Ojeda

*406 Opinion

In No. 2746 Pedro Cortez Ojeda was convicted, in a jury trial, of felony driving under the influence of alcohol, and of driving with a blood alcohol level of .10 or higher, with three prior violations within seven years (Veh. Code, § 23152, subds. (a), (b), § 23175). In No. 2743 Ojeda was convicted by a jury of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), and pleaded no contest to sexual battery (Pen. Code, § 243.4, subd. (a)). He contends the trial court erred by allowing the arresting officer to testify as to the results of a horizontal gaze nystagmus test, and by allowing the prosecution to reopen its case on the prior violations after submission to the jury. We affirm.

I

Nystagmus is an involuntary rapid movement of the eyeball, which may be horizontal, vertical, or rotatory. (The Sloane-Dorland Ann. Medical-Legal Diet. (1987) p. 504.) An inability of the eyes to maintain visual fixation as they are turned from side to side (in other words, jerking or bouncing) is known as horizontal gaze nystagmus, or HGN. (State v. Murphy (Iowa 1990) 451 N.W.2d 154, 156 .) Some investigators believe alcohol intoxication increases the frequency and amplitude…

I concur in the result, but disagree with the majority’s conclusion that the officer was qualified to testify, in the form of an opinion, about the horizontal gaze nystagmus (HGN) test. “An opinion is an inference from facts observed. One of the fundamental theories of the law of evidence, expressed in the opinion rule, is that witnesses must ordinarily testify to facts, leaving inferences or conclusions to the jury or court. [Citations.]” (1 Witkin, Cal. Evidence (3d ed. 1986) § 447.) There are, of course, exceptions, such as those for expert witnesses and in those situations when the facts observed by lay witnesses “are too complex or too subtle to enable them accurately to convey them to court or jury in any other manner. [Citations.]” (Manney v. Housing Authority (1947) 79 Cal.App.2d 453, 459 [ 180 P.2d 69 ]; Chatman v. Alameda County Flood Control etc. Dist. (1986) 183 Cal.App.3d 424, 429 [ 228 Cal.Rptr. 257 ]; Evid. Code, § 800.)

Witnesses are qualified to testify as experts only if they have special knowledge, skill, experience, training, or education sufficient to qualify them as an expert on the subject to which their testimony relates. (Evid. Code, § 720, subd. (a).) A…

[Opinion certified for partial publication. [*] ]

OPINION

LOW, P.J.

In No. 2746 Pedro Cortez Ojeda was convicted, in a jury trial, of felony driving under the influence of alcohol, and of driving with a blood alcohol level of .10 or higher, with three prior violations within seven years (Veh. Code, § 23152, subds. (a), (b), § 23175). In No. 2743 Ojeda was convicted by a jury of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), and pleaded no contest to sexual battery (Pen. Code, § 243.4, subd. (a)). He contends the trial court erred by allowing the arresting officer to testify as to the results of a horizontal gaze nystagmus test, and by allowing the prosecution to reopen its case on the prior violations after submission to the jury. We affirm.

(1) Nystagmus is an involuntary rapid movement of the eyeball, which may be horizontal, vertical, or rotatory. (The Sloane-Dorland Ann. Medical-Legal Dict. (1987) p. 504.) An inability of the eyes to maintain visual fixation as they are turned from side to side (in other words, jerking or bouncing) is known as horizontal gaze nystagmus, or HGN. ( State v. Murphy (Iowa 1990) 451 N.W.2d 154, 156 .) Some investigators believe…