Filed 1/17/14 P. v. Mantzouranis CA5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

CALEB DANIEL MANTZOURANIS, 

SR.,

Defendant and Appellant.

F066125

(Super. Ct. No. CRF37647)

O P I N I O N

THE COURT

APPEAL from a judgment of the Superior Court of Tuolumne County. James A. 

Boscoe, Judge.

Tara K. Hoveland, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne 

Le Mon and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

 



 Before Levy, Acting P.J., Cornell, J., and Franson, J.
2

A jury convicted appellant, Caleb Daniel Mantzouranis, Sr., of driving under the 

influence of drugs and/or alcohol (Veh. Code, § 23152, subd. (a)), and in a separate 

proceeding appellant admitted a special allegation that he had suffered a prior conviction 

of that offense (Veh. Code, §§ 23550, 23550.5). The court suspended imposition of 

sentence and placed appellant on five years’ probation, one of the conditions of which 

was that he serve nine months in county jail. 

As discussed more fully below, prior to the defense’s presentation of the testimony 

of an expert witness, the court made a ruling prohibiting the expert from testifying as to 

any opinion that the expert based on certain matters set forth in a document prepared by a 

physician who, according to defense counsel, had treated appellant. On appeal, appellant 

argues that this ruling violated Evidence Code section 801 (section 801) and appellant’s 

rights under the United States and California Constitutions “to Due Process, a fair trial 

and to present a defense” because the ruling “improperly restricted appellant’s direct 

examination of his expert witness regarding a critical issue.” We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

Facts – Prosecution Case

Testimony of Deputy Speers

At approximately 1:40 a.m. on April 10, 2011 (April 10), Tuolumne County 

Deputy Sheriff Robert Speers was on patrol when he observed a car that, while traveling 

around a bend, crossed the fog line before correcting its course and returning to its lane. 

The car then slowed down to approximately five miles per hour. The posted speed limit 

was 35 miles per hour. 

Speers followed the car in his patrol vehicle, and observed the car, while still 

traveling at approximately five miles per hour, go off the roadway onto the shoulder 

several times. At that point, Speers, who was traveling behind the car, turned on his 

emergency flashers to initiate a traffic stop. The driver of the car—later determined to be 
3

appellant—pulled into a convenience store parking lot, where he parked the car in a 

space, after first backing up and pulling into the space two or three times. Appellant then 

got out of the car. He “seemed unsteady on his feet,” and Speers had him sit back down 

in the car, explained the reason for the stop and asked for appellant’s identification. 

Appellant’s speech was slurred and he “seemed really slow to come up with responses to 

normal questions.” At that point, Speers asked appellant to step out of the car. 

Appellant complied, and again “appeared very unsteady on his feet.” He told 

Speers he had just fallen and hit his head but Speers saw no marks consistent with this. 

Speers directed appellant to the sidewalk, where appellant stood leaning against a 

building, and Speers placed a call to the California Highway Patrol (CHP) “to come and 

conduct an evaluation.” Speers opined, using a scale of 0 to 10, with 10 indicating highly 

intoxicated and 0 indicating sober, that appellant was “[p]robably a seven or an eight.” 

While Speers was waiting for a CHP officer to arrive he asked appellant if he had taken 

any drugs or medication. Appellant responded he had not. 

Testimony of Officer Mahaney

CHP Officer Joshua Mahaney arrived on the scene at approximately 2:28 a.m. on 

April 10. Upon making contact with appellant, Mahaney observed that appellant was 

unsteady on his feet, his speech was slurred, his eyes were red and “he had a ... confused 

look on his face.” Mahaney asked appellant if he had “any physical impairments ... that 

would affect [his] ability to stand, walk.” Appellant responded “he did not have any 

physical defects.” 

Mahaney then administered a series of field sobriety tests to appellant. Mahaney’s 

practice when administering these tests is to tell test subjects not to begin any of the tests 

until he (Mahaney) instructs them to begin. 

Mahaney first conducted a horizontal gaze nystagmus test, which can show the 

presence of head injury. The test showed no indication of such injury. 
4

Mahaney next administered the Romberg balance test. He told appellant to stand, 

and, when told to do so but not before, tilt his head back, estimate when 30 seconds had 

passed, and at that point put his head back down, look at the officer and state he had 

finished the test. Appellant began the test before being told to begin, estimated 25 

seconds to be 30 seconds and swayed approximately one to two inches from center. The 

“C.H.P. D.U.I. manual” says swaying “within one inch ... can be present.” 

