1

Filed 6/12/15 P. v. Ambriz CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JUAN JOSE AMBRIZ,

Defendant and Appellant.

C075836

(Super. Ct. No. 72002614)

Defendant Juan Jose Ambriz pleaded guilty to possession of a controlled 

substance, being under the influence of a controlled substance, and driving under the 

influence. (Health & Saf. Code, §§ 11377, subd. (a), 11550, subd. (a); Veh. Code, 

§ 23152, subd. (a).) Subsequently, defendant filed a motion to vacate the judgment and 

withdraw his guilty pleas. Defendant alleged he was not advised of the immigration 

consequences of his pleas. Following an evidentiary hearing, the court denied the 

motion. Defendant appeals, contending he was misled regarding the immigration 

consequences of pleading guilty, the court failed to take reasonable precautions to ensure 

defendant actually understood the required advisement, and the language used in the 

advisement was too difficult to serve the purpose of the statute. Defendant also raises 
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several due process arguments: he was denied due process when the court allowed the 

prosecution to submit evidence not timely discovered, refused to allow defendant’s expert 

testimony on consulting other experts, and allowed the prosecution to argue with 

defendant’s witness. Finally, defendant contends the court admitted unduly prejudicial 

evidence. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2004 a complaint alleged defendant possessed methamphetamine, had 

been under the influence of a controlled substance, and had driven under the influence of 

alcohol or drugs. At his arraignment, defendant was given a form that, in Spanish, 

explained his rights. Defendant signed the advisement form and told the court he thought 

he understood his rights.

At the plea hearing on July 15, 2004, the court asked whether defendant had 

checked all the boxes on the plea form, and defendant responded he had. Defendant 

executed the written waiver and plea form after discussing it with counsel. Defendant 

also told the court several times that he did not need an interpreter. Defendant then 

pleaded guilty to the three counts.

Subsequently, in August 2004 the court granted defendant’s application for 

probation, suspended imposition of sentence, and placed defendant on formal probation 

for five years, subject to successful completion of a substance abuse treatment program. 

The court also ordered defendant to pay various fees and fines.

In April 2013 defense counsel filed a motion to vacate the judgment, alleging 

defendant was not advised of the immigration consequences of his plea. Defendant filed 

a declaration in support of the motion. The court tentatively denied defendant’s Penal 

Code section 1016.5 motion to vacate.1

 

1

 All further statutory references are to the Penal Code unless otherwise designated.
3

Defendant’s new counsel filed a second motion to vacate under section 1016.5 in 

August 2013. Following oral argument on the motion, the court granted defendant’s 

motion for an evidentiary hearing.

Evidentiary Hearing

Defendant’s Case

Dean Settle’s Testimony—Dean Settle worked with defendant at a supply 

company that specialized in delivering restaurant supplies. Both worked as delivery 

drivers. Every day the drivers followed a certain route, which could be learned over time. 

Settle described the company as “chaotic” and was unsure whether the company verified 

the literacy of its drivers.

Although Settle spoke to defendant regularly, he found it difficult because 

defendant spoke little English and Settle did not speak Spanish. According to Settle, in 

order to be understood, “there was a lot of repeating. You would, you know -- it 

definitely at times would be a chore to get across what I was saying for [defendant] to 

understand it.” Settle also testified defendant is “definitely a lot better now.”

Oscar Corona’s Testimony—Oscar Corona, defendant’s brother-in-law, first met 

defendant in 1999 when defendant came to California. In 2004, when they worked 

together bussing tables, defendant did not speak much English. Corona also worked at 

the distribution company. He and defendant spoke only Spanish to one another. 

According to Corona, “We never speak English because he speak [sic] Spanish. I speak 

Spanish. There was no point for us to speak English at that time.” Corona spoke to 

defendant about wanting to go to school to learn more English.

