia’s
older sister and one of his friends, the Garcia parents presented
six witnesses during their case-in-chief: Anthony Lyscio, who
had witnessed the accident while riding in a shuttle bus that was
immediately behind Gray’s truck; Gray and Barsoum pursuant to
Evidence Code section 776; David King, an accident
reconstruction expert; Douglas Shapiro, a bicycle safety expert;
and Paul Herbert, a trucking safety expert. The jury also saw a
surveillance video from a nearby business on Crenshaw
Boulevard that is adjacent to the accident site. (The video was
not continuous; separate frames were recorded at one-second
intervals.)
The evidence established Garcia was on his way to school
on May 4, 2015 when he was struck by Gray’s semi-tractor-
trailer. Garcia’s backpack, a spilled juice cup and drink and a set
of earphones were found near Garcia’s body following the
accident. Garcia was taken by ambulance to an emergency room
but died shortly thereafter.
Lyscio testified he saw Garcia riding his bicycle on the
sidewalk and then come down into the street, at which point he
was about 50 to 100 feet in front of the semi-tractor-trailer.
According to Lyscio, “It looked like riding off the curb there was a
little bit of a stumble, but then [the bicyclist] regained stability
for a short bit.” Garcia continued riding at the transition
between the gutter (which Lyscio estimated to be 18-inches wide)
and the street itself. The truck, which had been driving in the
far-right lane (lane 3), as was Lyscio’s shuttle bus, moved to its
3
left, about halfway into lane 2. Lyscio believed there was a
clearance of three to six feet between the truck and the bicycle as
the truck started to pass. Asked what happened next, Lyscio
testified, “I see the bicyclist looks like—like almost like trips over
the bicycle. Kind of—effectively goes up and over, like, the
handlebars, and then kind of pitches, like, under the—just as the
big rig tractor is passing—passing him, he kind of tripped up over
the handlebars, and then he falls underneath the path of the rear
wheels, and then as the truck proceeds forward, the rear wheels
run over him.”
Examined as an adverse witness, Gray testified that he
saw Garcia on the sidewalk ahead of him, attempting to avoid
pedestrians who were also on the sidewalk, but did not see him
turn into the roadway. At his deposition Gray had testified, after
his tractor had passed Garcia, he looked in the rear-view mirror
and saw Garcia still riding on the sidewalk. At trial, however,
Gray explained, because of the height of the tractor cab, he could
only see Garcia’s head, not the wheels of the bicycle, and just
assumed he was still on the sidewalk. If he had seen Garcia in
the street, Gray testified, he would have moved his vehicle all the
way into lane 2, rather than straddling lanes 2 and 3, as he
passed. Gray also acknowledged he would have tapped his horn
before passing if he had realized Garcia was then in the street.
Herbert, plaintiffs’ trucking safety expert, opined that Gray
“clearly was inattentive” in failing to see Garcia had moved from
the sidewalk into the roadway. Herbert also testified that “truck
drivers are regularly taught about the startling element of the
large loud vehicle that they are operating, especially when
operating close to a bicyclist and in the same direction.” That is
why, he explained, it is important to sound a warning horn from
4
far enough away, to “help[ ] eliminate or greatly reduce this
startle factor that we’ve been talking about.”
Shapiro, plaintiffs’ bicycle safety expert, testified bicyclists
depend on motorists approaching from behind either to flash
their vehicles’ lights or to lightly sound the horn before passing to
ensure the cyclist is aware of the car or truck’s presence. “It’s my
expectation that the passing vehicle is going to provide some level
of caution. Because, look, I’m on a bike.” Shapiro also explained
that a common reaction among all bicyclists is to be startled
when a large truck approaches them from behind; and “the bigger
the truck, the louder the truck, the louder the ‘Oh, my gosh,’ is
going to be in my head.” What happens when a bicyclist is
startled, he continued, “depends on the experience of the rider,
the conditions of the road surface. Some things that happen are,
some riders will try to get a better look at what’s approaching
and look to their left, and in doing so, more often than not,
cyclists will tend to steer in the direction that they’re looking.”1
In Shapiro’s opinion, “This accident was caused because Mr.
