Filed 10/30/15 P. v. Cristobal 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                     (Sacramento)
                                                            ----




THE PEOPLE,

                   Plaintiff and Respondent,                                                 C072061

         v.                                                                      (Super. Ct. No. 11F06197)

JOHN JOSHUA CRISTOBAL,

                   Defendant and Appellant.




         Defendant John Joshua Cristobal drove his car with a 0.18 percent blood alcohol
content and caused a collision that resulted in serious injuries to Alyssa Calonge and
Ryan Smrekar. A jury convicted him of driving while under the influence of alcohol and
causing bodily injury (count one), driving with a blood alcohol content of 0.08 percent or
more and causing injury (count two), and failing to stop at the scene of an accident
involving property damage (count three). The jury found true the allegations that
defendant personally inflicted great bodily injury on Calonge and Smrekar, proximately


                                                             1
caused bodily injury to more than one victim while he drove under the influence of
alcohol, and willfully drove a motor vehicle with a blood alcohol content of 0.15 percent
or more. The trial court sentenced defendant to an aggregate prison term of 10 years.
       Defendant now contends (1) his statements to a law enforcement officer at the
scene of the collision are inadmissible because they are the product of a custodial
interrogation, and the officer did not give him the warnings required by Miranda v.
Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda); (2) the trial court abused its
discretion in excluding third party culpability evidence; and (3) the judgment must be
reversed because of prejudicial juror misconduct.
       We conclude (1) Miranda warnings were not required because, considering the
totality of the circumstances surrounding the incident, defendant was not in custody when
he made the statements to the officer; (2) any error in excluding the proffered third party
culpability evidence was harmless beyond a reasonable doubt; and (3) defendant forfeited
his juror misconduct claims because he did not object in the trial court on the grounds
raised on appeal.
       We will affirm the judgment.
                                      BACKGROUND
                                             A
       Defendant went to a Sacramento nightclub with Milton Brott and Lance Fletcher
to celebrate Brott’s birthday. Defendant drove Brott and Fletcher to the nightclub in his
white Mercedes Benz. Brott and defendant shared a bottle of vodka with others who met
them at the nightclub. Fletcher did not drink any alcohol.
       Brott, Fletcher, and defendant left the nightclub around 2:00 a.m. Brott and
defendant were drunk. Defendant got into the driver’s seat of his car, Brott sat in the
front passenger seat, and Fletcher sat in the back seat behind Brott.
       Defendant drove southbound on 15th Street and then turned eastbound into the
westbound lane of Capitol Avenue. At some point Fletcher saw a car coming toward

                                             2
defendant’s car. Defendant swerved, and his car went up onto the curb and hit a sign.
Defendant then swerved back onto the street. Defendant did not stop the car.
       Fletcher was scared. He said, “Let’s get a taxi. Let’s just pull over and get a taxi.”
Defendant did not respond. Fletcher then told defendant there was a police vehicle
behind them and to stop. Instead of stopping, defendant accelerated above freeway
speed. Fletcher yelled at defendant to pull over and tried to wake Brott. Defendant did
not respond to Fletcher’s screaming.
       Fletcher felt defendant’s car hit something. Police later determined defendant’s
car hit the side of a parked car. Fletcher felt defendant’s car “catch air” and then hit
something again. It was later determined the Mercedes Benz ultimately hit the back of
Alyssa Calonge’s parked Toyota Tacoma pickup truck. Fletcher got out of the car after
the collision.
                                              B
       California Highway Patrol Officer Mark Thompson was in a marked patrol vehicle
at about 1:48 a.m. He saw a white Mercedes Benz, later determined to be defendant’s
car, travel southbound on 15th Street and then turn eastbound onto the westbound lane of
Capitol Avenue. The car went up onto the sidewalk and knocked over a stop sign.
       Defendant’s car traveled toward Officer Thompson’s patrol vehicle, forcing the
officer to make a hard right to avoid a head-on collision. Defendant’s car did not slow
down or make any evasive action. Defendant’s car turned back onto 15th Street. Officer
Thompson did not see the face of the Mercedes Benz driver but saw that the driver wore
a white shirt.
       Officer Thompson turned on the overhead and flashing lights of his patrol vehicle.
Defendant’s car accelerated. Officer Thompson accelerated to 50 or 60 miles per hour,
but he could not catch up to defendant’s car. At one point, Officer Thompson lost sight
of the car. Officer Thompson heard what sounded like a collision and then saw smoke,