Angeles Ambriz’s Testimony—Angeles Ambriz, defendant’s wife, testified she 

met defendant in 2001. Angeles was a “bus girl, and he was a cook.” In 2004 defendant 

could not speak or read English very well. After living together for a few years, the 

couple married in 2006. They have two daughters.
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Angeles took the girls to their doctor’s appointments because defendant “can’t 

understand the things the doctor has to say to him.” According to Angeles, “. . . it’s very 

important for us because if he don’t understand, how can give [sic] the medicine to the 

little ones.” In addition, in 2004 Angeles had to fill out a job application for defendant 

because he could not read them. Defendant also had trouble writing addresses on 

envelopes. He told his wife that when he went to school in Idaho, he could not 

understand the teachers.

Defendant’s Testimony—Defendant testified in his own behalf. He was born in 

1978 in Mexico and attended school there until he was 12 years old and in the sixth 

grade. Defendant did not take any English classes in school or speak English in class. 

He stopped attending school and went to work in the fields.

In 1997 defendant came to the United States. He attended school in Idaho. He 

tried to go to school, but it was difficult and he quit “because there was like nobody to 

translate me [sic] what the teacher was saying, so I decided to go out and work.” 

According to defendant, “I couldn’t read at all. I mean I hardly read in Spanish. For me 

it was like a big change to read a different language than my own. It was really hard.” 

Defendant did not complete 10th grade in Idaho and did not tell counselors at his 

treatment center that he had. After two years in Idaho, defendant moved to California.

Defendant identified his signature and initials on a waiver of rights and plea form. 

He signed the forms because his attorney told him to. His attorney did not tell him he 

might be deported as a result of the conviction. Defendant did not understand the forms 

he signed: “I understand some of it, but not all. Not everything.” Specifically, defendant 

did not understand the box that explained possible immigration consequences. Had he 

understood, he would not have pleaded guilty to the charges. Defendant signed the forms 

“because I thought that’s what you’re supposed to do. I didn’t read it because I didn’t 

know how to read.” When he was asked by the court if he wanted an interpreter, 
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defendant said no because he did not want to embarrass himself “in front of the other 

guys. I should have said yes.”

Professor Menard-Warwick’s Testimony—Dr. Julia Menard-Warwick is a 

professor in the Linguistics Department at the University of California, Davis. From 

2010 to 2012 Dr. Menard-Warwick served as the director of the English as a second 

language (ESL) program at Davis. She has authored two books and about 25 articles on 

the topic of second language learning. In addition, she has made numerous presentations 

on second language learning.

Prior to teaching at the university, Dr. Menard-Warwick taught ESL for 10 years 

at a Washington State community college and taught in Nicaragua for one year prior to 

that. Her dissertation for her doctorate considered literacy development with Latino 

immigrants and ESL programs in the Bay Area. She based her research on Spanishspeaking women from various Latin American countries.

Dr. Menard-Warwick was qualified as an expert in “second language learning and 

teaching with specific expertise . . . in the learning of English literacy by Spanishspeaking adults.” The professor described literacy “[i]n the sense I would be likely to use 

in my research it’s using reading and writing to conduct your life tasks that you need to 

get done.”

Dr. Menard-Warwick gave her opinion as to whether or not defendant understood 

the portion of the waiver and plea form advising of possible immigration consequences. 

The advisement states: “If you are not a citizen of the United States the conviction for 

the offense charged may have the consequence of deportation, exclusion from admission 

to the United States, or denial of naturalization pursuant to the laws of the United States.” 

The professor described her task as, “whether in my best expert judgment somebody with 

the background that I understood [defendant] to have could have read and comprehended 

[the advisement] in 2004.” To accomplish this, she considered the forms themselves, 

“the statements of rights in Spanish which was another document entirely, and . . . the 
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minutes from the court proceeding that took place in 2004 when he said that he had read 

and understood it.”

According to Menard-Warwick, the advisement on the written waiver and plea 

form “is designed to be read by people who are ready for college.” Defendant’s basic 

literacy level was not enough for him to read the advisement, which required advanced 

academic literacy. The professor explained her analysis in detail. Literacy is reading and 

writing in everyday life. A person’s level of literacy in a second language is influenced 

by his or her first language literacy level. Learning the concepts of a new language can 

be very difficult. For example, concerning immigration consequences, a person may 

understand the concept of removal, but not the basis for the removal.