Garcia, his ability to operate his bicycle in a safe and reasonable
way on Crenshaw was compromised by an oversized truck in the
No. 3 lane and that changed the course of his ability to operate
his bicycle in a controlled way. . . . His lateral safety cushion was
taken away by Mr. Gray’s vehicle.”
Based on the surveillance video, Shapiro confirmed Garcia
was holding onto the handlebars with his left hand and holding a
cup (the juice drink) in his right hand. Shapiro could not tell
whether Garcia was simultaneously holding the cup and
1 Shapiro added, “Some bicyclists will do the opposite. They
will try to use their peripheral vision to see what’s happening,
and I’ve witnessed some riders steer to the right.”
5
handlebars with his right hand. Shapiro acknowledged, to best
avoid an impact and collision, the cyclist should mostly use his or
her rear brakes. Examining the bicycle before the jury, Shapiro
explained the right-hand lever was for the rear brakes; the left-
hand lever for the front brakes. Asked on cross-examination
what would happen if a cyclist was riding 15 or 16 miles per hour
and suddenly squeezed the left-hand brake, Shapiro answered,
“Bicyclist would typically do what’s called an endo. They would
go over the handlebars.” Shapiro also confirmed there was water
in the gutter where Garcia was riding, which is “something that
would be of concern in terms of operating your bicycle in an
upright, stable, directionally correct manner.”
King, the Garcia parents’ accident reconstructionist,
testified there is a 22-inch-wide, continuously poured gutter on
the southbound side of Crenshaw Boulevard. Lane 3 is an
additional 10 feet, two inches wide (that is, lane 3 with the gutter
is 12-feet wide). Lanes 1 and 2 are also approximately 10-feet
wide. Although there is a seam between the gutter and lane 3,
King explained, “[N]othing stood out as there being any lip or
anything like that, that I can recall.”
Based on his examination of the video, King observed that
Garcia was holding a cup in this right hand and calculated he
was traveling between 15 and 16 miles per hour; Gray’s truck’s
speed was between 24 and 26 miles per hour. Just prior to the
truck beginning to pass him (when it was five feet behind the
bicycle), Garcia was riding in the center of the gutter, and Gray’s
vehicle was in the middle of lane 3. At that point the step on the
side of the tractor was approximately 52 inches, slightly more
than four feet, from Garcia. The truck then moved toward lane 2,
“angling away from the curb,” while Garcia appeared to ride
6
toward the curb as the truck began to pass. The bicycle then
seemed to angle to the left.
Based on his analysis, King did not believe Gray’s
deposition testimony that he still saw Garcia on the sidewalk in
his rear-view mirror after the tractor had passed him. On cross-
examination King agreed the time-lapsed photographs of the
incident indicated that water had been splashed up from the
gutter by Garcia’s bicycle.
2. The Motion in Limine Regarding Officer Pereira
Prior to trial the Garcia parents moved in limine to exclude
the testimony of the police officers who had prepared the traffic
collision report following their investigation of the accident “as to
who they think was at fault in the accident, including but not
limited to any opinion as to the cause of the accident in this case
or violation of any law.” They argued a police officer’s opinion
regarding the cause of an automobile accident is inadmissible
when the officer did not observe the accident and could constitute
an impermissible legal opinion.
Following the deposition of Officer Pereira, who had been
designated by Gray and Barsoum as a nonretained expert, the
Garcia parents submitted a supplemental motion in limine in
which they acknowledged Officer Pereira could provide pertinent
(and admissible) percipient testimony regarding his first-hand
observations from the accident scene, but reiterated their motion
to exclude his testimony as to whom he considered to be at fault,
including his opinions regarding the cause of the accident and
any violations of the law.2 They also argued Officer Pereira’s
2 Emphasizing Officer Pereira’s lack of training in accident
reconstruction, the Garcia parents argued his opinions lacked
foundation, but neither the original nor supplemental motion
7
proposed testimony would be cumulative, duplicating that of
defense accident reconstruction expert Jon Landerville. In
support of the supplemental motion, the Garcia parents
submitted their counsel’s declaration summarizing and providing
excerpts from Officer Pereira’s deposition testimony, emphasizing
that he had admitted he had no accident reconstruction training
and his report was an accident investigation report, not an
accident reconstruction.