Next, Mahaney administered the one-leg stand test. He told appellant that while 

standing, and upon being told to begin, while keeping his arms as this side, to lift one foot 

six inches off the ground, look at the toes of the raised foot, and count out loud until 

directed to stop. Appellant raised his foot off the ground before being told to begin and 

immediately upon doing so began losing his balance, at which point he raised his arms 

away from his body and began hopping to regain his balance. He did not count as 

instructed. He could raise his foot for only two or three seconds before setting it down. 

Next, Mahaney explained to appellant the finger-count test, telling him to choose 

which hand to use and then, when told to do so, touch the tip of his thumb to the tips of 

his fingers in succession while counting. Appellant began the test before being told, 

missed his touches several times, and when he did touch his fingers, he did so “in a 

sweeping motion instead of a distinct tip to tip.” 

Finally, Mahaney administered a preliminary alcohol screening test, which was 

negative for the presence of alcohol. Mahaney formed the opinion, based on his “entire 

contact” with appellant, that appellant was unable to operate a motor vehicle safely. 

Testimony of Toxicologist Giorgi

California Department of Justice toxicologist Nadina Giorgi testified to the 

following: She tested a blood sample taken from appellant. The test showed the sample 

contained, inter alia, Zolpidem, a sleep aid also known as Ambien, and Carisoprodol, a 

muscle relaxant also known as Soma. The effects of Ambien typically last approximately 
5

eight hours and Soma’s effects typically last approximately four to six hours. Both drugs 

are central nervous system depressants; the effects of such drugs include drowsiness, 

dizziness, lack of coordination, slurred speech, confusion and loss of balance. In 

response to a hypothetical question positing facts similar to those of the instant case, 

Giorgi opined that the driver would be “too impaired by the presence of the drugs to 

safely operate a motor vehicle.” 

Facts - Defense Case

Testimony of Toxicologist Zehnder

Jeffrey Zehnder, a forensic toxicologist, testified as an expert witness to the 

following: 

In the Romberg test, the term “sway” is vague. “[T]here is really no standard for 

sway in terms of drug or alcohol impairment,” and the “sway aspect doesn’t have a lot of 

value.” A subject starting the test before being instructed to do so “hasn’t really been 

adequately studied” and “we don’t know what it means.” 

The finger count “is not a standardized test” and “there is not a lot of support for 

... what it means.” The one-legged stand test is “not ... conclusive” as to whether the 

subject is impaired by drugs or alcohol because a sober person might have difficulty 

standing on one leg. Injury can affect performance on field sobriety tests. 

The drug Ambien is designed to induce sleep. Persons who take the drug can 

develop a tolerance, such that a person “[would] have to take more of the drug to get the 

same effect.” Persons taking Soma can also develop a tolerance for the drug. For both 

Soma and Ambien, it is “very difficult to evaluate impairment in terms of blood levels ... 

because of the tolerance that can occur.” There is “[no] proven correlation between an 

Ambien level and any particular level of impairment[.]” 
6

Zehnder viewed and listened to a video/audio recording of the traffic stop. The 

video did not show the field sobriety tests. Zehnder did not hear appellant exhibit slurred 

speech. Appellant “sounded like a sober person ....” 

In response to a hypothetical question positing facts similar to the instant case and 

which included the factor that the person involved had a hip injury that would eventually 

require hip replacement, Zehnder opined, “I wouldn’t be able to say with this 

information, basically, that they were impaired.” Zehnder also testified that “crossing 

over the fog line on a curve once is not evidence of impairment because ... that is 

something that a sober person could do. 

Appellant’s Testimony

Appellant testified to the following: As of the time of trial, he had been taking 

Ambien and Soma for over three years. On the night he was stopped, he took Soma at 

approximately 6:00 p.m. and Ambien at approximately 8:00 or 9:00 p.m. 

At approximately 1:30 a.m., at his wife’s request, he set out in his car for a 

convenience store to buy some cigarettes. As he was driving he saw two patrol cars, at 

which point he slowed down from approximately 35 miles per hour to approximately 15 

miles per hour. Appellant saw Deputy Speers following him and he pulled over 

“[s]everal times” to let him pass. When appellant parked in the convenience store 

parking lot he “knew that there was an officer behind [him] and [he] didn’t want a ticket 

for parking over the lines ....” He did not recall why he needed multiple tries to park 

between the lines; he testified, “I think there was ... a vehicle in the way and I didn’t 

want to hit [it] ....” 