                                              3
debris, and what looked like an explosion ahead of him. He saw a blue pickup truck that
appeared to have been involved in a collision.
       Officer Thompson parked his patrol vehicle behind the pickup truck. He
immediately went to the truck and saw a man and a woman on the floorboard of the
truck. Two off-duty paramedics assisted with the occupants of the truck.
       Officer Thompson then walked to defendant’s car. He saw Brott pinned inside the
car. The speedometer was stuck at 80 miles per hour. Officer Thompson saw defendant
in a grassy area in front of the Mercedes Benz. Officer Thompson asked defendant if he
was okay and defendant said “yes.” Officer Thompson asked defendant to walk to a
nearby bus stop and to sit down. Defendant complied without assistance. Officer
Thompson then asked defendant if he was the driver of the Mercedes Benz. Defendant
answered “yes.” Officer Thompson placed defendant in handcuffs.
                                             C
       Calonge and the other occupant of the truck, Ryan Smrekar, suffered various
injuries as a result of the accident. Smrekar was in the hospital for seven days. Fletcher
and Brott were also injured.
       Defendant had a 0.18 percent blood alcohol level. The People’s expert on forensic
alcohol analysis and the effects of alcohol opined a person with a 0.18 percent blood
alcohol level is too impaired to drive safely. The expert said a man weighing 174 pounds
who had a 0.18 percent blood alcohol content would have the equivalent of eight
alcoholic drinks in his system. Assuming all of the alcohol was fully absorbed, the same
person would have approximately 0.21 percent blood alcohol content (or the equivalent
of nine and half alcoholic drinks in his system) at 1:50 a.m. if he had a 0.18 percent blood
alcohol content at 3:20 a.m. Defendant weighed approximately 174 pounds. A nurse
obtained a blood sample from defendant at 3:20 a.m.
       Brott was very reluctant to testify at the trial because he considered defendant a
friend. Brott said Fletcher at times had a reputation for lying. But Brott said defendant

                                             4
told him “I fucked up” when defendant visited Brott at the hospital. Defendant
apologized to Brott for what happened. Defendant said he wanted to apologize to the
people in the pickup truck, but his attorney told him he should not do that.
       Sacramento Police Detective James Anderson testified as an expert on major
collisions for the People. He opined, based on his interviews with witnesses, the
photographs taken at the collision scene, and the physical evidence, that Calonge’s
pickup truck was parked when defendant’s car collided with it. Defendant’s expert on
accident reconstruction and occupant kinematics, Dean Reichenberg, agreed the pickup
truck was parked at the time of the collision.
       Reichenberg concluded the right front portion of defendant’s car hit the back of
the pickup truck. He said there was nothing in the roadway that caused defendant’s car to
veer toward the pickup truck. The collision pushed the pickup truck forward and caused
it to turn 180 degrees, jump the curb, and strike a large tree. Reichenberg also opined the
Sacramento Police Department failed to collect all of the evidence, including body fluid
and fabric imprints from the windshield and steering wheel of the Mercedes Benz.
       Reichenberg further opined, based on his review of defendant’s medical records
and the physical evidence, that he could not conclude defendant was the driver of the
Mercedes Benz at the time of the collision. He said defendant suffered injuries that were
consistent with defendant being in the driver’s seat or in the rear passenger seat at the
time of the collision. Reichenberg agreed, however, that no physical evidence excluded
defendant as the driver.
       Defendant attacked the accuracy of the police reports by Sacramento Police
Officers Ethan Hanson and Jonathan Gresham. The statements in Officer Hanson’s
report about Smrekar’s location and the officer’s arrival time at the hospital, where he
observed defendant’s blood draw, were incorrect. Officer Gresham’s report incorrectly
stated the pickup truck was moving at the speed of 30 miles per hour at the time of the
collision.

                                              5
        Defendant also presented evidence that he was from the Philippines, English was
not his native language, and he had problems communicating in English at times. But
defendant spoke English and did not require an interpreter during the trial.
        The jury found defendant guilty of driving under the influence of alcohol while
doing an act forbidden by law and causing bodily injury to another (Veh. Code, § 23153,
subd. (a) -- count one);1 driving with 0.08 percent or more, by weight, of alcohol in his
blood while doing an act forbidden by law and causing bodily injury to another (§ 23153,
subd. (b) -- count two); and failing to stop after causing property damage (§ 20002,
subd. (a) -- count three). The jury also found true allegations that defendant personally
inflicted great bodily injury on Calonge and Smrekar (Pen. Code, § 12022.7, subd. (a)),
proximately caused bodily injury to more than one victim (§ 23558), and willfully and
unlawfully drove a motor vehicle with 0.15 percent or more by weight blood alcohol
concentration (§ 23578).
        The trial court sentenced defendant to an aggregate term of 10 years in prison,
consisting of the following: on count one, the middle term of two years plus a
consecutive six years for the Penal Code section 12022.7 enhancements and a
consecutive two years for the section 23558 enhancements; and on count two, the middle
term of two years, stayed pursuant to Penal Code section 654.
        Additional facts are set forth in the discussion as relevant to defendant’s
contentions on appeal.
                                       DISCUSSION
                                               I
        Defendant contends his statements to Officer Thompson at the scene of the
collision are inadmissible because they are the product of a custodial interrogation, and