The professor also testified that a person with a sixth grade Spanish reading ability 

would not have a sixth grade reading ability in English without school or tutoring. 

Learning to read a second language is easier if the person already has a high level of oral 

vocabulary in his or her new language. However, oral learning is often related to one’s 

job. Defendant’s job involved loading items for delivery, a task that required only “basic 

literacy.” Reading invoices does not teach a person how to read a legal document like the 

advisement.

The advisement to which defendant agreed required “academic literacy. It’s very 

abstract, it’s very detextualized. It’s got very complicated vocabulary. So you need a 

high level, what’s often called a proficient level of academic literacy to be able to read 

that sentence.” Based on her experience with ESL students, Dr. Menard-Warwick would 

not have expected her students to understand many of the words used in the advisement: 

conviction, offense, consequence, exclusion, and denial. The key concepts of exclusion 

from admission and denial of naturalization are complicated and difficult unless 

explained.

The professor also described her analysis of defendant’s education. Rural schools 

in Mexico where defendant attended school are “very poorly funded. The teachers are 
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not very well qualified, and so the level of educational rigors [sic] is not very great . . . . 

Kids learn how to read, but they don’t learn to read very complicated things.”

In Dr. Menard-Warwick’s opinion, someone with defendant’s level of learning 

experience could neither read nor comprehend the advisement regarding immigration 

consequences. The professor testified: “To read that sentence, you would definitely need 

to study English. Pretty much regardless of your level of education.”

The professor read the Spanish advisement of rights form and stated she was 

confused as to why it did not set forth the immigration consequences.

Evidence that defendant carried on a conversation with a police officer would not 

alter her opinion, because no reading was involved. In addition, the information 

defendant entered on the narcotics registration form required only basic literacy. Nor did 

notes from the mental wellness program change her opinion. The note defendant wrote 

demonstrated only basic English literacy. When questioned as to whether she could 

know defendant’s reading skills in 2004, Dr. Menard-Warwick responded: “I do know. 

This is my field. I know what it takes for people to learn how to read in a second 

language.”

People’s Case

Officer Calcutt’s Testimony—California Highway Patrol Officer Matthew 

Calcutt has been with the highway patrol for 13 years. On the night in question, Officer 

Calcutt responded to a request for assistance from Officer Howard.

Officer Calcutt was asked to assist in examining defendant to determine if he was 

under the influence of narcotics. He spoke to defendant in English. The officer 

instructed defendant on how to perform the field sobriety tests. According to Calcutt, 

defendant “spoke in broken English.” Calcutt defined broken English as 

“grammatically . . . not perfect English.” Broken English consist of “Words, phrases that 

grammatically would not go together at all times. It’s not a specific dialect. It perhaps is 

a word but not in the right tense.” If Calcutt had not been able to communicate with 
8

defendant he would have called in a translator; he had done so before. It was not 

necessary during this stop.

After Officer Calcutt found what he believed to be drugs in defendant’s car, he 

asked defendant if the substance was his. The officer testified that defendant stated the

“crystal, quote/unquote, was his.” Police arrested defendant and took him to be booked. 

According to Officer Calcutt, defendant answered the booking questions appropriately.

Ricky Martino’s Testimony—Ricky Martino, a supervising deputy probation 

officer, was assigned to supervise defendant while he was on probation in 2004 and 2005. 

Martino testified he discussed with defendant the terms and conditions of probation. 

According to the probation officer, he did not recall “any significant issues with 

communication that would require an interpreter.” Martino “understood [defendant] 

when he spoke to me.”

Subsequent Events

The court denied defendant’s request to vacate the judgment. The trial court noted 

that the transcripts revealed that defendant was thrice asked by the court if he needed an 

interpreter. Three times defendant answered, “No.” The court was never informed at any 

time prior to the current motion that defendant was unable to understand or read English 

and needed an interpreter. In addition, defendant responded appropriately to each 

question asked by the court at all stages of the proceedings.