Appellant suffered a crushed pelvis in 1986. He has chronic arthritis in “both 

sides” of his hips. He had “problems” with the one-legged stand test because of his 

arthritis, which “makes it hard.” He told Officer Mahaney that he did not have any 

“physical impairments” because he “[does not] consider [his] hips an impairment.” 
7

Procedural Background

Dr. Renwick’s Report

Appellant’s argument on appeal concerns a document entitled “MEDICAL 

RECORD Progress Notes” (report) prepared by a person identifying himself in the report 

as Kenneth Renwick, MD, MPH, medical director of “TMWIHC, Inc.” In the report, Dr. 

Renwick stated the following: 

He had “been asked to write a note regarding the medication [appellant] was 

taking” on the night he was stopped by police. 

A blood sample was taken from appellant at 3:20 a.m. on April 10. Appellant has 

taken Ambien and Soma “for some years” to help him sleep, and he had taken these 

medications, in amounts set forth in the report, approximately six hours prior to his blood 

being drawn. The test of appellant’s blood showed the presence of Ambien and Soma at 

levels that “rated low therapeutic, indicating that they were wearing off, and had not been 

used in excess.” In addition, “Given [that appellant] had used [those medications] for 

years, he had accommodated to the medication side effects so that at any level he would 

be less impaired than a new user, and the medications would also be less effective at 

helping him sleep.”

The report also stated: “[Appellant] also suffers from chronic pain due to old 

orthopedic injuries. He has an old pelvic fracture ... and deformity of the obtorator 

formain due to hip trauma. He has been told he will need hip joint replacement. These 

injuries make it hard for him to stand on one leg, making one legged standing an invalid 

field sobriety test.”

Dr. Renwick concluded: “In my opinion [appellant] can not [sic] be validly 

considered intoxicated based on the field test and on the drug levels found. The low drug 

levels suggest that the medications were wearing off, and would have little, if any effect 
8

on a chronic user of those medications. The invalid field sobriety test likely misidentified 

an orthopedic problem as an intoxication.” 

The Challenged Ruling

Prior to Zehnder’s testimony, the prosecutor informed the court that he (the 

prosecutor) was “anticipating that Mr. Zehnder is not going to be basing any of his 

testimony on the information contained in [the report] because absent that testimony, 

there is no foundation,” and that he (the prosecutor) was “seeking to ... put everyone on 

notice that foundation objections would be made ....” 

The court asked defense counsel if Zehnder “rel[ied] on [the report] in forming his 

opinion[.]” Defense counsel explained that Dr. Renwick was appellant’s treating 

physician, and that “experts rely upon information like that all the time.” Counsel further 

stated as follows: “ ... [Appellant] is going to [testify] that he does have a hip injury and 

that he ... has, in fact, taken the Ambien and Soma for quite a while. So that information 

will come in, not from the doctor. [¶] [Dr. Renwick] also states an opinion as to 

impairment, which I really don’t think that doctor is ... qualified to give, so there are 

problems with the content of the [report]. I didn’t control it.” The court at that point 

directed defense counsel to “Find out if [Zehnder] relied on [the report], and what his 

testimony is going to be, and ... the extent [to which] he relied on [the report].” Counsel 

stated she would do so, and that “[her] knowledge is [Zehnder] relied upon “the fact” that 

appellant had taken Ambien and Soma “for a while” and that “there was a hip injury. 

That’s it.” 

Later that day, the court asked defense counsel if she had spoken to Zehnder. 

Counsel responded, “I told Mr. Zehnder that [appellant] is going to provide evidence with 

respect to his pelvic fracture and the length of time he’s been using Ambien, so that will 

come in.” The court responded that its “concern” was that the court knew nothing about 

Dr. Renwick or his qualifications, and that Dr. Renwick had “expressed [in the report] 
9

opinions ... that he may not be qualified to give based on his training and experience.” 

Defense counsel responded, “I think that is correct.” 

The court further stated, “... to the extent that [Zehnder’s] opinion is based on the 

content of [the report] ... I certainly don’t expect [Dr. Renwick’s] opinion to be 

expressed by Mr. Zehnder.” Counsel stated, “No.” 

The court continued, “I don’t want [Zehnder] to rely on the opinions of Dr. 

Renwick as they related to the effects of Ambien.” Counsel responded, “Oh no, he 

wouldn’t be.” 

The court concluded: “But in terms of the opinions expressed by Dr. Renwick as 

it relates to the orthopedic injuries or the effect of Ambien and the summary in this 

[report] that’s basically Dr. Renwick’s opinion, I don’t expect Mr. Zehnder to rely on that 

[report] as a basis for his opinion.” 