1   Undesignated statutory references are to the Vehicle Code.

                                              6
Officer Thompson did not give defendant the warnings required by Miranda, supra,
384 U.S. 436 [16 L.Ed.2d 694].
                                            A
      Defendant moved in limine to exclude evidence of his statements to Officer
Thompson at the accident scene. The trial court conducted an Evidence Code section 402
hearing at defendant’s request. Officer Thompson, the sole witness at the hearing,
testified as follows: He pursued a white Mercedes Benz sedan at about 1:48 a.m. He saw
an explosion and things flying in the air when he was at about P Street. There was a
Toyota pickup truck that appeared to be involved in a collision. He stopped his patrol
vehicle and checked on the occupants of the truck. He then walked to the Mercedes
Benz, which was stopped near a bus stop bench at the intersection of 15th and S Streets.
The Mercedes Benz was the same car the officer had been chasing. He saw defendant in
the grass near the Mercedes Benz. He asked defendant if he was okay. Defendant
responded “yes.” Officer Thompson asked defendant if he could get up and defendant
got up. Officer Thompson directed defendant to the bus stop bench and defendant
walked without assistance. Officer Thompson asked defendant to sit on the bench and
defendant complied. Officer Thompson did not touch defendant. Officer Thompson
asked if defendant had been driving the Mercedes Benz. Defendant appeared to
understand the question and responded “yes.” Officer Thompson immediately
handcuffed defendant after defendant said he was the driver. There was no other officer
at the scene. Officer Thompson left defendant on the bus bench and checked on the front
seat passenger of the Mercedes Benz.
      After hearing argument from counsel, the trial court denied defendant’s motion to
exclude his statements to Officer Thompson. The trial court ruled that Officer Thompson
was not required to give defendant Miranda advisements at the time defendant admitted
he was the driver, because defendant was not in custody at that time and Officer
Thompson did not interrogate defendant. The trial court said preliminary questions asked

                                            7
during a driving under the influence investigation, such as “were you the driver,” do not
implicate Miranda.
                                               B
       “To safeguard the uncounseled individual’s Fifth Amendment privilege against
self-incrimination, the Miranda Court held, [individuals] interrogated while in police
custody must be told that they have a right to remain silent, that anything they say may be
used against them in court, and that they are entitled to the presence of an attorney, either
retained or appointed, at the interrogation.” (Thompson v. Keohane (1995) 516 U.S. 99,
107 [133 L.Ed.2d 383, 391].) “The purposes of the safeguards prescribed by Miranda
are to ensure that the police do not coerce or trick captive suspects into confessing, [and]
to relieve the ‘ “inherently compelling pressures” ’ generated by the custodial setting
itself, ‘ “which work to undermine the individual’s will to resist” ’ . . .” (Berkemer v.
McCarty (1984) 468 U.S. 420, 433 [82 L.Ed.2d 317, 330], italics omitted.) The People
may not use statements obtained in violation of Miranda to establish guilt. (Id. at p. 428
[82 L.Ed.2d at p. 328].)
       Miranda warnings are required only when a defendant is in custody. (Stansbury v.
California (1994) 511 U.S. 318, 322 [128 L.Ed.2d 293, 298]; Miranda, supra, 384 U.S.
at pp. 444, 478-479 [16 L.Ed.2d at pp. 706, 726].) An interrogation is custodial when the
defendant is placed under arrest or his freedom of movement is restrained to the degree
associated with a formal arrest. (California v. Beheler (1983) 463 U.S. 1121, 1125
[77 L.Ed.2d 1275, 1279]; People v. Leonard (2007) 40 Cal.4th 1370, 1400 (Leonard).)
The test for whether a person is in custody is an objective one. (Stansbury v. California,
supra, 511 U.S. at p. 323 [128 L.Ed.2d at p. 298]; Leonard, supra, 40 Cal.4th at p. 1400.)
“When there has been no formal arrest, the question [in determining whether a defendant
is in custody] is how a reasonable person in the defendant’s position would have
understood his situation. [Citation.] All the circumstances of the interrogation are
relevant to this inquiry, including the location, length and form of the interrogation, . . .