Following argument the court denied the motion, ruling,
“I’m going to allow the police officer to testify, and I’m going to
give an instruction to the jury that all experts, including police
officers, opining on an expert opinion are subject to the jury’s
decision as to how you accept it, what the basis for it was, and all
expert testimony is subject—you can give me an instruction, but
it’s going to be clear that just because a police officer formed an
opinion does not give it any more weight or credibility than any
other experts in the case. That’s how I’m going to handle it.”
3. The Defense Case
The defense theory of the accident, based on the testimony
of their accident reconstruction expert, Landerville, was that
Garcia was effectively riding one-handed, holding a juice cup in
his right hand, perhaps while wearing earphones,3 when he lost
in limine asserted Officer Pereira’s testimony should be excluded
because he was not qualified to provide expert testimony. And
notwithstanding the Garcia parents’ subsequent complaint about
Officer Pereira’s testifying while in uniform, their counsel never
asked the court to direct the officer to appear in civilian clothes.
3 It is lawful to operate a bicycle while wearing one earbud,
not two. Although it was implied, none of the witnesses testified
8
control of his bicycle as he hit water in the gutter portion of the
street. He abruptly turned left, toward traffic, and then jammed
on his front brakes (using his left hand), which caused him to
pitch over the handlebars and under the wheels of Gray’s tractor
trailer.
Officer Pereira, the first defense witness, explained he was
assigned to the traffic bureau of the Hawthorne Police
Department as a motorcycle officer at the time of the accident in
May 2015. He was one of the first officers at the scene and was
the lead investigator. In conducting his investigation he took
measurements at the accident scene using laser equipment and
reviewed the surveillance video. Based on that investigation,
Gray was not cited or given any warning in connection with the
accident; it was Officer Pereira’s opinion that Gray had operated
his truck in compliance with Vehicle Code section 21760, the
Three Feet for Safety Act, which requires the driver of a motor
vehicle, when passing a bicycle traveling in the same direction, to
maintain a distance of at least three feet between any part of the
vehicle and any part of a bicycle or its operator.4 He also
Garcia had been wearing both earbuds found at the scene of the
accident.
4 Vehicle Code section 21760 provides in part, “(c) A driver of
a motor vehicle shall not overtake or pass a bicycle proceeding in
the same direction on a highway at a distance of less than
three feet between any part of the motor vehicle and any part of
the bicycle or its operator. [¶] (d) If the driver of a motor vehicle
is unable to comply with subdivision (c), due to traffic or roadway
conditions, the driver shall slow to a speed that is reasonable and
prudent, and may pass only when doing so would not endanger
the safety of the operator of the bicycle, taking into account the
9
concluded that Garcia appeared to have made an unsafe turn into
traffic. The following brief exchange then took place between
defense counsel and Officer Pereira:
“Q. Is it accurate to say that you concluded after your
entire investigation that Mr. Garcia was the cause of this
accident?
“A. Yes.
“Q. And you did not come to any—is it true that you did
not come to a conclusion as to why Mr. Garcia turned into traffic?
“A. I did not.”
On cross-examination Officer Pereira agreed he had no
training as an accident reconstructionist or specifically in
interpreting Vehicle Code section 21760, confirmed the unsafe
turn he had referred to was Garcia’s sharp directional turn to the
left, and repeated he was not aware why Garcia had turned into
traffic.
Landerville testified Garcia was travelling at a speed of
approximately 17 miles per hour and Gray’s truck at 25 miles
per hour prior to the accident. Explaining his opinion the
accident occurred when Garcia lost control of his bicycle as he hit
water in the gutter and braked suddenly, Landerville pointed to
the surveillance video, which showed the sidewalk was dry right
before Garcia made his sharp turn to the left and wet right
afterward, indicating a large splash from the bicycle’s wheels
during the one-second interval between video frames.
Immediately after that water splash, the tractor portion of Gray’s
vehicle and the bicycle were parallel to each other with a gap
between them of 4.4 feet.
size and speed of the motor vehicle and bicycle, traffic conditions,
weather, visibility, and surface and width of the highway.”
10
The defense trucking safety expert testified an eight-mile-
per-hour differential in passing a bicycle was reasonable and
opined Gray had handled the situation properly by moving
gradually to the left, straddling lanes 2 and 3, and giving
approximately 4.4 feet of space to the bicycle.