DISCUSSION

Section 801 limits expert opinion testimony to an opinion that is, inter alia, 

“[b]ased on matter ... perceived by or personally known to the witness or made known to 

[the witness] at or before the hearing, whether or not admissible, that is of a type that 

reasonably may be relied upon by an expert in forming an opinion upon the subject to 

which [the expert] testimony relates ....” (Evid. Code, § 801, subd. (b), italics added.) 

Appellant contends the court’s ruling on Zehnder’s testimony violated section 801 

because (1) the report was prepared by appellant’s treating physician and was therefore 

the “type of material which is regularly reasonably relied upon by related experts in 

forming their opinions,” and (2) the court’s ruling “restricted” the defense expert’s 

testimony so as “to exclude evidence” contained in the report, viz., “evidence of 

appellant’s orthopedic injuries.” (Emphasis, unnecessary capitalization omitted.) The 

court’s error was prejudicial, appellant argues further, in part because “[it] left appellant 
10

as the only person who could tell the jury about his injuries, a critical issue in his 

defense.” 

Appellant’s claim lacks merit. We recognize that, as appellant points out and as 

the court stated in People v. Gardeley (1996) 14 Cal.4th 605, 618, under section 801, 

“Expert testimony may ... be premised on material that is not admitted into evidence so 

long as it is material of a type that is reasonably relied upon by experts in the particular 

field in forming their opinions. [Citations.] Of course, any material that forms the basis 

of an expert’s opinion testimony must be reliable.” However, this rule does not permit 

what appellant seeks to accomplish here, viz., putting before the jury inadmissible 

hearsay (Evid. Code, § 1200), in the guise of the basis for expert opinion testimony, as 

independent proof of facts—in this case appellant’s injuries. As the court stated in 

Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516: “Although experts are ... given 

considerable leeway as to the material on which they may rely, the rules governing actual 

communication to the jury of any hearsay matter reasonably relied on by an expert are 

more restrictive. Although experts may properly rely on hearsay in forming their 

opinions, they may not relate the out-of-court statements of another as independent proof 

of the fact. [Citations.] Although an expert ‘may rely on inadmissible hearsay in 

forming his or her opinion [citation], and may state on direct examination the matters on 

which he or she relied, the expert may not testify as to the details of those matters if they 

are otherwise inadmissible [citation].’ [Citations.] In People v. Coleman (1985) 38 

Cal.3d 69, 92, the Supreme Court said with regard to an expert witness that ‘... he may 

not under the guise of reasons bring before the jury incompetent hearsay evidence.’ 

[Citation].” (Id. at pp. 1524-1525.)1

 

1 The case of People v. Coleman, supra, 38 Cal.3d 69 was disapproved on another 

point in People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32.
11

We find instructive People v. Loy (2011) 52 Cal.4th 46 (Loy). In that case, a 

murder prosecution, a prosecution expert, entomologist David Faulkner, testified as to 

two points regarding maggots found on the victim’s body. First, he testified, based on the 

maggots’ development, how long they had been associated with the body. Second, he 

testified as to the time and date the maggots were deposited on the body. Faulkner based 

this second conclusion on a letter he had received from the medical examiner’s office 

saying that maggot samples had been collected on certain dates. The trial court overruled

the defense’s lack-of-foundation objection to this evidence. 

The appellate court found no error in the court’s ruling as to the first point. Citing 

the principle that “‘Under ... section 801, expert opinion testimony is admissible only if 

the subject matter of the testimony is “sufficiently beyond common experience that the 

opinion of an expert would assist the trier of fact,”’” the court stated that the length of 

time the maggots had been associated with the body, based as it was on the expert’s 

knowledge of how such organisms develop, was “clearly a subject sufficiently beyond 

common experience that expert opinion would assist the jury.” (Loy, supra, 52 Cal.4th 

at p. 69.)

The entomologist’s second point, however, was a different matter. Faulkner 

testified he learned of the date the maggots were collected—the purported fact upon 

which he based his conclusion as to when the maggots were deposited on the body—from 

a letter from the medical examiner. (Loy, supra, 52 Cal.4th at p. 68.) Thus, the court 

pointed out, Faulkner’s testimony as to when the sample was collected, and his resultant 

conclusion as to when the maggots were deposited on the body, were based on hearsay. 

(Ibid.)