                                               8
and whether any indicia of arrest were present.” (People v. Moore (2011) 51 Cal.4th 386,
395 (Moore).) We do not consider the subjective views harbored by the police officer
and the person being questioned. (Stansbury v. California, supra, 511 U.S. at p. 323
[128 L.Ed.2d at p. 298].) An investigating officer’s suspicions or beliefs are relevant to
our inquiry only if the suspicions or beliefs are communicated to the defendant and would
have affected how a reasonable person in the defendant’s position would perceive his
freedom to leave or if such evidence is relevant in testing the credibility of the officer’s
account of what happened during the interrogation. (Id. at pp. 323-325 [128 L.Ed.2d at
pp. 298-300]; People v. Stansbury (1995) 9 Cal.4th 824, 830.)
       In determining whether defendant was subjected to custodial interrogation, we
accept the trial court’s resolution of disputed facts and inferences, and its evaluations of
credibility, if supported by substantial evidence. (People v. Thomas (2011) 51 Cal.4th
449, 476 (Thomas).) We independently determine from the undisputed facts and the facts
properly found by the trial court whether the challenged statement was obtained in
violation of Miranda. (Moore, supra, 51 Cal.4th at p. 395; Thomas, supra, 51 Cal.4th at
p. 476.) We review the correctness of the trial court’s ruling at the time it was made, not
by reference to evidence produced at a later date. (People v. Jenkins (2000) 22 Cal.4th
900, 1007, fn. 23; People v. Welch (1999) 20 Cal.4th 701, 739; People v. Hendrix (2013)
214 Cal.App.4th 216, 243.)
       A defendant is not in police custody merely because he is temporarily detained
by police. (Thomas, supra, 51 Cal.4th at pp. 475-477; In re Joseph R. (1998)
65 Cal.App.4th 954, 957-958.) For example, roadside questioning during a routine
traffic stop is not custodial interrogation. (Berkemer v. McCarty, supra, 468 U.S. at
p. 435, 437-440 [82 L.Ed.2d at pp. 331, 333-335].)
       In Berkemer v. McCarty, a highway patrol officer stopped a car after observing it
weave in and out of a lane. (Id. at p. 423 [82 L.Ed.2d at p. 324].) The defendant had
difficulty standing when he got out of the car. (Ibid.) The officer decided the defendant

                                              9
would be charged with a traffic offense; however, the officer did not tell the defendant he
would be taken into custody. (Ibid.) Without advising the defendant of his Miranda
rights, the officer asked the defendant whether he had been using intoxicants. (Ibid.)
The defendant said he had two beers and smoked marijuana a short time before. (Ibid.)
The officer placed the defendant under arrest. (Ibid.) The United States Supreme Court
concluded the defendant was not in custody within the meaning of Miranda until he was
placed under arrest; therefore, his pre-arrest statements were admissible against him.
(Berkemer v. McCarty, supra, 468 U.S. at p. 442 [82 L.Ed.2d at p. 336].) The Supreme
Court reasoned that only a short period of time elapsed between the initial traffic stop and
the arrest. (Id. at p. 441 [82 L.Ed.2d at p. 336]) A single officer asked the defendant a
modest number of questions at a location visible to passing motorists. (Id. at 442
[82 L.Ed.2d at p. 336].) And although the officer decided to arrest the defendant as soon
as he stepped out of his car, the officer did not tell the defendant he would be taken into
custody. (Ibid.) The Supreme Court said treatment of this sort cannot fairly be
characterized as the functional equivalent of a formal arrest. (Ibid.; see Pennsylvania v.
Bruder (1988) 488 U.S. 9, 10-11 [102 L.Ed.2d 172, 176-177] [pre-arrest questioning
during roadside, driving under the influence investigation does not involve custody for
purposes of Miranda]; People v. Forster (1994) 29 Cal.App.4th 1746, 1753-1754
[detaining the defendant at a secondary location pursuant to a possible driving under the
influence investigation did not result in placing the defendant in custody for purposes of
Miranda].)
       People v. Bellomo (1992) 10 Cal.App.4th 195 (Bellomo) also involved whether
on-the-scene questioning constituted custodial interrogation. In that case, a car co-owned
by defendant and his brother struck two parked cars. (Id. at p. 197.) One of the issues at
trial was whether the defendant was the driver. (Ibid.) An evidentiary hearing disclosed
that a paramedic had informed the first officer on the scene that defendant exited the car
from the driver’s side. (Id. at p. 198.) The officer saw defendant sitting on a curb

                                             10
slumped over and asked him whether he was the driver. (Ibid.) The defendant denied he
was the driver. (Ibid.) At trial, the defendant argued the officer should have read him his
Miranda rights before asking him whether he was driving. (Ibid.)
       The Court of Appeal rejected the claim that asking the defendant whether he was
the driver was an accusatory question. (Bellomo, supra, 10 Cal.App.4th at p. 199.) The
court said the officer simply inquired whether the defendant was driving in order to
reconstruct what had happened. (Ibid.) The appellate court also noted the officer did not
communicate any suspicion that the defendant was responsible for the collision and did
not exert any effort to detain the defendant. (Id. at p. 200.) The appellate court held the
officer’s question did not transform the accident investigation into custodial
interrogation. (Ibid.)
       Here, Officer Thompson was the only officer on scene when he spoke to
defendant. Defendant claims the dispositive factors in this custodial analysis are whether
Officer Thompson’s investigation focused on defendant and whether Officer Thompson
intended to arrest defendant. But as we have explained, an officer’s unexpressed intent
has no bearing on whether the defendant is in custody. (Stansbury v. California, supra,
511 U.S. at p. 326 [128 L.Ed.2d at p. 301] [“any inquiry into whether the interrogating
officers have focused their suspicions upon the individual being questioned (assuming
those suspicions remain undisclosed) is not relevant for purposes of Miranda”];
Berkemer v. McCarty, supra, 468 U.S. at p. 442 [82 L.Ed.2d at p. 336]; People v.
Stansbury, supra, 9 Cal.4th at p. 830 & fn. 1.) There is no indication Officer Thompson
communicated to defendant that he suspected defendant caused the collision.2 There is




