The opinion
Filed 8/29/24 P. v. Shojaei CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G062293
v. (Super. Ct. No. 18HF1163)
MOHAMMADREZA SHOJAEI, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County,
Richard M. King, Judge. Affirmed.
Steven S. Lubliner, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Collette
C. Cavalier and Maxine Hart, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant Mohammadreza Shojaei was convicted of animal
cruelty for maliciously injuring his roommate’s dog, Max. At trial, defendant
testified he loved Max and injured him only by accident. However, an animal
services officer testified the circumstances surrounding the incident were
inconsistent with defendant’s version of events. Defendant contends the
officer was not qualified to render an opinion on that issue, but we find no
abuse of discretion in the trial court’s decision to the contrary. Accordingly,
we affirm the judgment.
STATEMENT OF FACTS
Max was a 16-pound Chihuahua/Shih Tzu mix. His owner shared
an apartment with defendant and usually tended to his needs. However, on
May 26, 2018, she was out of town, and defendant was responsible for looking
after Max.
That day, at around 3:00 p.m., defendant called 911 in a panic
and reported Max was paralyzed and dying on the floor. Asked what
happened, defendant said, “He bite me. I shake my hand. He hit the wall.”
Defendant requested assistance, so the police were dispatched to his Irvine
apartment.
One of the officers who arrived there was Animal Services Officer
Madison Morris. She found Max lying on his side in the hallway next to the
kitchen. Although Max was conscious, he could not lift his head or move his
body, and he had defecated on himself. Defendant, who was anxious and
emotional, told Morris that Max bit his hand in the bathroom. He said that in
reaction to the bite, he pulled his hand back and shook his arm to get Max off
him, and that is when Max hit the wall.
Defendant also said he bled from the bite, but when Morris
looked in the bathroom, she did not see any blood. In fact, when defendant
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showed her his hand, she did not see any sign of injury until defendant
directed her to the precise spot where Max had bitten him. In the area
around his right thumb, defendant had some superficial “tooth scrapes” and
“puncture/skin breaks.” But, according to Morris, the wounds were minor and
nonpenetrating; they did not require irrigation, antibiotics, or stitches. Yet,
when the police photographed the wounds, defendant was very fidgety and
had to have his hand held still.
Morris took Max to a veterinary hospital, where he was
diagnosed with a fractured neck and a compressed spinal cord. His treating
doctor believed the injuries were caused by head-on blunt force trauma. He
surmised there was a chance that Max could walk again if he had major
surgery, but his owner decided to put him down. A necropsy confirmed Max
had suffered serious neck trauma. The performing pathologist opined his
injuries resulted from the type of severe and sudden impact that commonly
occurs in car accidents.
At trial, defendant testified he grew up in Iran and had a hard
time expressing himself in English sometimes. On the day in question, he
wanted to take Max for a walk, but when he got his leash, Max went under
the kitchen table. Defendant tried to coax him out by showing him the remote
control associated with his collar. However, Max nipped at the remote and
ran into the bathroom. Defendant followed, finding Max behind the door.
When he bent down to pet him, Max bit his thumb and took most of the
appendage in his mouth. Seeing blood in Max’s mouth, defendant became
very frightened because he is hemophobic. He started shaking his arm side to
side in order to free his thumb, and as he was doing so, Max hit the wall and
slumped to the floor. Asked if Max left the ground before impact, defendant
said no.
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After washing his hands in the kitchen and attending to his
wounds, defendant returned to the bathroom and discovered Max was still
not moving. He used a mat to transport Max into the hallway area. Then he
pricked his paw with a pin to see if he could feel any pain. When Max did not
respond, he called 911 and requested emergency assistance. According to
defendant, the entire ordeal was an accident; he loved Max very much and
never intended to hurt him.
Morris had a different take on the situation, based on what she
saw at the scene. At trial, she testified that during her time as an animal
services officer for the Irvine Police Department, she responded to
approximately 200 calls involving dog bites.1 Some of those calls were for
serious, penetrating bites. However, Morris described defendant’s injuries as
minor scraping wounds. She did not believe they were consistent with
defendant’s claim about how Max was injured.
In rendering that opinion, Morris took issue with defendant’s
testimony that Max never left the ground before hitting the wall. Based on
the severity of Max’s injuries, Morris was convinced that he must have been
lifted off the ground prior to impact. However, she said that could not have
occurred while defendant was shaking his arm because Max did not bite him
deep enough to allow the dog to latch onto his thumb in the first place.
Therefore, defendant’s story about how Max was injured did not add up to
her.
To counter Morris’ testimony, the defense called Dr. Kimberly
Carvalho-Faucher, a specialist in veterinary forensics. She testified it is
1
Morris worked as an animal services officer for two-and-a-half
years before becoming a regular patrol officer. She is currently a deputy with
the Orange County Sheriff’s Department.
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impossible to quantify the amount of force required to break a small dog’s
neck because there are too many variables involved. However, if the dog’s
neck were compressed at a certain angle where the spinal process is at its
highest point, it would take less force than usually required to cause
significant injury. Dr. Carvalho-Faucher also testified there was nothing in
Max’s necropsy’s report indicating that he had brain damage, which is
commonly seen in severe trauma cases.