The court acknowledged the principle, asserted by the Attorney General—and by 

appellant here—that “‘Expert testimony may ... be premised on material that is not 

admitted into evidence so long as it is material of a type that is reasonably relied upon by 
12

experts in the particular field in forming their opinions....’” (Loy, supra, 52 Cal.4th at 

p. 68.) However, the court held that “Faulkner’s testimony regarding the date the 

samples were collected does not come within this rule” because “when the sample was 

collected was a simple question of fact that the jury could decide for itself without expert 

guidance.” (Loy, supra, at pp. 68, 69, italics omitted.) That is, Faulkner’s testimony on 

this point ran afoul of the rule set forth in section 801 that expert opinion evidence “is 

limited to such opinion as is “(a) Related to a subject that is sufficiently beyond common 

experience that the opinion of the expert would assist the trier of fact ....” (§ 801, subd. 

(a).) Accordingly, the appellate court held the trial court erred in overruling the 

defendant’s lack-of-foundation objection to the expert’s testimony as to when the 

maggots were deposited on the body.

Thus, Loy teaches that expert opinion testimony based on information that presents 

“a simple question of fact” that a jury “[can] decide for itself without expert guidance” 

(Loy, supra, 52 Cal.4th at p. 69) will not survive a lack-of-foundation objection. Such a 

“foundational fact[ ]” is “for others to establish.” (Ibid.) The information in Dr. 

Renwick’s report regarding appellant’s injuries—that appellant had suffered a pelvic 

fracture and had a “deformity” caused by hip trauma that made it difficult for him to 

stand on one leg and which, appellant had been told, would necessitate surgery to replace 

his hip joint—is precisely this kind of information. Therefore, under Loy, the defense in 

the instant case could not be permitted to establish the purported facts regarding 

appellant’s physical condition through Zehnder’s testimony as to what Dr. Renwick said 

in his report. Appellant’s claim that he should have been allowed to present evidence of 

his physical limitations through the testimony of the defense expert witness must be 

rejected. 

Appellant also argues that the court’s ruling violated not only section 801, but also 

his rights to a fair trial and to present a defense under the Due Process Clauses of the 
13

California and United States Constitutions. (See Cal. Const. art. I, § 7; U.S. Const. 5th & 

14th Amends.) This contention too is without merit.2

“As a general matter, the ordinary rules of evidence do not impermissibly infringe 

on the accused’s right to present a defense.” (People v. Hall (1986) 41 Cal.3d 826, 834.) 

Here, appellant testified that he suffered a crushed pelvis in 1986 and that he has chronic 

arthritis in both hips, and he performed poorly on the one-legged-stand portion of the 

field sobriety testing because of his injuries. Thus, he was not prevented from presenting 

the portion of his defense that was based on his physical injuries. He was merely 

precluded from proving this part of his defense with hearsay evidence that was 

inadmissible under the ordinary rules of evidence. Therefore, the court’s ruling did not 

violate appellant’s constitutional due process rights. 

We conclude further that even if the court erred in ruling Zehnder could not testify 

as to appellant’s physical infirmities as related in the report, such error was harmless. 

First, the source of Dr. Renwick’s information regarding appellant’s injuries is not 

apparent from the report. The report did not state that Dr. Renwick based his statements 

on his examination of appellant. Insofar as the report reveals, Dr. Renwick could have 

simply been reporting what appellant told him. Absent any showing of the basis of Dr. 

Renwick’s statement regarding appellant’s injuries, that statement is of little probative 

value and would not have added significantly to appellant’s testimony on the subject. In 

addition, evidence of appellant’s orthopedic problems does not have a bearing on other 

 

2 Appellant did not make this constitutional argument in the trial court. We assume 

without deciding that appellant’s constitutional claims are cognizable on this appeal. 

(See People v. Thornton (2007) 41 Cal.4th 391, 443 [“‘[a] party cannot argue the court 

erred in failing to conduct an analysis it was not asked to conduct’” but a constitutional 

claim is not forfeited if “it merely asserts that the trial court’s ruling, insofar as wrong on 

grounds actually presented to that court, had the additional legal consequence of violating 

the Constitution”].)
14

evidence damaging to the defense, such as appellant’s erratic driving, his difficulty in 

parking and his slurred speech. 

Because the error complained of is not of constitutional dimension, reversal is not 

compelled unless “it is reasonably probable that a result more favorable to [appellant] 

would have been reached in the absence of the error.” (People v. Watson (1956) 46 

Cal.2d 818, 836.) Under this standard, any error by the court in refusing to allow 

Zehnder to testify to factual matters set forth in the report was harmless.

DISPOSITION

The judgment is affirmed.