2 There is no evidence at the Evidence Code section 402 hearing that Officer Thompson
suspected defendant was the driver when Officer Thompson questioned defendant.
Officer Thompson subsequently testified the driver’s side window of the Mercedes Benz
passed the driver’s side window of his patrol vehicle and he saw the driver of the

                                             11
also no indication the officer told defendant he would be detained or arrested before
defendant admitted he was the driver. It does not appear the officer was aggressive,
confrontational, or accusatory when he spoke with defendant. As the trial court found,
the officer was simply conducting a traffic collision investigation. (Bellomo, supra,
10 Cal.App.4th at pp. 199-200.)
       Additionally, Officer Thompson did not physically restrain defendant. Although
Officer Thompson did not state how much time passed after he first contacted defendant
and before defendant admitted he was driving, the interaction between Officer Thompson
and defendant does not appear to have been protracted. And the interaction occurred on
a public roadway, where other people were present. (Berkemer v. McCarty, supra,
468 U.S. at pp. 438-439 [82 L.Ed.2d at p. 334] [the fact that questioning occurs in public
view and the detained motorist is interviewed by a single officer ameliorates the concerns
in Miranda].)
       People v. Herdan (1974) 42 Cal.App.3d 300 (Herdan) and People v. Bejasa
(2012) 205 Cal.App.4th 26 (Bejasa), cases defendant likens to this one, are
distinguishable. In Herdan, two police officers and four other police units conducted
surveillance of a suspected narcotics transaction. (Herdan, supra, 42 Cal.App.3d at
p. 303.) A police informant gave a prearranged signal to police indicating the presence
of narcotics in the trunk of the defendant’s car. (Ibid.) Officers followed defendant, the
informant, and defendant’s associate to the informant’s house where two police officers
rushed over and accosted defendant and his associate. (Id. at pp. 303-304.) One car
blocked the defendant’s car. (Id. at p. 304, fn. 3.) Various other officers approached
defendant. (Ibid.) One officer pointed a gun at the defendant. (Ibid.) The defendant was




Mercedes Benz wore a white shirt. But no such evidence was presented when the trial
court made the challenged ruling.

                                            12
frisked for weapons before he was questioned. (Ibid.) An officer identified himself and
asked defendant if he had any narcotics in his car. (Id. at p. 304.)
       In Bejasa, the defendant drove a vehicle that collided with another vehicle.
(Bejasa, supra, 205 Cal.App.4th at p. 32.) Defendant told the first police officer at the
scene he was the driver. (Ibid.) Defendant also admitted he was on parole. (Ibid.)
He consented to a search, during which the officer found two syringes. (Ibid.) One of
the syringes contained a small amount of liquid. (Id. at p. 33.) The defendant admitted
he used the syringe to ingest methamphetamine. (Ibid.) The officer told the defendant
he was being detained for a possible parole violation, handcuffed him, and placed him in
the back of a patrol car. (Ibid.) A second officer later took defendant out of the patrol
vehicle, removed the handcuffs, and interviewed the defendant. (Ibid.) The defendant
made a number of incriminating statements about his drug use to the second officer.
(Ibid.) On appeal, the defendant challenged the admissibility of his statements to the
second officer only. (Id. at p. 34.) The Court of Appeal said it was less likely defendant
was exposed to custodial pressures when the first officer interviewed him because that
officer was gathering information about what had occurred, rather than questioning
defendant as a suspect. (Id. at p. 37.) However, the defendant was placed in custody
when he was restrained and the first officer told him he was being detained for a possible
parole violation. (Id. at pp. 37-38.) Accordingly, the defendant’s statements to the
second officer, which were given without Miranda warnings, were inadmissible. (Id. at
pp. 31-34.)
       The show of force in Herdan and the circumstances that would have led the
defendants in Herdan and Bejasa to reasonably believe they were not free to leave are
absent here. There were no indicia of arrest and there was no coercive environment
present when defendant told Officer Thompson he drove the Mercedes Benz.
       Considering the totality of the circumstances as presented to the trial court, we
conclude defendant was not in custody when he admitted he drove the Mercedes Benz.

                                             13
The trial court did not err in admitting defendant’s statements to Officer Thompson.
We need not consider whether Officer Thompson “interrogated” defendant for purposes
of Miranda because defendant was not in custody when he made the challenged
statements.
                                             II
       Defendant next claims the trial court abused its discretion in excluding third party
culpability evidence, namely Reichenberg’s opinion that Fletcher’s injuries indicate
Fletcher could have been the driver of the Mercedes Benz.
                                             A
       Defendant retained Reichenberg to determine the seating positions of defendant
and Fletcher at the time of the collision. Reichenberg concluded the identity of the driver
of the Mercedes Benz could not be determined from an examination of the available
physical evidence. He said both defendant and Fletcher sustained injuries that were
consistent with being the driver, and their injury patterns were also consistent with being
the right rear passenger.
       The People moved in limine to exclude Reichenberg’s opinion as inconclusive and
therefore irrelevant and insufficient foundation for third party culpability evidence. The
People further argued Reichenberg’s opinion should be excluded under Evidence Code
section 352 because it would add confusion and cause the jury to speculate.
       Defense counsel clarified that Reichenberg would not place someone else in the
driver’s seat. Rather, the expert’s opinion would cast doubt on the People’s case that
defendant was the driver.
       The trial court was initially inclined to deny the People’s motion, finding the
proffered evidence relevant. It said Reichenberg’s opinion was “very probative” even if
there was “some prejudicial impact.” However, after determining there was no other
evidence to suggest that anyone other than defendant was the driver and after reviewing
cases on third party culpability, the trial court subsequently granted the People’s motion.