The trial court concluded: “The Court understands that the gravamen of the 

Defendant’s argument is that the Defendant did not have the education to understand the 

complex admonition in English. . . . Ms. Menard-Warwick testified that it was almost 

impossible for him to comprehend the immigration consequences without the assistance 

of an Interpreter. While the Court has found that all of that may be true, the Court made 

an Interpreter available to the Defendant at every stage of the proceedings. The 

Defendant never advised the Court, or apparently his Counsel, that he was unable to 

understand any part of the proceedings or avail himself of the Interpreter who was 
9

present. [¶] The Defendant was an adult who responded appropriately to each question 

asked of him. He never said anything that would lead the Court to inquire into his ability 

to read and understand the plea form or the admonitions contained therein, until his 

Motion [to vacate] . . . . [¶] The Court reiterates its sympathy for the Defendant, and the 

harsh consequences that may follow, but must follow the law as revealed by the 

testimony in this case.”

Defendant filed a timely notice of appeal. The trial court granted defendant’s 

application for a certificate of probable cause to appeal.

DISCUSSION

DEFENDANT WAS AFFIRMATIVELY MISLED

REGARDING IMMIGRATION CONESQUENCES OF HIS PLEA

Defendant contends he was affirmatively misled in 2004 when the court provided 

an advisement of rights form at his arraignment. The advisement, in Spanish, did not 

mention any immigration consequences stemming from his plea, and any reasonable 

person reading the Spanish advisement would be misled to think it contained all the 

information about his or her rights. According to defendant, “since the Spanish 

advisement did not contain the language required by section 1016.5 . . . , appellant was 

affirmatively misled into believing that a guilty plea would not cause immigration 

consequences.”

Background

Section 1016.5 requires that, before accepting a guilty plea to any criminal 

offense, a trial court must advise a non-United States citizen defendant that conviction of 

the offense may result in deportation, exclusion from admission to the United States, or 

denial of naturalization. The statute allows the defendant to move to vacate the judgment

if the trial court fails to give the required advisements. A motion to vacate judgment 

under section 1016.5 may be brought in the trial court after imposition of judgment. 
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(People v. Totari (2002) 28 Cal.4th 876, 879 (Totari); People v. Superior Court 

(Zamudio) (2000) 23 Cal.4th 183, 203-204 (Zamudio).)

The purpose of section 1016.5 is to ensure that a defendant possesses both actual 

knowledge of the possible adverse immigration consequences of a guilty plea and the 

chance to make an intelligent choice whether to plead guilty. A noncitizen defendant has 

a substantial right to be given complete advisements under section 1016.5. (Zamudio, 

supra, 23 Cal.4th at pp. 193-194; People v. Gutierrez (2003) 106 Cal.App.4th 169, 173

(Gutierrez); Totari, supra, 28 Cal.4th at p. 883.)

In order to prevail on a motion to vacate predicated on section 1016.5, a defendant 

must establish that he or she was not properly advised of the immigration consequences 

as provided by the statute; there exists, at the time of the motion, more than a remote 

possibility that the conviction will have specified adverse immigration consequences; and 

the defendant will be prejudiced by the nonadvisement. (Totari, supra, 28 Cal.4th at 

p. 883.) We uphold an order denying a section 1016.5 motion unless we find a clear 

abuse of discretion. A trial court’s exercise of its discretion in an arbitrary, capricious, or 

patently absurd manner that results in a manifest miscarriage of justice constitutes an 

abuse of discretion. (People v. Limon (2009) 179 Cal.App.4th 1514, 1517-1518.)

Discussion

Defendant argues: “Any reasonable person reading the Spanish advisement would 

be affirmatively misled to think that it contained all he or she was required to know about 

his or her rights.” Since the Spanish advisement did not set forth the immigration 

consequences, the court erred in denying defendant’s section 1016.5 claim.