4. Jury Instructions
The court instructed, as pertinent to the issues on appeal,
with CACI No. 219, which provides, “You do not have to accept an
expert’s opinion. As with any other witness, it is up to you to
decide whether you believe the expert’s testimony and choose to
use it as a basis for your decision.” CACI No. 219 specifically
identifies the expert’s training and experience as factors for the
jury to consider in evaluating the testimony. The court also
instructed with CACI Nos. 220 and 221 regarding expert
testimony. The Garcia parents did not accept the court’s
invitation to propose a special instruction that Officer Pereira’s
testimony was not to be given any additional weight because he
was a police officer.
The court also instructed with several iterations of CACI
No. 418, Presumption of Negligence Per Se, as applied to Vehicle
Code sections 21205, prohibiting a person operating a bicycle
from carrying any article that prevents the operator from keeping
at least one hand on the handlebars; 21760, the Three Feet for
Safety Act; 22107, prohibiting a vehicle from turning left or right
on the roadway until the movement can be made with reasonable
safety; and 27400, prohibiting a person operating a motor vehicle
or bicycle from wearing earphones covering or inserted in both
ears. CACI No. 418 states a person who violates the law must be
found negligent if the violation was a substantial factor in
causing harm unless the violation was excused. CACI No. 420,
11
which the court also gave, instructed that a violation of the law is
excused if the violation was reasonable; or, despite using
reasonable care, Garcia or Gray was not able to obey the law; or
either party faced an emergency that was not caused by his own
misconduct; or obeying the law would have involved a greater
risk of harm to others.
The court declined the Garcia parents’ general request to
instruct the jury concerning Vehicle Code section 21202, which
provides in part, “Any person operating a bicycle upon a roadway
at a speed less than the normal speed of traffic moving in the
same direction at that time shall ride as close as practicable to
the right-hand curb or edge of the roadway except . . . [¶] . . . [¶]
[w]hen reasonably necessary to avoid conditions (including, but
not limited to, fixed or moving objects, vehicles, bicycles,
pedestrians, animals, surface hazards, or substandard width
lanes) that make it unsafe to continue along the right-hand curb
or edge . . . . For purposes of this section, a ‘substandard width
lane’ is a lane that is too narrow for a bicycle and a vehicle to
travel safely side by side within the lane.” The Garcia parents
did not propose any language for such an instruction.5
After determining section 21202 was not relevant to the
facts of the case, the court offered to instruct the jury the statute
5 Counsel for Gray and Barsoum had initially requested a
CACI No. 418 instruction for section 21202, but subsequently
withdrew that request once they decided not to argue Garcia had
violated the statute. That proposed instruction is not in the
record on appeal.
12
did not apply.6 The Garcia parents did not ask the court to give
such an instruction.
5. The Special Verdict, Judgment and New Trial Motion
The jury found neither Gray (by a vote of 11 to one) nor
Barsoum (unanimously) had been negligent. As instructed, based
on the answer to those two questions, the jury did not answer
whether either defendant’s negligence had been a substantial
factor in causing harm to Garcia or whether Garcia had been
negligent.
Judgment was entered on July 8, 2019, and notice of entry
of judgment was served by the clerk the same day. The Garcia
parents moved for a new trial on July 22, 2019, asserting the trial
court had erred in admitting expert testimony from Officer
Pereira concerning his conclusions of law, abused its discretion in
permitting that testimony without adequate foundation and
committed error in declining to instruct regarding Vehicle Code
section 21202. After two hearings the court filed a written ruling
on October 10, 2019 denying the motion, finding there had been
no irregularity or error in law that was so prejudicial as to have
prevented the Garcia parents from having a fair trial.7
6 Officer Pereira considered whether Garcia had violated
Vehicle Code section 21202 during his investigation. Gray and
Barsoum did not contend at trial that Garcia had violated the
statute or that he had not been riding as close as practicable to
the right-hand curb.
7 Hearing on the new trial motion began as originally
scheduled on September 6, 2019, but was continued by the court
to September 13, 2019. Although the court purported to deny the
motion in its ruling on October 10, 2019, pursuant to Code of
Civil Procedure 660, subdivision (c), its jurisdiction to rule
expired on September 19, 2019, at which time the motion was
13
The Garcia parents filed a timely notice of appeal on
September 6, 2019.