                                            14
         The trial court said Reichenberg’s opinion was pure speculation. And the fact that
there was a possibility Fletcher could be the driver was not enough to admit
Reichenberg’s opinion as third party culpability evidence. The trial court ruled
Reichenberg could testify he did not believe defendant was the driver, but he could not
opine Fletcher could have been the driver, unless there was some other evidence
supporting that conclusion. The trial court did not rule whether the proffered testimony
by Reichenberg was inadmissible under Evidence Code section 352.
                                               B
         Even if the trial court abused its discretion in excluding Reichenberg’s expert
opinion that either defendant or Fletcher could have been the driver of the Mercedes
Benz, the error was harmless either under the People v. Watson (1956) 46 Cal.2d 818 or
the Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705] standard of review.
There was overwhelming evidence defendant was the driver of the Mercedes Benz.
Defendant was the registered owner of the car. Fletcher, the only sober person in the car,
testified defendant drove the Mercedes Benz after the group left the nightclub. The
collision occurred minutes later. Physical evidence and Officer Thompson’s observations
of the Mercedes Benz corroborate Fletcher’s detailed account. Fletcher’s testimony that
he felt the Mercedes Benz hit something before it hit another object is supported by
evidence that the Mercedes Benz hit a parked car before it collided with Calonge’s truck.
Officer Thompson saw that the driver of the Mercedes Benz wore a white shirt. Fletcher
wore a plaid shirt. Defendant was wearing a white shirt on the day of the collision.
Moreover, defendant admitted he was the driver of the Mercedes Benz. Defendant also
admitted culpability to Brott. Reichenberg’s findings did not establish that Fletcher, and
not defendant, was driving the Mercedes Benz when it collided with Calonge’s pickup
truck.
         Defense counsel urged the jury to find that the People failed to prove beyond a
reasonable doubt that defendant was driving the Mercedes Benz at the time of the

                                              15
collision. Defense counsel said the fact that defendant owned the Mercedes Benz did not
mean defendant was driving when the collision occurred because “[t]here are designated
drivers” and “[p]eople drive other people’s cars all the time.” He pointed out Fletcher
knew how to drive. Defense counsel highlighted Reichenberg’s finding that it could not
be determined, from the physical evidence, whether defendant was the driver. Defense
counsel pointed out Fletcher had injuries to his left clavicle and abrasions to the tops of
his hands. And Reichenberg said abrasions to the hands and the left clavicle area are
common injuries a driver can suffer in a collision. Defense counsel argued the jury
should not rely on defendant’s admission because defendant had a 0.21 percent blood
alcohol content, he was confused after the collision, and it was not known what question
Officer Thompson asked defendant when defendant responded “yes.” Defense counsel
also attacked the police investigation, Officer Thompson’s belated memory about seeing
the driver of the Mercedes Benz in a white shirt, and Fletcher and Brott’s credibility. But
the jury rejected the argument that defendant was not driving when the collision occurred.
       On this record, even if the trial court erred in excluding Reichenberg’s proffered
opinion, the error was harmless beyond a reasonable doubt.
                                             III
       Defendant further claims Juror No. 1 committed prejudicial misconduct by failing
to disclose, during voir dire, that he knew one of the People’s witnesses, and the trial
court erred in failing to conduct a reasonable inquiry into juror bias and in failing to
excuse Juror No. 1 for bias.
                                              A
       The People called criminalist Chris Fogelberg as a witness on the second day of
their case-in-chief. Juror No. 1 announced that he knew the witness immediately after
Fogelberg entered the courtroom. Juror No. 1 did not disclose that he knew Fogelberg
when the trial judge read the list of possible trial witnesses, including the name Chris
Fogelberg, during voir dire.