The allegedly deficient Spanish advisement was given to defendant at his 

arraignment. Defendant signed the form and told the court he understood his rights. 

Subsequently, during the plea hearing, defendant read the waiver of rights, in English;

checked all the boxes; and again told the court he understood his rights. Defendant 
11

discussed the contents of the form with his counsel. Several times defendant assured the 

court he had no need for an interpreter.

As the court in People v. Akhile (2008) 167 Cal.App.4th 558, 564 found, “the 

advisement [required by section 1016.5] must occur within the context of the taking of 

the plea.” An advisement at the arraignment does not satisfy the statute. (Ibid.) The 

Spanish language advisement defendant read and signed at the arraignment would not 

have satisfied section 1016.5 regardless of its contents. Therefore, any alleged deficiency 

in the arraignment advisement had no impact on his subsequent waiver during the plea 

hearing.2

COURT’S FAILURE TO TAKE REASONABLE PRECAUTIONS

TO ENSURE DEFENDANT’S UNDERSTANDING

Defendant argues that when a trial court gives a defendant an advisement written 

in his or her own language, the court has an elevated duty to ensure the advisement is 

actually understood. According to defendant, he put on overwhelming evidence showing 

he could not have understood the English advisement regarding immigration 

consequences and the Spanish advisement failed to explain the consequences.

In support, defendant argues he presented overwhelming evidence that he could 

not have understood the immigration consequences as set forth in the English advisement 

because of his extremely limited English comprehension. He notes that he had a “mere 

 

2

 Defendant cites United States v. Botello-Rosales (9th Cir. 2013) 728 F.3d 865, in 

which a defendant was misled about his rights under Miranda v. Arizona (1966) 384 U.S. 

436 [16 L.Ed.2d 694] through a faulty warning in Spanish. The court noted the defendant 

had been previously advised correctly in English but found the misleading Spanish 

advisement required the government to show clarity and correct the error. (BotelloRosales, at pp. 867-868.) The court noted the stressful scenario created by custodial 

interrogation as part of the basis for its finding. (Ibid.) However, here we are 

considering an advisement at arraignment that did not meet the requirements of 

section 1016.5, and we are not persuaded by defendant’s attempt to compare court 

proceedings and custodial interrogation in terms of stressful environments.
12

sixteen minute period” the day he entered his guilty plea during which his counsel could 

explain the complicated written waiver and plea form. As a consequence, defendant 

contends, “the [trial] court did not do enough. It was the trial court after all which 

provided the misleading advisement in Spanish.” In support, defendant cites People v. 

Soriano (1987) 194 Cal.App.3d 1470 (Soriano) for the proposition that, when the court 

provides a defendant with an advisement written in his own language, the court has an 

elevated duty to ensure the advisement is understood.

In Soriano, the defendant alleged counsel performed ineffectively by failing to 

advise him adequately of the deportation consequences of his guilty plea. In his writ 

petition, defendant stated that at the time he entered his guilty plea he did not know that 

the plea would subject him to deportation, and if he had understood the consequences of 

his plea he would not have entered it. (Soriano, supra, 194 Cal.App.3d at pp. 1472-

1474.)

The court found: “Petitioner failed to make a sufficient showing at the hearing on 

the petition to overcome his own statement, made at the time his plea was entered, that he 

understood the [section] 1016.5 advisement. Defendant sought to prove his English 

comprehension was so poor that without an interpreter’s assistance he was incapable of 

entering a guilty plea with ‘sufficient awareness of the relevant circumstances and likely 

consequences.’ [Citation.] However, having failed to establish that his English was so 

faulty that he could not understand the section 1016.5 advisement, defendant failed to 

meet the first requirement for the writ. He did not show that his language difficulty was a 

fact unknown to the court and a fact which would have prevented rendition of judgment.” 

(Soriano, supra, 194 Cal.App.3d at p. 1477.) The critical issue under section 1016.5 is 

whether a defendant has been advised that his guilty plea may have immigration 

consequences. (Soriano, at p. 1475.)