DISCUSSION
1. Allowing Officer Pereira To Testify Did Not Constitute
Reversible Error
a. Standard of review
We review a trial court’s ruling admitting or excluding
expert testimony for abuse of discretion. (Sargon Enterprises,
Inc. v. University of Southern California (2012) 55 Cal.4th 747,
773.) “[E]videntiary objections based on lack of foundation,
qualification of experts, and conclusory and speculative testimony
are traditionally left to the sound discretion of the trial court.”
(Alexander v. Scripps Memorial Hospital La Jolla (2018)
23 Cal.App.5th 206, 226.) “A court abuses its discretion if its
ruling is ‘“so irrational or arbitrary that no reasonable person
could agree with it.”’ . . . ‘It is the appellant’s burden on appeal to
show the trial court abused its discretion.’” (Sanchez v. Kern
Emergency Medical Transportation Corp. (2017) 8 Cal.App.5th
146, 154.)
A judgment may be reversed for the erroneous admission of
evidence only if the error “resulted in a miscarriage of justice.”
(Evid. Code, § 353, subd. (b).) “Claims of evidentiary error under
California law are reviewed for prejudice applying the
‘miscarriage of justice’ or ‘reasonably probable’ harmless error
standard of People v. Watson (1956) 46 Cal.2d 818, 836 that is
embodied in article VI, section 13 of the California Constitution.
Under the Watson harmless error standard, it is the burden of
denied by operation of law. The Garcia parents have not
appealed denial of their motion for new trial.
14
appellants to show that it is reasonably probable that they would
have received a more favorable result at trial had the error not
occurred.” (Christ v. Schwartz (2016) 2 Cal.App.5th 440, 447;
see Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800 [error
justifies reversal in a civil action only if it is reasonably probable
a different result would have been reached absent the error].)
b. The trial court did not abuse its discretion in
permitting Officer Pereira to testify as an expert
witness
A police officer trained and experienced in the investigation
of traffic accidents may give expert testimony as the facts and
circumstances of an accident based upon his or her inspection of
the scene and first-hand analysis of other relevant information.
(Hart v. Wielt (1970) 4 Cal.App.3d 224, 229 [“[i]t is generally
established that traffic officers whose duties include
investigations of automobile accidents are qualified experts and
may properly testify concerning their opinions as to the various
factors involved in such accidents, based upon their own
observations”]; see Kastner v. Los Angeles Metropolitan
Transportation Authority (1965) 63 Cal.2d 52, 57-58; Francis v.
Sauve (1963) 222 Cal.App.2d 102, 114.) Here, Officer Pereira not
only personally inspected the accident scene immediately after
the incident but also reviewed the surveillance video before
completing his investigation report.
The Garcia parents did establish during Officer Pereira’s
deposition, submitted in support of their motion in limine, and
then again when questioning him on cross-examination, that
Office Pereira lacked training that would qualify him to testify as
an accident reconstruction or trucking safety expert. But those
gaps in training and expertise, which the jury was instructed it
15
could evaluate, went to the weight to be given his opinions, not
the threshold question of his qualifications to testify to the
results of his accident investigation, an area in which he was
trained and experienced. (Cf. People v. Prince (2007) 40 Cal.4th
1179, 1229 [“[i]t was for defendant to expose the weaknesses in
the expert’s opinion on cross-examination—and defendant did
so”].)