                                             16
       The trial court questioned Juror No. 1 outside the presence of the jury but in the
presence of defendant, his counsel, and the prosecutor. Juror No. 1 said he knew
Fogelberg “[t]hrough multiple games of baseball and school, all school, with [his] son.”
Juror No. 1 explained he was Fogelberg’s baseball coach for four or five years, rooted for
Fogelberg at games, and attended one or two social outings in relation to baseball. Juror
No. 1 did not recall Fogelberg’s parents. He had not seen Fogelberg in nine or 10 years.
He did not know Fogelberg worked at the crime lab.
       Juror No. 1 recognized Fogelberg’s name from the list of possible witnesses given
during voir dire, but he was not sure the person on the list was the same person he knew.
However, he recognized Fogelberg when he saw Fogelberg in the courtroom.
       Juror No. 1 said he could be impartial and fair to both parties even though he
coached Fogelberg and actively rooted for him in school. Juror No. 1 stated he could set
aside any prior knowledge he had of Fogelberg and judge the case solely on the evidence
presented and the law given by the judge. The trial resumed following an unreported
discussion between the trial judge and counsel.
                                             B
       A trial court must make whatever inquiry is reasonably necessary to determine
whether a juror should be discharged when the trial court is put on notice that the juror
may be unable to perform his duty to render an impartial verdict. (People v. Martinez
(2010) 47 Cal.4th 911, 941; People v. McNeal (1979) 90 Cal.App.3d 830, 838-839.) The
scope of any inquiry and the ultimate decision whether to discharge a juror are committed
to the sound discretion of the trial court. (People v. Bonilla (2007) 41 Cal.4th 313, 350.)
       Defendant says the trial court should have inquired about (1) why Juror No. 1 did
not disclose, during voir dire, that he may know Fogelberg; (2) Fogelberg’s relationship
with Juror No. 1’s son, (3) any other contact Juror No. 1 had with Fogelberg, and
(4) Juror No. 1’s current feelings toward Fogelberg. But defendant did not object on the
record to the scope of the trial court’s inquiry into possible misconduct by Juror No. 1.

                                             17
Defendant’s failure to seek, in the trial court, a more extensive inquiry of Juror No. 1 or
in any other way to object to the trial court’s course of action deprived the trial court of
the opportunity to consider arguments for conducting further examination and to avoid or
correct any errors. Defendant’s omission in the trial court forfeits his appellate claim.
(People v. Holloway (2004) 33 Cal.4th 96, 126-127.)
       In any event, defendant’s claim fails on the merits because the trial court’s
questioning of Juror No. 1 covered the issues defendant identifies on appeal. During
questioning by the trial judge, Juror No. 1 said he recognized Fogelberg’s name but was
uncertain whether the potential trial witness was the same Chris Fogelberg he knew. It
appears because he was uncertain whether he knew the Chris Fogelberg who may be a
witness at the trial, Juror No. 1 did not make a disclosure during voir dire but instead
followed the trial court’s voir dire instruction to inform the trial judge if he recognized
Fogelberg during the trial. With regard to the nature of Fogelberg’s relationship with
Juror No. 1’s son, Juror No. 1 said Fogelberg went to school and played baseball with
Juror No. 1’s son. Juror No. 1 last saw Fogelberg nine or 10 years ago. As for his
current feelings toward Fogelberg, Juror No. 1 said he could be fair and impartial to both
sides and he could set aside any prior knowledge he might have of Fogelberg and judge
the case solely on the evidence presented and the instructions the trial court gave. The
trial judge, who was able to observe Juror No. 1’s demeanor and assess his veracity,
accepted Juror No. 1’s representations without any objection from the parties. The trial
court did not abuse its discretion in deciding when to end the inquiry. (People v. Ray
(1996) 13 Cal.4th 313, 343-344 [trial court did not abuse its discretion in concluding no
further inquiry into possible juror bias or misconduct was necessary where record
contained no evidence of juror bias].)
       Defendant also argues the judgment must be reversed because Juror No. 1 engaged
in misconduct, and the People cannot overcome the presumption of prejudice arising
from the misconduct by Juror No. 1. Defendant argues, in the alternative, the judgment

                                              18
must be reversed because the trial court abused its discretion in not excusing Juror No. 1
for bias which was inherent in Juror No. 1’s relationship with Fogelberg.
       A defendant has a constitutional right to a trial by impartial jurors. (U.S. Const.,
6th and 14th Amends.; Cal. Const., art. I, § 16; In re Boyette (2013) 56 Cal.4th 866,
888 (Boyette).) “ ‘ “The right to unbiased and unprejudiced jurors is an inseparable
and inalienable part of the right to trial by jury guaranteed by the Constitution.” ’ ”
(Boyette, supra, 56 Cal.4th at p. 888.) “ ‘ “Voir dire plays a critical function in assuring
the criminal defendant that his Sixth Amendment right to an impartial jury will be
honored. Without an adequate voir dire the trial judge’s responsibility to remove
prospective jurors who will not be able impartially to follow the court’s instructions and
evaluate the evidence cannot be fulfilled. [Citation.] Similarly, lack of adequate voir
dire impairs the defendant’s right to exercise peremptory challenges where provided by
statute or rule . . . .” [Citation.] [¶] The ability of a defendant, either personally, through
counsel, or by the court, to examine the prospective jurors during voir dire is thus
significant in protecting the defendant's right to an impartial jury. Of course, the efficacy
of voir dire is dependent on prospective jurors answering truthfully when questioned.
As the United States Supreme Court has stated, “Voir dire examination serves to protect
[a criminal defendant’s right to a fair trial] by exposing possible biases, both known and
unknown, on the part of potential jurors. Demonstrated bias in the responses to questions
on voir dire may result in a juror’s being excused for cause; hints of bias not sufficient to
warrant challenge for cause may assist parties in exercising their peremptory challenges.
The necessity of truthful answers by prospective jurors if this process is to serve its
purpose is obvious.” [Citation.] [¶] A juror who conceals relevant facts or gives false
answers during the voir dire examination thus undermines the jury selection process and
commits misconduct. [Citations.] [¶] Without truthful answers on voir dire, the
unquestioned right to challenge a prospective juror for cause is rendered nugatory. Just
as a trial court’s improper restriction of voir dire can undermine a party’s ability to