Section 1016.5 does not require any specific manner in which the court must 

advise the defendant of the immigration consequences of his plea. Nor is the court 
13

required to advise the defendant of these consequences verbally. A validly executed plea 

agreement containing the immigration advisement is sufficient. (People v. Ramirez 

(1999) 71 Cal.App.4th 519, 521; Gutierrez, supra, 106 Cal.App.4th at p. 175.) Here, at 

the time of the plea, defendant told the court he had read the waiver of rights and plea 

agreement and understood his rights. He checked all of the boxes on the form indicating 

he understood his rights. According to the waiver form, both defendant and defense 

counsel went over the form together. In addition, defendant stated he did not need an 

interpreter. Given the evidence before us, we cannot find the court abused its discretion 

in denying defendant’s motion to vacate based on any failure on the part of the trial court 

to ascertain his understanding of the waiver.

DIFFICULTY OF ADVISEMENT LANGUAGE

Citing the language of the advisement, defendant contends the advisement 

regarding immigration consequences was too complex for someone with his limited 

English to understand. Therefore, the trial court erred in denying his motion to vacate the 

judgment.

Discussion

According to defendant, “The crucial liberty interest involved in immigration 

consequences requires an advisement that is understandable by the average person.” The 

advisement in this case, defendant argues, does not meet this standard. However, the 

written advisement defendant signed virtually mirrors section 1016.5, subdivision (a).

At the evidentiary hearing, Dr. Menard-Warwick testified that the advisement is 

“very abstract, it’s very detextualized. It’s got very complicated vocabulary. So you 

need a high level, what’s often called proficient level of academic literacy to be able to 

read that sentence.” However, “A defendant who has signed a waiver form upon 

competent advice of his attorney has little need to hear a ritual recitation of his rights by a 

trial judge. . . . [¶] . . . So long as the waiver form contains sufficient information, and 

both the defendant and his counsel attest to its valid execution, the judge may, in his 
14

discretion, dispense with further explanation to the defendant of his rights.” (In re Ibarra

(1983) 34 Cal.3d 277, 286.) As we have noted, the written waiver advised defendant of 

the possible immigration consequences of his plea. On the form, defendant indicated he

understood his plea could result in deportation, exclusion from the United States, and 

denial of naturalization. Defendant’s attorney stated he had discussed the contents of the 

plea form with his client. Defendant assured the court he understood his rights and 

declined any aid from an interpreter. Given these facts, the court did not abuse its 

discretion in denying the motion to vacate based on the difficulty of the waiver’s 

language.

DUE PROCESS CLAIMS

Submission of Evidence Not Previously Discovered

At the beginning of the evidentiary hearing on defendant’s ability to understand 

English, the prosecution informed the defense that it had evidence pertaining to the case. 

The court allowed the evidence, which defendant claims violated his right to due process.

Defendant objected to any use of any of the evidence that the prosecution failed to 

provide to the defense prior to the evidentiary hearing, citing lack of discovery and 

notice. In support, defendant cited Evidence Code section 1054, which mandates 

reciprocal discovery in criminal cases. The court overruled the objection, finding 

section 1054 only applies to criminal trials.

On appeal, defendant contends he was denied due process as a result of the trial 

court’s ruling permitting the prosecution to present evidence at the evidentiary hearing 

that had not been made available prior to the hearing. According to defendant, as a result 

of the lack of prior discovery, the defense could not adequately prepare to question the 

expert, prejudicing defendant.

Our review of the evidence does not reveal any such prejudice. The only example 

defendant provides is that the prosecution presented documentary evidence, including a 

lengthy report, that Dr. Menard-Warwick “was forced to analyze . . . off the cuff.” 
15

However, during cross-examination, Dr. Menard-Warwick was questioned extensively 

about a variety of documents, including records from the drug treatment program. 

Dr. Menard-Warwick considered the information and repeatedly reiterated her belief that 

defendant could not have read and comprehended the section 1016.5 advisement 

regardless of whether he stated he could. Defendant points to no other ramifications of 

the belatedly discovered evidence, and we find no prejudice.