In the end, the jury convicted defendant of malicious animal
cruelty under Penal Code section 597, subdivision (a). After reducing the
conviction from a felony to a misdemeanor pursuant to Penal Code section 17,
subdivision (b), the trial court sentenced defendant to one year of formal
probation on the condition that he serve 90 days in jail. This appeal followed.
DISCUSSION
Defendant argues the trial court erred in allowing Morris to
testify about the plausibility of his testimony as to how Max was injured
because that issue was outside the scope of her expertise. In so arguing,
defendant claims Morris testified that Max was injured by him “picking Max
up off the ground and slamming him into a wall.”
Our response is threefold. First, Morris did not actually say that
in her testimony. Second, Morris was qualified to offer an opinion on the
plausibility of defendant’s version of events. And third, even if she was not,
the error in allowing her to do so was both invited and harmless.
I.
FACTUAL BACKGROUND
We begin with an overview of how Morris’ testimony unfolded.
On direct examination, she testified that she responded to over 400 calls of
animal abuse during her career as an animal services officer. Roughly half of
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those calls involved dog bites, ranging from serious “mauling” bites, which
result from the dog sinking his teeth into the victim’s skin, to minor “tooth
scrapes,” which are caused when the victim’s hand briefly comes in contact
with the dog’s teeth. Most of the injuries she observed on defendant were of
the latter variety; “very superficial or light cut[s] caused by a tooth.”
Defendant also had a couple of “single point,” “puncture/skin break” wounds,
but they were not penetrating or serious.
Given Morris’ experience handling dog bite cases, the prosecutor
wanted to ask her if defendant’s injuries were consistent with his testimony
about how Max was injured. Recall, defendant had testified that after Max
bit his thumb, he shook his arm back and forth to get Max off him, implying
that Max had latched onto his thumb with his teeth. And during the shaking,
Max hit the wall without ever having left the ground. The prosecutor wanted
to ask Morris if defendant’s injuries were such that Max could have actually
latched onto his thumb in the first place.
Defense counsel objected on the basis Morris was not qualified to
render an opinion on that topic. However, during voir dire, Morris testified
that she had personally observed injuries that resulted from dogs latching
onto a victim’s hand with his teeth. Therefore, even though Morris admitted
she had no formal medical training on latching injuries and had not read any
research papers about them, the trial court allowed the prosecutor to go
forward with his questioning. Back in front of the jury, the following
exchange occurred between him and Morris:
“Q. Was the bite mark that you observed on the defendant
consistent with how he told you he received that bite mark?
“A. No.
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“Q. Based solely on what you observed . . ., what about that bite
mark is inconsistent?
“A. The depth.
“Q. And what do you mean by ‘depth’?
“A. That [the bite] is not a sufficient depth to lift a dog [of Max’s]
size.”
On cross-examination, Morris conceded she had no personal
knowledge as to whether Max was actually lifted off the ground, and the
pattern of the scrape marks on defendant’s hand was generally consistent
with his claim about shaking his arm. But when defense counsel asked if that
meant defendant’s injuries were consistent with his claim about how Max
was injured, Morris answered no. Instead of leaving that answer alone,
defense counsel proceeded to ask Morris why she felt that way. Morris said
that if defendant shook his arm to extract Max from his thumb while Max
was on the ground, it would not have created enough force to break his neck
when he hit the wall. Therefore, the only way for Max to have sustained such
a serious injury was if he had been “lifted airborne off the ground.”
When defense counsel objected to that answer on foundational
grounds, the trial judge met with the attorneys outside the presence of the
jury to discuss the issue. Defense counsel argued Morris did not have
sufficient knowledge of the type of force required to break a dog’s neck to
opine on how Max was injured. However, the judge overruled the objection
and allowed Morris’s answer to stand. In so doing, the judge told defense
counsel that she only had herself to blame for the answer because she asked
Morris an open-ended question. Nevertheless, the judge said he would allow
her free rein to question Morris about the foundation for her opinions.
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When cross-examination resumed, defense counsel asked Morris
about her training and experience on the amount of force required to break a
dog’s neck. While admitting she had no formal training on that issue, Morris
said she had investigated and reviewed cases where dogs had suffered broken
necks from car accidents, being stepped on, and running into sliding glass
doors. In such cases, it was her responsibility to determine whether the dog’s
injuries were caused by accident or abuse. To make that determination, she
would talk to witnesses, watch any available surveillance footage, and review
the veterinarian records to get an understanding of how the injury incurred.
Morris conceded, though, she did not know: 1) the amount of force
or momentum needed to break a dog’s neck; 2) the amount of force,
momentum or speed defendant generated by shaking his arm after Max bit
him; 3) how far defendant’s arm was extended from his body at that time; 4)
how long Max was latched on to defendant’s thumb; 5) how Max hit the wall;
or 6) what his neck flexion was at impact. Morris also admitted that,
although defendant demonstrated to her how he shook his arm following the
bite, he did not reenact the biting incident for her in terms of where he was
standing when Max hit the wall or the angle at which the impact occurred.