                                              19
determine whether a prospective juror falls within one of the statutory categories
permitting a challenge for cause [citations], a prospective juror’s false answers on voir
dire can also prevent the parties from intelligently exercising their statutory right to
challenge a prospective juror for cause. [¶] Such false answers or concealment on voir
dire also eviscerate a party’s statutory right to exercise a peremptory challenge and
remove a prospective juror the party believes cannot be fair and impartial.’ ” (Id. at
pp. 888-889, italics omitted.)
       Juror No. 1 failed to disclose, during voir dire, that he may know the Chris
Fogelberg who may be a witness at trial. Concealment of relevant facts is juror
misconduct. (Boyette, supra, 56 Cal.4th at p. 889; In re Hitchings (1993) 6 Cal.4th 97,
111.) However, defendant did not assert an objection at trial that Juror No. 1 engaged in
misconduct, and defendant did not move to excuse Juror No. 1. Defendant did not
preserve his claims for review because he did not object in the trial court on the grounds
raised on appeal. (People v. Russell (2010) 50 Cal.4th 1228, 1250 [“A claim of
prejudicial misconduct is waived when the defendant fails to object to a juror’s continued
service and fails to seek a mistrial based upon prejudice.”]; People v. Dykes (2009)
46 Cal.4th 731, 808, fn. 22 [failure to raise the issue of juror misconduct and seek relief
from the court on that basis results in a forfeiture of the issue on appeal].)
       Defendant’s claims also fail on the merits because the record discloses no
substantial likelihood that Juror No. 1 was actually biased against defendant. Juror
misconduct raises a rebuttable presumption of prejudice. (Boyette, supra, 56 Cal.4th at
p. 889.) The presumption is rebutted “ ‘and the verdict will not be disturbed, if the entire
record in the particular case, including the nature of the misconduct or other event, and
the surrounding circumstances, indicates there is no reasonable probability of prejudice,
i.e., no substantial likelihood that one or more jurors were actually biased against the
defendant.’ [Citation.] In other words, the test asks not whether the juror would have
been stricken by one of the parties, but whether the juror’s concealment (or

                                              20
nondisclosure) evidences bias.” (Id. at pp. 889-890, italics omitted.) “Before an
appellate court will find error in failing to excuse a seated juror, the juror’s inability to
perform a juror’s functions must be shown by the record to be a ‘demonstrable reality.’ ”
(People v. Holt (1997) 15 Cal.4th 619, 659.) We independently review whether prejudice
arose from juror misconduct. (People v. Nesler (1997) 16 Cal.4th 561, 582.)
       Considering the totality of the circumstances, there is no basis to conclude that
Juror No. 1 was biased. As soon as he realized the Chris Fogelberg who the People
called as a witness was the same Chris Fogelberg he knew, Juror No. 1 alerted the trial
court. (People v. Ray, supra, 13 Cal.4th at p. 344 [if juror was biased against the
defendant, common sense suggests he would not have voluntarily disclosed his
connection to the victim after the victim testified].) There is no support in the record for
defendant’s assertion that Juror No. 1 had a “close personal relationship with” Fogelberg
which would “naturally bias the juror in favor of the prosecution.” Juror No. 1 had not
seen Fogelberg for nine or 10 years. And nothing in the record supports defendant’s
speculation that Juror No. 1 may have influenced the other jurors’ evaluation of
Fogelberg’s testimony. The fact the jury accepted Fogelberg’s testimony does not
evidence bias or improper influence by Juror No. 1. Defense counsel did not challenge
Fogelberg’s qualification to testify as an expert. Fogelberg said defendant had a 0.18
percent blood alcohol content. He opined a person with a 0.18 percent blood alcohol
content is too impaired to drive safely. Defense counsel did not challenge the results of
defendant’s blood alcohol test or Fogelberg’s opinion that a person with a 0.18 percent
blood alcohol content is too impaired to drive safely. Defense counsel’s closing
statement focused instead on whether defendant was driving at the time of the collision.
       Defendant is not entitled to relief based on juror misconduct.




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                                   DISPOSITION
       The judgment is affirmed.



                                                 /S/
                                            Mauro, J.


We concur:



      /S/
Raye, P. J.



     /S/
Duarte, J.




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