Expert Testimony

The trial court refused to allow Dr. Menard-Warwick to testify that she had relied 

on another expert’s opinion in formulating her opinion regarding defendant’s ability to 

read English. This refusal, defendant contends, denied him due process.

Background

During the direct examination of Dr. Menard-Warwick, defense counsel asked her 

for an opinion based on a hypothetical: “Do you think it would be possible for someone 

with a sixth grade education in Spanish from a rural Mexican school to be able to read 

and understand the [advisement on immigration consequences] without having studied 

for many years English after arriving in the United States?” The professor replied: “No. 

To read that sentence, you would definitely need to study English. Pretty much 

regardless of your level of education. To be able to read a sentence like that, you need to 

do some study in English.” Defense counsel asked the witness if she had confirmed her 

“opinion with any experts in relying on them to come to a conclusion?”

The prosecution objected to the question. In sustaining the objection the court 

found: “[W]hat you’re asking her to do is to say this other person who hasn’t been 

qualified as an expert, I gave these facts to him, and they came to the same conclusion as 

me. Which is different than relying on a study that was done or something like that.”

Discussion

Evidence Code section 801 states: “If a witness is testifying as an expert, his 

testimony in the form of an opinion is limited to such an opinion as is: [¶] (a) Related to 
16

a subject that is sufficiently beyond common experience that the opinion of an expert 

would assist the trier of fact; and [¶] (b) Based on matter (including his special 

knowledge, skill, experience, training, and education) 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 testimony relates, unless an expert is precluded by law from 

using such matter as a basis for his opinion.” Evidence Code section 804, subdivision (a) 

states that an expert may testify to the statements of other experts if those statements 

were used to form the expert’s own opinion.

Defendant argues the court’s refusal to allow Dr. Menard-Warwick to testify that 

she relied on the opinions of other experts in forming her opinion violated his right to due 

process. We disagree.

Defense counsel asked Dr. Menard-Warwick if she had confirmed her “opinion 

with any experts in relying on them to come to a conclusion” regarding her opinion as to 

how much English proficiency was necessary to understand the immigration advisement. 

In sustaining the prosecution’s objection, the court correctly noted the question did not 

establish who the experts were or what their expertise consisted of. Instead, defense 

counsel sought to elicit testimony about whether an unnamed expert agreed with 

Dr. Menard-Warwick’s conclusion. We review the trial court’s evidentiary rulings for an 

abuse of discretion. (People v. Dean (2009) 174 Cal.App.4th 186, 193.) We find no such 

abuse of discretion.

Prosecution Argument With Expert

Defendant asserts the trial court allowed the prosecution to argue with 

Dr. Menard-Warwick. Defense counsel was denied “a reasonable chance to respond to 

the improper questioning, denying him due process.”
17

Background

During cross-examination of Dr. Menard-Warwick, the prosecution asked the 

professor about the written waiver and plea form: “So it indicates that he did talk to his 

attorney about his rights, consequences, isn’t that correct, if this form is to be believed?” 

The witness replied: “That’s what that says, but I also stand by my firm considered 

expert opinion that he could not read that sentence. Maybe he’s indicating that he read 

that sentence, but my firm opinion is that he could not have read that sentence no matter 

whether or not he said he could.”

This exchange followed:

“Q. That’s again based upon what you believe to be a sixth grade education from 

rural Mexico . . . .

“[Defense Counsel]: Objection. Argumentative.

“[Prosecutor]: He did nine years . . . .

“The Court: He can actually argue with her.

“The Witness: Can I argue back? When can I argue back?

“The Court: Well, actually he can’t really argue.

“[Prosecutor]: Nothing further.

“The Court: But vigorous cross-examination.

“[Prosecutor]: Thank you, ma’am.

“The Witness: Can I take that as a question and respond?

“[Prosecutor]: No, I withdraw whatever that was.”