Crooks v. Pirrone (1964) 228 Cal.App.2d 549, which the
Garcia parents cite, fully supports this conclusion. In Crooks the
trial court, after evaluating a traffic officer’s qualifications,
excluded his testimony concerning the approximate speed of
vehicles involved in an accident he had not witnessed. In
affirming the trial court’s exercise of discretion, the court of
appeal did not, as the Garcia parents suggest, require training in
accident reconstruction or establish other minimum requirements
for a traffic officer’s expert opinion, but rather emphasized, “[T]he
responsibility for determining the competency and qualifications
of an expert witness rests initially with the trial court.” (Id. at
p. 553.) That ruling, the court continued, will only be upset for
an abuse of discretion. (Ibid.) Here, the trial court fully
considered the Garcia parents’ challenge to Officer Pereira’s
qualifications (phrased as lack of foundation) when ruling on
their motion in limine to exclude his expert opinion. The court’s
decision to deny that motion was neither arbitrary nor irrational
and cannot be disturbed on this record. (See Sargon Enterprises,
Inc. v. University of Southern California, supra, 55 Cal.4th at
p. 773 [“[a] ruling that constitutes an abuse of discretion has been
described as one that is ‘so irrational or arbitrary that no
reasonable person could agree with it’”]; People v. Carmony
(2004) 33 Cal.4th 367, 377 [“[a] trial court does not abuse its
16
discretion unless its decision is so irrational or arbitrary that no
reasonable person could agree with it”].)
c. Even if portions of the testimony should have been
excluded, any error was harmless
Although they question Officer Pereira’s qualifications on
appeal, as they did in the trial court, the Garcia parents’ primary
argument is that the court impermissibly permitted
Officer Pereira to testify to legal conclusions and to usurp the
jury’s factfinding function, specifically as to whether Gray had
violated Vehicle Code section 21760, whether Garcia had violated
the Vehicle Code by making an unsafe left turn,8 and whether
Garcia’s abrupt left turn had caused the accident.
The Garcia parents’ argument, based on language from
Summers v. A. L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1178
(Summers), fails to give adequate weight to Evidence Code
section 805, which provides, “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.”
(See, e.g., North American Capacity Ins. Co. v. Claremont
Liability Ins. Co. (2009) 177 Cal.App.4th 272, 294 [“[t]hat the
[expert] opinion expressed may have included ultimate facts to be
decided by the court does not alone make such evidence
improper”]; cf. People v. Vang (2011) 52 Cal.4th 1038, 1048 [“‘A
witness may not express an opinion on a defendant’s guilt.
[Citations.] The reason for this rule is not because guilt is the
ultimate issue of fact for the jury, as opinion testimony often goes
to the ultimate issue. [Citations.] “Rather, opinions on guilt or
8 Officer Pereira specifically identified Vehicle Code
section 22107 as the statute he believed Garcia had violated only
on cross-examination.
17
innocence are inadmissible because they are of no assistance
to the trier of fact. To put it another way, the trier of fact is as
competent as the witness to weigh the evidence and draw a
conclusion on the issue of guilt”’”].)
Under Evidence Code section 805 Officer Pereira’s opinion,
based on his investigation and his training and experience as a
traffic officer, that Garcia’s abrupt turn to the left was unsafe and
the precipitating cause for the accident constituted proper expert
testimony even though the determination of proximate cause
could ultimately have been part of the jury’s analysis of liability.9
(See Neumann v. Bishop (1976) 59 Cal.App.3d 451, 460-461 [no
error in permitting officer who had investigated accident scene to
testify he saw no evidence of excessive speed]; Risley v. Lenwell
(1954) 129 Cal.App.2d 608, 633 [no error in permitting California
Highway Patrol officer to testify following investigation,
including review of photographs, that truck was properly
equipped and loaded]; see generally Wells Truckways, Ltd. v.
Cebrian (1954) 122 Cal.App.2d 666, 674 [“Rarely, if ever, does an
expression of opinion by a so-called expert not amount to that
which either the court or jury might adopt as a basis for the
ultimate decision in the case. However, that does not mean that
the witness is deciding the case or that in so testifying he is
usurping the functions of the jury. He is merely giving an
opinion, based upon his technical training, which the court may
or may not accept as testimony that is proper and necessary to an
enlightened consideration and a correct disposition of the
ultimate issue”].) The appropriateness of this opinion testimony
is underscored by the fact that Officer Pereira acknowledged he
9 Because the jury found neither Gray nor Barsoum had been
negligent, it never reached the issue of causation.
18
did not know what had caused Garcia to swerve to his left, one of
the controlling issues in the case.
