1

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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,

v.

JOHN JOSHUA CRISTOBAL,

Defendant and Appellant.

C072061

(Super. Ct. No. 11F06197)

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 
2

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 
3

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, 
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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 
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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. 
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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.
7

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 
8

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, . . . 
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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 
10

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 
11

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 
12

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. 
13

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. 
14

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. 
15

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 
16

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. 
17

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. 
18

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 
19

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 
20

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 
21

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.
22

DISPOSITION

The judgment is affirmed.

 /S/

Mauro, J.

We concur:

 /S/

Raye, P. J.

 /S/

Duarte, J.