Discussion

Defendant argues that, because his request for a brief recess had previously been 

denied, his “case ended with the prosecution arguing and harassing a defense witness, 

and without a realistic opportunity for [him] to respond.” We disagree. 

After defense counsel objected to the questioning of Dr. Menard-Warwick, the 

trial court ruled that the prosecution could not argue with the witness. The prosecution 
18

then withdrew the question and ended the cross-examination. Although Dr. MenardWarwick wanted to answer the question and expressed frustration at being denied the 

opportunity to respond, there was not really an argument or harassment on the part of the 

prosecution. Defendant was not denied due process, nor was he prejudiced by the brief 

exchange.

Unduly Prejudicial Evidence

Finally, defendant asserts the trial court should have granted his motion to vacate 

because the prosecution was permitted to introduce unduly prejudicial evidence. 

Defendant points to testimony relating to his level of sobriety and possession of a 

controlled substance.

Background

During the direct examination of Officer Calcutt, the prosecution asked him if he 

had received any training in drug recognition. Defense counsel objected, arguing the 

court called the evidentiary hearing for the sole purpose of deciding whether or not 

defendant had the English ability to understand the advisement. The trial court allowed 

the officer to answer, with the understanding the prosecution would “lay some foundation 

with respect to his subsequent testimony . . . that he’s going to give with respect to 

whether or not [defendant] could understand English.” Officer Calcutt testified he 

received specialized training in the detection of persons under the influence of controlled 

substances.

Calcutt also testified he spoke to defendant in English and instructed him on how 

to perform the field sobriety tests. According to Calcutt, defendant spoke “in broken 

English,” “not perfect English.” The officer described defendant’s speech as “Words, 

phrases that grammatically would not go together at all times. It’s not a specific dialect. 

It perhaps is a word but not in the right tense.” Officer Calcutt also testified he found 

what he believed to be drugs in defendant’s car. He asked defendant if the substance was 
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his. The officer testified that defendant replied “the crystal, quote/unquote, was his.” 

During the booking process, defendant answered questions appropriately.

Discussion

According to defendant, Officer Calcutt’s testimony was inadmissible and unduly 

prejudicial because it highlighted specific facts about defendant’s use and possession of 

drugs: “Evidence of drug use will make any trier of fact look at a defendant in a 

prejudicial light, and make them less likely to find in the defendant’s favor.” In addition, 

defendant contends his reading ability was the main issue, not primarily his oral 

comprehension.

Under Evidence Code section 352 the court may exclude evidence if its probative 

value is substantially outweighed by the probability its admission will necessitate undue 

consumption of time or create substantial danger of undue prejudice, of confusing the 

issues, or of misleading the jury. We review the trial court’s decision to admit evidence 

under the abuse of discretion standard. (People v. Pierce (2002) 104 Cal.App.4th 893, 

900-901.)

Officer Calcutt’s testimony regarding his interactions with defendant during the 

2004 traffic stop were relevant to the central issue of the evidentiary hearing: defendant’s 

comprehension of English in 2004 when he entered his guilty plea. As part of that 

testimony, Calcutt discussed defendant’s ability to comply with the field sobriety test and 

his ability to communicate with the officer. Defendant spoke “broken English,” but when 

asked about the substance in his car, he replied “Crystal.” Defendant also responded to 

the booking questions appropriately. The prejudicial aspect of the testimony—

defendant’s involvement with drugs—did not outweigh its probative impact.

Although defendant argues his reading ability was at issue, not his oral 

comprehension, both are part and parcel of the same inquiry. When entering his guilty 

plea, defendant stated he understood what he had signed and did not need an interpreter. 

The trial court, in reviewing the plea, necessarily considered defendant’s ability to both 
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read and speak English and understand his lawyer, abilities Officer Calcutt’s testimony 

directly related to. We find no abuse of discretion in the trial court’s admission of 

Officer Calcutt’s testimony regarding drug possession.

DISPOSITION

The judgment is affirmed.

 RAYE , P. J.

We concur:

 MURRAY , J.

 HOCH , J.