To be sure, as quoted by the Garcia parents, the court in
Summers, supra, 69 Cal.App.4th at page 1178 cautioned, “[T]he
admissibility of opinion evidence that embraces an ultimate issue
in a case does not bestow upon an expert carte blanche to express
any opinion he or she wishes. [Citation.] There are limits to
expert testimony, not the least of which is the prohibition against
admission of an expert’s opinion on a question of law.”10 (See
Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582,
1598-1599 [“‘[t]he calling of lawyers as “expert witnesses” to give
opinions as to the application of the law to particular facts usurps
the duty of the trial court to instruct the jury on the law as
applicable to the facts’”]; Downer v. Bramet (1984)
152 Cal.App.3d 837, 841 [expert witness may not testify to legal
conclusion in the guise of expert opinion].)
It may be that the trial court should have sustained
objections to Officer Pereira’s opinion that Gray had not violated
Vehicle Code section 2176011 or that Garcia’s abrupt turn was
unsafe and violated the Vehicle Code. It certainly was within the
10 In Summers, supra, 69 Cal.App.4th 1155, a wrongful death
action following an accident involving a pickup truck and a
tractor-trailer, the court of appeal held it was error to permit an
attorney to testify to issues of law, including whether the
defendant had a nondelegable duty that he breached in hiring an
incompetent trucker, as well as to opine how the case should
ultimately be resolved. (Id. at p. 1185.)
11 That Gray was not cited following the accident, of course,
was a fact, not Officer Pereira’s opinion. No separate objection
was made by the Garcia parents to that aspect of Officer Pereira’s
testimony.
19
trial court’s broad discretion to have done so, even though, unlike
the lawyer witness in Summers, nothing in Officer Pereira’s
testimony expressed his belief as to how the jury should decide
the case. (See Summers, supra, 69 Cal.App.4th at p. 1185
[lawyer expert “was advocating, not testifying”]; cf. People v. Lowe
(2012) 211 Cal.App.4th 678, 684, 686 [Summers holds “expert
opinion testimony that merely expresses a general belief as to
how the jury should decide the case is not permissible”; case is
“distinguishable for its extremes”].) Any error in permitting
those specific points in Officer Pereira’s testimony, however, was
harmless.
It was undisputed Gray’s tractor-trailer was more than
three feet from Garcia as he passed the bicycle, as required by
Vehicle Code section 21760, subdivision (c). Although Officer
Pereira testified there was no violation of this statute, he did not
opine that Gray had exercised reasonable care when overtaking
the bicycle, the ultimate issue for the jury to decide. Moreover,
Gray admitted there were times that more than three feet was
necessary to safely pass a bicycle, and the Garcia parents’
trucking safety expert testified the three-foot requirement was
just a minimum that was not sufficient in this case. The four
other expert witnesses in the case—two on each side—also opined
on the reasonableness of Gray’s maneuver when passing Garcia.
Indeed, one of the grounds asserted by the Garcia parents in
their motion in limine was that Officer Pereira’s testimony was
cumulative. In view of the extensive expert testimony on this
point, as well as the court’s instruction pursuant to CACI No. 221
that the jury should compare the qualifications and weigh the
competing opinions of the experts who had disagreed with each
other, it is not reasonably probable the jury would have reached a
20
different result had the court precluded this limited aspect of
Officer Pereira’s testimony.12
Similarly, Officer Pereira’s testimony that Garcia’s abrupt
turn to the left caused the accident was based on undisputed
facts regarding the accident. The issue for the jury was what
caused Garcia to turn left—had he lost control of his bicycle
because Gray’s vehicle came too close and startled him or because
his bicycle hit a patch of water while he was riding too fast and
holding a juice cup in one hand? Officer Pereira clearly stated he
had no opinion on that question. In addition, the jury, which
never reached the question of Garcia’s negligence, was instructed
pursuant to CACI Nos. 418 and 420 that, even if Garcia had
violated Vehicle Code section 22107 prohibiting unsafe turns,
that violation was excused if under all the circumstances he had
acted reasonably or as a necessary response to an emergency he
had not caused. The experts on both sides addressed that issue,
as well. Given those instructions and the additional expert
testimony, it is not reasonably probable the jury would have
reached a different conclusion as to Gray’s and Barsoum’s
negligence if Officer Pereira’s testimony that Garcia violated
Vehicle Code section 22107 had not been permitted.13
12 As discussed, the Garcia parents did not accept the trial
court’s offer to specifically instruct the jury that Officer Pereira’s
status as a police officer did not entitle his opinion to any more
weight than the opinions of the other experts.