II.
ANALYSIS
Defendant does not challenge Morris’ qualifications to testify as
an expert on dog bites. However, he contends she had no business testifying
about how Max’s injuries occurred. More particularly, defendant complains
that Morris was improperly allowed to testify that he “must have picked up
Max and thrown him into a wall.” But Morris never testified that defendant
picked up Max or that he threw Max against the wall. Rather, she simply
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opined that Max’s injuries were inconsistent with defendant’s claim that Max
never left the ground prior to hitting the wall.
Moreover, defense counsel was the one who elicited Morris’
testimony on that topic. As explained in People v. Bell (2020) 47 Cal.App.5th
153, the invited error doctrine precludes a defendant from mounting an
appellate challenge to testimony that was elicited from his own attorney. (Id.
at p. 193; accord, People v. Williams (2009) 170 Cal.App.4th 587, 620.)
Defendant contends Bell was wrongly decided, but our Supreme Court has
ruled similarly in many cases. (See, e.g., People v. Harrison (2005) 35 Cal.4th
208, 237; People v. Gutierrez (2002) 28 Cal.4th 1083, 1138–1139; People v.
Visciotti (1992) 2 Cal.4th 1, 72; People v. Simmons (1946) 28 Cal.2d 699, 722.)
We are not at liberty to depart from those decisions. (Auto Equity Sales, Inc.
v. Superior Court (1962) 57 Cal.2d 450, 455.)
Even if the issue were properly before us, we do not believe the
trial court erred in allowing Morris to testify about the plausibility of
defendant’s version of events. A witness is sufficiently qualified to testify as
an expert if she has sufficient skill or expertise in the field such that her
testimony would likely assist the jury in its search for the truth. (Evid. Code,
§ 801, subd. (a); People v. Mayfield (1997) 14 Cal.4th 668, 766, abrogated on
other grounds in People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2.) “The
qualification of expert witnesses, including foundational requirements, rests
in the sound discretion of the trial court.” (People v. Ramos (1997) 15 Cal.4th
1133, 1175.) An abuse of discretion will only be found if the evidence shows
the witness clearly lacked qualification as an expert. (People v. Farnam
(2002) 28 Cal.4th 107, 162.)
Defendant argues Morris’ testimony about Max’s injuries was
outside the scope of her expertise. (See generally People v. Pearson (2013) 56
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Cal.4th 393, 445–446 [an expert’s qualifications must relate to the particular
subject on which she testifies]; People v. Hogan (1982) 31 Cal.3d 815, 852
[same], disapproved on other grounds in People v. Cooper (1991) 53 Cal.3d
771, 836.) In that regard, defendant claims Morris lacked the formal
education and training required to opine about the degree of force needed to
break a dog’s neck and whether Max’s injuries could have resulted from how
he described the incident.
However, a witness’s expertise “is not subject to rigid
classification according to formal education or certification.” (People v. Ojeda
(1990) 225 Cal.App.3d 404, 408.) Rather, expertise may be established by
showing the witness “‘has the requisite knowledge of, or was familiar with, or
was involved in, a sufficient number of transactions involving the subject
matter of the opinion.’” (ABM Industries Overtime Cases (2017) 19
Cal.App.5th 277, 294.) In other words, personal experience with the subject
matter of the expert opinion will suffice.
Morris testified that during her time as an animal services
officer, she responded to and reviewed cases in which dogs had suffered
broken necks in a variety of situations. Her job was to examine the
circumstances involved to determine whether the injury was an accident, or it
resulted from abuse or neglect. That assessment required Morris to examine
the nature of the dog’s injuries in light of any other available evidence, such
as witness statements about how the incident occurred, which is precisely
what she did in this case. As such, she was qualified to testify about the
significance of Max’s injuries, and the trial court did not abuse its discretion
in allowing her testimony on that subject to stand.
Furthermore, any error in allowing Morris to testify about Max’s
injuries was mitigated because defense counsel cross-examined her rigorously
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about the foundation for her opinions, and the jury was instructed to consider
that foundation in assessing the value of her testimony. (CALCRIM No. 332.)
The jury was also instructed that it could disregard Morris’ opinions
altogether if they were unbelievable, unreasonable, unsupported by the
evidence, or refuted by another, more qualified, expert. (Ibid.) Thus, it is
unlikely the jury blindly accepted Morris’ testimony without critically
examining the basis for her opinions.
In considering the issue of prejudice, it also important to keep in
mind that the doctor who treated Max at the emergency hospital and the
doctor who performed his necropsy both opined that Max’s injuries were
likely caused by high-impact blunt force trauma. So, even without Morris’
testimony, defendant would have had a hard time convincing the jury he
injured Max by accident.
For all these reasons, it is not reasonably probable defendant
would have obtained a more favorable result at trial absent Morris’s
testimony regarding the cause of Max’s injuries. (People v. Watson (1956) 46
Cal.2d 818, 836.) Therefore, there is no basis to disturb the jury’s verdict.
DISPOSITION
The judgment is affirmed.
DELANEY, J.
WE CONCUR:
O’LEARY, P. J.
SANCHEZ, J.
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