13 Although, as noted, the trial court’s October 10, 2019 ruling
denying the new trial motion had no legal effect, the court
reached the same conclusion regarding the absence of prejudice
from Officer Pereira’s testimony. The court explained the fact
that Garcia’s bike abruptly turned toward Gray’s truck was not
in dispute. Although Officer Pereira testified this turn violated
21
2. Failure To Instruct Concerning Vehicle Code
Section 21202 Did Not Constitute Reversible Error
As discussed, Vehicle Code section 21202 requires a
bicyclist to ride as close as practicable to the right-hand curb
except under certain conditions, including when the far-right lane
is too narrow for the bicycle and a vehicle to travel side-by-side in
the lane (a “substandard width lane” as defined by the section).
The Garcia parents’ theory as to section 21202’s relevance to the
case, as articulated during argument concerning objections to
questions posed to expert witnesses,14 was two-fold. First, it was
lawful for Garcia to ride his bicycle on Crenshaw Boulevard, even
though it is a busy street with commercial traffic. Second,
because lane 3 where Garcia and Gray approached the accident
site was of substandard width within the meaning of
section 21202, it was permissible for Garcia to ride in the middle
of lane 3, which, in turn, meant that Gray should have moved all
the way into lane 2 when passing him.
How those points would have been included in an
instruction is a mystery, however, because the Garcia parents
never proposed one. The only instruction regarding Vehicle Code
section 21202 ever before the court was requested, and then
Vehicle Code section 22107 and caused the accident, he
“specifically stated on direct and cross examination that he did
not reach any conclusion on why Mr. Garcia’s bike turned into
the truck. The jury was free to determine that issue and heard
extensive testimony from accident reconstruction experts on both
sides and testimony from Plaintiffs’ cycling expert on that
ultimate issue.”
14 The Garcia parents do not challenge any of the trial court’s
evidentiary rulings other than with respect to Officer Pereira’s
testimony.
22
withdrawn, by defense counsel. Although not in the record on
appeal, that withdrawn instruction apparently would have
advised the jury, pursuant to CACI No. 418, that Garcia must be
found negligent if he had committed an unexcused violation of
section 21202 and the violation was a substantial factor in
causing his death. However, Gray and Barsoum did not contend
at trial that Garcia violated section 21202. Accordingly, it was
not error for the court to omit that instruction.
The failure of the Garcia parents to request a different form
of Vehicle Code section 21202 instruction forfeits the issue on
appeal. (See Barrera v. De La Torre (1957) 48 Cal.2d 166, 170
[party may not argue on appeal failure to give instruction that
was not requested]; Hilts v. County of Solano (1968)
265 Cal.App.2d 161, 171 [same]; see also Murrell v. State of
California ex rel. Dept. Pub. Wks. (1975) 47 Cal.App.3d 264, 270
[“[w]hen instructions are abstractly correct but too general to
meet a party’s need, he must request a specific and correct
instruction in order to complain on appeal”].)
Even if the issue were properly before us, however, the
failure to give an instruction that included the statutory
language could not have prejudiced the Garcia parents. The
legality of Garcia riding his bicycle on Crenshaw Boulevard was
never questioned. Whether he could have ridden in the middle of
lane 3 consistent with Vehicle Code section 21202, and, if he had
done so, what effect that would have had on the reasonableness
of Gray’s movement to the left when passing him, was a
counterfactual hypothetical scenario divorced from the evidence
at trial. Garcia rode on the edge between the gutter and the
10-foot-wide right-hand lane. Any violation of Vehicle Code
section 21760 or other allegedly negligent conduct by Gray when
23
passing Garcia did not depend on Garcia’s responsibilities or
rights under section 21202.
In sum, while it may not have confused the jury to have
given an instruction that quoted section 21202, as the trial court
ruled, the failure to do so, if error at all, was harmless. (See
LAOSD Asbestos Cases (2019) 35 Cal.App.5th 1088, 1096-1096
[even if court erred in omitting certain CACI instructions, any
error was harmless because “it is not reasonably probable that a
different result would have been reached”].)
DISPOSITION
The judgment is affirmed. Gray and Barsoum are to
recover their costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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